Charles Sargent, C.J.
1. The first question as to the application of the Statutes of Limitation to service vatans turns upon the nature of the estate which the holder for the time being of the vatan has in the vatan property.
2. In Kuria v. Gururav 9 Bom. H.C. R. 282 the Court would appear to have assumed that land belonging to a service vatan 'was held on a tenure of successive life-estates, the right to which accrued on the death of each life-tenant.' In Babaji v. Nana I.L.R. Bom. 1535 however, it is said by the Court: 'The incumbent of a service vatan restrained by Regulation XVI of 1827, Section 20, from alienating the vatan as against his heirs, is in a position parallel to that of a Hindu widow, who, except for special purposes, cannot, as against the heirs of her husband, alienate his immoveable property. Her alienation, except for such special purposes, is effective only to the extent of her own limited interest as widow, yet she completely represents the absolute estate in the immoveable property, and under certain, circumstances the law of limitation might, during her incumbency, run against the heirs to, the property, whoever they might be.'
3. In determining which of these views is the correct one, it will be convenient to consider what was the nature of the estate of a holder of a vatan appendant to an hereditary office before the subject engaged the attention of the Indian Legislature in 1827. This question is discussed by Vestropp, C. J., in Krishnarav Ganesh v. Rangrav 4 Bom. H.C. R A.C.J.12 and the conclusion arrived at by the learned Chief Justice, on the authority of Mountstuart Elphinstone's Report on the territories conquered from the Peishwa and the decisions of the Sadar Adalat, is that both as to civil hereditary offices and the vatans annexed to them, the balance of authority inclines in favour of the alienability in permanence as well of the offices as of the vatans sppendant to them, together or separately, but that 'in the case of some,' although not of all, such offices the assent of the Native Government seems to have been necessary to the validity of the alienation, and also if the vatan were undivided, the assent of the co-parceners, if any.' A re-examination of those authorities has led in to the same conclusion, which, if correct, can leave no doubt-although, as Westropp, C. J., says at p. 15, it might well have been expected to be otherwise having regard to the purpose for which they were granted-that the actual incumbent of a service vatan previous to English legislation was regarded as fully representing the vatan. As one of the Court who decided the case in Kuria v. Gururav 9 Bom. H.C. R. 282 I may state that this important conclusion was not brought to our notice, or present to our minds.
4. Passing to English legislation on the subject, which commences with Regulation XVI of 1827, we find Section 20 of that Regulation declaring that 'the allowances derived by an hereditary officer shall in future be considered strictly as official remuneration of the person filling the office,' and forbidding its alienation by any sole incumbent of the hereditary office, or by any co-sharer of such office, out of the family-a prohibition which was restricted by the interpretations put on the section by the Sadar Adalat on 22nd February 1831, and 5th December, 1834, to an alienation exceeding the life-time of the incumbent or co-sharer.
5. The next Act (Act XI of 1848) regulates the service of hereditary offices in this Presidency, and provides for the assignment, by the Collector, of a portion of the rents and profits of the vatan for the maintenance of the officiating hereditary officer, leaving the surplus to be participated in by the other sharers in the vatan. After some diversity of opinion in the Sadar Adalat it was held that Section 20 of Regulation XVI of 1627 was not affected by this Act, and that no part of the vatan, whether assigned by the Collector or constituting the surplus participated in by the co-sharers, could be alienated. This Act, as well as Section 20 of Regulation XVI of 1827, was repealed by the Bombay Hereditary Officers Act (III of 1874), But by Sections 5 and 7 of that Act the alienation of any vatan or part thereof, is forbidden, without the section of Government to any person not a vatandar of the same vatan and also of the vatan property assigned by the Collector under Section 23 of the Act as remuneration of the officiating vatandar to any person without such sanction; and, lastly, by Sections 10 and 11 power is given to the Collector to set aside any sale or transfer thereof, and to declare the same to be null and void, and to summarily resume possession.
6. It was contended by the Advocate-General that the object of the above legislation was that the land should be always forth coming for remuneration of the office, and should not, therefore, be diverted from the particular family in which the hereditary office was vested-an object which would be liable to be defeated if the vatan property could be lost by the negligence of the incumbent. That such was the general object of the Acts referred to, may be conceded, and so far as that object would be liable to be defeated by an act of alienation by the holder for the time being of the vatan, the provisions of the Acts and especially of the Act of 1874, prohibiting alienation without the sanction of Government, are sufficient to provide against that contingency; but alienation implies action, not the passive lying by, of the incumbent; and a prohibition, which is confined in terms to alienation, cannot, therefore, avoid the effect of adverse possession by a stranger during the life of an incumbent of the vatan. That this is so, is illustrated by the analogous oases in England under Statute 34 and 35, Hen. VIII, c. 20 and 13 Eliz., c. 10. By the former statute recoveries by tenant-in-tail in possession of lands granted by the Crown for distinguished public Services are made void against the heirs; but, as shown by the case of Stratfield v. Dover Cro. Eliz. 595, resort was had to the express prohibition of 'acts suffered' by such tenant for-life to avoid the operation of the Statute of 4 Hen. VII, c. 24, which barred the succeeding tenant when the tenant-in-tail in possession had been disseised and the disseisor had levied a fine with proclamations, and five years had elapsed with non-claim. Similarly in the Magdalen College case 11 Co. Rep., p. 66 the Court held that the disabling clause in the 13 Eliz, c. 10, which expressly forbids alienations by any master or fellows of' a college other than for twenty-one years or three lives, avoided that effect of a non-claim by the master for the time being of the college after a fine levied by a stranger under 4 Hen. VII, c. 24, but it was on the strength of the words 'estates suffered' in the clause in question. In both these cases it is to be observed that the Act under consideration was a public Act.
7. Passing to the instance of a private Act. we find in the Earl of Abergavenny v. Brace L.R. 7 Ex. 145 that the majority of the Court- who held that the private Act of 2 and 3 Philip and Mary, c. 23 which made all alientions by the tenant-in-tail void as against his heirs, also excluded the operation of the Statute of Limitations 3 and 4 Will. IV, c. 27-relied principally upon the prohibition, by the Act, of 'acts suffered' by the tenant in-tail in arriving at that conclusion. Lastly, in The Mayor of Brighton v. Guardians of Brighton L.R. 5 C.P. Div., 369 it was held that apt wards were necessary to exclude the operation of the Statute of Limitations, and that a mere prohibition against alienation in the act of incorporation of the plaintiffs without the consent of the vestry was not sufficient for that purpose.
8. In neither the Act III of 1874-passed, it is to be similarly observed, after the Statutes of Limitation had been introduced into this country, although the Legislature has expressly prohibited the alienation by holders of service vatans to persons outside the vatan without the consent of Government, and has invested the Collector with large powers of control over the vatan property with a view to its preservation for the purposes of the office-nor in any of the other Acts is there anything to be found which can be held to protect either the heirs of a vatandar, or the public interest as represented by the Collector, 'against the effect of adverse possession by a stranger.
9. It may be said, however, that although the Act of 1874 does not avoid the effect of adverse possession, still the general scope of the legislation since 1827, upon which the Advocate-General relied, and the prohibition against alienation, which is particularly directed to give effect to that object, are sufficient to preclude our regarding the incumbent as fully representing the vatan, and that, therefore, a fresh cause of action should be deemed to accrue to each succeeding holder of the vatan against an intruder on the vatan whose adverse possession had commenced in the life-time of his predecessor. Assuming, however, as I think we must that the incumbant for the time being did fully represent the vatan ' before English legislation, the mere restriction of his power of alienation outside the family without the sanction of Government cannot, in my opinion, be held sufficient to change that character, or to prevent his representing the vatan in all questions with the outside world relating to it' as fully as he had hitherto done. I am, therefore, of opinion that, in the absence of fraud and collusion, the two first questions should be answered in the affirmative--leaving, of course, what is to be considered as adverse possession to be determined in each particular case.
10. With respect to the third question referred to us, I entirely agree in the conclusion arrived at by my brother West, and do -not wish to add anything to the reasons by which he has supported it.
11. The following questions were referred by a Division Bench on the 23rd April, 188-1, to a Full Bench:
1. Whether adverse possessions for twelve years during the life-time of one holder is a bar to succeeding holders?
2. Whether a judgment against one is res judicata as regards a succeeding holder?
3. Whether lands become alienable when the services are abolished?
12. I am of opinion that the third question proposed to the Full Bench does not admit of a single and invariable answer. So long as lands are assigned by the sovereign to the support of a public office, or the land-tax payable on '-lands is remitted in consideration of services to be performed by a particular family or line of holders, the lands are, according to the principles of the Hindu law and the customary law of the country, incapable of an alienation or disposal, such as to divert them, or the proceeds of them from the intended purpose-Ravlojirav v. Balantrav Venkatesh I.L.R. 5 Bom. 437. This principle has been recognized in many decisions West and Buhler H.L. (3rd ed.), 741, 846 Mussamut Kustoora Koomaree v. Monohur Deo Calc. W.R 1864 39. It often coincides in its operation with another principle, viz., the compulsory force of a special family custom of inheritance, which prevents alienation of the patrimony beyond the family West and Buhler H. L., 159, 184 (a)-Thakur Ishri Singh v. Thakur Balded Singh I.L.R. 10 Cal. 807 and in some oases even its partition within the family West and Buhler H.L., 743, while it replaces the ordinary rule of the join inheritance of a group of sons by that of primogeniture or some other mode of singular succession West and Buhler H.L. 69; Ishri Singh v. Thakur Baldev Singh I.L.R. 10 Cal 805. When an estate is freed from its connection with a public office, the reason arising from that connection for the preservation of the estate, intact and unencumbered, necessarily fails. There is not in the lands themselves, according to Hindu law, any inherent quality limiting them to special kinds of ownership and devolution West and Buhler H.L. 741. They, become subject to the ordinary laws of descent and disposal, just as where a particular custom concerning them has been abandoned Ibid 3, 4; or they have passed into a family not subject to the custom-Sheulal Dhurmchand v. Bhaichand Luckhoobhai Sec 7 H S.D.A. R 195; Abraham v. Abraham 9 M. I.A. 242; Soorendronath Roy Mussamut Heramoneo Burmoneah 12 M. I.A. 91.
13. But though the political and public tie, which kept a ' vatan ' estate together, may thus have failed, a concurrent family custom producing an effect wholly or partly the same, may continue and may singly bind the hands of the successive holders of the property as straitly as before West and Buhler H.L. 2,744 (b) The abolition of the public duty does not in this sense, any more than the remission or the imposition of the land-tax, alter the nature of the estate-Reval Kuber v. The Talukdari Settlement Officer I.L.R. 1 Bom. 586; Rajah Leelanund Singh Bahadur v. Thakur Munurnnun Singh L.R. Ind. Sup. 181. It is only necessary to bear in mind that this 'estate,' the proprietary relation of a family to certain lands, is not by Hindu law a quality of the lands; it is a jural character of the family West and Buhler H.L. 744.-Rany Padmavati and Baboo Doolar Sing 4 M. I.A. 259; Rany Srimati Dibeah v. Rany Koond Luta 4 M. I.A. 292; and Chundro Shcekhur Roy v. Nobin Soondur Roy Cal. W.R. 197. If the family custom forbids alienation beyond the life of the alienor, the custom will operate equally 'after the patrimony has ceased to be a ' vatan ' in the technical sense as before West and Buhler H.L. 173, 742. That such a custom exists, or does not exist, may, in most cases, be gathered with reasonable certainty from the previous practice of the family. If while the vatan has been reserved for the office-holding member, the rest of the family estate has been sold or mortgaged or divided or dealt with as an ordinary joint property, that is an indication that no special custom has prevailed; that the vatan has been kept together, not by the family law, but by the official obligation. In some cases the-vatan estate itself has been distributed within the family or group of vatandars after the fashion of an ordinary divisible property. See Act XI of 1848, Section 13, though kept from leaving The family by the expressed or understood terms of the official tenure West and Buhler H.L. 173, apart from any connexion with a 180, 184 (a) and cases there cited. When the office ceases, the tenure ceases too, though not by the office becoming a sinecure -The Government of Bombay v. Desai Kallianrai Hakoomutrai 14 M I.A. 551; -and there being no special family custom the property may be dealt with in the usual ways-Adrishappu v. Gurshidappa L.R. 7 IndAp 162; Desdi Maneklal Amratlal Desai v. Shivlal Bhogilal I.L.R. Bom. 426. a saranjam given for the support of a distinguished family is generally in its nature impartible and inalienable public service-see Ramchandra Sakharam v. Sakhram Gopal I.L.R. 2 Bom. 346.
14. It seems that this result is contemplated by the Bombay Acts II and VII of 1863. The former is the one that applies to the southern districts of the Bombay Presidency, whence the present case comes. Section 1 of the Act enables the Governor in Council to make a summary settlement with the holders of land who claim exemption from the land tax; but Clause 2 of the section excepts from the rule 'lands held for service.' By Section 16 the Governor in Council may determine what are and are not 'lands held for service,' and when he has once made a settlement under the Act, he has conclusively elected to treat the estate embraced in such settlement as lands not 'held for service,' since such a tenure would make the settlement impossible See the rules under Bombay Act II of 1863 and Bombay Act III of 1874, Sections 4, 8, 9 and 10. Accordingly Section 2 provides that such 'lands shall be the heritable and transferable property of the holders, their heirs; and assigns, without restriction as to adoption, collateral succession, or transfer.' It is plain that such language must have been used with the intention of wholly freeing settled lauds from official obligations. The terms on which the proposed benefits are to be scoured are an annual payment of one-fourth of the laud-tax previously remitted, plus 1/2 of the full land-tax-On such terms the estate, with which we have now to do, has been settled. It is no longer affected with a liability on account of service; and unless as a family estate, subject to a special, family custom Soorendronath Roy v. Mussamut Heeramonee Burmonedh 12 M. I.A. 91; Bhdu Nanaji Utpat v. Sundrabhai 11 Bom. H.C. R 249 it has become in all respects, except its partial exoneration from land-tax, like the ordinary landed property of the district.
15. There is a question which may be regarded as a particular form of the third one submitted to us, and which seems to arise in this case. It is this, where service lands, or what were deemed service lands, have been aliened, and at a later period the service has been disclaimed or abolished, does this latter event render indisputable by the alienor's heirs the title of the alience in possession which, had the liability to service continued, might have been disputed Assuming that there is no special family custom operating apart from the law which preserved service lands for the intended uses, it seems that the answer to the question thus proposed, must be in the affirmative, with an addition of the terms on which family property can usually be aliened. The service lands are a property, not merely a remuneration otherwise the right to them would cease with a discontinuance of the service-Forbes v. Meer Mahomed Tuquse 13 M I.A. 464; Rajah Leelamund Singh Bahadur v. Thakoor Munurunjum Sing L.R. Ind. Ap. Sup. 182; James Joseph Sparrow v. Tanaji Rav Raja Sirke 2 B R. 601. Com. C. L. 42a. As a property they would, subject to known restrictions, be bound by the transactions of the owner for time being West and Buhler H.L., 614, 622,637,641: Trimbak Balkrishna Gadre v. Nardyanrav Damodar Dabholkar Printed Judgments for 1894, p. 120. The change in the character of a holding on the death of a particular tenant from tax-free inam to taxable rayatwdri did not, it was ruled in Vishnu Trimbak v. Tatia Bom. H.C. Rep., 22 and Rajkishen Singh v. Ramroy Surma Mozoomdar Sec. too I.L.R. 1 Cal 186 destroy the original estate or free the lands from specific liens created by the last inamdar. Here there has been an imposition, not of the full land-tax, but of 3/16hs of it. This would not destroy the previous estate, nor would it annul a prior alienation. The nullity of the alienation, if it is null, must arise from a character possessed by the estate at the time of the attempt to alien. On a literal construction of the regulation, the estate held by the vatandar would be inalienable. It is conceded, however, that it was not absolutely inalienable; the vatanddr's conveyance was valid, at least for his own life-Krishnarav Ganesh v. Rangaav See 4 Bom. H.O. R I A.C.J. and Ravlojirav v. Balvantrdv Venkatesh I.L.R. 5 Bom. 437. Thus the prohibition against alienation has been allowed to deprive a vatan of the usual incidents of an estate only so far as was necessary to prevent its permanent severance from the services annexed to it See West & Buhler H.L., 162, 163 -Zamindar of Sivagiri v. Alwar Ayyangar I.L.R. 3 Mad. 42; Muttayan Chetti v. Sivagiri Zaminddr Ibid, 370; Raja Nilmoni Singh v. Bahrandkh Singh L.R. 9 IndAp 104; Muttayan Chettiar v. Sangili Vira Pandia Chimnatambier Ibid, 144. The nature of the estate, as such, was not otherwise varied from the common type.
16. In the case of the Abergavenny estate L.R. 7 Ex., 145 where there was a special statutory prohibition against alienation, it was still said: 'It cannot be contended that, in consequence of the limitation imposed,.upon them, the successive holders of the estate are not to be regarded as tenants-in-tail at all. The limitation of the estate.**** necessarily makes each succeeding holder of the estate a tenant-in-tail, and what follows comes as a proviso upon the Statute' I.L.R. 7 Ex., C B. l53. So here the Hindu law makes each succeeding holder take as an heir to his predecessor, notwithstanding the contingent operation of the rule for preserving the vatan from dissipation West and Buhler H.L. 184 (a)-Timangavda v. Rangangavda Printed Judgments for 1878, p. 240. In the case of an alienation by the vatandar in possession, the successors reclaiming after his death would do so in virtue of the special right conferred on them incidentally to their obligation to perform the service; and the incident would cease along with the obligation-Krishnarav Ganesh v4 Bom. H.C. R 15, A.C.J. Rangrav et al See As heirs they could reclaim only in the same circumstances as other heirs. The right of repudiating the ancestor's transactions arose through the office descending; in this sense, it was that the alienation was void against the heirs - Rdvlajirav v. Balvantrav Venkatesh I.L.R. 6 Bom. 437. If legally possible, it was but voidable, and. the special burden on the lands having made the alienation, not originally null, but only subject to defeasance for the benefit of the service- Adrishappa Gurushidappa See I.L.R. 4, Bom.502 West and Buhler H.L., 162, 163- that cause for. recovery could no longer avail when the service itself had once been finally dispensed with.
17. The second question, like the third, seems to admit of different answers according to circumstances. In the case of Self-acquired property, a judgment affecting it is necessarily res judicata against a succeeding holder taking through the judgment-debtor. In the case of ancestral estate a judgment on the right to it against a father must generally be res judicata as regards his issue West and Buhler H.L., 616 - Mayaram Sevaram v. Jayrantrav Pandurang Printed Judgments for 1874, p. 41; Pitam Singh v. Ujagar Singh I.L.R. 1 All. 651 though a decree in a suit, seeking to make the patrimony answerable for a father's transactions, will generally not bind the son?, unless they are made parties West and Buhler H.L., 168, 617, 750, Ibid, 642. Even a widow, limited as her estate is, represents the expectant heirs in a suit directed against the' property on a title not derived from her-sec the cases of Babaji v. Nana I.L.R. 1 Bom. 535 and Jugol Kishore v. Maharaja Jotindro Mohun Tagore L.R. 11 Ind.66; and if a judgment obtained against a father would not bind his issue, there would he virtually ' no limitation to suits claiming property as ancestral. A fraudulent and collusive suit will entitle the son to get the judgment, by which ho is wronged, sot aside; but, apart from fraud, the law of res judicata must guard titles against claims of members of joint families, heirs to ancestral estates, equally as against any oilier claims.
18. In the case of collateral succession Nephews were held to have been represented by their uncle-Narayan. Gop Habby v. Pandurang Ganu I.L.R. 5 Bom. 685 the collaterals, after the generation in which, a grant or conveyance was made, must come in by heirship, seeing that a gift to persons unborn is not recognized by the Hindu law West and Buhler H.L., 179, 185, 217. As representing a public interest, they might get an improvident alienation or incumbrance set aside-Rajah Nilmoni Singh v. Bakranath Singh Sec L.R. 9 IndAp 104 but as heirs they take through their predecessors in title the property of the latter, in a quantity and quality determined by the rights established against it, as well as those established in its favour West and Buhler H.L. 162 as one and the same estate, not as several estates in the hands of the successive possessors or groups of possessors. In the case of an impartible zamindari it has lately been held at Madras - The Sivagiri Zamindar v. Tiruvengada I.L.R. 7 Mad. 339 that a compromise embodied in a decree against an ancestor gave a right of execution against his Issue, though this involved a severance of part of the estate, and though in the language of the Judicial Committee 'the same principle which precludes a division of a tenure upon death must also apply to a division by alienation'-Rajah Nilmoni Singh v. Bakranath Singh L.R. 9 IndAp 122. The case just referred to shows that the collateral public interest might guard an estate which, apart from that connexion, would become subject to all the ordinary incidents of property.
19. In the case of a vatan or property held on a tenure of public service, it follows, from the considerations already stated, that each holder of office in succession, being subject to the service, may, or at least might, under the Hindu law and Regulation XVI of 1827, insist, as against his predecessor's alienation, on a restoration of the property to its intended uses- Rajah Nilmoni Singh v. Bakranath Singh See L.R. 9 IndAp 101. It is in this sense probably that the learned Judges in Kuria v. Gururav 9 Bom. H.C. H 282 said that a vatan is held 'on a tenure of successive life estates.' No holder could dispose of the vatan for a term extending (as the cases have determined) beyond his own life. But the validity, as against the issue, of decree as to the ownership of a particular field or area, obtained against the ancestor rests on different considerations. The observations of Mr. Reeves on the operation of the English Statute Be Donis are here very pertinent. 'It was intended,' he says, 'by that Act to bind up the hands of the teriantintail from prejudicing his issue, but not to preclude third persons from pursuing their lawful claims against the land entailed. It could not be said in opposition to their right that the will of the donor should be observed. The Statute provides only against voluntary alienations, and, among others, declares that a fine levied upon such entailed land shall be void-a fine being at that time an amicable suit for the single purpose of transferring the possession and right of land. But to all involuntary alienations, to all recoveries by right, such land entailed was still liable notwithstanding the strict restraint on alienation by the owner '(Reeves's History of the Common Law, Vol, III, p. 330). In other words, an entail or a dedication to a public service cannot affect the right of outsiders to lands not embraced in it, or which could not legally be embraced in it. If, then, a vatan is an estate, as it seems to be, it would be contrary to 'sound legal principles that the tamo man should have to prove again and again in. successive suits that a piece of land held by him as his own did not form part of the vatan. For the quieting of titles hero, as in the case of an ancestral property of the usual kind, it is necessary that some one should be recognized as capable of representing in litigation the aggregate of interests in virtue of which, he is in possession of the vatan See Code of Civ. Proc. (XIV. Of 1882), Section 13, Expl. 5. Under the Hindu law the son in each generation represents his father, and takes up his persona as centre of a connected group of rights and liabilities in the fullest possible sense West and Buhler H.L., 162, 165, 216. As regards the issue, therefore, of a vatandar against whom a judgment has been given, it seems that no doubt ought to be entertained of their being bound by the judgment as res judicata. A vatan, recognized as such, cannot legally pass away from the vatandar family-Wdmndji Parashram Printed Judgments for 1884, p. 220-, and even though the family should have divided into several branches with rights enjoyed in rotation, this does not seem to constitute for each branch. so distinct an estate that, on its falling into possession, that branch can claim to 'revive a contest in which another branch has already been defeated See Code of Civ. Proc. (XIV. of 1882, Section 30; Smith v. Lord Brounlow L.R. 9 Eq. 241; Phillips v. Hudson L.R. 2 Ch. 243; Comp. Nimdun Lalv. Lloyd., 22 C.W.R.,. 74 Civ. Rul. Under the Regulation law each branch as it succeeded to the office and the emoluments constituting the vatan, might claim to renew the struggle as representing an inalienable public interest; but this interest is now placed under the guardianship of the Collector, who has absolute power to defeat a judgment that would withdraw land from the vatan holding Bom. Act III. of 1874, Section 10, The private right should not be incapable of final determination. It is not, in fact, ever disputed that a vatandar in possession may singly sue to recover property wrongfully severed from the vatan. He is not called on to join every one however remotely interested as a plaintiff-Comp. Fyke v. Crouch 1 Lord Kayta. 730. But if he has the capacity thus to represent the aggregate of interest in a successful suit, he must have it equally in an unsuccessful suit, and in the absence of fraud, he must have it no less in a suit in which he is defendant. In the case of the zamindar of Sivgiri v. Armachala I.L.R. 7 Mad. 335 the High Court of Madras says: 'His(the zamindar's) argument is that a creditor who wants to make a zamindari available is bound to sue not only the zamindar for the time being, but all those possible successors to whom the estate may pass before the debt is liquidated. The effect of this, however, would be to raise a great number of collateral issues ****. It seems to us that a zamindar represents the estate during his life for all practical purposes.' This was in the case of an impartible zamindari, which might be supposed to bear the closest resemblance to an entailed estate under the Statute De Donis in England West and Buhler H.L., 161; yet the decree against the father was given effect to on the estate in the hands of the son -Muttayan Chettiar v. Sangili Vira Pandia Chinatambier L.R. 9 IndAp 144. Property dedicated to religious purposes is, by Hindu law, inalienable- Maharanee Shibessouree Debit v. Mothooranath Acharja 13 MI.A. 273 West and Buhler H.L. 201, 741, 785; Khushalchand v. Mahadevgiri 12 Bom. H.C. Rep. 214; yet a decree obtained without fraud against one mahant or shebait binds his successors - Golab Chand Baboo v. Prosunno Coomuree Bebia 20 Cal. W.R. 86; Jevan Bass Sahoo v. Sidh Kubeeroodeen 2 M I.A. 392; Prosunno Coomdree Debia v. Golab Chand Baboo L.R. 2 I.A. 160, He fully represents the estate in litigation, and a judgment for or against him is res judicata for his successor, though in case of an alienation or incumbrance limitation is computed against the successor only from his succession-Mohunt Ram Suroop Dass v. Khashee Jha 20 Calc. W.R. 471.
20. How far English precedents can or cannot help us in our present inquiry nay best be gathered, perhaps, from Ferrer's case and the notes in Thomas and Eraser's edition of Coke's Reports (Part VI, 76). An adjudication under the Common Law did not prevent the pursuit of the same right by an action of a higher nature, and thus even the same plaintiff who had failed in a formedon in descender might sue again in a formedon in reverter or remainder. He could not have a new formedon in descender, but his issue-in-tail could, This was a consequence of the 'express provisions of the Statute De Doms See Revised Statutes, Vol. I, p. 42. 'So, Coke says, 'if he be barred in a writ of error, on the release of his ancestor, his issue shall have a new writ of error, for he claims not only as heir, but per for man doni, and by the Statute shall not be barred by feigned pleading or false pleading of his ' ancestor so long as the right of the entail remains.' On the same principle it was that a warranty given with an entail was itself entailed, so that a release of the warranty by an ancestor could not bar the issue Co. Lit., 392b. But these decisions rested on the explicit language of the Statute. But for the Statute of Westminster II, as Coke says, even if the tenant-for-life, where the remainder was over in fee, had suffered a recovery, he in the remainder was without remedy - a consequence which Coke approves as tending to prevent a multiplicity of suits on the same cause of action. The power thus placed in the hands of the tenant-for-life was so abused that the assent of the person in remainder or reversion was made necessary by the Statutes 32 Hen. VIII, c. 31, and 14 Eliz., c. 8, but still with a saving in favour of any who should recover against the tenant-for-life by a real, not a fictitious title. Thus in a really contentious suit the tenant-for-life represented, not only his own interest, but all interests in succession to it, though these were drawn from a source higher than his own estate. The entailed warranty, too, would lose all its efficacy for the issue by the ancestor taking advantage of it, though fictitiously, in the feigned action, of recovery Co. Lit., ub. Sup. A fictitious recompense in lands awarded from the common vouchee enabled the tenant-in-tail, on the principles settled in Tattarum's case, to bar the estate-tail itself with the remainders and the reversion depending on it Cruise's Dig.' Vol. V, 270; Shepp. Touch., Vol. I., p. 39, note 6. The strong tendency of the English jurisprudence to give effect to a judgment obtained against the actual holder of a free-hold estate in this way defeated the stringent provisions of the Statute law.
21. The subsequent history of this branch of the English law need not be traced. In the present day the complete representative capacity of the holder of an estate of inheritance is unquestioned See per Lord Eldon in Cock burn v. Thompson 16 Ves. 326; and Lloyd v. Johnes 9 Ves 56 It is plain that, even where the Legislature had pronounced against alienation, the force of a judgment recovered was so great, and the difficulty of distinguishing after many-years between contentious and amicable proceedings was so great, that the doctrine of res judicata became the commonest foundation of ownership. Nor could the ascription of lands to the support of public services prevent this when the devolution, of estates without a new appointment or sanction by the Crown at each descent had once been recognized The decision in Raja Nilmoni Singh v. Bakranath Singh L.R. 9 IndAp 104 turns on the same Point. All lands were held immediately or mediately from the Crown on various tenures of service, the due performance of which could not but be impaired or endangered by alienation; yet alienation, mostly by judicial forms, became the almost universal rule, recognized as inevitable and beneficial as the special liablity of the land for the chief public services became obscured in the later developments of the political and fiscal system.
22. English analogy, then, points clearly to this, that, in the absence of express legislation to the contrary, the holder of an hereditary estate, such as a vatan is, represents in litigation the aggregate of interests in the land which, for the time being, centre in him. By a suit in which ho is successful he wins for all; by one in which ho fails he loses for all. The exceptions test on temporary contractual relations, on defect of the estate, or on specific statutory provisions.
23. If we look to the Continental systems derived from the Roman law, we find the same efficacy given to judgments obtained against the holders of restricted estates. The law of substitutions derived from the Roman law of fidei-commissa and of substitutions, though very different from the latter, was once widely prevalent. It wholly forbade any alienation such as to impair the estate of a successor: yet as the holder, while he held the property, held it as owner, all rights and liabilities as to suits concerning the estate centered in him.: ipsi el in ipsum competunt Consequently, a successful suit on a right contradicting his title effaced at once both his title and the substitutions depending on it. The '' remainder-mem,' or the guardians of the substitution, could intervene to prevent illicit dealings, or to protect the proceeds of necessary sales; but they could not avert the operation of res judicata resulting from an honest contest. Another consequence of the 'persona' to which, the estate was annexed being completely filled, was that a title by prescription acquired against the life-holder was acquired against all his successors. As all rights centred in him, that adverse act, and the submission to it, which extinguished them in him, extinguished them altogether See Pothier Tr. des Substitu tions, 5 passim. According to the Scottish law, an action bend fide litigated by an heir of entail is res judicata in questions with, succeeding heirs Ersk. last., Vol. II, p, 1137, and the force of judgments extends much further than would be necessary for the adjudiction of the present case.
24. It would seem, then, to be a general principle of jurisprudence, that a mere special line of descent or mode of devolution prescribed in particular cases, does not make the property subject to it exempt from the effects of a judgment against the person in whom at the time the estate is vested. The particular law of devolution in such a case no more involves such a consequence than the general law of devolution which would otherwise operate. Where the aggregate estate is not fully represented, ret judicata can effect it only to the extent of the representation.
25. The first question proposed to the Full Bench remains, and as to that it is not disputed, that in the ordinary case of property, whether self-acquired or ancestral, held by a Hindu father as ostensible owner, adverse possession bars, not only his right but the right of his issue-Shankarrdr Ramchandra v. Venkatrav, Raghupat Deshpande See Printed Judgments for 1883, p. 212. Yet, according to the Hindu law the sons are co-owners with the father, and he cannot dispose of the patrimony indiscriminately without their assent Mitacs., Ch.I. Section 1, pp. 27, 28 Section 5, pp. 2,9. Many alienations and incumbrances detrimental to the sons have, in fact, been feet aside at their suit West and Buhler H. L., 194, 631,639,810. A restricted power of dealing with the property; therefore, does not involve an incapacity of submitting to adverse possession until limitation has given a-title by prescription to the adverse holders Coleb Dig., Bk., V, tt. 384,306. The representation of the estate is full, as in the case of resignation or abandonment of his holding by a mirasda [Arjunav. Shavan 4 Bom. H.C. Rep., 133, A.C.J and Davalata v. Bern Ibid; 197 A.C.J. 1; if it were not, then the sons should come forward, even in their father's life, to complete the representation-see Narayan G. Habbu v. Pandurang I.L.R. 5 Bom. 685 -and to protect the interests diffused amongst them See Limitation Act XV of 1877, ch. II., Article 126. If this, indeed, were not so, no length of adverse possession would be a safeguard even against the possession of a stranger wholly without title continued for six months Specific Relief Act, Section 9, so long as the original right of the united family could be traced -Goodtitle d. Parker v. Baldwin 11 East 488.
26. In the case of collateral succession the matter is still plainer. The collateral heir is not co-owner, except as a co-member of a united family; and as the owner may alien the property so as to disappoint the collateral heir, it is obvious that he may submit to the growth of a prescription, that will annul the estate See Coleb. Dig., Bk. I. Ch. III.t. 113, 126; Comm. Bk. V, t. 396; Narada, Pt. I, Ch. IV, 5, 18; Pt. II. Ch. XI, 27; Colebrooke in 2 Str. H.L. 37; W. & B., H.L., 695. before the collateral's right to it ever becomes more than a mere expectancy. Is a service holding, then, of so different a character that limitation 'and description do not affect it? Though different views have been held on the subject, yet, according to the best authorities, a vatan is an estate given to a family with certain obligations annexed to it West and Buhler, H.L., 173 845--Krishnarav Ganesh v. Rangrav et al 4 Bom. H.C. Rep. A.C.J. at pp. 11. 13; Adrishappa's case cited already. The gift of an estate, however, can confer no right to appropriate other men's property, and the law of a prescription rests on a presumption, that a right held for a certain time without contest as against a person capable of contesting it, could not have been successfully contested Sav. Syst., as. 237, 252; Pothier. comp., Prescription, Sections 4, 162; Dig. L. 41, c. 20. t. 3; L. I. cited by Lord Blackburn in Dalton v. Angus L.R. 6 A.C. 818; Sp. Ap. 27 of. 1871, The presumption is not less strong against the holders of a vatan than against any ether proprietors; social order and security would be as much disturbed by unlimited claims brought forward by mlan-darn as by any other class. The preservation of the property as a support for the services necessitates a distinct set of rights, both as to substance and as to procedure-Rajah Nilmoni Singh v. Bakrandth Singh See L.R. 9 I.A. at p. 132; and the St. 34 and 45 Hon. VIII, but the special assignment acts as a concurrent or collateral restriction without making the vatandar's estate any the less an estate,subject as much to the ordinary rules except whore these come into conflict with the public interest and its peculiar safeguards Comp., as to the Ghatwali, Anundo Rai v. Kali Prosad. Singh I.L.R. 10 Cal 677. Lord Eldon said, though in a somewhat different connection, 'the ordinary rules are applicable to estates granted by the Crown itself for the maintenance of dignities with, reversion in the Crown'-Davis v. D. of Marlborough 3 Swanst: at p. 136. Subject to the statutory rules, they, Lord Eldon thought, were still estates governed by the ordinary law. Similarly in Maneharam v. Prdnshankar I.L.R. 6 Bom. 298 it is said that, apart from questions as to the capacity of an alience of sacred property to perform the functions connected with it, 'there may be alienations which are free from these objections, and in such cases there would appear to be no reason why any restriction should be placed upon the exercise of any of the ordinary rights of property.' So, too, it seems, are vatan estates governed by the ordinary law as to all their incidents, except 'so far as the public rights may be impaired by allowing the consequences of these incidents. The public rights had formerly to be asserted by the successor to the estate, and coinciding in the same person with the private heritable right were hardly distinguished from it; but it is evident that there can be no real and general quieting of titles if some prescription will not guard them against claims, even in an alleged public interest. This was recognized by the framers of the Elphinstone Code As by the English Legislature in the Statutes limiting the nullum tempus doctrine, 9 Geo. III. c. 16, &c; see, too, Act XV. of 1877, Schedule II, 130, who in the 5th Regulation provided that a possession acquired without fraud, 'other of lands or of an hereditary office, should ripen into ownership in thirty years Set West & Buhler H.L. 697, 698. Section 20 of Regulation XVI of the same 'Code provides that vatan property shall not leave the vatandar family, and once annexed immediately to the office shall remain annexed to it; but this could not prevent the operation of Regulation V, because under that law should property be claimed, whether as vatan land or not, thirty years' possession by the defendant had to be resolved 'as proof of a sufficient right of property in the same'--Sitdratn Vasudev v. Khanderav Balkrishna See I.L.R. 1 Bom. 288. Sections 35 and 36 of Regulation XVII of the same Code The principle prevailing under. the Roman law and the system derived from it that public and sacred property being extra commercium could not be acquired by usecapion, was not admitted in the Bombay Regulations. Hence no provision was made for immemoriale tempus where the question was whether properly was public or not? show that the Legislature accepted the principle of prescrip-tion creating a private right of property or of fiscal exemption equally against the State as against the individuals See Sav. Syst., Sections 247, 247, 195, 199, 201. The Hin dulaw excented the king's property from, the rule of prescription; Co. Dig., Bk., I. Ch. III, t. 114.; against the State, therefore, also where represented by the individuals See Sav. Syst., ubi sup. and Section 248. It might well be then that a title had been fully acquired in this case by the donee before Act IX of 1871 came into operation, which would not be affected by that Act or the subsequent repeal of the Regulation Act XV of 1877, Section 2.
27. The recent Limitation-Acts, though less distantly expressed for the conversion of possession into ownership, are, for the purposes of the present discussion, laws of acquisitive prescription Rights not exercised are lost under the chief Continental Codes see Sar. Syst., Section 25 the right acquired under them is gained in a shorter time, but is of the same kind as under the earlier law See Act XV of 1877, Section 28-M.S. Sinde v. G.P. Sinde 4 Bom. H.C. R 61, A.C.J; Gondo Anandrav v. Krishnarav Govind Ibid. 55 A.C.J; Giriapa v. Jakana 12 Bom. H.C. R 172. If the successor, by virtue of the grant to a vatandar 'who has aliened part of the vatan, is not merely an heir, then he must be a remainder-man, and this, according to the Hindu law, he could not be after the decease of contemporaries of the original grantee- Kumar Tarakeskwar Roy v. Kumar Joshi Shikhareswar See L.R. 10 IndAp 60. Under article 140,. Schedule II of Act XV of 1877 be is barred by twelve years' possession after his heirship has become a present estate See per Lord Mansfield, C.J., in Fischar and Taylor v. Prosser, p. 218, and by Section 28 of the Act his right has, at the same moment, become extinguished. The decisions say that it has become extinguished in favour of the adverse holder for the prescribed time, whose ownership, except as against some wholly independent title, must thus at the same moment have become complete Radha Govind v. Inglis, Calc. Law Rep. 864. That this was the intention of the Acts appears from their preambles, though it must be admitted that the enacting parts are by no mean perfectly adapted to the purpose. The case of Ganga Govind v. The Collector of the 24.-Parganas 11 M. I.A. 345, is to this effect. The Judicial Committee say: 'It is of the utmost consequence in India that the security which long possession affords should not be weakened;' and, again, 'If the party out of possession could set up a sixty years' law of limitation merely by making common cause with a Collector, who could enjoy security against interruption?' The case was one under Bengal Regulation III of 1793; but, as shown in Brindabun Chunder Roy v. Tara Chand Banerjee 20 Cal. W.R. C. R. 114 the principle of it has been applied to many cases under Act XIV of 1859, though that Act contains no section which directly constitutes a law of usu capion or acquisitive prescription. In Ram Lochun Chuckerbutty v. Ram Soonder Chuckerbutty 20 Cal. W.R. C. R 104 Sir R. Couch, C.J., says: 'They (the plaintiffs) having been in possession of the land for more than twelve years, the title of any other person,had been, to use the language of the Judicial Committee, *** extinguished in their favour. The effect of their possession was to extinguish other titles, if any existed.'
28. In these cases the learned Judges followed the analogy of the decisions of the English Courts on the provisions of the Limitation Acts of Henry VIII and James I. These were, in form, Statutes of Limitation only; but they were construed so as to operate as laws of 'acquisitive prescription.' The Statute of James I says, that all writs of form-don in descender, etc., 'shall he sued and taken within twenty years next after the title and cause of action first descended or fallen.' It might be argued that this should mean after the particular title and cause sued on first became available to the plaintiff; but the Courts held that twenty years' adverse possession against a first descendent or remainder-man barred his and all the subsequent estates by devolution of the same right-Tohon v. Kayes Brod. & Bi. 217. Though a transferee in fee had held for more than twenty years during the life of the tenant-for-life, who had conveyed to him, the remainder-man, it was held, was not barred, as the possession of the transferee was wrongful only from the death of the tenant-for-life-Doe d. Souter v. Hull 2 Dow. & Ry. 38: but the lapse of twenty years from that event bound all claimants under an entail-Tolson v. Kaye Brod. & Bi. 217 and gave to the transferee a sufficient title, 'because a possession for twenty years is like a descent which tolls entry'-Stacker v. Barny Salk 421, quoted Cr. Di, III, 436; 5 Bac. Abrt., 220, 221. capion operating to add ownership directly to possession has never been fully received into the English law. It is simply by preventing actions that legislation has given its due effect to long possession-see Bracton. ff. 61, 62, and Co. Rep. loo ci, Brassington v. Llewellyn, 27 L.J. Ex. 297. It was contended for the heir-in-tail 'in so far as he must be of the blood of the donee-in-tail, it is true he takes by descent; but in so far as he takes nothing from Ms ancestor, but claims per formam doni, he may be esteemed in some sort a purchaser,' but this distinction from the heir of one seised in fee was rejected by the Court. The case as put for the heir-in-tail was very analogous to the one before us, though the words 'first descend,' which occur in the English Statute are not used in the Indian Limitation Acts. It is 'his title, i.e., the title of the claimant under the entail, which first descends' in order to make the Statute of James I operative, and this is, for the purposes of limitation, identified with the title of the ancestor who has allowed limitation to bar his entry. The grandson of the original alienor in this case, as son of the man who allowed (if he allowed) himself to be barred by limitation after his estate fell into possession, is undoubtedly an heir to his father; and even if he can he supposed to take by a right analogous to one per formam doni, should according to the English authorities, be barred by,the quiescence of his ancestor.
29. Of the more recent English cases it was held by the Courts in Cannon v. Rimington 21 L.J. C.P. 137 : 22 L.J. C.P. 153 that, although the lapse of more than twenty years in the life of a tenant-in-tail, who had made a feoff-ment, would not bar his successor, yet if he had 'voluntarily abandoned his interest and remained out of possession for twenty years, the issue-in-tail would have been barred.' Bramwell, B., would have applied the same rule in the case of the Abergavenny estates; but the other Barons thought that the express provisions of the entailing Statute prevented limitation from operating. In Earl De la Warre v. Miles L.R. 17 Ch. Dir. 535 it was held enough to give a title ' that the benefit in question had been enjoyed for the prescribed time as of right, not by permission, and that the right was a legally possible one. The Mayor of Brighton v. Guardians of Brighton L.R. 6 C.P. 368 determined that, under Stat. 3 & 4 Wil. IV, c. 27 and Stat.38 Vie., c. 57 Section 1, an exclusive possession for more than twelve years operates as a bar to an entry or suit, even in the case of a corporation for public purposes disqualified to alien, except' with an assent which had not been obtained. The more possession, after a right to sue had accrued, was held to give a title. Oases like the Eirl of Abergavenny v. Brace L.R. 7 Ex. 145 do not afford much guidance for those which are governed by a general law. Laws which bind up particular estates against alienation are of the nature of jura singularia' which, even in their own sphere, are not to be extended by mere inference Comyn's Dig., Parlt. (R.7) -Somu Gurukkal v. Rangammal 7 Mad. H.C.R. at p. 14. Beyond that sphere they cannot serve for any deduction of general principles on account of their exceptional character.
30. The general principle that may lie gathered from the English decisions is that neither a special mode of devolution-Austin v. Llewellyn 9 East 27 nor an incapacity far alienation The Mayor of Brighton's case supra will prevent limitation, from operating against an estate. This is equally so in India, and even in. the case of sacred property Comp. Steele L.C, 206- Mancharan V. Pranshankar I.L.R. 6 Bom. 299 Timbak Bawa lias Bhau Bdwa v. Narayan Bawa I.L.R.7 Bom. 188; West & Buhler H.L., 201, 741. In the case of Kannan v. Nilakandan I.L.R. 7 Mad., 337 a sale had been made of a trusteeship of a temple with the annexed estate. This was pronounced invalid; yet as the purchaser had held for the term prescribed by the Limitation Act, his possession was maintained against the claim of the other trustee: Yet sacred property is generally inalienable West & Buhler H.L. 741,note (d),785n. When a possession contradictory of an alleged title has been held for the prescribed time, the law seems to presume a corresponding right contradicting that title, not one derived from it The longi temporis proscription of the Roman and of the Canon laws rested on a presumed acquisition of rights of possible acquisition. See Sav. Syst. 86; 198, 199,. An independent ownership cannot be affected by the special incidents of one opposed to it; The faculty of acting and submitting to acts that affect an estate, throughout its further descent is so much the more unquestionable in India than in England, as the Hindu law does not recognize the manifold coincident and contingent interest allowed by the English law. Even in the case of a widow, with her limited estate, the representation of the inheritance is complete-Katama Natchiar v. The Rajdh of Shivgunga 9 M I.A. p. 604. A decree on a right paramount to her's prevails against the expectant heirs- Jagat Kishor v. Maharaja Jotindra Mohun Tagore L.R. 11 Ind. A 66 and an adverse possession which bars her, bars the male successors to the estate-Ram Dyal Gossain v. Kattyanee Debia 8 C. W.R. 257 Brinda Dabee Chowdhrain V. Pearee Lall Chowdhry 9 Calc. W.R. 460; Gobindmani Dasee v. Shamlal Bysak Beng. L.R. (F.B.) . 51 citing 2 Bouln. 193. The analogy of the widow's estate was said to apply to a vatan in Babaji v. Nana I.L.R. 1 Bom. 535 and it is plain feat the in-alienable quality of a vatan cannot legitimately be made use of to determine the question of whether a particular piece of land is vatan or not. After the lapse of twelve years' adverse possession the law says that, having been held as non-vatan, it is non-vatan, and thus averts the evil of an indefinite repetition of suits which was dwelt on by the Judges in Tolson v. Kaye 3 Brod. & Bi. 217. When, therefore, the succeeding holder takes as heir of his predecessor, he is bound by the bar which bound his predecessor; and in India every successor after the first generation in possession as donees, must, in general, take as an heir, since the creation of executory interests or remainders for persons not in existence at the time of the deed is not allowed by Hindu law So under the Roman law-See 201. Butler's note to Co. Lit., 191 a. The successors of living persons, by or for whom the estate is first taken, can take only by reason of their personal relation to their predecessors, and this is inheritance See Mit., Ch. I., Section 1, p. 2;. Vyav. May., Ch: IV., Section 2, p7. 1; & B.H.L., 59., even though an unusual line of descent may have been prescribed, to which the law, in the case of public grants and of religious endowments, gives effect West and Buhler H.L. 201. Kbmball, J., concurred in the judgments of the Chief Justice and Mr. Justice West.
Nanabhai Haridas, J.
31. I agree in the answers proposed to be given to the first two questions, for the reasons stated by the Chief Justice, and in the answer to the third question for the reasons stated by Mr. Justice West.
32. 1885, January 13.-The case having' gone back to the Division Bench, Sargent, C. J., and Nanabhai Haridas, J., passed the following judgment:-With reference to the judgments recorded by the Full Bench on the 7th of October, 1884, the Court reverses the decrees of the lower Courts, and rejects the plaintiff's claim.