Amberson Marten, Kt., C.J.
1. This is a curious and difficult suit. It relates to the property of one Narsi, who died on May 20, 1921, without issue, leaving his widow Bai Shiv, and the plaintiffs Shankar, Jadav and Mohan as the next reversioners. These plaintiffs as the next reversioners have brought the present suit for a declaration that two sale-deeds of October 13, 1915, and April 5, 1922, are void and invalid against the plaintiffs and for the appointment of a receiver to conduct the management of the property of the deceased Narsi Desai during the life-time of defendant No. 1, and for further and other reliefs.
2. These two deeds; the one executed in the life-time of Narsi and the other after his death, concern defendant No. 2 Vithal Gordhan, who or whose predecessor-in-title were the mortgagees under two deeds, Exhibits 18 and 19, of June 12, 1880, and March 27, 1886, for Rs. 1,999 and Rs. 2,399 and interest.
3. The first deed, viz., Exhibit 20, of October 13, 1915, is in itself a curious deed. It purports to be a conveyance by Narsi in favour of his mortgagee and his wife for in all Rs. 4,999. As regards Rs. 2,500 of the consideration, that is stated to be the aggregate amount then due on the mortgages in question, As regards Rs. 2,499, that is alleged to be paid by Narsi's wife to himself, Then in consideration of that amount the properties therein mentioned are ' sold to you at a valuation and delivered over into your possession,' meaning thereby the wife and the mortgagee.
4. Now this property in question was property within the Bhagdari Act V of 1862 which, shortly stated, prohibits the alienation of a portion of a bhag. Accordingly, the case of the plaintiffs is that so far as his (Narsi's) wife was concerned, this was a pure sham ; she had no money and paid no money; and that; this deed was resorted to in order to get round the provisions of the Act, and thus effect a nominal conveyance of the whole of the property. It is urged that in fact the real bargain was that; the mortgagee should accept a portion of the bhag, which I will call Black Acre, in satisfaction of his mortgage debt for Rs. 2,500, and that the remaining portion of the bhag, viz., White Acre, should in effect be reconveyed to Narsi.
5. However that may be, it appears that within a few days of this deed, the mortgagee and the wife who ostensibly had purchased this property proceeded to partition it in such a way as to give Black Acre to the mortgagee and White Acre to the wife. Accordingly, entries were made in the revenue records consistent with that mode of division, and thereafter the mortgagee remained in possession of Black Acre, and the wife or Narsi on her behalf or on his own behalf obtained and kept possession of White Acre. That continued for something under six years until the death of Narsi on May 20, 1921. In his life-time he had never brought any suit to set aside this deed. On the contrary he had to this extent recognised its validity by executing on behalf of his wife certain documents in relation to White Acre.
6. The other deed, viz., of April 5, 1922, Exhibit 21, was by the widow in favour of the mortgagee of in effect White Acre for Rs. 2,499. This consideration was made up in part for expenses in performing the death ceremonies of her late husband and for the payment of Government dues and household expenditure and so on. The operative part runs : 'I have sold to you and given over in your possession and use without any oral or written condition for retaking the half of the property appertaining to my share composed of Government 'bhag' which was purchased by you and myself by a registered sale-deed dated October 13, 1915,' consisting of certain lands 'and which are owned by me and are in my possession and enjoyment.' Then further on there is another statement which refers to her half share, and so on.
7. Then on February 7, 1924, this present suit was brought for the relief I have already mentioned. The learned Judge found in effect all issues in favour of the defendants and dismissed the suit.
8. Now as regards the deed of October 13, 1915, there is what I may call a preliminary issue, viz., one of limitation. Even supposing this sale-deed was void under the Act, or was a mere sham and fraud, what right had the next reversioners in the life-time of the widow to bring this suit of February 7, 1924, for this declaration and the appointment of a receiver Taking first of all the point of limitation, I think it was conceded by counsel on both sides that Articles 125, 126 and 141 of the Indian Limitation Act would not apply to the present case. I agree in this, and I do not think it necessary to give the reasons. Counsel for the respondents contended that either Article 91 or Article 120 would apply. Counsel for the appellants relied on Article 120. It seems to me, on the facts of the present case, immaterial which Article one applies. Suppose one accepts the longer period of six years, viz., ' suit for which no period of limitation is provided elsewhere in this Schedule', then the time would begin to run when the right to sue accrues. If, on the other hand, Article 91 is taken, viz., 'to cancel or set aside an instrument not otherwise provided for', that would be three years from the time ' when the facts entitling the plaintiff' to have the instrument cancelled or set aside become known to him.' On the other hand, the word 'plaintiff' there would have to be read with the definition in Section 2 of the Act, so as to include ' any person from or through whom a plaintiff derives his right to sue,' unless of course there was something repugnant in the contest.
9. So far as any right to set aside the deed is concerned, we think it clear that that arose in Narsi's life-time, and that he himself could have brought the suit to get the deed set aside, or alternatively for some relief founded on the contention that the deed was inoperative and void as against him. We think the same observation applies to Article 120, and that the right to sue for a declaration that this particular deed was void arose in Narsi's life-time immediately after the deed was executed. That being so, the mere death of Narsi would not prevent time running in favour of the transferees, and consequently this suit was barred shortly after the death of Narsi in 1921, and long before this present suit was brought. Therefore, so far as the first deed is concerned, I would hold that the declaration asked for as regards that suit is barred by limitation. R. 128.
10. Next turning to the second deed, limitation does not stand in the way of the plaintiffs there, because that was an alienation made by the widow, and accordingly a different Article would be applicable. The suit would be within the three years of Article 91, or the six years of Article 120, or it would come under Article 125, viz., a suit during the life-time of a Hindu female by a Hindu to have an alienation of land made by the female declared to be void except for her life. Then turning to that deed it is clear that it only relates to what I have described as White Acre, viz., a portion of the entire bhag, and that therefore prima facie it is invalid under the Bhagdari Act. Stopping there, therefore, the plaintiffs would prima facie be entitled to a declaration in their favour as regards that deed, subject to certain further considerations which I will mention later.
11. To meet that point, the mortgagee has to rely on the earlier deed, viz., the one of 1915, and to argue that the second deed, although on the face of it an alienation of a portion of the bhag, was not invalid under the Act, because its real effect was to enable the entirety of the bhag to come under one ownership. In other words, we have to look at the substance of the transactions and the spirit of the Act, and only to invalidate those transactions which result in a dismemberment of the bhag.
12. For that proposition the decisions of this Court in Gulab Laiji v. Bai Tejbai (1918) 21 Bom. L.R. 707 and Damodar v. Mohan : AIR1930Bom121 were relied on. I will deal with those authorities in a moment, but in the first place before they can be made applicable, the defendant has to establish his case that the earlier deed was valid. I say this because supposing it was invalid, then the position would be this I take it The mortgagee would still be the mortgagee of the whole bhag, and th' second deed would at the most purport to be a release of the equity of redemption in a moiety of the bhag. In our opinion such an alienation would be invalid. Indeed if it was valid, then the whole alleged object of the first deed could have been attained without bringing in the wife's interests at all, because all that would be necessary would have been for the mortgagee to have had the equity of redemption in a moiety of the bhag conveyed to him, and for the mortgagee to reconvey the other portion of the bhag free from the mortgage.
13. That being so, it seems to us that we are forced in considering the second point to consider also the validity of the first deed, if, as is the case, the defendant relies upon it before us. In doing so, we are fully conscious of the importance to be attached to the decision of the learned Judge who had the benefit of seeing the witnesses. We have also carefully considered the reasons which he has put forward in his judgment. But having done so, and carefully considered all the material evidence with the assistance of counsel, we have unhesitatingly come to the conclusion that so far as regards the wife, this deed was a sham and fraud, that she never had the money to pay for this alleged consideration, that it never in fact was paid by her, and that the whole object of the deed is that alleged by the plaintiffs, viz., to enable the mortgagees to get a moiety of the bhag in consideration of the sum of Rs. 2,500.
14. In this respect the case very clossly resembles that in Damodar v. Mohan : AIR1930Bom121 decided by Mr. Justice Madgavkar and Mr. Justice Allison. That also was a case of mortgagees' threatening to sell the entire property, and to avoid it an agreement was made that the plaintiffs should sell half the bhag to the mortgagees for Rs. 3,800. But to get round the Act there was an ostensible sale for double the amount to these mortgagees, and certain others who were the mere nominees of the mortgagees. There also the mortgagees only took possession of half the land, the remaining half remaining with the mortgagors. Then there was a subsequent division between the mortgagees and their ostensible co-purchasers. There Mr. Justice Madgavkar, after referring to the decision in Gulab Raiji v. Bai Tejbai (1918) 21 Bom. L.R. 707, said (p. 1425):-
In so far as that case lays down any principle, it is that the Courts should look to the substance and not to the mere form of the transaction. And in any case, where the law such as Section 3 expressly declares certain transaction unlawful, the Courts not only may but must regard the reality and not the appearance of the transaction in question.
15. They accordingly held that the transaction in that case was invalid.
16. I do not propose in the present case' to go into the details of the evidence on which we have come to the above conclusion, for here we are dealing with an alleged transaction between a Hindu husband and his wife, a woman who is not shown to have possessed a pie, except some fanciful suggestion that she was given ornaments on her natra. Having regard also to the very curious provisions in the deed itself, when it is closely regarded, I am satisfied that in this respect we cannot agree with the decision of the learned Judge.
17. That being so, it is unnecessary to consider whether the deed can be upheld as in effect causing a past dismembered bhag to be reunited. That in effect was what happened in Gulab Raiji v. Bai Tejbai. There a person had obtained, be it was said, by adverse possession a title to a portion of the bhag. Then by subsequent deeds the true owners conveyed their aliquot shares in the rest of the bhag to this person. The result was that by these deeds he became the owner of the entire bhag. It was there said that that transaction was not an infringement of the real intention of the Act, regard in particular being had to Section 5 of the Act, ' the object and intention of the Act being to prevent dismemberment of bhags or shares.'
18. I should, however, deal with one argument which related, I think, to both deeds, viz., that the nexts reversioners were not; entitled to bring this suit. As regards the first deed, it was said that not being an alienation by the widow it did not come within the exceptional cases under which a reversioner is entitled to bring a suit during the life-time of the widow. But it seems clear that there are exceptional cases where if real jeopardy is shown to the assets the Court will interfere at the instance of the next reversioner to prevent loss of the assets. As stated in Mulla's Hindu Law, 6th Edn., p. 217 :-
In the case, however, of a trespasser, the next reversioner would at once. be entitled to sue if the widow did not take any steps to recover possession.
19. In Mayne, 9th Edition, p. 958, it is stated :
He may sue to remove that which would be a bar to his title when it vested in possession.
20. And at p. 957, it is said :-
In one case the widow had given up the estate to a third party, under threat of legal proceedings, and refused to have anything to do with the assets. It was held that the reversioners might sue the widow and the third party to have the possession restored to the proper custody, and that a manager should be appointed to collect, account for, and pay into Court, the assets, to be held for the ultimate benefit of the heirs who should be entitled to succeed at the death of the widow.
21. That last case is Radha Mohan Dhar v. Ram Das Dey (1869) 3 B L.R. 362, which Mr. Justice Hobhouse described as a case of some difficulty and involving novel points. The effect of it is correctly stated in Mayne.
22. So, too, in Jijai Ambit, Ex parte ILR (1890) Mad. 390. there had been a grant by Government in favour of the senior Rani, and the grant went on to say (p. 391):-
It will be her duty to provide in a suitable manner for the participative enjoyment of the estate in question by the other widows, her co-heirs. On the death of the last surviving widow, the daughter of the late Raja or, failing her, the next heirs of the late Raja, if any, will inherit the property.
The Court found on the facts that there had been a gross and reckless mismanagement by the senior Rani involving a large loss of the assets, that it was inadvisable to entrust the management of the property to any of the junior widows, and that a receiver and manager should be appointed during the lives of the widows and survivor or survivors of them or until it should be considered by the civil Court that a receiver and manager was no longer necessary. That order was upheld by their Lordships of the Privy Council, who declined to remove the receiver.
23. There is also another authority in Venkanna v. Narasimham ILR (1921) Mad. 984, where it was held by Sir John Wallis and Mr. Justice Krishnan that if the widow committed waste, it was open to the reversioners to file a suit praying that such moveable corpus may be so reduced into possession and handed over to a receiver appointed in the suit.
24. So, too, in our own Court in Ahmed v. Bai Bibi (1919) 22 Bom. L.R. 826, Sir Norman Macleod and Mr. Justice Heaton in the case of a Mahomedan widow appointed a receiver where there was evidence that defendant No. 1 was anxious to get land transferred to the name of defendant No. 2 (p. 830) :-
That by itself might not constitute waste,' says Sir Norman, 'but it might constitute a danger to the interests of the reversioner which a Court might take into consideration on the question whether his interests should be protected. Considering the attitude o the defendants, and the fact that they are probably collecting the rents of the property through some agency, there is no reason why the Court should not protect the interests of the plaintiff by appointing a Receiver.
25. Then it is said that no case of jeopardy is pleaded. But having regard to para. 6 of the plaint, we think that jeopardy is in effect pleaded. Further, if all the facts alleged by the plaintiffs could be taken into consideration, and not ousted by any plea of limitation, then there would be jeopardy in the present case, because the defendant, whether the deeds were good or bad, might be acquiring a title by adverse possession to the property, which title began to run in Narsi's life-time, and which, if not checked by some litigation, might result in his getting a statutory title.
26. As regards the actual status of the plaintiffs in bringing the proceedings as regards the second deed, of course different considerations arise, because this was a direct alienation by the widow of what, according to the plaintiffs, was the husband's property.
27. The net result, therefore, is this. Although I would hold that the plaintiffs are barred by limitation from obtaining a declaration as regards the first deed, they are not barred as regards the second deed: and as regards the allegation as to the Bhagdari Act, I would hold that the deed is bad, and would reject the plea of the defendant that it could be validated having regard to the first deed.
28. Next comes the question as to what relief we are prepared to give. And this brings me to the question of the appointment of a receiver and also as to what rights, if any, by adverse possesssion defendant No. 2 has acquired. In this connection it will be borne in mind that one practical difficulty in this case is caused by the fact that a suit for a declaration, or I take it for a receiver merely, is caught by Article 120, which merely prescribes six years, whereas on the other hand if substantive relief is claimed, such as for possession or for redemption, then a much longer period is available. For instance, as regards possession a period of at any rate twelve years would be available, and for redemption much longer. But that is the result of the Indian Limitation Act.
29. Now taking the question of a receiver, I fail to see what right; a mortgagor has to obtain a receiver against his unpaid mortgagee in a case like the present. Indeed, if one is to apply the strict technical English rules, the plaintiffs not having offered to redeem their mortgagee would be unable to proceed with their suit against him. That point, however, is not raised in the Court below, and whatever may be the position as regards the Original Sid(c) of this High Court inheriting, as it does, much of the jurisdiction of the Chancery Courts, we are here dealing with the mofussil Courts. And without any argument or authority or the point having been raised in the case, I am not prepared to say that this Chancery rule applies so as to constitute a bar to the. present suit. On the other hand, I do not propose in this present declaratory suit to pass any order which would deprive the defendant of such rights as he may possess as mortgagee, or for the matter of fact such rights as he may claim by adverse possession.
30. Indeed the trouble caused by declaratory relief without any substantial order often arises because the real contest as to the rights between the parties is one of substantial relief, viz., is A entitled to possession of the certain land or is he not Therefore, as regards any receivership order, I would propose that we should make no such order against the mortgagee, but that on the other hand as between the plaintiff's and the widow, we can make an order for a receiver and manager as framed in the plaint, viz., of the property of the deceased Narsi Desai. What that property may actually be at the present date, we do not determine. It may be that the equity of redemption subsisting in these mortgages has been barred by adverse possession either as regards the entirety or as regards a portion of it. That must be left for subsequent proceedings, if necessary, including, if so advised, any action by the plaintiffs to redeem the mortgage.
31. For the moment all we are prepared to do is to pass a declaration that the sale-deed of April 5,1922, is invalid as against the plaintiffs, and to appoint a receiver and manager as between the-plaintiffs and defendant No. 1 of the property of the deceased Narsi Desai during the life-time of defendant No. 1, or until further order. We will refer it to the lower Court to determine who should be appointed such receiver and manager, and in so doing we will ask the lower Court to ascertain whether the widow is still alive I say this because towards the close of the argument counsel for the appellants said that he had received some information from a third party to the effect that the widow is dead, and he did not know whether that information was true or not, and that in any event his client would be the heir of the widow.
32. Then as regards costs, each party has succeeded in part and failed in part, and we will accordingly direct each party to bear their own costs of this litigation up to date, including the costs of this appeal.
33. I would add that we have made an attempt in this case to induce, the parties to settle it because not only does it involve a large number of points (all of which I have not mentioned), but also because we can give no final decision which would end all the disputes between the parties. So it seemed to us desirable that the present six years which the parties have passed in litigation should not be followed by another six or more years of litigation, a by no means improbable result, whatever decision we might come to. However, counsel have intimated that they have not the requisite authority to effect any compromise. Therefore, we have been obliged to give a decision on what we consider to be the legal rights of the parties as they exist before us today.
34. Accordingly, the learned Judge's order will be discharged, and an order will be passed by this appellate Court to the effect I have already mentioned.
35. P. C. Order set aside. Declaration re first deed refused. Declaration re second deed granted. Appoint receiver and manager as between plaintiffs and defendant No. 1 of Narsi Desai's estate during the life of defendant No. 1 or until further order, but subject and without prejudice to all rights, if any, of defendant No. 2 as mortgagee under the deeds of June 12, 1880, or March 27, 1886, or by adverse possession or by reason of his payments for the benefit of Narsi's estate mentioned in the second deed. Each side to pay his own costs in both Courts and of this appeal. The lower Court to fix the person to be appointed receiver and manager.
36. In this case the plaintiffs sued for a declaration that the sale-deeds of October 13, 1915, and April 5, 1922, in respect of the plaint property were invalid against them. There was also a prayer that a receiver be appointed for the management of the suit property of the deceased Narsi during the life-time of defendant No. 1.
37. The first sale-deed, Exhibit 20, dated October 13,1915, is passed by the deceased Narsi in favour of defendant No. 2 the mortgagee under two deeds, Exhibits 18 a>nd 19, for Es. 1,999 and Es. 2,399 respectively, and also in favour of defendant No. 1 the wife of Narsi. Under that deed the amount due to the mortgagee was settled at Es. 2,500 and tae rest of the consideration Es. 2,499 is said to have been paid by the vendor's wife defendant No. 1. The second deed, Exhibit 21, impugned by the reversioners, the plaintiffs in this case, is a sale-deed by Bai Shiv defendant No. 1 (Exhibit 21) on April 5, 1922, by which she sold the property, which came to her share under the first deed, in favour of defendant No. 2. Narsi died on May 20, 1921, leaving no issue and leaving defendant No. 1 as his widow. On February 7, 1924, the present suit was brought by the plaintiffs claiming as the reversioners of Narsi for the reliefs which I have already mentioned.
38. The first deed is impugned by the reversioners on the ground that it is void under Section 3 of the Bhagdari Act V of 1862, and that the sale was really a sale of a moiety in favour of the mortgagee, but in order to defeat the provisions of the Bhagdari Act, the expedient of joining defendant No. 1 the wife of the mortgagor as co-purchaser was resorted to. Further, it is urged that there is no relationship between defendant No. 2 and defendant No. 1, and that defendant No. 1 was merely a nominee of the mortgagor in the sale-deed. In fact it is urged that defendant No. 1 was a benamidar of the mortgagor.
39. The second sale-deed is impugned on two grounds, first, that it is not passed for a necessary purpose and therefore not binding on the reversioners, and, secondly, that it is invalid by virtue of the provisions of Section 3 of the Bhagdari Act.
40. The learned Subordinate Judge came to the conclusion that the first deed was not a Sham transaction, that it was a real sale in favour of the mortgagee and defendant No. 1 the wife of the mortgagor, and that as a matter of fact Rs. 2,499 were paid by the widow to her husband at the time of the sale-deed. With regard to the second deed, the learned Judge came to the conclusion that the deed was passed for a necessary purpose, and about Rs. 1,500 out of the consideration went towards liquidation of the debts due by Narsi. The learned Judge further held that the suit, so far as the first deed was concerned, was barred by limitation under Article 120 of the Indian Limitation Act, and that the plaintiffs as reversioners had no right to sue as their right was a mere spes sucoesaionis during the life-time of the widow.
41. Before I deal with the question of limitation, I will deal with the nature of the transaction disclosed by the first sale-deed. It appears from the evidence of Bai Shiv, Exhibit 54, that she had no money to pay at the time of the first sale-deed. The learned Subordinate Judge was under a wrong impression that she was not asked any question as to the payment of the consideration of the first sale-deed. Though defendant No. 2 in his deposition stated that Rs. 2,400 were paid by defendant No. 1 and that defendant No. 1 was in a position to pay the amount, he had no opportunity of knowing the pecuniary circumstances of defendant No. 1. The only witness examined on behalf of the defendant to prove the ability of defendant to pay the consideration was Kuber Jaysang, Exhibit 88, the maternal uncle of defendant No. 2, who stated that ornaments of the value of Rs. 2,000 were given to Bai Shiv, defendant No. 1, at the time of her natra, After a careful consideration of the oral evidence and the circumstances proved in the case, I have come to the conclusion that the story suggested on behalf of the defendant is not proved and that as a matter of fact the consideration of Rs. 2,499 was not and could not have been paid by Bai Shiv to her husband Narsi.
42. I think, therefore, that the sale-deed in favour of defendants Nos. 1 and 2 was effected in order to circumvent the provisions of the Bhagdari Ach According to the Full Bench decision in Parshotam Bhaishankar v. Hira Parag ILR (1890) 15 Bom. 172 the alienation of an undivided portion of a bhag, or share in the bhag, to a person who is not a bhagdar, is void under Section 3 of the Bhagdari Act. The present case resembles in its essential facts the case of Damodar v. Mohan : AIR1930Bom121 , where the mortgagors sold in reality a moiety of the properties to the mortgagees for the amount due on the mortgage and the other moiety ostensibly in the name of the two nominees of the mortgagors. The insertion of the name of defendant No. 1 as an ostensible co-purchaser was intended as a cloak to hide the real nature of the transaction which was really a sale of a moiety, i. e., an unrecognised portion of a bhag. The Court must consider not merely the apparent but the real rectitude of the transaction.
43. I think, therefore, that the sale-deed, Exhibit 20, passed on October 13, 191-5, in favour of defendant No. 1 and defendant No. 2 is invalid and is rendered null and void by virtue of the express prohibition contained in Section 3 of the Bhagdari Act.
44. With regard to the first sale-deed, the further question arises whether the plaintiffs are entitled to bring the present suit Ordinarily a reversioner is not entitled to bring a suit for setting aside a sale-deed passed by the last male owner, A reversioner can bring a declaratory suit for setting aside an alienation made by a widow during her life-time. But under very exceptional circumstances where the reversion is jeopardised, the Courts have: interfered by the appointment of a receiver to safeguard the rights of a reversioner. In Radha Mohan Dhar v. Ram Dass Dey (1869) 3 B L.R. 362 it was hold that the reversioners had a right to sue the widow and the third party for a declaration of their title within, twelve years from the date of adverse possession ; that as the widow refused to have anything to do with the property, and the reversioners had no right to possession after the death of the widow, the Court appointed a manager to collect the assets of the ; estate, who should account for them to the Court, and the Court should hold them for the benefit of the heirs of the estate succeeding on the death of the widow. See also Shama Soonduree Chowdhrain v. Jumoona Ghowdhrain (1875) 24 W. R. 86 and Mayne's Hindu. Law p. 957. Similarly, in the cases of Ahmed v. Bai Bibi (1919) 22 Bom. L.R. 826 and Venhanna v. Narasimhain ILR (1921) Mad. 984 a receiver was appointed to safeguard the interests of the reversioners on an allegation of waste by the widow during her life-time.
45. In Janaki Ammal v. Narayanasami Aiyer (1916) L.R. 43 I. A. 207, 18 Bom. L.R. 856 Lord Shaw observed (p. 209) :-
It is also true that a reversionary heir, although having only those contingent interests which are differentiated little, if at all, from a spes successions, is recognized by Courts of law as having a right to demand that the estata be kept' free from waste and free from danger during its enjoyment by the widow or other owner for life.
46. In Nohin Chunder Chakerbutty v. Iseur Ghunder Chuckerbutty (1868) 9 W. R. 505 it was held that a reversioner cannot sue during the lifetime of the widow because during her life-time the estate of the deceased is represented by her as heir-at-law and would be bound by limitation by which she, without fraud or collusion, is bound, but if a proper case was made out a reversioner would be entitled to sue. Sir Barnes Peacock observed as follows (p. 508) :-
But reversionary heirs presumptive have a right, although they may never succeed to the estate, to prevent the widow from committing waste ; and I have no doubt that if a proper case were made out, reversionary heirs would have a sufficient interest, as well as creditors of the ancestor, by suit against the widow and the adverse holder, to have the estate reduced into possession, so as to prevent their rights from becoming barred by limitation.
47. Jackson J. observed as follows (p. 510) ::-
If, indeed, it could be shown that she had colluded with the persons holding adverse possession, so that in fact a case of fraud could be made out, then no doubt she might be held to have done indirectly, that which the Hindoo Law forbids her doing directly. But in such a case as this, undoubtedly, a reversioner aggrieved by such frauds would be entitled to bring his action.
48. The above decision of the Full Bench of the Calcutta High Court in Nobin Chunder's case has been approved by the Privy Council though not expressly on the specific point under consideration in Vaithialinga Mudaliar v. Srirangath Anni (1925) L.R. 52 I. A. 322, 28 Bom. L.R. 173 where the question whether adverse possession against a widow in possession of an estate for a Hindu widow's interest bars the reversioner, was discussed, though not necessary to be decided, with reference to the decision of the Privy Council in Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M. I. A. 539. Adverse possession commenced during the life-time of the widow would not bar the reversioner. The position is made clear by the recent decision of the Privy Council in Jaggo Bai v. Utsava Lal (1927) 31 Bom. L.R. 891., where it was held that in the absence of any decree against a Hindu widow or other act in law in the widow's lifetime depriving the reversionary heir of the right to possession on the widow's death, the heir is entitled, after the widow's death, to rely upon Article 141 of the Indian Limitation Act for the purpose of the determination of the question whether the title is barred by lapse of time. But adverse possession commenced daring the lifetime of the last male holder would bar the reversioner. In the present case the alienation by Narsi in favour of defendant No. 2 being void ab initio, the possession of defendant No. 2 would be adverse from the date of the alienation. After the death of Narsi his widow defendant No. 1 not merely omitted to set aside the illegal and inoperative sale-deed, but colluded with defendant No. 2 and passed the second deed in his favour with the result that the rights of the reversioners were invaded and were in danger of being extinguished. It would be inconsistent, in my opinion, to hold on the one hand that time runs against the reversioner and an alienee gets title by adverse possession, and on the other hand that the reversioner is not entitled to sue during the life-time of the widow in a proper case.
49. I think, therefore, that though ordinarily a reversioner is not entitled to bring a suit to impugn the transactions by the last male holder during the life-time of the widow, still in very exceptional circumstances where it is proved to the satisfaction of the Court that the reversion is likely to be jeopardised by collusion or other act of the widow jettisoning or imperilling the reversionary rights, the reversioner would be entitled to bring a suit for a declaration, or any other appropriate relief. I think, there-/ fore, that the contention that the present plaintiffs have no right I to sue to set aside the first alienation cannot be upheld under the I peculiar circumstances of the present case.
50. The next question for consideration is whether the suit, so far as the first alienation is concerned, is within time. Article 125 of the Indian Limitation Act would not apply as the alienation is by the last male owner and not by a female. The only remaining Articles referred to in argument are Articles 91 and 120. Article 91 would not apply under the special circumstances of this case, as the deed is alleged to be null and void under Section 3 of the Bhagdari Act, and the alienation being void ab initio, it is not necessary to be set aside. The only Article applicable to the facts of the present case is Article 120, so far as the plaintiffs seek for a declaration that the first alienation is void against them. It is urged on behalf of the appellants that time would begin to run not from the date of the alienation, but from the: time the widow passed the second deed, and the reversion was as a matter of fact jeopardised or from the death of Narsi in 1921, I think it would follow from the definition of plaintiff in Section 2 of the Indian Limitation Act that plaintiff includes any person from or through whom a person derives his right to sue, and the cause of action of the present plaintiff would arise when the cause of action accrued to his predecessor-in-title. Narsi could have in his life-time sued for a declaration of the invalidity of the alienation in favour of defendant No. 1, He lived for nearly six years and died in 1921 and would have been barred from bringing a suit for a declaration after six years from the date of the alienation. It would, therefore, follow that the present plaintiffs claiming as the reversioners and heirs of Narsi would be similarly barred under Article 120 of the Indian Limitation Act. If the contention of the appellants were accepted that time would begin to run from the date of death of the last male holder, it would lead to the anomaly that in case the last male holder lived for more than twelve years after the date of the alienation, the reversioner's right would be extinguished by adverse possession under Article 144 of the Indian Limitation Act, and still it could be urged that the reversioner could bring a suit for declaration of the invalidity of the deed within six years from the date of the death of the last holder. The passing of the second deed by the widow in this case does not give any fresh starting point of limitation.
51. I think, therefore, that if the last male holder would have been barred if he had brought the suit for a declaration, the reversioner would be similarly barred as claiming under the last male holder. I may refer in this contention to the cases of Bhagwanta v. Sukhi ILR (1899) All. 33 and Ramaswami Naik v. Thayammal ILR (1902) Mad. 488. I think, therefore, that the first relief claimed by the plaintiffs for a declaration that the sale-deed of October 13, 1915, is invalid as against them, is barred by limitation.
52. The next question is whether the relief as regards the second alienation by defendant No. 1 in favour of defendant No. 2 is within time. The alienation is dated April 25, 1922, and the present suit is brought within two years, viz., on February 7, 1924. The suit would be within time under Article 120 or Article 125 of the Indian Limitation Act.
53. The next question is whether the second alienation is proved to be invalid in this case. I agree with the finding of the lower Court that Rs. 1,500 out of the consideration were paid for payment of the debts due by Narsi, and even assuming that the cash consideration was not paid the sale-deed would not be invalid against the reversioners on the ground of want of necessity under the rulings in Krishna Das v. Nathu Ram (1926) L.R. 54 I. A. 79, 29 Bom. L.R. 825; Niamat Rai v. Din Dayal (1927) L.R. 54 I. A. 211, 29 Bom. L.R. 886; and Ram Sunder Lal v. Lachmi Narain : (1929)31BOMLR803
54. The next ground on which the second alienation is impugned is that it offends against the provisions of Section 3 of the Bhagdari Act, It is an alienation of a moiety of the bhag, and therefore being an alienation of an unrecognised portion of the bhag is invalid under a 3 of the Bhagdari Act, But it is urged on behalf of the respondent that the second alienation by the widow, defendant No. 1, in favour of defendant No. 2 is valid on the authority of the ruling in Gulab Raiji v. Bai Tejbai on the ground that it has not resulted in dismemberment of the bhag, but on the other hand resulted in the reunion of the whole bhag. In considering this question it is necessary to consider whether the mortgagee, when he took the first sale-deed of October 13, 1915, acquired any title to a moiety of the bhag. I have come to the conclusion that the consideration money, viz., Rs. 2,499, was never paid by Bai Shiv to Narsi, and that the sale-deed was passed in the name of Bai Shiv in order to circumvent the provisions of Section 3. Therefore, the mortgagee, defendant No. 2, did not acquire any title under the first sale-deed dated October 13, 1915. Resides the mortgagee had not acquired title by adverse possession to the moiety at the date of the present suit. If the mortgagee did not get any title to a moiety of the bhag under the alienation of October 13, 1915, the second alienation would not result m the reunion of the whole bhag, and would, therefore, be invalid under Section 3 of the Bhagdari Act.
55. I think, therefore, that though the plaintiffs' claim with regard to the first alienation is barred, it is within time so far as the second alienation by the widow, defendant No. 1, in favour of: defendant No. 2 is concerned. That claim is within time, and the alienation is invalid by virtue of the provisions of Section 3 of the Bhagdari Act.
56. I would, therefore, give a declaration in favour of the plaintiffs in respect of the second alienation, Exhibit 21, and refuse a declaration in respect of the first alienation. I also agree with the order proposed by my Lord the Chief Justice with regard to the appointment of receiver so far as the estate of the deceased Narsi is concerned.
57. The order as regards the appointment of a receiver is based on the assumption that the life estate of the widow is to continue for sometime hereafter. But it the widow, defendant No. 1, dies and the life estate comes to an end, it would not be necessary to continue the order appointing a receiver. The reversioners would then be entitled to sue for redemption, defendant No. 2 would in that event be relegated to his position as a mortgagee, and would be entitled as a mortgagee to fall back upon his two mortgages, Exhibits 18 and 19, for Rs. 1,999 and Rs. 2,399. He will also be entitled to a charge on the estate with regard to a portion of the consideration in the second sale-dead, which went in the liquidation of the debts due by Narsi. It will be open to defendant No. 2 in the subsequent litigation to claim the amount due on his previous mortgages, and the amount which he paid to defendant No. 1 for a necessary purpose under his sale-deed, Exhibit 21. It will be open to the mortgagee to rely, if he is so advised, on the title, if any, which may have accrued to him by virtue of adverse possession, We do not express any opinion on this point.
58. The result, therefore, is that the decree of the lower Court will be reversed, and a declaration granted in favour of the reversioners with regard to the second alienation, and refused with regard to the first alienation. The order for receiver will be passed as proposed by my Lord the Chief Justice.