Viscount Haldane, J.
1. This is an appeal from a judgment of the High Court of Allahabad, affirming the conclusion come to by the Subordinate Judge of Gorakhpur. The only question of substance is when time began to run under the Indian Limitation Act against a claim to recover possession made by the first respondent. The property in dispute was held by a Hindni lady called Dilla Kunwari. She died in 1895, and the controversy turns on whether her possession was that of one claiming adversely as against any other title, or whether, as the Courts below have held, that possession was not adverse but under licence from or by permission of the predecessors-in-title of the first respondent, a licence or permission granted during the lady's lifetime, in order to afford her the maintenance which she claimed an a widow. In that case time did not begin to run against his claim until she died in 1895, and the Limitation Act has not operated so as to defeat this action.
2. It will be convenient, in order to make the situation of the parties intelligible, to set out the pedigree in a table :-
Murlidhar (common ancestor)
| | |
Sewak Ram Nagar Mal Buddhu Lal
Mansa Ram Adhar Singh
Har Parshad Jeobodh Lal
| | | |
Bhawani Dayal Basant Lal Hanuman Prasad Hanwant Parshad
(died 1851) (died 1859) | |
| | Kishan Prasad Debi Sahai
------------- ------------- |
| | | | Raj Kishor Lal
Kishen Dilla Raghubans Jadubans (Plaintiff and first respondent)
Kunwari Kunwari Kunwari Kunwari |
(widow) (died 1885, (widow) (widow) Harbans Lal
| widow) (Plaintiff and second respondent)
Chaudri Sheo Chaudri Satgur
Shanhar Lal (son) Prasad (son)
(first defendant, now de- (second defendant
ceased, in whose place those and appellant)
claiming as his legal repre-
sentatives were substituted)
3. It is not now in dispute that Bhavani and Basant, who appear in the pedigree, were at the time of the death of the former in 1851 joint, and that Basant became entitled to the entire family property, subject to such rights as Kishen and Dilla, Bhavani's widows, possessed. When Basant died in 1859, his widows, Raghubans and Jadubans, had similar rights, and subject to these his sapindas, the male cousins and his reversioners, Hanuman and Hanwant, took the property. In 1861 Raghubans and Jadubana, the widows of Basant, both died, and it is of importance to see what happened then. The learned Subordinate Judge held that the two widows of Bhawani got possession of the estate in equal moieties. As will appear, the controversy is confined to the share held by Dilla, for as to the other half taken possession of by the other widow, Kishen, an independent title, under a deed of gift, as to which title there is no dispute in this appeal, became vested in her daughter, Jadunath, and was transmitted to the defendants. Jadunath took possession of this half in 1879 under the deed of gift. It is immaterial whether the deed was valid or not, so far as concerns what she took possession of in that year, for any claim of the respondent plaintiff against her has, as is not in dispute, become barred by limitation. The only question is as to what was held by her aunt, Dilla.
4. The period prescribed by the Indian Limitation Act, 1877, section 144 of schedule 2, as that within which a suit for possession has to be brought, is twelve years from the time when the possession of the defendant became adverse to the plaintiff'. -It is therefore obvious that if the possession of Dilla, after Basant's death, was really adverse, the respondents' claim fails. It is important to see what was the position of the lady after the death of her husband, Bhawani, in 1851. In November of that year, she and the other widow, Kishen, entered into a written agreement with Bhawani's brother, Basant, the terms of which were that the name of Basant as inheriting should be entered in the Government register in place of that of Bhawani, and that he should ' pay the Government revenue, manage the ilaJea (or property), and make collections and give expenses and clothes (and money) when required for charitable purposes,' to Kishen and Dilla, that the messing should continue to be joint, and that both widows should exercise control over the servants and ilaka as heretofore. Their Lordships are of opinion that if this were all, it left the possession as a provisional arrangement-undisturbed in Basant. All that the ladies were to do was to live as before on the property and be maintained there, without any occupation of an exclusive or adverse kind. But did the non-exclusive character of this occupation change after Basant's death in 1859 The answer to this question turns on what Bhawani's widows, Kishen and Dilla, did in the way of publicly asserting a claim to exclusive possession and ownership. The learned Subordinate Judge thought that it had been proved, as regards the share of Dilla, that in controversy in this suit, by (1) her statements and the manner in which she entered into possession; (2) the admissions of the defendants; and (3) certain earlier judgments of the High Court in other suits, that Dilla was in possession only in lieu of her maintenance for life, and not in adverse possession. The High Court expressed the same view, but without giving detailed reasons for it.
5. It is with reluctance that their Lordships differ from the concurrent opinions of the two Courts below on this point; but it is one in reality of legal inference from documents and not on finding of fact, arid their Lordships are unable to draw the inferences made by the Subordinate Judge and followed by the High Court. To begin with, the so called 'compromise' with Basant was not a compromise at all. It was a mere arrangement that, according to the alleged family custom, his name should be entered in place of that of his deceased brother, Bhawani, so that he might pay the Government revenue arid manage the estate, the ladies messing jointly with him and controlling the servants and the property. Such an arrangement was probably a convenient one under the circumstances, as is further explained in an application of the ladies to the Tahsildar, dated the 8th December, 1851, on the ground that the step was customary when ladies were pardanashin. and, as the document says, was an arrangement designed to obviate disputes. But it does not appear to settle any questions of title, or to show, as the learned Judge thought, that Basant was made the owner to the exclusion of the ladies from every title excepting one to maintenance. It renders natural the subsequent conduct of Dilla in what appears to their Lordships to have been a succession of assertions of ownership after Basant's death. Even from the written statement of the 19th June, 1867, relied on by the learned Subordinate Judge as showing that Dilla claimed possession in mere enforcement of a right to maintenance, it is clear that she claimed much more; for she asserts that she was the 'patni' or wedded wife of Bhawani, and as such entitled as full heir to a share of the separate property which she alleges was what he possessed. In another written statement, which she put in in a suit brought against her by Jadunath in 1870, she asserts that she and Kishen were their husband's heirs, and had all along been in possession as such. It is only as an alternative plea that in this document she seta up a title to possession on the footing of a right to maintenance. The application of Dilla, dated the 6th September, 1861, made for a record of title after the deaths of Basant's two widows, contains an assertion, thus publicly made, that she and Kishen had become by these deaths the heirs and the only heirs to the property. It appears that mutation into Dilla's name duly followed on this application. Again in 1880 Dilla made an absolute gift for religious purposes of a part of the property. Their Lordships think that it is impossible in the face of these open assertions of full title, to draw the inference that Dilla claimed no more than such a possession as would yield her maintenance during her life; nor does it appear to them that certain admissions suggested as having been made by the defendants in the various proceedings referred to by the learned Judge who tried the case are such as to preclude them from setting up the real nature of Dilla's possession. Further, they do not think that anything decided in the previous suits referred to by the Subordinate Judge, to which neither the respondents nor any person through whom they claim were parties, precludes the appellant from now setting up in the present suit that Dilla's possession was adverse as against the respondents.
6. If the true inference be that the lady was in possession and asserting a title to full ownership of her share, at all events from the death of Basant in 1859 down to her own death in 1895, it is clear that the title of the plaintiffs was .barred by limitation. This makes it unnecessary to consider the other questions raised in the suit. There is a concurrent finding as to the age of the first plaintiff, Raj Kishore, according to which he was born before a deed of gift, dated the 8th September, 1866, by which Hanuman Parshad and Debi Sahai purported to transfer the whole estate to Jadunath. This finding, which is binding on their Lordships, disposes of a defence which might otherwise have been open to the defendants, for it shows that the deed of gift, which was of ancestral property, was wholly void. The plaintiffs were therefore neither hampered by this deed nor affected by admissions based on it.
7. But for the reasons given earlier their Lordships are of opinion that they must humbly advise His Majesty that this appeal should be allowed, and that a decree should be made favour of the appellant dismissing the suit. The first and second respondents, who were plaintiffs in the suit, will pay the costs here and in the Courts below.