1. This is an appeal from the judgment dated 23rd December 1940, of Mr. L.Y . Ankalgi, who was then the First Class Subordinate Judge at Bijapur. The appeal raises two quite different questions, and it will be convenient to deal with the question with regard to the Limitation Act. first, because if the respondents' contention is right with regard to that Act then the other question would not arise at all and this appeal would have to be dismissed with costs.
2. Now, the question of limitation arises in this way: The plaintiff was adopted on 22nd October 1925, and that, for the purpose of running of time, is the critical date. This litigation was commenced in the Court of the First Class Sub ordinate Judge on 1st October 1938, and it is, therefore, apparent, unless some time can be allowed, that the suit is out of time and barred because more than twelve years would have elapsed. But Mr. Jahagirdar on behalf of the appellant, who is the plaintiff, claims that under Section 14, Limitation Act, 1908, he is entitled to compute the time taken up in the Second Class Subordinate Judge's Court in which Court this suit was initiated and in which Court it was held that there was no jurisdiction to try the suit. Section 14 is in these terms:
In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
To that section there are various explanations, Explanation I being
In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended shall both be counted.
3. The relevant dates are these: The plaint was filed in the Second Class Subordinate Judge's Court on 21st October 1937, that is to say, it was just one day within time. On 17th September 1938, the learned Judge endorsed on the plaint an order in which having pointed out that the suit was beyond his jurisdiction he said:
The plaint shall, therefore, be returned to the plaintiff's pleader for presentation to the Court having jurisdiction to try the suit. (Order VII, Rule 10(1), Civil P. C)
Costs to be costs in the cause.
In fact the plaint was returned on 30th September, when the learned Judge made a further endorsement on it to this effect:
The plaint was presented by the plaintiff's pleader Mr. B.N. Padaki on 21st. October 1937 and it is returned to him on this date. 30th September 1938.
4. Now unless, not only the time between the filing of the plaint, namely, 21st October 1937, and the order for its return, namely, 17th September 1938, is allowed but also the thirteen days between 17th September 1938 and 30th September 1938, the plaintiff is out of time and the suit is barred and therefore the issue that arises is whether that interval of thirteen days between the order for the return and the actual return can be allowed.
5. That question has been considered in two cases in this Court. The first of those cases is 46 Bom. 211.1 In that case the similar period was five days, and the learned Sir Norman Macleod C.J.said this (p. 212):
We think the Judge was wrong in disallowing the five days which elapsed between 24th June and 29th June, on which latter date the plaintiff got back his plaint from the first Court. We see no reference in the judgment to the affidavit of the plaintiff that he had asked for the plaint on 24th June, that he was told that a copy was to be made, and that the plaint would be returned after the copy was made. But in any circumstances a party cannot always get back his plaint on the same day as an order is made that the plaint has been filed in the wrong Court and as long as the plaintiff has exercised ordinary diligence in pursuing his claim, there is no reason why the period up to the day when he gets back his plaint should not be taken into account.
6. The other case is also decided by this Court and that is the case in 52 Bom. 4772 and the learned Sir Amberson Marten C.J. said (p. 490):
He (the plaintiff) has come to the Court and had endeavoured to obtain the plaint, but the Court had declined to give it up as it was wanted for being copied, and for making certain entries in the Court register. Under those circumstances it was very naturally held by this Court that the party in question was entitled to rely on explanation I to Section 14, Limitation Act, and that within the meaning of that explanation the proceedings had not up to that time ended. On the other hand, I am not prepared to hold that in every suit the plaintiff, whose plaint has been directed to be returned to him, can allow the plaint to remain in Court and yet count all the subsequent period as being allowed to him under Section 14.
Crump J. in his judgment at p. 494 says this:
I have grave doubts whether the plaintiff was properly entitled to the credit of that period (the period in question). It seems to me that under Section 14 we have to consider when the suit in the First Class Subordinate Judge's Court was at an end. That is the plain meaning of the first explanation to that section, and, so far as the records go, I think that period was at an end as soon as the Court made an order for the return of the plaint.
But the learned Judge goes on to say, following the decision of Sir Norman Macleod, that he would be prepared to exclude any time that was necessary for the purposes of the Court. The result of the judgments of the two Chief Justices, with which I respectfully agree, is that the period between the pronouncement in Court of the want of jurisdiction and the return of the plaint is allowable as time under Section 14, Limitation Act, subject to this overriding qualification that during that period, as during any other, the plaintiff must be prosecuting his suit with due diligence.
7. In the case before Sir Norman Macleod an affidavit was put in to explain that the five days' delay was to be accounted for by the Court's procedure. In the case before us there is a delay of thirteen days and no affidavit or explanation is forthcoming to account for it. Mr. Jahagirdar pointed on that this point was not taken in the Court below, and that therefore there was no evidences on record. On the other hand, the onus of proof was undoubtedly on him to account for the period and finally Mr. Jahagirdar made an application that the matter should be remitted back to the Court below in order that evidence might be taken with regard to these thirteen days. We refused that application on being informed that the pleader who had attended to this matter on behalf of the plaintiff in the Courts below was present in Court and we gave Mr. Jahagirdar an opportunity of putting him into the witness box where he was examined and cross-examined. Now, the result of his evidence can be summarized as follows: First of all, with regard to the practice in the Second Class Subordinate Judge's Court: It seems that in a case such as this, where the Judge has said that he has no jurisdiction that on the pronouncement of such an order the plaint is retained in Court in order that the bill of costs may be drawn up and that the necessary entries may be made in the Court's registers. The witness told the Court, speaking generally, that the drawing up of the bill of costs generally takes from eight to ten day3, and he has known it to take as long as a fortnight. The next stage is, that the pleader is informed by one of the clerks or peons of the Court that the bill is ready and the bill is brought to the pleader who then signs or initials it and subsequently makes an application to the Court for the return of his plaint. From the evidence the critical dates appear to be that the bill was presented to the pleader on or about the 28th and that he got his plaint back on the 30th, and the very next day, October 1, he filed It in the superior Court. In my judgment it cannot be said that the two days from 28th to the 30th were a delay such as would disentitle the plaintiff to the advantages of Section 14, and obviously the fact that the plaint was filed in the superior Court on the very next day cannot be said to be any delay at all.
8. But the real question that arises is whether it was not in the circumstances of this case incumbent upon the pleader to apply to the Court to have the bill of costs dealt with expeditiously and thereby avoid the delay of eleven days which took place in the presentation of the bill to the pleader. The solution of that question is to be found by again referring to the words of the statute which are: 'the plaintiff has been prosecuting with due diligence' the suit in another civil Court. It is to be noted that the section does not say that he is to proceed with expedition. He has to act with due diligence, and in my opinion the omission in the present case to make an application for expedition and to rely on the normal machinery of the Court was acting with due diligence. If it could have been shown that there was any unusual delay in taxing the bill or that after the bill of costs had been signed there was any delay in applying for the return of the plaint, that would have been a wholly different matter. In the circumstances, the suit, when the necessary calculations are made, will be found to have been commenced two days within time, and we will proceed to consider the substantial question which arises with regard to the farkhat.
9. The main point in this appeal is with regard to the farkhat dated 6-8-1895, and, executed by the plaintiff 's mother Irawa and addressed to her sister Sangawa who died in 1897 and who was the mother of two daughters under whom the defendants claim. The farkhat deed is described as being 'passed in writing by me Irawa'-whose address is stated, and it says:
You being my husband's pat wife, both yourself and, myself together had been carrying on the prapancha (living together), but since differences had occurred between yourself and myself we have got partitioned in the presence of the four learned gentlemen. The particulars of the moveable and immoveable property of your share situate in the village of Chabanur, in Taluka. Bagewadi in the District of Bijapur are as follows.
Then certain lands with their descriptions are stated with areas totalling 60 acres and 29 gunthas. After the description of a house and referring to miscellaneous moveable property, the deed continues:
Thus, the lands, house and the moveable property as above have fallen to your share. You should go on making enjoyment thereof peacefully in whatever manner you like. Neither myself nor the heirs of my estate have retained any right of ownership over the said property and the absolute right of ownership over the same is yours and of your heirs to the estate. The possession of the said lands, house and the moveable property being with you, it has been confirmed. I shall get transferred the khata of the said lands in your name.
10. Now, with regard to the last paragraph of the deed to the effect of getting the khata transferred into the name of Sangawa there is nothing is this farkhat to indicate whether the estate is the widow's interest or a full ownership, as both such estates can be placed on the khata. It is to be observed that the farkhat is only with regard to the transaction described as a partition which had already taken place and is not itself operative of that or any other transaction. The deed having been executed, Sangawa died in 1897, and her daughters and their sons enjoyed the possession of the properties set out in the farkhat-deed and described as Sangawa's share. On 22-10-1925, Irawa adopted the plaintiff, and in the ordinary way all her widow's interest in that property would then cease. The law is that a surrender or release by a widow of the whole of her estate and interest in the property of her deceased husband to the person or persons entitled in reversion operates to defeat a subsequently adopted son, because the widow has, so to speak, voluntarily operated her own death and thereby accelerated the interest of the reversioners. The matter is thus stated in Sir Dinshah Mulla's book on Hindu Law at p. 208:
An alienation by a widow or other limited heir of the estate inherited by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner, if there be only one, or of the whole body of reversioners, if there be more than one at the time of the alienation.
Then a little later on the same page the learned author says:
It is settled by long practice and confirmed by decisions that a Hindu widow can renounce in favour of the nearest reversioner, if there be only one, or of all the reversioners nearest in degree if they are more than one at the moment. That is to say, she can, so to speak, by voluntary act operate her own death. The principle on which the whole transaction rests is the effacement of the widow-an effacement which in other circumstances is effected by actual death or by civil death-which opens the estate of the deceased husband to his next heirs at that date. Now, there cannot be a widow who is partly effaced and partly not so, and consequently there can be no surrender or renunciation of part or the estate. The surrender may be effected by any process having that effect, provided that there is a bona fide and total renunciation of the widow's right to hold the property.
11. After some argument on this point Mr. Manerikar on behalf of the defendants, who are the respondents in this Court, accepts the proposition that the deed cannot operate as a surrender of the whole estate and the effacement of Irawa. I have no doubt that acceptance is rightly made. Accordingly, on adoption the plaintiff was entitled to the whole property. Sangawa was then dead, and his own mother Irawa had, by his adoption, put an end to the widow's interest.
12. But Mr, Manerikar says that the suit is barred by res judicata. That question arises in this way: There was in the year 1910 a suit between one of the daughters of Sangawa against Irawa and others. The claim was that after the death of Sangawa she, i.e., Sangawa's daughter, became the heir. On the other hand, Irawa said that she was the sole heir to Sangawa by right of survivorship. There seems to have been in that suit a mixing up between a widow's interest in property and the rights of full ownership in property, since Sangawa never in fact had more than a widow's interest in any property. However that may be, this issue was in fact framed in that suit:
What title did the plaintiff's mother Sangawa acquire to the property mentioned in the deed, Ex. 28 (i.e., the farkhat) by virtue thereof? Was it simply a widow's estate or an absolute title?
and the answer given by the learned Judge was 'an absolute title as against defendant 1' (defendant 1 being Irawa). In this judgment the learned Judge said this:
The question is whether by this deed defendant 1 surrendered all her interests in the property mentioned in Ex. 28 in favour of the plaintiff's mother Sangawa and thus put an end to her (defendant l's) own right of survivorship so as to let in the next heirs of her husband immediately after the death of said Sangawa. The wording of Ex. 28 is clear enough. By this deed defendant 1 purports not to make any reservation in her own favour but to surrender all her interest absolutely in the property in question in favour of the co-widow Sangawa. That there is no bar under Hindu law preventing her doing so is clear from the following rulings.
Then the learned Judge sets out a number of cases and continues:
Hence I hold that on the death of Sangawa in 1897 the plaintiff and defendant 4 became the sole owners of the plaint property except survey No. 313 as her sole heirs to the exclusion of the co-widow (defendant 1) who had lost all her rights to the same by the deed, Ex 28.
13. With respect to the learned Judge, this is clearly wrong, and Mr. Manerikar concedes this. Now, the relevant section of the Civil Procedure Code with regard to res judicata is Section 11 which provides that:
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit;
and Explanation VI provides that:
Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
14. Mr. Manerikar states that Irawa as a defendant was representing the estate of her deceased husband. In the notes to Section 11 at p. 69 of Sir Dinshah Mulla's Civil Procedure Code is to be found this:
A decree passed against a Hindu widow as representing the estate of her husband in respect of a debt or other transaction binding on the estate is binding upon the reversioners.
And then somewhat further on it is stated:
A decree, however, against a Hindu widow not in her representative but personal character does not bind the reversioners.
15. Now, the plaintiff claims not through, Irawa but as heir to his father, and in my opinion Irawa could not represent the whole estate in the previous litigation. She was not defending the property against some one such as a creditor who was attacking it, but the litigation was of a domestic character in which she was defending her own interest as against persons claiming under her deceased husband. That is in accordance with the case in this Court in 42 Bom. 69.3 An examination of the plaint in the former suit makes this much clear, the allegations are primarily directed against the alleged unchastity of Irawa, and they continue In this way:
In case it be declared that defendant 1 would he come the heir of the deceased Gurusangappa then in accordance with the deed of agreement of date 6-8-1895, excluding survey No. 313 out of the suit property, the remaining property being of the ownership of the deceased Sangawa and on her death, it having been declared that the plaintiff is the owner thereof and possession should be handed over to her.
16. In the statement of defence of Irawa of which unfortunately we have no copy but which is recited in the judgment of the learned Judge it is said 'that defendant 1 is the sole heir to her by right of survivorship.' On these facts, it is my opinion that Irawa was not in the previous litigation representing the estate as a whole, and that the decision against her is not res judicata against the plaintiff who claims as the adopted son of his father. The result is, the Limitation Act being no bar, that the plaintiff is entitled to recover this property unless Mr. Manerikar can succeed on his last point which is adverse possession.
17. Adverse possession can only arise if all estate and interest in the properties partitioned to Sangawa's share by the farkhat had ceased on Sangawa's death. In other words, was the partition limited to the joint life of the two widows or was it to continue during the lifetime of the survivor? If the latter, then Sangawa's heirs wore entitled to possession so long as lrawa's widow's estate survived. The crucial words in the deed are these:
You should go on making enjoyment thereof peacefully in whatever manner you like. Neither myself nor the heirs of my estate have retained any right of ownership over the said property and the absolute right of ownership over the same is yours and of your heirs to the estate.
From the use of the words 'of your heirs' it is in my opinion clear that the partition of the widow's interest was to continue during the lifetime of the surviving widow and, therefore, in the events which happened up to the date of the adoption up to which date there can be no doubt that Sangawa's heirs were entitled to continue in possession unless it can be said that the partitioned portion was given to Sangawa by way of maintenance. The adoption put an end to the widow's interest of both the senior and junior widows, and the possession of Sangawa 's heirs became adverse as from the date of adoption.
18. This question was adumbrated in I.L.R. (1942) ALL. 708where it was characterised as being interesting and thought-provoking, but the learned Judges expressed no opinion upon it. However, they referred to the case in 14 pat. 518,5 in which it is to be observed that this proposition was stated (p. 519):
The heirs of the husband cannot, on: the death of one, get possession of the properties held by her, so long as the other widow is alive. In other words, succession will not open in favour of the husband's reversionary heirs during the life-time of the surviving widow.
19. I should hesitate to follow that statement. In my judgment any arrangement made by the widows inter se with regard to the widow's estate cannot bind any one who subsequently becomes entitled to the whole reversionary ownership except when the arrangement is properly limited to providing for a widow's maintenance. In the result the appeal must be allowed and the decree of the lower Court set aside. There will be an order for possession in favour of the plaintiff of the suit properties with an enquiry as to mesne profits from the date of suit.
20. With regard to costs, at a certain stage of the hearing before us Mr. Jahagirdar for the appellant had to ask with regard to the limitation question that the matter should be remitted back to the Court below with an issue framed to explain the delay of thirteen days between the learned Judge's making the order to band back the plaint and the plaint being handed back. We refused that application, but as it appeared that the learned pleader who dealt with the matter was in Court, we granted the appellant the indulgence of calling the pleader as a witness. If the matter had to go back to the trial Court, there is no doubt that Mr. Jahagirdar would have been ordered, as a condition for granting his application, to pay the costs up to date. In all the circumstances we think the fair and proper order to make with regard to costs is that there should be no costs either in the Court below or in this appeal.
21. I agree and have nothing to add.