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Bhagwanta and ors. Vs. Sukhi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1900)ILR22All33
AppellantBhagwanta and ors.
RespondentSukhi and ors.
Excerpt:
.....to set aside alienation by hindu widow--similar suit barred by limitation as against a prior reversioner--suit by subsequent reversioner not thereby barred--limitation--act no. xv of 1877 (indian limitation act), section 7, schedule ii, article 130. - - so that in any view it would appear that, having regard to section 7, the suit cannot be defeated on the ground of limitation. 'at the time when the alienation complained of occurred, the mothers of the plaintiffs were alive and were then the next heirs entitled to this property, and they might have brought the suit which the plaintiff's have now brought, but they did not do so. it appears to me that they are contrary to well recognized principles, and that we ought not to follow them. , article 120 of the second schedule and..........as regards the transfer made by sabej kunwar, who died in 1889. the only article applicable to the suit is article 120 which prescribes a period of six years from the time when the right to sue accrues. a right to sue for a declaration impugning the alienation of 1876, accrued to musamrnat mattra at the date of that alienation, and, having regard to article 125, became barred in the year 1888, in the absence of any special circumstance extending the limitation period. the right of the present plaintiffs, the sons of mussmmat mattra, to impugn that alienation accrued on one view of the law at their birth, and on another view of the law when, by the death of sabej kunwar in 1889, they first occupied the position of next reversioners to the estate. it is, however, admitted that all the.....
Judgment:

Arthur Strachey, C.J.

1. The only question which we have to consider is whether the Court below has rightly dismissed this suit as harred by limitation. The suit was brought for a declaration, first, that an alienation made in 1876 by a Hindu widow, the plaintiffs' maternal grandmother Sabej Kunwar, in favour of Musammat Hanso was void as against the plaintiffs; secondly, that a further alienation made by Hanso in 1893 to Kirpa Ram was also void as against the plaintiff's; thirdly, that the plaintiffs are entitled after the death of their mother Musammat Mattra to possession of the property in suit. At the time of the alienation of 1876 by Sabej Kunwar, the plaintiff's mother Musammat Mattra was the nearest living reversioner. She became entitled to possession of the property in 1889, when her mother, the widow Sabej Kunwar, died. She took no steps to question the alienation made in 1876. She has been made a pro forma defendant to this suit, and in her written statement she pleads that she does not wish to question either the alienation of 1876 or that of 1893.

2. Several questions have been discussed, which, in the view we now take of the case, it is not necessary to consider further, such for instance, as whether the plaintiffs could during the life-time of Sabej Kunwar have sued for a declaration in respect of the alienation of 1876, their mother Musammat Mattra being then the nearest reversioner, though having only an estate similar in nature and extent to that of the widow, and whether on the death of Sabej Kunwar in 1889, or on the further transfer made by Hanao to Kirpa Ram in 1893, any fresh cause of action for a declaratory suit accrued to the plaintiffs. As I have said, the only question which it is necessary to consider is whether this suit is barred by limitation.

3. Admittedly during the life-time of Musamrnat Mattra all that the plaintiffs can claim is declaratory relief in respect of these alienations. It is clear that the suit does not fall within Article 125 of the second schedule of the Limitation Act, which refers only to suits brought during the life-time of the widow whose alienation is impeached. That article could not apply to the suit as regards the transfer made by Sabej Kunwar, who died in 1889. The only article applicable to the suit is Article 120 which prescribes a period of six years from the time when the right to sue accrues. A right to sue for a declaration impugning the alienation of 1876, accrued to Musamrnat Mattra at the date of that alienation, and, having regard to Article 125, became barred in the year 1888, in the absence of any special circumstance extending the limitation period. The right of the present plaintiffs, the sons of Mussmmat Mattra, to impugn that alienation accrued on one view of the law at their birth, and on another view of the law when, by the death of Sabej Kunwar in 1889, they first occupied the position of next reversioners to the estate. It is, however, admitted that all the present plaintiff's were minors at the date of the institution of the suit which they brought in February 1894. They claim the benefit of Section 7 of the Limitation Act, which has been held by the Privy Council in Phooibas Koonwur v. Lalla Jogeshur Sahoy (1875) L.R. 3 I.A. 7 : S.C. I.L.R. 1 Cal. 226, to apply not only after the disability of minority has ceased, but during its continuance, to suits brought on behalf of the minor by his next friend; so that in any view it would appear that, having regard to Section 7, the suit cannot be defeated on the ground of limitation.

4. It has, however, been argued that Section 7 pre-supposes a right to sue in existence at the time of the institution of the suit, and that the fact that a suit by Musamrnat Mattra was long ago time-barred would operate as a bar to the plaintiffs, even though they are minors and notwithstanding Section 7. In support of that contention the case of Chhaganram Astikram v. Bai Motigavri (1890) I.L.R. 14 Bom., 512, has been cited. There the mother of the plaintiffs was originally the nearest reversioner. There was a sale of the property in suit in execution of a deoree against the widow for a debt due by her husband, and in consequence the widow was dispossessed in 1869. The nearest reversioner, the plaintiff's mother, died in 1879. In 1883, the plaintiffs sued as reversioners, the widow being still alive, for a declaration that they were not bound by the sale, that the decree in execution of which the property was sold was collusive and fraudulent, and that they were entitled to the property on the widow's death. One of the plaintiffs was a minor up to the year 1881. The other was still a minor in 1883, when the suit was brought. It was held that all right to sue for a declaration in respect of the sale and dispossession of the widow was barred in 1875, that is, when both the plaintiffs were minors, under Article 120 of the second schedule of the Limitation Act. The ground of the decision is thus stated at p. 515 of the report:--'Cause of action having, therefore, been given to the plaintiffs' mother both by the sale and dispossession, no new cause of action can be held to have remained to the plaintiffs on their mother's death. It could not have been the intention of the Legislature, in giving a right to sue for a declaration within six years from the accrual of the right, to give successive rights to a series of successive reversioners to harass the alienees of an estate with repeated suits in respect of the same alienation. It has been held that when the widow dies, a new right of action (for possession) will be given to the reversioner then living, but, till then, at any rate, any right to seek a declaration possessed by any reversioner whose title to sue had accrued after the alienation must be regarded as derived from the person who was the heir-presumptive at the time of the alienation.' Now, it is quite clear that such a reversioner does not in fact derive his title from the person who was the heir-presumptive at the time of the alienation. The judgment seems to me in effect to hold that although one reversioner does not derive his title from another and nearer reversioner, he must be deemed to do so in order to avoid the consequence of the alienees of the estate being harassed by a multiplicity of suits. The reversioner derives his title, not from any other reversioner but from the last full owner of the estate, and I can see no justification for introducing a fiction to the contrary effect merely to avoid a result which the Court may consider inexpedient. That judgment, having regard to the passage which I have just read, does not depend, as was suggested to us in argument, upon any special view entertained in Bombay as to the position in Hindu law of a daughter as being a full owner of the estate through whom the plaintiff's, in that case her sons, might have been held to claim. It follows a judgment of the Calcutta High Court in Pershad Singh v. Chedee Lall (1871) 15 W.R., C.R., 1. In that case a Hindu widow was sued for acts of waste and alienation alleged to have taken place during the lives of the mothers of the plaintiffs who were, when those acts were committed, the next heirs to the property. 'At the time when the alienation complained of occurred, the mothers of the plaintiffs were alive and were then the next heirs entitled to this property, and they might have brought the suit which the plaintiff's have now brought, but they did not do so. They allowed more than 12 years to elapse, and this cause of action is not revived in favour of the plaintiff's who have since been born and have now arrived at majority.' That is to say, the plaintiffs' right of suit was held barred by the omission of their mothers to sue, through whom they did not claim, and it was assumed that the cause of action accruing to the plaintiffs' mothers and the cause of action on which the plaintiffs themselves came into Court were one and the same, so that what barred the mothers would equally bar the sons. We have very carefully considered these two cases. It appears to me that they are contrary to well recognized principles, and that we ought not to follow them. If the nearest reversioner could be held, as the Hindu widow has been held, to represent fully the whole estate, it would no doubt follow that the limitation which would bar that reversioner would bar other reversioners, just as a decree passed against the nearest reversioner would, in that case, operate as res judicata against the more remote. But so far as I know, that has never been held to be the relation in which one reversioner stands to another, and we are not, I think, at liberty to act on an incorrect view of that relation in order to achieve the desirable result of preventing multiplicity of suits. A similar question has been considered with great fulness and care by Mr. Justice Mahmood in an unreported case-Beni Prasad v. Hardai Bibi F.A. No. 35 of 1888, decided 4th February 1892 That case has recently been decided by the Privy Council in connection with the validity in Hindu law of the adoption of an only son; but the question of limitation was apparently not raised by the defendants before the Privy Council; it was disposed of by Mr. Justice Mahmood and Mr. Justice Young as a preliminary point in the appeal before them. In that case there was an adoption by a Hindu widow in 1858. At that time the nearest reversioner was one Kedar Nath. He died in 1881, a declaratory suit to impugn the adoption being then barred so far as he was concerned by article 118 of the Limitation Act. The plaintiff was the son of Kedar Nath. He was born in 1852, but until he became, on Kedar Nath's death in 1881, the nearest reversioner, he could not have brought a declaratory suit to impugn the adoption. He brought such a suit in 1886, it was found, within six years from the date on which he acquired knowledge of the adoption. So far it was clear that the suit was within limitation. But it was argued that as a suit by Kedar Nath when he was the next reversioner became barred by limitation long before his death in 1881, on which the plaintiff acquired his right to sue, the plaintiff's suit was also barred. Mr. Justice Mahmood held, with the concurrence of Mr. Justice YOUNG, first that one reversioner cannot be held to claim through or to derive his title from another, even if that other happens to be his father, but derives his title from the last full owner; secondly, that the limitation which barred a suit by the nearest reversioner for the time being to contest an alienation or an adoption by a Hindu widow, would not bar a similar suit brought by another person after he became the nearest reversioner. At p. 160 of the paper book in that case Mr. Justice Mahmood thus sums up his elaborate consideration of the question:--'I think it is quite clear from what I have said that there is no authority, and there can be no reason in juristic principle for maintaining the proposition that the reversionary right under the Hindu law is a kind of heritable estate which descends from the father to the son, maintaining a kind of privity of blood for purposes of estoppel, the plea of res judicata, or the bar by limitation.' Again at p. 161, after referring to the ruling of the Full Bench in Ramphal Rai v. Tulakuari (1883) I.L.R. 6 All, 116, he said:--'Applying the principle of that case together with that I have said as to the nature of reversionary right under the Hindu law, I hold that the circumstance that the plaintiff's father Kedar Nath, whilst being the nearest reversioner, had allowed the period of limitation for such a suit to elapse during his life-time, does not operate as barring the plaintiff's present suit by limitation.' In support of his conclusion Mr. Justice Mahmood refers by way of analogy to the judgment of the Privy Council in Jumoona Dassya Chowdhrani v. Bamasoonderai Dassya Chowdhram (1876) L.R. 3 I.A. 72, where their Lordships expressed a doubt as to whether a decree in favour of an adoption passed in a suit by a reversioner to set aside the adoption is binding upon any reversioner except the plaintiff and whether a decision in such a suit adverse to the adoption would bind the adoptive son as between himself and any other than the plaintiff. In a later Privy Council case not referred to by Mr. Justice MAHMOOD, Isri Dut Koer v. Mussumat Hansbutti Koerain (1883) L.R. 10 I.A. 150, their Lordships (at p. 157 of the report) indicate strongly that such a decision would not be binding as res judicata in the case of a new reversioner.

2. It was further argued that, having regard to the terms of Section 7 of the Limitation Act, a plaintiff, to be entitled to the benefit of that section, must have been in existence and under disability at the time from which the period of limitation commences, and that therefore a minor cannot avail himself of the section in respect of a right of suit which came into existence before his birth. That contention in effect seeks to apply to the case the principle of Section 9 that 'when once time has begun to run, no subsequent disability or inability to sue stops it.' In support of that contention the following cases were cited:--Siddhessur Dutt v. Sham Chand Nundun (1875) 23 W.R., C.R., 285; Mrino Moyee Debia v. Bhoobun Moyee Debia (1874) 23 W.R., C.R., 42; Gobind Coomar Chowdhry v. Hum Chunder Chowdhry (1866) 7 W.R., C.R., 134, and Gobind Chandra Sarma Mazoomdar v. Anand Mohan Sarma Mazoomdar (1869) 2 B.L.R. 313. None of those cases were decided with reference to the present Limitation Act, and in none of them was the suit of the exact description of that now before us. None of them, so far as I am aware, have been applied to suits brought since Act No. XV of 1877 came into force for a declaration impugning the validity of an alienation made by a Hindu widow. They are cases of suits to set aside an adoption falling under Article 129 of Act IX of 1871, which article has been replaced by the totally different provisions of article 118 of the present Act. Instead of straining the language of these decisions to meet a case of this kind, it appears to me to be safer to look to the precise terms of the provisions applicable to this present case, i.e., Article 120 of the second schedule and Section 7. As regards Article 120, when the Legislature said that a suit may be brought within six years from the time when the right to sue accrues, I think it clearly meant the right to sue of the plaintiff himself or some one through whom he claims, not a right of somebody else to sue through whom the plaintiff does not claim. The Legislature cannot have meant a right of anybody to sue, a right at large of some person wholly unconnected with the plaintiff. Similarly, if Section 7 is read giving the terms used their ordinary and natural signification, I think the expression 'the period of limitation' means the period of limitation for the plaintiff's suit, the period of limitation for the suit which the person under disability or some one through whom he claims is entitled to institute, not the period of limitation for a similar suit which some other person may have been entitled to institute. In my opinion nothing has occurred to deprive the plaintiff's, who are still minors, of the benefit of Section 7 by extinguishing or barring their right to sue for a declaration in respect of the alienations of 1876 and 1893. I am therefore of opinion that the Court below ought not to have dismissed the suit as barred by limitation, but should have disposed of it on the merits. I think that the proper course is to allow this appeal, set aside the decree of the Court below, and remand the case to the Court of First Instance for disposal on the merits. The plaintiffs are entitled to their costs of this appeal. The other costs will abide the result.

Knox, J.

3. I also agree that the plea of limitation should not have been allowed, and concur in the order proposed by the learned Chief Justice.

Blair, J.

4. I concur in the order proposed by the learned Chief Justice and the reasons by which that order is supported.

Banerji, J.

5. I have arrived at the same conclusion as the learned Chief Justice. The Lower Appellate Court dismissed the suit as barred by limitation under Article 125 of the second schedule of the Indian Limitation Act, 1877. As the suit was not one to set aside an alienation during the lifetime of the Hindu female who made the alienation, that article clearly did not apply. There being no other provision of the Limitation Act applicable to a suit of the kind brought by the plaintiffs, it was governed by Article 120, which prescribes a limitation of six years, calculated from the date on which the right to sue accrued. I am of opinion that the right therein referred to is clearly the right of the plaintiff as defined in Section 3 of the Act, and that the article does not refer to the right of a person other than the plaintiff. In the present case the right of the plaintiffs to question the alienation made by Sabej Kunwar could arise at the earliest on their birth. During the whole of the period subsequent to their birth they have been under a disability, and consequently they are entitled to the privilege which is accorded to plaintiffs of that description by Section 7 of the Act. The rulings of the Calcutta High Court on which the learned vakil for the respondents has relied, and which are referred to in detail in the judgment of the learned Chief Justice, had reference to suits of a particular description and were based on the peculiar phraseology of the Limitation Act applicable to those suits. I am unable to hold that by reason of their not being in existence at the date of the alienatiou in question, the plaintiffs are not entitled to bring their suit at any time during the period of their minority, after the accrual of their right of suit. As regards the only other contention which was raised in this case, namely whether the fact of the omission of the plaintiff's mother to question the alienation made by Sabej Kunwar barred the plaintiffs from maintaining the present suit, and the rulings by which that contention was sought to be supported, it is sufficient to say that those rulings evidently proceed upon the assumption that one reversioner derives title from another. I am unable to hold that that is a true proposition under the Hindu law. There is no privity of estate between one reversioner and another qua reversioners; therefore the act or omission of one reversioner cannot bind another, on the general principle that no one can be bound by the act or omission of a person through whom he does not derive title. For these reasons I agree in the order proposed by the learned Chief Justice.

Burkitt, J.

6. I have arrived at the same conclusion. In my opinion no cause of action for the present suit accrued before these plaintiffs' birth, and therefore it cannot possibly be barred by any limitation.

Aikman, J.

7. I concur in the judgments of the learned Chief Justice and my brother Banerji, J., and in the order proposed.


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