1. This is a second appeal by the plaintiffs and arises from a suit for possession which was decreed by the Court of first instance. On appeal by the defendant, the plaintiffs' suit was dismissed. The facts, so far as it is necessary to mention them for the purpose of this appeal, are as follows : The property in dispute belonged to one Janki Prasad and his sons by his two wives. The following pedigree will explain the positions of various persons whose names occur in the statement of the facts of the case:
Mt. Manwali (first wife) = JANKI PRASAD = Nai Bahu (second wife)
Ram Ram Sewak = Bhagwat Har Das Perma- Chaturbhuj Damodar Nand Rang
Prasad Mt. Sarawan Raj = Mt. | nand (adopted in =Radha Kishore Lal
| Dulaiya Ujiari | a different Dulaiya
| | family) defendant
Nathu Ram =Mt. Chaube Rashik
Singar Dalaiya Lal
Avadh Behari Kunj Behari
plaintiff 2 plaintiff 3.
2. There were disputes in the family sometime before 12th July 1891 when certain arbitrators appointed by the members of the family gave an award dividing the family property between two sets of the members of Janki Prasad's family. Half of the family property was allotted to Ram Prasad and Har Das and the widows of Ram Sewak and Bhagat Raj who had died before 1891. The other half was allotted to Janki Prasad himself and his sons by the second wife. The validity of the award and its binding character are no longer in dispute between the parties. The award provided inter alia that certain properties be given to Mt. Sarwan Dularia, the widow of Ram Sewak, and Mt. Ujiari, the widow of Bhagat Raj, for their maintenance. Their interest was expressly limited to their lifetime. The award wont on to provide that the widows would be entitled to adopt and that, in case they did not make any adoption and became unchaste, Ram Prasad and Har Das, the surviving brothers of their deceased husbands, would be entitled to take possession of the property allotted to them for maintenance. The widows were not empowered to alienate the property given to them except to a member of the family. The last clause provided that Janki Prasad and his sons by the second wife would have no concern with the half allotted to Ram Prasad, Har Das and the widows, which would eventually devolve upon the sons of Ram Prasad and Har Das. Similarly it provided that Janki Prasad's representatives through his first wife would have no concern with the half given to him and his representatives from the second wife.
3. Mt. Ujiari, the widow of Bhagat Raj, made a gift of the property given to her for maintenance to Damodar, son of Janki Prasad by his second wife (the husband of the present defendant, Mt. Radha Dulaiya). The donee obtained possession under the deed of gift and has been in possession ever since. Mt. Ujiari became unchaste in 1910 or 1912. This fact was in controversy in both the lower Courts but their findings on an essential question of fact like this is conclusive in second appeal. We must therefore take it that Mt. Ujiari became unchaste in 1910 or 1912. She died in 1929. The present suit was brought on 26th November 1932 by the son of Har Das and grandsons of Ram Prasad on the simple allegation that the property given to Mt. Ujiari under the award already referred to was for her life and that the plaintiffs who are the son and grandsons respectively of Har Das and Ram Prasad are entitled to possession thereof under the award. The only defence which it is necessary to mention at this stage is that Mt. Ujiari became unchaste in 1910 or 1912 and that the right to sue accrued to Ram Prasad and Har Das or their descendants at that time and the suit not having been fought for more than 12 years from the time of Mt. Ujiari's unchastity is barred under Article 143, Lim. Act. This contention did not find favour with the trial Judge but was accepted by the learned District Judge in appeal by the defendant.
4. The only question which has been argued in second appeal is one of limitation. It is argued by the plaintiffs' learned Counsel that the proper Article to apply on the facts of this case is Article 141, while it is contended by the learned Counsel for the defendant that the learned District Judge applied the right Article, namely Article 143. We are clearly of opinion that Article 143 has no application to the facts on which the plaintiffs' claim is based. The allegations contained in the plaint make no reference to the fact that Mt. Ujiari became unchaste in or about 1910. The plaintiffs' cause of action is stated to be the death of Mt. Ujiari in 1929 -when, on the termination of her life estate, the plaintiffs' right to sue accrued. If there had been nothing else in the case, there could be no doubt that the suit was governed by Article 141. The fact that Mt. Ujiari became unchaste was alleged by the defendant and was proved by her. The line of argument adopted by learned advocate for the defendant is that Article 141 applies to cases in which the plaintiffs' right to sue accrues only on the death of a Hindu or Mohammedan female entitled to a life interest and that where the right to sue accrues in consequence of unchastity of the widow also, Article 141 ceases to be applicable. We are unable to accept this contention. As we read the award, it is perfectly clear that Mt. Ujiari had only a life interest on the termination of which Ram Prasad and Har Das or their descendants would be entitled to possession of the property given to the widows for maintenance. They could also take possession earlier of the property given to any of the two if she became unchaste. The fact that they did not exercise, what to our mind was only an option, when Mt. Ujiari became unchaste in or about 1912, cannot deprive them of their right to recover possession when the life interest of Mt. Ujiari determined in consequence of her death. We think that it was open to Earn Prasad and Har Das or their representatives to waive the forfeiture incurred by Mt. Ujiari by becoming unchaste and if they waived such forfeiture, their ultimate right to take possession of the death of Mt. Ujiari was in no way affected.
5. The logical result of the defendant's contention is that if no suit for possession was brought by Ram Prasad and Har Das or their representatives immediately on Mt. Ujiari becoming unchaste, the nature of her estate which was originally one for maintenance was altered and that thenceforth she or her donee began to hold adversely and after the lapse of 12 years, the limited right was enlarged to absolute proprietary interest. We do not think that such a result can be arrived at by any process of reasoning. As their Lordships of the Privy Council observed in Mt. Bhagwani Kunwar v. Mohan Singh :
Whore a widow of a deceased member of joint Hindu family, under an agreement, obtains possession of certain properties for her life for hen maintenance, she cannot obtain against the co-sharers of the joint Hindu family any title by prescription. Whether she acts in accordance with the agreement or contrary to it, is immaterial. She has no other title to the property in question and cannot grant or convey any title to the properties which would be effective for any purpose beyond the terms of her life.
6. The ratio decidendi underlying their Lordships' judgment appears to us to be applicable to the circumstances of the case-before us. In the present case, Mt. Ujiari or her donee, the defendant, cannot obtain by prescription a larger interest than that given to her by the award only because-she acted contrary to the terms of the award which conferred the right of maintenance upon her on certain conditions. As stated by their Lordships, she has-never had any title to the property in dispute other than the one recognized in the award. It seems to us that Article 143 cannot be applied to the frame of the suit adopted by the plaintiff-appellants. If they had sued on the ground that Mt. Ujiari forfeited her maintenance by becoming unchaste, their suit would have been barred under Article 143. But as-already indicated they based their claim-on a totally different cause of action which has no reference to any forfeiture whatever. It is a well known rule of law that a person entitled to the benefit of forfeiture can waive it and if he has a right to the property wholly apart from forfeiture, that title cannot be affected by the fact that he could have enforced the forfeiture; clause but waived it. It is clear to us that on Mt. Ujiari becoming unchaste, Ram Prasad and Har Das or their representatives might have sued for the enforcement of the forfeiture clause in the award. It was open to them to forego the benefit which such clause conferred upon them and to wait till Mt. Ujiari died when they acquired a fresh right to sue for possession of the estate, in terms of the last clause of the award to which reference has already been made. We are clearly of opinion that Article 141 is applicable arid that Article 143 has been wrongly applied by the lower appellate Court. The result is that this appeal is allowed, the decree of the lower appellate Court is set aside and that of the Court of first instance is restored. The plaintiffs shall have costs incurred by them in all the Courts from the defendant.