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Bankey Lal and ors. Vs. Raghunath Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All561
AppellantBankey Lal and ors.
RespondentRaghunath Sahai and ors.
Excerpt:
- - this was clearly laid down in the case of golukmonee dabee v. their lordships then remarked that in the litigation of 1887 although chokkammal was personally interested in defeating murugathal's claim, she did, in fact and in law in that suit, represent the estate as well as her own interests as a hindu widow. 193 both of them being cases decided before the limitation act of 1871. their lordships then quoted the well-known passage from the case of katama natchiar v. 18. it is noteworthy that there is no express mention of adverse possession against a widow being good as against the reversioners, nor is there any clear reference to any rule of limitation. the only rule laid down was that a bona fide decree against her was binding on the reversioners, and this is the rule which must.....sulaiman, ag. c.j.1. in this case bansidhar, the last male owner, died in 1878 and was succeeded by his widow mt. gumane. mt. gumane died in 1894. on her death the estate devolved on their daughter mt. saraswati under the hindu law, but bansidhar's collaterals took possession of the estate and mt. saraswati never got possession. in her lifetime she never sued to recover possession she died in 1920. the present plaintiffs are the sons of mt. saraswati and are, under the hindu law, entitled to the estate in preference to the collaterals. the defendants are the representatives of the collaterals who took possession of the estate in 1894, and some of the defendants are transferees from them.2. the plaintiffs' suit was instituted in 1923, and they claimed that the cause of action in their.....
Judgment:

Sulaiman, Ag. C.J.

1. In this case Bansidhar, the last male owner, died in 1878 and was succeeded by his widow Mt. Gumane. Mt. Gumane died in 1894. On her death the estate devolved on their daughter Mt. Saraswati under the Hindu law, but Bansidhar's collaterals took possession of the estate and Mt. Saraswati never got possession. In her lifetime she never sued to recover possession She died in 1920. The present plaintiffs are the sons of Mt. Saraswati and are, under the Hindu law, entitled to the estate in preference to the collaterals. The defendants are the representatives of the collaterals who took possession of the estate in 1894, and some of the defendants are transferees from them.

2. The plaintiffs' suit was instituted in 1923, and they claimed that the cause of action in their favour accrued in 1920 when Mt. Saraswati the daughter died. Among other pleas the defendants raised the plea that the suit was barred by time. This plea was overruled by the Court below and the claim was decreed. The defendants preferred an appeal to this Court which came up for hearing before a Division Bench. In consequence of certain observations of their Lordships of the Privy Council in the case of Vaithialinga Mudaliar v. Srirangath Anni , the Bench has referred the following question to this Pull Bench:

To what extent, if any, and under what circumstances will adverse possession, proved as against a Hindu female heir, bind the reversioners?

3. Whenever any question of limitation is raised it leads to clear thinking if at the outset it is settled which article is applicable. The present case is governed by Act 9 of 1908. On behalf of the plaintiffs reliance is placed on Article 141, whereas the defendants' advocate relies on Article 144. He also relies on provisions of Section 28, Lim. Act. It is conceded that no other article or section is applicable.

4. Now apart from any rulings Article 144 cannot in terms apply if the suit is otherwise specifically provided for. It is a general article which is applicable when there is no other special provision. It is, therefore, clear that if the case falls within the terms of Article 141, Article 144 is wholly inapplicable, and the date when the defendants possession became adverse would not be material. Now Article 141 undoubtedly applies to a suit brought by a Hindu who is entitled to possession of immovable property on the death of a Hindu female. The plain tiff's are Hindus and are governed by the Hindu law. Under that law they were entitled to possession of the estate on the death of Mt. Saraswati. The suit is brought after her death and within 12 years of it. Prima facie, therefore, Article 141 governs this case.

5. I do not attach any importance to the argument that the word 'entitled' in, this article necessarily means 'entitled under the law and not extinguished by limitation.' Similarly I have no hesitation in repelling the argument that this article applies only to a suit brought by the first Hindu entitled to possession on the death of the first female heir. The contention is that limitation began to run under this article from 1894, the date of the death of Mt. Gumane, not only against Mt. Saraswati, but also against all future reversioners. In my opinion on the language of this article such a contention is wholly untenable. The period began to run against Mt. Saraswati in 1894, but there is a fresh period which started against the present plaintiffs on the death of Mt. Saraswati in 1920.

6. Now it must be borne in mind that the provision as contained in Article 141, Lim. Act, 1908, did not find any place in the Limitation Act 14 of 1859. The first time when a similar provision was introduced was in Act 9 of 1871. Article 142 of that Act was similarly worded, except that instead of the word female 'we had the word' widow.' The word 'female' was substituted in Act 15 of 1877, Article 141. That word has been repeated in the present Act.

7. There being no such provision in the Act of 1859, and the only section applicable being Section 1, Cl. [1894] 21 Cal. 8 which was the general article for suits for recovery of immovable property, it is not surprising that the Courts held that adverse possession against a Hindu female for over 12 years extinguished the title of the reversioners completely. This was clearly laid down in the case of Golukmonee Dabee v. Degumber Dey [1852] 2 Boul. Rep. 193, Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty [1868] 9 W.R. 505 and Aumirtolall Bose v. Rajoneekant Mitter [1875] 2 I.A. 113

8. The last-mentioned case though decided by their Lordships of the Privy Council in 1875, had commenced even before 1859, and the question of limitation had to be determined according to the old law. After the passing of the Act of 1871, indeed, after the coming into force of the Act of 1877, a Full Bench of this High Court in the case of Ram Kali v. Kedar Nath [1892] 14 All. 156, held that Article 141 was applicable to a suit brought after the death of a Hindu widow, and that limitation of 12 years ran from the date of her death.

9. After this came the Privy Council case of Lachhan Kunwar v. Manorath Ram [1894] 22 Cal. 445. I shall discuss this case later on. After this pronouncement a Division Bench of this Court in the case of Tika Ram v. Shama Charan [1897] 20 All. 42, without discussing the Privy Council case at any length, held that it had impliedly over ruled the previous Full Bench case, Then came another Privy Council case. Runchordas Vandravandas v. Parvatibai [1899] 23 Bom. 725, which also I shall discuss later.

10. After this last pronouncement a Division Bench of this High Court in the case of Amrit Dhar v. Bindeshri Prasad [1901] 23 All. 448 held that the Full Bench case of Ram, Kali v. Kedar Nath [1892] 14 All. 156, had not been overruled by their Lordships of the Privy Council in the case of Lachhan Kunwar v. Manorath Ram [1894] 22 Cal. 445. Since the case of Amrit Dhar v. Bindsshri Prasad [1901] 23 All. 448, the view which has consistently prevailed, not only in this High Court, but in all the other High Courts, has been that Article 141, and not Article 144, governs suits brought by Hindu reversioners who became entitled to the estate on the death of a limited female owner.

11. The facts in Lachhan Kanwar's case [1894] 22 Cal. 445 ware as follows.: Mangal Singh died in 1858 leaving a widow Jit Kunwar and a son Pahlad Singh. Pahlad Singh died in 1861 leaving a widow Lachhan Kunwar. There was no doubt that Lachhan Kunwar, although under the Hindu law she was entitled to the estate, never got possession. About the year 1875 Lachhan Kunwar sued Jit Kunwar to recover possession. This suit was admittedly dismissed on the ground that her claim was barred by limitation. In this suit Jit Kunwar had pleaded that she had held adverse possession over the property ever since Mangal Singh's death. On the death of Jit Kunwar, Lachhan Kunwar along with certain reversioners instituted a suit claiming possession against certain transferees from Jit Kunwar. It is obvious that Lachhan Kunwar, a Hindu female entitled to the estate, was herself one of the plaintiffs and was alive Article 141, Lim. Act, could, therefore, not possibly have been invoked by the defendants. It is also clear that the reversioners had no locus standi to sue unless they were entitled to come in as reversioners of Mangal Singh. The case put forward on behalf of the plaintiffs was that Mt. Jit Kunwar, when she remained in possession, acquired a Hindu widow's estate and did not become an absolute full proprietor, and accordingly on her death her limited estate devolved on the plaintiffs. Their Lordships held that having regard to the claim put forward by Mt. Jit Kunwar in the previous litigation her possession had been that of an absolute full proprietor. This was the finding of the Judicial Commissioner which was accepted by their Lordships.

12. Assuming that Jit Kunwar's possession had not begun in the lifetime of Pahlad Singh, which perhaps was doubtful, Lachhan Kunwar's claim could not have been decreed as her previous suit had already been dismissed, and the reversioners could not have come in unless Mt. Jit Kunwar was holding merely a Hindu widow's estate. It is therefore obvious that this Privy Council case in no way overruled the previous Full Bench case of our High Court. It was wrongly thought in Tika Ram's case [1897] 20 All. 42 that case had been overruled

13. In Runchordas' case [1899] 23 Bom. 725 the suit was brought after the death of a Hindu widow challenging the validity of the bequests of the last male owner. Two of the issues that were settled were, whether the suit was barred by limitation and whether the bequests ware void. The High Court, both on the original and appellate side, held that the bequests were void but that the suit for immovable properties was not barred by limitation. Their Lordships of the Privy Council held that the objects of the bequests were too vague and uncertain for the administration of them to be under any control. Their Lordships then remarked: 'It is therefore necessary to decide the question of limitation.' They then proceeded to examine the provisions of Act 15 of 1871, and laid down in unmistakable terms that Article 144 is not applicable when the suit is otherwise specially provided for, and that the article applicable to a suit for possession of immovable property was Article 141 and that for movables was Article 120. Referring to the argument that under Section 28, Lim. Act, the right had been extinguished, their Lordships gave the answer that the period limited was not determined.'

14. This case has since then been the foundation of the applicability of Article 141. It re-affirmed the view expressed in Ram Kali's case [1892] 14 All. 156, and that view was never challenged till 1925. It was in that year that the judgment in the case of Vaithialinga v. Srirangath Anni was delivered by their Lordships of the Privy Council, and we have to consider whether the effect of the observations contained therein is to overrule the previous case law. As there is some difference of opinion amongst us, I must consider this Privy Council case at some length.

15. Arunachala was the last male owner who died in 1849 leaving a widow Chokkammal. Chokkammal purported to adopt Arunachala's brother, whose widow Murugathal in her turn adopted his nephew. On the death of this nephew Murugathal claimed to succeed as a Hindu female. On the other hand, if there was no valid adoption, the Hindu widow's estate remained in Chokkammal. From the year 1862, when the adoption had taken place, Chokkammal was out of possession till 1884, when Murugathal was in possession as the adoptive mother. In that year Chokkammal forcibly dispossessed Murugathal. In 1887 Murugathal sued Chokkammal setting up the adoption. It was admittedly held that the adoption was invalid, and Murugathal's suit was decreed on the finding that there had been adverse possession for over 12 years against Chokkammal. On Chokkammal's death in 1902, the reversioners to the estate of Arunachala sued in 1905 for possession. The pleas raised in defence were those of res judicata and limitation. The High Court at Madras held that the principle of res judicata did not apply, but that the suit was barred by limitation.

16. After setting forth the facts of the case and quoting from Mr. Mayne a passage to explain the position of a Hindus widow, their Lordships remarked that she represents the estate in suits brought by her or against her for possession of the estate or any part of it, and' she and the reversioners are equally bound by a final decree in a suit fought out according to law which is not collusive or fraudulent. Their Lordships then remarked that in the litigation of 1887 although Chokkammal was personally interested in defeating Murugathal's claim, she did, in fact and in law in that suit, represent the estate as well as her own interests as a Hindu widow. Their Lordships then referred to the protracted argument which had been submitted to the Board as to whether adverse possession against a widow in possession of an estate for a Hindu widow's interest bars a reversioner. Their Lordships remarked that it was not necessary, in the view which would be later announced by the Board on the question of limitation, to make any formal pronouncement upon this point and their Lordships thought it convenient to refer to the authorities that had been cited. Their Lordships first referred to the case of Goluckmonee Dabee v. Degumber Day [1852] 2 Boul. Rep. 193 and then to the case of Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty [1852] 2 Boul. Rep. 193 both of them being cases decided before the Limitation Act of 1871. Their Lordships then quoted the well-known passage from the case of Katama Natchiar v. Rajah of Shivagunga [1863] 9 M.I.A. 539 (P.C.), which has been described as laying down the rule, in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.). No doubt, for the purpose of that case, it was not absolutely necessary to lay down that rule but there is no doubt that rule was laid down after full 'consideration, and that rule has been applied since then.

17. Inasmuch as there has been 'considerable controversy as to the exact rule which was laid down in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) in the passage quoted at p. 894. I must here point out that all that was remarked in that passage was that the whole estate for the time vests in a Hindu widow absolutely for some purposes, though, in some respects, for a qualified interest, and that the principle which has prevailed in England as to tenants in tail representing the inheritance would seem to apply to the case of a Hindu widow, and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.

18. It is noteworthy that there is no express mention of adverse possession against a widow being good as against the reversioners, nor is there any clear reference to any rule of limitation. Their Lordships, after quoting the passage, then describe it as 'the declaration as to Hindu law.' I am therefore wholly unable to accept the contention on behalf of the appellant that the rule laid down in this passage was the rule that adverse possession against a 'Hindu widow for over 12 years extinguishes the rights of the reversioners. The only rule laid down was that a bona fide decree against her was binding on the reversioners, and this is the rule which must be taken to be mentioned when an expression like the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) is used.

19. At the Bar the passage quoted from Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) had been actually objected to on the ground that it was obiter. Their Lordships accordingly considered it necessary to refer to cases showing that the doctrine there set forth was in accordance with the course of judicial decisions.

20. They first referred to the case of Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty [1852] 2 Boul. Rep. 193 which was undoubtedly one where a trespasser had taken adverse possession of the estate against the widow. The passages quoted from the judgments of the learned Judges of the Full Bench certainly show that they held that the possession held adversely against the widow was adverse against the reversioner, but this inference was supposed to follow from the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), that a decision fairly arrived at without fraud or collusion in the presence of a Hindu widow in possession, bound the reversioner.

21. The decision of the Pull Bench was, cited and affirmed in the case of Aumirtolall Bose v. Rajoneekunt Mitter [1875] 2 I.A. 113 but in order to appreciate the effect of those remarks it is necessary to bear in mind the fact that those cases were decided before Act 9 of 1871 was passed. In the absence of any provision similar to that now contained in Article 141, I may with respect say that it was the only conclusion to which the Courts could come.

22. Their Lordships then referred to the cases of Jugul Kishore v. Jotindro Mohun Tagore [1884] 10 Cal. 985, Pertabnarain Singh v. Trilokinath Singh [1885] 11 Cal. 186, and Hari Nath Chatterjee v. Mothurmohun Goswami [1894] 21 Cal. 8, where the question of adverse possession did not arise but in two of them decrees had been obtained against the widow. Their Lordships quoted the remark of Lord Watson that before a reversionary heir could sue within 12 years from the time that his right to possession accrued he

must show that the new law gives a right of action to a reversioner notwithstanding that the widow's right of possession has been extinguished by the decree.

23. Their Lordships then discussed the case of Risal Singh v. Balwant Singh A.I.R. 1918 P.C. 87. There the widow had first brought a suit for a declaration that an alleged adoption by her of Bulwant Singh was wholly void and ineffectual. The High Court held that she was personally estopped from challenging the adoption and dismissed the claim. Their Lordships of the Privy Council affirmed that decree in 1912. On the widow's death the reversioner Risal Singh sued Bulwant Singh again for possession of the property. Their Lordships affirming the view of Banerji, J. held Rani Dharam Kuar in her suit against Bulwant Singh, did, not withstanding the personal estoppel under which she laboured, represent the estate on the question of fact as to whether Bulwant Singh had or had not been validly adopted, and that she represented the estate within the meaning of the rule in Katama Natchiar v. Raja of Shivagunga [1863] 9 M.I.A. 539 (P.C.),

24. Thus the binding character of a decree against the widow was re-affirmed.

25. At the Bar it was apparently argued that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) had not been universally applied, and it was asserted that principle might have been applied and had not been applied in the case of Runchordas v. Parvatibai [1899] 23 Bom. 725. Their Lordships proceeded to consider the facts of Runchordas case [1899] 23 Bom. 725 and pointed out that the main question was as to the gift for charitable purposes being void for vagueness and uncertainty. Their Lordships did not quote the discussion of the Limitation Act in Ruunchordas case [1899] 23 Bom. 725 which I have quoted above, but quoted a passage where the Board had remarked that it was not necessary to consider what might have boon the case if the widows had themselves been suing. The final conclusion at which their Lordships arrived is at p. 903:

It does not appear to their Lordships how the rule in the Shivagunga case [1863] 9 M.I.A. 539 (P.C.) could have been applied in the case then before the Board.

26. The facts in the case of Runchordas [1899] 23 Bom. 725 undoubtedly made the rule in the case of Shivagunga [1863] 9 M.I.A. 539 (P.C.) inapplicable. There was accordingly nothing in the argument that rule might have been applied and was not applied.

27. Having considered all these cases, their Lordships remarked at p. 904:

The result of the cases to which their Lordships have referred shows, in their opinion, that the Board has invariably applied the rules of the Shivagunga case [1863] 9 M.I.A. 539 (P.C.) as sound Hindu law where that rule was applicable.

28. Their Lordships again repeat the expression 'sound Hindu law.' I, therefore, take it that no question of limitation or adverse possession was included in that rule. Had their Lordships intended to lay down that the result of the authorities was that adverse possession against a Hindu widow was good adverse possession against a reversioner, their Lordships would, in the next sentence, have held that suit was barred by Article 144, Lim. Act. But their Lordships avoided saying so.

29. On the other hand they proceeded to consider the effect of Article 129, Act 9, of 1871, and remarked that it had been held in the case of Jagadamba Chaodhrani v. Dakhina Mohun Roy [1886] 13 Cal. 308, that article related to all suits in which the plaintiff cannot succeed without displacing an apparent adoption by virtue of which the defendant is in possession. Their Lordships then held that Act 9 of 1871 did not give to a reversioner, whose right to sue for possession accrued upon the death of a Hindu widow, any further time than the 12 years which was given by Article 129 of that Act. They then remarked that the period of limitation allowed by that article expired in 1874 and before Act 15 of 1877 came into force. Article 129 of the Act of 1871 prescribed 12 years for a suit to establish or set aside an adoption. Such a provision was omitted from the Act of 1877. In lieu of it Article 118 was introduced, which governed declaratory suits. Their Lordships of the Privy Council held that time had run out before 1877 under Article 129, which was applicable, because the plaintiff could not sue for possession without displacing the apparent adoption. Thus their Lordships disposed of the case on a ground totally different from the plea that adverse possession against the widow was adverse possession against the reversioner.

30. Further, if their Lordships had intended to lay down finally that a decree against a widow based on adverse possession only was binding on the reversioners, their Lordships would have at once remarked that the suit before them was barred by the principle of res judicata, as in that case a decree had been obtained against Chokkammal on the basis of the adverse possession of Murugathal. But their Lordships refrained from deciding that point, and at p. 905 considered it unnecessary to express any opinion on the application of the principle of res judicata.

31. On an examination of the judgment, it is clear to my mind that their Lordships did not lay down that Article 141 Lim. Act, was inapplicable, or that the rule laid down in Runchordas case [1899] 23 Bom. 725, which bad affirmed the view of this Court in the case of Ram Kali [1892] 14 All. 156, was no longer good law.

32. I have so far discussed this case on my view that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) was not a rule of limitation or adverse possession, but a rule of Hindu law or procedure that the estate vested in the widow and that a decree against her, if fairly obtained, was binding on the reversioners. Even if I were to assume, which I by no means do, that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) was a two fold rule, relating both to the binding character of a decree against the widow, and the adverse possession against her being good as against the reversioners, I fail to see why the legislature cannot, by a subsequent amendment of the Limitation Act, destroy the effect of one part of the rule while leaving intact the other part. There is nothing illogical in that. By the enactment of Article 141 the legislature has undoubtedly given 12 years to reversioners from the death of the female. This was obviously to remove a great hardship which reversioners suffered. While the widow was alive they could not compel her to recover possession from trespassers, nor could they sue for a declaration of their title against such trespassers (excluding those deriving title under alienation by a widow). Their rights before 1871 used to be extinguished completely after the lapse of 12 years and they were helpless in the matter. It was to remove this difficulty that the legislature intervened. The rule of limitation, even assuming that such a rule was laid down in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), must be deemed to have been superseded by the enactment in the Limitation Act. That part of the rule can no longer be said to be in force. Of course, I have endeavoured to explain that in my opinion the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) was not a rule of limitation or adverse possession at all, and on that view I maintain that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) is still applicable, but that it does not touch the present case.

33. My answer to the question referred to us is that where a widow has entered into possession as a Hindu widow and has either voluntarily parted with possession or been dispossessed against her consent, a suit by the reversioner brought for possession after her death is governed by Article 141 and not by Article 144, and having been brought within 12 years of the death of Mt. Saraswati, is not barred by limitation.

Mukerji, J.

34. This is a reference to the Full Bench by a Division Bench of this Court for the decision of a question which has been formulated in the following language:

To what extent, if any, and under what circumstances will adverse possession, proved as against a Hindu female heir, bind the reversioners.

35. The facts behind this reference briefly are these: One Bansidhar died in 1878 leaving considerable property. He was succeeded by his widow Mt. Gumane, who died in 1894. On her death her daughter Saraswati succeeded to her father's property, but she did not take possession of a portion of the property, although the same was in her mother's possession when she died. Saraswati died in 1920 and in 1923 the plaintiffs,, her two sons, claimed the property. It has been argued on behalf of the defendant that his possession between 1894 and 1920, having extended for over 12 years, extinguished Saraswati's right to the property and, therefore, the plaintiffs right to the same. The case of Vaithialinga Mudaliar v. Srirangath Anni has been relied upon for the defendants.

36. Article 141, Lim. Act of 1877, was in force when Bansidhar died. This rule of law has remained unchanged up to this date, although Act 9 of 1908 has displaced the older Act of 1877. Article 141 Lim. Act, 1877, read as follows: [see page 568 Ibid].

37. Article 141, Schedule 1, Act 9 of 1908, is exactly in the same language. Under the law, therefore, as it stands, the present suit is by 'a Hindu,' for possession of immovable property, instituted on the death of a Hindu female, and by one claiming to be entitled to possession on the female's death. The cause of action would arise on the death of the female, provided, of course, the plaintiffs are entitled to possession. The title referred to in Col. 1, of Article 141 must be a title existing apart from the question of limitation. For, it is a rule of limitation that is being provided by Article 141 and there could be no benefit in providing a rule if it is to be said that

the suit can be maintained only if the plaintiff is not barred by time.

38. To put the same thing in other words: if 12 years have been provided for a suit by a Hindu, entitled under the Hindu law to succeed to the property, on the death of a Hindu female, it must be held that the suit is within time, whenever the suit is within 12 years of the death of the female. It may be that the claimant is barred on some ground other than the ground of limitation. For example, his claim may be barred, because he has sold away his rights before the institution of the suit or he may be barred, say, by any previous litigation, although he was himself no party to it. On the face of the existing law, therefore, it must be taken that the plaintiffs' suit must be within time because it has been instituted within three years of Saraswati's death and the plaintiffs right to sue accrued under the Hindu law, on the death of their mother.

39. This being undoubtedly the law, as read without the assistance of any authority we have to see whether the case in Vaithialinga Mudaliar v. Srirnigath Anni , quoted above has ruled otherwise.

40. Before we examine the case mentioned, it will be interesting to see what was the law of limitation before the Act of 1877 came into force. An earlier Act on Limitation was Act 9 of 1859. It was a short Act and provided a rule of 12 years for suits for recovery of possession of immovable property and the starting point of limitation was the rise of the cause of action. Under this state of the law, an adverse possession started against a Hindu female in possession of property as an heir to the last male owner, will, necessarily, bar a reversioner's suit if the possession has continued for more than 12 years. This is important to bear in mind. When the Act of 1871 (Limitation) came into force, an article was introduced which gave the reversioner 12 years to sue, from the date of the death of the Hindu widow of the last male owner. It did not lay down what would be the case where a daughter was in possession. Then came into operation the Act 15 of 1877 and I have already quoted the provision of that Act. Hindu reversioner for recovery of property, on the death of the last female heir, was governed by Article 141, Lim. Act, 1877.

41. The question now is whether their Lordships of the Privy Council in the case of Vaithialinga Mudaliar v. Srirangath Anni have said anything by which we are to understand that they were laying down a contrary law.

42. It would be necessary to examine the facts in the aforesaid Madras case. Briefly, the last male owner Arunachala died in 1849 leaving a widow Chellammal, who lived till 1902. The widow of Arunachala adopted her husband's younger brother Alagasundara. The adoption could not be valid under the Hindu law, because at the date of the adoption Alagasundara a parents were dead and there was nobody to give him away in adoption. Alagasundara, however, was pub in possession and died in 1864, two years after his adoption. He left him surviving a widow Murugathal, who adopted Thiagaraja. Thiagaraja died in 1881 leaving a widow who died in 1882. Thiagaraja, and alter him his widow, were in possession, and on the former's death his widow's name was recorded.

Like suit (for possession of immovable property by a Hindu or 12 years When

entitled to the possession of an immovable property on the female dies.

death of a Mahomedan Hindu or Mahomedan on female.

43. The case in Runchordas Vandravandas v. Parvatibai [1899] 23 Bom. 725 was decided by their Lordships of the Privy Council when Act 15 of 1877 was in force. In this case, on the death of certain ladies, the wives of the last male owner, a claim for recovery of possession was made against certain persons, who were in possession under an invalid document executed by the last male owner. It was argued that if the ladies had been alive, and had sued for recovery of possession, they would have been barred by the adverse possession of the defendants and that, therefore, the claim by the plaintiffs would also be time barred. Their Lordships of the Privy Council pointed out two things. They pointed out that Article 141, Lim. Act, applied to the case and that the plaintiffs were claiming not through the widows of the last male owner, but through the last male owner himself. This case was taken to settle for India, the law, and to lay down that a suit by a The widow having died in the year 1882, the adoptive mother of Thiagaraja took possession of the property, for a Hindu mother's estate (in the judgment, 'widow's,' see p. 890), but was ejected, in 1884, by Chokkammal, her mother-in-law. Murugathal, the daughter-in-law, thereupon brought a suit for possession of the property in 1887 against her mother-in-law, and although it was found that, for the reasons given above, the adoption was bad, the suit was decreed on the ground that the plaintiff and her predecessors-in-title had acquired a title to the property by adverse possession against Chokkammal. It was found that the suit of 1837 was a genuine suit and not a collusive one and was regularly fought out in the Courts. Three years after the death of Chokkammal, the reversioners to the estate of Arunachala (his brother's sons) brought the suit for recovery of the property against persons who were in possession under Murugathal.

44. The suit was dismissed by the Courts in India and their Lordships of the Privy Council upheld the decree on the sole ground that it was barred by limitation because Article 129, Sch.. 2, Act 9, 1871 applied to the case. It appears that under the law in force when Alagasundara was adopted it was necessary for anybody who disputed the adoption to bring a suit within 12 years of the adoption and, in the case of a failure to bring such a suit, any subsequent suit to claim the property on the displacement of the adoption used to be held as time barred. It will be remembered that the adoption of Alagasundara took place in 1862 and no suit to contest it was brought within 12 years of the adoption. The adoption therefore stood in the way of the plaintiffs' success. This was the sole ground on which the decree of the Courts in India was actually upheld by their Lord ships of the Privy Council.

45. Two other questions were argued before their Lordships, and they were, firstly, that the adverse possession of Alagasundara and his successors-in-title, being against Arunachala's widow Chokkammal and having extended for over 12 years, was effective enough to bar out the reversioners of Arunachala. The second point argued was that the decision obtained by Murugathal against Chokkammal in the litigation of 1887 operated as res judicata against the plaintiffs. Their Lordships expressly professed not to decide either of the two points. At p 905 of the report dealing with the question of res judicata their Lordships say:

On that subject, their Lordships do not consider it necessary to express an opinion.

46. Dealing with the argument of adverse possession, their Lordships say at p. 893:

A protracted argument was submitted to the Board on the question whether under Hindu law adverse possession against a widow in possession of an estate for a Hindu widow's interest bars the reversioner. While it is not necessary in the view which will later be announced by the Board on the question of limitation in this case, to make any formal pronouncement on this point it may be convenient to say that the authorities referred to were as follows:

47. Having expressly stated that their Lordships would not make any formal pronouncement on the question of the effect of adverse possession against a Hindu widow their Lordships quoted two cases where it was expressly held by the Calcutta High Court that an adverse possession against a widow was adverse possession against the reversionary heir. Then their Lordships quoted several other cases in which there was no discussion as to the question of adverse possession, but there was a discussion, how far a judgment obtained against a widow was binding on the reversionary heir. As they had already stated, their Lordships, after a conclusion of the review of the cases, did not pronounce any opinion as to the effect of adverse possession against the widow, as against the reversioner. It appears that at their Lordships' Bar, the case of Katama Nachiar v. Raja of Shivaganga [1863] 9 M.I.A. 539 (P.C.), was quoted to establish that under the Hindu law, a widow represented not only her qualified interest in the estate but also, for most purposes, the absolute estate.

48. Evidently, the reason for the quotation of this proposition was that if the widow was representing the estate, she was representing it when a stranger had trespassed and was holding adversely and that, therefore, by completion of 12 years adverse possession, the trespasser would have a title not only against the widow but also against the reversioner. When the case of Katama Natchiar [1863] 9 M.I.A. 539 (P.C.) was quoted at their Lordships' Bar, the other side argued that the declaration of Hindu law by their Lordships, in that case, was an obiter. Their Lordships thereupon quoted cases (of two classes already mentioned) to show that although it was the case that the dictum was obiter, it had been followed in subsequent oases. At the top of p. 895 of the report, their Lordships say

The following cases, however, were referred to as showing that the doctrine there set forth was in accord with the course of judicial decisions.

49. Having said so, their Lordships considered certain cases from p. 895 to the top of p. 904, and concluded, in para 1, at p. 904, as follows:

The result of the oases to which their Lordships have referred shows, in their opinion, that the Board has invariably applied the rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) as sound Hindu law where that rule was applicable.

50. It was argued before us that although their Lordships did not profess to decide the effect of adverse possession and although the 'result' quoted at p. 904 was the result viz., the rules of the Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) had been applied as sound Hindu law, it must be taken that their Lordships, by necessary implication wore deciding the effect of adverse possession against a Hindu widow.

51. To rightly understand this argument we shall have to see first, what was the dictum in Katama Natchiar's case [1863] 9 M.I.A. 539 (P.C.) which was quoted by their Lordships and what were the cases they relied upon. In Katama Natchiar's case [1863] 9 M.I.A. 539 (P.C.) there was no question of adverse possession. The question arose whether a decree obtained against a widow would or would not bar the reversioner from re-agitating the subject-matter of the decree, Their Lordships remarked:

For assuming her to be entitled to the zamindari at all, the whole estate would for the time be vested in her absolutely for some purposes, though in some respects, for a qualified interest.... It is obvious and there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.

52. It will be noticed, as I have already said, there was no question of adverse possession against a Hindu widow. Their Lordships laid down, as they themselves say, by the dictum, a declaration as to Hindu law, namely, a widow, for some purposes, absolutely represented the estate and, in some respects, a qualified interest. In the case of a litigation, their Lordships further laid down, chat the widow would represent the entire estate, if the decree was fairly and properly obtained against her. It was on this statement of law, viz., the widow represented the estate absolutely for some purposes' that the argument was sought to be built that an adverse possession must be against the estate itself so as to bind the reversioners, after the death of the widow. To support; this argument, two cases from the Calcutta High Court were cited, where it was held, on the basis of this dictum, that an adverse possession against a widow was adverse against the entire estate. In Nabin Chander Chuckerbutty v. Issur Chander Chuckerbutty (2-a), the opinion was expressed by some, of the learned Judges, that it followed from the dictum in the Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) that adverse possession against a widow was adverse possession against the reversioner, claiming the full estate. The other cases quoted, all, related to litigations to which the widow was a party.

53. It will be observed that the Calcutta cases were decided under the law as it stood under Act 14 of 1859 and that Act did not provide for any separate rule for reversioners. When there was a trespass against a widow, a suit had to be brought within 12 years of the date of the commencement of trespass, no matter whether the suit was by the widow or by the reversioner. The Calcutta cases were therefore rightly decided (with all respect) under the then existing law. The other cases quoted at their Lordships' Bar, in Vaithialinga Mudaliar v. Srirangath Anni , were cases in which a widow was a party to decrees. The dictum in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), I must again point out, related to a decree alone and was absolutely silent as to adverse possession. Their Lordships never indicated in Shivagunga case [1863] 9 M.I.A. 539 (P.C.) whether, in the case of an adverse possession against a widow, she would represent the estate absolutely' or 'for a qualified interest.' If, therefore, the Shivagunga case [1863] 9 M.I.A. 539 (P.C.) never said anything as to the effect of adverse possession against a widow, can we say that, by affirming the principle laid down in that case, their Lordships, by necessary implication, supported the argument (as to which they expressly refrained from pronouncing any opinion) that in the case of an adverse possession the widow represented the whole estate? Nobody had the courage to argue that a widow, by making a transfer without legal necessity, could bind the reversioner. If she could not bind by an overt act, how can it be said that she could bind the reversioners, either by her laches (in allowing a trespasser to take possession of property and not trying to recover it) or even by an attempt, which did not amount to a claim in Court, within the purview of the dictum in the Shivagunga case [1863] 9 M.I.A. 539 (P.C.)?

54. Let us assume, for a moment, that a necessary result of the dictum in the Shivagunga case [1863] 9 M.I.A. 539 (P.C.) was that an adverse possession against a widow would operate as such against reversioners, however, late they might come, and although they had no interest in the property, in the lifetime of the widow. Is it not open tons to suppose that the legislature intervened and by enacting Article 142 in 1871 and Article 141 in 1877 and 1908 (in the Limitation Acts) nullified the effect of that dictum? When the legislature expressly says that a reversioner is entitled to maintain a suit for possession of the immovable property within 12 years of the death of the female heir, is it open to anybody to say that the reversioner would be entitled provided his title is not already lost by adverse possession? Loss of title by adverse possession is a question of limitation and is dealt with by the statute of limitation. What, then, would be the necessity of making a rule of limitation and saying that a man has 12 years time from a particular date, if we are to add, ''provided he is not barred by time.'

55. Going back then to the case in Vaithialinga Mudaliar v. Srirangath Anni , can we take it, that their Lordships held by implication (admittedly not expressly) that the reversioners were barred by limitation, even before their title to the property accrued? It is noteworthy that their Lordships in Vaithialinga Mudaliar v. Srirangath Anni , did not even refer to Article 141, Lim. Acts 1877 and 1908. Are we, then, to assume that their Lordships of the Privy Council and the learned Counsel at the Bar were ignorant of the existence of these provisions of the Indian law, relating to a suit by a reversioner? The obvious answer is, their Lordships were answering the only question that they did answer, after pages of consideration of authorities, namely whether the dictum in the Shivagunga case [1863] 9 M.I.A. 539 (P.C.) was good or bad law. They never professed to decide and they never even by implication, decided the question of limitation, based on adverse possession.

56. The case of Ranchar Das [1899] 23 Bom. 725 referred to above, in which a question of limitation had been decided was cited before their Lordships. While they pointed out that case never afforded an occasion for the application of the dictum in Shivaganga case [1863] 9 M.I.A. 539 (P.C.), their Lordships said nothing on the question of limitation. This supports my view that the question of limitation as based on adverse possession, was not being discussed.

57. For the foregoing reasons I am of opinion that the answer to the question propounded to us would be:

An adverse possession against a Hindu female heir will not be effective against and binding on the reversioners.

Boys, J.

58. The question referred to us by a Division Bench is broadly stated thus:

To what extent, if any, and under what circumstances will adverse possession, proved as against a Hindu female heir, bind the reversioner?

59. The question was intended, and has been so considered by us, to be limited to the case of mere adverse possession where no decree had been obtained against the widow. It has for some years past, i.e., since the decision of their Lordships of the Privy Council in Ranchhordas v. Parbatibai [1899] 23 Bom. 725 been considered that time did not begin to run against the reversioners, where there was mere adverse possession (and no decree) against a Hindu female heir, until the death of the lady when the reversioners became entitled to possession, reference of course being made to Article 141, Lim. Act.

60. On 2nd April 1925, however, the case Vaithialinga v. Srirangath , was decided and in that judgment there are at great length certain observations of their Lordships which in the opinion of one of the members of the Division Bench that referred this case called for serious consideration in the connexion just mentioned.

61. Broadly speaking the preliminary question then arises:

Do the observations of their Lordships throw any doubt on the correctness of the decision in Ranchhordas' case [1899] 23 Bom. 725, or, though not throwing doubt on the correctness of the decision, in the particular circumstances of that case do the observations, while deliberately refraining from indicating what might be the decision in other sets of circumstances, indicate that too wide a scope has been given to that case in the cases that purport to have followed it and if so what effect should be given to those observations?

62. The observations are on the face of them obiter dicta, but as was remarked in the referring order of one of the Judges (myself):

The value to be attached to an obiter dictum may be very slight indeed where it is thrown out in passing and where the authority pronouncing it is not one of the highest, or at any rate higher, jurisdiction. In other cases the pronouncement, though in form obiter dictum, may have been reached after very full consideration, and it may be one pronounced by the very highest authority. In such cases there can be no question as to the respect with which it must be treated. In the present case both these characteristics are present.

63. Neither of my learned brothers sitting with me to hear this matter would, of course, dissent from the above proposition, but as they place a different interpretation on those observations it is necessary for me 'to state the view that I take.

The contention for the appellants before us was that the observations of their Lordships (at pp. 893-904) do by implication throw doubt on the correctness of the decision in Ranchhordas' case [1899] 23 Bom. 725. At the hearing I was disposed to feel that there was some force in this contention, but a careful analysis of the whole case leaves me unable to accept it.

64. But that same analysis leads me to the conclusion that, while the correctness of the decision on the particular facts of the case was not doubted, their Lordships did vary clearly and upon a very full consideration of the case stated a view of it which suggests very strongly that the case was only a decision upon the particular facts therein and is not, as it has in India been taken to be, authority for the general proposition that in the matter of mere adverse possession, where it has not culminated in a decree, the Hindu female heir does not represent the estate. The argument and my analysis suggest that live questions call for an answer:

(1) What was the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) which their Lordships declared at p. 904 to be sound law which had always been applied where applicable?

(2) Does the conclusion at which their Lordships arrived in regard to that rule in any way challenge the correctness of the decision in Ranchhordas' case [1899] 23 Bom. 725.

(3) Does the discussion of Ranchhordas' case [1899] 23 Bom. 725, in particular at pp. 901 to 901 suggest that case was wrongly decided?

(4) Does the discussion of Ranchhordas' case [1899] 23 Bom. 725, though not suggesting that the case was wrongly decided, in any way narrow the scope which has hitherto been attributed to that decision in India?

(5) In cases where it is pleaded that adverse possession against the widow binds the reversioner, by what principles should the answer be governed?

65. The fifth question is a paraphrase of the actual question referred to us; but it was not argued by counsel for the appellant on it becoming apparent that the majority of the Bench were against him on the first three questions.

66. The first three questions were not separately framed at the hearing, but counsel for the appellant dealt with them by a broad argument that generally the effect of the discussion of the authorities by the Board was to cast doubt on the correctness of the decision in Ranchhordas' case [1899] 23 Bom. 725.

67. The fourth question, as one quite distinct from the second and third, was not argued by counsel. I do not think I am doing any injustice to anybody, and certainly not to myself, when I say that I do not think the distinction between the second and third question on the one hand, and on the other the fourth was present to anybody's mind at the hearing; the distinction had not emerged and so the fourth question was not argued or discussed. But the distinction is important, the fourth question does arise and I will answer it.

68. I will deal with the five questions seriatim.

69. As to the first question, what was the rule approved at p. 904, it was urged that, while their Lordships declined to make any formal pronouncement on the effect of adverse possession they did state, as the result of their examination of certain cases, their opinion that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) had never been doubted, that 'the rule' to which they referred was understood by them to be a rule wide enough to include the proposition that in the case of mere adverse possession the widow represented the estate, that the fact that their Lordships were particularly considering this last proposition and whether it was included in the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) is indicated by the fact that their Lordships referred to cases in which (be it under an early Limitation Act) there was mere adverse possession and no question of a decree, and further by the fact that they did not dismiss Ranchhordas' case [1899] 23 Bom. 725 with the simple observation that it was not a case of a decree, that therefore, doubt had been thrown on the correctness of the decision in Ranchhordas' case [1899] 23 Bom. 725.

70. I will endeavour to state how the observations in question present themselves to me. It is unnecessary to state all of the facts of, Vaithialinga's case (1). Three questions arose which their Lordships might have thought it desirable to decide, two relating to limitation and one relating to so-called 'res judicata.' The first was a question of the effect, by reason of limitation, of an adoption having remained unchallenged. The second was a question of 'res judicata' founded on a decree obtained against the widow The third raised another question of limitation, how far twelve years adverse possession against a Hindu female heir barred the reversioners. It is the third with which we are concerned.

71. It may be taken as beyond doubt that their Lordships decided the case on the issue of limitation based on the adoption not having been challenged within the period provided by Article 129 (p. 904). It may also be taken as beyond doubt that they refused to decide the question of res judicata based on the decree obtained against the... widow, (p. 905). Their Lordships' judgment began at p. 888 with a statement of the facts of the case. At p. 892 they began to consider the general position of a Hindu widow, and at the top of p. 893 they state the proposition that the Hindu widow

represents the estate in suits brought by or against her for possession of the estate or any part of it, and she and the reversioners are equally bound by any final decree which a Court makes in such a suit provided that the suit was fought out according to law and was not collusive or fraudulent.

72. They then briefly hold that the suit which had been fought out between the widow and a trespasser had been bona fide contested by the widow and that in that suit she had represented the estate. But their Lordships did not hold that the reversioners were bound by the decree obtained against the widow. As I have already noted they did not decide the question of 'res judicata.'

73. On the same p. 883, after this brief statement of the law, they next referred to

a protected argument on the question whether under Hindu law adverse possession against a widow in possession of an estate for a Hindu widow's interest bars the reversioner.

74. They continue

While It is not necessary in the view which will later be announced by the Board on the question of limitation (i.e., based on Article 129) to make any formal pronouncement upon this point, it may be convenient to say that the authorities referred to ware as follows.

75. They then refer to a number of cases from 1852 to 1918 and conclude, after ten pages of discussion of these cases, by finding.

76. The result of the cases to which their Lordships have been referred shows, in their opinion that the Board have invariably applied the rules of the Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) Katama v. Rajah of Shivagunga [1863] 9 M.I.A. 539 (P.C.) as sound Hindu law where that rule was applicable.

77. The question in regard to this formal declaration of opinion is, what was the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) which the Board was approving as sound Hindu law where that rule was applicable.'

78. As a preliminary to answering this question it is essential to understand how the Board came to consider the point at all.

79. Counsel far the plaintiffs-appellants (p. 885) had to displace a finding of the High Court that the reversioners appellants were barred by Article 129, Lim. Act, and he attacked that finding; he relied on Article 141, Lim. Act; he contended that adverse possession against the widow did not bar the reversioners; and he relied on Ranchhordas' case [1899] 23 Bom. 725.

80. Counsel for the defendants-respondents (p. 886) contended that the reversioners were barred by Article 129, Lim. Act; and secondly that the principle of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) was not limited to the particular decision in that case, the effect of a decree based on title; and he distinguished Ranchhordas' case [1899] 23 Bom. 725 on the ground that it was a case of mere adverse possession and in it there was no question of a decree based on adverse possession.

81. Counsel for the plaintiffs-appellants in his reply (p. 887), in dealing with Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), had not to displace merely the particular decision in that case that a decree based on title bound the reversioners, for there was no such decree against him; he had not to displace any decision in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) that every decree, whatever it was based on, barred the reversioners for there was no such decision in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.). He had to discredit the main rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) that there were cases in which the widow represented the estate, for if that main rule were accepted it opened the way to argument that a decree based on title was only an illustration and that a decree based on adverse possession and even mere adverse possession were within that rule. He therefore, contended firstly (p. 887) that Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) only concerned decrees based on title, and, further (pp. 894 and 895) that the main rule declared in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) that there were cases in which the widow represented the estate was obiter.

82. He again relied on Ranchhordas' case [1899] 23 Bom. 725 to show that mere adverse possession would not bar the reversioners, and contended that the fact that the Board had not held the reversioners bound in that case by applying the rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) showed that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) was discredited.

83. It is apparent, then, that there was a strenuous contest between the two counsel, not only on the effect of Article 129, Lim. Act, but as to all the aspects of adverse possession whether culminating in a decree or not, and particularly as to the effects of the cases of Shivagunga [1863] 9 M.I.A. 539 (P.C.) and Ranchordas [1899] 23 Bom. 725. And we note the effort of counsel for the appellant to get rid of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) altogether as obiter, supported by the contention that the rule of that case had not been applied in Ranchordas's case [1899] 23 Bom. 725.

84. We have seen then, what form the discussion took which led to their Lordships saying that

protracted argument was submitted to the Board on the question whether under Hindu law adverse possession against a widow in possession of an estate for a Hindu widow's interest (sic) the reversioner.

85. The Board, having heard a protracted argument on the question of the effect of adverse possession, proceed to say that, though they will not make any formal pronouncement, it may be convenient to discuss some of the authorities referred to. It was suggested in argument, and on this much of it turned, in this Court, that in using the words 'adverse possession' when speaking of the question on which they declined to make a formal pronouncement their Lordships meant only 'mere adverse possession' (unsupported by any decree),' and that, therefore, the ensuing discussion in connexion therewith and the rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) finally approved must also have concerned particularly the effect of mere adverse possession. But our consideration of the arguments addressed to the Board shows that the whole field as to the effects of adverse possession, whether culminating in a decree or not, was covered in the argument. The refusal to make a formal pronouncement, then, clearly meant a refusal to make any formal pronouncement on the broad question of the effects of adverse possession. Moreover, after having said that they did not think it necessary to make any formal pronouncement, it is not in the least likely that they would make any formal pronouncement covering a decision of any sort as to the effect of adverse possession. The conclusion at which they arrived was that

the result of the cases to which their Lordships have referred shows, in their opinion, that the Board has invariably applied the rule of the Shivagunga case [1863] 9 M.I.A. 539 (P.C.) as sound Hindu law where that rule was applicable: (p. 904.)

86. What, then, was the rule which they held to have been invariably applied? It was not the limited proposition that a decree based on title was binding on the reversioners. In the first place in the case before them there was no question of a decree based on title. In the second place such a proposition would not be appropriately described as a rule, but as a particular decision based on some principle or rule. In the third place the oases discussed Goluckmonee [1852] 2 Boul. Rep. 193, Nobin Chunder [1868] 9 W.R. 505 and Runchordas, cases relating to mere adverse possession, are wholly irrelevant to any consideration of the effect of a particular decree.

87. The only other pronouncement in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), to which they have been referring, and it may properly be called a rule, was that there are certain situations in which a widow represents the estate so that acts by and against her bind the reversioners. In-arriving at giving the stamp of their approval to that rule reference to the cases of Goluckmonee [1852] 2 Boul. Rep. 193 and Nobin Chunder [1868] 9 W.R. 505 would be quite relevant, whatever might be the particular Limitation Act governing those cases, and equally so though they happened to be cases of mere adverse possession without any decree.

88. Counsel for the appellant had gone to the length of trying to discredit Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) altogether. He was told in effect:

It may be open to argument that mare adverse possession against the widow does not, or that decrees based on adverse possession do not, bind the reversioner (as to that we make no formal pronouncement), but we would not listen to argument in support of either proposition based on the contention that in no case does the widow represent the estate, that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) that she does in appropriate circumstances is not binding in law. It may be open to argument that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) was obiter dictum, but it has been followed. It is binding law. That is 'our opinion.'

89. I would answer the first question then by holding that the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) which their Lordships stamped with their approval as having been always applied where applicable was merely the general rule that there are certain cases in which the Hindu widow represents the estate.

90. As to the second question, did the approval of this rule challenge the correctness of the decision in Runchordas' case [1899] 23 Bom. 725 the answer is clearly in the negative. There is nothing in this confirmation of the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) that in certain cases the widow may represent the estate that touches at all the question whether adverse possession is or is not a matter in which the widow may represent the estate.

91. The third question is did their Lordships in the course of the discussion throw any doubt on the correctness of the decision in Runchordas' case [1899] 23 Bom. 725? Counsel for the appellants had urged that in Runchordas' case [1899] 23 Bom. 725 the Board could have, applying Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), held that the widow represented the estate in a matter of adverse possession and had not dona so, and, therefore, as was inconsistently argued, Shivagungas' case [1863] 9 M.I.A. 539 (P.C.), had been treated as no longer of authority. This argument might, according to the view hitherto taken in India of Runchordas' case [1899] 23 Bom. 725, have been met by the simple reply that Runchordas' case [1899] 23 Bom. 725 did not discredit the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), that in some cases a widow represented the estate or the particular decision that in litigation in which the title was attacked the widow did represent the estate, that in Ranchordas' case [1899] 23 Bom. 725 it was only held that in cases of mere adverse possession the widow did not represent the estate. But that was not the reply of the Board, and this appears of importance for the reply actually made allows to Runchordas' case [1899] 23 Bom. 725 nothing approaching the wide effect allowed to it hitherto in India. Their reply was (p. 903):

It does not appear to their Lordships how the rule in the Shivagunga case [1863] 9 M.I.A. 539 (P.C.) could have been applied in the case before the Board.... Their Lordships are unable to see what was the estate, within the meaning of the Shivagunga case [1863] 9 M.I.A. 539 (P.C.), which the widows had represented, or to what the rule in the Shivagunga case could have been applied. The title of the trustees to the property devised or bequeathed to them for charity or religious purposes by Kallianji Sewji was not questioned until the survivor of the two widows died in 1888 and that property had never been represented by the widows or either of them. It had bean in the exclusive possession of the trustees under the will of Kallianji Sewji from 1809 until the Court in the suit which was brought on 21st December 1888 after the death of the last surviving widow, had decided that the gift for charitable or religious purposes was void.

92. The Board then did not in any way suggest that Runchordas' case [1899] 23 Bom. 725 was wrongly decided They merely held that on its facts there was in that case no estate which the widows could be said to have represented to which the rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) could conceivably have had any application at all. I hold, therefore, that there was nothing in the discussion of Runchordas' case [1899] 23 Bom. 725 to suggest that case was in any way on its particular facts wrongly decided. Fourth question: Does the discussion of Runchordas' case [1899] 23 Bom. 725 in particular suggest that, granting that the correctness of the decision on its facts was not doubted, yet too wide a scope has been given to that case in decisions in India that purport to have followed it? The passage just quoted gives rise to this question.

93. I have noted at the commencement of this judgment, after setting out the five questions that this question was never suggested, argued or discussed at the hearing.

94. Though their Lordships did not hold that Runchordas' case [1899] 23 Bom. 725 was in any degree on its particular facts wrongly decided, there would in the language used appear to be a very definite limitation of scope of the decision in its particular facts. In that case, in the view of the Board deciding Vaithialinga's case , no question of the widow representing the estate or even having ever represented the estate could be seriously said to have arisen, not because in cases of mere adverse possession the widow never represents the estate, but because of the very special circumstances of the case, she having never made any claim of any sort to the title, never having been in possession for a day, and having always assented to the title and possession of another, there was nothing in fact upon which the Shivagunga rule could operate whether affirmatively or negatively.

95. In face of this how can Runchordas' case [1899] 23 Bom. 725 be held any longer to be authority for the broad proposition that a widow in cases of mere adverse possession (i.e., where there is no decree) can never be held to represent the estate so as to cause the reversioners to be bound by adverse possession against her.

96. Their Lordships' view, clearly and definitely expressed, of Runchordas' case [1899] 23 Bom. 725 as a decision based on its particular facts and having no bearing on the main rule of Shivagungas' case [1863] 9 M.I.A. 539 (P.C.) that there might be cases in which the widow represented the estate, does not require any support from me. But there are one or two points in regard to which I think the bearing of their remarks and the reason for making those remarks were not correctly appreciated at the hearing.

97. It must be remembered that the only aspect in which the Board was considering Runchordas' case [1899] 23 Bom. 725 was to see whether anything was decided which discredited the main rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) which they were considering, and in order to answer that question they considered first whether any question of the widow representing the estate really arose in the case.

98. Their comments might be expected, then to be directed to this aspect only, and so they were.

99. The Board refer to the fact that in the early stages of the suit the hardest fought question was that relating to the dharm. They say:

The main question in the suit was whether the gift for charitable or religious purposes was void for vagueness and uncertainty (p. 901).

100. It will be noticed from a consideration of the judgment of the appellate Bench of the High Court how large the questions of dharm and trust loomed in the case.

101. A second comment made by the Board is that at the stage when Runchordas' case [1899] 23 Bom. 725 had come before the Board, a main question for their consideration was that; of the correct account. The foundation for this comment is apparent upon a consideration of the complicated details of the transit of various properties moveable and immovable which had belonged to the testator, and of the variety of transfers by which the property moved along the various channels, the decree as to the account being varied in each of the appellate Courts.

102. These two comments were clearly made merely to show not inclusively all the points raised, but what were the points which called for most serious consideration and with which may be compared the total neglect of any question of the widow representing the estate.

103. The complete absence of all consideration of the latter question in the Runchordas' [1899] 23 Bom. 725 judgment is explicable by there being, as the Board in Vaithialinga's case state, no serious suggestion possible on the facts of the case that the widow had ever represented the estate. There is no other explanation. That there was absence of all consideration of the question of 'whether the widow represented the estate' is apparent from the judgment.

104. When we turn to the judgment, we find the question of limitation in reference to Article 141 disposed of in a few lines, without even a mention of the question whether representation of the estate by the widows and the adverse possession against them might deprive the reversioners of the benefit of that article It had been contended by Mr. Mayne for the appellants (see p. 731) that the widow represented the estate. No reference of any sort or description was made to this contention in the judgment of the Board. They merely held that there were a large number of articles in the Limitation Act and held briefly 'Art. 141 is that which applies to the present suit'. They had quoted before them by Mr. Mayne a number of authorities on the question of a widow representing the estate and the effect of adverse possession, including the case Lachhman Kunwar v. Anant Singh [1894] 22 Cal. 445, but they made no reference... to that or any other cases.

105. The explanation of the Board's having in Runchordas' case [1899] 23 Bom. 725 treated with such scant ceremony Mr. Mayne's detailed argument that the widows represented the estate is to be found in the particular facts of the case rendering that argument in that particular case quite untenable. There is no other explanation of why the argument was treated as not worth discussion at a time when Lachman's case [1894] 22 Cal. 445 stood and had been followed in the sense contended for by Mayne.

106. In Runchordas' case the Board said:

It is not necessary to consider what might be the case if the widows or the survivor of them were suing, as the plaintiff does not derive his right from or through them and the extinguishment of their would not extinguish his.

107. It has been suggested in some way that in making this observation their Lordships were expressing an opinion that the widow did not represent the estate. But a little consideration will show that is not so. The observation was made in connexion with the contention of counsel that the reversioners had lost their rights by virtue of Section 28. Their Lordships brushed this contention aside by pointing out that while Section 28 could have no bearing on the title of the reversioners directly because 'the period limited for them is not determined,' Section 28 could also have no bearing on their loss of title by limitation (to which form of loss alone Section 28 relates) as representatives of the widow because they did not claim through the widows.

108. This is entirely in accord, if I may say so, with the view that I have already expressed that there is no suggestion of the reversioner losing by limitation, either directly by some other provision of the Limitation Act or indirectly because he claims through some other person who is barred, a right given to him by the Limitation Act. He loses his right (or rather he fails to get the right given by Article 141) if, and it is the point we are considering, he loses it at all, not by virtue of claiming through the widow, but because the widow was representing the estate when she lost her right. This passage from their Lordships' judgment in Runchordas' case [1899] 23 Bom. 725 had then, no bearing on the question whether the widow was representing the estate and this in my view explains fully their Lordships' remark in Vaithialinga's case that the Limitation Act was not applied as counsel asked for it to be applied and the passage from Runchordas' case [1899] 23 Bom. 725 is quoted to show why it was not applied.

109. Another instance of failure to appreciate the trend of the Board's comments in Vaithialingas' case relates to the following passage. The Board in speaking of the judgment in Runchordas' case [1899] 23 Bom. 725 said:

The defence of limitation was raised, but the Board held that it did not apply.

110. It was suggested at the hearing that the Board in Vaithialinga's case seemed to be suggesting by this comment that no question of limitation had been dealt with or it had been held to be irrelevant. In the first place it is manifestly impossible on the face of it that the Board could have meant anything so plainly contrary to the fact. They did not of course mean that no question of Article 141 had bean raised and that article had not been applied. The words must be read with the quotation from Runchordas' case [1899] 23 Bom. 725 which follows and which I have just noticed. Clearly all that was meant was that the defence of limitation was raised that the widows were barred by Section 28 and Article 144 and the reversioners, therefore, also through them, and that the Board held that the defence that the reversioners were in that way barred by limitation did not apply because the reversioners did not derive their right from the widows.

111. The passage was quoted merely to show why the defence of limitation based on Section 28 and Art 144 was not applied.

112. If, therefore, it is not presumptuous for me to say so, the history of the passage of Runchordas' case [1899] 23 Bom. 725 through the various Courts supports the declaration of the Board in Vaithialinga's case that Runchordas' case [1899] 23 Bom. 725 was decided upon its particular facts and that no serious question of there being on those facts any representation of the 'estate' by the widows was possible.

113. Fifth question. In view of the opinion of a majority of this Bench expressed at the hearing against the contentions of appellant's counsel on the first three questions ( the fourth not having arisen), counsel naturally did not pursue argument for a reconsideration of whether a Hindu widow might not in the matter of adverse possession, in some circumstances at any rate, represent the estate.

114. While holding the view that I have expressed that the scope of Runchordas' case [1899] 23 Bom. 725 has been shown by the observations of their Lordships to be properly much narrower than has been assumed, I should have been glad to hear the further question argued as to whether the widow could in any way, and, if so, to what extent and when, represent the estate, with particular regard to the matter of adverse possession but it would be equally infructuous for me to proceed to examine it fully and I will only state some propositions on which I should like to have heard arguments.

115. The decisions as to the effect of decrees based on title and on adverse possession being only particular instances of the application of the rule in Shivagunga's case [1852] 2 Boul. Rep. 193 it would have been of interest to consider why, if some decrees properly obtained bind the reversioners on the principle that the widow represents the estate, the widow should not at any rate in some cases, be held to represent the estate where there is merely a question of adverse possession against her. If it be suggested that in the case of mere adverse possession the reversioners cannot interfere, it is equally the case that in a suit by or against the widow they cannot interfere and yet they may be bound. It is suggested that it would be most inequitable to hold the reversioners to be bound by the mere inaction of the widow in allowing somebody else to acquire title by adverse possession. She may have been negligently inactive. But such an argument only begs the question, by assuming a fact, negligent inactivity on the part of the widow. It might will be that the widow had not been merely inactive, but had consulted with her legal advisers, and possibly even with the reversioner himself, and had properly and wisely arrived at the conclusion that it was better not to fight the alleged trespasser in regard to a small portion of the estate and by that fight perhaps risk the raising of a possible doubt as to the title to the whole estate, a matter hitherto passing unnoticed, or that at least it was desirable to avoid risking the wasting of the rest of the estate in useless litigation. How it might be asked can it be said that she was not in every sense of the term representing the estate just as much as she would have if she had actually embarked on useless litigation. Clearly each of these negligent in activity and the case I have suggested differs in its facts and in justice calls for a different answer.

116. Again, does not a hard-and-fast rule lead to the following extraordinary position. Where (a case mentioned at the hearing) adverse possession has begun against the last male holder and one day later he dies and the adverse possession continues against even a negligently inactive widow for eleven years and three hundred and sixty-four days, the reversioner is held bound, but if the last male owner had died the day before adverse possession began then, though an active widow after taking advice, possibly of the then next reversioner, had decided not to waste the rest of the estate in useless litigation the reversioner would not be bound.

117. Again, where a widow has bona fide fought an alleged trespasser in the Courts and lost, the reversioner is held bound but where the alleged trespasser can only say:

I had such a strong case that no one thought it worth while to fight me,

twenty years later his son may be called on to fight a law suit when evidence has been lost.

118. What is the apology for these and other such anomalies? Is there any principle underlying them

119. To refer to a few cases: in Saroda v. Doyamoyee [1880] 5 Cal. 938 and cases in which it was followed the reversioners were held bound. By Srinath Kuar v. Prosunno Kumar [1883] 9 Cal. 934 and the cases which followed it they were liberated. By Lachhan v. Manorath [1894] 22 Cal. 445 and the cases in which it was followed they were bound again. (The Judicial Commissioner in plain language so held and their Lordships concluded by affirming in plain language the correctness of his finding and in this sense the case was for some time understood). And it is suggested that by Runchordas' case [1899] 23 Bom. 725 they have been liberated again.

120. The nearest approach to a suggestion of any governing principle is based on a change as between the Limitation Acts of 1859 and 1871. But is there any real value in this suggestion? It could in any case only account for one change. But in fact as early as 1883 when the Limitation Acts of 1871 and 1877 were comparatively recent Prinsep, J., in Srinath Kuar v. Prosunno Kumar [1883] 9 Cal. 934 said he had great hesitation in coming to the conclusion that the legislature in 1871 deliberately altered the law laid down in 1868 and only agreed with reluctance. Again Article 141 of the Act of 1877 did not prevent their Lordships of the Privy Council from holding in Hari Nath v. Mothumohun [1894] 21 Cal. 8 that the reversioner was not a person 'entitled', having lost his title by the decree against the widow. If he can lose his title in one way by a decree, there is no reason why he should not be held to have lost it in another way if the particular circumstances are such that the widow can be held to have represented the estate within the meaning of the main initial rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), and that such circumstances may very well exist I have already shown.

121. I note here that a reference was made to Article 141 at the hearing before us. Counsel for the appellants urged that the reversioners were not persons 'entitled' within the meaning of Article 141 and therefore could not claim the benefit of that article. When asked how they could be said to have lost their title, he referred to Section 28 and Article 144. But the obvious answer to him was that the title referred to in Article 141, Lim. Act, could not be possibly held to have been lost by the provisions of some other general article of the same Act such as Article 144, for such a view would be to nullify the former article (though it might be different in the case of such an article as Article 129). The reversioners clearly could not be held to have lost their title by virtue of the provisions of Section 144. The real answer is that which I have stated.

122. There is no question of destroying aright given to the reversioner by one article of the Lim. Act, by calling in aid another article of the same Act. The reversioner's right would not be taken away by any provision of the Lim. Act. The initial point for determination is whether the widow herself is barred by adverse possession. That is determined by the Limitation Act by Article 144. If that is determined against her there is no further calling in aid of the Limitation Act. The next point for determination is whether, considering all her acts and omissions, she was really representing the estate. If she was, the case comes within the rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) and the reversioners are barred by that rule, not by any section of the Limitation Act, the right to the estate has been lost by virtue of that rule, they are not 'entitled' and they do not come within Article 141 at all.

123. Again, unless this is the meaning of the word 'entitled,' the meaning, moreover, given to it by the Board in Hari Nath v. Mothumohun [1894] 21 Cal. 8 I am unable to give any meaning to it at all. Ordinarily speaking, no person can sue at all with success unless he has a title to sue and there will be no meaning in inserting the word in Article 141. But there was a definite reason in this particular case if it was desired to emphasize that there were cases in which, though he would ordinarily be entitled, the reversioner might have lost his title through somebody else, not the person through whom he claimed, having lost their title, his title being thus prevented from maturing by reason of the application of the principle laid down in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.). It was considered desirable by the insertion of the word 'entitled' to exclude the reversioner from getting the benefit of Article 141 in those cases where owing to this special rule his title had not matured, and to suggest that the effect of the insertion of the word 'entitled' is confined to cases where a decree has been obtained against the widow is to beg the whole question.

124. Nor does this view render Article 141 meaningless. There remain all those cases upon which Article 141 can operate in which the reversioner is still 'entitled', for instance, a case where, though adverse possession is proved against the widow, but it is not proved that she was representing the estate in her acts and omissions. In such a case but for Article 141 the reversioners would come under Article 144.

125. It has been suggested, though again of course the point has not been argued, that the reversioners could have no right to bring a declaratory suit. Whether this is so or not, and it is by no means certain, I am unable to appreciate why it should be necessary for them to bring a declaratory suit. When the widow dies, if the reversioner is resisted in obtaining possession, he would bring a suit in the ordinary way and the question would have to be decided, whether he is 'entitled' or not. The need for debating whether he could bring a declaratory suit would only arise if it was suggested that the reversioner was bound in all cases of adverse possession against the widow, and of course nobody suggests anything of the sort.

126. Failing any question of principle, the only other answer given, so far as I am aware, is that there is much that is not logical in Hindu law as determined by the Courts and that it has been held in Runchordas' case [1899] 23 Bom. 725 that a Hindu widow in the matter of adverse possession never represents the estate unless a decree has been obtained. But if the right view of that case since their Lordships' discussion of it be that which I have suggested, Runchordas' case [1899] 23 Bom. 725 is not authority for any such wide proposition, but, while itself consistent with logic and common-sense, leaves the door wide open to the application of common-sense and logic to other sets of circumstances.

127. Do not these considerations suggest that there can be no hard-and-fast rule and that the appropriate answer is that in each case the question whether the widow represents the estate must be answered, as in the case of decrees, on its own facts and that in certain circumstances, though not in every case any more than in the case of every decree, the widow may represent the estate and the reversioner be bound.

128. However all this may be and whatever view might eventually be taken of these and other considerations, it would be infructuous to pursue this question in view of the fact that, upon a majority of this Bench expressing their opinion that their Lordships' observations in Vaithialinga v. Srirangath did not throw any doubt on the correctness of the decision in Runchordas' case [1899] 23 Bom. 725 as hitherto understood, this, actually the referred question, was not argued.

129. I would answer this reference as follows:

(1) The rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), which was affirmed by their Lordships at p. 904 (of 48 Mad.) in Vaithialinga v. Srirangath was the initial main rule, and that only, that there are cases in which the widow represents the estate so that acts and omissions by her may bind the reversioners. They did not make any pronouncement at all either formal or by way of obiter dictum on the effects of adverse possession against the widow or in what, if any, circumstances she represented the estate in reference to adverse possession against her.

(2) The confirmation by their Lordships of this rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) did not in any way challenge the correctness of the decision in Runchordas v. Parvati Bai [1899] 23 Bom. 725.

(3) Nothing that was said in this discussion of Runchordas' case [1899] 23 Bom. 725 in particular suggests that in their Lordships' view that case was wrongly decided.

(4) The discussion of Runchordas' case [1899] 23 Bom. 725, though it does not suggest that the case on its particular facts was wrongly decided, does narrow the scope of that case showing that it is not, as it has been treated as being, authority for any broad proposition that a Hindu widow does not, in the matter of adverse possession, where there is no decree, ever so represent the estate that the reversioners will be bound by adverse possession running for 12 years against her.

(5) This question, which is the one actually referred to the Full Bench, was not argued, and I therefore express no opinion in regard to it beyond stating that, as at present advised, I am of opinion that the question whether a reversioner is barred by adverse possession against the widow on the basis that she represented the estate, thus coming within the main rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.), is a question to be decided, as in the case of decrees, on the facts of the particular case.

130. With these answers let the reference be returned.

131. (After receipt of the above opinion, the following judgment was delivered.)

Boys, J.

132. This appeal was referred by Sen, J., and myself to the Chief Justice for the appointment, if he saw fit, of a Full Bench and a Full Bench was constituted. The question referred above was as follows:

To what extent, if any, and under what circumstances will adverse possession, proved as against a female heir, bind the reversioners.

133. Of that Full Bench I was one of the members, and in my judgment sitting as a member of the Full Bench I have set forth what took place at the hearing; but now that the case has come back to us I think it desirable, sitting as a member of the Division Bench to finally dispose of the appeal, to say briefly how in my view the answers given by the Full Bench bear on the case that we have to finally decide. The contention for the appellants before the Full Bench was that the observations of their Lordships at pp. 893-904 of the report in Vaithialinga v. Srirangath do by implication throw doubt on the correctness of the decision in Runchordas' case [1899] 23 Bom. 725. It had for some years past, i.e., since the decision of their Lordships of the Privy Council in Ranchordas v. Parvati [1899] 23 Bom. 725, been considered that it had been decided in that case that time did not ever begin to run against the reversioners where there was mere adverse possession (i.e., and no decree) against a Hindu female heir, until the death of the lady when the reversioners became entitled to possession, reference of course being made to Article 141, Lim. Act.

134. In order to open the road for argument on the broad question referred, counsel for the appellants endeavoured to show that the later decision of their Lordships had thrown doubt on the correctness of the earlier. As my brothers, the acting Chief Justice and Mr. Mukerji, J., were apparently of opinion at the hearing that they could not accept counsel's contention that the correctness of the decision in Runchordas' case [1899] 23 Bom. 725 had been doubted, counsel for the appellants did not proceed to argue the general question which we referred.

135. The judgments which we have to consider contain the following answers:

Mukerji, J.

136. Answers the question that we referred by holding broadly that an adverse possession against a Hindu female heir will not be effective against and binding on the reversioners.

137. The Hon'ble Acting Chief Justice, Mr. Sulaiman, answers the question that we referred by holding that

where a widow has entered into possession as a Hindu widow and has either voluntarily parted with possession or been dispossessed against her consent, a suit by the reversioner brought for possession after her death is governed by Article 141 and not by Article 144, and having been brought within 12 years of the death of Mt. Saraswati, is not barred by limitation.

138. I answered the question as follows:

(1) The rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) which was affirmed by their Lordships at p. 904 (of 48 Mad.) in Vithialinga v. Srirangath was the initial main rule, and that only, that there are cases in which the widow represents the estate so that acts and omissions by her may bind the reversioners. They did not make, any pronouncement at all either formal or by way of obiter dictum on the effects of adverse possession against the widow or in what, if any, circumstances she represented the estate in reference to adverse possession against her.

(2) The confirmation by their Lordships of this rule in Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) did not in any way challenge the correctness of the decision in Runchordas v. Parvati Bai [1899] 23 Bom. 725,

(3) Nothing that was said in this discussion of Runchordas' case [1899] 23 Bom. 725 in particular suggests that in their Lordships, view that case was wrongly decided.

(4) The discussion of Runchordas' case [1899] 23 Bom. 725, though it does not suggest that the case on its particular facts was wrongly decided, does narrow the scope showing that it is not, as it has been treated as being, authority for any broad proposition that a Hindu widow does not in the matter of adverse possession, where there is no decree, ever so represent the estate that the reversioners will be bound by adverse possession running for 12 years against her.

(5) This question which is the one actually referred to the Full Bench was not argued, and I therefore express no opinion in regard to it beyond stating that, as at present advised, I am of opinion that the question whether a reversioner is barred by adverse possession against the widow on the basis that she represented the estate, thus coming within the main rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) is a question to be decided, as in the case of decrees, on the facts of the particular case.

139. What general answer to the question referred may be collated, if any general answer can be collated from these three judgments, I do not think it necessary to determine. It is apparent from a consideration of all the answers that para. 4 of my answer is the one that would be most favourable to the appellant; but in the particular facts of this case even that answer will not help him. If the decision in Runchordas' case [1899] 23 Bom. 725 was really only a decision on its particular facts and no serious question of representation of the estate by the widow could arise, and if it is no authority for any broad proposition that adverse possession against a widow cannot bind the reversioners, two material facts at least in that case the same as in this-the widow had never even obtained a day's possession or ever claimed title. In Vaithialinga's case the reason given by the Board for holding that no question of representation of the estate by the widow could arise in Runchordas' case [1899] 23 Bom. 725 was that the widow had never been in possession for a day and had never made any claim whatever to either possession or title. In the present case the facts are substantially the same; the widow had never been in possession for a day nor did she ever during her lifetime make any claim to the estate. Therefore supposing that I am correct, if I may say so, in my appreciation of the view taken in Vaithialinga's case by the Board of Runchordas' case [1899] 23 Bom. 725, that will not help the appellant.

140. Therefore, though the general question referred by us was not argued, not the question dealt with in my fourth answer, and whatever may be the general result of the answers returned, both, my brother Sen, J. and myself, are agreed that the order which we propose to pass is the only one now possible in the case.

141. It is desirable that I should add a few observations as regards the judgment of Page, J., dated 16th May 1928, in the original trial before him in Aurabindo Nath Tagore v. Monorama Debi : AIR1928Cal670 , lest it might be matter of surprise that we had not mentioned this case at the hearing before the Full Bench. It appears that the report has only just come out and the instalment of the Calcutta Weekly Notes in which it appears is the last to have been published. The report was drawn to my attention after the delivery of our judgments in the Full Bench.

142. In my fifth answer in my judgment as member of the Full Bench I said:

I am of opinion that the question whether a reversioner is barred by adverse possession against the widow on the basis that she represented the estate thus coming within the main rule of Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) is a question to be decided, as in the case of decrees, on the facts of the particular case.

143. This appears to be the conclusion at which Page, J., has in effect also arrived. He has held that after the comments of their Lordships of the Board in Vaithialinga v. Srirangath on the decision in Runchordas v. Parvati Bai [1899] 23 Bom. 725

the common law of the Hindu community, which is to be collected from Goluck Monee Dabee v. Degumbar [1852] 2 Boul. Rep. 193, Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) and Nobin Chander v. Issur Chander [1868] 9 W.R. 505 is still law of the land and has been neither abrogated nor varied by any legislative enactment.

144. In Goluckmonee's case [1852] 2 Boul. Rep. 193 it was held that

it is settled law that adverse possession which bars her (the widow) bars the heirs after her.

145. In Shivagunga's case [1863] 9 M.I.A. 539 (P.C.) there is the well-known passage:

The whole of the estate would for the time be vested in her, absolutely for some purposes, though in some respects, for a qualified interest.

146. In Nobin Chander's case [1868] 9 W.R. 505 it was said:

They (the reversioners) are also bound by limitation by which she (the widow) without fraud or collusion is barred.

147. In Goluckmonee's case [1852] 2 Boul. Rep. 193 the conclusion that the widow represented the estate in the matter of adverse possession was stated in unqualified terms. In Nobin Chander's case [1868] 9 W.R. 505 the qualification was added 'without fraud or collusion.' If my understanding of the view that was expressed in Vaithialinga's case of the decision in Runchordas case [1899] 23 Bom. 725 is correct, there may be also a case where there was an absence of any fraud or collusion but in which the widow cannot be held to represent the estate, namely, a case where she never had and never claimed to have any more to do with the estate than any complete stranger.

148. The resultant of these three cases which Page, J., has stated in his opinion to embody the law of the land may, it appears to me, be fairly stated as, that there are cases in which in the particular circumstances the widow may so represent the estate that where she is barred by adverse possession the reversioners are also barred.

Boys and Sen, JJ.

149. The reference which was made in this case having been returned by the Full Bench it is agreed by counsel on both sides that the order of the Court must be as follows and accordingly it is as follows:

150. That the appeal will be allowed in part and the decree will be modified to this extent that the suit will be dismissed as regards item 2 of the plaint. For the rest, the decree of the Court below will stand. It is further agreed that the order on the cross objections must be that they stand dismissed accordingly. Costs will be borne in proportion to success and failure.


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