1. This is a defendants' appeal arising out of a suit for recovery of possession of certain immovable properties. It appears that there were two brothers Ram Rattan and Gajadhar Prasad of whom the former died about the beginning of 1909. He left a daughter Mt. Saraswati whose sons the present plaintiffs are. There was some dispute in the mutation proceedings in which Mt. Saraswati made a statement that Gajadhar Prasad was the heir of the deceased. Gajadhar Prasad's name was accordingly entered in the revenue papers and he got possession. Gajadhar Prasad later on transferred part of the properties on 10th September 1914 to the defendants-appellants. In 1922 Mt. Saraswati died. After her death the present suit was instituted by her sons on 10th May 1928 against the transferees. The plaintiffs' case was that the transfer of possession by Mt. Saraswati to Gajadhar Prasad was without any legal necessity and that the transfer by Gajadhar Prasad to the defendants was not binding on them.
2. The claim was contested by the defendants on the following grounds: (1) Gajadhar Prasad was joint with Ram Rattan and therefore Mt. Saraswati never inherited any property from her father at all. (2) That Rata Rattan left a son Ram Shankar and the surviving son inherited the estate and that as a result Mt. Saraswati never got the estate. (3) That the defendants were protected under Section 41, of the Transfer of Property Act, and that the claim was barred by time. The Court below has found against the defendants on all these points.
3. So far as the question of jointness or separation is concerned there is plenty of evidence on the record which shows that there had been a partition in the family and that Ram Rattan and Gajadhar Prasad were separate. No doubt there was an initial presumption in favour of the defendants that the two brothers were joint but that presumption has been sufficiently rebutted by the evidence which was adduced by the plaintiffs in this case. We think it unnecessary to refer to all the evidence in detail because we are satisfied that the finding of the Court below is perfectly correct. Similarly, the finding of the Court below that it is not proved that Ram Rattan left any sons surviving him is sound. The evidence produced by the defendants to prove that there was a son Ram Shankar who was alive after Ram Rattan died is flimsy and meagre and there is no documentary evidence in support of it. The learned Subordinate Judge has rejected that evidence and we agree with his view.
4. We are also of opinion that Section 41, of the Transfer of Property Act can have no application to the facts of this case. The present plaintiffs are not deriving their title from Mt. Saraswati nor are they claiming through her. They claimed title through their grandfather Ram Rattan. It is therefore quite-obvious that even if Gajadhar Prasad was in possession of the estate as an ostensible owner with the consent of Mt. Saraswati, her consent would not bind the present plaintiffs. Their cause of action arose on the death of Mt. Saraswati, and they are in no way bound by the action of the limited owner. Indeed, they are challenging it. When a Hindu lady cannot without legal necessity transfer a part of the estate in her possession so as to bind the reversioners, much less can she by orally transferring possession and putting such person in possession destroy the rights of the reversioners in case such person transfers the property. No authority has been cited in support of the contention that Section 41, of the Transfer of Property Act would protect the defendants as against the reversioners, and we are clearly of opinion that no such estoppel can arise. Section 41, refers to personal estoppels arising out of the conduct of the plaintiffs or persons through whom they are claiming and the mere fact that the Hindu widow's estate is vested in the limited owner for the time being cannot create an estoppel against the reversioners by virtue of the consent obtained from the limited owner.
5. We are also of opinion that the plea as to limitation must fail. As pointed out above the present suit was instituted within 12 years of the death of Mt. Saraswati. The plaintiffs' cause of action arose on her death and not earlier. During the life-time of the limited owner the possession of Gajadhar Prasad or his transferees could not be adverse to the reversioners so as to destroy their contingent rights. This point has been recently settled by a Full Bench of this Court which we are bound to follow: Bankey Lal v. Raghunath : AIR1928All561 . The learned advocate for the appellants next wanted to argue that the proceedings in the mutation Court after the death fo Ram Rattan were based on a family settlement entered into by Mt. Saraswati with the claimant Gajadhar Prasad and that such settlement is binding on the reversioners. No such plea was taken in the Court below and no issue was framed on this point. Further, there is no such specific ground taken in the memo of appeal. The question of family settlement is not a pure question of law, but a mixed question of fact and law. We have accordingly not allowed the learned Advocate to raise this point in the course of his arguments. The result is that this appeal is dismissed with costs.