1. Respondents Nos. 2 and 3 (1st and 2nd defendants in the suit) were not brought on record in this appeal within the time allowed. No proper explanation is given for the delay. The appeal is dismissed as against them with costs.
2. There is no substance in. the objection raised by the plaintiff - respondent that because the 2nd and 3rd respondents, her sisters, were not made parties in time, the appeal must be dismissed as against herself aa well. The appellants take exception to particular items of property in which the plaintiff-respondent has been given Jth share by the decree appealed from. If the appellants succeed the result would be that the respondent to the extent of th share would be liable to make restitution. It may be that the 2nd and 3rd respondents would still retain their shares, but it does not lie in the mouth of the plaintiff-respondent to complain of that.
3. The only substantial question raised in the appeal is as to the effect of the judgment in O.S. No. 13 of 1895. In the first place, it is argued that the widow of Chenchurama Reddi i.e., Ramalakshmamma having brought a suit against Lakshmamma (5th respondent) for possession of property and that suit having been dismisased on the question of limitation the decree operates as res judicata. The present suit is by the reversioner whose title is independent of that of the widow. It is however contended on the strength of the decision of the Privy Council in Hari Nath Chatterjee v. Mothurmohan Goswami I.L.R. (1893) C. 8 that the effect of the decree was to bar the present suits. But that decision is distinguishable on the ground that in that case title by adverse possession had been completed while Act XIV of 1859 was in force, and by Section 12 of that Act, according to the rulings, it was not only the right of the widow to recover possession that would be barred but the right of the reversioner as well, that is to say, adverse possession for 12 years had the effect under the law at the time of extinguishing the title of the widow as well as of the reversioner to the property. Under the later Acts title by adverse possession against the reversioner commences only on the death of the widow. That the decision in Hari Nath Ghatterjee v. Mothurmohan Goswami (1898) I.L.R. was based on the ground that the title by adverse possession was completed while the Act of 1859 was in force, seems reasonably clear from a recent decision of the Privy Council in Khunni Lal v. Gobind Krishna Narain I.L.R. (1911) A. 356. There their Lordships point out the effect of Section 12 of Act XIV of 1859 and say that the subsequent acts of 1871 and 1877 could not lead to the revival of a right that had already become barred. They go on, then, to draw attention to the ruling in Hari Nath Chatterjee v. Mothurmohan Goswami I.L.R. (1893) C. 8 where it was observed that 'the intention of the law of limitation is, not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right,' We think it can be fairly inferred that in Khunni Lal v. Gobind Krishna Narain I.L.R. (1911) A. 356 the Judicial Committee intended to point.out thai their decision in Hari Nath Chatterjee v. Mothurmohan Goswami I.L.R. (1898) C. 8, was baaed mainly on the provisions of the Act of 1859. Mr. Justice Knox of the Allahabad High Court in Hanuman Prasad Singh v. Bhagabhati Prasad I.L.R. (1897) A. 357 also understood the last decision in this light. In a recent decision of this Court by the learned Chief Justice find Justice Burn where the facts were similar to the facts in the present case, the learned Judges held that Hari Nath Chatterjee v. Mothurmohan Goswami I.L.R. (1898) C. 8 did not apply, though they distinguished it on the ground that the previous suit in that case was by a daughter and not by a widow.
4. In the present case the question of limitation in the suit of 1895 was governed by Article 141 of the Act of Limitation of 1877 and under that Act the reversioner's suit would not be barred because of the widow's right of suit having been barred. It is difficult to see how a decision against the widow who did not establish her right to recover the property for 12 years, could possibly operate against the reversioner who does not acquire a title to possession until the death of the widow. The only question of any difficulty to be considered was whether the judgment of the Privy Council in Hari Nath Chatterjee v. Mothurmohan Goswami I.L.R. (1893) C. 8 laid down a general proposition that a decree on the question of limitation against the widow ipso facto barred the rights of the reversioner. If that decision was arrived at having regard to the effect of Section 12 of Act XIV of 1859, there is no good reason for extending it to a case which is not affected by that Act.
5. The next question argued is that as a matter of fact it was found that Lakshmamma was in possession of the property for 12 years in the suit of 1895. We cannot say that there is any such definite finding in the judgment of the High Court in the appeal in that suit. That ground also fails. The question as to whether certain items of property to which the appellant derived his title from Lakshmamma was mortgaged to him for binding purposes, has not been pressed before us.
6. The result is that the Appeal No. 257 of 1913 will be dismissed with costs of the first respondent. In the decree of the Lower Court, Jth of item No. 32 has been omitted by mistake; the decree shall include this property as well, that is to say the plaintiff will be declared to be entitled to Jth share of this property as well. The Subordinate Judge has also failed to provide for costs in the final decree. The plaintiff will be entitled to and be liable for costa in proportion to the success or failure of her claims as between herself and all the defendants except 1 to 4 in the Lower Court. The memorandum of objections in Appeal No. 209 of 1914 is dismissed with costs.