1. The plaintiffs as reversionary heirs of one Ramachandra Ekanadha brought this action to recover certain immovable property, the subject of this appeal, sold by Jamna Boi the widow of the last male owner. Ramachandra Ekanadha the last male owner died in 1833 leaving his widow Jamna Boi and a daughter Soma Boi, then an infant of two years or thereabouts. The sale was made to six persons in equal shares by six separate sale deeds on the 4th October 1860. The 10th defendant the principle contesting defendant (whom we shall hereafter call the defendant) has now acquired the whole of the properties now in dispute through several intermediate sales from the alienees of the widow. The learned Subordinate Judge in the Court below has dismissed the plaintiffs' suit in respect of these items on the ground that the sales were made by the widow to get money to pay for debts borrowed by her for the expenses of the marriage of her daughter and for the cultivation expenses of some of her lands which had been affected by floods. The plaintiffs appeal and the principal question now is whether the finding of the Subordinate Judge on this matter is correct. The evidence as to the necessity for the sales is that of defendant's witnesses 6, 13 and 15 who were all examined before a Commissioner, 16th witness for the defendants being one of the original alienees. As they were all examined on commission we are in as good a position as the trial Judge to decide on their credibility and we have come to the conclusion that the evidence does not satisfactorily prove that the sales were made for the purposes found by the lower Court.
2. [After discussing the evidence the Judgment proceeds].
3. The sales no doubt took place a very long time ago; but making all allowance for the meagreness of the evidence owing to the long lapse of time and for lapse of memory of old men who are called as witnesses we are not satisfied that the 10th defendant on whom the burden lay has proved that the sales were made for purposes binding on the estate. We must hold that the sales are not binding on the reversioners.
4. The learned pleader for the respondents however sought to sustain the judgment of the lower Court, on a new ground which was not raised in the lower Court, viz., that the plaintiffs' suit for the recovery of the items the subject of appeal is barred by limitation. To make the point clear it is necessary to state a few dates. The widow Jamna Boi who sold the property died on the 21st April 1865, the daughter Soma Boi who succeeded her died on the 27th June 1901 and this suit was instituted on the 7th December 1912. It is clear that so long, as the widow was alive there can be no question of limitation for a suit by the reversioner. But it is said that on her death in 1865 the possession of the alienees became adverse to the daughter Soma Boi and as 12 years elapsed before the coming into force of Act XV of 1877, which for the first time enacted a special article for the institution of a suit by a Hindu after the death of a Hindu female enlarging the scope of Article 142 of Act IX of 1871 which provided for a suit on the death of a Hindu widow only, the adverse possession against Soma Boi must be taken to have been adverse to the reversioners also. It is argued that although 12 years had not elapsed from the death of the widow when Act IX of 1871 came into force, as that act provided a special period of limitation only for a suit to be instituted by a Hindu on the death of a Hindu widow and as Soma Boi who would have been entitled to sue the alienees had allowed her right to become barred the right of the present plaintiffs must be taken to have been extinguished along with the title of the daughter, as she represented the inheritance. We cannot agree with this contention. It is no doubt true that if the 12 years period had run out before Act IX of 1871 came into force not merely the daughter but also the reversioners would have been barred under Act XIV of 1859, Raghava v. Sambasiva (1891) 1 M.L.J. 392 (overruling on review Sambasiva v. Raghava I.L.R. (1890) M. 512. But the scheme of the previous Limitation Act was altogether changed when Act IX of 1871 was passed. Even if Article 142 of Act IX of 1871 did not apply to reversioners in the position of the present plaintiffs, the article which would be applicable to a suit by the reversioners in the absence of a special article, would be Article 145 of Act IX of 1871 corresponding to Article 144 of the later Acts which gives 12 years from the time when the possession of the defendants became adverse to the plaintiffs. The contention for the respondents is that the possession of the defendants which was adverse to Soma Boi the daughter was necessarily adverse to the reversioners as Soma Boi represented the inheritance and that the reversioners must be deemed to be persons claiming from or through Soma Boi. The question then is whether the plaintiffs claim from or through Soma Boi. The Privy Council in Runchor bos v. Parvathi Bai I L.R. (1899) B 725 distinctly laid down that reversioners are not persons claiming from or through a female heir so as to make possession adverse to her and adverse to the reversioners and that adverse possession against reversioners began only from the time when they became entitled to possession. The exact question now raised came up for decision before the Calcutta High Court in Srinath Kur v. Prosunno Kumar Ghose I.L.R. (1883) C. 934 and a Full Bench of that Court had no hesitation in holding that reversioners were not barred. See also Kokilmoni Dassia v. Manic Chandra Joaddar I.L.R. (1885) C.791 and Braja Lal Sen v. Jeban Krishna Roy I.L.R. (1898) C. 285. It has been held by this Court in Koncharla Venkataraman v. Kogonti Venkataramiah (1914) 27 M.L.J. 569 : : (1914)27MLJ569 that the time allowed for an action by an adopted son to recover possession of immovable property held adversely to his adopting mother was 12 years from the date of his adoption. There is no specific article in the Limitation Acts of 1871, 1877 or 1908 for a suit by an adopted son and the article applicable is the residuary Article 144. The learned Judges had no hesitation in holding that the adverse possession of a trespasser against the widow was not adverse possession against the adopted son and that there can be no adverse possession till the adopted son became entitled to possession, that is, on his adoption. We think the principle of this decision applies to this case. It is no doubt true that in Srinath Kur v. Prosunno Kumar Ghose I.L.R. (1883) C. 934 reference was made to the articles applicable to remaindermen and reversioners terms scarcely applicable to the socailed reversionary heirs to a deceased Hindu male, who have no estate so long as the heiress is alive and no reference is made to Article 144, the residuary article in respect of suits for immovable property It may also be noted that Seshagiri Aiyar J. in the latter case cites Sambasiva v. Ragava I.L.R. (1890) M. 512 as authority for his position without noting that that case had been overruled on review. We think however the principle is not affected by this. The case of P. Jagannatha Rao v. Rama Doss I.L.R. (1904) M. 197 does not affect the present question, as there the question related to the office of trustee in which the widow had. no beneficial interest; in fact that very case recognises the principle that adverse possession against the ultimate reversioner does not begin till he is entitled to possession.
5. We must therefore reverse the decree of the Lower Court and decree the plaintiffs' suit in respect of the properties the subject of the appeal with costs here and in the Lower Court. The plaintiffs are also entitled to mesne profits from the date of the suit at the rate fixed by the Lower Court.