1. The appellant is the 1st defendant in a suit brought by the plaintiffs as reversionary heirs of one Gurunatha Aiyar impleading numerous other defendants who have not appealed. The plaintiffs claimed to be the reversioners and this fact was disputed by the defendants but they only put plaintiffs to proof of it. P.Ws. 1 to 7 have all given evidence on the point and their evidence has been believed by the learned Subordinate Judge. Certain criticisms have been put forward in this Court which contain nothing of sufficient importance to discredit the testimony of the witnesses who have been believed by the Trial Judge who had the opportunity of seeing and hearing them give their evidence. It is also significant that defendants 1 to 3 were not prepared to go into the witness box and swear that the plaintiffs were not members of their family, a fact which must be within their knowledge. We must, therefore, accept the finding that the plaintiffs are reversioners.
2. The second finding of fact relates to the question of who was the last male holder. The plaintiffs say that Gurunatha Aiyar was the last male holder but the defendants contend that he predeceased his father, Chidambaram Aiyar, who was the last male holder. The evidence is all on one side, namely, that of P.Ws. 2, 4, 5 and 7, which is unrebutted by any evidence for the defendants. That evidence is also supported by some prior proceedings in Court where the question had been raised. The learned Subordinate Judge has believed these witnesses and we see no reason to differ from his conclusion.
3. The plaintiffs' case was that Gomathi Ammal, the widow of Gurunatha Aiyar, came into possession of her husband's property and surrendered the appeal items to her sister-in-law Kamakshi Ammal, and that there was no necessity for that surrender, and, consequently, the plaintiffs entitled to recover the properties now. The defendants first of all took the plea that Gurunatha Aiyar was not the last male holder but Kamakshi's father, Chidambaram Aiyar, from whom she, Kamakshi, inherited the property. In setting out their case in the written statement the plea that Chidambaram Aiyar was the last male holder comes first and then we come to para. 11:
In the face of it, it is absurd to state in para. 6 of the plaint that Gomathi Ammal surrendered some of the properties to Kamakshi Ammal. There was no necessity for such a surrender either.
4. Thus ends their first plea. Para. 12 runs:
Even if it should he proved that Gurunatha Aiyar died after Chidambaram Aiyar, inasmuch as the surrender was made to Subbalakshmi in the interest of her daughter Kamakshi Ammal and her heirs according to the arrangement made by the dayadis with their full consent and as the same has been admitted by the plaintiff and others, that arrangement is binding on them.
5. This paragraph is a clear admission that, if it should be proved, as has been done, that Gurunatha Aiyar died after Chidambara Aiyar there was a surrender by Gomathi Ammal as was also pleaded by the plaintiffs but not in precisely the same form for they alleged that the surrender was direct to Kamakshi Ammal whereas the defendants say that it was to Subbalakshmi Ammal on Kamakshi's behalf. On this plea it is incumbent on the defendants to show that the surrender was a valid surrender and their mere statement that the surrender was valid according to the arrangement made by the dayadis does not constitute a part of their admission that there was a surrender, but is a plea that even if there was a surrender that surrender was a valid surrender. It is, therefore, incumbent on the defendants to prove the validity of the surrender by the widow of portion of the husband's estate. No attempt whatever has been made to prove this. Therefore no question of adverse possession by the alienees can arise in this suit and that is apparently the reason why that question was not raised in the Lower Court.
Notwithstanding the pleadings, a very long argument has been addressed to us with a view to showing that the judgment in Vaithialinga Mudaliar v. Srirangath Anni is authority for holding that adverse possession against the widow is adverse possession against the reversioners. It is unnecessary to determine the question but I will refer to it briefly. The Privy Council in that case were considering the prior decisions relating to the prescription against a widow, more particularly the Sivaganga case, Katama Natchiar v. The Raja of Sivaganga (1863) 9 Moo. I.A. 539. After considering the connected cases their Lordships observe:
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 Sivaganga case (1863) 9 Moo. I.A. 539 as sound Hindu Law where that rule was applicable.
6. In the judgment the only passage where a reference to what the Sivaganga rule really is, is on page 899:
In Hari Nath Chatterjee v. Mothurmohun Goswami it was held that the rule in the Sivaganga case to the effect that an adverse decree against a Hindu widow, binds those claiming in succession applies equally to the case of the daughter.
7. It would appear that the rule in the Sivaganga case referred to by their Lordships was as stated in that sentence and the words are very clear. It has been sought to extend that rule to all cases of adverse possession and that view has been accepted by one Judge of the Allahabad High Court, who formed the minority in a Bench of three Judges, which considered this question. It was also held by a single Judge of the Calcutta High Court, but the opposite view was taken by a Bench of the Calcutta High Court in Siva Prosad Saw v. Sreemati Bhadramoni Dassi (1928) Cri.L.J. 368. With all respect I prefer to adopt the opinion of the majority and hold that Vaithialinga Mudaliar v. Srirangath Anni does not lay down a general rule that adverse possession against the widow, whatever its nature, is adverse to the reversioner irrespective of the provisions of Article 141 of the Limitation Act.
8. The appeal is dismissed with- costs.
9. I agree and I wish to add a few words on the question of limitation which was elaborately argued by the learned Advocate for the appellant. The plaintiff seeks to recover immoveable properties as the reversioner of Gurunatha Aiyar, who died in 1862, on the death of his widow Gomathi Ammal, which took place in 1919. Prima facie the article of limitation which applies to the suit is Article 141 of the present Limitation Act, 1908, according to which the suit is in time as it is filed within twelve years from the death of Gomathi Ammal. It is, however, argued for the appellant that they and their predecessors were in possession of the properties adversely to Gomathi Ammal for more than twelve years. She then re-presented the estate of her husband Gurunatha Aiyar and the effect of her dispossession for more than twelve years was to extinguish her title to the property as the representative of the estate; in other words, that adverse possession for the statutory period of property inherited by a Hindu widow or other female taking a similar estate operates not only to extinguish her title thereto, but also the title of the reversioner who succeeds to the estate on her death. A reversioner, therefore, whose title was thus extinguished, is not one who is 'entitled to the possession of immoveable properties on the death of a Hindu female' within the meaning of column 1 of Article 141 and that Article does not therefore apply to a suit brought by him for possession of the immoveable property on the death of the female. In support of this contention, the learned Advocate for the appellant relies on the decision of the Privy Council in Vaithialinga Mudaliar v. Srirangath Anni .
10. The respondents' Advocate, on the other hand, contends that the proposition that adverse possession against Hindu widow or other qualified Hindu female heir for the statutory period bars the reversioner also was the rule of law under the earlier regulations and the Limitation Act (XIV of 1859). But the legislature changed that rule in Act IX of 1871 by giving a fresh starting point of limitation for a suit by a reversioner to recover immoveable properties which he became entitled to on the death of the widow or other female heir, and that provision has been re-enacted in the later Limitation Acts of 1877 and 1908. Under Act XIV of 1859 and the earlier regulations there was only one starting point of limitation for suits for the recovery of immoveable properties and that was from the time the cause of action arose. When immoveable property to which a Hindu widow or other female heir was entitled was held adversely to her, time began to run from the date the adverse possession commenced and the suit for the recovery of property whether brought by her or by the reversioner who succeeded to the estate after her would be barred unless it is brought within twelve years from that date. But Act IX of 1871 which repealed Act XIV of 1859 changed the law on the point by providing a special article under which the starting point for limitation for the suit by a reversioner arose on the death of the widow, the period of limitation for the suit being twelve years from the death of the widow. This provision was re-enacted in the later Acts and amplified by including in the first column other female heirs also who took the same qualified estate as a widow and on whose death the reversioner succeeded.
11. It is contended that the effect of this change in the law is that adverse possession against a widow which extinguishes her rights does not affect the rights of the reversioner as it did under Act XIV of 1859 and the regulations which preceded that Act.
12. Referring to the change made by Act IX of 1871 and the succeeding Acts, Mr. Rustomji observes as follows:
A Hindu widow's estate and other estates analogous thereto are for purposes of limitation assimilated to an estate of an ordinary tenant for life. So, as no length of adverse possession against the tenant for life bars the reversioners, the same result follows in cases arising under Article 141. The law allows the reversioner twelve years from the female heir's death and it is neither in her power nor in the power of any person claiming through or against her to abbreviate that period. [Adverse possession cannot run against reversioners until after the death of the widow.] If the female heir never obtained possession on the owner's death and it was taken and continued by another person (in no way entitled to the property) adversely to her, the fact that she herself was barred by twelve years of such adverse possession against her will not preclude the reversioner from suing within twelve years of her death.' See Rustomji's Limitation Act, 4th Ed., p. 726.
13. In my opinion this is a correct statement of the law as laid down by the several High Courts and the Privy Council in cases which arose under the Limitation Acts commencing from Act IX of 1871. See also Mayne's Hindu Law, 9th Ed., para. 643 at, pages 951 and 952. The change in the rule of limitation made by Act IX of 1871 does not however affect any title which had been acquired by adverse possession before that Act came into force. See Appasami Odayar v. Subramania Odayar .
14. The question then is whether as contended for the appellant the Privy Council have in Vaithialinga Mudaliar v. Srirangath Anni re-affirmed even with regard to cases arising under the Limitation Acts of 1871, 1877 and 1908 the old rule which was applied to cases governed by Act XIV of 1859, namely, that adverse possession which bars a widow or other female heir also bars the reversioner.
15. A perusal of the judgment of their Lordships in that case shows that the decision against the plaintiff-reversioner on the question of limitation was based on Article 129 of Act IX of 1871 and their Lordship's expressly say that it is therefore unnecessary for them to make any formal pronouncement on the further question which was argued before them, namely, whether adverse possession which bars the widow bars the reversioner also. They however proceed to consider the authorities which were cited in support of that contention and, after doing so, observe as follows:
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 Sivaganga case (1863) 9 Moo. I.A. 539 as sound Hindu Law where that rule is applicable.
16. In the Sivaganga case (1863) 9 Moo. I.A. 539 their Lordships held that the widow who inherits her husband's estate, though she has only a qualified interest therein, represents the estate absolutely for some purposes and that a decree fairly and properly obtained against her in regard to her husband's estate is in the absence of fraud or collusion binding on the reversionary heir.
17. In Nobin Chunder v. Issur Chunder (1868) 9 W.R. 505 in which the question arose under Act XIV of 1859, it was held following the Sivaganga case that as the reversionary heirs are bound by decrees relating to her husband's estate which are obtained against her without fraud or collusion, they are also bound by limitation by which without fraud or collusion she is barred. This view was affirmed by their Lordships in Aumirtolall Base v. Rajoneekant Mitter which was also a case in which the question of limitation related to Act XIV of 1859.
18. After the passing of Act IX of 1871 the question as to the effect of adverse possession against a female heir as regards a suit brought by a reversioner for possession of the estate on her death was considered by a Full Bench of the Calcutta High Court in Srinath Kur v. Prosunno Kumar Ghose I.L.R. (1883) C. 934 In that case the reversioner was a daughter's son to whom Article 142 of Act IX of 1871 did not in terms apply as he succeeded not on the death of the widow but on the death of the daughters of the last male owner. The learned Judges contrasting the provisions of the Act of 1859 with the corresponding provisions in the Acts of 1871 and 1877 held that the decision in Nobin Chunder v. Issur Chunder (1868) 9 W.R. 505 which was passed under the Act of 1859 was no longer the law under the Acts of 1871 and 1877 and that a reversioner who succeeds to immoveable property has under the later Acts twelve years to bring his suit from the death of the female heir. The Full Bench case in Srinath Kur v. Prosunno Kumar Ghose I.L.R. (1883) C. 934 was followed by the other High Courts also as laying down the correct rule on the point decided therein. See Ram Kali v. Kedar Nath I.L.R. (1892) A. 156 and Shrinivasa Raya v. Ramappa Hebbara 30 Ind.Cas. 991.
19. All the other cases reviewed by their Lordships in Vaithialinga Mudaliar v. Srirangath Anni except the case in Runchordas Vandravandas v. Parvatibai relate to the effect of decrees passed against widows, whether such decrees were passed against them in their representative character and hence binding on the reversioners under the rule in the Sivaganga case. It needs scarcely be observed that any decree passed against a widow or other female heir in her representative character will be binding on the reversioner also provided it was a decree fairly and properly obtained against her without fraud or collusion. If her title to any property alleged to belong to her husband's estate was negatived by such a decree, the reversioner being bound by the decree will fail, on the ground of res judicata if he sues for the recovery of the same property; the question is not one of limitation but of res judicata.
20. The case in Hari Nath Chatteyjee v. Mothur Mohun Goswami , which is one of the cases referred to by their Lordships, was one in which the reversioner's suit was held barred by res judicata. In that case the reversioner sued as heir of the last male owner on the death of the latter's last surviving daughter Sampurna. She had brought a suit for the recovery of the properties against the person who was in possession thereof adversely to her and her suit was dismissed on the ground that it was barred by limitation. In the reversioner's suit it was contended that the plea of limitation which was successful against Sampurna was one which could not be raised against the reversioner having regard to Article 142 of the Limitation Acts of 1871 and 1877 and that therefore the decree against Sampurna on a ground which was personal to her cannot bar the reversioner's rights. But their Lordships overruled the contention observing as follows:
The words 'entitled to possession of immoveable property' refer to the then existing law. Under that law the plaintiff being bound by the decree against Sampurna would not be entitled to bring a suit for possession.
21. With regard to this case both Mr. Rustomji and Mr. Mitra in their learned commentaries say that it creates an anomalous position
for while, on the one hand, it has now been well established by all the Courts that no length of possession adverse to the female heir would bar the reversioner (who has twelve years reckoned from her death within which to sue), on the other hand, if she sues to recover the property from the person in adverse possession and fails in her suit, the reversioner is barred by the decree.' See Rustomji's Limitation Act, 4th Ed., p. 728 and Mitra's Limitation Act, Vol. II, 4th Ed., page 1035.
22. The same anomaly is referred to in the judgment of the High Court in that very case which was affirmed by their Lordships in Hari Nath Chatterjee v. Mothur Mohun Goswami But a reference to the facts of the case as stated in Vaithialinga MudaKar v. Srirangath Anni shows that adverse possession against the daughter Sampurna commenced in 1855 when the widow Pearimoni died with the result that Sampurna's rights as representing the estate became barred by limitation under Act XIV of 1859 and under the then law, as held in Nobin Chunder's case (1868) 9 W.R. 505, the adverse possession which barred the daughter also barred the reversioner. If the reversioner is bound by adverse possession against the widow, a decree against her based on such adverse possession would a fortiori be binding on him. It seems to me that read in the light of the facts of the case, the reference to 'the then existing law' as barring the reversioner's right is applicable as referring to the state of the law prior to the coming into force of Act IX of 1871 and in that view there will be no anomaly in the decision of their Lordship's in Hari Nath Chatterjee v. Mother Mohun Go-swami
23. The only other Privy Council case considered by their Lordships which I need refer to here is the case in Runchordas Vandravandas v. Parvatibai . That case has been regarded by all the High Courts as definitely laying down that under the Acts of 1871 and 1877 limitation 'can never begin to run against a reversioner in consequence of any possession or dispossession of a female, so long as she holds as heir of the last male.' See Mayne's Hindu Law, 9th Ed., p. 952.
24. In Vaithialinga Mudaliar v. Srirangath Anni in considering Runchordas Vandravandas v. Parvatibai Sir John Edge observes that in that case the widows of the last male owner did not represent the estate of their husband as they were content to hold under his will, the validity of which they did not question and that the estate was really represented by the executors of their husband's will and so though the possession of the executors was adverse to the real title of the widows, adverse possession against the latter cannot bar the reversioner under the rule in the Sivaganga case as the widows did not represent the estate. In Runchordas Vandravandas v. Parvatibai the last male owner died in 1869 and the case was therefore governed by the Limitation Acts IX of 1871 and XV of 1877. A perusal of the judgment of their Lordships in that case and of the arguments which were advanced before them by the learned Counsel on both sides shows that their Lordships rested their decision on the question of limitation upon Article 141 of Act XV of 1877 which entitled the reversioner to bring his suit within twelve years from the death of the female. Their Lordships also held that Article 144 which makes the time begin to run from when the possession of the defendants became adverse to the plaintiff is not applicable where the suit is otherwise specially provided for, as in this Case by Article 141. Then as regards the contention based on Section 28 of the Limitation Act, their Lordships say that though the title of the widows may be extinguished by the adverse possession of the executors, the reversioner's title was not, as he does not derive his right from or through them, and the extinguishment of their right would not extinguish his. This case has ever since been treated as settling the question that adverse possession against a widow or other female heir does not bar the reversioner under the Acts of 1871, 1877 and 1908.
25. In Vaithialinga Mudaliar v. Srirangath Anni itself, the plea of limitation was also based on adverse possession against the widow Chokkammal held by her adopted son and those claiming from him from 1862 to 1884 as barring her rights as well as those of the reversioner. In 1884 Murugathal, one of the defendants in the suit, who was in possession as the heir of the adopted son, was. dispossessed by the widow Chokkammal. Murugathal thereupon brought a suit against Chokkammal for possession of the properties which she was dispossessed of, maintaining that the adoption by Chokkammal of her husband was valid and that even if it was invalid she had acquired a title by adverse possession. In that suit the adoption of Murugathal's husband was held to be invalid, but she was given a decree for possession on the ground of her having acquired title to the property by adverse possession against the widow Chokkammal.
26. In the subsequent suit brought by the reversioner in which Murugathal and others claiming under her were impleaded as defendants, one of their main pleas was that the decree against the widow Chokkammal in Murugathal's suit operated as res judicata against the plaintiff in respect of his claim in the suit. With reference to that plea their Lordships were inclined to the view that though the adoption was invalid, the decree in favour of Murugathal would be binding on the reversioner under the rule in the Sivaganga case. But the main point on which the suit of the reversioner was dismissed was that it was barred under Article 129 of Act IX of 1871 and that the title of Chokkammal and those claiming after her had under that article as held by the Privy Council in Jagadamba's case become extinguished before Act XV of 1877 came into force. It seems to me that the effect of their Lordships' observations in Vaithialinga Mudaliar v. Srirangath Anni amounts to this : that a decree passed against a widow or other female heir which is otherwise binding against the reversioner under the rule in the Sivaganga case does not cease to be binding on him merely because it was passed on the ground of adverse possession against her which would be of no avail if the reversioner were himself the plaintiff. It may be that the result may be anomalous as has been observed with reference to Hari Nath Chatterjee v. Mothur Mohun Goswami that the reversioner is affected by the widow suing the trespasser and failing in her suit, but he is not affected if she remains inactive and takes no steps to recover the property from the trespasser.
27. In the case before us, there is no question of any previous decree against the widow and the contention rests merely upon adverse possession against the widow. The evidence does not show when adverse possession against Gomathi Ammal commenced; but even assuming that such adverse possession commenced on the death of Gurunatha Aiyar, Gomathi Animal's rights as representing the estate were not barred when Act IX of 1871 came into force. Unless it was so barred, the plaintiff's suit is within time as Gomathi Ammal died only in 1919.
28. The view I take as to the effect of Vaithialinga Mudaliar v. Srirangath Anni is in accordance with that of the majority in the Full Bench case in Bankey Lal v. Raghunath Sahai A.I.R. 1928 A. 561 and that of the Calcutta High Court in Siva Prosad Saw v. Sreemati Bhadramoni Dassi (1928) 48 CRI.L.J. 368.
29. Anrabinda Nath Tagore v. Manorama Debi I.L.R. (1928) C. 903, which is a decision of a single Judge, was also relied on on behalf of the appellant. This was a case relating to trust properties. The female heir in that case who had been dispossessed of property for more than twelve years was entitled thereto not as the heir of the last male owner but as the trustee of the properties, in which capacity there is hardly any difference between a male trustee and a female trustee. See Pydigantam Jagannadha Row v. Rama Doss Pat-naik I.L.R. (1904) M. 197 That case has no bearing on the point and the observations of the learned Judges as to the effect of Vaithialinga Mudaliar v. Srirangath Anni with which I am unable to concur, are obiter.
30. I am, therefore, of opinion that the learned Subordinate Judge was right in holding that this suit is not barred by limitation.