Anantakrishna Aiyar, J.
1. The three plaintiffs instituted Suit No. 888 of 1923 on the file of the District Munsif's Court, Kurnool to recover by metes and bounds 3/5 share in the properties mentioned in the plaint which are a house and some lands. The main allegations in the plaint were that the properties belonged to one Polur Ramana, that he died about forty years ago leaving him surviving his widow Pullamma, that the suit properties which belonged to Ramanna devolved on his death on his widow Pullamma, his nearest heir, that Pullamma was in possession of the properties and that she died two months prior to the date of the plaint (para. 1). In para. 3 it was alleged that Ramanna and his brothers were divided in interest. The plaintiffs who are the sons of the brothers of the said Ramanna filed the suit to recover. 3/6 share of the suit properties, alleging that the defendants who are the sons of another brother of the deceased Ramanna are entitled to the remaining 2/5. The 2nd defendant is the contesting defendant. He alleged in his written statement that the suit properties did not belong to the late Ramanna (para. 3) and that there never was a division between Ramanna and his brothers (para. 4). In para. 11 it was alleged that Gurappa, the father of the Palapothala Pullamma was the maternal uncle of the late Ramanna and his brother. Because the said Pullamma was the son-in-law of the family of the Poluru people and was also the maternal uncle's son, the suit properties passed to him (Pullanna) 35 years ago through the said Rosanna, Naganna and others. A plea of limitation was also set up. In this state of the pleadings the learned District Munsif framed the following issues.
2. Issue No. 1, related to the correctness of the genealogy. We are not concerned with that because, there is no dispute now on the question of relationship. The 2nd issue was 'Did the suit properties belong to the late Ramanna?'
3. Was the late Ramanna divided from his brothers as said in the plaint?
4. Whether the suit was in time?
3. There were three other issues, with which we are not now concerned here. The learned District Munsif came to the conclusion on the 2nd issue that the suit properties did not belong to the late Ramanna. He also found that Ramanna died undivided from his brothers. The finding on the issue of limitation was that the suit was barred by limitation. The plaintiffs preferred an appeal to the lower Appellate Court from the decree passed by the District Munsif dismissing their suit. On appeal the lower Appellate Court confirmed the findings of the first Court as regards Issues Nos. 2 and 3, that is, the lower Appellate Court also came to the conclusion that Ramanna died undivided from his brothers and that the properties did not belong to Ramanna. On the question of limitation the lower Appellate Court held that if otherwise the plaintiffs are entitled to succeed on the allegations specified in the plaint, the suit is in time as the widow Pullamma died only two months prior to the date of the plaint.
4. Though the lower Appellate Court found that Ramanna died while undivided from his brothers and also that these properties did not belong to Ramanna, it has by some sort of reasoning which I am not able to understand exactly, found that the plaintiffs are entitled to have a decree as prayed for. In so far as I am able to gather, the reasoning of the learned Subordinate Judge seems to be as follows. In Ex. A which is a gift deed executed by Pullamma in favour of P. W. No. 4 on the 11th March, 1896, there is a statement that 'the properties were acquired by my ancestors. They stand in the accounts in the names of Rosanna and Guranna (brothers of Ramanna) and have been in my possession and enjoyment.' The donee under Ex. A gave the properties to the present 2nd defendant under Ex. Ill dated 3rd October, 1921. The learned Subordinate Judge from that recital and also from a statement made by D. W. No. 3 came to the conclusion that the properties belonged to the family of the parties and that by 'some arrangement' they came to be owned by Pullamma. From that he proceeded to argue that any arrangement that might have been come to between Pullamma and the members of her husband's family must have been an arrangement under which she could have got only a life estate, and that on her death the properties must revert to family. It is on the basis of this reasoning as far as I am able to understand the judgment that, in spite of his findings, on issues Nos. 2 and 3, the learned Subordinate Judge gave a decree in favour of the plaintiff, reversing the decision of the District Munsif. The 2nd defendant has preferred this Second Appeal and on his behalf it was argued by the learned Advocate who appeared for him before me that the case set out in the plaint having been found against by the first Court and the findings of the first Court having been upheld as regards issues Nos. 2 and 3 by the lower Appellate Court, the lower Appellate Court had no alternative but to confirm the dismissal of the suit by the 1st Court. The next point taken for the first time by the lower Appellate Court, namely, that ' some arrangement ' between the members of Pullamma's husband's family and Pullamma by which the properties came to the possession of Pullamma for her life is a point which was not pleaded by the plaintiffs. It cannot be said that there could not be any arrangement by which a husband's brothers could give properties to a deceased brother's widow to be owned absolutely by her. No doubt, as pointed out by the learned Advocate for the respondent, if it is known that in a maintenance arrangement some immoveable properties belonging to the family were given to a widow and if nothing else be known, then the presumption would be that in the property so given to the widow the widow got only a life estate. For it is to satisfy an obligation in respect of maintenance that such an arrangement was made and when the widow for whose maintenance the arrangement was made is no more, that arrangement must be deemed to lapse ipso facto. I he difficulty in my accepting that argument of the learned Advocate for the respondent in the present case is this. The case of the plaintiffs must be inquired into and decided with reference to the allegations with which they came to Court. In this particular case it is absolutely clear that the allegations on which the plaintiffs came to Court are that the properties belonged to Pullamma's husband Ramanna and that on his death the same devolved on the widow and that the widow died two months prior to the suit leaving the plaintiffs and the defendants as reversioners to Ramanna's estate. In such a suit, it is obligatory on the plaintiffs before they could get a decree to prove that the properties belonged to the last male holder Ramanna as whose reversioners they claim the property. The decision of the Privy Council in Dewan Ban Bijai Bahadur Singh v. Indarpal Singh 26 C. 871 : 26 I.A. 226 : 4 C.W.N. 1 : 2 Bom. L.R. 1 : 7 Sar.P.C.J. 578 (P.C.), is, I think, a decision exactly on the point. At page 873 their Lordships lay down the general rule to be that 'he who claims property through some other person must show the property to have been vested in that person.' Their Lordships decided that 'it is incumbent on a plaintiff suing as a reversionary heir of a Hindu proprietor who has died leaving a widow, to show that the property claimed in the suit, and found in her possession has vested in the husband.' In the absence of proof that the property belonged to the husband as whose reversioner the plaintiffs claim in the present suit I think the plaintiffs are not entitled to succeed. See also Ganpat Rama v. Secretary of State for India 62 Ind. Cas. 109 : 45 B. 1106 : 23 Bom. L.R. 462, where in similar circumstances the Privy Council case was followed and applied by Sir Norman Macleod, Chief Justice and Justice Shah. I think the plaintiff's suit should have been dismissed by the lower Appellate Court on this short ground, namely, that on the basis on which the suit was brought and having regard to the findings therein the plaintiffs are not entitled to any remedy. I say nothing with reference to any arrangement that might or might not have been entered into between the husband's brothers of Pullamma and Pullamma herself, because that is not a point with which I am now concerned in the present suit. But the learned Advocate for the respondent [argued that inasmuch as some evidence has been let in the present case showing that the properties belonged to the undivided family and that from the undivided family they came to Pullamma, and as Ex. A itself recites that the properties once belonged to the undivided family, therefore, we must proceed on the footing that there must have been some sort of arrangement as the one referred to by the lower Appellate Court and that the evidence of D. W. No. 3 is clear upon that point. As regards this argument it seems to me that it would be unsafe to have a case decided on a point which is not set forth in the plaint and on which there is no issue, simply because there is evidence on this new point given by some witness examined in the case. As remarked by the Privy Council in the case reported in Annie Besant v.Narayaniah 24 Ind. Cas. 290 : 38 M. 807 : 27 M.L.J. 30 : 18 C.W.N. 1089 : 1 L.W. 520 : (1914) M.W.N. 585 : 16 M.L.T. 165 : 20 C.L.J. 253 : 16 Bom. L.R 625 : 12 A.L.J. 1155 : 41 I.A. 314 (P.C.) when a similar argument was pressed before their Lordships: 'There was no issue as to whether it was or was not desirable in the interests of the infants, that they should give up all idea of a western university education, and return to India. It was urged that the High Court did in fact consider their interests. If it did so it must have been upon evidence admitted as relevant on other issues, and it is by no means apparent that, had a proper issue on the point been directed, further evidence would not have been available;' so that to decide a new issue upon evidence let in for some other purpose collaterally, is not, I think, a satisfactory mode of disposing of such a case. Finally, the learned Advocate for the respondent asked me for permission to have the plaint amended at this stage. I regret I am unable to allow that to be done now. The suit was filed in September, 1923, and that in 1929 I must give a new life to this plaint and allow a new litigation to be started is, I think, not a step which I would be justified in taking under the circumstances of this case. Whatever other remedies the plaintiffs may have, it is, of course, open to them to pursue; but I surely am not prepared at this stage to allow an amendment of the plaint which would necessitate a de novo trial of the suit. For these reasons I allow the Second Appeal and reverse the lower Court's decree and restore that of the District Munsif, with costs in this and in the lower Appellate Court.
5. I do not think this is a case in which I should give permission to file a Letters Patent Appeal.