1. The suit site in this case was a vacant site of which no effective physical possession was feasible. In such a case, there is no doubt that the presumption is, that, when there has been no effective physical possession, possession will follow title. The lower appellate Court found in this case that plaintiff had no title, and that he had not been in possession within 12 years of suit. The decision on the question of title was one in law, and thus open to agrument in Second Appeal. As there was no very clear finding by the lower appellate Court that defendants had been in physical possession, and that therefore the presumption that possession follows title could not be called in aid on behalf of plaintiff, it was necessary to have the question of law, i. e., the question of the existence of any title in plaintiff, argued.
2. The plaintiff claims title to the property as legatee under the will of a Hindu widow bequeathing her husband's property. It is conceded, of course, that as against a reversioner plaintiff could have no title at all, but it is argued that as against any one but a reversioner, e. g., as against alleged trespassers like defendants, the will would convey a title to plaintiff. For this position a Privy Council Ruling in Bijoy Gopal Mukerji v. Krishna Mahishi Debi (ILR 1907 Cal 329 : 1907 17 MLJ 154 is relied on; wherein it was held that an alienee not for necessity from a Hindu widow took with his alienation sufficient title to resist or eject a trespasser. The alienation in that case was before the widow's death, and naturally is voidable, on good cause shown by the reversioners. But until the reversioners choose to attack it there is no obvious reason why the title, valid at its commencement, if not avoided, and ex hypothesi not yet avoided, should not remain valid until avoided. This seems to me a very different proposition to that of holding that the Hindu widow has the power over her husband's estate of alienation after her death, that she has the right to say to any one ' after my death you shall enjoy my husband's estate, ' when at her death her interest in that estate and therefore her power of disposition over it came to an end. The ruling in Durga Sundari v. Ramakrishna Poddar (1913) CriLJ 162 is clear authority that she has no such power of disposition whatever, and, in my view, a Bench of this Court in Mahalakshmamma v. Vemi Reddi (1922) 44 MLJ 60, has taken the same stand point. See also Raghava Mudaliar v. Narayanaswami Mudaliar (1893) 4 MLJ 88.
3. The right of a trespasser to devise his possessory title, so far as it has reached, is cited by way of analogy, but in the case of a trespasser, his estate, such as it is, is not a limited estate, and the analogy seems to me to fail.
4. I therefore hold that the lower appellate Court's decision on the question of title is correct. I have been urged to refer the question to a Bench, but the I.L.R. 34 Calcutta Case seems to me hardly strong enough foundation for holding that that case made any change in the law on this point as it has been up till now understood, though the interesting argument of the appellant's vakil gave a certain plausibility to his view.
5. As plaintiff therefore has no title, he cannot fall back on any legal possession resting solely on title, and actual physical possession by him within 12 years of suit has been negatived by the lower appellate Court. This appeal must fail.
6. I dismiss the appeal with costs.