Prinsep and Ameer Ali, JJ.
1. Durbijoy Singh was a member of joint Hindu family under Mitakshara law with the predecessors of the first party defendants, but it was held by a competent Court that he had separated from them. He died in January 1849, leaving two widows, Sulagan and Maheshwar. Sulagan died in 1850 leaving daughters, and Maheshwar died childless in 1886. The plaintiff's are the natural heirs to Durbijoy, plaintiffs 1 and 2 being sons of daughters of Sulagan and plaintiff's 3 and 4 sons of a son of a third daughter. As heirs to Durbijoy after the death of his last surviving widow they sue to recover his estate, some of which has been alienated to the second party defendants.
2. The defendants rely on an ikrarnama or will, alleged to have been executed by Durbijoy on the 13th Assin 1255 (7th October 1847), under which, in the event of his leaving no son, he gave Sulagan a life estate in a certain property, Roop Narainpur, and gave his other wife, Maheshwar, his remaining estate; all of which, however, at her death was to go to his uncles and cousins, and they also plead limitation as a bar to this suit.
3. The District Judge has dismissed the suit as barred by limitation, because it is a suit to set aside the ikrarnamah and was not brought within three years from Maheshwar's death, and he has also found that the ikrarnamah is a genuine instrument. The plaintiffs have accordingly appealed.
4. The District Judge has relied on the judgment of their Lordships of the Privy Council in Raj Bahadoor Singh v. Achumbit Lal L.R. 61. A. 110; 6 C.L.R. 12 and in Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri I.L.R. 13 Cal. 308: L.R. 13 I.A. 84 as explaining that case, and he has also quoted Uma Shankar v. Kalka Prasad I.L.R. 6 All. 75.
5. It is contended for the appellants that the suit is to recover immovable property by right of inheritance, and that to set aside the ikrarnamah is not the object of the suit, but one of the probable consequences. The matter is not free from considerable difficulty. The predecessors in estate of the plaintiffs sued to get this ikrarnamah set aside as not a genuine instrument, and that suit was dismissed in three Courts, not on the merits, but because it was premature. The High Court, on l7th December 1864, held that 'the plaintiffs had no cause of action during the lifetime of the widow'. The suit before us has been brought more than three years from the widow's death, and the question is whether it is governed by the limitation of three years for a suit to set aside an instrument, or by the general limitation prescribed for suits to recover immovable property, that is, twelve years after the right accrued by the widow's death. There is no doubt that the widow Maheshwar set up the ikrarnamah. It was set up in Court in March or April 1849, and although the question of its genuineness was raised and evidence was taken, there was no finding delivered. The reason for this was that Maheshwar had an indisputable title to retain possession as the widow of Durbijoy, and therefore no immediate benefit would be derived by any one seeking to impugn the ikrarnamah; although it was set up, it was never acted upon by the widow in such a manner as to prejudice the rights of any reversionary heir until after her death; any alienation by her would necessarily be valid until that time, and this was declared by the order of the High Court of December 1864 in a suit brought for that purpose. Moreover, it was impossible to predict whether any person then claiming to be a reversionary heir would occupy that position at the widow's death. But after the widow's death, although the right of inheritance has become perfected, so that it can be practically enforced, the parties in possession are those who claim under the ikrarnamah, and these cannot be displaced except by setting it aside. We are inclined to take the view expressed by Field, J. in Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. 12 Cal. 69 which is practically that of their Lordships of the Privy Council in the later case of Jagadamba Chaodhrani v. Dahkhina Mohun Roy Chaodhri I.L.R. 13 Cal. 308; L.R. 13 I.A. 84. The case of Janki Kunwar v. Ajit Singh I.L.R. 15 Cal. 58; L.R. 14 I.A. 148 has been cited in this case by the learned Counsel for both sides. It seems to us to be in favour of the defendant and to be in no way in conflict with the case last cited.
6. The plaintiffs were bound to challenge the ikrarnamah on the widow's death, when it was put into effect as against them in continuance of the title asserted by the widow. No doubt as Maheshwar had another and a complete and independent title as a Hindu widow as has already been intimated, the plaintiff's might not be prejudiced by the setting up of the ikrarnamah during her lifetime. But the ikrarnamah was set up by the defendants at her death, and unless plaintiffs can get rid of the title so derived, they cannot succeed. It therefore seems to us that this is the real object of the suit, and that the limitation applicable is three years from the widow's death. We arrive at this conclusion with some regret. The appeal must therefore be dismissed with costs.