1. The circumstances which have given rise to this appeal may be briefly stated. One Bani Chandra Acharya died, according to the plaintiff, in 1871, and according to the defendants, in 1864. He had a brother Radhamohan who died about the year 1876. Their mother Rammoni, according to the present appellants, died on the 3rd of April 1892, but according to the respondents, died sometime in 1889. The plaintiff as reversionary heir of Bani Chandra commenced this action on the 31st March 1904 to recover possession of the disputed property which was admittedly a part of his estate.
2. In the Court of first instance, the plaintiff was met by various defences, amongst which the most important was the plea of limitation. The learned Munsif found that Rammoni died, as alleged by the plaintiff, on the 3rd April 1902, that Article 141 of the Limitation Act was applicable to the case and that consequently the claim was not barred by limitation.
3. Upon appeal, the learned Subordinate Judge held that Article 141 was not applicable at all and that the case was governed by the decision of their Lordships of the Judicial Committee in the case of Lachhan Kunwar v. Manorath Ram 22 C.445; 22 I.A. 25. He found in substance that Radhamohan executed a Will by which he left his properties to his mother Rammoni who held not only the share of Radhamohan but also that of Bani Chandra under the Will; in other words, Rammoni held the disputed property not as the heir of Bani but as absolute owner by virtue of the Will of Radhamohan. In this view of the matter, the Subordinate Judge held that the plaintiff had no title to the property, because his title had been extinguished by adverse possession for the statutory period on the part of the mother of Bani.
4. The plaintiff has now appealed to this Court and on his behalf it has been argued that the learned Subordinate Judge has taken an entirely erroneous view of the effect of the decision of the Judicial Committee in Lachhan Kunwar v. Manorath Ram 22 C.445; 22 I.A. 25. In our opinion this contention is well founded and it has not been seriously contested by the learned Vakil for the respondents. The effect of the decision of the Judicial Committee in Lachhan Kunwar v. Mahorath Ram 22 C.445; 22 I.A. 25 was fully discussed by this Court in the case of Roy Radhakissen v. Nauratan Lall 6 C.L.J. 490 at p. 522 in which it was pointed out that the facts which gave rise to that litigation were of a peculiar character, and all that the Judicial Committee intended to lay down was that although the statute of limitation can never begin to run against the reversioner in consequence of possession or dispossession of a female, so long as she holds as heir of the last male, if she holds under some claim of title independent of him, her possession is hostile to the rightful heir or reversioner from the time it begins. That this is so is obvious from an examination of the later decision of the Judicial Committee in Runchor Das Vandravandas v. Parbatibhai 26 I.A. 715 23 B. 725; 3 C.W.K. 621. Now in the present case it is quite clear that when Bani Chandra died, whether he died in 1864 or 1871, Rammoni became entitled to his share of the property. At that time and for many years afterwards, Rammoni and her son Radhamohan lived as members of a joint family and there does not appear to be any solid foundation for the suggestion that Rammoni might have been excluded from possession by her son Radhamohan who held and intended to hold possession of Bani's share adversely to his mother Rammoni. Even if it was proved that possession was with Radhamohan, as he constituted a joint family with his mother, such possession must, upon well-established principles, be treated in the first instance as rightful possession of joint property by a co-owner. If, therefore, there was no adverse possession on the part of Radhamohan at the time when Bani died, it is difficult to appreciate how the possession of Rammoni became adverse when Radhamohan himself died. Even if it be assumed, therefore, that Rammoni came into actual possession of the property upon the death of Radhamohan, her possession must be attributed to her character as heiress of her son Bani Chandra. It is clear, therefore, that, as against the plaintiff reversioner, limitation began to run from the death of Rammoni. The Court of appeal below, however, has not decided when she died, and as already stated, upon this point, the parties are at variance. The plaintiff alleged that Rammoni died on the 22nd Chaitra 1298, whereas according to the defendants she died sometime in 1296. It is necessary, therefore, to send back the case to the Subordinate Judge in order that the question of' limitation may be decided under Article 141 of the Limitation Act, with reference to the point of time when Rammoni died.
5. It has been suggested by the learned Vakil for the respondents that if the case is to be remitted liberty ought to be reserved to them to argue other questions which were taken in the grounds of appeal before the lower appellate Court. He specified two such questions, namely, first the question of surrender of the interest of Rammoni in favour of Radhamohan and secondly, the question of the legal necessity for the alienation which is the foundation of the title of the present respondents. It is to be observed, however, that although these points appear to have been taken in the memorandum of appeal, it is manifest that they were not pressed before the Court, as the learned Subordinate Judge expressly states that the only point urged before him was the question of limitation. We do not think it would be right for us at this stage to allow the respondents to re-open questions which were not pressed before the Subordinate Judge at the time of the first hearing of the appeal.
6. The result, therefore, is that this appeal must be allowed, the decision of the Subordinate Judge set aside and the case sent back to him to be tried with reference to the one point mentioned in this judgment.
7. Costs of this appeal will abide the result.