P. B. Mukharji, J.
1. This is an appeal by the plaintiff from the judgment of the learned Subordinate Judge dismissing the plaintiff's suit for partition on the only ground that the suit was tarred by limitation under Article 123 of the Limitation. Act.
2. The plaintiff instituted this suit on the 31st May, 1954 against six defendants, four of whom were the defendants and the remaining two pro forma-defendants. The parties are all related to one another. The suit was valued at Rs. 6,000/-. The reliefs claimed in the suit were for a preliminary decree for partition and division by metes and bounds of the plaintiff's 8 annas share in the property in suit and if necessary for appointment of a Commissioner for such division and a final decree. The plaintiff is the daughter of one Bidyabhusan Dey who was the grandson of William Mahendra Nath Das and Srimati Dhanamoni Dasi through their only daughter and child Kumudini. The pro forma defendants are (1) Mrinalini, who is a daughter of Kumudini and a sister of Bidya and (2) Anil a son of Saibalini another deceased sister of Bidya. The real and contesting defendants are the widow Promodini and the sons of Promodini's deceased husband Phanibhusan, the brother of Bidya.
3. William Mahendra Math Das, the ancestor, died in 1911 leaving a will dated the 9th November, 1907. His wife Dhanamoni died in 1913 leaving a Will dated the 18th July, 1911. William and Dhanamoni left only one daughter Kumudini who died on the 25th August, 1923 leaving Bidya, Phani, Mrinalini and Saibalini as her sons and daughters. Bidya died on the 25th February, 1923, Phani died on the 6th February, 1949, Mrinalini died Pending appeal in 1961 and Saibalini had died before leaving the son Anil mentioned above.
4. The plaintiff claimed her title and interest in the estate left by William and Dhanamoni under their respective Wills. The plaint is a plaint for partition of the joint properties inherited by the descendants of William and Dhanamoni through their daughter Kumudini and with reference to the two Wills of William and Dhanamoni. The reliefs are the reliefs ordinarily claimed in a partition suit. The learned Subordinate Judge valued the suit as a suit for partition at Rs. 6,000/-.
5. The defendants, except the pro forma defendants contested the suit and filed their written statements. They denied the title and interest of the plaintiff in the proper-ties left by William and Dhanamoni. In particular they disputed also Dhanamoni's right to make a Will. The pro forma defendants did neither enter their appearance in the suit nor did they file their written statements nor did they appear at any state before the Trial Court.
6. A number of issues were framed among which the main issues were if the suit was barred by limitation and adverse possession and whether the plaintiff had any right, title and interest in the properties in suit and if so what was the share of the plaintiff in the same. The plaintiff won on all the main issues on merits but lost before the Trial Judge on the issue of limitation. The learned Trial Judge held that this was a suit for legacy bequeathed by the testator and therefore must have been brought within 12 years from the date of legacy becoming payable under Article 123 of the Limitation Act. The learned Subordinate Judge held that the legacy became payable to Bidya and Phani on the death of Kumudini and Kumudini died in August, 1923 as appearing in Ext. J (2). Then the learned Subordinate Judge finds that the present suit was filed in 1954 as noticed above which was clearly beyond the period mentioned in Article 123 of the Limitation Act read with Section 28 of the Limitation Act. He relied on a decision of Gurubaksh Singh v. Bhagwan Singh reported in AIR 1924 Lah 561, with corresponding reference to 75 Ind Cas 934.
7. The decision of the learned Subordinate Judge holding that Article 123 of the Limitation Act applied to this case is, in our opinion, clearly wrong in the facts of this race. The Lahore decision on which he relied was based on the earlier decision of Maung Tun Tha v. Ma Thit, 44 Ind APP 42 : (AIR 1916 PC 145), but which was explained and considered by a later decision of the Privy Council in Ghulam Mohammad v. Ghulam Husain, reported in , which the learned Subordinate Judge failed to notice. A long line of authorities in India beginning from at least 1882 held that this Article 123 of the Limitation Act applied only where the suit was brought against an Executor or an Administrator or some person legally charged with the duty of distributing the estate. This is the ratio which was approved and adopted for India by the Judicial Committee in . In this case the suit was neither against an executor nor an administrator nor against a person legally charged with the duty of distributing an estate.
8. This decision and the principles laid down there by the Privy Council was followed in a recent authority in Madras in Meenakshi Sundarammal v. Subramania Ayyar, reported in (S) : AIR1955Mad369 , where a Division Bench of the Madras High Court at page 377 observed that mere possession of the estate could not attract Article 123 of the Limitation Act but that possession must be with a, duty to distribute the legacy. That duty to distribute, in our view, lies ordinarily on an executor or an administrator. The legal duty to distribute the legacy is not upon a legatee, qua legates or a claimant qua claimant under the Will as it is the duty of somebody on whom the duty is cast either by the terms of the will as executor or by an order of the Court as an administrator. We, therefore, do not consider that the Lahore decision is any longer good law. We set aside the finding and tho decision of the learned Subordinate Judge and hold that the suit is not barred under Article 123 of the Limitation Act.
9. We need only add that one of the issues before the learned Subordinate Judge was whether the suit was properly valued and in deciding that issue he accepted the previous order No. 21 dated 22nd May, 1956 holding that the suit was a suit for partition and was properly valued. Therefore, it was not proper for him to hold subsequently that it was not a suit for partition but a suit for a legacy under Article 123 of the Limitation Act. A suit for partition does not become a suit for legacy within the meaning of Article 123 of the Limitation Act simply because the party claiming partition recites existence of Wills among the ancestors under which or through which the joint properties devolved to the descendants.
10. Having regard to our decision on Article 123 of the Limitation Act, and having regard to the fact that the learned Subordinate Judge himself summarised the result of his decision by saying that 'The result of my findings is that the plaintiff could have got the partition of 8 annas of the suit properties if her claim was not barred by limitation'', it must follow that this appeal should succeed.
11. Mr. Mitter, learned Advocate for the contesting respondents, however, turned round to support the decree for dismissal on grounds which were found against such respondents. There is no cross-objection in this case filed by the contesting respondents. Mr. Mitter contended that as this was a decree for dismissal it was not necessary to file cross-objection for the contesting respondents and he should be allowed freedom to urge grounds to support the decree for dismissal even on the points found against his clients. He wished to urge first that the claim was barred by adverse possession and secondly on the construction of the Will of William, that Dhanamoni had no right by her Will to dispose of the property she inherited from William. We allowed and heard Mr. Mitter to urge these two points not-withstanding the fact that his clients have not filed any cress-objections.
12. Taking up the question of adverse possession it is contended by Mr. Mitter that the plaintiff's claim is barred by adverse possession. Now this is a suit for partition. A claim by one co-sharer to defeat another co-sharer by adverse possession, therefore, has to be clearly established according to well settled principles of law. The first principle is that adverse possession to succeed must be one 'nec vi nec clam' and 'nec precario'. In other words, such possession to be adverse must be adequate in continuity, in publicity and in extent to show that the possession was adverse to the competitor. The Privy Council repeatedly laid down this essential requisite for adverse possession in such cases as Secy. of State v. Debendra Lal Khan and Radhamoni Debi v. Collector of Khulna, 27 Ind App 136 at p. 140. The second principle is that for one co-sharer to establish adverse possession as against another co-sharer it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the property. The ouster of the non-possessing co-sharer by the co-sharer in possession who claims, title by adverse possession must be dearly established and made out for normally possession of one co-sharer will be considered in law to be possession of all the co-sharers. Such possession cannot be adverse by merely cherishing a hostile animus without any overt hostile acts to call the attention of the other co-sharers that they are intended to be ousted. The Supreme Court has clearly settled the law or, this point in P. Lakshmi Reddy v. L. Lakshmi Reddy reported in (S) : 1SCR195 by expressly laying down that the burden of proving ouster is on the person claiming to displace the lawful title of a co-sharer by his adverse possession and that there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the knowledge of the other so as to constitute the ouster. Not one of these tests laid down by the Supreme Court and the Privy Council has been satisfied by the contesting respondents and therefore their plea for adverse possession cannot, in our opinion, succeed.
13. The actual plea of the contesting defendants is that the plaintiff's right in the property has been extinguished by adverse possession for more than 20 years by Phanibhusan and themselves. But the learned Subordinate Judge rightly records his finding on this question of fact by holding 'No evidence has been adduced in this suit to prove ouster of the plaintiff by Phanibhusan'. He has discussed the evidence, oral and documentary, and looking at the records we are satisfied that the conclusion that he had arrived at on this point of adverse possession was correct. Particular reference is made to the dakhilas which were marked exhibit A series and the Chek Muri book, exhibit B series, on which reliance was placed by the contesting defendants to show that Phanibhusan alone was paying the rents and collecting rents from the under-tenants. The learned Subordinate Judge was right in holding that these documents were of no help because it was admitted that Phambhusan took out Letters of Administration of estates of both William and Dhanamoni and it will be only natural that he would pay taxes and collect dues from the tenants. Therefore, it is not a clear and hostile assertion of title to prove ouster according to the principles laid down by the Supreme Court. It is also clear from the evidence on record that decrees marked exhibit 7 and 7A show that the landlords sued Phanibhusan for rents only in his capacity as a administrator of the estate even as late as 1932-34 and these decrees were passed on contest. We upheld the learned Subordinate Judge's finding on fact where he says
'Upon a consideration of the oral and documentary evidence adduced by the both sides, I hold that the defence case that Phanibhusan acquired good title to the suit pro-parties by adverse possession against the plaintiff is not proved.'
14. The second point of objection against the finding in the judgment is the plea by the contesting defendants that Dhanamoni had no right to dispose of the properties in suit by Will. On a construction of the Will of William the learned Subordinate Judge came to the view that William granted an absolute estate to Dhanamcni by his Will and not a mere life estate which the contesting defendants urge. If Dhanamoni had only a life estate it is quite clear and obvious that she could not have the right to dispose of the property by her Will. Mr. Witter contends first on this point that the word 'adhikarini' used in the Wili of William so describing the estate given to Dhanamoni is something very different from the usual word 'malik' which means the owner. We have carefully considered this argument and are satisfied that there is no substance in it. In the first place the testator William used the words 'adhikarini' and adhikar in the particular context of his Will to mean the owner in this case. Even for the sons or the daughters who could be the owners on a possible event mentioned there, the word 'adhikari' was employed by the testator. It is well settled rule of construction and interpretation of words in a Will as particularly laid down in Section 86 of the succession Act, that if the same words occur in different parts of the same will, they shall be taken to have been used everywhere in the same sense, unless a contrary intention appears. Cases and precedents on the words 'malik' in other contexts and of other wills cannot control the interpretation of this will before us. Secondly, a limited estate or a life estate was described by the testator William by a different Bengali language or word in that very Will namely, 'Upasatwa' which means and which has been translated as usufruct. If, there-fore, William was granting only a life estate to Dhanamoni and not an absolute estate then he would have used the word 'upasatwa' as he had used in Clause 2 of the Will, thirdly, the testator William in the Will expressly centers on his wife Dhanamoni all rights of 'transfer by way of gift, sale, mortgage etc. the whole or some portion of these properties according to her will,' Now this is express grant of an absolute estate and in the face of this express language it is, in our view, impossible to contend that the grant was only of a limited estate or a life estate to Dhanamoni. If a person could dispose of properties by way of sale or gift according to his will then we do not think it is any longer open to argument that this was a limited or a life estate because no limited or life estate could have that quality of unqualified right of sale, mortgage or gift according to the will of the donee.
15. Having disposed of this question of construction on the merits we think it necessary to add that the contesting defendants should not be allowed to urge this point at all. The father of the contesting defendants namely, Phanibhusan Dey, himself obtained Letters of Administration from the court to administer the Wills of both William and Dhanamoni. Phani himself paid the stamp duty and furnished the security and obtained the Letters of Administration for Dhanamoni's Will. Admittedly, Phani administered Dhanmoni's Will. Now, Dhanament's Will itself provides this -- 'They shall continue to enjoy and possess the same down to their sons and son's sons etc. in succession according to their will and my daughter's sons Sri Bidya Bhuan Dey and Sri Phani Bhusan Dey shall both get in equal shares all my remaining properties and shall go on enjoying and possessing the same according to their will with powers of making gift and sale etc.' That shows that Phani was not only an Administrator but a beneficiary who accepted benefits under the will of Dhanamoni. In those circumstances and on those facts, in our view, it would not have been open to Phani if he were alive, and it would no longer now be open to Phani's heirs who derive their title from Phani, to contend that Dhanamoni could not dispose of her property by will. It is unnecessary to cite cases on this point. But Mr. Dutt Roy who appears for the appellant, cited the decision of a Division Bench of Madras High Court in Lakshmamma v. Sreeramalu reported, in : AIR1927Mad1066 where the principle is laid down that if a person takes a property under a will which is open to him to repudiate but does not do so and where he enjoys the property, pays maintenance which is payable under the will to the widow of the testator and deals with the properly by mortgaging it leading the widow to suppose that she was getting her rights under the will, he cannot at any subsequent stage plead that the widow has no right except under the Hindu Law. Horridge J. in Williams v. Ivans and reported in 1911 P. 175 at p. 178 discusses the question where a person having taken out probate is prevented from disputing the will. According to Horridge J. three things are necessary to constitute estoppel : (1) Representation, (2) the representation is untrue, and (3) that the party to whom it is made has acted on it to his detriment. He then says that the fact before him did not make it a case of estoppel. But the question really was whether there was any rule of the Probate Court which prevented the plaintiff who had taken out probate from taking proceedings to impeach the will. Horridge J, noticed the authority on this point in the case of in the Goods of Chamberlain, (1867) 1 P. find D. 316, in which case the only title the executor had was as an executor who had clothed himself with probate and there at the end of his judgment sir J. P. Wilds at page 319 said -- 'He had an interest under the Will, because he was an executor of it, but his title rested on the will, and stood or fell with it; and it would be a strange thing to hold that, because he was named executor if there was a will, therefore he had an interest in shewing there was not.' Horridge J., however, distinguished that case from the case he was deciding. The question here before us is not also of estoppel. Here the question is whether a person who has taken benefit under a will and has ad-ministered the will as the person authorised under the direction and order of a Court as an Administrator of that will can be allowed to turn round and say that the person who made that will and under which will he had himself taken benefit and which will he had himself administered, had no capacity to make the disposition by that will and the benefit of which disposition he has accepted and enjoyed. In our view the question must be answered in the negative. Such an administrator cannot be allowed to approbate and probate the will and blow hot and cold. He cannot first take the position of an administrator and beneficiary under the will and then challenge the testator's capacity of disposition of property by the will. No doubt it is true that a Court of Probate in issuing either a probate or Letters of Administration does not and cannot conclude a question of interpretation of a clause of the will. But it is not that case at all. It is not a case merely of interpretation of the clause in the will of William Mahendra Das. It is a case of taking benefit under the different will of phanamoni and administering it. We do not think that such an administrator or those who derive title from such administrator to the properties, left and administered by that administrator and devolving subsequently on them can be permitted to take a point that the testator had no capacity to dispose by a will such properties.
16. Lastly, Mr. Mitter contends that this appeal is incompetent because the 6th defendant Mrinalini died during the pendency of this appeal and the appellant has taken no steps to substitute her heir who, we are told, was a daughter. The point has a seeming attraction but has no substance. As stated already Mrinalini was alive when the plaintiff instituted the suit and when the judgment under appeal was delivered. She never entered appearance. She did not file any written statement. She never contested at the trial Court. In fact she took no part. The next tact which is to be remembered is that she is only pro forma defendant and no more.
17. The next point to emphasise in this connection is that this very judgment under appeal expressly did no! affect the rights of the 6th defendant at all. The finding and the order in the judgment of the learned Subordinate Judge on this point is
'The properties recorded in possession of the defendant No. 6 and the mother of the defendant No. 5 shall be excluded from partition as those were given away by Dhana-moni to persons other than Bidya Bhusan and Phani Bhusan.'
That being so, the judgment under appeal does not include the properties in which the defendant No. 6 was interested. It was, therefore, not necessary for the appellant even to make defendant No. 6 as a party to the appeal far less to substitute her heir after her death pending the appeal. Her interest is not affected either by the judgment under appeal or by any possible outcome of this appeal in fact the appellant filed a petition in this Court affirmed on the 4th January, 1963 that these pro forma defendants were not interested in the result of the suit but they were inadvertently included as respondents and therefore claimed dispensation of service of the notice of appeal on the heir and legal representatives of the deceased pro forma respondent No. 6. There was also in that petition a prayer in the alternative that if the Court took another view, then in that event, to substitute the daughter Sushovini Roy as the sole heir and legal representative of the deceased pro forma respondent No. 6. As we grant the first part of the prayer in the petition, namely, we dispense with the service of notice of appeal on the heir and legal representative of the deceased pro forma-respondent No. 5, in the facts and circumstances of the case we do not wish to say anything further on the point except make a reference to the Calcutta Amendments in Order 22 Rule 4(4) and also Order 41 Rule 14(3) of the Civil Procedure Code and to record the death of this pro forma Respondent.
18. For these reasons the appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside. There will be a decree in terms of prayers 'ka' and 'kha' of the plaint, namely, one for a preliminary decree for partition and division by metes and bounds of the plaintiff's 8 as. [eight annas) share in the properties in suit and for the appointment of a Commissioner as prayed for in prayer 'kha'.
19. There will be no order for costs either here or in the Lower Court.
20. Let the records be sent down to the Lower Court as soon as possible.
21. I agree.