1. The controversy in this case relates to a dispute among certain members of the Tagore family over the right to administer the trusts of the will of one Kiranmali Mukerjee.
2. The suit arises in this way : Bonomali Mukerji founded and dedicated to two deities a temple in' Monoharpukur Road, Ballygunge. He died in 1892, leaving him surving Kiranmaii Mukerjee and a daughter Mahaprova Debi. The daughter had two sons Aurabindo and Rabindra, and they are the plaintiffs. On 9th November 1903 Kiran died, having made a will of which he appointed one Pundarikakshya the executor and trustee. In his will, Kiran stated that he died possessed of no moveable or immovable properties, and that he had made provision for his wife Mayabini Debi; and he directed the executor and trustee to pay his debts, and to celebrate the pujah of the two deities at the temple in Ballygunge in the same manner that he had done in his lifetime. He further directed inter alia that a sum of Rs. 10,000 the subject-matter of a life policy should be collected, and that out of the proceeds certain legacies should be paid, and the balance of Bs. 8,000 invested in 3 per cent. Government securities. Out of the income accruing from the Rs. 8,000 twelve Brahmins were to be fed on the occasion of the anniversary of the sradh of his father and mother and the expenses of the pujahs were to be defrayed, and he directed that the balance (if any) of the income should be spent on the construction and repairs of the temple.
3. Whether Pundari on Kiran's death became the sebait of the deities, with such consequences as would follow therefrom, I do not propose to decide in this case, not because such matters are not relevant, but because in the plaint it is specifically requested that matters connected with the sebaiti should be excluded from the scope of the suit, and in my opinion, having regarded the nature of the claim, I am in a position otherwise to dispose of it.
4. Now Pundari was not a beneficiary under Kiran's will but was a bare trustee of the funds which were charged for debutter purposes. From the death of Kiran until the death of Pundari on 23rd October 1910 Pundari faithfully and duly carried out the trusts of Kiran's will. After Pundari's death, however, it was ascertained that under his will he had left all his property to his wife, who was the younger sister of the wife of Bonomali, and a daughter of the late Maharaja Tagore. He appointed his wife the executrix of the will, and further provided that
the aforesaid executrix of mine, her heirs or he whom she may appoint, shall continue to spend in connexion with the sheba of the God and Goddess at Ballygunge, in the same manner which I have been spending, the income derived from the Government promissory notes to the value of Rs. 8,000 which are with you, and which belonged to the estate of Kiran.
5. By his will, therefore, Pundari purported to appoint the defendant, his wife, the trustee of the property that had passed to him as trustee under the will of Kiran. That in my opinion, he was not entitled by law to do, and it is the common case of both parties that after the death of Pundari, the defendant did not become entitled to act as the trustee of the will of Kiran or to have the possession or management of the trust property. Who, then was entitled to act as the trustee? It is the common case of both parties, and for the purposes of this suit I will assume, without deciding, that the persons entitled to the possession and management of the trust property under Kiran's will were Kiran's heirs. Again, it is common ground that the heir of Kiran was his widow Mayabini, and that the reversionary heirs were the plaintiffs. Assuming, therefore, that Mayabini was entitled to possession of the trust property, and to carry out the trusts created under the will of Kiran, it is conceded that she never took possession of the trust property, or exercised her rights as trustee under Kiran's will. From the death of Pundari in 1910 until the present time I hold that the defendant has been in exclusive possession of the trust property and that the trusts of Kiran's will throughout this period have been faithfully Carried out by the defendant openly, and as of right, and without, asking or obtaining Myabini's permission in that behalf. The defendant was examined on commission. I refer to certain questions and the answers that she made:
Q. 35. How did your husband entrust you with the charge, of the idol? By his will, and I have carried on the sheba in the same mariner in which my husband had been doings.
Q. 36. Did Mayabini know that your husband had entrusted you by his will, faith the sheba? Yes.
Q. 37. Generally were the facts that Kiran and your husband by their will made provision for the sheba well-known in the family, or were they kept secret? Nothing was kept secret. Everybody knew about it.
Q. Did Mayabini ever make any claim against either you or your husband in respect of the sheba? Never.
Q. Did your husband or you ever take Mayabini's permission or consent in the matter of the Thakur and the sheba? Never.
As thefts had occurred at the temple the defendant was asked:
Question 138. - Did you send information to Mayabini of these thefts? Where was she at the time? - Well, one thing I remember it that she was alive, but why should I inform her when the thakur was mine?
6. I hold upon the evidence that from the death of Pundari in 1910 until the present time the defendant openly, and as of right, to the knowledge and. without obtaining the permission of Mayabini or the plaintiffs or anybody else, in fact, has been in possession of the trust property, and duly has carried out the trusts of Kiran's will in respect of this de-butter estate. I hold further that in the circumstances her acts and possession were adverse to the rights of Mayabini, and if, and in so far as Mayabini as the heir of Kiran was entitled to the possession and management of the trust property, it is conceded by the plaintiffs and I hold that her rights and title were barred by limitation.
7. But that does not dispose of the plaintiffs claim for learned Counsel contended that the plaintiffs as reversioners could, not be prejudiced by any act or omission on the part of Mayabini, and, although Mayabini through her negligence or otherwise had lost her rights as the heir of Kiran by adverse possession, the rights of the plaintiffs as Kiran's reversioners were thereby not affected, for they claimed through Kiran and not through Mayabini, his widow. In support of his contention M.A.N. Choudhury cited Ranchordas Vandravandas v. Parbhatibhai (1899) 23 Bom. 725. I confess that if the matter were res integra, or if the meaning and effect of the decision in Banohordas' case (1899) 23 Bom. 725 had not been explained by the Judicial Committee in Vaithialinya Mudaliar v. Srirangath Anni I should have thought that the view which the plaintiffs urged upon the Court was correct, as being in consonance with the conception of the widow's estate in Hindu law. And the reason is this : that a Hindu reversioner has no right or interest in praesenti in the property which a female owner holds for her life, until it vests in him on her death, should he survive her, he has nothing to assign or to relinquish, or even to transmit to his heirs. His right becomes concrete only on her demise; until then it is a mere spes successionis per Syed Ameer Ali in Amrit Narayan v. Gaya Singh A.I.R. 1917 P.C. 95. No doubt, if by reason of the widow's acts or omissions there is danger that the corpus of the estate may be wasted appropriate steps may be taken by the reversioners to prevent the wastage taking, place, but I doubt whether it is in accordance with the principles of the Hindu law of inheritance that the reversionary heirs, who during the subsistence of the widow's estate have no present right or interest in the property, and who do not in any sense trade their title through the widow, should lose their rights as reversioners merely because the widow has suffered her title and interest in the estate to be destroyed By adverse possession. I have ventured to indioate my opinion on this subject because in Vaithialinga's case A.I.R. 1925 P.C. 249 the Judicial Committee did not think it necessary for the purposes of that case to 'make any formal pronouncement upon this point' (ibid p. 893), although in the present state of the authorities I am clearly of opinion that the contention of the plaintiff's cannot prevail, and that the plaintiff's claim as the reversioners of Kiran is barred by limitation.
8. The law stands in this way : In 1852, before the enactment of the Limitation Act (14 of 1859), Peel, C.J. observed that:
it has been invariably considered for many years that the widow fully represented the estate, and it is also settled law that adverse possession which bars her bars the heir after her which would not be the case if she were a mere tenant for life as known to the English law : Golackmani Dev v. Digumber De 2 Boul. Rep. 193.
9. Again, in 1863, in katama Natchiar v. Raja of Shivayunga (1863) 9 M.I.A. 539 (P.C.) the Judicial Committee laid down that
the whole estate would for the time be Vested in her, absolutely for some purposes, though in some respects for a qualified interest and until her death it could not he ascertained who would be entitled to succeed. The same principle which has prevailed in the Courts in this country as to tenants-in-tail representing the inheritance would seem to apply to the case of a Hindu widow and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding, heirs were not bound by a decree fairly and properly obtained against the widow.
10. Now it is settled beyond doubt or controversy that a decree fairly. obtained against a Hindu widow in respect of a transaction in which the represents the estate is binding upon the reversioners : Shivagunga's case (1963) 9 M.I.A. 539 (P.C.) supra; Jugal Kishore v. Jotendra Mohan (1884) 10 Cal. 985, Harinath Chatterjee v. Mathur Mohan (1894) 21 Cal. 8, Vaithalinga's case , and on principle I can find no ground upon which to differentiate between the loss, of the reversioner's rights by adverse possession against a widow, and the loss of such rights by an adverse decree against her. In Nobin Chandra Chakraburtty v. Issur Chunder Chuakerbutty 9 W.R. 505 Peacock, C.J., observed that:
It is said that the reversionary heirs could not sue (for possession) duing the lifetime of the widow, and that, therefore they ought, not to be barred by any adverse holding against the widow at a time where they could not sue. But when we look at the widow as a representative and see that the reversionary heirs are bound by decrees relating to her husband's estate which are obtained against her without fraud or collusion, we are of opinion that they are also bound by limitation, by which she without fraud or collusion is barred.
11. I respectfully agree with the view expressed by Jackson, J., in the same case when his Lordship observed that
it has been distinctly held by Privy Council in the Shivagunga case (1863) 9 M.I.A. 539 (P.C.) that a decision fairly arrived at without fraud or collusion in the presence of a Hindu widow in possession of the estate will, bind reversionary heirs, that being so decided it appears to me impossible to escape the conclusion that an adverse possession which barred the : widow will also bar the heirs (ibid p. 510; se also per Macpherson, J. Harinath Chaktrabutty v. Mattour Mohan (1894) 21 Cal. 8.
12. Now, it must be taken as settled that the law thus stated is the common law of the Hindu community, and when applied to the facts of the present case it is fated to the plaintiffs' claim.
13. But has not the law been altered by legistation since these judgments were delivered? That is a question which has occasioned much discussion and given rise to a serious difference of opinion among the Courts in India.
14. Under, the Limitation Act (14 of, 1859, Sections l2 and 16) the limitation for suits to recover immovable and moveable property was 12 and 6 years respectively from, the time the cause of action arose. But under the Limitation Act (9 of 1871, Schedule 2, Article 142) a suit by a Hindu reversioner
entitled to tha possession of immovable property on the death of a Hindu widow
must be brought within 12 years of the time 'when the widow dies', and under the Limitation Act (15 of 1877, Schedule 2, Article 141 a)
like suit by a Hindu or Mahomedan entitled to the possession of immovable property on the death of a Hindu or Mahomedan female
must be brought within 12 years of the time 'when the female dies.' Article 141, Schedule 2, to the present Limitation Act (9 of 1908) is in the same terms. With respect to moveable property, however, there has been no change in substance, for in, the later Acts the period of limitation is six years from the time 'when the right to sue accrues' Article 118 (1871), Art. 120 (1877 and 1908).
15. Now, in Srinath Kur v. Prosonna Kumar Ghose (1883) 9 Cal. 934, a Full Bench of the Calcutta High Court held that the Limitation Acts of 1871 and 1877 had effected a change in the law, and
that the rule which was laid down under the Limitation Act of 1859 is no longer the law under the Acts of 1871 and 1877. A reversioner who succeeds to immovable property has now 12 years to bring the suit from the time, when the estate falls into possession : per Garth, C.J., ibid at p. 937.
16. The same view was taken by the Allahabad High Court in Ramkali v. Kedarnath (1892) 14 All. 156, and by the Bombay High Court in Vundravandas v. Cursondas (1897) 21 Bom. 646, in which case Farran, C.J., observed
that it (i.e., the legislature) has designedly altered the law which formerly prevailed upon this subject as laid down in Nobin Chandra v. Issur Chunder 9 W.R. 505, and approved by the Privy Council in Amrito Lal v. Rajoni Kant (1874) 2 I.A. 113 is obvious, (ibid at p. 669).
17. In 1899 Vundravandas' case (1897) 21 Bom. 646 was heard on appeal by the Privy Council under the name of Runchordas v. Parbatibhai (1918) 22 C.W.N. 662, and the decision of Farran, C.J., and Tyabji, J., in substance, was affirmed, their Lordships, however, further holding that even in respect of moveables to which Article 141 did not apply the reversioners' 'right to this property, if any, accrued at the death of' the widow.
18. I shall not presume, indeed, it would be of no avail to express my own opinion as to what was decided in Runchordas's case (1899) 23 Bom. 725, for in Vaithialinga v. Sriranath , the Judicial Committee, explained what was the meaning and effect of that decision, and the interpretation which their Lordships put upon that case is binding upon all the Courts of India. The Judicial Committee, as I apprehend the judgment in Vaithialinga's case , were of opinion that Sir Richard Couch, who had delivered the judgment of the Board both in Runchordas's case (1899) 23 Bom. 725 and in Harinath Chuckerbutty v. Mathur Mohan (1894) 21 Cal. 8 did not intend in Runchordas's case (1899) 23 Bom. 725 in any way to discredit the rule laid down in Shivagunga's case (1863) 9 M.I.A. 539 (P.C.) which had expressly been approved and applied in Harinath Chatterjee v. Mathur Mohan (1894) 21 Cal. 8, and that in Runchordas v. Parvatibhai (1899) 23 Bom. 725, in the circumstances obtaining in that case, there was no room for the application of the rule in Shivagunga's case (1863) 9 M.I.A. 539 (P.C.). What, then, was decided in Harinath Chatterjee v. Mathur Mohan (1894) 21 Cal. 8? In that case the question that fell for determination was whether the rule in Shivagunga's case (1863) 9 M.I.A. 539 (P.C,), namely, that an adverse decree against a Hindu widow bound the reversioner, was applicable to the case where a daughter (by name Sampurna) had succeeded to the widow's estate. Sir Richard Couch delivered the judgment of the Board, and in reference to a contention that the plaintiff as reversioner had by the terms of Article 141 a period of 12 years from her (i.e., Sampuma's) death to bring his suit, observed that
their Lordships see no ground for this contention. The words entitled to the possession of immovable property refer to the existing law. Under that, law the plaintiff, being bound by the decree against Sampurna, would not be entitled to bring a suit for possession. The intention of the law of limitation is not to give a right when there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right. The purpose of Schedule 2 in each of the Act s is only to prescribe the period of limitation for the suit. That appears from Section 4 bf each Act. The prescribed periods are to be applied to suits founded on the existing law, and Article 141 cannot be construed, as altering the law respecting the effect of a decree.
19. In Sardar Sundari v. Dayamayi Dasya (1880) 5 Cal. 938, Jackson, and Tottenham, JJ., had taken the same view, holding that
the person entitled to the possession of immovable property on the death of a Hindu widow means a person who succeeds to a certain right which is in being on the death of the Hindu widow, and that if the title which would have enabled that widow to hold the estate as a widow had become barred before her death the reversioner who would be the next taker is not to be entitled to possession of the property on the death, of the widow.
20. Now, in Vaithilinga's case , although it became unnecessary for the Judicial Committee 'to make any formal pronouncement upon' the question whether adverse possession obtained against a Hindu widow binds the reversioners, inasmuch as in that case it was held that the reversioner's claim was barred under Article 129, Schedule 2, Act 9, 1871; nevertheless, as the issue had been raised and canvassed both in the Indian Courts and in the Privy Council their Lordships proceeded to examine the case law as to the effect upon the rights of the reversioners of a title gained by adverse possession against a Hindu widow. It may be that the observations of the Board upon that matter were obiter, but merely upon that ground I should not be entitled to disregard them, and the less so as their Lordships indicated clearly how in their opinion the law upon the subject stands. After analyzing the material cases and expressing approval of the law as laid down in the earlier authorities, Sir John Edge observed that
the result of the cases to which their lordships have referred shows, in their opinion, that the Board has invariably applied the rules of the Shivagunga's case (1863) 9 M.I.A. 539 (P.C.) as sound Hindu law where that rule was applicable.
21. In these circumstances, therefore, I hold that the common law of the Hindu community which is to be collected from Goluckmani Dasi v. Digambar De 2 Boul. Rep. 193, Shivagunga's case (1863) 9 M.I.A. 539 (P.C.), and Nabin Chunder Chukerbutty v. Issur Chunder Chuckerbutty 9 W.R. 505, is still the law of the land and has been-neither abrogated nor varied by any legislative enactment.
22. Now, the trust property in suit is moveable property to which Article 141 is not applicable, but whether the appropriate article of the Limitations Act is Article 49 or Article 120 in either case, and notwithstanding Runchordas v. Paryatibhai (1899) 23 Bom. 725, I hold that the plaintiffs' claim to recover possession of such property from the defendant fails as it is barred by limitation.
23. That disposes of all the questions raised in this case with respect to the trust property, for it is to be observed that the plaintiffs have not brought this, suit as the trustees, but as the heirs of Kiran. Mr. Chowdhuri in his reply expressly stated that the plaintiffs did not sue in a representative capacity as trustees, and it is obvious, having regard to the frame of the suit and the form of the pleadings, that Section 10, Lim. Act, does not apply. The defendant did not purport to hold the, property in a manner adverse to the trust, and the plaintiffs did not purport to bring this suit either as beneficiaries under the trust, or on behalf of the trust, but
for their own personal right to manage or in some way to control the management of the endowment. The consequence is that the case does not fall within Section 10, Lim. Act : Balwant Rao Bishwant Chandra Chor v. Puranmal Chobey (1884) 6 All. 1.
24. In substance and in fact the plaintiffs are suing in their personal capacity as the heirs of Kiran to recover possession of such part of the estate of Kiran as came1 into the defendant's possession as the executrix of Pundari. But I hold upon, the (facts that the plaintiffs have not proved that the defendant as the executrix of Pundari or otherwise obtained possession of any property that belonged to Kiran other than the trust property. The defendant has been examined and cross-examined, and her evidence supports the conclusion at which I have arrived. The statement in Kiran's will that he had no moveable or immovable property further strengthens that view, and, in my opinion, an examination of the affidavit of assets filed in connexion with Kiran's will places the matter beyond doubt or controversy. I find, therefore, upon the evidence that the plaintiffs have failed to prove that the defendant has been in possession, or is in possession of any part of Kiran's estate exclusive of the debutter property. The plaintiffs' claim contains other forms of relief, but these are ancillary to the main claim for possession.
25. For these reasons the suit must be dismissed with costs on scale No. 2 including the cost of the commission.