Richard Garth, C.J.
1. The plaintiffs in this case are the heirs of the brothers of one Bikramajit Singh, who is said to have died in 1252 fusli.
2. Bikramajit admittedly left a widow called Sabja, and a daughter, called Moona, who is the mother of the defendant No. 1. He also had a son, Sheo Shahai Singh, whose widow, Khati, is defendant No. 2; and one,--the main--issue in the case, so far as the question of title is concerned, is, whether or not this son survived his father.
3. The plaintiff's case was that he did survive his father, and that after his death his estate descended to his widow, Khati, and that they (the plaintiffs) were the reversionary heirs.
4. The defendant's case, on the other hand, was that Sheo Shahai Singh died before his father, and the estate then passed to Bikramajit's widow, Sabja, and after her death to their daughter, Moona, who, with her son, the defendant No. 1, has taken possession of the property.
5. The plaintiff's brought this suit on the following allegations. They say, in paragraph 2 of the plaint, that after Sheo Shahai's death his widow, Khati, came into possession of the estate, and that Sheo Shahai's mother, that is Sabja, used to live jointly with Khati, and receive her maintenance up to the time of her death in 1276.
6. Then in paragraph 5 they go on to say that the defendant No. 1, having fraudulently brought the defendant No. 2 under his influence, entered upon possession from Agrahan 1277; and (in paragraph 6) that defendant No. 2 having relinquished her right and possession, and having got the name of defendant No. 1 registered, has put him into possession.
7. And they accordingly pray that their title as reversioners may be declared as against defendant No. 1, and that in consequence of defendant No. 2 having wrongfully given over the property to defendant No. 1, they, the plaintiffs, may be declared entitled to recover immediate possession of it.
8. The defence was, as already stated, that the plaintiffs had no title as reversionary heirs; that Sheo Shahai died before his father; and consequently that his widow, Khati, the defendant No. 1, never inherited the property; but that, on the contrary, first, Sabja, and after her death in 1264, the defendant No. 1 and his mother Moona, have been in adverse possession.
9. Defendant No. 2 died during the pendency of the suit; and for this reason the first Court (erroneously as it seems to us) did not think it necessary to try the question of possession. Having found as a fact that Sheo Shahai survived his father, the Munsif came to the conclusion that the plaintiffs were entitled to a decree for possession, as being the reversionary heirs.
10. It is clear, however, that if Sabja and Moona, and the defendant No. 1 have been all along in adverse possession as against Khati, this circumstance, though it might not operate to bar the plaintiffs' title as reversioners, may nevertheless be important as showing that Sheo Shahai never in fact succeeded to his father's estate. Khati was admittedly out of possession at the time when the suit was brought, and it is a circumstance well worthy of consideration that the plaintiffs put the death of the mother Sabja at so recent a period as 1276.
11. The Subordinate Judge disposed of the case on a ground quite irrespective of the question of title. He held that, assuming the plaintiffs to be the reversionary heirs, the plaint disclosed no valid cause of action; and he accordingly dismissed the suit, leaving the question of rights to be determined hereafter.
12. It has been contended before us that this decision of the lower Appellate Court was wrong; and that the plaint, as originally framed, disclosed a sufficient cause of action.
13. It seems clear to us that, so far as the suit was one for immediate possession, it could not have been brought during the lifetime of Khati. Assuming, for the sake of argument, that the estate was properly vested in her, she had a right, of course, to dispose of it for the term of her life in any manner she thought fit. But it is clear from the plaint and written statement, as well as from the issues raised in the first Court, that the mere fact of the defendant No. 2 having given up to the defendant No. 1 the temporary possession of the property, is by no means the real cause of complaint.
14. It is obvious that the question between the parties is a very serious one of title, and possibly also of adverse possession; and what the plaintiffs say is, not that the defendant No. 2 has merely allowed the defendant No. 1 to enter upon possession in her interest, but that she had favoured his claims to the ownership of the property as against those of the plaintiffs and that he has accordingly had his name registered in the landlord's sherista as the trueowner.
15. This is in fact setting up an adverse title as against the plaintiffs; and it is plain from the written statement and the issues that this is the declared intention of defendant No. 1.
16. The suit, therefore, seems to us to be precisely one of those which are referred to by the Privy Council in the late case of Isri But Koer v. Hansbutti Koerain I.L.R. 10 Cal. 324.
17. In that case a Hindu widow had alienated her husband's estate, not for any legal necessity, or for her own personal benefit, but with a view to change the succession, and to give the inheritance to her own heirs, in preference to those of her husband; and the latter, under these circumstances, brought a suit to obtain a declaration, that the alienation made by the widow was only valid for her life, and void as against the reversionary heirs.
18. The High Court in that case had refused to interfere; but the Privy Council held that the plaintiffs were entitled to a decree.
19. In page 332 of the report their Lordships say:
It is laid down, and in their Lordships' opinion correctly, in Shyama Charan Sircar's Vyavastha Darpana, that if a widow, without consent of her husband's heirs, dispose of his property for purposes not sanctioned by law, they are entitled to interfere, and prevent any such wrongful alienation by her, yet it is clear, that a widow may alien her own interest. If then she executes a conveyance valid for her own interest, but purporting to convey a larger interest to the grantee, it is difficult to see how the reversioner can get any relief, except by a declaration that the conveyance is void pro tanto.
He cannot set the deed aside, because it is partly valid; nor can he affect the possession, which the widow has a right to keep or to give up to another. Such suits as this would seem to be, at least in many cases, the only practical mode of enforcing the heir's right to interfere with a widow's alienation.
20. The principle thus laid down by their Lordships appears to us to apply, almost with greater force, in the present instance.
21. The defendant No. 2 is not only charged by the plaintiffs with having made an alienation of her property, which might be good for her life, and void as against the reversionary heirs, but they say that she has relinquished the property in favour of a rival claimant, the defendant No. 1, who, apparently, with her full consent and concurrence, has been registered as the absolute owner.
22. It appears to us that this is the very case in which the reversionary heir is justified in asking the Court to interfere.
23. It is true that under the present Limitation Act his rights as against the rival claimant might not be affected by limitation (see the Full Bench case of Srinath Kur v. Prosunno Kumar Ghose I.L.R. 9 Cal. 934; but it is obvious that, apart from limitation, cases may, and often do occur, in which silence, or apparent acquiescence on the part of a reversioner, in assertions of his rights as against the wrongful acts of a rival claimant, may throw a cloud over his title, and tend seriously to jeopardise his rights.
24. In such cases it is often most desirable, in the interests of justice, that the question should be brought before the Court with as little delay as possible; and we consider that in this instance the plaintiffs were perfectly justified (assuming, of course, that their title is what they state it to be), in asking for the assistance of the Court. The case must, therefore, go back to the Subordinate Judge in order that the issues may be properly tried with a due regard to these observations.
25. The costs in both Courts will abide the result.