1. Raja Rajendra Narayan Roy of Bhowal died leaving him surviving three sons, Ranendra Narayan, Ramendra Narayan and Rabindra Narayan, who inherited his properties, known as the Bhowal estate, in equal shares. His second son, Ramendra Narayan, married Bibhabati Debi, the petitioner before us. There is no issue of that marriage. In April 1909 Ramendra Narayan went to Darjeeling accompanied by his wife, Bibhabati Debi, and other relations. There he fell ill and to all appearances died on 8th May 1909. Whether he actually died or not is the most important point in the case. On the assumption that he was dead his wife Bibhabati took possession of his one-third share in the Bhowal Estate as his heir and continued to be in possession, when in the year 1911 she was declared a disqualified proprietor and the Court of Wards assumed charge on her behalf.
2. On 24th April 1930 opposite party No. 1 instituted the suit in the first Court of the Subordinate Judge at Dacca, being Title Suit No. 70 of 1930, which on transfer became Title Suit No. 35 of 1935 of the Court of the Additional District Judge of that place. The principal defendant was Bibhabati Debi, who was made defendant 1. The other defendants, namely 2 to 4, were the widows of Ranendra Narayan and Rabindra Narayan and one Ram Narayan who was alleged to be the adopted son of Rabindra Narayan. The case of opposite party No. 1 was that on the night of 8th May 1909 while lying unconscious as a result of administration of poison in the course of his treatment he was taken for dead and carried to the cremation ground, but before he could be put on the funeral pyre a severe rain storm came on with the result that the funeral party left him unattended and took shelter elsewhere. After the storm was over the said party returned but found the body missing. In fact during the interval he had been removed in an unconscious state by some Naga Sannyasis, for on his regaining consciousness he found himself in their company. His memory of the past was effaced for years and he wandered in their company from place to place as one of their party till he came to Dacca in 1921. There he was recognised by many persons as Kumar Ramendra Narayan Roy, the second son of late Raja Rajendra Narayan and thereafter he revealed his identity on 4th May 1921. The tenants of the Bhowal estate began to pay him rent and Nazar in large numbers with the result that on 3rd June 1921 the Collector of Dacca representing the Court of Wards in conspiracy with Bibhabati Debi and her brother Satyendra Nath Banerjee issued a notice on the tenants of the Bhowal estate in which he was described as an imposter and the tenants were warned of the consequences of payment of rent and Nazar to him. He accordingly prayed for a declaration that he was Kumar Ramendra Narayan Roy, the second son of late Raja Rajendra Narayan Roy of Bhowal, and for a permanent injunction restraining Bibhabati Debi represented by the Manager of the Court of Wards, from causing obstruction to his possession of one-third share of the Bhowal estate. By an amendment of the plaint a prayer for confirmation of possession or, in the event of his possession not being established, for recovery of possession was added.
3. The learned Additional District Judge accepted the allegations made in the plaint to be true. He held that the plaintiff was Kumar Ramendra Narayan Roy of Bhowal. By his decree dated 24th August 1936 he directed him to be put in possession of one-third share of the properties in suit jointly with the other defendants, namely defendants 2 to 4. Against this decree Bibhabati Debi and defendants 3 and 4 filed an appeal in this Court being appeal from Original Decree No. 1 of 1937. This appeal was heard by a Division Bench of three learned Judges, Costello, Biswas and Lodge JJ. The hearing commenced on 14th November 1938 and continued from day to day till 14th August 1939, when the hearing was concluded and judgment reserved. The hearing spread over 164 sittings of the Court. The Court closed for the long vacation on 31st August and re-opened on 16th November. Costello J. proceeded on leave. He left for England during the long vacation and never returned to India. He retired on 15th March 1941. In England he prepared his judgment and signed it on 25th. June 1940. It was sent to India duly authenticated and under the authority of Order 49, Rule 4, Civil P.C., was read in open Court by Biswas J. on 29th August 1940. During his absence on leave Akram J. acted in his place, except for two periods of time, namely for some days in August 1940, when the judgments of the said learned Judges were delivered in open Court, and for some days in February 1941, when Costello J. signed the decree in London. Costello and Biswas JJ. agreed in dismissing the appeal but Lodge J. was for allowing the appeal. As the majority of the Judges composing the Division Bench was of opinion that the appeal ought to be dismissed, the decree, which was signed by all the three learned Judges, has dismissed the appeal. It is against this decree that Bibhabati Debi has filed this application for leave to appeal to His Majesty in Council. The value of the subject-matter of the suit and of the proposed appeal is over Rs. 10,000 but in as much as the decree of this Court has affirmed the decision of the learned Additional District Judge the petitioner has to satisfy us that the proposed appeal involves some substantial question of law. With that object in view the learned advocate appearing for the petitioner has urged the following points before us : I. That the judgment of Costello J. is not a valid judgment and the other two judgments are also invalid ; II. That assuming the judgments to be valid judgments the final order dismissing the appeal is not a valid order ; III. That in any event the judgment of Costello J. was not validly delivered, in as much as (a) Rule 4 of Order 49, Civil P.C., is ultra vires, and (b) even if intra vires, this case does not come within that rule. On the assumption that the judgments of all three Judges were valid judgments and the final order was a valid one, and that Costello J.'s judgment was validly delivered the decision of this Court is vitiated. IV. By the illegality of procedure adopted by the judges in calling up documents and papers not produced or exhibited in the Court of first instance without passing any order for production in open Court ; V. By reason of the fact that the majority of the learned Judges relied upon evidence which is not admissible in law ; VI. By reason of the learned Judges not receiving in evidence documents produced by petitioner which the lower Court had wrongly excluded ; VII. By reason of the fact that both Costello and Biswas JJ. misconceived the functions of an appellate Court and: by reason of that misconception did not weigh the evidence in the case independently as they ought to have done,--Costello J. on the 'Darjeeling Chapter' and Biswas J. on the 'Identity Chapter;' VIII. That the questions of limitation and of prescription have been wrongly decided by all the three learned Judges.
4. After giving our anxious consideration to the arguments of the learned advocates we cannot say on the facts of this case that any one of the aforesaid questions are substantial questions of law. We will shortly state our reasons for arriving at that conclusion. We will first take up the first three points as indicated above. The learned advocate for the petitioner places those points principally on two grounds, namely : (1) that the decision arrived at by this Court was not the result of such discussions and conferences between the three learned Judges, who constituted the Division Bench, as the law, requires, and (2) that Costello J. ceased to be a Judge of this Court at the material points of time, in particular on 25th June 1940, when he signed his judgment in London, or that at least he could not perform the duties of a Judge during the period of his leave. In support of his first ground he places reliance on three reported decisions of this Court, namely, Khelut Chunder Ghose v. Tarachurn Koondoo Chowdhury ('66) 6 W.R. 269, Mohamed Akil v. Assadan-nissa Bibee ('68) 9 W.R. 1 and Narain Chunder v. Dataram Roy ('82) 8 Cal. 597. For supporting his second ground he relies upon Clauses 15 and 36, Letters Patent and Section 222(2), Government of India Act, 1935. The principle laid down in the aforesaid cases is that where the Court which has to decide a case consists of more than one Judge all acts of a judicial nature must be performed not by each Judge acting individually and without reference to the other or others but in consultation with each other. They must bring their minds together on all the essential points of the case. If there is no discussion among them and no exchange of views, or if there are only preliminary discussions among them and they part with the understanding that they would meet again for the final discussion, but without meeting again prepare what they call separate judgments, their so-called judgments would not be regarded as judgments of the Court but only as records of their individual opinions or separate notes of their arguments. It is not necessary for us to say whether the principles have not been widely stated in those cases; but, for the purpose of the case we have before us, we would assume that those are the correct principles.
5. In Khelut Chunder Ghose v. Tarachurn Koondoo Chowdhury ('66) 6 W.R. 269 the two learned Judges of the Division Court, who had differed with each other, (Morgan and Pundit JJ.) had not finally come to a conclusion as to what was the decision to be pronounced by the Court and they had not decided after consultation with each other what were the points upon which they had differed and of which there was no clear indication in the judgments they delivered. It was a case where there was total absence of consultation and exchange of views between the two Judges of the Division Bench. That seems to have been the case also with regard to the case to which Prinsep J. refers at p. 600 of his judgment in Narain Chunder v. Dataram Roy. ('82) 8 Cal. 597. In Mohamed Akil v. Assadan-nissa Bibee ('68) 9 W.R. 1 the nine Judges constituting the Full Bench who had heard the case could not agree with each other at the conclusion of the hearing. They met again but even then they could not agree as to the answer to be given to the point of law which had been referred to the Full Bench. At that meeting the point was not finally discussed and they parted with the understanding that they would meet again for discussion; but, in the meantime, such of the Judges as might wish could put their opinions in writing and those opinions were to be circulated. The Judges, however, never met again and three of the Judges, Trevor, Campbell and Pundit JJ., who ceased to be Judges of the Court either by reason of retirement or death, left their written opinions with the Registrar. The question was whether those opinions could be treated as their judgments. The Court held that they could not be regarded as judgments at all. The salient fact which transpires from the statement as made by the learned Chief Justice is that though there were discussions among the Judges composing the Full Bench, all the Judges were of opinion that those discussions were not sufficient, that the requirements of the case needed further discussion among them and that there was possibility of some of them changing at the further proposed conference the tentative views they had then formed. It is in those circumstances that it was held that what three of the Judges had left with the Registrar of the Court were not judgments but were in effect only notes of argument of those three Judges. We are to see whether the general observations made in those cases apply to the facts of the case which we have before us. The material facts bearing upon this question appear in the two sets of supplementary judgments of Biswas and Lodge JJ.
6. During the course of the hearing of the appeal, which occupied 164 working days, there were very frequent discussions among the three learned Judges. In the course of those discussions, and as a result thereof one of the Judges, Lodge J., had made up his mind on all points. He did not require any further discussion. Biswas J. had also formed an opinion, tentative though it was, as to the result, Costello J. had also made up his mind with regard to some of the points and on those points he seemed to have agreed with Biswas J. On some points, however, he was still undecided. In this state of things, both Biswas and Lodge JJ. communicated their views to Costello J. Biswas J. had the impression that Costello J. was inclined to agree with his views. It may be that Biswas J. had formed a wrong impression, but this shows that the discussions among the Judges were ample. When they parted company neither Biswas J., nor Lodge J. expressed the desire of having further consultations with Costello J., nor is there anything to indicate that Costello J. required any further consultation with his colleagues to assist him in forming his opinion on the points on which he was still undecided. When in England he had before him the whole of the judgment of Lodge J, and a good portion of the judgment of Biswas J. ending with the most important chapter of the case, namely, the Darjeeling Chapter. We cannot accept the contention that where Judges happen to differ they must confer with each other till the last moment with a view to bring unanimity amongst them, and if they do not the separate judgments which they deliver would not be regarded as judgments. It is quite true that there must be discussions and exchange of views amongst Judges composing a Division Bench before the judgments are prepared and delivered. But if there are consultations amongst them, it is for them and them only to judge if further discussions would be fruitful and for them only to say at what stage the discussions amongst them should cease. There cannot, in our judgment, be an absolute rule of law as to what will amount to a sufficient conference for the purpose. The question whether or not the conferences or discussions amount to a sufficient deliberation by which the Judges composing the Division Bench mutually assist each other in arriving at a decision is at most a question of degree, and as such, a question of fact to be determined with reference to the facts and circumstances of each particular case, The point raised is not a question of law, much less a substantial question of law.
7. We are not much impressed by the argument that Costello J. had ceased to be a Judge at the material points of time. That contention cannot stand in the face of Section 220, Government of India Act, 1935. He had not attained the age of sixty, nor had he resigned. In fact he retired from service on 15th March 1941 after he had signed the decree on 5th February 1941. The learned advocate for the petitioner further contends that as Akram J. was acting in his place at the time when he composed his judgment in England and signed it on 25th June 1940, his judgment is not a valid judgment, as he was then, to use the expression of the learned advocate 'statutorily' unable to perform the duties of his office. For substantiating his contention that Costello J. was 'statutorily' unable to perform the duties of his office he has drawn our attention to Section 222, Sub-section (2), Government of India Act, 1935. We are not impressed by this argument. That Sub-section deals with conditions under which a temporary Judge can be appointed. We fail to see how from that provision an intention can be imputed to the Legislature to the effect that a Judge on leave cannot think about a case which he had previously heard or utilize the period of his leave in preparing a judgment which he had reserved just before going on leave. On no principle can a judgment be declared invalid simply because it was composed by him while on leave.
II. The next question that has been argued before us is that the final order that has been passed, namely, the dismissal of the appeal, is not a valid order. Two reasons are assigned for this contention. The first is that Biswas J. could not in law modify the order which he made just after delivery of his first supplementary judgment on 27th August 1940. In that judgment he considered the question as to whether the judgment of Costello J., which had not then been delivered and the contents of which were' then unknown, would be a valid judgment or not. He expressed the opinion that it would not be a valid judgment in a certain contingency, and further indicated definitely what in his opinion ought to be done in the ease, as Lodge J. had differed from him. The ordering portion of his judgment as then dictated by him was that there should be a reference to a third Judge under Clause 36, Letters Patent, on the points on which be and Lodge J. had differed, namely, issues 4 and 5 of the suit. Neither this supplementary judgment nor the order was signed by the learned Judge at that time but a copy of the unsigned order as then made was given to the petitioner by the special order of Biswas J. at the request of her advocate. It is annexure A to the petition for leave. But that copy was given after the advocate for the petitioner had requested the Court to hear submissions on the matter and that request had been granted verbally. It was on the express understanding that the matter would be open for argument that the copy of the unsigned order was given to the petitioner. This has been made clear in para. 66 of the counter affidavit sworn to by Mon Mohan Kay on 23rd February 1942, and by the order which Biswas and Lodge JJ. recorded on 29th August 1940, which expressly stated that arguments would be heard after the long vacation. The matter was in fact argued on 22nd and 25th November 1940. The first supplementary judgment and the order of Biswas J. as passed on 27th August 1940 was therefore a provisional one, and was understood to be so by all concerned. Biswas J. could therefore modify the said order. We do not accordingly see the force of the first reason.
8. The second reason given by the petitioner's advocate is that the final order for dismissal of the appeal was not passed by the three learned Judges after conference with each other. If Costello J.'s judgment was a valid one, and prima facie it was, no discussion or conference amongst the judges was at all necessary for determining what was to be the final order. Two of the learned Judges had agreed in dismissing the appeal and in his signed judgment sent from England Costello J. had stated that the appeal is to be dismissed as Biswas J. had agreed with him. Under Clause 36, Letters Patent, the final order of the Court was to be an order for dismissal of the appeal, an order which was in fact passed by all the three learned Judges, and a decree to that effect was in fact signed by all of them.
III (a). We do not see any reason why Order 49, Rule 4, Civil P.C., is ultra vires. It is a rule made in accordance with the procedure laid down in Part 10, Civil P.C. It is not inconsistent with any of the provisions contained in the body of the Code. We also fail to see how this rule is inconsistent with any provision of the Government of India Act or the Letters Patent. But even apart from that rule there is a considerable body of judicial opinion in India that the judgment of a Judge of the High Court on leave or during his absence can be delivered by his colleague who sat with him on the Division Bench: see for instance Saraj Ranjan v. Premehand ('18) 5 A.I.R. 1918 Cal. 360 and Meyappa Chettiar v. Chidambaram Chettiar ('25) 12 A.I.R. 1925 Mad. 58.
III (b). The case before us clearly comes within the terms of that rule. Costello J. was at the time when his judgment was delivered by Biswas J. a Judge of this Court and what he had sent out to be read was his judgment.
IV. This ground depends on the statements made in the paras. 85 to 93 of the application for leave to appeal and on paras. 56 to 60 of the aforesaid counter-affidavit sworn to by Mon Mohan Roy. It appears that the Registrar of this Court under the instructions of the Court sent a requisition to the Commissioner of the Dacca Division to send a mass of papers. When that fact was known the matter was mentioned in open Court by the learned advocate of the petitioner on 24th July 1939. What transpired in Court on that date is set out in para. 92 of the petition for leave, and what finally happened is set out in para. 59 of the counter affidavit, where the proceedings of 8th August 1939 are set out. It appears from the proceedings of 24th July and 8th August 1939 that although the Registrar had asked the Commissioner of Dacca Division to send the papers to this Court the Judges did not intend those papers to be sent to this Court, but only desired that they should be kept ready at hand by the appellant but before that desire could be communicated to the Board of Revenue, the papers were actually sent to this Court. The Judges, however, never looked into them. Only one document, a letter of 10th May 1921 which was sent with those papers was produced in Court on written orders of the Judges passed in open Court in the presence of the parties and was looked into and marked as exhibit with the consent of both sides.
V. The evidence which is challenged as inadmissible in law falls into two groups : (i) the evidence given by witnesses of the 'Maitra group' and (ii) evidence of the persons who deposed that they had recognised the plaintiff as the Second Kumar of Bhowal.
9. The evidence of the 'Maitra group' is attacked on the ground that it is hearsay, and the evidence of the persons of the second group is challenged on the ground that what those witnesses stated were their opinions only. We have read the evidence of the witnesses of both the groups. The evidence given by the witnesses of the 'Maitra group', e.g. Mr. S.N. Maitra, Prof. Radha Kumud Mukerjee, Prof. Hiralal Roy and Mr. Nagendra Nath Rakshit relate to facts which were within their knowledge. They deposed to the fact that they were invited at about 8 O'clock at night on 8th May 1909 to help in the cremation of Kumar Ramendra Narayan. That evidence, if believed, would lead to the inference that the Kumar died in the evening of 8th May 1909, as is the plaintiff's case, and not at about midnight, as is the defendant's case but we do not see how that evidence can be classed as hearsay evidence of the Kumar's death in the evening. We do not also see how the evidence given by persons who said that they had recognised after some time the plaintiff as the second Kumar of Bhowal can be excluded. That evidence really relates to their own perception when they saw the plaintiff after his appearance at Dacca in 1921 and the recollection of their past perception of the Kumar before his disappearance in 1909.
10. The third ground of attack is that Biswas J. has relied upon the report of Scotland Yard in coming to the conclusion that a certain relevant entry in the Rainfall Register kept by the Darjeeling Municipality had been tampered with at the instance of, or in the interest of defendant 1. The said register was sent by this Court for examination by Scotland Yard with the consent of both parties, but when the report arrived the advocates of the parties did not desire to look into it or to use it as evidence though they offered no objection to the Judges seeing it. The document was not proved or marked as an exhibit. Biswas J., however, referred to it in his judgment, but neither Costello J., nor Lodge J. took any notice of it. The judgment of Biswas J., however, indicates that he arrived at the finding that the entry had been tampered with in the interest of defendant 1 independently of the report of Scotland Yard. Section 167, Evidence Act, makes the point thus taken by the petitioner an unsubstantial one.
VI. A very important point in the case is whether the plaintiff is Kumar Ramendra Narayan Roy, and the importance of that point would remain even if it be found that the Kumar did not die on 8th May 1909 or at all. On the question of identity the plaintiff relied upon physical marks and features and on the evidence of recognition. The defendant's case on the point was that there was no similarity but that assuming that there was some similarity in appearance between the plaintiff and Kumar Ramendra Narayan, the plaintiff cannot be the Kumar because the mental equipment, and the standard of literacy and education of the plaintiff, which was low, cannot bear comparison with the literacy, mental equipment and standard of education of refinement which Ramendra Narayan had. That was the case of defendant 1 from the beginning. The plaintiff was examined in Court from 11th December 1933. He was witness 10 examined in Court. The advocate for defendant 1 cross-examined him in detail and at great length. Many of his questions were directed to test his mental equipment and past habits. After about 300 witnesses had been examined in Court on behalf of the plaintiff, defendant 1 filed with petitions dated 12th, 16th, 17th, 20th, 23rd, 26th April, and 2nd May 1934, (Part 1, Vol. VI, pages 297 and 341) a large number of documents, vouchers and estate papers purporting to bear the signature of Ramendra Narayan in some cases and in some cases his alleged sanction, conveyed by the words 'sanction or granted' alleged to have been written by him. The statement made in those petitions was that they were lying in the Record Room of the estate unnoticed and were discovered only after diligent search. By those papers defendant 1 wanted to prove that Kumar Ramendra Narayan was a man of much superior intellectual standard and of different habits than the plaintiff. Those papers were allowed to be filed but the Additional District Judge expressly recorded orders that their reception in evidence would be considered later on when they would be tendered (Orders Nos. 646, 653 and 670, Part 1, Vol. I). Some of those documents were then put by the defendant's advocate in cross-examination of the plaintiff's witnesses but consistently with the orders previously recorded by the learned Judge he allowed them to be marked for identification only (X 79 to X 276) and not as exhibits in the case, as he had not then decided whether they could be received in evidence in view of Order 13, Rules 1 and 2, Civil P.C., (Order No. 672 dated 26th April 1934 and No. 484 dated 4th May 1934. Part 1, Vol. I and Part 1, Vol. IV, p. 430, line 8 and Part 1, Vol. VII, p. 25). By the last mentioned order he held, and we think rightly, that those documents came within Order 13, Rule 1, Civil P.C. Defendant 1 therefore required leave from the Court under Rule 2 of that Order before they could be used as evidence by her. But her advocate did not ask for leave, till 24th September 1934. In the meantime whenever the learned Judge asked him to apply for leave under Order 13, Rule 2 he took up the position that he would choose his own time to make such an application. He eventually asked for leave but by his order dated 29th September 1934 the learned Judge refused the same (Part 1, Vol. X, page 406). The appellant attacked the aforesaid two orders of the learned Judge dated 4th May and 29th September 1934 in the appeal which she preferred against the decree of the learned Judge and pressed her objections by submitting written notes of argument on the point.
11. The learned Judges of this Court gave consideration to those objections. They admitted some of them on which the signatures had been proved, but did not admit the rest on the ground that no useful purpose would be served and the petitioner's advocate acquiesced. Paragraph 79 of the counter-affidavit of Monmohan Roy taken with the agreed record of the proceedings of the Court of 17th May 1939 establish this position. No doubt no formal order giving reasons was recorded by this Court for not taking them in but the law requires such an order only when documents rejected by the trial Court are received in evidence by the appellate Court, (O. 41, Rule 27, Civil P.C). In any view, the acceptance of these documents was a matter of discretion. In view of the fact that both the trial Judge and Costello and Biswas JJ. have found that a large number of spurious documents have been produced on behalf of the defendant and that the defendant's agents had no scruples in tampering with the evidence we cannot say that the discretion has not been rightly exercised by this Court in not accepting them in evidence.
VII. The argument of the learned advocate for the petitioner on this point rests upon two observations, one made by Costello, J. and the other by Biswas J. in the course of their judgments. The former said that the principle was well established that a Court of appeal confronted with questions of fact ought not to interfere with the decision of the trial Court unless upon a searching review of all the evidence, and the facts and circumstances of the case, it is of opinion that the conclusions arrived at were clearly wrong. Biswas J., dealt with the question of the burden of the appellant in an appeal and quoted with approval the observations of Lord Buck-master in Nabakishore Mandal v. Upendra Kishore Mandal ('22) 9 A.I.R. 1922 P.C. 39 that 'if all he can show is nicely balanced calculations which lead to the equal possibility of the judgment on either the one side or the other being right, he has not succeeded.' The learned advocate for the petitioner says that the observations thus made do not adequately and completely represent the functions of an appellate tribunal. For that purpose he refers us to the observations made in Srish Chandra Nandy v. Rakhalananda Thakur ; Ahsanulla Shah v. Ziauddin Shah ('37) 31 S.L.R. 213 at p. 627 and Flower v. Ebbw Vale Steel Iron and Coal Company (1936) 1936 A.C. 206 at p. 220. It is quite true that every appeal from a Judge trying a case without jury is a retrial, so that the appellate Court is bound to exercise a judgment of its own, because the appellate Court is in its turn a judge of fact. Where the law gives a right of appeal from a judgment of a trial Court on questions of fact as well as on questions of law, the Court of appeal has to consider and weigh the judgment appealed against. It has to examine the materials on the record and to come to its own conclusions. But reading the judgments of Costello and Biswas JJ., we cannot come to the conclusion that the said learned Judges shirked their duty to weigh the evidence and to arrive at their own independent conclusions--Costello J. on the 'Darjeeling Chapter' and Biswas J. on the 'Identity Chapter'. The appeal was heard for 164 days, during which evidence on every point was placed and discussed in detail. All the learned Judges put searching questions to the advocates, and quite a large number; there were frequent discussions between the Bench and Bar. The agreed record of the proceedings of Court prepared from shorthand notes shew all this. Both the learned Judges kept clearly before their mind the vital questions and both of them, as their judgments indicate, detailed in an exhaustive manner the various items of evidence on the record, sifted and weighed them carefully, considered the findings and reasonings of the trial Judge and finally concurred with him. Even if a complete statement of the functions of an appellate Court has not been made in their judgments, their judgments afford ample evidence that they decided the case in a manner in which an appellate Court should, and is required to decide.
VIII. The question of limitation was not argued in open Court but by agreement written notes of argument were placed before the. learned Judges. Those notes have been placed before us. Prom the notes submitted by the petitioner we find that arguments on her behalf were shaped only on the pleadings in the case. No material finding of fact bearing on the question of limitation or adverse possession arrived at by the trial Judge was challenged either therein or in the memorandum of appeal which covered 348 grounds. The finding arrived at by the learned Additional District Judge at p. 122, Part I, Vol. XVIII of his judgment is that the plaintiff began realising rent from the tenants shortly after his arrival at Dacca and continued to do so till about 1930. In support of his finding he referred to many documents. In a letter written by Dr. Ashutosh Das Gupta, who is an important figure in the case and an important witness on the defendant's side, on 5th May 1921 the fact was admitted that even then tenants of the Bhowal estate were paying the plaintiff rent and nazar in large numbers. This letter, which is Ex. 398, has been noticed in the judgment of Biswas J. The Appellate Side Rules of the High Court require the appellant to include in the printed record of the appeal all materials necessary to challenge a finding of the trial Judge which the appellant proposes to challenge (Part 2, Chap. 9, Rule 11 note (1) of the Appellate Side Rules). The collection papers and some of the exhibits on which the learned Additional District Judge relied in arriving at the finding that the plaintiff had been making extensive collection from 1921 to 1930 have not been included in the paper book of the appeal. This affords an additional indication that that finding was not challenged in this Court. In the written notes of arguments on the question of limitation and adverse possession which was put in on behalf of the plaintiff, it was expressly pointed out 'that no question of limitation can arise in this suit in view of the fact that the plaintiff since 4th May 1921 admittedly has been accepting Nazar and realising rent from the tenants as the true owner.' The note then gave the reference to the relevant evidence which covered the period 1921 to 1930. As the finding of the trial Judge had not been challenged in this Court the word admittedly was used. The statement so made in that note was not controverted and has not been challenged even before us by the petitioner's advocate. In this state of things the questions of limitation and prescription are answered by facts.
12. The learned advocate for the petitioner firstly contends that Article 120, Limitation Act, is applicable and time began to run from 3rd June 1921 when the notice to the effect that plaintiff was an imposter was published on behalf of the Board of Revenue. That could have been a possible contention, if the plaint had not been amended by the addition of the prayer for possession. The addition of that prayer attracted either Article,142 or Article 144, Limitation Act, and there is thus no scope for the application of the residuary article, namely Article 120, when the decree that has been granted to the plaintiff is for recovery of possession. It was next submitted by the petitioner's advocate that under Article 142 or Article 144 the plaintiff's suit is barred--at least there arises a substantial question of law for consideration. Both the contentions are met by the aforesaid finding of the learned Additional District Judge which was not challenged as incorrect by the petitioner in this Court. There cannot be on that finding any case of defendant 1 acquiring title by prescription. Kumar Ramendra was in possession till 8th May 1909, and assuming the plaintiff to be the Kumar, and that is the finding of fact of the majority of the Judges of this Court, he began to collect rent and Nazar on or before 5th May 1921, that is within twelve years. He continued to do so thereafter for years. Those acts of possession on his part destroyed the adequacy and interrupted that exclusiveness and continuity which is demanded from any person challenging by possession the title of a rightful owner Kuthali Moothavar v. Peringati Kunhaharan Kutty ('22) 9 A.I.R. 1922 P.C. 181. This suit was instituted in 1930, i.e., within 12 years from the time when the plaintiff first began to collect rent.
13. Regarding the applicability of Article 142, there is no allegation of either dispossession or discontinuance of possession in the plaint and the facts of this case do not either justify such a position. In para. 3 of the plaint, the plaintiff states that during his absence the physical enjoyment of his wife was in law, his possession, and in para. 4 he simply states that after his return obstruction was placed to his full enjoyment of the benefits of the property, although the tenants began to pay him rent on the declaration of his identity which was made on 4th May 1921. If the position indicated in para. 3 of the plaint be correct, that would afford an additional reason for holding that there can be no question either of limitation or of adverse possession of Bibhabati against her husband. She went into possession on the basis that she was her husband's heir. It is well settled that the nature of title which a person acquires by prescription depends upon the nature of his assertion. It is also an established principle, and it has been so formulated by the Judicial Committee of the Privy Council, that where a Hindu lady acquires by prescription title to immovable property on the assertion that she had been possessing it as a Hindu widow, that is, as heir to her husband, that property becomes a part of her husband's estate. It does not become her stridhan, and on her death it would be inherited not by her heirs but by the heirs of her husband, Lajwanti v. Safa Chand ('24) 11 A.I.R. 1924 P.C. 121.
14. If a Hindu widow by prescription acquires only a title for her husband's estate it seems clear that the nature of the assertion involved in her possession is the assertion of her husband's title. It follows, and that is the accepted view, that she in claiming the widow's estate, does not cherish any animus to exclude her husband--on the other hand her animus is one of recognition of her husband's title. Bibbabati's possession was accordingly possession not adverse to her husband, the plaintiff. It must therefore necessarily be on his behalf. For these reasons, we cannot certify the question of limitation or of adverse possession, on which all the three Judges are agreed to be a substantial question of law. We have been finally asked to grant leave under Clause (c) of Section 109, Civil P.C. We cannot accede to that request. There is no question of great public importance. The suit is one for property only and so definable in money value. The case does not in our opinion come within the principles laid down in Banarsi Prasad v. Kashi Kishen Narain ('01) 23 All. 227 and of Badha Krishna v. Swaminatha ('21) 8 A.I.R. 1921 P.C. 25. For the reasons given above, we refuse a certificate and dismiss the application of the petitioner for leave to appeal to His Majesty in Council with costs to the plaintiff opposite party. Hearing fee is assessed at thirty gold mohurs. After we had pronounced our order by which we refused leave to the petitioner to appeal to His Majesty in Council, Mr. Pal states to us on behalf of the petitioner that be does not desire to press his application wherein a prayer was made for taking security from the opposite party No. 1. He further prayed for withdrawal of the said application without prejudice to his putting in such other application as his client may be advised to, if and when an application for special leave to His Majesty in Council is made. We allow him to withdraw the application without prejudice to his rights to make such further application that his client might be advised to make, if and when an application for special leave to His Majesty in Council is made.