1. This is a second appeal preferred by the defendants from concurrent decrees of the Courts below made in favour of the plaintiffs.
2. The suit was brought by the plaintiffs for a declaration of title to certain property and for recovery of possession of the same. It was alleged that the property originally belonged to one Panchu who died in the year 1892. On his death he left a daughter, Maya. His two sons had predeceased him. But the wives of these predeceased sons were alive at Panchu's death. The plaintiffs in their plaint alleged that Panchu was in possession of the property when he died. His daughter Maya died in the year 1943 leaving a son, Bhutnath. On 23rd October 1943 Bhutnath sold the property in dispute to the plaintiffs. They could not get possession of the property and brought this suit for a declaration of title and for possession.
3. The defendants pleaded that Panchu, some two years before his death, had made a gift of the properties in dispute to the two widows of Panchu's two sons who predeceased him and the defendants claimed title through these two widows. A plea of limitation was also raised.
4. Both the Courts below were of opinion that this alleged gift by Panchu in his lifetime to his two daughters in law had not been established and therefore no claim could be made by the defendants to the property through any interest which these two widows had been given in it by this alleged gift.
5. The main contest in the Courts below was on the question of limitation. The lower appellate Court could not find one way or another as to whether Panchu was in possession of the property in dispute when he died. In the view of the lower appellate Court however it was not necessary for the plaintiffs to establish the possession of Panchu at the date of his death. In the view of the lower appellate Court once the plaintiffs had established that they were claiming the property after the termination of the interest of a Hindu female then Article 141, Limitation Act, applied and prima facie the suit was within time, that is, within twelve years of the death of the Hindu female, the daughter Maya. On the other hand, the defendants contended that Article 141, Limitation Act, could never come into play unless the plaintiffs showed that time had not begun to run against the last full owner and before the limited interest of the Hindu female commenced. The lower appellate Court took the view that the onus of showing that Panahu was out of possession at the date of his death rested on the defendants and as they had failed to show that Panchu was out of possession at his death Article 141 applied and consequently the suit was within limitation.
6. Mr. Chandra Sekhar Sen who has appeared on behalf of the defendants-appellants has confined his argument to this question of limitation. He has contended in the first place that Article 141, Limitation Act, can have no application as the plaintiffs were not Hindus or Mahomedans entitled to possession of the properties in dispute on the death of a Hindu female. Admittedly the plaintiffs were purchasers from a Hindu, Bhutnath, who became entitled to the property on the death of his mother Maya. The argument is that Bhutnath possibly could rely on Article 141, Limitation Act, but no purchaser from him could. It is true that Article til refers to a suit by a Hindu entitled to possession of immovable property on the death of a Hindu female and it might be that strictly Article 141 would not cover the case of a purchaser from such a person. However the point is of no real importance by reason of Article 136, Limitation Act, which provides that the period of limitation for a suit by a purchaser at a private sale for possession of immoveable property sold, when the vendor was out of possession at the date of sale, is twelve years from the date when the vendor was first entitled to possession. If Bhutnath could claim to come within Article 141 then it appears to me by reason of Article 136 that purchasers from him would be in precisely the same position. Time would begin to run for Bhutnath from the date of the death of his mother Maya. That would be the date when the vendor was first entitled to possession and that, by reason of Article 136, would be the date from which time would begin to run as against the purchaser. That being so, the point which has to be decided in this case is whether or not Article 141 applies or whether the appropriate Article is Article 142, which is the Article governing claims to possession of immovable property when plaintiff has been dispossessed or has discontinued the possession.
7. As I have said, the argument for the plaintiff was that Maya, Bhutnath's mother, was a Hindu female and was entitled to a Hindu female's interest in the property. She was not in possession at the date of her death and therefore it is said that Bhutnath had twelve years from the date of her death to bring a suit. As I have already said, the same period must be given to the plaintiffs, purchasers from Bhutnath.
8. On behalf of the appellants Mr. Chandra Sekhar Sen has argued that Article 141 can have no application at all if Panchu was out of possession at the date of his death. The argument is that Article 141 can only apply if time began to run for the first time against the Hindu female, the limited owner. It is argued that if time had began to run against the last full owner, namely, Panchu, it would continue to run against any limited owner who succeeded Panchu on his death and after the period of limitation not only the claim of the limited owner would be barred, but also the claims of all reversiouers of the last full owner. Reliance was placed for this proposition on a decision of this Court in the case of Mohendra Nath v. Shamsunnessa Khatun, 21 C. L. J. 157 : (A.I.R. (2) 1915 Cal. 629). The material portion of the headnote of this case reads as follows :
'Article 141, Schedule 1, Limitation Act, applies only to cases when it is proved that the last full owner was in possession at the time of his death ; if he himself was dispossessed and time began to run against him, the operation of the law of limitation Would not be arrested by the fact that, on his death, he was succeeded by his widow, daughter or mother.'
9. Sir Ashutosh Mookerjee J., who delivered the judgment of the Bench observed at p. 164 as follows;
'The plea of limitation raised by the defendant is sought to he met by the plaintiffs by reference to Article 141 of Schedule 2 to the Limitation Act. 1877, which provides that a suit for possession of immovable property by a Hindu entitled to possession on the death of a Hindu female, must be brought within twelve years from the date when the female dies. As Sabitri died in 1893 and Sati in 1896, and this suit was commenced on 7th June 1907, this seems, on a superficial view, to furnish a complete answer; but on close examination. it transpires that the plaintiffs are in inextricable difficulty. It is plain that Article 141 applies only to cases where it is proved that the last full owner was in possession at the time of his death; if he himself was dispossessed and time began to run against him, the operations of the law of limitation would not be arrested by the fact that, on his death, he was succeeded by his widow, daughter or mother. In the words of Lord Kingsdown in Prannaih v. Rookea Begum, 7 M. L. A. 323 at 353: (4 W. R. 37 P. C.), a cause of action is not prolonged by mere transfer of the title.'
10. Mr. Chandra Sekhar Sen relies on this case and the observation of Sir Asutosh Mookerjee and points out that the plaintiffs had failed to prove in this case that Panchu was in possession at the time of his death though they had pleaded that in the plaint. Mr. Sen's argument is that unless it is shown that Panchu was in possession at the date of his death Article 141, Limitation Act, could not be relied upon by the plaintiffs. On tbe other hand the plaintiffs had contended that it was for the defendants to show that Panchu was not in possession when he died. According to the learned Subordinate Judge it was impossible to say whether Panchu was or was not in possession at the date of his death. That being so, Mr. Sen has argued that as the plaintiffs had failed to prove that Panchu was in possession Article 141 would have no application.
11. This Bench decision has been considered by Benches of this Court in subsequent cases, the first being Hemendra nath v. Jnanendra prasainna : AIR1935Cal702 . In that case G, a Hindu, governed by the Dayabhaga died without issue in 1846 possessed of certain estates and leaving him surviving a widow J. Shortly afterwards J adopted B who became the full owner of the estates. In 1865, by an ekrarnama, B created a life estate in favour of his adoptive mother J. B having predeceased J, on j's death in 1900, B`s widow D came into possession of the estates. In 1914 D under the authorisation of her late husband, adopted the plaintiff, then a minor. By an ante-adoption agreement, however, with the plaintiff's natural father, D retained possession of the estates as a life-tenant postponing the plaintiff's possession till her death in 1916. In 1930, within 12 years of D's death, the plaintiff sued for possession of certain immoveable properties belonging to G's estates alleging them to have been dispossessed after 1865 during J's life tenancy. The defendants contended that the dispossession was prior to 1865 when B was the last full owner. Neither the plaintiff nor the defendants succeeded in proving their respective contentions.
12. It was held that prima facie the plainttiff was in time under Articles 140 and 141, Limitation Act, and he was entitled to possession. To avoid it, the onus lay on the defendants to prove that dispossession took place when B was the last full owner, in which case the suit would be barred under Article 142, Limitation Act.
13. It is to be observed that in this case the Court was unable to say whether the last full owner was or was not in possession at the date of his death. The Bench held that the onus was on the defendants to show that the last full owner was not in possession and if they failed to discharge that onus Article 141, Limitation Act, applied. It is to be observed that after the last full owner there were a number of limited interests or life estates to which Articles 140 and 141, Limitation Act, applied The precise point arose in that case which arises in this case, namely whether it is for the plaintiffs or the defendants to show whether the last full owner was or was not in possession when the first limited interest took effect. At page 159 of the report, R. C. Mitter J. observed :
'If the defendants want to avoid the operation of these Articles they must prove the necessary facts, namely, that limitation began to run from the time when Balkuntha was the full owner, that is to say he was dispossessed when he was the full owner. Dr. Basak has urged that the onus is on the plaintiff to prove that the dispossession was after 1865 on the authority of the case of Mohendra Nath v. Shamsunnessa Khatun (21 C. L. J. 157 : A. I. R. (2) 1915 Cal. 629) and has laid emphasis on a sentence to be found at page 164 of the report' (I have already referred to this passage) 'We do not think that the learned Judges in that case intended to decide the question of onus. IN that case the last full owner, Satyakinkar Ghoshal, died in the year 1833. The defendants proved by documentary evidence that their predecessors had been in possession since 17th August 1831, at least they carried their possession to the year 1834. Mookerjee J. pointed cut that there was no Article in the Limitation Act then in force corresponding to Article 141 of the Act of 1908, a corresponding Article being first introduced in the Limitation Act of 1871. It was also pointed out that the law In force till 1873, when the Limitation Act of 1871 came into force, was that adverse possession which extinguished the title of a female heir taking a limned estate under the Hindu law also extinguished the title of the reversioner, and that if possession of the defendants began before 1861 the title of the plaintiffs would have been extinguished before the Limitation Act of 1871 came into force and once the title was extinguished while the Limitation Act of 1859 of Regulation III of 1793 or II of 1805 was in force it could not have been revived by the introduction of Article 141 in the Limitation Act of 1871. These facts and observations, in our judgment, considerably weaken the force of the observations made by the said learned Judge at page 164 that 'before the plaintiffs can rely on Article 141 they must consequently prove that their, predecessor, Satyakinkar Ghosnal was in possession at the time of his death on 5th November 1833'.'
14. It will be seen that in this case the learned Judges did not agree that the statement of the law made by Sri Asutosh Mookerjee in the earlier case applied to cases governed by Art 141, Limitation Act. The learned Judges do not dissent from the earlier case, but point out that the earlier case is no authority dealing with the facts then before the Judges in the later case.
14a. The same view was taken by another Bench of this Court in Hemendra Nath v. Manmotha Nath, 43 C. W. N. 772. In that case the Bench held that when the plaintiff succeeds in making out a prima facie case under Article 141, Limitation Act, the burden would be on the defendant to show that dispossession took place at a time when the property was in the possession of the last male holder. The facts of this case are very similar to the facts of the Bench decision in which R. C. Mitter J. delivered judgment as the litigation was between the same parties. B. K Mukberjea J. who delivered the judgment pointed out that if the Hindu plaintiffs show that their right to the property first arose on the death of a Hindu female holding a limited interest, then they have established a prima facie case that Article 141 would apply. The onus would then be thrown upon the defendants to show that dispossession occurred whilst the first fall owner was holding the property and that time had begun to run before the limited interest commenced.
15. A somewhat similar point again arose for consideration in the case of Fanindra Nath V. Sitya, Charan, 0065/1941 : AIR1941Cal632 in which it was held that Article 141 applies only to cases where the last full owner was in possession at the time of his death; if he himself was dispossessed and time began to run against him the operation of the law of limitation is not arrested by the fast that on his death he was succeeded by his widow.
16. In this case the question of the onus of proof did not arise because it was expressly found that the last full owner was dispossessed and that he was out of possession when the owner of the limited interest first became entitled to possession. The Bench referred to the decision of Sir Asutosh Mookerjee to which I have already made reference and Mr. Chandra Sekhar Sen contended that this case approves of that decision. It certainly approved of that decision in so far as in the earlier case it was held that if the last full owner was dispossessed before the person holding a limited interest became entitled to possession then time would continue to run against the limited owner. However there is nothing in this case which throws any doubt on the two other Bench decisions to which I have made reference which deal with the question of the onus of proof. It seems to me clearly established by decisions of this Court which bind this Bench that the onus of showing that the last male owner was out of possession when the limited interest took effect lies on the defendants. All that the plaintiffs need prove to bring the case within Article 141 is that they are Hindus or Mahomedans entitled to the estate on the termination of a limited interest of a Hindu or Mahomedan female. Once that is established they have made a prima facie case that Article 141 applies and to take the case out of that Article the defendants must show that the time had begun to run as against the full owner and that it was actually running when the limited interest came into effect. In my judgment the Bench cases clearly decide that in the present case it was for the defendants to show that Panchu was out of possession at the date of his death when his daughter Maya became entitled to the property. As they have failed to show that Article 141 read with Article 136, Limitation Act, applied and the plaintiffs had twelve years from the date of Maya's death to bring this suit, the euit was well within time as found by the lower Courts.
17. Before concluding I should like to make a reference to a decision of their Lordships of the Privy Council in Lachhan Kunwar v. Manorath Ram, 22 Cal. 445 : (22 I. A. 25 P. C.). In that case a Hindu proprietor died, leaving a widow, and also a son, who died leaving a widow, a few years after his father, whose widow, either during the son's lifetime, or on his death, took possession of the property left by the father, and remained in possession till she died, having held it for about seventeen years. This she did notwithstanding the claim of the sons' widow whose suit against her for the property was dismissed, on the ground of limitation in 1875. Before her death she transferred part of the property by gift, and was said to have transferred another part by will. On a question as to the capacity in which she had taken and retained possession, it was found that she had done so absolutely and without any assertion of a right, which she had not, to a widow's estate,
18. Suits by the reversionary heirs, whom the son's widow joined, were held barred by limitation, on the ground that the possession taken had been adverse to them. Not only was any claim through the deceased son barred, but the rights of the reversionary heirs also, the possession by the father's widow not having been shown to be that of the limited interest of a widow.
19. Mr. Chandra Sekhar Sen contended that this case was of assistance to him. But it is to be observed that is the judgment of the Board no reference whatsoever is made to Article 141, Limitation Act. What had occurred was that a widow of a Hindu proprietor took possession of the estate though she was not entitled to it. A right of possession was in the widow of the deceased proprietor's son. She retained possession as against the son's widow for over twelve years and then was sued and the suit was dismissed on the ground of limitation. In a subsequent suit by the reversioners it was contended that the widow of the original proprietor could only acquire a title by limitation, to a limited interest, namely, the interest of a Hindu widow or female. Their Lordships however pointed out that she took possession claiming the property as hers and that the title she acquired was an absolute title by possession. Further she had been sued by the son's widow and the claim had failed and accordingly their Lordships held that the widow had acquired a right by adverse possession even against the reversioners.
20. Mr. Sen has argued that at most she had only dispossessed a limited owner, namely, the son's widow and therefore the reversioners would have twelve years under Article 141 to oust the trespasser after the death of the son's widow. That is not what was argued in the case and reliance was placed on the fact that as a suit had been brought by the son's widow against the original proprietor's widow who was the trespasser and that suit had been dismissed no further claim to possession could be made by the reversioners. This case does not purport to deal with Article 141 and is no authority whatsoever against the view taken by recent Benches of this Court on the question of the onus of proof.
21. In my view the lower appellate Court was right in holding that as the defendants had failed to show that Panchu was out of possession at the date of his death, Article 141, Limitation Act applied and the suit was in time, That being so, this appeal must fail and I would dismiss it with costs.