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Pramatha Nath Bose and ors. Vs. Bhuban Mohan Bose and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal321,64Ind.Cas.980
AppellantPramatha Nath Bose and ors.
RespondentBhuban Mohan Bose and anr.
Cases ReferredVundravandas Purshotamdas v. Cursondas Govindji
Excerpt:
hindu law - alienation--widow--mortgage--decree, mortgage and personal--res judicata--decree against qualified owner--parties--reversioner--execution--sale--incorrect statement in sale proclamation--jurisdiction--limitation act (ix of 1908), schedule i, articles 120, 141. - .....of drabamayi. he accordingly made a decree on the 12th august 1880 in the following terms:that the suit be decreed and the court orders that the plaintiff do recover rs. 2,722-8 annas out of her claim and, rs. 305-12 5 being the proportionate costs and rs. 68-0 10 gandas being interest for the period of pendency of the suit, that is, a total amount of rs. 3,096-4-15 gandas with interest at six per cent. per annum from this day till realisation from the undermentioned mortgaged properties and the other properties of drabamayi's husband, possessed by the defendant; and the court further orders that the plaintiff do recover rs. 1,192 out of the claim and rs. 135-15-3 gandas being the cost proportionate to that, amount and rs. 30-6-16 gantas 1 kara, that is, a total amount of rs. 1,859-19.....
Judgment:

Asutosh Mookerjee, J.

1. The subject-matter of the litigation which has led up to these appeals is a valuable estate which formed at one time the property of Gadadhar Ghose, the maternal grandfather of the plaintiffs. The relationship between the parties is set out in the following genealogical table:--

Gadadhar Ghose,

died before 4th March 1862,

M. Drabamayi,

died 29th October 1878

|

Rudreswari, died 7th December 1905,

M. Maheshchandra Bose, died 14th April 1900

|

____________________________________|_____________________________________

| | | | |

Pramatha, Pranah, Prakriti, Pramod, Pragnan,

plaintiff plaintiff plaintiff plaintiff plaintiff

No. 1. No. 2. No. 3. No. 4. No. 5.

2. Gidadhar Ghose died in the early part of 1862, leaving a widow Drabamayi and a daughter Radreswari. Upon his death, his estate vested in his widow, who died on the 2th October 1878. The estate thereupon passed into the Lands of his daughter Rudreswari, who took as the immediate reversioner and subsequently died on the 7th December 1905. Rudreswari had been married to one Mahesahandra Bose, a member of the legal profession, who survived his wife for a few months and died on the 14th April 1906. After the death of Rudreswari, the estate vested in the plaintiffs as the ultimate reversionary heirs to the estate of their maternal grandfather. On the 5th December 1911 just before the expiry of six years from the death of their mother, the plaintiffs commenced the present litigation for recovery of possession of the disputed property, on the allegation that the second defendant was wrongfully in occupation, in assertion of a title which could not prevail against theirs as reversionary heirs.

3. It appears that on the 15th September 1873, Drabamayi, the widow of the original proprietor, mortgaged the property to the father of the first defendant to secure a loan of Rs. 1,880. After the death of the mortgagor, the mortgagee, on the 1st October 1879, brought a suit to enforce the security against her daughter Rudreswari, who keenly contested the claim. But on the 12th August 1880 the Suit was decreed; the terms of this decree and the effect thereof will require examination later. The decree was executed in due course, and the mortgaged property brought to sale, when it passed into the hands of the father of the second defendant, who was in no way connected with the parties and was a complete stranger to the proceedings. The plaintiffs assert that the sale took place tinder circumstances which render it inoperative against them as the ultimate reversioners to the estate of their maternal grandfather. They accordingly seek to recover possession of the property, or, in the alternative, compensation for loss thereof. The claim has been resisted by both the defendants who are the representatives of the mortgagee decree-holder and the execution, purchaser respectively. The Subordinate Judge has dismissed the suit as against the second defendant, the representative of the execution purchaser; but he has given the plaintiffs a decree for Rs. 1,359 odd with proportionate costs against the first defendant. Two appeals have been preferred against this decree (one No. 84 of 1919 by the plaintiffs, the other No. 94 of 1919) by the first defendant. In the former appeal, the plaintiffs seek to recover possession of the property, in the latter appeal, the first defendant impugns the propriety of the decree for money made against him. Before we discuss the questions raised, it is necessary to examine the nature and scope of the proceedings in the mortgage suit.

4. In the mortgage suit, Rudreswari repudiated the claim of the mortgagee on the allegations that the bond was a forgery and that, if it was genuine, there was no legal necessity for the loan so as to make the transaction binding upon her as reversionary heir, Thereupon a comprehensive issue was raised in the following-terms :

Whether the defendant's mother Drabamayi took money and executed the bond, and whethen there was any legal necessity for the loan.

5. The Subordinate Judge held on the evidence that the' bond had been/read out: to Drabamayi, that she affixed her seal to it with full knowledge of its contents, that it was attested by her son-in-law Mabes-chandra Bose who was himself a lawyer, and that all precautions were taken on the sides of lender and borrower, such as are deemed necessary in a transaction with a pardanashin lady. As regards the consideration for the bond, he found that Rs. 980 was due to the creditor from Drabamayi on a previous bond and that Rs. 900 was taken by her as a fresh loan. The Subordinate Judge thus concluded that there could he no doubt as to the fairness and reality of the transaction. He next investigated whether there was legal necessity for the loan. Upon serutiny of the various items which made up the aggregate sum of Rs. 1,880, he came to the conclusion that Rs. 880 only could be treated as loan incurred for legal necessity, while the balance, namely, Rs. 1,000, could be treated only as a personal debt of Drabamayi. He accordingly made a decree on the 12th August 1880 in the following terms:

That the suit be decreed and the Court orders that the plaintiff do recover Rs. 2,722-8 annas out of her claim and, Rs. 305-12 5 being the proportionate costs and Rs. 68-0 10 gandas being interest for the period of pendency of the suit, that is, a total amount of Rs. 3,096-4-15 gandas with interest at six per cent. per annum from this day till realisation from the undermentioned mortgaged properties and the other properties of Drabamayi's husband, possessed by the defendant; and the Court further orders that the plaintiff do recover Rs. 1,192 out of the claim and Rs. 135-15-3 gandas being the cost proportionate to that, amount and Rs. 30-6-16 gantas 1 kara, that is, a total amount of Rs. 1,859-19 gandas 1 kara together with interest at that rate from the personal property of Drabamayi, if any, and if the same have some into the possession of the defendant.

6. This decree, it will be observed, was composite in character : it entitled the decree-holder to realise a specified sum by sale of the mortgaged property held by the reversionary heir (Rudreswari) to the estate of the husband of the borrower, and another specified sum from the personal effects, if any, of the borrower (Drabamayi) in the hands of her daughter (Rudreswari) as her legal representative. It is indisputable that a valid decree may be made in this form, involving a declaration that an alienation by a Hindu widow is partially valid and partially void as against the reversioners;: Bhagwat Dayal Singh v. Debi Dayal Sahu 35 I.A. 48 : 35 C. 420 : 7 C.L.J. 335 : 12 C.W. N. 303 : 10 Bom. L.R. 230 : 5 A.L.J. 184 : 18 M.L.J. 100 : 3 M.L.T. 344 : 14 Bur. L.R. 49 (P.C.), Doorga Persad Singh v. Doorga Konwari 5 I.A. 149 : 4 C. 190 : 3 C.L.R. 31 : 3 Suth. P.C.J. 540 : 3 Sar. P.C.J. 827 : 2 Ind. Jur. 650 : 2 Shome. L.R. 21 : 2 Ind Dec. (N.S.) 12.i (P.C.), Garikipati Paparayudu v. Garikipati Raltamma 17 Ind. Cas. 608 : 37 M. 275 : (1912) M.W.N. 1176 : 24 M.L.J. 62 : 13 M.L.T. 110. The decree-holder next proceeded to apply for execution of his decree on or about the 29th September 1880. The execution papers have been destroyed in accordance with the prescribed rules for the destruction of judicial records, and what took place in the execution proceedings may be gleaned only from somewhat meagre entries made in certain registers. This much, however, is beyond controversy that on the 16th May 1881 the mortgaged property was brought to sale as directed by the decree, that it was purchased by the father of the second defendant as the highest bidder, and that out of the sale-proceeds the decree-holder took out not only the amount realisable under the decree by sale of the mortgaged property but also the amount recoverable from the personal assets of Drabamayi. No exception was taken by the judgment-debtor Rudreswari to the adoption of this course : consequently, the sale was confirmed on the 16th July 1881 and the sale certificate was issued to the auction-purchaser on the 5th August 1881. The sale, held in these circumstances, is impeached by the plaintiffs in the present litigation. The Subordinate Judge has held that the title of the execution purchaser cannot be successfully attacked and has dismissed the suit as against him. The Subordinate Judge, however, has held that the decree-holder was not competent to apply any part of the sale-proceeds in satisfaction of that portion of his decree which was enforceable only against the personal assets of Drabamayi, and he has made a decree against the first defendant for restitution of that amount to the plaintiffs.

7. We shall first consider, whether the plaintiffs have established any ground for relief against the second defendant,, the representative of the execution purchaser. It is plain that his title cannot be successfully attacked unless the plaintiffs can remove from their way the decision in the mortgage suit. In that litigation, it was decided, after contest between the mortgagee and the reversioner, that the mortgage transaction was genuine and bound the estate of the last fall owner in the hands of the reversioner to a defined extent. What, than, is the effect of that ad judication against the present claimants as reversionary heirs? It is well established that a decree obtained on a fair trial, in a suit by or against a Hindu widow, daughter, or mother, in possession, of the estate of the full owner, operates as, ret judicata as regards the questions tried in the suit. The leading decision on the question of the effect of a hostile judgment obtained against a Hindu widow or daughter in possession of the estate of the, last full owner is that of the Judicial Committee in Katama Natchier v. Rajah of Shivagunga 9 M.I.A. 539 at p. 603 : 2 W.R. (P.C.) 31 : 1 Suth : P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843, where Turner, L.J., stated the opinion of their Lordships in the following terms:

Unless it could be shown that there had, not been a fair trial of the right in that suit, or, in other words, unless that decree could have been successfully impeached on some special ground, it would have been an effectual bar to any new suit...by any person claiming in succession to her, For, assuming her to be entitled to the Zemindary at all, 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 be ascertained who would be entitled to succeed. The, same principle, which has prevailed in the Courts of this country as to tenants-in tail representing the inheritance, would seem to apply to 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 the decree fairly and properly obtained against the widow.

8. This exposition of the law was affirmed by Sir Montague Smith in Pertabnarain Singh v. Trilokinath Singh 11 I.A. 197 : 11 C. 186 : 8 Ind. Jur. 697 : 4 Sar. P.C.J. 567 : Rafique and Jackson's P.C. No. 86 : 5 Ind. Dec. (N.S.) 883, by Sir Richard Couch in Hari Nath Chatterjee v. Mothur Mohun Goswami 20 I.A. 183 : 21 C. 8 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334 : 10 Ind. Dec. (N.S.) 638 and by Sir John Edge in Risal Singh v. Balwant Singh : (1919)21BOMLR511 . The substance of the matter is that the principle of res judicata has been appliad rightly by the Courts so as to bind reversioners by decisions in litigations, fairly and honestly conducted, given for or against Hindu females who represented the estate, although they had only a qualified right of alienation : in other words, as pointed out in Harmanoje Narain Singh v. Ramprosad Singh 6 C.L.J. 462, Roy Radha Kissen v. Nauratan Lal 6 C.L.J. 490, Lilabati Misrain v. Bishun Chobey 6 C.L.J. 621 and Mohendra Nath Biswas v. Shamsunnossa Khatun 27 Ind. Cas. 954 : 21 C.L.J. 157 : 19 C.W.N. 1280, the reversioner is bound by the decision against the female heir in her representative capacity, unless he can prove that the decree was not fairly and properly obtained against her ; Nugenderchunder Ghose v. Sreemutty Kaminee Dossee 11 M.I.A. 241 : 8 W.R. 17 (P.C.) : 2 Suth. P.C.J. 77 : 2 Sar. P.C.J. 275 : 20 E.R. 9, (sic) Doobey v. Brij Bhcokun Lill 2 I.A. 275 : 1 C. 133 : 24 W.R. 306 : 3 Suth. P.C.J. 207 : 8 Sar. P.C.J. 541 : 1 Ind. Dec. (N.S.) 86. An endeavour was, consequently, made in the Court below in the present litigation--and the effort has been repeated here--to establish that the decree in the mortgage suit was not fairly and properly obtained. This is manifestly an argument of despair. The proceedings in the previous suit leave no room for doubt that the claim of the mortgagee was resolutely contested by Rudreswari, who was assisted in the endeavour by her husband even beyond what look like legitimate limits. A vague suggestion has been made in this Court that documentary evidence was withheld from the Court, which might otherwise have some to the conclusion that at the time of the loan there was no real pressure on the estate such as would constitute legal necessity for the transaction. There is no force in this contention Nor does the fact that Kamada Charan Pal, father-in law of the first defendant, was Am Muktear for the mortgagee Kailaseswar Bose and the mortgagor Drabamayi, furnish any sure indication of fraud or collusion. Indeed, if the matter were open for reconsideration, and the Court were free to examine afresh the question of legal necessity, such materials as are available even at this distance of time would point to the conclusion that the view adopted in the mortgage suit was based upon a correct appreciation of the facts and circumstances : Nanda Lal (Banga Chandra) v. Jagat Kishore Acharjya : (1916)18BOMLR868 , Chintamanibhatla Venkata Reddi Pantulu Garu v. Rani Saheba of Wadhuan : (1920)22BOMLR541 . We hold accordingly that the decree in the mortgrge suit must be treated as obtained fairly and properly against the then reversioner and consequently operative now against the ultimate reversioners.

9. It has next been argued, on behalf of the plaintiffs, that inasmuch as they were not made parties to the mortgage suit, the decree made therein does not bind the estate in their hands as ultimate reversioners, and in support of this view reliance has been placed upon the decisions in Nugenderchunder Ghose v. Sreemutty Kaminee Dossee 11 M.I.A. 241 : 8 W.R. 17 (P.C.) : 2 Suth. P.C.J. 77 : 2 Sar. P.C.J. 275 : 20 E.R. 9 and Srinath Dass v. Hari (sic) Mitter 3 C.W.N.376. We are of opinion that the position taken up by the plaintiffs cannot be sustained. The two decisions mentioned, along with other relevant cases on the point, were considered in three recent judgments of this Court, Bhagirathi Dass v. Baleswar Bagarti 19 Ind. Cas. 66 : 41 C. 69 : 19 C.L.J. 155 : 17 C.W.N. 877, Rameswar Mandal v. Provabah Debi 25 Ind. Cas. 84 : 20 C.L.J. 23 at p. 31 : 19 C.W.N. 313 and Ganga Narayan Dutta v. Indra Narayan Saha 35 Ind. cas. 49 : 25 C.LJ. 391 : 22 C.W.N. 350. In Bhagirathi Dass v. Baleswar Bagarti 19 Ind. Cas. 66 : 41 C. 69 : 19 C.L.J. 155 : 17 C.W.N. 877 it was pointed out that there is a fundamental distinction between the two classes of eases, namely, the case where a mortgagee BUSH a widow to enforce a mortgage executed by her husband, and the case where a mortgagee sues a widow to enforce a mortgage executed by herself. In the former cage, no question of propriety of the transaction arises; in the latter case, if the mortgagee seeks to obtain a decree entitling him to proceed against not merely the qualified interest of the widow but the entire inheritance, the question of legal necessity arises, which can be finally decided only in the presence of the reversioner. But it does not follow that a reversionary heir, when so drawn into the litigation, is not entitled to urge that as he cannot be called upon to redeem, he would prefer to be left alone, with liberty to contest the title of the mortgagee or of the purchaser at the sale in execration of the mortgage-decree, if he should ever succeed as the actual reversionary heir. In Rameswar Mandal v. Provabati Debi 25 Ind. Cas. 84 : 20 C.L.J. 23 at p. 31 : 19 C.W.N. 313 it was explained that when a sale has been held in execution of a decree obtained against a limited owner, such as a Hindu widow, to enforce satisfaction of a debt, secured or unsecured, created by her, the real question is, what was liable to be and was actually sold. In the investigation of this question, the frame of the suit, the judgment, the decree, the execution proceedings, the sale proclamation, the amount of purchase-money and the conduct of the parties, must all be taken into account; the sale certificate is by no means conclusive. As the proceeding may be against the widow personally or against the widow as representing her husband's estate, the true test is to see whether the proceeding in which the sale was directed was brought against the widow personally or with a view to affect the whole inheritance. It is not necessary that the reversioner should be joined as party to the suit, but if he is so joined, the fact would afford clear indication that the creditor intended to make the inheritance liable and not to restrict his remedy to the qualified interest of the widow. In Ganga Narayan Dutta v. Indra Narayan Saha 35 Ind. cas. 49 : 25 C.LJ. 391 : 22 C.W.N. 350 it was observed that when a mortgagee from a Hindu widow seeks to obtain a decree which would bind not merely the qualified interest of the widow but the entire inheritance itself, the then next reversioner is a proper party to the suit, and when, in addition to the widow, the reversioner is so impleaded, he may well be deemed a party in a representative capacity, as explained by the Judicial Committee in Venkatanarayana Pillay v. Subbammal : (1915)17BOMLR468 , with the result that a decree fairly made in his presence, so long as it stands, binds the inheritance whether he of some one else ultimately becomes the actual reversioner when the succession opens out on the death of the widow. The title of the purchaser in such a case can consequently be defeated by the actual reverisoner, only after the decree which is the root of that title, has been successfully impeached for fraud, collusion or other like reason. These principles, which may now be deemed firmly established, are plainly of no assistance to the plaintiffs. Here the mortgage suit was not and could not be brought against the widow, who bad created the encumbrance and died before the security could be enforced. The suit was instituted, in these circumstances, against the then immediate reversioner, who, though a limited owner as a female heiress, completely represented the estate at the time. She raised the question of the factum and propriety of the mortgage transaction, as she was competent to do, and her resistance did in fact prove partially successful. The decree, thus fairly and properly obtained against her, so long as it is not successfully impeached on the ground of fraud, collusion or other like reason, binds the inheritance when claimed by the ultimate reversioners. The plaintiffs cannot now recover the property from the bands of the execution purchaser on the ground that as they were not themselves parties to the mortgage suit, their are entitled to exercise their right of redemption. The plain truth is that at the time of the mortgage suit, the equity of redemption was vested exclusively in the daughter of the original owner, and the plaintiffs as reversioners in the second degree, assuming all of them to have been born at the time, had no subsisting interest therein.

10. As a variation of the argument just considered, we have been invited to apply for the benefit of the plaintiffs the principle that where a Hindu heiress, such as a widow, has sold a larger portion of the estate then was necessary to raise the amount which the law authorised her to raise, the sale would not be absolutely void as against the reversioners, but they can only set it aside, if at all, upon paying the amount which the widow was authorised to raise with interest from her death, the defendant accounting for rents and profits from the same period; Phool Chand Lal v. Rughooluns Suhaye 9 W.R. 107, Mutteeram Kowar v. Gopal Sahoo 20 W.R. 187 : 11 B.L.R. 416, Moulvie Mohamed Shumsool Hooda v. Shewukram 2 I.A. 7 : 22 W.R. 409 : 14 B.L.R. 226 : 3 Sar. P.C.J. 405 : 3 Suth. P.C.J. 43 (P.C.), Sadashiv Bhaskar Joshi v. Dhakubai 5 B. 450 : 3 Ind. Dec. (N.S.) 297, Deputy Commissioner of Kheri Khanjan Singh 34 I.A. 72 : 29 A. 331 : 5 C.L.J. 344 : 9 Bom. L.R. 591 : 11 C.W.N. 474 : 4 A.L.J. 232 : 2 M.L.T. 145 : 17 M.L. J. 233 : 10 O.C. 117 (P.C), Singam Setti v. Draupadi Bayamma 31 M. 153 : 3 M.L.T. 251 : 18 M.L..J. 11, Ramdei Kunwar v. Abu Jafar 27 A. 494 : A.W.N. (1905) 68, Bhagwat Dayal Singh v. Debi Dayal Sahu 35 I.A. 48 : 35 C. 420 : 7 C.L.J. 335 : 12 C.W. N. 303 : 10 Bom. L.R. 230 : 5 A.L.J. 184 : 18 M.L.J. 100 : 3 M.L.T. 344 : 14 Bur. L.R. 49 (P.C.). This principle, applicable to a case of an excessive sale by a Hindu widow, cannot, however, be invoked by the plaintiffs, as the case before us is not one of excessive sale. No doubt, the mortgage was granted for a loan which was in part taken for purposes not comprised within the category of legal necessity; but the decree in the mortgage suit remedied this defeat, and directed a sale of the hypothecated property, only for so mush of the mortgage money as could be deemed to have been raised for legitimate objects. In such circumstances, the execution purchaser cannot be called upon to submit to redemption, in whole or in part, with regard to the property in his hands.

11. It has finally been argued on behalf of the plaintiffs that the sale in execution of the mortgage-decree (which, it may be noted, was made and enforced before the Transfer of Property Act, 1882) was held in contravention of the direction contained therein. This argument is based on the assertion that the sale was held for realisation of the entire decretal amount, and not merely of the specific sum declared as leviable from the hypothecated property. This is an unproved hypothesis, The sale proclamation is not in existence and there is no secondary evidence as to its contents. We cannot consequently held with any approach to certainty that it was proclaimed that the sale would be held for realisation of the entire decretal amount, But let us assume that the proclamation did in fact contain an erroneous statement as to the amount recoverable by the sale of the mortgaged property. That clearly did not affect the legality of the sale. The Court had jurisdiction to sell the property; that jurisdiction was not taken away because an incorrect statement was made as to the amount recoverable by the decree-holder. As pointed out by the Full Bench in the case of Hridyanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 31 C.L.J. 482 : 24 C.W.N. 723 (F.B.): 48 G. 138, there is a fundamental distinction between existence of jurisdiction and exercise of jurisdiction. The circumstance that jurisdiction has been exercised in an irregular manner does not destroy the jurisdiction, for as Lord Hobhouse said in Malkarjun v. Narhari 27 I.A. 216 : 25 B. 337 at p. 347 : 5 C.W.N. 10 : 2 Bom. L.R. 927, 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.), a Court has jurisdiction to decide wrong as well as right; if it decides wrong, the wronged party can only take the course prescribed by law for setting matters right, and if that course is not taken, the decision, however wrong, cannot be disturbed. In the case a before us, the Court which executed the mortgage-decree had undoubted jurisdiction to bring the mortgaged property to sale, and to confer a good title on the execution purchaser. The purchaser was not concerned with the distribution of the sale-proceeds, and the validity of his title could not be affected if the decree-holder appropriated a larger portion of the sale proceeds than what was authorised by the decree. On the other hand, if the judgment-debtor was of opinion that she had sustained substantial injury by reason of a material irregularity in publishing or conducting the sale, the might take appropriate steps to have the sale cancelled, within the time prescribed by law. No such steps were taken, and the time has long since gone by when such remedy might have been available. It is thus impossible to sustain the contention of the plaintiffs that the mortgage sale, which is the root of the title of the second defendant, was held without jurisdiction and was consequently null and void. This exhausts all the arguments put forward by the plaintiffs with a view to assail the title of the execution purchaser.

12. We have finally to consider the contention of the first defendant that no decree for money should have been awarded to the plaintiffs as against him. The facts already recited make it plain, however, that the decree holder applied, in satisfaction of the personal decree obtained by him against the estate of Drabamayi, a sum of money which he knew formed part of the estate of Gadadhar Ghose in the hands of his daughter. The mortgaged property belonged to Gadadhar Ghose. When it was sold by the Court, it was transformed into a fund which still formed part of that estate in the hands of his daughter. The decree-holder was entitled to have recourse to that fund, only in so far as his decree was a mortgage-decree binding on, the estate of Gadadhar Ghose. It is consequently indisputable that when he proceeded to appropriate that fund for the satisfaction of his decree, in so far as it was a decree against the estate, of Drabamayi, with the acquiescence of Rudreswari (the daughter of Drabamayi), he took possession of a part of the estate of Gadadhar Ghose under circumstances which could not confer on him a title operative as against the ultimate reversionary heirs to the estate of Gadadhar Ghose. The substance of the matter is that the decree, holder, with the concurrence of Rudreswari, took possession of a part of the estate of Gadadhar Ghose, which both of them knew was unauthorised by the decree itself. The concurrence of Rudreswari could not possibly operate to the detriment of the plaintiffs as the ultimate reversionary heirs. There is thus no escape from the conclusion that a decree for restitution has been properly, made against, the first defendant in favour of the plaintiffs. There is also no room for serious controversy that the claim is not barred by limitation. It was ruled by, the Judicial, Committee in Runchordas Vandravandas v. Parvatibai 26 I.A. 71 : 23 B. 725 : 1 Bom. L.R. 607 : 3. C.W.N. 621 : 7 Sar. P.C.J. 643 : 12 Ind. Dec. (N.S.) 485, reversing on this point the decision of the Bombay High Court in Vundravandas Purshotamdas v. Cursondas Govindji 21 B. 646 : 11 Ind. Dec. (N.S.) 435, that a suit by a Hindu reversioner to recover moveable property on the death of a Hindu female is governed by Article 120 of the Schedule to the Indian Limitation Act and that limitation begins to run from the death of the female; whereas, in the case of immoveable property, the period is, under Article 141, twelve years from the date when the female dies. It was also faintly suggested that this, claim is not specifically set out in the plaint or covered by the issues. But it is plain that the relevant facts appear on the face of the proceedings and no question of surprise can possibly arise. We are consequently unable to interfere with the decree awarded against the first defendant.

13. The result is that the decree made by the Subordinate Judge is affirmed and both the appeals dismissed with costs. The hearing fee in Appeal No. 94 is assessed at five gold mohurs.

Buckland, J.

14. I agree.


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