1. The only question of fact that we have to decide in this appeal is, whether the two brothers, Luchmi Narain Singh and Ramjoy Narain Singh, at the time of the death of the former, which took place in the year 1842, were members of a joint Hindu family. (After stating the facts, and finding on the evidence that Luchmi Narain and Ramjoy Narain were not members of a joint Hindu family at the time of the death of Luchmi Narain, his Lordship continued):
2. This brings us to the question, whether, notwithstanding our finding that the brothers Luchmi Narain and Ramjoy Narain were separate, the plaintiffs' suit must fail on the ground of limitation. The finding of the lower Court upon this point is, that, on the death of Luchmi Narain, the whole of the family property came into the possession of Ramjoy Narain to the exclusion of the widow of the former, viz., Golab Koer. We are not prepared upon the evidence to dissent from this finding, although it seems to us that the possession of Ramjoy as regards Luchmi Narain's share was far from undisputed.
3. In fact in our opinion, the disturbed state of possession and the constant squabbles which must have ensued between the widow of Luchmi Narain and her brother-in-law, resulted in the ikrarnama of the year 1846; but, in our opinion this finding did not warrant the lower Court in holding that the plaintiffs' claim was barred by limitation. This suit was instituted on the 29th March 1879; it is consequently governed by the new law of limitation, viz., Act XV of 1877. Under Article 141 of the 2nd schedule, a suit of this description would not be barred unless it was brought more than twelve years from the date of the death of the last female entitled to the succession. In this case, according to our finding on the question of separation, Golab Koer was the legal heir of Luchmi Narain, and the plaintiffs in this case are entitled to the possession of the property left by Luchmi Narain on the death of the widow Golab Koer, and admittedly her death took place within twelve years from the date of suit. Therefore it is quite clear that, under Article 141 of the Limitation Act, the suit would not be barred unless under the second para, of Section 2 the right of the plaintiff's had been barred under Act IX of 1871, or any other Act repealed by the latter Act. Now, under Act IX of 1871, Article 142, 2nd schedule, the same period of limitation is provided as in the present Act.
4. Therefore this suit would not have been barred even if the Act of 1871 had been applicable. Therefore we have to consider next, whether the right of the plaintiffs had been barred by any Act repealed by the Limitation Act of 1871. Now the Act which was repealed by the Limitation Act of 1871 was Act XIV of 1859. In the Full Bench Decision in the case of Nobin Chunder Chuckerbutty v. Guru Persad Doss B.L.R. Sup. Vol. 1008; s. C. 9 W.R. 505 it was held, that, under Act XIV of 1859, adverse possession which barred the widow also barred the reversionary heir; but there was this exception laid down to the general proposition enunciated above, viz., that the same rule of law would not apply to alienations made by a Hindu widow while in possession of the estate. In a case like the last mentioned, it was held, that the cause of action to recover possession of properties improperly alienated by Hindu widows would accrue on the death of the widow. Now, in this case, taking the finding of the lower Court that Golab Koer was dispossessed on the death of her husband,--that is, in the year 1842,--as correct, there was no adverse possession by the dispossession for more than twelve years. The cause of action which accrued to her ceased to exist when she compromised the dispute between herself and her brother-in-law Ramjoy by the ikrarnama of 1846. Consequently, the present case, even under Act XIV of 1859, would come within the exception to the rule laid down by the Full Bench in the case cited above. The plaintiffs' claim cannot, therefore, be considered to have been barred by the law of limitation.
5. Upon all these grounds, we are of opinion that the decree of the lower Court in this case is not correct. We accordingly set it aside, and decree the plaintiff's suit with costs in both Courts. The claim regarding mesne profits, under the circumstances of the case, is disallowed.