1. The facts of the case out of which this second appeal arises are of great importance and must be set out clearly in order to clear the ground for a consideration of the law points which arise. One Anathi was the owner of a piece of land in Barpeta Bazar with a tin roofed house on it which has been always used as a shop. He died leaving a widow named Pechi and a minor son and daughter. On the 4th of July 1887, Pechi executed a deed purporting to be a will, in which for herself and her minor children she set out that she was unable to support them and, therefore, made over the property consisting of this land and shop to her husband's friend Dukhu Sutar, who was to support her and the children out of the profits of the property until the son came of age when he was to get what remained of it; if both son and daughter died, Dukhu was to become owner of the property. The widow appears to have been on her deathbed when she made this disposition and we find that Dukhu was allowed to prove the will and to take out letters of administration with a copy of the will annexed on the 10th December 1888, The son also died before attaining majority. The daughter is still alive. One Chinti Pathak had all along been the tenant of the shop and land and had paid the rent regularly to Anathi and subsequently to Dakhu. In 1899 Dakhu sold the property to plaintiff as his own. Chinti appears to have died in 1900 and it is clear from the fact that the defendant No. 2, Chandra Kanta Pathak's name was entered in the pattah and that the plaintiff was unable to get him out of the premises, that he must have entered them in succession to his uncle. He, however, proceeded almost immediately to try and make his title good by taking a deed of sale from Anathi's daughter's husband, who of course had no title whatever in February-March 1900.
2. The plaintiff, as bona fide purchaser from Dukhu, now sues to eject the defendant No. 2 from the promises and the question arises in this appeal is whether ho is in law entitled to do so. It is freely admitted that the defendant has no title whatever but it is urged that plaintiff having no title either cannot eject him. The learned Judge in the Court below held that the Munsiff was wrong in finding that Dukhu's transactions under the Letters of Administration could not be questioned and he further held that Dukhu's vendee could not plead adverse possession in Dukhu and he decided in plaintiff's favour on the somewhat curious ground that Dukhu on the failure of heirs to Anathi was entitled to recoup himself for monies expended for the benefit of Anathi's family by selling the property. We are clearly of opinion that this position is untenable. There is nothing to show that Dukhu was out of pocket by his trusteeship and if he was he could only recoup himself by having an account taken and getting himself relieved of his appointment as trustee before the District Judge with an order for re-imbursement of what might be found due to him out of the estate. The appellant puts forward several contentions.
3. First, that there cannot be adverse possession in an administrator as true heir may turn up at any time and if there is none, the administrator holds as trustee for Government in escheat. Secondly, that as a fact there was not twelve years possession in Dukhu as his possession must count from the 10th December 1888 when he took letters of administration. Thirdly, that a Hindu mother cannot appoint a guardian for her son by testamentary disposition. Fourthly, the power of the trustee is confined within the limits of the document. If he accepts the trust, he excepts it with all its incidents. Fifthly, the right of even a trespasser to plead jus tertii is strongly insisted on.
4. As regards the question of adverse possession, we do not think it really arises in this case, although Dukhu certainly had possession from the 4th July 1887 and defendant No. 2 did not get possession till his uncle's death in 1900 more than 12 years after. It is clear that Dukhu's possession would not he adverse as against the true heir and if the defendant can set up jus tertii, it would not be adverse as against him either, though if he could not, we are inclined to hold that it might be.
5. The plaintiff's real title, however, is based on Section 41 of the Transfer of Property Act and the main question to be decided in the case is whether the defendant No. 2 can set up jus tertii. As regards the disposing power of the widow, we do not think that can be pleaded by the defendant a mere trespasser, who indeed bases his claim, if he has any, upon the consent of Anathi's daughter to his purchase. Now apart from the widow's disposition Anathi's daughter, as was well-known to defendant, had no title whatever and it must be taken that it was under colour of the deed of devolution to Dukhu that the defendant, having entered the premises as his uncle's successor in the tenancy, obtained a colourable conveyance from the husband of one of the wards of Dukhu. He cannot impugn his own vendor's title.
6. It is immaterial whether the heirs at law, if there are any, could dispute Dukhu's possession and title. He was in possession under what appeared to the world to be a good title, namely, a demise from the life owner with reversion to the son, fortified by letters of administration obtained from the court. Defendant No. 2's uncle attorned to Dukhu as his tenant and this must have been within the knowledge of defendant No. 2, who, having got into the property on the strength of his uncle's tenancy, fraudulently endeavoured to create a title in himself by getting a conveyance from the son-in-law of Anathi,
7. But the plaintiff obtained his conveyance in Chinti's lifetime and for a whole year Chinti was de facto tenant of the plaintiff. The defendant No. 2, therefore, disturbed plaintiff's possession by refusing to pay rent and setting up his own title as purchaser from Anathi's daughter's husband. There is a very large body of authority for the rule of English Law that possession is good title against all but the true owner. It was adopted and enforced by the Judicial Committee in the Indian cases of Sunday v. Parbati 12 A. 51 and Ismail Ariff v. Mahomed Ghous 20 C. 834, The Madras Court explained and applied it in Narayana Mow v. Dharmachar 26 M. 514 and incidentally disposed of the appellant's contention in this case that such possession could only to asserted after dispossession in an action under Section 9 of the Specific Relief Act. Prior possession of the plaintiff in an action of ejectment against a wrong doer is sufficient title, even if the suit be brought more then six months after the act of dispossession complained of.
8. The same principle is clearly illustrated and enforced in a very recent case before the Judicial Committee from New South Wales, the case of Perry v. Clissold (1907) A.C. 73.
9. From this it would appear that Dukhu was not a mere trespasser, but had a possessory title, good at the date of the sale to the plaintiff against every one but the rightful owner.
10. We find on referring to the document that the estate was not in any way tied down to the daughter during her lifetime. The obligation was only to support her and get her married. After she was married, she had no further title whatever as she had no need for support. We also find that there was no power of alienation in Dukhu during the minor son's lifetime but on his death he became trustee for the true owner and had a legal estate which he could dispose of subject to the true owner not contesting.
11. As to the defendant No. 2's plea of jus tertii, it cannot be entertained inasmuch as he does not state in whom any such right resides. The ruling cited by the appellant Girdhari Loll Boy v. The Government of Bengal 12 M.I.A. 448; 10 W.R. 31 (P.C.); B.L.R. 44 (P.C.) is against him.
12. It is there laid down that a defendant in order to justify a trespass must trace the title to a third party. A mere suggestion that there may be a third party is nothing. That was a case of escheat and the suggestion that the Secretary of State may some day claim an escheat in this case which was only thrown out a sa last resort in argument before us and was not mentioned in the lower Courts cannot help the appellant at all. Dukhu, therefore, having a good possessory title against all the world except the true owner and there being no claimant for ownership living, the plaintiff purchased with a bona fide belief that Dukhu was the real ostensible owner and all his enquiries would only go to fortify him in that opinion. His purchase is, therefore, clearly protected by Section 41 of the Transfer of Property Act, even if Dukhu's possessory title was bad, which we do not think it was.
13. We accordingly dismiss the appeal with costs.