1. The controversy in this case relates to a dispute among certain members of the Tagore family over the right to administer the trusts of the Will of one Kiranmali Mukerjee.
2. The suit arises in this way. Banamali Mukerjee founded and dedicated to two deities a temple in Monoharpukur Road, Ballygunge. He died in 1892, leaving him surviving Kiranmali Mukerjee and a daughter Mahaprova Debi. The daughter had two sons Aurabinda and Rabindra, and they are the plaintiffs. On the 9th November, 1903, Kiran died, having made a Will of which he appointed one Pundarikakshya the executor and trustee. In his Will Kiran stated that he died possessed of no moveable or immoveable properties, and that he had made provision for his wife Mayabini Debi; and he directed the executor and trustee to pay his debts, and to celebrate the pujah of the two deities at the temple in Ballygunge in the same manner that he had done in his lifetime. He further directed inter alia that a sum of Rs. 10,000 the subject-matter of a life policy, should be collected, and that out of the proceeds certain legacies should be paid, and the balance of Rs. 8,000 invested in 3 per cent. Government securities. Out of the income accruing from the Rs. 8,000 twelve Brahmins were to be fed on the occasion of the anniversary of the sradh of his father and mother, and the expenses of the pujahs were to be defrayed; and he directed that the balance (if any) of the income was to be spent on the construction and repairs of the temple.
3. Whether Pundari on Kiran's death became the sabait of the deities, with such consequences as would follow therefrom, do not propose to decide in this case; not because such matters are not relevant, but because in the plaint it is specifically requested that matters connected with the sebaiti should be excluded from the scope of the suit, and, in my opinion, having regard to the nature of the claim, lam in a position otherwise to dispose of it.
4. Now, Pundari was not a beneficiary under Kiran's Will, but was a bare trustee of the funds which were charged for debutter purposes. From the death of Kiran until the death of Pundari on the 23rd October, 1910, Pundari faithfully and duly carried out the trusts of Kiran's Will. After Pundari's death, however, its was ascertained that under his Will he had left all his property to his wife, who was the younger sister of the wife of Banamali, and a daughter of the late Maharaja Tagore. He appointed his wife the executrix of the Will, and further provided that
the aforesaid executrix of mine, her heirs or he whom she may appoint, shall continue to spend in connection with the sheba of the god and goddess at Ballygunge, in the same manner which I have been spending, the income derived from the Government promissory notes to the value of Rs. 8,000 which are with you, and which belonged to the estate of Kiran.
5. By his Will, therefore, Pundari purported to appoint the defendant, his wife, the trustee of the property that had passed to him as trustee under the Will of Kiran. That in my opinion, he was not entitled by law to do and it is the common case of both parties that after the death of Pundari, the defendant did not become entitled to act as the trustee of the Will of Kiran, or to have the possession or management of the trust property. Who, then was entitled to act as the trustee? It is the common case of both parties, and for the purposes of this suit I will assume, without deciding, that the poisons entitled to the possession and management of the trust pro-party under Earan's Will were Kiran's heirs. Again, it is common ground that the heir of Kiran was his widow Mayabini, and that the reversionary heirs were the plaintiffs. Assuming, therefore, that Mayabini was entitled to possession of the trust property, and to carry out the trusts created under the Will of Kiran, it is conceded that she never took possession of the trust property, or exercised her rights as trustee under Kiran's Will. From the death of Pundari in 1910 until the present time 1 hold that the defendant has been in exclusive possession of the trust property, and that the trusts of Kiran's Will through-oat this period, have been faithfully carried out by the defendant openly, and as of right, and without asking or obtaining Mayabini's permission in that behalf. The defendant was examined on commission. I refer to certain questions, and the answers that she made:
Q. 35. How did your husband entrust you with the charge of the idol? By his Will, and I have carried on the sheba in the same manner in which my husband had been doing.
Q. 36. Did Mayabini know that your husband had entrusted you by his Will with the sheba? Yes,
Q. 37. Generally, were the facts that Kiran and your husband by their Wills made provision for the sheba well-known in the family, or were they kept secret? Nothing was kept secret. Everybody knew about it.
Did Mayabini ever make any claim against either you or your husband in respect of the sheba? Never.
Q. Did your husband or you ever take Mayabini's permission or consent in the matter of the Thakur and the sheba? Never.
As thefts had occurred at the temple the defendant was asked:
Q. 138. Did you send information to Mayabini of these thefts? Where was she at the time? Well, one thing I remember is that she was alive, but why should I inform her when the Thakur was mine?
6. I hold upon the evidence that from the death of Pundari in 1910 until the present time the defendant openly, and as of right, to the knowledge and without obtaining the permission of Mayabini, or the plaintiffs or anybody else, in fact, has been in possession of the trust property, and duly has carried out the trusts of Kiran's Will in respect of this debutter estate. I hold further that in the circumstances her acts and possession were adverse to the rights of Mayabini, and, if and in so far as Mayabini as the heir of Kiran was entitled to the possession and management of the trust property, it is conceded by the plaintiffs, and I hold, that her rights and title were barred by limitation.
7. But that does not dispose of the plaintiffs' claim, for learned Counsel contended that the plaintiffs as reversioners could not be prejudiced by any act or omission on the part of Mayabini, and, although Mayabini through her negligence or otherwise had lost her rights as the heir of Kiran by adverse possession, the rights of the plaintiffs as Kiran's reversioners were thereby not affected, for they claimed through Kiran, and not through Mayabini his widow. In support of his contention Mr. A.N. Chaudhuri cited Runchordas Vandravandas v. Parvatibai 23 I.A. 725 : 26 I.A. 71 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.). I confess that if the matter were res integra, or if the meaning and effect of the decision in Runchordas's case (1) had not been explained by the Judicial Committee in Vaithialinga Mudaliar v. Srirangath Anni , I should have thought that the view which the' plaintiffs urged upon the Court was correct, as being in consonance with the conception of the widow's estate in Hindu Law. 'And the reason is this, that-'a Hindu reversioner has no right or interest in present in the property which the female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign of to relinquish, or even to transmit to his heirs. His right becomes concrete only on, her demise; until then it is a mere spes successionis. (per Mr. Ameer Ali in Amrit Narayan Singh v. Gayan Singh 44 Ind. Cas. 408 : 45 C. 590 at p. 603 : 23 M.L.T. 142 : 22 C.W.N. 409 : 27 C.L.J. 296 : 34 M.L.J. 298 : 4 P.L.W. 221 : 16 A.L.J. 265 : (1918) M.W.N. 306 : 7 L.W. 581 : 20 Bom. L.R. 546 : 45 I.A. 35 (P.C.)'.
8. No doubt, if by reason of the widow's acts or omissions there is danger that the corpus of the estate may be wasted appropriate steps can be taken by the reversioner to prevent the wastage taking place, but I doubt whether it is in accordance with the principles of the Hindu Law of inheritance that the reversionary heirs, who daring the subsistence of the widow's estate have no present right or interest in the property, and who do not in any sense trace their title through the widow, should loss their rights as reversioners merely because the widow has suffered her title and interest in the etitate to be destroyed by adverse possession. I have ventured to indicate my opinion on this subject because in Vaithialinga's case 92 Ind. Cas. 85 : 48 M. 883 : A.I.R. 1925 P.C. 249 : L.R. 6 A. (P.C.) 169 : 49 M.L.J. 769 : 42 C.L.J. 563 : 30 C.W.N. 313 : 28 Bom. L.R. 173 : (1926) M.W.N. 11 : 52 I.A. 322 (P.C.), the Judicial Committee did not think it necessary for the purposes of that case to 'make any formal pronouncement upon this point' (ibid page 893 Page of 48 M.-[Ed.]), although in the present state of the authorities I am clearly of opinion that the contention of the plaintiffs cannot prevail, and that the plaintiffs' claim as the reversioners of Kiran is barred by limitation.
9. The law stands in this way. In 1852, before the enactment of the Limitation AM (XIV of 1859), Peel, C.J. observed that 'it has been invariably considered for many years that the widow fully represented the estate, and it is also settled law that adverse possession which bars her bars the heir after her, which would not be the case if she were a mere tenant for life, as known to the English Law' Goluckmani Debi v. Digamber De (1852) Macpherson on Mortgages, 2nd Ed. 20,
10. Again, in 1803 in Katama Natchier v. Raja of Shivagunga 9 M.I.A. 539 at p. 604 : 2 W.R. P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843, the Judicial Committee laid down that '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 prevaild in the Courts of this country as to tonants-in-tail representing the inheritance, would seem to apply to the case of Hindu widow; and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow'.
11. Now, it is settled beyond doubt or controversy that a decree fairly obtained against a Hindu widow in respect of a transaction in which she represents the estate is binding upon the reversioners: Shivagung's case 9 M.I.A. 539 at p. 604 : 2 W.R. P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843, Jugul Kishore v. Jotindra Mohun Tagore 10 C. 985 : 11 I.A. 66 : 8 Ind. Jur. 455 : Sar. P.C.J. 553 : 5 Ind. Dec. (N.S.) 657 (P.C.), Hari Nath Chatterji v. Mothurmohun Goswami , and on principle I can rind no ground upon which to differentiate between the loss of the reversioner's rights by adverse possession against a widow, and the loss of such rights by an adverse decree against her. In Nobin Chunaer Chuckerbutty v. Issur Chunder Chuckerbutty 9 W.R. 505 at. p. 509 : B.L.R. Sup. Vol. 1008, Peacock, C.J, observed that 'It is said that the reversionary heirs could not sue for possession during the lifetime of the widow, and that, therefore, they ought not to be barred by any adverse holding against the widow at a time when they could not sue. But when we look at the widow as a representative, and see that the reversionary heirs are bound by decreed relating to her husband's estate which are obtained against her without fraud or collusion, we are of opinion that they are also bound by limitation, by which she, without fraud or collusion, is barred.'
12. I respectfully agree with the view expressed by Jackson, J., in the same case when his Lordship observed that 'It has been distinctly held by the Privy Council in the Shivagunga's case 9 M.I.A. 539 at p. 604 : 2 W.R. P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 that a decision fairly arrived at without fraud or collusion in the presence of a (sic) widow in possession of the estate will bind reversionary heirs. That being so decided, it appears to me impossible to escape the conclusion that an adverse possession which barred the widow will also bar the heirs', page 519 Page of 9 W.R.-[Ed.]; see also per Machperson, J., in Hari Nath Chatter v. Mothurmohun Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334 : 10 Ind. Dec. (N.S.) 638 (P.C.).
13. Now, it must be taken as settled that the law thus stated is the common law of the Hindu community, and when applied to the facts of the present case it is fatal to the plaintiffs' claim.
14. But has not the law been altered by legislation since these judgments were delivered? That is a question which has occasioned much, discussion, and given rise to a serious difference of opinion among the Courts in India.
15. Under the Limitation Act (XIV of 1859, Sections 12 and 16) the limitation for suits to recover immoveable and moveable property was 12 and 6 years respectively 'from the time the cause of action arose'. But under the Limitation Act (IX of 1871, Second Schedule, Article 142) a suit by a Hindu reversioner 'entitled to the possession of immoveable property on the death of Hindu widow', must be brought within 12 years of the time 'when the widow dies', and under the Limitation Act (XV of 1877, Second Schedule, Article 141) a 'like suit by a Hindu or Muhammadan entitled to the possession of immoveable property on the death of a Hindu or Muliammadan female' must be brought within 12 years of the time ' when the female dies'. Article 141 of the Second Schedule to the present Limitation Act (IX of 1908) is in the same terms. With respect to moveable property, however, there has been no change in substance, for in the latter Acts the period of limitation is 6 years from the time 'when the right to sue accrues' I Article 118 (1871), Article 120 (1877 and 1908).
16. Now, in Srinath Kur v. Prosunno Kumar Ghose 9 C. at p. 937 : 13 C.L.R. 372 : 4 Ind. Dec. (N.S.) 1273, a Full Bench of the Calcutta High Court held that the Limitation Acts of 1871 and 1877 had effected a change in the law, and 'that the rule which was laid down under the Limitation Act of 1859 is no longer the law under the Acts of 1871 and 1877, 4 reversioner who succeeds to immoveable property has now twelve years to bring his suit from the time, when his estate falls into possession', (per Garth, C.J., at page. 937. Page of 9 C.-[Ed.])
17. The same view was taken by the Allahabad High Court in Ramkali v. Kedar Nath 14 A. 156 : A.W.N. (1892) 22 : 7 Ind. Dec. (N.S.) 470, and by the Bombay High Court in Vundravandas v. Cursondas 21 B. 646 at p. 669 : 11 Ind. Dec. (N.S.) 435, in which cane Farran, C.J., observed 'That it (i.e., the Legislature) has designedly altered the law which formerly prevailed upon this subject as laid down in Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty 9 W.R. 505 at p. 509 : B.L.R. Sup. Vol. 1008, and approved by the Privy Council in Aumirtolall Bose v. Rajoneekant Mitter 2 I.A. 113 at p. 121 : 23 W.R. 214 : 15 B.L.R. 10 : 3 Sar. P.C.J. 430 : Suth. P.C.J. 94 (P.C.) is obvious.'
18. In 1899 Vundravanda's case 21 B. 646 at p. 669 : 11 Ind. Dec. (N.S.) 435, was heard on appeal by the Privy Council, under the name of Runchordas Vandravandas v. Parvatibai 23 I.A. 725 : 26 I.A. 71 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.) and the decision of Farran, C.J., and Tyabji J, in substance, was affirmed, their Lordships, however, further holding that even in respect of moveables to which Article 141 did not apply the reversioner's right to this property, if 'any, accrued at the death of ' the widow.
19. I shall not presume, indeed, it would be of no avail, to express my own opinion as to what was decided in Runchordd's case 23 I.A. 725 : 26 I.A. 71 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.), for in Vaihtialinga Mudaliar v. Srirangath Anni the Judicial Committee explained what was the meaning and effect of that decision, and the interpretation which their Lordships put upon the decision is binding upon all the Courts in India. The Judicial Committee, as I apprehend their judgment, were of opinion that Sir Richard Couch, who had delivered the judgment of the Board both in Runchorda's case 23 I.A. 725 : 26 I.A. 71 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.) andin Hari. Nath Chatterji v. Mothurmohun Goswami (7) did not intend in Runchordas' case 23 I.A. 725 : 26 I.A. 71 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.) in any way to discredit the rule laid down in Shivagunga's case 9 M.I.A. 539 at p. 604 : 2 W.R. P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 which had expressly been approved and applied in Hari Nath Chatterji v. Mothurmohun Goswami (7), and that in Runchordas Vomdravandas v. Parvatibai 23 I.A. 725 : 26 I.A. 71 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.), in the circumstances obtaining in that case, there was no room for the application of the rule in Shivagunga's case 9 M.I.A. 539 at p. 604 : 2 W.R. P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843. What, then, was decided in Hari Nath Chatterji v. Mothurmohun Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334 : 10 Ind. Dec. (N.S.) 638 (P.C.)? In that case the question that fell for determination was whether the rule in Shivagung's case 9 M.I.A. 539 at p. 604 : 2 W.R. P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843, namely, that an adverse decree against a Hindu widow would bind the reversioners, was applicable to the case where a daughter (by name Sampurna) had succeeded to the widow's estate. Sir Richard Couch delivered the judgment of the Board, and in reference to a contention that the plaintiff as reversioner had by the terms of Article 141 a period of 12 years from her (i.e., Sampurna's) death to bring his suit, observed that, 'their Lordships see no ground for this contention. The words 'entitled to the possession of immoveable property refer to the then existing law. Under that law the plaintiff being bound by the decree against Sampurna, would not be entitled to bring a suit for possession. The intention of the law of limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right. The purpose of the Second Schedule in each of the Acts is only to prescribe the period of limitation for the suit. That appears from the 4th section of each Act. The prescribed periods are to be applied to suits founded on the existing law, and Article 141 cannot be construed as altering the law respecting the effect of a decree'.
20. In Saroda Soondury Dossee v. Doyamoyee Dossee 5 C. 938 : 2 Ind. Dec. (N.S.) 1206. Jackson and Tottenham, JJ., had taken the same view, holding that 'the person entitled to the possession of immoveable property on the death of a Hindu widow means a person who succeeds to a certain right which is in being on the death of the Hindu widow, and that if the title which would have enabled that widow, to hold the estate as a widow had become barred before her death, the reversioner, who would be the next taker, is not to be entitled to possession of the property on the death of the widow '.
21. Now, in Vaithialinga's case 92 Ind. Cas. 85 : 48 M. 883 : A.I.R. 1925 P.C. 249 : L.R. 6 A. (P.C.) 169 : 49 M.L.J. 769 : 42 C.L.J. 563 : 30 C.W.N. 313 : 28 Bom. L.R. 173 : (1926) M.W.N. 11 : 52 I.A. 322 (P.C.), although it became unnecessary for the Judicial Committee 'to make any formal pronouncement upon' the question whether adverse possession obtained against a Hindu widow binds the reversioners, inasmuch as in that case it was held that the reversioner's claim was barred under Article 129 of the Second Schedule of Act IX of 1871; nevertheless, as the issue had been raised and canvassed both in the Indian Courts and in the Privy Council their Lordships proceeded to examine the case law as to the effect upon the rights of the reversioners of a title gained by adverse possesion against a Hindu widow. It may be that the observations of the Board upon that matter were obiter, but merely upon that ground I should not be entitled to disregard them, and the less so as their Lordships indicated clearly how, in their opinion, the law upon the subject stands. After analysing the material cases, and expressing approval of the law as laid down in the earlier authorities, Sir John Edge observed that 'the result of the cases to which their Lordships have referred shows, in their opinion, that, the Board has invariably applied the. rules of the Sihvagunga's case 9 M.I.A. 539 at p. 604 : 2 W.R. P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 as. sound Hindu Law where that rule was applicable'.
22. In these circumstances, therefore, I hold that the Common Law of the Hindu community, which is to be collected from Goluckmani Debi v. Digamber De (1852) Macpherson on Mortgaeges, 2nd Ed. 20 Shivagunga's case 9 M.I.A. 539 at p. 604 : 2 W.R. P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 and Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty 9 W.R. 505 at. p. 509 : B.L.R. Sup. Vol. 1008, is still the law of the land, and has been neither abrogated nor varied by any legislative enactment.
23. Now, the trust property in suit is moveable property to which Article 141 is not applicable, but whether the appropriate Article of the Limitation Act is Article 49, or Article 120, in either case, and notwithstanding Runchordas Vandravandas v. Parvatibai 23 I.A. 725 : 26 I.A. 71 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. (N.S.) 485 (P.C.),I hold that the plaintiffs' claim to recover possession of such property from the defendant fails, as it is barred by limitation.
24. That disposes of all the questions raised in this case with respect to the trust property, for it is to be observed that the plaintiffs have not brought the suit as the trustees, but as the heirs, of Kiran. Mr. Chaudhuri in his reply expressly stated that the plaintiffs did not sue in a representative capacity as trustees, and it is obvious, having regard to the frame of the suit and the form of the pleadings, that Section 10 of the Limitation Act, does not apply. The defendant did not purport to hold the property in a manner adverse to the trust, and the plaintiffs did not purport to bring this suit either as beneficiaries under the trust, or on behalf of the trust, but 'for their own personal right to manage or in some way to control the management of the endowment. The consequence is that the case does not fall within Section 10 of the Limitation Act ' Balwant Rao v. Puran Mal 10 I.A. 90 at p. 96 : 6 A. 1 : 13 C.L.R. 39 : 4 Sar. P.C.J. 435 : 3 Ind. Dec. (N.S.) 352 (P.C.).
25. In substance and in fact the plaintiffs are suing in their personal capacity as the heirs of Kiran to recover possession of such part of the estate of Kiran as came into the defendant's possession as the executrix of Pundari. But I hold upon the facts that the plaintiffs have not proved that the defendant as the executrix of Pundari or otherwise obtained possession of any property that belonged to Kiran other than the trust property. The defendant has been examined and cross-examined, and her evidence supports the conclusion at which I have arrived. The statement in Kiran's Will that he had no moveable or immoveable property further strengthens that view, and, in my opinion, an. examination of the affidavit of assets filed in connection with Kiran's Will places the matter beyond doubt or controversy. I find, therefore, upon the evidence that the plaintiffs have failed to prove that the defendant has been in possession, or is in possession of any part of Kiran's estate exclusive of the debutter property. The plaintiffs' claim contains other forms of relief, but these are ancillary to the main claim for possession.
26. For these reasons the suit must be dismissed with costs on scale No. 2, including the costs of the commission.