S.A. No. 1556 of 1909.
1. It is unnecessary for us to go into all the points raised in this appeal as it must necessarily fail on the point of limitation.
2. The plaintiffs have never been in possession of this property and the only way in which they could succeed was by proving that one Monmohini who died in 1301 had a widow's estate in the property at the time of her death, the suit having been brought within 12 years from that date. It is found by the Courts below that she had. not a widow's estate in the property because in the year 1288, when the succession might have opened to her, she was incapable of child bearing and, therefore, under the Bengal School of law, was not entitled to succeed. The Subordinate Judge finds that in 1238 Monmohini was 63 or 64 years old. Her husband was still alive and it does not appear that she had been separated from him. Although she had had a son who had died, she had had no children for 43 years. From these facts, the Subordinate Judge inferred that she was incapable of child-bearing. It is impossible for us to say that the learned Subordinate Judge committed any error of law.
3. It may be difficult to lay down any general rule as to when a woman's capacity of bearing children can be said to cease. But there is no case in the books which would justify a conclusion that a woman of 63, who had been 43 years living with her husband without having a child, must be regarded as capable of child-bearing.
4. On the facts of this particular case, there is no error of law in the view that has been taken by the Subordinate Judge and, that being so, the appeal must be dismissed with costs.
5. This judgment will govern S.A. No. 1674 of 1909.