PLD 1958 Dacca 174 (PLP)

In Their Lordships' judgment where there has been no decree against the widow or other act in the law in the widow's life‑time depriving the reversionary heir of the right to possession on the widow's death, the heir is entitled, f after the widow's death, to rely upon Article 141 for the purpose of the determination of the question whether the title is barred by lapse of time. To hold other wise' would, in their Lordships' opinion, in effect, compel the Court, in determining a question within the scope of the Article, to ignore the express words of the Article. But their Lordships are further of opinion that the point is already concluded by the judgment of their Board in Runchordas Vandrawandas v. Parvatibhai (26 I A 71). In that case, a testator, who died in 1869, leaving two widows, devised the whole residue of his estate to trustees for dharam. One widow died in 1871 and the other died in 1888. After the death of the second widow, the heir of the testator sued for a declaration that the devise to dharam was void and for administration. The High Court held that the gift in dharam was invalid and there was an intestacy. The High Court further held that the possession of the trustees for dharam since the testator's death had been adverse as against the widows and the heir but that the plaintiff's claim to the immovable property was barred by limitation. On appeal to His Majesty in Council, their Lordships' Board held that Article 141 of the Act of 1877 (1) 9 M I A 589 (2) 20 I A 183 (3) 26 I A 71 (now reproduced in Article 141 of the Act, 1908) applied to the immovable property, and that under it time the death of the second widow, and that, therefore, the plaintiff in the suit was not barred by limitation. It was also held that . Article 120 of the Act, 1877 (now repro duced in Article 120 of the Act, 1908) applied to the movable property, and that the right of the plaintiff in the suit to sue under that Article only accrued on the death of the second widow, and was, therefore, also not barred. The case of Vaithialinga Mudaliar v. Srirangath Anni (52 1 A 322: A I R 1925 P C 249) illustrates' the application of the rule in the Shivagunga case, where a decree founded upon adverse possession has been obtained against a Hindu widow in her life‑time. The decision is not, in their Lordships' judgment, in con flict with that in Runchordas Vandrawandas v. Par vatibhai in which no decree had been obtained against the widow, nor had there been any other 'act In the law in the life‑time of the widow destroying the heir's interest." Mr. B. C. Das appearing for the respondents has argued that inasmuch as adverse possession started running against the Hindu female, namely, Chitrasundari, and that inasmuch as such adverse possession continued for more than 12 years during her life‑time, the plaintiff who became the rever sioner on the death of Chitrasundari could not pray in aid Article 141 of the Limitation Act. In support of his con tention, he has relied on a decision of the Calcutta High Court in the case of Aurabindo Nath Tagore and another v. Monorama Debi (32 C W N 913). In this case it was field that according to the common law of Hindus, as now settled by authorities, loss by a widow of her husband's property, Whether movable or immovable, through adverse possession or an adverse decree, operates as a loss by the reversioners. It was further held that this rule has been _leirher abrogated nor varied by any legislative enactment such as Article 141 of the Limitation Acts of 1877 and 1908. Page, J., also observed that there is no .difference in principle between the loss of the reversioners' rights by an adverse decree against the widow holding the estate and the loss of such rights by adverse possession against her without there being any decree. The rights of the reversioners would be equally barred. It will be noticed that in the aforesaid case, Page, J., did not follow the decision of the Judicial Committee of the Privy Council in the case of Runchordas Vanarawandas and others v. Parvatibhai and others. The only reason given by Page, J., for not following the aforesaid Privy Council decision is a passage cited from,a decision of the said judicial Committee in the case of Vaithialinga Mudaliar and others v. Srirangath Anni and others. In anaiysing the said Privy Councii decision, Page, J., observes as follows :‑ "After analysing the material cases, and ‑pressing (1) 52 1 A 322: A I R 1925 P C 249 (2) 32 C W N 913 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 Shivagunga's case as sound Hindu Law where that rule was applicable." It is interesting to observe that Page, J., did not follow a series of decisions of the Indian High Courts which held the contrary view, namely, a Full Bench decision of the Calcutta High Court in the case of Srinath Kar and others v. Prasunno Kumur Ghose ((sic) I L R Cal. 934 (F B)), a Full Bench decision of the Allahabad High Court in the case of Ram Kali v. Kedar Nath and another (14 All. 156), and a decision of a Division Bench of the Bombay High Court in the case of Vundrawandas v. Cursondas (21 Bom. 647). The answer to the arguments advanced by Page, J., is to be found in a later Privy Council case which has been cited above, namely, the case of Mst. Gaggo Bai v. Utsaya Lai. I have extensively quoted above from the observations of Lord Tomlin who delivered the judgment of the Board. With the observations quoted above, I respectfully agree and I hold that the plaintiff's case is not barred by adverse posses sion of the defendants during the life‑time of the Hindu female who was a limited owner, namely, Chitrasundari. I hold that Article 141 of the Limitation Act does apply to this case. Inasmuch as the said Chitrasundari died in 1949 and this suit was filed in 1951, it is not barred by the law of limitation. For reasons stated above, I allow this appeal and set aside the judgment and decree passed by the learned Subordinate Judge. The judgment and decree passed by the learned Munsif is affirmed. 1, however, make no order as to costs. Z. A. s. Appeal allowed.