GOVIND BALKRISHNA Vs. RAMCHANDRA RAJARAM

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a judgment of Mr. Justice Rajadhyaksha in second appeal confirming the decree passed by the Court of Sarnyayadhish of Aundn with certain variations, which decree had reversed the judgment of the learned trial Judge dismissing the plaintiff's suit.

(2.) THE facts which gave rise to this litigation may be shortly stated as follows. One Gopal, who was the owner of the suit house, died in 1908 leaving him surviving his widow Rakhamabai and a widow of pre-deceased son Laxmibai. Rakhama-bai died in 1918, but before her death she alienated the suit house in favour of defendants Nos. 1 and 2 by a sale deed dated January 27, 1910. On the death of Rakhamabai, Laxmibai succeeded as the next reversionary heir of Gopal. She in her turn died in the year 1930, and on her death, the reversion opened and defendant No. 7 as the reversionary heir succeeded to the estate of Gopal. On July 16, 1934, defendants Nos. 1 and 2 sold the suit property to defendants Nos. 3 and 4. Defendant No. 7 in his turn sold the suit property to the plaintiffs by a sale deed dated April 12, 1935. The present suit was filed in October 1942 by the plaintiffs against defendants Nos. 1 and 2, the purchasers from Rakhamabai, defendants Nos. 3 and 4 the purchasers from defendants Nos. 1 and 2, defendants Nos. 5 and 6, the sons of defendant No. 3, defendant No. 7 the reversionary heir to the estate of Gopal and defendants Nos. 8 and 9, the tenants in possession of the suit house, for a declaration that the sale deed dated January 27, 1910, was null and void and for possession of the suit house together with mesne profits and costs of the suit. The trial Court held that there was legal necessity for the alienation made by Rakhamabai in favour of defendants Nos. 1 and 2 and therefore dismissed the plaintiff's suit. It was not necessary for the trial Court to go into the question of limitation because it held that the alienation was for legal necessity. The lower appellate Court on the contrary held that the alienation fay Rakhamabai in favour of defendants Nos. 1 and 2 was not for legal necessity, and that being so, the alienation was not binding on the estate beyond the lifetime of Rakhamabai. In regard to limitation, the learned advocate for the contesting defendants conceded that the cause of action arose in the year 1930 and therefore the lower appellate Court held that the plaintiff's suit was in time. It therefore reversed the decree of the trial Court and passed a decree in favour of the plaintiffs. The contesting defendants Nos. 3, 6 and 5 filed the second appeal from this judgment of the lower appellate Court which came before Mr. Justice Rajadhyaksha for hearing and final disposal, and the learned Judge confirmed the decree of the lower appellate Court with certain minor variations. The learned Judge held that so far as legal necessity was concerned, the finding of the lower appellate Court being a finding of fact was binding on him and so far as limitation Was concerned, he held that the suit was governed by Article 141, Limitation Act and was not barred by the law of limitation. Leave to appeal against this decision under Letters Patent was granted by the learned Judge himself and this Letters Patent Appeal has come for decision before us.

(3.) THE main point which has been discussed before us in the course of the arguments is whether the plaintiffs' suit is barred by the law of limitation. The plaintiffs contend that the suit is governed by Article 141, Limitation Act which runs as under: it is urged that defendant No. 7 became entitled to the possession of the suit house on the death of Laxmibai who died on October 16, 1930, and that therefore the suit which was filed in April 1942 was well within the period of twelve years from Laxmi-bai's death and in time. The answer sought to be given on behalf of the contesting defendants is that the twelve years' period should be calculated from the death of Rakhmabai which took place in 1918 because she was the Hindu female on whose death the reversion opened and the reversionary heir became entitled to the possession of the suit house. The question, therefore, that falls to be determined by us is what is the true construction to be put on the provisions of Article 141, Limitation Act, whether the Hindu female whose death is referred to therein is the widow of the last full owner on whose death the Reversion opens, or is a Hindu female, be she a widow or a reversionary heir, on whose death the reversion opens and the reversionary heir to the last full owner conies to be determined. If one looks at the plain terms of Article 141, there is nothing in the terms thereof to warrant a limited construction of the nature which is contended for by the contesting defendants. The suit has got to be filed by a Hindu male or female who is entitled to the possession of immovable property on the death of a Hindu' female. That Hindu female, on whose death the reversion opens, may be the widow of the last full owner or may be a female heir who succeeds to him either initially, though having a limited estate in what she inherits, or as a reversionary heir on the extinction of a prior limited estate. In either event, the condition which is laid down in the Article would be satisfied, viz. , that the Hindu who files the suit becomes entitled to the possession of the immovable property on the death of a Hindu female. The Hindu who files the suit must succeed as the reversionary heir to the estate of the last full owner on the death of a Hindu female and that would be the case in either of the above events happening. The next reversioner who succeeds to the estate of the last full owner after the death of a Hindu female may be a male who enjoys an absolute interest in the property which he thus inherits. She may also be a female who according to the provisions of law as obtaining, e. g. , in Bombay, would get an absolute interest in the property thus inherited, or may be in her turn a limited heir not getting an absolute interest in that property, but what is known to Hindu Law as a woman's estate or a widow's estate therein, in which last event the reversion would again open out on her death. But it is only in the case of a Hindu entitled to the possession of immovable property in his own right as the reversionary heir of the last full owner having to file a suit for such possession that the: question can arise for consideration whether his! suit would be covered by Article 141, Limitation Act and would have to be filed within twelve years of, the death of the Hindu female on whose death he becomes entitled to the possession of the immovable property. Tne plain words of Article 141, there-fore, without anything more, would include a case like the one before us where Waman, the reversionary heir to the estate of the last full owner Oopal, became entitled to the possession of the suit house on the death of Laxrnibai, a Hindu female. Woman did not become entitled to the suit house on the death of Rakhamabai because-there was an intervening heir, though a reversionary heir, Laxmibai. Until Laxmibai's rights were exhausted, Waman could not come in at all. It was only on the death of Laxmibai and the opening of the reversion on her death that Waman. being the next reversionary heir 10 the estate of Gopal, succeeded to the estate of Gopal in his own right as such reversionary heir and not in any manner whatever as claiming through Laxmibai who was only a limited heir, though she was the reversionary heir to the estate of Gopal.