GAJADHAR PANDE Vs. MUSAMMAT PARBATI

JUDGEMENT

(1.) In the suit out of which this appeal has arisen the plaintiffs claimed possession of shares in two villages as reversionary heirs of one Mulai Pande. They also claimed mesne profits. The property in dispute with other property belonged to one Ajudhia deceased. He left three sons Pargash, Mulai and Hardayal. Before his death he divided his property between these three sons and it is a matter not now in controversy that the three sons were separated Hindus. Mulai accordingly at the time of his death was entitled as a separated Hindu to his share. He had a son named Janki who predeceased him leaving a widow Musammat Katwari Kunwar. He also left two widows, namely, Musammat Hansrani and Musammat Sitla Kunwar. The last of these widows died in 1889. A plea of limitation was set up by the defendants, and this plea was decided in their favour by the learned Subordinate Judge upon the ground that 12 years had elapsed before the institution of the suit from the death of Musammat Katwari.

(2.) It appears to us that in the circumstances of the case, the time of the death of Musammat Katwari is immaterial inasmuch as her husband predeceased his father and she, therefore, acquired no interest in the estate of Mulai. The learned Subordinate Judge failed to appreciate the true rule of limitation governing claims by reversioners to possession of immovable property on the death of a Hindu female. The rule is to be found in Art. 141 of Schedule II of the Limitation Act of 1877. That article provides a period of 12 years limitation in a suit by a Hindu or a Muhammadan entitled to possession of immovable property on the death of a Hindu or Muhammadan female from the time when the female dies. In this case on the death of the survivor of Hansrani and Sitla, the widows of Mulai, the right of the reversioners to possession of the property of Mulai accrued. As we have said, Musammat Katwari was not entitled to the estate of Mulai and consequently, however she enjoyed possession of his property, it was not by right of inheritance as a Hindu widow.

(3.) It appears that upon the death of the survivor of Hansrani and Sitla, an application for mutation of names was made to the Revenue Court and on that occasion Kali Charan and Debi, the fathers of the present plaintiffs, objected to the name of Katwari being retained upon the record. They were referred to the Civil Court but failed to institute any proceeding in the Civil Court to establish their title. The name of Musammat Katwari accordingly remained upon the record as owner of the property of Mulai. The learned Counsel for the appellants has failed to point oat any evidence whatever which would go to establish that Musammat Katwari was permitted to enjoy the possession of the property by the reversioners. So far from her possession being with their consent, it appears from the documents on the record that they objected to her possession and to the receipt of rent by her from the tenants. In the absence, therefore, of any such agreement between Musammat Katwari and the reversioners, it seems to us clear that her possession must be regarded as adverse to them. If that possession was adverse to them, then the accrual of the cause of action of the plaintiffs commenced from the death of the survivor of Musammat Hunsrani and Sitla and not from the death of Musammat Katwari. It is unnecessary, therefore, for us to determine precise date of the death of Musammat Katwari.