SUBBI GANPATIBHATTA NEELMANE Vs. RAMKRISHNABHATTA SHANKARBHATTA

JUDGEMENT

(1.) The material facts are that there were three brothers Subba, Param and Manja, constituting a joint Hindu xamily. We take it that they did constitute a joint Hindu family, for, although this point may have to be determined when the case comes to be tried on its merits, the presumption is that they did and such were the pleadings of the plaintiff throughout. These three brothers died in this order : Param died first; then Subba; and Manja died last in the year 1878. Each of the brothers left a widow. Ganapannna was the widow of the eldest brother Subba. Parami was the widow of the second brother Param; and Venkamma was the widow of the last surviving brother Manja. For the purposes of the argument before us, we shall assume that Manja was the last male owner of the estate and therefore on his death in 1878 his widow Venkamma took a widow s life estate in the entire property. It is evident that she must then have been comparatively young. What actually happened, although we do not desire to prejudge any question of fact which may later have to be tried, appears to us to have been that the older widows persuaded Venkamma to make a partition of the entire property as though each widow were entitled of her own right to one-third. Presently, this having been done in the year 1880, Ganapamma, the oldest widow, as Venkamma alleged in, 1904, with her consent and acting as her agent, made a gift to the defendants in the present suit or their predecessors-in-title of the property which is the subject-matter of the litigation, The other widow appears to have joined in that gift. When the suit comes to be finally tried complications may arise out of the alienations which, we are told, were made by Venkamma and the widow of the second brother Parami. But for the present we may neglect all considerations of that kind. In 1904, Venkamma brought a suit against the donees of 1880 pleading, that although Ganapamma was the nominal donor she, Venkamma, consented and approved of the gift to the defendants upon certain conditions. As, however, those conditions had not been complied with, she sued to recover possession of the property for the breach of the conditions. The defendants resisted the suit on the ground that they were not donees of Venkamma at all, that they had received the property from Ganapamma and had held it adversely to Venkamma and any estate she might possibly represent. The trial Court held that whether the three widows each represented a separate estate or whether Venkamma as the widow of the last male holder, on the assumption that the family was up to that time undivided, took a widow s life estate in the entire estate, she must fail in that suit, on the first supposition because she had alienated her own right and could not recover the right of the second widow Parami; and on the second supposition because she was barred by the lapse of time. In 1911 Venkamma died and the present suit has been brought by the plaintiff, her daughter, as heir and reversioner of the estate of her father Manja. Both the Courts, relying upon the Shivagunga case (Katama Natchier v. The Raja of Shivagunga (1863) 9 M.I.A. 539) and the case of Hurrinath Chatterji v. Mohunt Mothoor Mohun Goswami (1893) L.R. 20 I.A. 183 threw the suit out on the preliminary ground that it was res judicata. This is the point to which our attention has been confined in this appeal.

(2.) We are clearly of opinion that the Courts below were wrong. We think the principle of the Shivagunga case cannot be extended so as to cover a case of the kind we are dealing with. It is true that where a widow sues to recover property which she alleges belonged to the estate of her deceased husband or vlefends attacks upon that estate, in both cases the cause of action originating in acts other than her own, the general rule laid down in the Shivayunga case might apply. But it has often been pointed out that it cannot apply to cases in which the suits either conducted or defended by a widow are personal to herself and originate in her own acts. This proposition can be supported by abundant authority were it necessary and we need only advert to the case of Runchordas Vandrawandas v. Parvatibhai (1899) L.R. 26 I.A. 71 and the case of Braja Lal Sen v. Jiban Krishna Roy (1898) I.L.R. 26 Cal. 285, 297. The reason for the distinction is, we think, equally clear and simple. If we analyse the relief sought by Venkamma in the suit of 1904 it becomes apparent that she herself alleged a gift or temporary and conditional alienation of her own through her agent Ganapamma to the defendants; and she sought to recall her own gift merely upon the ground that the conditions she had annexed to it had not been complied with. Upon her own pleadings, no question of limitation could have arisen; but such considerations were introduced by way of defence and the learned trial Judge appears to have come to the conclusion as a matter of fact that the alienation of whatever character it may really have been was made by Ganapamma and not by Venkamma; and that therefore, the alienees, in his judgment, held from that moment adversely to Venkamma. Now, assuming that that finding of fact was correct, it would still leave open the difficulty, which the lower Courts appear to have entirely overlooked, of applying in all such cases the provisions of Article 141 of the second Schedule to the Indian Limitation Act. If the criterion we have laid down be the true criterion and we have little doubt that it is, then the widow in the enjoyment of a life estate can never fully represent the estate within the meaning of the dicta in the Shivagunga case in any litigation arising out of acts of her own and limitation, we think, upon a true analysis can never be found to begin to run against reversioners during the widow s life estate. Other considerations might apply if the contention were that adverse possession had commenced prior to the life estate. Here, however, the facts so far are admitted that the defendant s possession only commenced in 1880. The acts of the widows inter se between 1878 and 1880, assuming that the whole estate had vested for life in the widow of Manja, would probably reveal themselves to have been in fact, though probably not in intention, alienations by Venkamma in favour of the other two widows. Thus it is clear that whatever adverse possession the defendants here may rely upon only began to run during Manja s widow s life estate; and it appears to us that adverse possession of that kind cannot be used against reversioners. Prior to the appearance of Article 142 as it then was in the Indian Limitation Act of 1871 and Article 141 in the Indian Limitation Act of 1877, there was very good ground for the legal opinion that possession adverse to the widow even during the currency of her life estate might finally bar reversioners. In view, however, of the express provisions of Article 141 that opinion is no longer maintainable. The life estate of a widow is something very closely analogous to a disability imposed upon reversioners. If we were to carry the decision of the Shivagunga case the length to which it has been carried by the judgments of the lower Courts, reversioners might always be barred out of the whole estate by the mere neglect of widows whose life estate persisted for more than twelve years although during that period the reversioners could not themselves intervene. Where there are special articles providing a period of limitation like Article 141 on general principles they must be taken to override the more general Articles such as Articles 142 and 144. And we are equally unable to hold on the facts before us that the decision against Venkamma in 1904 was res judicata so as to put an end to the plaintiff s suit. That was not a decision inter paries. Neither was it in our opinion a decision in rem. It is only on the supposition that in that litigation the widow fully represented the estate that it could be regarded as res judicata against her daughter; but if we look to the ground of her claim in that suit, we shall see that it has nothing in common with the plaintiff s claim in this suit. Nor is the plaintiff claiming through the widow of Manja but in her own right as heir and reversioner to her father. It may be that in classes of cases which do not fulfil the precise requirements of Article 141, such as successive life estates in impartible properties, adverse possession covering more than twelve years during one life tenancy may effectively bar succeeding life tenants. That is the doctrine to which effect was given in the well-known case of Radhabai and Mamchandra Konher v. Anantrav Bhagvant Deshpande (1885) I.L.R. 9 Bom. 198, F.B. But the doctrine cannot be carried over so as to cut down and virtually nullify the express provisions of the Legislature contained in Article 141 of the second schedule to the Indian Limitation Act.

(3.) The broad principle upon which we base our judgment here is that during the continuance of a widow s life estate, adverse possession which begins in and runs its course before that life estate terminates will be no bar to reversioners. Nor will litigation by the widow in the enjoyment of such a life estate, whether she be plaintiff or defendant, represent the estate fully so as to give rise to a bar of res judicata against reversioners if such litigation is qualified and personal to the widow or has arisen out of acts of her own affecting the estate during her own life estate therein.