Ayyaswami Iyer vs Mahadeva Iyer and Others

William Watkins Phillips, J.—The appellant is the 1st defendant in a suit brought by the plaintiffs as reversionary heirs of one Gurunatha Iyer

impleading numerous other defendants who have not appealed. The plaintiffs claimed to be the reversioners and this fact was disputed by the

defendants but they only put plaintiffs to proof of it. P.W. Nos. 1 to 7 have all given evidence on the point and their evidence has been believed by

the learned Subordinate Judge. Certain criticisms have been put forward in this Court which contain nothing of sufficient importance as to discredit

the testimony of the witnesses who have been believed by the trial Judge who had the opportunity of seeing and hearing them give their evidence. It

is also significant that defendants Nos. 1 to 3 were not prepared to go into the witness-box and swear that the plaintiffs were not members of their

family, a fact which must be within their knowledge. We must, therefore, accept the finding that the plaintiffs are reversioners.

The second finding of fact relates to the question of who was the last male holder. The plaintiffs say that Gurunatha Ayyar was the last male

holder but the defendants contend that he predeceased his father, Chidambaram Iyer who was the last male holder. The evidence is all on one

side, namely that of P.W. Nos. 2, 4, 5 and 7 which is unrebutted by any evidence for the defendants. That evidence is also supported by some

prior proceedings in Court where the question had been raised. The learned Subordinate Judge has believed these witnesses and we see no reason

to differ from his conclusion.

The plaintiffs'' case was that Gomathi Ammal, the widow of Gurunatha Iyer came into possession of her husband''s property and surrendered

the appeal items to her sister-in-law Kamakshi Ammal, and that there was no necessity for that sur-sender and, consequently the plaintiffs are

entitled to recover the properties now. The defendants first of all took the plea that Gurunatha Iyer was not the last male holder but Kamakshi''s

father Chidambaram Iyer from whom she, Kamakshi, inherited the property. In setting out their case in the written statement the plea that

Chidambaram Iyer was the last male holder, comes first and then we come to para. 11; ""In the face of it, it is absurd to state in para 11 of the

plaint that Gomathi Ammal surrendered some of the properties to Kamakshi Ammal. There was no necessity for such a surrender either"". Thus

ends their first plea. Paragraph 12 runs: ""Even if it should be proved that Gurunatha Iyer died after Chidambaram Iyer, inasmuch as the surrender

was made to Subbalakshimi Ammal in the interest of her daughter Kamakshi Ammal and her heirs according to the arrangement made by the

dayadis with their full consent and as the same has been admitted by the plaintiff and others that arrangement is binding on them. This paragraph is

clear admission that if it should be proved as has been done, that Gurunatha Iyer died after Chidambaram Iyer there was a surrender by Gomathi

Ammal as was also pleaded by the plaintiffs but not in precisely the same form, for they alleged that the surrender was direct to Kamakshi Ammal

whereas the defendants say that it was to Subbalakshimi Ammal on Kamakshi''s behalf. On this plea it is incumbent on the defendants to show that

the surrender was valid surrender; and their mere statement that the surrender was valid according to the arrangement made by the dayadis does

not constitute a part of their admission that there was a surrender but is a plea that even if there was a surrender that surrender was a valid

surrender. It is, therefore, incumbent on the defendants to prove the validity of the surrender by the widow of portion of the husband''s estate. No

attempt whatever has been made to prove this. Therefore, no question of adverse possession by the alienees can arise in this suit and that is

apparently the reason why that question was not raised in the lower Court.

Notwithstanding the pleadings a very long argument has been addressed to us with a view to showing that the judgment in Vaithialinga, Mudaliar

v. Srirangath Anni, 92 Ind. Cas. 85 is authority for holding that adverse possession against the widow is adverse possession against the

reversioners. It is unnecessary to determine, the question but I will refer to it briefly. The Privy Council in that case were considering the prior

decisions relating to prescription against a widow, more particularly Katama Natchiar v. Raja of Shivagunga 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1

Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843. After considering the connected cases their Lordships observe: ""The result of the cases to which

their Lordships have referred shows in their opinion that the Board has invariably applied the rule of the Shivagunga case 9 M.I.A. 539 : 2

W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 as sound Hindu Law where that rule was applicable."" In the judgment the only

passage where a reference to what the Shivagunga''s rule really is on page 899 Page of 19 E.R.--[Ed.]. ""In Harinath Chatterjee v. Mothurmohun

Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334 it was held that the rule in the Shivagunga''s case 9 M.I.A. 539 : 2

W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 to the effect that on adverse decree against a Hindu widow binds those

claiming in succession applies equally to the case of the daughter."" It would appear that the rule in the Shivagunga''s case 9 M.I.A. 539 : 2

W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 referred to by their Lordships was as stated in that sentence and the words are

very clear.

It has been sought to extend that rule to all cases of adverse possession and that view has been accepted by one Judge of the Allahabad High

Court, who formed the minority in a Bench of three Judges, which, considered this question. It was also held by a Single Judge of the Calcutta

High Court but the opposite view was taken by a Bench of the Calcutta High Court in Siva Prosad Saw and Another Vs. Bhadramoni Dassi, .

With all respect I prefer to adopt the opinion of the majority and hold that Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas. 85 .

does not lay down a general rule that adverse possession against the widow, whatever its nature, is adverse to the reversioner irrespective of the

provisions of Article 141 of Limitation Act.

The appeal is dismissed with costs.

Tiruvenkata Achariar, J.

I agree and I wish to add a few words on the question of limitation which was elaborately argued by the learned Advocate for the appellant. The

plaintiff seeks to recover Immovable properties as the reversioner of Gurunatha Iyer who died in 1862, on the death of his widow Gomathi Ammal

which took place in 1919. Prima fade the Article of Limitation which applies to the suit is Article 141 of the present Limitation Act, 1908,

according to which the suit is in time as it is filed within twelve years from the death of Gomathi Ammal. It is however argued for the appellants that

they and their predecessors were in possession of the properties adversly to Gomathi Ammal for more than twelve years. She then represented the

estate of her husband Gurunatha Iyer and the effect of her dispossession for more than twelve years was to extinguish her title to the property as

the representative of her estate, in other words, that adverse possession for the statutory period of property inherited by a Hindu widow or other

female taking a similar estate operates not only to extinguish her title thereto, but also the title of the reversioner who succeeds to the estate on her

death. A reversioner, therefore, whose title was thus extinguished is not one who is ""entitled to the possession of Immovable properties on the

death of a Hindu female"" within the meaning of column 1 of Article 141 and that Article does not, therefore, apply to a suit brought by him for

possession of the Immovable property on the death of the female. In support of this contention, the learned Advocate for the appellants relies on

the decision of the Privy Council in Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas. 85 .

The respondent''s Advocate on the other hand contends that the proposition that adverse possession against a Hindu widow or other qualified

Hindu female heir for the statutory period bars the reversioner also was the rule of law under the earlier regulations and the Limitation Act XIV of

1859. But the Legislature changed that rule in Act IX of 1871 by giving a fresh starting point of limitation for a suit by a reversioner to recover

Immovable properties which he became entitled to on the death of the widow or other female heir and that provision has been re-enacted in the

later Limitation Acts of 1877 and 1908. Under Act XIV of 1859 and the earlier regulations there was only one starting point of limitation for suits

for the recovery of Immovable properties and that was from the time the cause of action arose. When Immovable property to which a Hindu

widow or other female heir was entitled was held adversely to her, time began to run from the date the adverse possession commenced, and the

suit for the recovery of property whether brought by her or by the reversioner who succeeded to the estate after her would be barred unless it is

brought within twelve years from that date. But Act IX of 1871 which repealed Act XIV of 1859 changed the law on the point by providing a

special article under which the starting point for limitation for the suit by a reversioner arose on the death of the widow, the period of limitation for

the suit being twelve years from the death of the widow. This provision was re-enacted in the later Acts and amplified by including in the first

column other female heirs also who took the same qualified estate as a widow and on whose death the reversioner succeeded.

It is contended that the effect of this change in the law is, that adverse possession against a widow which extinguishes her rights does not affect

the rights of the reversioner as it did under Act XIV"" of 1859 and the regulations which preceded that Act.

Referring to the change made by Act IX of 1871 and the succeeding Acts Mr. Rustomji observes as follows:

A Hindu widow''s estate and other estates analogous thereto are for purposes of limitation assimilated to an estate of an ordinary tenant for life. So,

as no length of adverse possession against the tenant for life bars the reversioners, the same result follows in cases arising under Article 141. The

law allows the reversioner twelve years from the female heir''s death, and it is neither in her power nor in the power of any person claiming through

or against her to abbreviate that period. Adverse possession cannot run against reversioners until, after the death of the widow. If the female heir

never obtained possession on the owner''s death and it was taken and continued by another person (in no way entitled to the property) adversely

to her, the fact that she herself was barred by twelve years of such adverse possession against her, will not preclude the reversioner from suing

within twelve years of her death,"" See Rustomji''s Limitation Act, Fourth Edition, at page 726.

In my opinion, this is a correct statement of the law as laid down by the several High Courts and the Privy Council in cases which arose under

the Limitation Acts commencing from Act IX of 1871. See also Mayne''s Hindu Law, 9th Edition, para. 643 at pages 951 and 952. The change in

the rule of limitation made by Act IX of 1871 does not, however, affect any title which had been acquired by adverse possession before that Act

came into force. See Appasami Odayar v. Subramanya Odayar 12 M. 26 : 15 I.A. 167 : 5 Bar. P.C.J. 255.

The question then is whether as contended for the appellant, the Privy Council have in Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas.

85 .

, re-affirmed even with regard to cases arising under the Limitation Acts of 1871, 1877 and 1908 the old rule which was applied to cases

governed by Act XIV of 1859, namely, that adverse possession which bars a widow or other female heir also bars the reversioner. A perusal of

the judgment of their Lordships in that case shows that the decision against the plaintiff-reversioner on the question of limitation was based on

Article 129 of Act IX of 1871 and their Lordships expressly say that it is, therefore, unnecessary for them to make any formal pronouncement on

the further question which was argued before them, namely, whether adverse possession which bars the widow bars the reversioner also. They,

however, proceed to consider the authorities whish were cited in support of that contention and after doing so, observe as follows:

The result of the cases to which their Lordships have referred shows, in their opinion that the Board has invariably applied the rule of the

Shivagunga''s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 as soun Hindu Law where that rule is

applicable.

In the Shivagunga''s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 their Lordships held that the

widow who inherits her husband''s estate though she has only a qualified interest therein represents the estate absolutely for some purposes and

that a decree fairly and properly obtained against her in regard to her husband''s estate is in the absence of fraud or collusion binding on the

reversionary heir.

In Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty 9 W.R. 505 : B.L.R. Supp. 1008, in which the question arose under Act XIV

of 1859, it was held following the Shivagunga''s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 that as

the reversionary heirs are bound by decrees relating to her husband''s estates which are obtained against her without fraud or collusion, they are

also bound by limitation by which without fraud or collusion she is barred. This review was affirmed by their Lordships in Aumirtolal Bose v.

Rajonee-Kant Mitter 2 I.A. 113 : 23 W.R. 214 : 15 B.L.R. 10 : 3 Sar. P.C.J. 430 : 3 Suth. P.C.J. 94 which was also a casein which the question

of limitation, related to Act XIV of 1859.

After the passing of Act IX of 1871 the question as to the effect of adverse possession against a female heir as regards a suit brought by a

reversioner for possession of the estate on her death was considered by a Full Bench of the Calcutta High Court in Sreenath Kur v. Prosunno

Kumar Ghose 9 C. 934 : 13 C.L.R. 372, In that case the reversioner was a daughter''s son to whom Article 142 of Act IX of 1871 did not in

terms apply as he succeeded not on the death of the widow but on the death of the daughters of the last male owner. There learned Judges

contrasting the provisions of the Act of 1859 with the corresponding provisions in the Acts of 1871 and 1877 held that the decision in Nobin

Chandra''s case 9 W.R. 505 : B.L.R. Supp. 1008 which was passed under the Act of 1859 was no longer the law under the Acts of 1871 and

1877 and that a reversioner who succeeds to Immovable property has under the later acts twelve years to bring his suit from the death of the

female heir. The Full Bench case in Sreenath Kur v. Prosunno Kumar Ghose 9 C. 934 : 13 C.L.R. 372 was followed by the other High Courts

also as laying down the correct rule on the point decided therein. See Ram Kali v. Kedar Nath 14 A. 156 : A.W.N. (1892) 22 and Shrinivasa

Raya v. Ramappa Hebbara 30 Ind. Cas. 991 : 2 L.W. 751 : 18 M.L.T 266.

All the other cases reviewed by their Lordships in Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas. 85 .

except the case in Runchordas Vandravandas v. Parvatibai 23 B. 725 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 21 I.A. 71 : 7 Sar. P.C.J. 543 relate

to the effect of decrees passed against widow whether such decree were passed against them in their representative character and hence binding

on the reversioners under the rule in the Shivangunga''s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843.

It needs scarcely be observed that any decree passed against a widow or other female heir in her representative character will be binding on the

reversioner also provided it was a decree fairly and properly obtained against her without fraud or collusion. If her title to any property alleged to

belong to her husband''s estate was negatived by such a decree, the reversioner being bound by the decree will fail, on the ground of res judicata, if

he sues for the recovery of the same property, the question is not one of limitation, but of; res judicata.

The case in Harinath Chatterji v. Mathurmohun Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334 which is one of the

cases referred to by their Lordships was one in which the reversioner''s Suit was held barred by res judicata. In that case the reversioner sued as

heir of the last male owner on the death of the latter''s last surviving daughter Sampurna. She had brought a suit for the recovery of the properties

against the person who was in possession thereof adversely to her and her suit was dismissed on the ground that it was barred by limitation. In the

reversioner''s suit it was contended that the plea of limitation which was successful against Sampurna was one which could not be raised against the

reversioner having regard to Article 142 of the Limitation Acts of 1871 and 1877 and that, therefore, the decree against Sampurna on a ground

which was personal to her cannot bar the reversioner''s rights. But their Lordships overruled the contention observing as follows:

The words ''entitled to the possession of Immovable property'' refer to the then existing law. Under that law the plaintiff being bound by the decree

against Sampurna would not be entitled to bring a suit for possession"" With regard to this case bath Mr. Rustomji and Mr. Mitra in their learned

commentaries say that it creates an anomalous position ""for while on the one hand, it has now been well-established by all the Courts that no length

of possession adverse to the female heir would bar the reversioner (who has twelve years reckoned from her death within which to sue), on the

other hand, if she sues to recover the property from the person in adverse possession and fails in her suit, the reversioner is barred by the decree.

See Rustomji''s Limitation Act, Fourth Edition, page 728, and Mitra''s Limitation Act, Vol. II, Fourth Edition, at page 1035. The same anomaly is

referred to in the judgment of the High Court in that very case which was affirmed by their Lordships in Harinath Chatterji v. Mothur Mohun

Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334. But a reference to the facts of the case as stated in Vaithialinga, Mudaliar v.

Srirangath Anni, 92 Ind. Cas. 85 . shows that adverse possession against the daughter Sampurna commenced in 1855 when the widow Perimoni

died, with the result that Sampurna''s rights as representing the estate became barred by limitation under Act XIV of 1859 and under the than law,

as held in Nobin Chunder''s case 9 W.R. 505 : B.L.R. Supp.1008 the adverse possession which barred the daughter also barred the reversioner.

If the reversioner is bound by adverse possession against the widow, a decree against her based on such adverse possession would a fortiori be

binding on him. It seems to me that read in the light of the facts of the case, the reference to the then existing law as barring the reversioner''s right is

explicable as referring to the state of the law prior to the coming into force of Act IX of 1871 and in that view there will be no anomaly in the

decision of their Lordships in Harinath Chatterji v. Mothur Mohun Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334.

The only other Privy Council case considered by their Lordships which I need refer to here is the case in Runchordass Vandravandas v.

Parvatibai 23 B. 725 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 21 I.A. 71 : 7 Sar. P.C.J. 543. That case has been regarded by all the High Courts as

definitely laying down that under the Acts of 1871 and 1877 limitation can never begin to run against a reversioner in consequence of any

possession or dispossession of a female, so long as she holds as heir of the last male. See Mayne''s Hindu Law, 9th Edition at page 952.

In Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas. 85 . in considering Runchordas Vandravandas v. Parvatibai 23 B. 725 : 1 Bom. L.R.

607 : 3 C.W.N. 621 : 21 I.A. 71 : 7 Sar. P.C.J. 543 Sir John Edge observes that in that case the widows of the last male owner did not represent

the estate of their husband as they were content to hold under his Will, the validity of which they did not question and that the estate was really

represented by the executor of their husband''s Will and so though the possession of the executors was adverse to the real title of the widows,

adverse possession against the latter cannot bar the reversioner under the rule in the Shivagunga''s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth.

P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 as the widows did not represent the estate. In Runchordas Vandravandas v. Parvatibai 23 B. 725 : 1

Bom. L.R. 607 : 3 C.W.N. 621 : 21 I.A. 71 : 7 Sar. P.C.J. 543 the last male owner died in 1869 and the case was, therefore, governed by the

Limitation Acts IX of l""7l and XV of 1877. A perusal of the judgment of their Lordships in that case and of the arguments which were advanced

before them by the learned Counsel on both sides shows that their Lordships rested their decision on the question of limitation upon Article 141 of

Act XV of 1877 which entitled the reversioner to bring his suit within twelve years from the death of the female. Their Lordships also held that

Article 144 which makes the time begin to run from when the possession, of the defendants became adverse to the plaintiff is not applicable where

the suit is otherwise specially provided for as in this case by Article 141. Then as regards the contention based on Section 28 of the Limitation Act,

their Lordships say that though the title of the widows may be extinguished by the adverse possession of the executors, the reversioner''s title was

not, as he does not derive his right from or through them, and the extinguishment of their right would not extinguish his. This case has ever since

been treated as settling the question that adverse possession against a widow or other female heir does not bar the reversioner under the Acts of

1871 and 1877 and 1908.

In Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas. 85 itself the plea of limitation was also based on adverse possession against the

widow Chokkammal held by her adopted son and those claiming from him from 1862 to 1884 as barring her rights as well as those of the

reversioner. In 1884 Murugathal one of the defendants in the suit who was in possession as the heir of the adopted son was dispossessed by the

widow Chokkammal. Murugathal thereon brought a suit against Chokkammal for possession of the properties which she was dispossessed of

maintaining that the adoption by Chokkammal of her husband was valid and that even if it was invalid she had acquired a title by adverse

possession. In that suit the adoption of Murugathal''s husband was held to be invalid but she was given a decree for possession on the ground of

her having acquired title to the property by adverse possession against the widow Chokkammal.

In the subsequent suit brought by the reversioner in which Murugathal and others claiming under her were impleaded as defendants, one of

their main pleas was that the decree against the widow Chokskammal in Murugathal''s suit operated as resjudicata against the plaintiff in respect of

his claim in the, suit. With reference to that plea their Lordships were inclined to the view that though the adoption was invalid the decree in favour

of Murugathal would be binding on the reversioner under the rule in the Shivagunga''s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 :

19 E.R. 843. But the main point on which the suit of the reversioner was dismissed was that it was barred under Article 129 of Act IX of 1871

and that the title of Chokkammal and those claiming after her had under that article as held by the Privy Council is Jagadamba Chaodhrani v.

Dahhim Mohun Roy Chaodhri 13 C. 308 : 13 I.A. 84 : 4 Sar. P.C.J. 785 become extinguished before Act XV of 1877 came into force. It seems

to me that the effect of their Lordships observation in Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas. 85 .

amounts to this: ""That a decree passed against a widow or other female heir which is otherwise binding against the reversioner under the rule in the

Shivagunga''s case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 does not cease to be binding on him

merely because it was passed on the ground of adverse possession against her which would be of no avail if the reversioner were himself the

plaintiff"". It may be that the result may be anomalous as has been observed with reference to Harinath Chatterji v. Mothurmohun Goswami 21 C. 8

: 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334 that the reversioner is affected by the widow suing the trespasser and failing in her suit, but he is

not affected if she remains inactive and takes no steps to recover the property from the trespasser.

In the case before us, there is no question of any previous decree against the widow and the contention rests merely upon adverse possession

against the widow. The evidence does not show when adverse possession against Gomathi Ammal commenced but even assuming that such

adverse possession commenced on the death of Gurunatha Iyer, Gomathi Animal''s rights as representing the estate were not barred when Act IX

of 1971 came into force. Unless it was so barred the plaintiff''s suit is within time as Gomathi Ammal died only in 1919.

The view I take as to the effect of Vaithialinga, Mudaliar v. Srirangath Anni, 92 Ind. Cas. 85 is in accordance with that of the majority in the

Full Bench case in Bankey Lal and Others Vs. Raghunath Sahai and Others and that of the Calcutta High Court in Siva Prosad Saw and Another

Vs. Bhadramoni Dassi, , Aurabindo Nath Tagore and Another Vs. Monorama Debi, which is a decision of a Single Judge was also relied on

behalf of the appellants. This was a case relating to trust properties. The female heir in that case who had been dispossessed of property for more

than twelve years was entitled thereto not as the heir of the last male owner but as the trustee of the properties in which capacity there is hardly any

difference between a male trustee and a female trustee. See Pydigantam Jagannadha Raw v. Rama Dosi Patnaik

28 M. 197 . That case has no bearing on the point and the observations of the learned Judge as to the effect of Vaithialinga, Mudaliar v. Srirangath

Anni, 92 Ind. Cas. 85 with which I am unable to concur are obiter.

I am, therefore, of opinion that the learned Subordinate Judge was right in holding that this suit is not barred by limitation.