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Judgment
This is an appeal by the Defendant against the decree of the Subordinate Judge of Mymensingh, giving to the Plaintiffs a 5 anna 121/2 gundas share of metal Mukund Shajimpore representing a 6 anna share of a 15 anna share of the entire mehal The second Plaintiff derived his interest by purchase from the first Plaintiff who has been found to be the reversionary heir of Anup Narain Dey, and as such, entitled to the share in question on the death of Anup Narain''s daughter, Sabitri Dasi. The meahal formerly belonged to two brothers, Surjo Narain Dey and Anup Narain Dey, in the shares of 10 anna and 6 anna respectively Surjo Narain died leaving a son, Bholanath, who died in about the year 1862, leaving a son, who is the first Plaintiff in the suit, Anup Narain died leaving only a widow, Bhabani Dasi, and a daughter, Sabitri Dasi. The latter survived her mother and died in the early part of 1893.
In 1838, after the death of Anup Narain a 10 anna share and in 1845 a 5 anna share of the mehal was sold in execution of decrees obtained by certain creditors against either Bholanath, Bhabani and Sabitri or against Bholanath and Sabitri, for debts contracted by the three first-named persons, and the purchaser in each case was the Appellant''s father. What is claimed in this suit is Anup Narain''s 6 anna share of the 15 anna so sold, that is to say, a 3 anna 15 gundas share of the 10 anna and a 1 anna 171/2 gundas share of the 5 anna on the ground as stated in the 8th paragraph of the plaint, that only the life-interests of Bhabani and Sabitri passed by the sales and that the first Plaintiff is the reversioner of Anup Narain.
In 1851, the first Plaintiff, as guardian of his father, who WAS said to be a lunatic, obtained a decree against the purchaser at the execution sale of 1838, setting aside that sale on the ground of an illegality and restoring to him his father''s 10 anna share of the 10 anna sold. Sabitri was a Defendant in that suit, but then or subsequently took no measures to recover her 6 anna share.
In June 1857, he brought a similar suit to set aside the sale of 1845 and to recover his father''s 10 anna share of the 5 annas sold. But this suit failed and was dismissed.
In May 1857, he, in the same capacity, brought another suit to recover Anup Narain''s 6 anna share of the 15 annas sold at the two sales (the share in fact now claimed) alleging that it had been sold for the debts of Bhabani, and that on her death his father, and not Sabitri, was the heir. This suit was dismissed on the ground that Sabitri was the heir, and that in her lifetime the Plaintiffs father had no right to the property. This Court confirmed the decree of dismissal on the express understanding that it did not affect the Plaintiffs rights, whatever they might be when Sabitri''s death took place.
The Subordinate Judge holding that the first Plaintiff is the heir of Anup Narain, that the decrees were mere personal decrees against the ladies, that the sales in execution of those decrees passed only their life-interest in the property, and that the possession of the purchasers was not adverse to Sabitri, has given the Plaintiffs a decree. The correctness of his decisions on all those points is now challenged.
The first Plaintiff is the grandson of Anup Narain''s brother, and Anup Narain has left no descendants on the male or female line. It is said that the evidence does not exclude the possibility of there being a nearer heir or at least another heir in an equal decree, but it was not disputed in the previous litigation between the parties that Bholanath, who was then alive, was the sole reversionary heir of Anup Narain, and it is not suggested in the present case that there is any nearer or other heir than his son, and there is no denial in the written statement that the latter is the heir. We think, therefore, that the Subordinate Judge was quite justified in holding that the heirship is established.
Upon the law as it stood before Act IX of 1871 came into operation an adverse possession which bound the female heir, bound also the reversioner, and the latter got no fresh cause of action in regard to the estate of the ancestor at the time of the death of the female heir. If, however, the female heir sold the estate without lawful cause, the purchaser entering into possession was not a wrong-doer during her lifetime, she had no cause of action against him, and the sale was not binding as against the reversionary heirs. [Nabin Chunder Chakrabarty v. Issur Chunder Chakrabarty 10 W.R. 505]. A cause of action, which was barred under the Limitation Acts of 1859 and 1871, is not revived by the Limitation Act now in force.
Appellant contends that the present claim is wholly barred as he and his father held adverse possession for more than 12 years prior to 1871. It is said that a purchaser at an execution sale is in a very different position to a purchaser at a private sale, and a good many cases have been cited in support of the contention. It is not necessary to refer to them because it may be conceded that there is in some respects a difference and that a person in possession and claiming under a title paramount to that of Hindu widow entitled to the life-estate would hold adversely to the widow. But a purchaser at an execution sale of the widow''s life-interest is in no better position than a purchaser of the same interest from the widow herself. His possession as against her is not a wrongful possession, and she would have no cause of action against him for the recovery of the property. The question, therefore, in each case must be what was sold, the widow''s life interest or the entire estate represented by the widow.
The plea of limitation is, however, more particularly urged as regards the share purchased at the execution sale of 1838 which the Respondent got set aside in 1851, so far at least as his own interest was concerned. It is said that the effect of the decision of 1851 was to set aside the entire sale, and that from that time the possession of the Appellant was adverse to Sabitri, who had a good cause of action against him for the recovery of the property.
Assuming that that was the effect of the sale, the Subordinate Judge has found that the possession was not adverse because Sabitri acting in collusion with Appellant''s father, allowed him to hold possession. The evidence is meagre, but we are not disposed to dissent from the conclusion; Sabitri was a near relative of Appellant''s father; she took no measures to recover the property, and she was allowed to occupy a portion of it free of rent.
The Subordinate Judge was, however, wrong in saying that it was found in the suit of 1851 that the sale proclamation was suppressed at the instance of her husband. The Respondent might, it is true, during Sabitri''s lifetime, have brought a suit to have the nature and extent of the purchaser''s right declared, but his omission to do that does not affect his right to recover the property on her death if he is entitled to it.
There remains the question what was sold in 1838 and 1845. Was it the life-interest or the entire estate ? A copy of only one of the decrees has been put in and the judgments are not produced. It appears from that copy that the original is so worm-eaten as to be almost wholly illegible, and all that can be gathered is that the sum decreed was due on a bond and that two of the Defendants were Sabitri Dasi and some other Dasi. The Subordinate Judge in reciting what he calls the undisputed facts of the case says that the decrees were for money due on bond executed by Bholanath, Bhabani and Sabitri, and that Bhabani having died before the first decree was obtained, her 33/4 anna share had devolved on Sabitri. The evidence does not disclose when Bhabani died, and the learned pleader for the Appellant has argued the case before us on the assumption that the decrees were obtained against Bholanath, Bhabani and Sabitri.
The correctness of the facts, as stated by the Subordinate Judge, is not questioned in any other respect.
We think it makes no material difference whether Bhabani was then alive or dead as it has been already found that the possession of the purchaser was not adverse to Sabitri.
The debts for which the property was sold in execution of the two decrees were not the debts of Anup Narain, there is no proof that they were contracted by his widow or daughter for any justifiable necessity or that the decrees were anything more than decrees against them personally. It cannot therefore be inferred that anything more than the life-interest was sold conceding that the decrees were obtained against Bholanath who was, at the time, the reversioner; as well as against the holder of life-estate, there is nothing to show that he was made a party in his reversionary character and that the claims were not mere personal claims against him, and the holder of the life-estate for debts contracted by them. We must take it that Bholanath was one of the joint debtors against whom relief was sought, and that being so, it cannot be inferred from the mere circumstance that he was joined as a Defendant, that the suit was so framed as to bind the entire estate represented by the female heir and not merely her personal interest in it.
It is argued that as the debts were incurred by the female heir and the reversioner jointly, there is a strong inference that they were incurred for a justifiable necessity. We think there is no such inference. There is nothing to prevent the former from borrowing money on her own account alone or with another person, whether that person be the next reversioner or some one else, and although she can, with the consent of the next reversioner at the time alienate the estate so as to give an absolute title to the purchaser, it has never so far, as we are aware, been held that an execution sale in satisfaction of debts contracted by her and the reversioner for the time being would have the effect of a sale by her and that reversioner. The decision of the Subordinate Judge is, we think, right, and we dismiss the appeal with costs.