Mussamut Indubansi Kunwar vs Mussamut Gribhirun Kunwar and Others

Kemp, J.—The plaintiff, who is the special appellant before us, sued for a declaration of her right in, and for possession with, mesne profits of the estate of her late husband, Lalbehari Sing. It is not denied that Lalbehari died in September 1849, leaving two wives, Phuleswari the elder, and the plaintiff the younger wife. By the first wife be had three daughters. He bad no issue by the plaintiff.

The Court of first instance gave the plaintiff a decree, overruling the plea of limitation raised by the defendants.

On appeal, the Additional Judge has reversed the decision of the first Court. The Judge is of opinion that the suit of the plaintiff is barred under the Statute of Limitations. Before the Judge, on the issue in bar, it was contended for the defendants, special respondents, that the plaintiff''s cause of action arose in 1849, when her husband died, and that inasmuch as the suit had not been brought within twelve years from the date of the death of the husband, the claim was barred. For the plaintiff it was contended before the Judge, that the cause of action to the plaintiff arose on the death of the elder widow of Lalbehari Sing, which took place in Magh 1274 (1867), and that the suit is therefore well within time.

The Judge observes that the question to be decided is this: "when a Hindu dies, leaving two widows, do they both inherit equally, or is the right of the second wife to possession in abeyance during the life time of the elder?" The Judge, after remarking that he can find no decisions of the late Sudder or of this Court on the point, proceeds to state that at page 19 of Vol. I, Sir William Macnaghten says: "If there be more than one widow, their rights are equal;" that in the Vyavastha Darpana it is stated, "if there be two or more wives, they have an equal right to inherit the estate, since they being of the same tribe are all patnis;" that on the other hand, Mr. Thomas Strange, at page 56 of Vol. I, says, "she it is (the elder or first) who succeeds eventually to her husband as his heir, maintaining the others who inherit in their turn on her death," and be repeats this statement at page 137. The Judge here remarks that Mr. Thomas Strange refers to Vol. III of Colebrook''s Digest, but that the Judge was unable to find in the Digest any such passage. He therefore concluded that Mr. Thomas Strange was referring to a case, where the wives not being of the same tribe are not of equal rank. On the whole, the Judge was of opinion that the weight of authority was on the side of equal inheritance, and that he must hold that the suit of the plaintiff was barred by limitation.

In special appeal it is contended--

That the Judge is wrong in law, inasmuch as his decision is based upon the erroneous supposition that the plaintiff had an equal right to possession with the elder widow.

That admitting that the right of the plaintiff was equal, she was competent to waive her right to joint possession in favor of the elder widow, by consenting to take from the estate a suitable maintenance during the life of the elder widow.

That the estate of the deceased was not in the actual possession of either of the widows, therefore neither of them can be said to have been holding the property in exclusion of the other.

That no adverse possession for more than twelve years has been pleaded, proved, or found. The Judge was therefore wrong in dismissing the suit as barred.

That as regards a moiety of the estate, the cause of action could, under no circumstances, arise until the death of the elder widow. The Judge was therefore clearly in error in dismissing the entire claim of the plaintiff as barred by limitation.

With respect to the last ground there can be no doubt that the Judge was wrong in dismissing the plaintiff''s suit in its entirety. Admitting that the two widows of the deceased had an equal right, it is clear that on the death of the elder widow, the heir of the husband would be the younger widow. The elder widow had but a life-interest in the estate of her husband, which terminated with her life. The cause of action to the younger widow with reference to the moiety of the estate of the husband held by the elder widow, accrued on her death, and then only.

But it is a most important point whether, under the Mitakshara, the elder widow inherits the whole estate, the younger widow receiving maintenance from the estate; or whether the rights of the two widows are equal. There are authorities in both ways.

At page 55, Vol. I of the Elements of the Hindu Law by Sir Thomas Strange, it is stated that "the elder widow succeeds eventually to her husband as heir, maintaining the others who inherit in their turn on her death, or even during her life, in the event of her degradation, or the like." Again at page 158 of the same author, "when a man has left more widows than one, and no son by any, she who was first married succeeds, maintaining the others." On the other hand, Macnaghten at page 19 says, "If there be more than one widow, their rights are equal." This much, however, is clear, that, in this case, the possession of Phuleswari, the elder widow, was not adverse to the younger widow, the plaintiff. The elder widow was permitted to enjoy the possession of the husband''s estate during her life-time, the younger widow receiving an allowance from the profits of the estate. Holding, therefore, that the suit of the plaintiff is not barred, we remand the case for trial on the merits. Costs to follow the result.