Judgement

Appeal (No. 115 of 1927) from a decree of the High Court (November 26, 1925) reversing a decree of the Additional Subordinate Judge of Banda.

The suit was brought by the appellant on December 15, 1920, for a declaration that she was entitled to a malikana granted by the Government, and to eject the respondent from a house at Warnagar. The properties in suit formed part of the estate of the appellants father, who died in 1875, and had been in possession of her mother for a widows estate until February, 1914, when she died and the appellant became entitled as her fathers heir. The defendant-respondent pleaded that the suit was barred by limitation, and that she had acquired title by adverse possession ; she also pleaded that the suit was barred under the Code of Civil Procedure, s. 11, exp. iv., and Order ii., r. 2, having regard to a suit brought by the appellant in 1890.

The facts are fully stated in the judgment of the Judicial Committee.

The trial judge decreed the suit, but his decree was reversed by the High Court. The learned judges (Mears C.J and Lindsay J.) held that the suit was barred by adverse possession; in their view the defence of res judicata failed.

1929. March. 1, 4, 5, 7. De Gruyther K.C. and Abdul Majid for the appellant. The suit came directly within the description in the Indian Limitation Act, 1908, Sch. I., art. 141, so that the period was twelve years from the death of the widow. Art. 144 by its terms does not apply when any other article does so. The malikana was immovable property being an annual sum arising out of land ; that view was not contested in India. It is well established by decisions in India that under the corresponding articles of Acts of 1871 and 1877, a reversioner has twelve years from the death of the widow in which he may sue for possession, and that his claim is not affected by adverse possession during the widows life Srinath Kur v. Prosunno Kumar Ghose (( 1883) I. L. R. 9 C. 934.); Ram Kali v. Kedar Nath (( 1892)

I. L. R. 14 A. 156.); Venkataramayya v. Venkatalaksh-mamma (( 1897) I. L. R. 20 M. 493.); Cursandas Govindji v. Vundravandas Purshotam. (( 1889) I. L. R. 14 B. 482.) Those decisions have been frequently followed in the respective High Courts, and in effect were approved by the Board in Runchordas v. Parvatibhai. (( 1899) L. R. 26 I. A. 71.) In Vaithialinga Mudaliar v. Srirangath Anni (( 1925) I. L. R. 48 M. 883; L. R. 52 I. A. 322.) a decree against the widow had been obtained ; the Board decided nothing adverse to the present contention. The decision of a Full Bench of the Allahabad High Court in Bankey Lal v. Raghunath Sahai (( 1928) 26 All. L. J. 1049.) is contrary to the decision now appealed from. Cases decided under the Limitation Act of 1859 do not apply, a new principle having been introduced by the Act of 1871 and maintained in subsequent Acts.

Upjohn K.C. and Parikh for the respondent. The malikana was not a rentcharge but merely a personal right, and therefore not immovable property; so far as the suit related to the malikana art. 120 applied, and the suit was thereby barred. But in any case the suit was barred. The defendant had been in adverse possession for twelve years when the widow died, and under s. 28 had acquired a title. The plaintiff was therefore not " entitled to the possession " of the property on the death of the widow so as to make art. 141 applicable. Art. 141 cannot have the effect of divesting a title. The Act of 1871 did not destroy the principle laid down in the Shivagunga case (( 1863) 9 Moo. I. A. 543.) that the whole estate is vested in the widow, and its application to limitation in Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty. (( 1868) 9 S. W. R. 505.) The decision last cited was approved by the Board in Aumirtolall Bose v. Rajoneekant Nitter (( 1875) L. R. 2 I. A. 113, 121.) and recently in Vaithialinga Mudaliar v. Srirangath Anni (L. R. 52 I. A. 322.) and Mata Prasad v. Nageshar Sahai. (( 1925) L. R. 52 I. A. 39