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1929 Supreme(SC) 38
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
PRESENT: LORD BLANESBURGH, LORD TOMLIN, AND SIR LANCELOT SANDERSON.
JAGGO BAI - Appellant
Versus
UTSAVA LAL - Respondents
On Appeal from the High Court at Allahabad.
Decided On : April 19. 1929.
Solicitors for appellant :Summerhays, Son & Barber. Solicitors for respondent: T. L. Wilson & Co.
A reversionary heir's right to sue for possession of immovable property under Article 141 of the Limitation Act begins from the death of the Hindu widow. Adverse possession during the widow's lifetime does not bar the heir unless a decree was obtained against the widow.
Headnote:(A) Indian Limitation Act, 1908 - Articles 141 and 120 - Code of Civil Procedure, 1908 - Order II, Rule 2 - Pensions Act, 1871 - Suit for recovery of possession and declaration of right - Limitation period for a Hindu entitled to possession of immovable property on the death of a Hindu female is twelve years from the death of the female - Where no decree has been obtained against the widow in her lifetime, the reversionary heir is entitled to rely on the twelve-year period from the date of the widow's death, regardless of whether a third party was in adverse possession during the widow's lifetime. (Paras 24-31)
(B) Code of Civil Procedure - Order II, Rule 2 - A suit to establish title as a reversionary heir is distinct from a subsequent suit for recovery of possession based on a new cause of action - If a claim could not have been made in the previous suit due to statutory bars, such as the absence of a required certificate under the Pensions Act, 1871, it is not barred by Order II, Rule 2. (Paras 17-19)
(C) Pensions Act, 1871 - Right of action in respect of certain government grants (malikana) does not accrue until a certificate under the Act is obtained - Limitation period under Article 120 of the Limitation Act, 1908, begins to run from the date of the grant of such certificate. (Paras 21-22)
Facts of the case:
An heir of a deceased father claimed possession of a house and a government grant (malikana) after the death of her mother, who had held the estate as a widow. A relative had been in possession of the house and receiving a portion of the grant. This relative subsequently willed the house and the grant to a nephew. The heir had previously initiated a suit to establish her title as a reversionary heir but had not sought possession of the house or the grant, the latter being legally unavailable for claim without a statutory certificate. Following the mother's death and the acquisition of the necessary certificate, the heir sued for the recovery of the house and the grant.
Findings of Court:
The suit was not barred by Order II, Rule 2 as the causes of action were distinct. The claim for the grant was not barred by limitation because the right of action accrued only after the statutory certificate was obtained. Regarding the house, the limitation period of twelve years began from the death of the widow, and the prior adverse possession by the relative did not bar the heir's claim in the absence of a decree against the widow.
Issues: Whether the suit was barred by Order II, Rule 2 of the Code of Civil Procedure; whether the claim for the government grant was barred by limitation; and whether adverse possession by a third party during the widow's lifetime bars the reversionary heir's claim under Article 141 of the Limitation Act.
Ratio Decidendi: Under Article 141 of the Limitation Act, a reversionary heir is entitled to twelve years from the death of the widow to sue for possession. Adverse possession during the widow's life does not bar the heir unless a decree was obtained against the widow in her lifetime. Furthermore, a suit for possession is a distinct cause of action from a suit to establish a reversionary interest, and statutory requirements for certificates must be met before a right of action accrues for certain grants.
Result: Appeal allowed; decree of the High Court discharged and decree of the Subordinate Judge restored.
Act Referred
Legal Category Hierarchy
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practice and procedure
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civil procedure
- order ii rule 2
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limitation
- adverse possession
- hindu widow's estate
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civil procedure
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property law
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immovable property
- malikana
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immovable property
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administrative law
- pensions act
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
