Judgement

Appeal (No. 60 of 1922) from a decree of the Chief Court of the Punjab (March 23, 1917) reversing a decree of the District Judge of Gurdaspur (November 28, 1912).

The suit was brought by the first appellant in 1910 against the respondents to recover immovable properties which had formerly belonged to her father Jawahar Mal, who died in 1852. The circumstances in which the suit was brought appear from the judgment of the Judicial Committee.

The respondents by their written statement alleged that Jawahar Mal had a posthumous son, Hira Mal, and that they, as heirs to Hira Mal, had a better title than the plaintiff.

The District Judge found upon the evidence that it was not proved that there had ever been a posthumous son. He held that the parties were governed by the ordinary Hindu law, according to which the plaintiff was entitled to inherit her fathers estate upon the death of his widows. He, however, granted the plaintiff a decree for a half only of the property, being of opinion that it would be inequitable to deprive the defendants of the whole property.

On appeal to the Chief Court, the learned judges found that the existence of Hira Mal was established, that he was born in February, 1853, and died in May or June of that year. They rejected a contention that the non-existence of Hira Mal was res judicata by reason of the decision in the suit of 1866, and were of opinion that the possession of the last two surviving widows was not adverse to the defendants or reversionary heirs. In the result the suit was dismissed.

1923. Dec. 10, 11. De Gruyther K.C. and Wallach for the appellants. Upon the evidence the existence of the alleged posthumous son was not proved. But in any case the first appellant is entitled in law. Having regard to the decision in the suit of 1866, the non-existence of Hira Mal was res judicata Kameswar Pershad v. Rajkumari Ruttun Koer (( 1892) L. R. 19 I. A. 234, 238.); Mootoo Vijaya Raganadha v. Katama Natchiar (( 1866) 11 Moo. I. A. 50.); Krishna Behari Roy v. Brojeswari Chowdhranee (( 1875) L. R. 2 I. A. 285.); Sham Koer v. Dah Koer, (( 1902) L. R. 29 I. A. 132.) The facts as to the suit of 1866 appear from the report at P. R. No. 59 of 1869. Further, the widows were in adverse possession for the statutory period, and the title (if any) of Hira Mal and his heirs was extinguished under s. 28 of the Indian Limitation Act, 1908.

Sir George Lowndes K.C., Sen., and Bishan Narain for the respondents, being directed to argue first the question of law. The existence of Hira Mal was not res judicata, since in the suit brought in 1866 the present parties, or their predecessors, were not opposing parties but co-defendants Cottingham v. Earl of Shrewsbury. (( 1843) 3 Hare, 627.) The widows possession was not adverse to the reversionary heirs, but permissive; the decisions show that a case of adverse possession by widows must be clearly established. Further, their possession here was not for a widows estate according to the Mitakshara, but was under the customary law of the Punjab, whereby a widow enjoys an estate of a lesser extent than under the Mitakshara ; Bura Mal v. Narain Das (( 1907) P. R. No. 102.); Rattigans Digest of Customary Law, 1909 ed., pp. 9, 19. But even if the widows possession was adverse, the respondents are entitled to succeed. The last surviving widow acquired a title under s. 28 of the Indian Limitation Act, and the respondents are entitled to inherit from her in preference to Lajwanti, who was her step-daughter Maynes Hindu Law, para. 669. De Gruyther K.C. replied.

1924. Jan. 29. The judgment of their Lordships was delivered by

LORD DUNEDIN. Jawahar Mal, a Datt Brahman, living in the Punjab, died in 1852. He was survived by three wives, but at the time of his death had no children. Shortly after his death it is alleged that his eldest wife had a posthumous son named Hira Nand, who died after a few months. He undoubtedly had a posthumous daughter by his second wife, who is plaintiff i