Panton, J.:— The suit out of which this appeal arises was for a declaration of the plaintiff's title to 6 anna share in certain taluq and for confirmation of his title therein or in the alternative for recovery of possession of it. This property is a moiety of a 12 anna share which belonged to one Ramjiban Seal.
2. Ramjiban died leaving two daughters Umatara and Kumari each of whom inherited a limited interest in a 6 anna share of the property. The suit related to the 6 anna share which belonged to Umatara. In the year 1888 this lady executed a conveyance of her interest in favour of defendants Nos. 1, 2 and 3 and died childless. The plaintiff's case was that the sale not being for legal necessity was ineffective after her death when the property passed to her sister, Kumari. In 1911, Kumari conveyed the 12 anna share to the plaintiff, there being, she alleged, a legal necessity for the sale. Puma, defendant No. 4 and Girish, defendant No. 5 are her only surviving sods; of them, Purno joined in the sale and Girish during the pendency of the suit filed a petition in the Court of the Munsiff in which he stated that since Kumari had parted with the property for legal necessity he had no further claim to it. But the Munsiff finding that the sale by Kumari was and that the sale by Umatara was not for legal necessity decreed the suit in the plaintiff's favour.
3. Against that decision, defendants Nos. 1 and 3 appealed and the Additional District Judge has allowed the appeal on the finding that the suit is barred by limitation. He found that the death of Umatara occurred in the year 1899 or 1900 and that limitation ran from that date.
4. The plaintiff has consequently preferred this second appeal and on his behalf a preliminary suggestion was thrown out that if defendants Nos. 4 and 5 be transferred to the category of appellants the difficulty arising out of limitation would be avoided. Defendants Nos. 4 and 5 have accepted the suggestion and an application has been made on their behalf to this end. It is strenuously opposed by the other respondents, namely, defendants Nos. 1 to 3; and the case is not, in my opinion, one where the discretion of the Court should be exercised in the manner proposed. No decree subsists against defendants Nos. 4 and 5 and no relief is claimed for them; and as will immediately be apparent, the object is to change completely the case with which the plaintiff came to Court. The application is, therefore, refused.
5. It is now urged that the plaintiff can succeed, to some extent, if it be found that Kumari's sale was not for legal necessity. It is conceded that he cannot succeed on the basis of Kumari's conveyance of 1911 since Puma had then nothing to convey; but reliance is placed on the abandonment by Girls of his claim to which I have just referred.
6. I am invited then, to remand the case in order that the lower appellate Court may come to a finding as to whether there was legal necessity for Kumari's sale or not; since if this question be found in the negative, Girls' title to 3 annas of the property on his mother's death is established. The plaintiff alleged in the plaint that Kumari's sale was for legal necessity. He adduced evidence that such was the case; and on that evidence the Munsiff found that the sale was for legal necessity.
7. In these circumstances the plaintiff can't reasonably expect that he should now be offered an opportunity of inducing the lower appellate Court to find that the Munsiff's decision on this issue is incorrect.
8. The only other contention on the appellant's behalf is founded on a theory that assuming that Kumari's conveyance was for legal necessity what she conveyed may be resolved into two parts, one that passed at the time of the conveyance and the other that did not pass until her death.
9. The learned vakil concedes, however, that this theory has not been adopted in practice in any reported decision and I do not now propose to develop it.
10. The appeal is dismissed with costs to defendant No. 1 alone. He will also get his costs from defendants Nos. 4 and 5 in the application made by them, which I assess at one gold mohur.
Mookerjee, J.:— This is an appeal under clause 15 of the Letters Patent from the judgment of Mr. Justice Panton in a suit for recovery of possession of land upon establishment of title.
11. The subject-matter of the litigation belonged to one Ramjiban Sil who left two daughters Umatara and Kumari, They inherited their father's estate as joint tenants; Umatara died in 1899 and Kumari in 1915. On the 12th June 1916 the plaintiff instituted the present suit on the strength of a conveyance executed in his favour by Kumari on the 4th May, 1911, with the concurrence of her sons. The claim was resisted by the first three defendants who alleged that they had purchased the property from Umatara on the 23rd April, 1888. The substantial question in controversy was that of limitation.
12. The Court of first instance held that the suit was not barred by limitation and gave the plaintiff a decree.
13. Upon appeal the District Judge reversed that decision and his view has been adopted by Mr. Justice Panton.
14. In our opinion, there is no room for argument that the claim of the plaintiff has not been extinguished by limitation.
15. It is plain that under article 125 of the Indian Limitation Act Kumari, during the life-time of Umatara might have instituted a suit for declaration that the alienation made by her in favour of the first three defendants was void except for her life. Such a suit could have been instituted within 12 years from the 23rd April, 1888 but never was in fact instituted. When Umatara died, Kumari became entitled to take the entire inheritance. As the first three defendants were in possession of the property conveyed by Umatara, Kumari might have instituted a suit for ejectment against them within 12 years from the date of her death; that is, within 12 years, from 1899 such a suit was not instituted by her. On the other hand, on the 4th May, 1911 she transferred her interest to the plaintiff who might accordingly have instituted a suit within the same period as was available to his vendor. Such a suit also was not instituted. On the other hand, the plaintiff, after the death of Kumari, instituted the present suit in 1916, which is plainly barred by limitation. His claim was based on the ground that the transfer to him by Kumari was for legal necessity and consequently transferred to him an indefeasible title.
16. But whether he had so acquired a title which terminated with the death of Kumari or bound the inheritance in the hands of the reversioners, it is not necessary to discuss. Whatever the nature of his title may be, it has been extinguished by lapse of time. When the fourth and fifth defendants realised this difficulty, an application was made with their concurrence by the plaintiff that they might be transferred to the category of plaintiffs and might be permitted to conduct the suit for the ultimate benefit of the plaintiff as well as of themselves. This application was not made in the Court of first instance for an obvious reason. The plaintiff could succeed only on the basis that the sale by Kumari was for legal necessity. The fourth and fifth defendants, if they sued as plaintiffs, could succeed only on the contradictory hypothesis that the sale was not for legal necessity and did not effect their interest as reversioners. In such circumstances, when the application was made to Mr. Justice Panton to transfer those defendants to the category of plaintiffs, the fate was obvious. If the application had been granted it would have been necessary for the added plaintiffs to discard the entire evidence on the record and succeed on a case which not only was not made in the first Court but was absolutely contradictory to the evidence put forward.
17. The result is that the judgment of Mr. Justice Panton is affirmed and this appeal dismissed with costs.
18. Appeal dismissed.