Sir John Edge, C.J:— The question referred to us is:—“Does possession of the estate of a deceased separated Hindu held adversely to his widow entitled to its possession, operate for the purpose of constituting adverse possession to the reversioner or reversioners entitled to succeed upon her death to that estate?” The facts as stated in the referring order are, that one Ram Sahai was the owner of the immoveable property in suit, and that he died in 1862, leaving behind him a widow, who died in 1887, and a daughter, the plaintiff who brings this suit for possession. Ram Sahai was a separated [159] Hindu, and assuming that the referring order correctly states the facts, his brother's son, on the death of Ram Sahai, entered into possession of the property, and that nephew and his son, Kedar Nath the defendant, after the death of the nephew, continued in possession up to the time of the suit. There is no question of an alienation here; it is a simple question of whether the plaintiff is barred by limitation from bringing this suit for possession—the possession of the defendant and his father being, according to the referring order, adverse, and without title unless title was obtained by limitation. There have been conflicting rulings on this point. There is a Full Bench decision of the High Court at Calcutta in Srinath Kur v. Prosunno Kumar Ghose in which it was held that under art. 141 of sch. ii of Act XV of 1877, a Hindu reversioner who succeeds to immoveable property has twelve years within which to bring his suit for possession from the time when his estate falls into possession. It is quite plain from the dates that Act XIV of 1859 does not apply to this case. The article of the second schedule of Act IX of 1871 which would, I think, have applied, if that Act had not been repealed by Act XV of 1877, is the same in terms as art. 141 of sch. ii of Act XV of 1877. Consequently, if either of those articles applied, having regard to the dates, this suit was within time. I am of opinion that art. 141 does apply expressly in this case, and that the twelve years began to run from the death in 1887 of the widow of Ram Sahai and consequently that the suit is within time. In order not to be misunderstood, I desire to say that I express no opinion as to the article of sch. ii of the Limitation Act which might apply if in this suit the plaintiff in order to succeed had to get rid of, for example, an adoption, an alienation or a deed. Until the question arises I will reserve my judgment on that point. That is my answer to the question referred.
Straight, J.:— The suit here was precisely one of the character contemplated by art. 141 of sch. ii of the Limitation Act, 1877. The plaintiff was a Hindu female entitled to the possession of immoveable property at the death of her mother. Until the death of her [160] mother she had no title to possession. We are told that the article as to adverse possession is only to be applied to a suit where there is no other article applicable to the kind of suit. Here, there is article 141 which is naturally applicable, and I think it should be applied; and I agree with the view expressed by the Calcutta High Court in the case reported in I.L.R, 9 Calc. 934. I only wish to add as to the two cases reported in I.L.R, 5 All. 532 and I.L.R, 10 All. 485 that, as to the first, no question of limitation arose, and as to the second, it was not argued that the possession held adversely to the widow was not adverse to the reversionary heirs; on the contrary, it was conceded in argument that it was. I accordingly answer this reference in the same way as the learned Chief Justice.
Mahmood, J.:— I have arrived at the same conclusion as the learned Chief Justice and my brother Straight in answering the question enunciated in the order of reference made by my brother Straight with the concurrence of my brother Knox on the 21st December 1891, and in what I am going to say now my remarks will proceed on accepting the facts therein stated as the grounds of my judgment.
The present suit was begun on the 18th of November 1887, so that according to the law as it then stood the limitation applicable is that prescribed by Act XV of 1877. The law of limitation as laid down in that enactment as also in the two preceding enactments, viz., IX of 1871 and XIV of 1859, has two aspects, the principal one being that of laying down rules of law ad litis ordinationem giving the limits of the time within which a remedy may be sought for in a Court of justice, and the second being that of laying down rules ad litis decisonem or rules of substantive law regulating one of the modes of acquisition of ownership, viz., by prescriptive title.
Now, in the present case, the date of the suit having been noticed by me and the title of the plaintiff as asserted by her never having been tried on the merits, her suit could fail only in one of the two ways which I have above described, viz., either by showing that by dint of the lapse of the prescriptive period her title had vanished, [161] or by showing that her suit as a matter of seeking remedy was barred by law.
Now on the facts as stated in the order of reference Ram Sahai died some time in 1862. The lapse of twelve years from that date would bring such property as lie left behind him to about the year 1874, when the Limitation Act of 1871 had already come into force, so that it seems to me clear on the facts that the plaintiff's title could not have vanished by reason of anything in that enactment, because art. 142 of sch. ii of that Act, corresponding to art. 141 of sch. ii of the present Limitation Act, leaves no doubt in my mind on that matter.
It follows from what I have said that at the date of the present suit, viz., the 18th November 1887, the question of prescriptive title, such as is asserted against the plaintiff, is governed by the present Limitation Act of 1877, and the learned Chief Justice and my brother Straight have already-explained that in this aspect of the case art. 141 of the present Act leaves no room for doubt [as the Calcutta Court in the case of Srinath Kur v. Prosunno Kumar Ghose have held] that the present suit was not barred by limitation. As to the prescriptive part of the defence, that again rests on s. 28 of the present Limitation Act, but that section again turns us back to the periods mentioned in sch. ii of that Act read with the rules in the body of the enactment. For these reasons my answer to the reference is the same as that of the learned Chief Justice and my brother Straight.
Knox, J.:— I agree with the learned Chief Justice as to the answer which should be returned to this reference and have nothing further to add to the judgment delivered by him.