# Kalipada Chakraborti and Anoth13r v. Palani Bala Devi and Others

- **Citation:** [1953] 1 S.C.R. 503
- **Court:** Supreme Court of India
- **Decided:** 1950-06-19
- **Case number:** Civil Appeal No. 19 of 1952
- **Bench:** Mukherjea, Chandrasekhara Aiyar, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kalipada-chakraborti-and-anoth13r-v-palani-bala-devi-and-others-40
- **Pages:** 17

## Headnote

Hindii law-Religious endownients-Shebaiti right-Succession by widow-Nature and extent of widow's rights-Alienation by
widow-Suit by reversioner against alienee-Liniitation-Article
applicable-Starting point-Adverse possession against widow,
whether adverse to reversioner-Li11iitation Act (IX of 1908), Arts.
124, 141.
Though there is an element in shebaiti right which has the
111g\l,l (lh\l,!Mt11ristics of property, shebaitship is property of a peculiar and anomalous character and it cannot come under the category of immoveable property as it is known in law.
On the other
hand it is clear that a shebaiti right is a hereditary office and as
Jan.16.
1958
Kalipada
Chakraborti
and Anoth13r
v.
Palani Bala
Devi
and Others.
5o4
SUPREME COURT REPORTS
[1953]
such comes within
the express language of Art. 124 of the
Limitation ... ~ct. A. suit by a reversioner for recovery of a shebaiti
right from persons to whom a Hindu widow, who had succeeded to
the rlght on the death of her husband, had alienated it, is governed
by Art. 124 of the Limitation Act and not by Art. 141, and the
possession of the alienee becomes adverse to the reversioner and
the period of limitation begins to run against the reversioner only
when the succession opens to him, as be does not claim under the
widow but under the last male holder.
Gnanasambanda v. Velit ([1900] 27 I.A. 69) explained.
Whatever might be said about the office of a trustee, which
car1·ies no beneficial interest with it, a shebaitship combines in it
both the elements of office and property. As the shebaiti interest
is heritable and follows the line of inheritance from the founder,
when the heir is a female she must be deemed to have what is
known as ,vidow's estate in the shebaiti interest. Ordinarily there
are two limitations upon a widow's estate. In the first place, her
rights of alienation are restricted and in the second place, after
her death the property goes not to her heirs but to the heirs of the
last male owner. The second element is present in the case of succession to the rights of a female shebait. As regards the first, it is
quite true that regarding the powers of alienation, a female shebait
is restricted in th8 same manner as the male shebait, but that is
because there are certain limitations and restrictions attached to
and inherent in the shebaiti right itself which exist irrespective
of the fact whether the shebaitship vests in a male or a female
heir.
Pydigantan v. Rania Dass ([1905] I.L.R. 28 Mad. 197) and.
Lilabati v. Bishen ([1907] 6 O.L.J. 621) commented upon.
The rule that adverse possession against a Hindu wido\V cannot be reckoned as adverse possession against the reversionary
heirs, is not a special rule which rests entirely upon the particular
provision of Art. 141 of the Limitation Act and confined in its
operation to cases \vhich come within the purview of that article.
It is in accordance with the ackno\\•ledged principles of Hindu law
and the general principle that as the right of the reversioner::; is
in the nature of spes successionis and they do not trace that title
through or from the widow, it would be manifestly unjust if they
are to lose their rights by the negligence or sufferance of the
widow.
Srinath Kuer v. Promnno Kwnar {[1883] I.L.R. 9 Cal. 934),
Ranchordas v. Parvati °([1899] 26 I.A. 71), Jaggo v. atsava ([1929]
56 I.A. 267) approved.
Katama Natchiar v. Rajah of Shivcu;miga
([1925] 52 I.A. 332) referred to.

## Text

-
-
i'
s.ci.R.
SUPREME COURT REPORTS
503
placed on them by the senior Judge in the High
1952
Court and that was the true construction of these two
sub-sections.
This argument, in our opinion, h~ no Commissioner 01
l'd'
Th
d'
h
d .
.
b
Income-tax
va i ity.
e
epartment c ange
its v~ew su seMadras '
quently and amended the manual.
The mterpretav.
tion placed by the department on these sub-sections K Srinivasa"
cannot be considered to be a proper guide in a matter and K. Gopa!an
like this when the construction of a statute is
involved.
Mahajan J.
The result is that we allow the appeal and hold
that the answer given by the senior Judge to the
question referred was wrong and that the answer given
by Viswanatha Sastri J. was the correct one. In
the circumstances of this case we would ma.ke no
order as to costs throughout.
Appeal allowed.
Agent for the appellant: G. H. Rajadhyaksha.
Agent for the respondent: M. S. K. Aiyangar.
KALIPADA CHAKRABORTI AND ANOTHER
19oa
v.
PALANI BALA DEVI AND OTHERS.
[MUKHERJEA, CHANDRASEKHARA AIYAR, and
GHULAM HASAN JJ.]
Hindii law-Religious endownients-Shebaiti right-Succession by widow-Nature and extent of widow's rights-Alienation by
widow-Suit by reversioner against alienee-Liniitation-Article
applicable-Starting point-Adverse possession against widow,
whether adverse to reversioner-Li11iitation Act (IX of 1908), Arts.
124, 141.
Though there is an element in shebaiti right which has the
111g\l,l (lh\l,!Mt11ristics of property, shebaitship is property of a peculiar and anomalous character and it cannot come under the category of immoveable property as it is known in law.
On the other
hand it is clear that a shebaiti right is a hereditary office and as
Jan.16.
1958
Kalipada
Chakraborti
and Anoth13r
v.
Palani Bala
Devi
and Others.
5o4
SUPREME COURT REPORTS
[1953]
such comes within
the express language of Art. 124 of the
Limitation ... ~ct. A. suit by a reversioner for recovery of a shebaiti
right from persons to whom a Hindu widow, who had succeeded to
the rlght on the death of her husband, had alienated it, is governed
by Art. 124 of the Limitation Act and not by Art. 141, and the
possession of the alienee becomes adverse to the reversioner and
the period of limitation begins to run against the reversioner only
when the succession opens to him, as be does not claim under the
widow but under the last male holder.
Gnanasambanda v. Velit ([1900] 27 I.A. 69) explained.
Whatever might be said about the office of a trustee, which
car1·ies no beneficial interest with it, a shebaitship combines in it
both the elements of office and property. As the shebaiti interest
is heritable and follows the line of inheritance from the founder,
when the heir is a female she must be deemed to have what is
known as ,vidow's estate in the shebaiti interest. Ordinarily there
are two limitations upon a widow's estate. In the first place, her
rights of alienation are restricted and in the second place, after
her death the property goes not to her heirs but to the heirs of the
last male owner. The second element is present in the case of succession to the rights of a female shebait. As regards the first, it is
quite true that regarding the powers of alienation, a female shebait
is restricted in th8 same manner as the male shebait, but that is
because there are certain limitations and restrictions attached to
and inherent in the shebaiti right itself which exist irrespective
of the fact whether the shebaitship vests in a male or a female
heir.
Pydigantan v. Rania Dass ([1905] I.L.R. 28 Mad. 197) and.
Lilabati v. Bishen ([1907] 6 O.L.J. 621) commented upon.
The rule that adverse possession against a Hindu wido\V cannot be reckoned as adverse possession against the reversionary
heirs, is not a special rule which rests entirely upon the particular
provision of Art. 141 of the Limitation Act and confined in its
operation to cases \vhich come within the purview of that article.
It is in accordance with the ackno\\•ledged principles of Hindu law
and the general principle that as the right of the reversioner::; is
in the nature of spes successionis and they do not trace that title
through or from the widow, it would be manifestly unjust if they
are to lose their rights by the negligence or sufferance of the
widow.
Srinath Kuer v. Promnno Kwnar {[1883] I.L.R. 9 Cal. 934),
Ranchordas v. Parvati °([1899] 26 I.A. 71), Jaggo v. atsava ([1929]
56 I.A. 267) approved.
Katama Natchiar v. Rajah of Shivcu;miga
([1925] 52 I.A. 332) referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 19 of 1952. Appeal from the Judgment and
Decree dated 19th June, 1950, of the High Court of
•
. >
r
. i.
--
S.C.R.
SUPREME COURT REPORTS
505
Judicature at Calcutta (Das and Guba JJ.) in Appeal
from Original Decree No. 48 of of 1949, a.rising out
of Judgment and Decree dated the 22nd Dece1~ber,
1948, of the Court of the Subordinate Judge, 3rd
Court, 24-Pargauas, in Title Suit No. 53 of 1944.
N. c. Chatterjee (A. K. Dutt, with him) for the
appellants.
Panchanan Ghose (Radha Kanta Bhattacharya, with
him) for the respondent.
1953. January 16. The Judg,meut of the Court was
delivered by
MuKHERJEA J.-'rhis appeai is on behalf of the
plaintiffs and is directed against the judgment and
decree of a Division -Bench of the Calcutta High
Court dated June 19, 1950, reversing, on appeal, those
of the Subordinate Judge, Third Court, 24-Pargauas,
passed in Title Suit No. 53 of 1944.
The facts material for our present purpose are not
in dispute and the controversy between the parties
practically centres round one short point, namely,
whether or not the plaintiffs' suit is barred by limitation.
The trial court decided this point in favour of
the plaintiffs, while the High Court has taken a
contrary view in appeal.
The subject-matter of dispute is one-third share of
shebaiti right in respect of a private debutter dedicated to an idol known by the name of Dakshiueshwar
Jew and situated at a village called Dhop Dhopi
within the district of 24-Pargauas in West Bengal.
The deity is au ancient one and its reputed founder
and first she bait was one U dhab Chandra Pandit. It
is not disputed that by successive devolutions the
rights of the shebait came to vest in one Iswar
Chandra Chakroborti, who was the common ancestor
of the parties to this suit.
The following genealogical table will make clear the relationship of the several
persons who figure as parties to the present litigation
as between themselves ~ud also to their commo~
!l>ncestor.
1953
Kalipada
Ghakraborti
and Anoth•r
v.
Palani Bala
D•vi
and Others.
Mukhe•'jea J.
1953
KaUpada
Ghakraborti
and Another
v,
Palani Bala
Devi
an.d Others.
Mukherjea J.
506
SUPREME COURT REPORTS
[1953)
r·-
Ashut~sh
(dead)
Iswar
I
- -T- .. -
1 -1·---~II
Govinda
Gopal
Sadananda Tralokhya Haran
I
I
I
m. Rajlakshmi
I
Surendra
Sashi
(adopted)
I
I
ni. Tarakali
A bani
(w)
(Dett. •)
---·~---c
N .I .
I .
Kalt
1ma1
(Plfl, No. 2)
1~.---i--
I
Mon1
Sarat
Surendra
(dead)
. I
(adopted
B1dhu
by Gopa1)
(Deft. 3)
Bala (Deft. 1)
(Plfl. No. I)
I
Nagendra
Pa Jani
Iswar died leaving six sons as his heirs and they
were Ashutosh, Govinda, Gopal, Sadananda, Trailokhya and Haran. These six sons when they divided
the properties of their father, divided the shebaiti
right also which devolved upon them in six equal
shares, and this 'division was by the method known as
palaa or turns of worship, which means that to each
one of the sons was allotted the right of worshipping
the deity for 5 days every month and during these
days he alone was to discharge the functions of the
shebait and receive the emoluments attached to the
office.
Gradually, a custom grew up in the family
according to which these palas could be bought and
sold or otherwise alienated amongst the members of
the shebait's family.
Govinda, who was the father
of the plaintiffs and who got 5 days' pala every
month in his share, sold his interest in the shebaiti
to Haran, a brother of his, and the result was that
Haran acquired 10 days' pala every month or onethird share in the entire shebaiti right.
Haran died
without any issue leaving him surviving, his widow
Rajlaks)lmi as his sole heir under the Hindu law
and Rajlakshmi continued to hold this one-third
share of shebaiti right along with other properties of
the deceased.
On 17th June, 1920, .Rajlakshmi
granted an ijara lease of her shebaiti right for a term
of two years to one Satish Chandra Dey. On 1st of
April, 1921, Satish sold this leasehold interest in
respect to the palas to one Ram Ra,khal
Gh9s~.
r
i'
S.C.R. SUPREME COURT REPORTS
507
Previous to that, on 6th of August, 1920, Ram
Rakhal had himself taken a lease from Rajlakshmi of
her shebaiti right for a period of 5 years, this leas~ to
commence at the close of the previous lease in favour
of Satish. Ram Rakhal admittedly got possession of
the office of shebait and began to exercise his rights
as such on and from the 1st of April, 1921. By a
deed of conveyance dated the 7th of November, 1921,
1 Rajlakshmi made an out and out sale of her shebaiti
right in favour of Ram Rakhal and twenty days after
this purchase, that is to say, on 27th November, 1921,
Ram Rakhal m
his
turn
sold this interest to
N agendra and Surendra, two of the sons oJ Trailokhya. Surendra died some time ·afterwards and on
20th of June, 1925, his widow Tarakali sold her husband's share iu the shebaiti right to N agendra, her
husband's brother. Thus Nag~1i<lra in addition to
what he had inherited from hid own father came to
hold the entirety of a third share in the shebaiti
right, represented by 10 days' pala every month,.
which was previously held by Haran. Rajlakshmi
died on 22nd December, 1943, and the two plaintiffs,
who are the two surviving sons of Govinda, filed the
suit out of which this appeal arises for recovery of
possession of this one-third shebaiti right of Haran
on the allegation that they were the next heirs of
Haran at the time of Rajlakshmi's death.
N agendra had died in the meantime and the first
and the principal defendant in the suit is his
daughter Palani Bala, who is a minor and is represented by her husband as guardian. The second defendant is the receiver, who has been placed in charge of
the properties of Palani Bala in a· guardianship proceeding pending before the District Judge of 24Parganas. The defendants 3 and 4 are the surviving
descendants of Iswar who hold the remaining interest
in the shebaiti rig'ht.
The case of the plaintiffs, in substance, is that the
one-third share of the shebaiti right, which was held
by Haran during his lifetime, devolved upon his
widow Rajlabhmi who had only the re~tricted right~
66
1953
Kalipada
Ohakraborti
and Another
v.
Palani Bala
Devi
and Others.
Mukhe,.jea J.
1958
Kfllipada
Chakraborti
and. Another
v.
I'alani Bala
Devi
and Others.
}rf1ikherJea J.
508
SUPREME COUR'r REPORTS
(1953)
of a Hindu widow in. respect to the same.
On the
death of the widow, the interest vested in the plaintiff~, who were the nearest heirs of Haran at the time
of Rajlakshmi's death. .They, accordingly, prayed
for being put in possession of this one-third share of
the shebaiti right represented, as stated aforesaid, by
10 days' pala every month after evicting the defendant No. 1 therefrom. There was a claim also for
mesne_profits from the date of the widow's death. In '
the plaint a description has been given of the temple,
its appurtenant lands and also of the structures
standing thereupon, but there is no prayer for possession in r~spect of these properties.
The suit was resisted on behalf of defendant No. 1
and the main contention raised was that as the sale
of her shebaiti right by Rajlakshmi, the widow of
Haran, was a void tr-ansaction which did not create
any right in the transferee, the possession of Ram
Rakhal and after him his vendees, who were the predecessors of defendant No. 1, was adverse against all
the shebaits, and the defendant No. 1 consequently
acquired an indefeasible title to this third share in
the shebaiti right by adverse possession and the
plaintiffs' suit was barred by limitation.
Several
other contentions were raised but they are not
material for our present purpose.
T,he trial Judge by his judgment dated the 22nd
December, 1948, overruled the pleas taken by the
defendant and gave the plaintiffs a decree.
On the
question of limitation, the Subardinate Judge held
that althaugh article 141 of the Indian Limitation
Act was not attracted to this case, yet the plaintiffs'
suit was not barred by limitation. 'fwo reasons have
been assigned for this view. It has been said in the
first place that N agendra purported to purchase only
the life interest of Rajlakshmi;. consequently his
position· as puryhaser was in recognition
af the
interest of the reversionary heirs of Haran. It is
said fmther that· as Rajlakshmi and N agendra were
both co-shebaits af the deity, the possession of the
latter coqld not h::ive been advwse to the former1
. ;
r -
~·
..
S.C.R.
SUPREME COURT REPORTS
509
they being in th,e position of co-sharers in law and
nothing like ouster being alleged or proved in
this ca.se.
•
Against this judgment, the defendants 1 and 2 took
an appeal to the Calcutta High Court and the appeal
was heard by a Division Bench consisting of Das
and Gu ha J J. The learned Judges while affirming
all the other findings arrived at by the trial judge
disagreed with the latter on the question of limitation.
It was held by the High Court that the proper article
to apply in this case-was article 124 of the J1imitation
Act, and as the defendant No. 1 and her predecessors
had been in possession of the hereditary office of the
shebait adversely to the plaintiff for more than 12
years prior to the institution of the suit, the plaintiffs'
claim was barred by limitation.
[n this view, the
judgment of the trial court was reversed and the
plaintiffs' suit dismissed.
The only point canvassed before us in this appeal
is that of limitation and the arguments that have
been advanced before us on this point by the learned
counsel on both sides really raise two questions for our
determination. The first is, whether on the facts of
the present case the plaintiffs' suit is governed by
article 124 or article 141 of the Limitation Act? If
article 141 is the appropriate article, it is not disputed that the praintiffs' suit is well within time; but
if article 124 is applicable, the other point that would
require consideration .is, when did the defendant or
her predecessors take possession of the hereditary
office of shebait adversely to the plaintiffs? Was their
possession adverse from the very date of the transfer
by Rajlakshmi or did it become so only at her death ?
The proposition is well established that the alienation of the shebaiti right by a shebait in favour of
a stranger is absolutely void in Hindn law and cannot be validated even on the footing of a cnstom.
The alienee of the right is, therefore, a trespasser out
and out and his possession as against the transferor
is adverse from the very beginning. Mr. Chatterjee
appearing for the plaintiffs appellants has not assailed
1953
Kalipada
Ohakraborti
and Another
v.
Palani Bala
Devi
and Others.
M ulcher j ea J.
1953
~alipada
Chakraborti
and Another
v.
Patani Bala
Devi
a1id Others.
Mukherjsa J.
510
SUPREME COURT REPORTS
[1953]
the correctness of this proposition Qf law ;'his contention is that the possession of shebaitiright by defendant No. 1 and her predecessors might have been
adverse against Rajlakshmi ever since the date of
transfer and on the strength of such pdssession they
might have acquired a statutory title against her in
respect of the shebaiti interest; but such adverse
possession for more than the statutory period though
it might bar the widow would not bar the reversioners
who do .not derive their title from or through her.
This, it is said, is the principle underlying the law
of limitation in India ever since 1871 and article
141 of the Limitation Act expressly recognises and
gives effect to it. It is contended by Mr. Chatterjee
that even if article 141 does not apply to the facts of
the present case and article 124 is taken to be the
appropriate article, the plaintiffs' suit would be quite
within time as the defendant or her predecessors must
be held to have taken possession of thA officA of the
shebait adversely to the present plaintiffs only when
the widow died and not before that.
On the other hand, it has been argued by Mr.
Panchanan Ghose that there is nothing like a general
principle of law that adverse possession against a
Hindu .widow could not be reckoned as adverse possession against her reversionary heirs. That, it is said,
is only a special rule which rests ·entirely upon the
particular provision of article 141 of the Limitation
Act and is cqnfined in its oyeration to cases which
come within the purview of that article. Mr. Ghose's
contention is that article 141 has no application to
the facts of this case and consequently there is no
reason for holding that adverse possession against the
widow if it was continued for the statutory period
would not bar the reversionary heirs also. 'rhis, he
says, was the law prior to the introduction of article
141 into the statute bciok and that is the law which
governs all cases even now which do not directly come
under that article. According to the learned counsel,
article 124 is the proper article which governs this
case and the possession of the transferee of the
r
S.C.R.
SUPREME COURT REPORTS
511
shebaiti interest being admittedly adverse to the
holder of the office at the date of the transfer, it
would be adverse against the next holder also, no
matter whether strictly he derives his title from tlie
previous holder or not. It is urged that in the case
of a hereditary office like that of a she bait, the powers
of a female shebait are in no way more restricted than
those of a male shebait and as the trust estate during
the incumbency of a female shebait resides in her
completely and effectually as in a male trustee, the
male trustee who comes after her cannot claim the
benefit of the principle upon which article 141 of the
Limitation Act is founded. The points raised are no
doubt important and require careful examination.
It may be mentioned at the outset that in the old
Limitation Act (Act XXIV of· 1859) there was no
specific provision relating to suits by reversioners for
recovery of possession of property held by a Hindu
widow in her restricted right.
There were provisions
only of a most general character contained in sections
12 and 16 of the Act, .under which limitation for suits
to recover immovable and movable properties was 12
and 6 years resp'ectively " from the time the cause of
action arose ".
Even before this Act was passed, in
a case (1) decided by the Supreme Court of Calcutta,
Peel, C. J. made the following observation:
"It has been invariably considered for many years
that the widow fully represented the estate, and it is
also settled law that adverse possession which bars
her bars the heir after her, wh1ch would not be the
case if she were a mere tenant for life, as known to
the English law ".
In 1863 the case of Katama Natchier v. Rajah of
Shivagunga (2) was decided by the Judicial Committee
of the Privy Council and the proposition was laid
down, which has not been questioned since then, that
"when the estate of a deceased Hindu has vested in
a female heir, a decree fairly and properly obtained
(I) Goluckmani v. Digambar, (1852) Macpherson on Mortgage, 2nd
ed., 20.
(2) (1861·63) 9 Moo. I.A, 539,
1953
Kalipada
Ghalcraborti
and Another
v.
Palani Bala
Devi
and Others.
Mukharj•a J.
'
19!J3
KaZipada
Chakraborti
and Another
v.
Palani Bala
Devi
and Others.
Mukherjea J.
,
~12
SUPREME COURT REPORTS
[1953] -
against her in regard to her estate is in the absence of
fraud or collusion binding on the reversionary heir".
'l'urner L.J., who delivered the judgment of the
B'oard, observed in course of his judgment :
" The whole estate would for the time be vested in
her, a.bsolutely for some purposes, though, in some
respects, for a qualified interest; and until her death
it eould not be ascertained who would be entitled to
succeed.
The same principle which has prevailed in
the courts in this country as to tenants-in-tail representing the inheritance, would seem to apply to the
case of a. Hindu widow; and it is obvious that
there would be tbe greatest possible inconvenience
in holding that the succeeding heirs were not bound
by a decree fairly and properly obtained against
the widow".
·
'rhe case proceeded entirely on the footing that
although the widow for some purposes has only a
partial interest in her husband's estate, for other
purposes the whole estate vests in her, and that her
interest is somewhat akin to that of a tenant-in-tail
under the English law. If the suit was not in respect
of a personal claim against the widow but in respect
of the estate which, in law, she fully represents, a
decree fairly aud properly obtained would bind the
reversionary interest('). There was absolutely no
question of adverse possession raised in this case but
the rule enunciated in it was relied upon in deciding
several cases under the Limitation Act of 1859, where
the questi_on arose as to whether adverse possession
for more than .the statutory period, which bars the
widow, would bar her reversionary heirs also.
The
leading pronouncement on this point is to be found
in Nobin Chunder v. Issur Chunder(') upon which Mr.
Ghosh has laid very great stress. In that case a trespasser had taken possession of the estate against the
widow and it was held that such adverse possession
was effective against the reversioners as well.
The
cause of action, it was said, accrued to the widow and
(1) Vide in this connection Jugal Kishore v, Jotendro, 1 c I.A. 66.' 73.
(•) 9 W.R. 505,
r
,. ..
•
S.C.R.
SUPREME COURT REPORTS
513
a suit by her or by her reversioner must he brought
within 12 years from the date of dispossession as laid
down in section 12 of the Limit!l.tion Act of 1859.
The decision can certainly be justified on the law of
limitation as it then stood.
'fhe Act of 1859 did
not provide a separate rule as regards revers10ners
and all suits for recovery of possession of immoveable
property had to be brought within 12 years from the
date of the accrual of the cause of action. If there
was a trespass against the widow, the commencement
of the trespass would constitute the cause of action
for the suit and a suit against the trespasser would
have to be brought within 12 years, no matter whether
it was brought by the widow or by the reversioner.
The learned Judges could not overlook the fact that
it was not possible for the reversionary heirs to institute a suit for possession during the lifetime of the
widow.
The difficulty, however, was got over by invoking the principle of "representation of the estate
by the widow". enunciated in the Shivagunga case. Sir
Barnes Peacock, C.J. observed as follows:
"It is said that the reversionary heirs could not sue
for possession during the lifetime of the widow, and
that therefore they ought not to be barred by any
adverse holding against the widow at a time when
they could not sue.
But when we look at the widow
as a representative and see that the reversionary heirs
are bound by decrees relating to her husband's estate
which are obtitined against her without fraud or collusion, we are of opinion that they are also bound by
limitation by which she, without fraud or collusion,
is barred."
Since an adverse decision against a widow was held
binding upon a reversioner on the principle of representation of the estate, a similar result was held to
follow in the case of adverse possession against her so
as to put an end to the reversionary interest.
This
principle was affirmed by the Privy Council in
Aumirtolall v. Ra;'onee Kant(1) and Sir Barnes Peacock,
who delivered the judgment, expressly affirmeq th()
(r) (1874-75) 2 I.A. II~ .
1968
Kalipada
Ohakraborti
and Another
v.
Palani Bala
Devi
and Others.
Mukherjea J,
1953
Kalipada
Chakraborti
and Another
v.
Palani Bala
Devi
and Others ..
Mukherjea J,
514
SUPREME COURT REPORTS
[1593]
decision in Nobin Ohunder v. Issur Ohunder (').
Ib
may be noted here that though the Privy Council
judgment in this case was passed in the year 1875 it
w~1s a decision uuder the old Limitation Act of 1859.
In 1871 a new Limitation Act was passed which
repealed the ear!i,er Act of 1859.
Article 142 of this
Act (which corresponds to article 141 of the present
Act) expressly prescribed a period of limitation of 12
years for a suit by a Hindu entitled to possession of immovable property on the death of a Hindn female heir,
the limitation to run from the time when the female
heir died.
This provision, extended further so as to
include a suit by a Mohammedan, was reproduced in
the Act of 1877 and again in article 141 of the present
Act. 1t seems to us to be a correct view to take that
this was a change deliberately m11de by the legislature
in the existing law.
Article 141 speaks of a." like
suit and this means that it is a snit for possession of
immovable property which is provided for in the
previous article.
The earlier Article relates to a suit
by a l'emainderman or a reversioner in the technical
sense of the English lawyers and lest there be confusion if the expression " reversioner" is used with
reference to the estate of a Hindu or Mahommedan
female heir, the legislature deliberately used the
words "a Hindu or l\fahommedan entitled to possession of property on the death of a female heir." '11he
estate of a Hindu female heir, as is well known, is
ex·tremely anomalous in its character; it cannot be
described either as an estate of inheritance or one for
life, though it partakes of the nature of both. The
intention of the legislature in introducing this' provision was obviously to do away with these anomalies
for the purpose of applying the law of limitation
and for this purpose the Hindu widow's estate was completely assimilated to that of a tenant for life. This was
the view taken, and in our opinion quite rightly, by
a Full Bench of the Calcutta High Court iri Brinath
Kur v. Prosunno Kumar(') and by the Bombay High
Court in Vundravandas v. ·oursondas(8), the decision
(t) 9 W.R. 50,s.
(2) (1883) 9 Cal. 9>i·
l>} (18~7) u jlom. 646.
r
..
S.O.R.
SUPREME COURT REPORTS
515
in the latter case being affirmed by the Privy Council
in Rnnchordas v. Parvati(1). The decisiou in Ranchordas's case has all along been treafled as an authority
for the proposition that the statute of limitation does
not begin to run against the reversioner when there
is dispo3session of a Hindu female holding a limited
estate; and in such cases the reversioner has a right
to institute a suit within 12 years from the death of
the female heir when the estate actlially falls into
possession. It is to be noticed that the Judicial Committee in Ranchordas's case expre;;sly laid down that
even in respect of moYables to which article 141 does
not apply, the reversioner's right to property accrues
on the death of the widow and not before that.
Opinion was expressed in some cases(2) that the view
taken iu Ranchordas's case was shaken to a considerable extent by the later pronouncement of the Judicial
Committee in Vaithialinga v. Srirangath( 3 ), and that
the principle of representation of the eotate by the
widow upon which the rnle in Shivagunga's case rested,
could be applied to a case of adyerse possession
agaimt the widow. But all doubts ou this point were
set at rest by the decision of the Privy Council itself
in Jaggo v. Utsava (4) and the law can now be taken to
be perfectly well settled that except whllre a dec1'ee
bas been obtained ·fairly and properly and without
fraud and collusion against the Hindu female heir in
respect to a property held by her as a limited owner,
the cause of action for a suit to be instituted by· a
reversioner to recoyer such property either against
an alienee from the female heir or a trespa;;ser who
held adYersely to her accrues only on the death of the
female heir.
'EhiR principle, which has been recognised in the law of limitation in this country ever
since 1871 seems to us to be quite in accordance
with the acknowledged principles of Hindu law. The
right of reversionary heirs is in the nature of spes siwcessionis, and as the reversioners do not trace their ti tie
through or frorn the widow, it would be manifestly
{T) (1899) 26 I.A. 7r.
(3) (1925) 52 I.A. 3H·
07
(2) Vide Aurobind•L v. Monoraina (1928) 55 Cal. 903,
(~) (1929) 56 LA. 267.
1953
.Kriz.ip1da
Ohakraborti
and Anothei·
v.
Palani Bala
Devi
and Others.
Mukherjeri J .
KaUp!!da
Chakraborti
and Another
v.
Palani Bala
Devi
and Others.
Mukherjea J,
516
SUPREME COURI1 REPORTS
[1953)
unjust if they are to lose their rights simply because
the widow has suffered the property to be destroyed
by the adverse possession of a strnnger.
The cont~ntion raised by Mr. Ghose as regards the general
principle to be applied in such cases cannot, therefore, be regarded as sound.
Coming now to the specific points raised in the
c:i.se, the first thing that requires consideration is,
whether the present suit is governed by article 124 or .
article 141 of the Limitation Act?
'l'he learned
Judges of the High Court have held and quite properly that the benefit of article 141 could be claimed
only if there was a qualified estate in the female heir
after whose death the plaintiff was entitled to the
property as the heir of the last male holder. According to the learned J ndges, however, this condition
was not fulfilled in the present ease, inasmuch as the
subject matter of dispute was the right of shebaitship
and the rights of a female shebait, it is said, are not
in any way more restricted or qualified than those of a
male she bait, although she cannot transmit this office
to her own heirs.
R.eliance has been placed in this
connection upon a decision of the Madras High Court
in Pydigantan v. Rarnx Dass('), which was followed by
a Division Bench of the Calcutta High Court in Lilabati v. Bishen(').
This method of approach seems to
us to be open to doubt. Whatever might be said about
the office of a trustee, which carries no beneficial
interest with it, a shebaitship, as is now well settled,
combines in it both the elements of office and pro-·
perty.
As the shebaiti interest is heritable and
follows the line of inheritance from the founder,
obviously when the heir is a female, she must be
deemed to have, what is known, as widow's estate in
the shebaiti interest.
Ordinarily there are two limitations upon a widow's estate. In the first place, her
rights of alienation are restricted and in the second
place, after her death the property goes not to her
heirs but to the heirs of the last male owner. It is
admitted that the second element is present in the
(11 (1905) 28 Mad. 197,
(2) (1907) 6 C.L.J. 621,
•
' .. ...
8.0.R.
SUPREME COURT Kl~PORTS
517
case of succession to the rights of a female shebait.
As regards the first, it is quite true that regarding
the powers of alienaLion, a female shebait is restricted
in the same manner as the male shebait, but that ;_s
because there are certain limitations and restrictions
attached to and inherent in the shebaiti right itself
which exist irrespective of the fact whether the shebaitship vests in a male or a female heir (1) .
But although we may not approve of this line of
reasoning adopted by the High Court, we are in
agreement with the learned Judges that the proper
article to be applied in this case is article 124 and
not article 141. There could be no doubt that there
is an element in the shebaiti right which has the
legal characteristics of property;
but shebaitship is
property of a peculiar and anomalous character, and
it is difficult to say that it comes under the category
of immovable property as it is known iu law.
Article
141 refers expressly to immovable property and not
to property in the general sense of the word.
Ou
the other hand, it is quite settled that a shebaiti
right is a hereditary office and as such comes within
the express language of article 124 of the Limitation Act.
We think that when there. is a specific
article in the Limitation Act which covers a particular case, it is not proper to apply another article,
the application of which is not free from doubt.
We
hold, therefore, that article 124 is the proper article
to be applied, and the question now ari~es as to
whether the plaintiffs' suit is barred by limitation
under this article, as has been held by the learned
J udg@s of the High Court ?
Article 124 relates to a suit for possession of a
hereditary office and the period of limitation prescribed for such suit is 12 years from the date when
the defendant takes possession of the office adversely
to the plaintiff.
The intention of the legislature is
obviously to treat hereditary office like land for the
J)\11'])01;e of b11.rring suits for possession of such office
and extinguishing the right to the possession thereof
(I) Vide Angurbal~ v. Debabrata, [1Q51) S.C.R. 1125, u36.
1953
Kalipad1i
Ohakrabort;
and Another
v.
Palani Bala
Devi
and Other•.
Mukherjea J,
1953
Kalipnda
Ohakraborti
and Another
v.
Pa.lani Bala
Devi
and Others.
Mukhcrjea J.
518
SU.PH.1£ME OOUHT R[<}POHTS
(1950]
after a certain period.
The question is, when did
the defendaut or her predecessor take possession of
th-e office of shebait adversely to the plaintiffs ? It
i~ conceded that the possession was adverse to llajlakshmi, the holder of shebaiti at that time; but the
contention of :Mr. Chatterjee is that as the plaintiffs did not claim through or from Hajlakshmi, the
defendant could not be regarded as taking possession
of the office adversely to the plaintiffs.
He refers in
this connection to the definition of "plaintiff" iu section 2 (8) of the Limitation Act, where it is stated
that plaintiff includes any person from or through
whom a plaintiff derives bis right to sue.
In answer
to this, it is argued by Mr. Gbose that a shebait like
a trustee represents the entire trust estate and the
next truste\)_, even though be may not strictly claim
through or from the previous bolder of the office,
must be deemed to be bound by acts or omissions of
the latter; and in support of this contention be relies
upon the judgment of the Judicial Committee in
Gnanasambanda v. Velu (').
We do not think that
this contention is right.
Article 124 relates to a
hereditary office and this means that the office goes
from one person to another solely by the reason of
the latter being a heir to the former.
Under the
Hindu Law of Inheritance, when a female heir intervenes, she holds dllring her lifetime a limited interest in the estate and after her
death
succession
opens out not to her heirs but to the heirs of the last
male holder. It bas not been and cannot be disputed
that the same rule applies in the ease of succession
to shebaitsbip.
Heading article 124 of the Limitation Act along with section 2 (8), the conclusion ·is
irresistible that to defeat the title of the plaintiff
.under article 124 it is necessary to establish that the
defendant bad taken possession of the office adversely
to the plaintiff or somebody from or through whom
the plaintiff
derives bis title, more than 12 years
prior to the institution of the suit.
'l'l;iis is exactly
what is laid down in Gnanasambanda v. Velu(').
In
I» (1900) •7 l. A. 69,
•.
)
-
8.U.R
SUPRrnME COURT Rl!}PORTS
519
this case two persons, who were hereditary trustees
of a religious endowment, sold their right of management and transferred the entire endowed property to
the defendant appellant.
'l'be sales were null amd
void irnd the possession taken by the purchaser was
adverse to the vendors from the very beginning. '1
1he
plaint,iff Velu was the son and heir of one of the
hereditary trustees and be instituted the suit more
than l '2 years after the date of the transaction claiming possession of the office along with the heir of the
other trustee who was joined as a defendant in the
suit. It was held by the Judicial Committee that the
plaintiff's suit was barred and the reason given is
that "the respondent Velu could only be entitled as
heir to his father N ataraja, and from him and through
him, and consequently bis suit was barred by article
114."
This portion of the judgment, it seems, was
overlooked by the learned Judges of the Calcutta
High Court and also by the Madras High Court in
the case referred to above.
The fact that under the
ordina.ry law of inheritance the plaintiffs would come
as the heirs of the husband of Hajlakshmi is immaterial.
'1
1hat would not be deriving their right to sue
through and from the widow, and in this view of the
case the plaintiffs' suit cannot be held to be barred.
The result, therefore, is that we allow the appeal,
set aside the judgment and decree of the High
Court and restore those of the trial judge with costs
to the appellants in all courts.
Appeal allowed.
Agent for the appellants:
Sukwmar Ghose.
Agent for respondent No. 1 : R.R. Biswas.
1953
Kalipada
Ohakraborti
and Another
v.
Palani Ba la
Dev·i
and Others.
Mukherjea J