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PETITIONER:

KALIPADA CHAKRABORTI AND ANOTHER

Vs.

RESPONDENT:

PALANI BALA DEVI AND OTHERS.

DATE OF JUDGMENT:

16/01/1953

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

AIYAR, N. CHANDRASEKHARA

HASAN, GHULAM

CITATION:

1953 AIR 125 1953 SCR 503

CITATOR INFO :

RF 1961 SC 564 (12)

E 1969 SC 204 (11)

R 1972 SC2069 (32)

R 1988 SC1511 (12)

ACT:

Hindu law-Religious endowments-Shebaiti right-Succession by

widow-Nature and extent of widow's rights-Alienation by

widow-Suit by reversioner against alienee-Limitation-Article

applicable-Starting point-Adverse possession against widow,

whether adverse to reversioner-Limitation Act (IX of 1908),

Arts. 124, 141.

HEADNOTE:

Though there is an element in Bhebaiti right which has the

legal characteristics 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

504

such comes within the express language of Art. 124 of the

Limitation Act. A suit by a reversioner for recovery of a

shebaiti right from persons to whom a Hindu widow, who had

succeeded to the right 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 he does not claim under the

widow but under the last male holder.

Gnanasambanda v. Velu ([1900] 27 I.A. 69) explained.

Whatever might be said about the office of a trustee, which

carries 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 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

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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 the

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. Rama Dass ([1905] I.L.R. 28 Mad. 197) and

Lilabati v. Bishen ([1907] 6 C.L.J. 621) commented upon.

The rule that adverse possession against a Hindu widow can-

not 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 which

come within the purview of that article. It is in

accordance with the acknowledged principles of Hindu law and

the general principle that as the right of the reversioners

is in the nature of spes succession is 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. Prosunno Kumar ([1883] I.L.R. 9 Cal. 934),

Banchordas v. Parvati ([1899] 26 I.A. 71), Jaggo v. Utsava

([1929] 56 I.A. 267) approved. Katama Natchiar v. Rajah of

Shivagunga ([1925] 52 I.A. 332) referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION :Civil Appeal No. 19 of 1952.

Appeal from the Judgment and Decree dated 19th June, 1950,

of the High Court of

505

Judicature at Calcutta (Das and Guha JJ.) in Appeal from

Original Decree No. 48 of 1949.arising out of Judgment and

Decree dated the 22nd December, 1948, of the Court of the

Subordinate Judge, 3rd Court,24-Parganas, 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 Judgment of the Court was delivered

by

MUKHERJEA J.-This appeal 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-Parganas, 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 Dakshineshwar Jew and situated at a

village called Dhop Dhopi within the district of 24-Parganas

in West Bengal. The deity is an ancient one and its reputed

founder and first shebait was one Udhab Chandra Pandit. It

is not disputed that by successive devolutions the rights of

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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 and also to

their common ancestor.

506

Iswar

Ashutosh Govind Gopal Sadanan Talokya Haran

(dead) m. Rajlakshmi

Surendra Sashi

(adopted)

m.Tarakali Abani

(w) (Deft. 4)

Kali Nirmal

(Plff. No. 1) (Plff. No. 2)

Moni Sarat Surendra Nagendra

(dead) (adopted

Bidhu by Gopal) Palani

(Deft. 3) Bala (Deft. 1)

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 palas 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 mouth or one-third share in the

entire shebaiti right. Haran died without any issue leaving

him surviving, his widow Rajlakshmi 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

Rakhal Ghose.

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 lease 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, 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

in his turn sold this interest to Nagendra and Surendra, two

of the sons of Trailokhya. Surendra died some time

afterwards and on 20th of June, 1925, his widow Tarakali

sold her husband's share in the shebaiti right to Nagendra,

her husband's brother. Thus Nagendra in addition to what he

had inherited from his own father came to hold the entirety

of a third share in the shebaiti right, represented by 10

days' pala every mouth, which was previously hold by Haran.

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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.

Nagendra 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 right.

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 Rajlakshmi who

had only the restricted rights

508

of a Hindu widow in respect to the same. On the death of

the widow, the interest vested in the plaintiffs. 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 respect 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

transaction 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.

The 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

Subordinate Judge held that although article 141 of the

Indian Limitation Act was not attracted to this cage, yet

the plaintiffs' suit was not barred by limitation. Two

reasons have been assigned for this view. It has been said

in the first place that Nagendra purported to purchase only

the life interest of Rajlakshmi; consequently his position

as purchaser was in recognition of the interest of the

reversionary heirs of Haran. It is said further that as

Rajlakshmi and Nagendra were both co-shebaits of the deity,

the possession of the latter could not have been adverse to

the former,

509

they being in the position of co-sharers in law and nothing

like ouster being alleged or proved in this case.

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 Guha JJ. The learned

Judges while affirming all the other findings arrived at by

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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

Limitation 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. In 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 plaintiffs' 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 Hindu law and cannot be validated even on

the footing of a custom. 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

510

the correctness of this proposition of law; his contention

is that the possession of shebaiti right by defendant No. 1

and her predecessors might have been adverse against

Rajlakshmi ever since the date of transfor and on the

strength of such possession 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 the office 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 confined in its operation 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

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reversionary heirs also. This, he says, was the law prior

to the introduction of article 141 into the statute book 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

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 the previous holder or

not. It is urged that in the case of a hereditary office

like that of a shebait, 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 respectively " 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, which 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

(1)Goluckmani v. Digambar, (1852) Macpherson on Mortgage,

2nd ed., 20.

(2) (1861-63) 9 Moo. I.A. 539.

512

against her in regard to her estate is in the absence of

fraud or collusion binding on the reversionary heir".

Turner L.J., who delivered the judgment of the Board,

observed in course of his judgment.:

" The whole estate would for the time be vested in her,

absolutely for some purposes, though, in some respects, for

a qualified interest; and until her death it could 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 the greatest possible

inconvenience in holding that the succeeding heirs were not

bound by a decree fairly and properly obtained against the

widow".

The 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

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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 and properly obtained would bind the

reversionary interest(1). 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 question 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(2) 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

(i) Vide in this connection Jugal Kishore v. Jotendro. 11`

I.A. 66. 73.

(2) 9 W.R. 505.

513

a suit by her or by her reversioner must be brought within

12 years from the date of dispossession as laid down in

section 12 of the Limitation Act of 1859. The decision can

certainly be justified on the law of limitation as it then

stood. The Act of 1859 did not provide a separate rule as

regards reversioners 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 obtained 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. Rajonee Kant( and Sir Barnes

Peacock, who delivered the judgment, expressly affirmed tHE

(1) (1874-75) 2 I.A. 113.

514

decision in Nobin Chunder v. Issur Chunder (1). It may be

noted here that though the Privy Council judgment in this

case was passed in the year 1875 it was a decision under the

old Limitation Act of 1859.

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In 1871 a new Limitation Act was passed which repealed the

earlier 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 Hindu 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 187 7 and again in article 141 of

the present Act. It seems to us to be a correct view to

take that this was a change deliberately made by the

legislature in the existing law. Article 141 speaks of a "

like suit and this means that it is a suit for- possession

of immovable property which is provided for in the previous

article. The earlier Article relates to a suit by a

remainderman 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 Mahommedan entitled

to possession of property on the death of a female heir."

The estate of a Hindu female heir, as is well known, is

extremely 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 in Srinath Kur v. Prosunno Kumar(2) and by the Bombay

High Court in Vundravandas v. Cursondas(3), the decision

(1) 9 W.R. 505.

(2) (1883) 9 Cal. 934.

(3) (1897) 21 Bom. 646.

515

in the latter case being affirmed by the Privy Council in

Ranchordas v. Parvati(1). The decision in Ranchordas's case

has all along been treated as an authority for the

proposition that the statute of limitation does not begin to

run against the reversioner when there is dispossession 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

actually falls into possession. It is to be noticed that

the Judicial Committee in Ranchordas's case expressly laid

down that even in respect of movable,;; 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 in

Ranchordas's case was shaken to a considerable extent by the

later pronouncerment of the Judicial Committee in

Vaithialinga v. Srirangath(3), and that the principle of

representation of the estate by the widow upon which the

rule in Shivagunga's case rested, could be applied to a case

of adverse possession against the widow. But all doubts on

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 where a

decree has 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

recover such property either against an alienee from the

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female heir or a trespasser who held adversely to her

accrues only on the death of the female heir. This

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 successionis,and as the reversioners do not trace

their title through or from the widow, it would be

manifestly

(1) (1899) 26 I.A. 71. (2) Vide Aurobinda v. Monorama

(1928) 55 Cal. 903.

(3) (1925) 52 I.A. 322. (4) (1929) 56 I.A. 267.

67

516

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 stranger. The contention 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 case, the

first thing that requires consideration is, whether the

present suit is governed by article 124 or article 141 of

the Limitation Act ? The 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 Judges, however, this condition was not

fulfilled in the present case, 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 shebait,

although she cannot transmit this office to her own heirs.

Reliance ha,; been placed in this connection upon a decision

of the Madras High Court in Pydigantan v. Rama Dass (1),

which was followed by a Division Bench of the Calcutta High

Court in Lilabati v. Bishen(2). 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 property. 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

(1) (I905) 28 Mad. 197. (2) (1907) 6 nC.L.J. 621.

517

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 the

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 (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

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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 in law. Article 141

refers expressly to immovable property and not to property

in the general sense of the word. on 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 parti-

cular 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 arises as to whether the

plaintiffs' suit is barred by limitation under this article,

as has been held by the learned Judges 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 purpose of barringsuits

for possession of such office and extinguishing the right to

the possession thereof

(1) Vide Angurbala v. Debabrata, [1951] S.C.R. 1125, 1136.

518

after a certain period. The question is, when did the

defendant or her predecessor take possession of the office

of shebait adversely to the plaintiffs? It is conceded that

the possession was adverse to Rajlakshmi, the holder of

shebaiti at that time ; but the contention of Mr. Chatterjee

is that as the plaintiffs did not claim through or from

Rajlakshmi, 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 "

in section 2 (8) of the Limitation Act, where it is stated

that plaintiff includes any person from or through whom a

plaintiff derives his right to sue. In answer to this, it

is argued by Mr. Ghose that a shebait like a trustee

represents the entire trust estate and the next trustee,

even though he may not strictly claim through or from the

-previous holder of the office, must be deemed to be bound

by acts or omissions of the latter; and in support of this

contention he relies upon the judgment of the Judicial

Committee in Gnanasambanda v. Velu (1). -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 during

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 has not been and cannot be

disputed that the same rule applies in the case of

succession to shebaitship. Reading 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

had taken possession of the office adversely to the

plaintiff or somebody from or through whom the plaintiff

derives his title, more than 12 years prior to the

institution of the suit. This is exactly what is laid down

in Gnanasambanda v. Velu(1). In

(1) (1900) 27 I. A. 69.

519

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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. The sales. were null and void and the possession

taken by the purchaser was adverse to the vendors from the

very beginning. The plaintiff Velu was the son and heir of

one of the hereditary trustees and he instituted the suit

more than 12 years after the date of the transaction claim-

ing 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 Nataraja, and

from him and through him, and consequently his 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 ordinary law of

inheritance the plaintiffs would come as the heirs of the

husband of Rajlakshmi is immaterial. That 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 Sukumar Ghose.

Agent for respondent No. 1: R. R. Biswas.

520