Bombay High Court
Umakant S/O Jangluji Nikhade vs Narayan S/O Nimbaji Wankhede Dead ... on 5 December, 2007
Equivalent citations: 2008(1)MHLJ849
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
1. By this Second Appeal, the original plaintiff has challenged the reversing judgment and decree delivered by Appellate Court below dismissing his suit against present respondent for delivery of possession and for mesne profits. He filed civil suit vide R.C.S. No. 272/1982 originally on the basis of Will executed on 25-9-1950 in his favour by one Thakabai who expired on 3-8-1951. It came to be decreed on 21-7-1984 by Third Joint Civil Judge (Junior Division), Nagpur. Defence of present respondent was that as he married niece of Thakabai and adjacent plot was lying vacant, Thakabai permitted him to occupy and construct a house upon it. He contended that it was license which became irrevocable in view of Section 60 of Indian Easements Act, 1882. Present respondent thereafter filed R.C.A. No. 470 of 1984 and Joint District Judge, Nagpur vide judgment dated 30-8-1988 allowed that appeal and dismissed the suit. After second appeal was admitted, Plaintiff/appellant moved Civil Application No. 2500/2005 for amendment claiming title to very same property also as reversioner of deceased Thakabai. That amendment has been allowed on 21-8-2006 and this Court permitted present respondent to carry out consequential amendment in his written statement. However before that on 19-6-2006 this Court after noticing that this appeal came to be admitted without formulating any substantial question of law, directed the appellant to submit such questions. The plaintiff/appellant accordingly submitted following four questions on 7-7-2006 as substantial questions:
1) Whether the learned Lower Appellate Court has committed an error in ignoring the settled position in law that a limited interest of a widow in the property passes to the male reversion?
2) Whether in absence of testamentary disposition the plaintiff as a male reversion was the owner of the suit property since Thakabai has limited interest?
3) Whether Will dated 25-9-1950 was duly proved upon examination of both the witnesses?
4) Whether admissibility or proof of document could be challenged at an appellate stage once the document is exhibited?
2. Thakabai was widow of Kawadu and she expired on 6-8-1951. Jangalu was real brother of Kawadu. Plaintiff Umakant is son of Janglu and defendant or present respondent Narayan is husband of his real elder sister. The position is apparent from following family tree:
(brothers) |
-------------------------------------------------
| |
Janglu Kawadu
| and his wife named
| Thakabai (expired-6-8-1951)
Issues
|
-----------------------------
| | |
Parwatibai Savitrabai Umakant
married to one plaintiff
Narayan-defendant
On 22-12-1981, plaintiff served a legal notice upon defendant and asked him to vacate the house pointing out his title in view of registered Will dated 25-9-1950 in his favour by Thakabai. As the defendant did not vacate, he filed suit. Defendant claimed that there was no Will executed by Thakabai in favour of plaintiff and also stated that Thakabai was not the owner of house occupied by him. He stated that he got married with real sister of plaintiff in year 1949 and that time Thakabai was only surviving member in the family besides his wife and her sister, both minors and present plaintiff, also a minor. Thakabai requested him to construct the fallen house on adjacent plot lying vacant and occupy it. Accordingly he constructed a pucca house and since 1948 has been residing there as its owner to the full knowledge of Thakabai and plaintiff without any objection or obstruction. He also stated that in view of Section 60 of Easements Act his license has become irrevocable.
3. I have heard Advocate Shri C.S. Kaptan for appellant-plaintiff and Advocate Shri N.K. Deshpande on behalf of respondent-defendant. At the outset it needs to be stated that both learned Advocates have left the issue of Will untouched. Advocate Deshpande has contended that the claim as reversioner is not open in law for scrutiny and, even otherwise, plea raises certain disputes about facts. Advocate Kaptan for plaintiff has argued only on the point of reversion and corresponding issue of limitation contending that plaintiff has to succeed only on issue of reversion. He places reliance upon family tree and chronology in support. He has not touched any other issue including question Nos. 3 and 4 submitted by him. Advocate Deshpande has contended that plea of reversion cannot be looked into because as per Article 141 of Indian Limitation Act, 1908, the possession of present defendant became adverse to plaintiff immediately upon death of Thakabai on 6-8-1951 and period of 12 years had also expired before the amended provisions vide Article 65(b) of Limitation Act, 1963 were brought into force. He points out that first notice of plaintiff itself is dated 22-12-1981 and there is no evidence on record about exercise of any ownership rights by plaintiff after death of widow Thakabai in 1951 till then. He argues that in original suit the defendant was called upon to meet the case of will by Thakabai in favour of plaintiff and there is no evidence on record about the nature of property of Thakabai, her other heirs and therefore for application of concept of reversion to said property. He argues that amendment allowed by this Court will not relate back to the date of suit in present facts. He also stated that if this Court finds that suit as amended was not time barred on the date of its institution, this Court should remand the matter back to trial Court for considering the controversy. He states that correctness of family tree is also being disputed and needs to be examined by trial Court after parties lead evidence. In support of his contentions he has relied upon judgments reported at , Vishwambhar v. Laxminarayan and , Jagat Ram v. Varinder Prakash.
4. From this line of arguments it is apparent that plaintiff hopes to succeed only by pressing the plea of reversion and therefore he wants decision of appeal or a remand for deciding said issue even if this Court finds that disputed questions of facts arise. I am satisfied that question Nos. 1 and 2 stated in paragraph No. 1 above are substantial question of law.
5. First question to be decided therefore is-whether the amendment as allowed relates back to the date of institution of suit or not? The defence taken by present defendant has been that he was licensee and his license has become irrevocable. Trial Court framed Issue No. 7 to find out whether he could prove that Thakabai requested him to construct fallen house and occupy the same in 1948 and Issue No. 8 to find out whether he could prove that his license cannot be revoked because of Section 60 of Indian Easement Act. Both these issues are answered against him by trial Court. He filed appeal and Joint District Judge also framed Issue No. 3 to find out whether he could prove that his license cannot be revoked and he constructed the house with consent of Thakabai. In paragraph 11 of its judgment, Appellate Court has answered this issue in negative i.e. against appellant. It is therefore clear that present respondent/original defendant has never claimed acquisition of title by adverse possession. Even during arguments before this Court no such evidence led before trial Court could be pointed out. Original suit as filed is for his eviction on the basis of title. In said suit present appellant claimed title through registered Will dated 26-9-1950. Trial Court has held that he has duly proved the Will and Appellate Court has reversed said finding after appreciating the evidence of attesting witnesses. By amendment, he has been permitted to point out "reversion" as source of title. For that the family tree mentioned above needs to be proved as correct with other ingredients to support conclusion that after death of Thakabai on 3-8-1951 property vests in present appellant/plaintiff as her reversioner. However this is subject to opportunity to defendant to point out other heirs or reversioners as according to Advocate Deshpande it was not necessary for defendant to do all this because suit was based only on Will.
6. Judgment of Hon'ble Apex Court in case of Vishwambhar v. Laxminarayan (supra), needs to be looked into at this stage. During minority of her two sons (appellants before Hon'ble Apex Court) their mother executed two sale deeds without any legal necessity and without obtaining permission of Court as required under Section 8 of Hindu Minority and Guardianship Act, 1956. Both minors after attending majority filed suit against purchasers contending that sale deeds were not binding upon their share. They contended that sale deeds were void and purchasers were trespassers and they relied upon Article 65 of Limitation Act to urge that limitation was of 12 years. Defendants contended that sales were for legal necessity and by natural guardian who was manager of the joint family property. Trial Court decreed their suit and Appellate Court dismissed it. This High Court dismissed their second appeal summarily. Hon'ble Apex Court observed as under:
9. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent Court. On that basis the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plain were inter alia to set aside the sale deeds dated 14-11-1967 and 24-10-1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial Court as well as the first Appellate Court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the Court was taken for the said alienations. The question is in such circumstances are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the Court, transfer by sale any part of the immovable property of the minor. In Sub-section (3) of the said section it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of Sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial Court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the plaintiff. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff No. 2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff No. 1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial Court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first Appellate Court could not have interfered with that part of the decision of the trial Court. Regarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December, 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances the amendment of the plaint could not come to the rescue of the plaintiff.
10. From the averments of the plaint it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint, and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance the suit for setting aside the transfers could be taken to have been fled on the date the amendment of the plaint was allowed and not earlier than that.
This judgment therefore notices that suit as filed originally was legally not maintainable and lacuna in pleading was removed after the expiry of period of limitation by carrying out amendment. It is in this background that the Hon'ble Apex Court has concluded that such amendment does not relate back to the date of institution of suit. In present case before me, defendant has not even argued that suit as filed was deficient in any respect and therefore, amendment which made up that deficiency cannot be treated as relating back to the date of institution of suit. Suit was on the basis of title and by amendment an additional but legal source of title is being pointed out. It cannot be said that Thakabai could not have executed a Will in favour of plaintiff at all. Legal effect of that Will or reliance upon it by plaintiff as his source of title is altogether a different thing. The plaintiff can also point out that in view of subsequent events he acquired title as sole reversioner. Hence plea of reversion by plaintiff is attempt to show his title is not inconsistent with plea of Will at all. On the contrary, it appears that having realised limited nature of rights available to Thakabai in 1950 and 1951, perhaps the plaintiff has been advised to shift to his claim as reversioner. By amendment claim of plaintiff as owner is not changed and he is only pointing out manner in which he acquired ownership. Defendant has not pointed out any prejudice, legal or otherwise caused to him due to such amendment. In his consequential amendment, he has not contended that he has been exercising rights adverse to the title of plaintiff or has perfected his title by adverse possession in the meanwhile. Suit even after amendment remains a suit for possession on the basis of title and hence, amendment to raise claim as reversioner allowed by this Court relates back to the date of institution of suit.
7. Next question to be decided is whether suit was already barred by limitation in view of Article 141 of old Limitation Act or Article 65(b) of Limitation Act, 1963. Contention of defendant is that his possession became adverse to plaintiff on death of Thakabai in 1951 and, as such, suit on the basis of title by plaintiff ought to have been filed in 1963 as per scheme of 1908 Limitation Act. Appellant/plaintiff urges that never any title adverse to Thakabai during her lifetime was claimed by defendant and till date he only asserted his right to possession as her licensee and claimed irrevocable license because of Section 60 of Easements Act. As already stated above the stand of defendant that he raised construction with consent of Thakabai and his license has become irrevocable is concurrently negated by the Courts below. Even after this Court permitted consequential amendment in written statement, no such plea of adverse possession is taken. Hence, even today defendant/present respondent stands by his defence of induction as licensee and protection under Section 60 of Easements Act.
A) In case of Jagat Ram v. Varinder Prakash (supra) relied on by Advocate Deshpande, the facts considered by the Hon'ble Apex Court reveal that the cause of action had already accrued during lifetime of widow against Varinder Prakash who was adopted and gifted with suit property by her. One Sunder, owner of the suit land, died leaving behind his widow Smt. Kirpi and two daughters, namely Smt. Manshan and Smt. Sita Devi. The appellant-plaintiff before Hon'ble Apex Court, namely Jagat Ram, was the son of Smt. Manshan while Varinder Prakash claimed to be son of Smt. Sita Devi but adopted by Smt. Kirpi. Sunder had executed, during his lifetime, a gift deed on 23-6-1920 in favour of his daughter, Smt. Manshan (mother of the plaintiff). He died on 17-9-1941. On 3rd August, 1945, Smt. Kirpi, widow of Sunder, filed suit against Smt. Manshan which finally resulted into a compromise to the effect that Smt. Kirpi would enjoy the suit property as long as she was alive and after her death the property would be inherited by her daughter Manshan. On 23-8-1958, Smt. Kirpi executed an adoption deed in favour of her second daughter's son, namely Varinder Prakash-defendant and also executed gift deed in his favour. Smt. Manshan, mother of the plaintiff, filed a suit on 27-5-1959 for cancellation of the gift deed and for a declaration that the adoption was illegal. The suit was decreed by the trial Court on 16-1-1960. On 5-9-1967, Smt. Kirpi, widow of Sunder, died. The decree obtained by Smt. Manshan was ultimately challenged in Letters Patent Appeal before the High Court by the defendant, which was dismissed on 18-11-1981. Thereafter Smt. Manshan filed the suit for recovery of possession of the suit land on 14-12-1982. The suit was dismissed by the trial Court holding that the suit was barred by limitation but it was upset by the Additional District Judge in appeal. The High Court in the second appeal while allowing the same held that the suit filed by the appellant-plaintiff on 14-12-1982 was barred by limitation since the widow had died on 5-9-1967 and the suit for possession was not filed within 12 years of her death. Contention of appellant was that while under the old Limitation Act, Article 141 governed the case, so far as the Limitation Act of 1963 is concerned the legal position had changed. In these facts, Hon'ble Apex Court in para 6 observed as under:
6. In our view, the High Court was right Learned Counsel submitted that in view of Article 65 of the Limitation Act, 1963 the suit had to be filed within 12 years from the date on which the possession of the defendant became adverse and, therefore, it was immaterial as to when the Hindu female died. It is not possible to sustain the contention because the Article itself provides that the possession of the defendant shall be deemed to become adverse only when the female dies. Thus, there is no scope for the argument that limitation does not run from the date on which the Hindu female died and that it would start running from some other date. In our view, the High Court has rightly held that the suit should have been filed by the plaintiff within 12 years of the death of the Hindu female, namely Smt. Kirpi, and the same having not been filed within 12 years was barred by limitation. Much was sought to be made of the pending litigation relating to the adoption and gift deed executed in favour of the defendant. It was contended before us that since the matter was still pending and though the plaintiff's suit had been decreed on 16-1-1960, the plaintiff could not have filed the instant suit till such time as the Letters Patent Appeal was not dismissed by the High Court i.e. till 18-11-1981. The submission has no substance because in the litigation which was pending before the High Court the plaintiff had not claimed possession of the suit land. The High Court has rightly pointed out that even if the plaintiff had sought amendment of the pleadings in the pending matter and claimed decree for possession, the legal position would have been different. He having not done so, he should have filed the suit for possession of the suit land within 12 years of the death of Smt. Kirpi, which he failed to do.
It is therefore apparent that the cause of action has been held to accrue in favour of Jagat Ram immediately on death of Kirpi because of previous litigation between parties and also because of knowledge that Varinder Prakash was claiming adversely suit property.
B) In , Kalipada Chakrabortu v. Smt. Palani Bala relied on by Advocate Kaptan, the claim for adverse possession was during lifetime of a female heir Rajalakshmi. In view of controversy involved, only question argued before Hon'ble Apex Court was of limitation. The plaintiffs contended that Article 141 of 1908 Limitation Act governed their suit while defendants contended that Article 124 would apply. Hon'ble Apex Court in paragraph 16 noticed that and then proceeded to find out whether the plaintiffs' suit was barred by limitation under it as held by High Court. Hon'ble Apex Court observed in paragraph 17 as under:
17. 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 barring suits for possession of such office and extinguishing the right in the possession thereof after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebaiti 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. Chatteriee 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 Ghanasambanda v. Velu Pandaram 27 Ind. App. 69 (P.C.). 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 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, 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 Ghanasambanda v. Velu 27 Ind. App. 69 (P.C.). In 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 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 Nataraja, and from him and through him, and consequently his suit was barred by Article 124." 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 cases 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.
C) Kalipada Chakrabortu v. Smt. Palani Bala (supra) is followed in , Ram Kristo Mandal v. Dhankisto Mandal, where in paragraph 11, the Hon'ble Apex Court observed thus:
(11) ...A person who has been in adverse possession for twelve years or more of property inherited by a widow from her husband by any act or omission on her part is not entitled on that ground to hold it adversely as against the next reversioners on the death of such a widow. The next reversioner is entitled to recover possession of the property, if it is immovable, within twelve years from the widow's death under Article 141. This rule does not rest entirely on Article 141 but is in accord with the principles of Hindu Law and the general principle that as the fight of a reversioner is in nature of spes succession is and he does not trace that title through or from the widow, it would be manifestly unjust if he is to lose his right by the negligence or sufferance of the widow: of Kalipada Chakraborti v. Palani Bala Devi and Mulla's Hindu Law, 13th Ed. 233. The High Court was thus in error in disallowing the said contention on either of the two grounds suggested by it.
D) In Devendranath v. Premlabai learned Single Judge of this Court has found that the legislative intent is that all suits which formerly fell within Articles 47, 136, 137, 140 and 144 of the old Act should be governed by one Article i.e. Article 65 in the shape of Clauses (a), (b) and (c), the legislature has specifically retained the provisions of Articles 140, 141 and 137 respectively of the old Act. It also found that explanation (b) to Article 65 of the New Act is referrable to Article 141 of the old Act. It has been further held that Clause (b) of the explanation to Article 65 would apply to cases where the suit is for possession occurring upon the death of a female holding the limited woman's estate. However, female there was not found to be holding limited estate and it has been observed that where a female is not holding the limited woman's estate, the defendant, to succeed in establishing that the suit for possession of immovable property filed against him was barred by limitation, is obliged to plead and establish that his possession was adverse to the plaintiff for a period of more than twelve years preceding the institution of the suit. It is obvious that when Article 65(b) is not attracted, the defendant has to establish his adverse possession against the plaintiff.
8. Language of Article 141 of Limitation Act, 1908, is very clear. It reads as under:
----------------------------------------------------------------------------
Description of suit Period of Limitation Time from which period
begins to run
----------------------------------------------------------------------------
141-Like suit by a Twelve years. When the female died.
Hindu or Muhammadan
entitled to the pos-
session of immovable
property on the death
of a Hindu or Muhamma-
dan female.
----------------------------------------------------------------------------
It shows that a reversioner becoming entitled to possession on death of a female has to institute his suit within 12 years of death.
Language of Article 65 of present Limitation Act is as under:
----------------------------------------------------------------------------
Description of suit Period of Limitation Time from which period
begins to run
----------------------------------------------------------------------------
65. For possession of Twelve years When the possession of immovable property or defendant becomes any interest therein adverse to the plaint-
based on title iff.
----------------------------------------------------------------------------
Explanation:- For the purposes of this Article-
(a) ...
(b) where the suit is by a Hindu or Muslim entitled to possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) ...
There is nothing in the language of Article 65 requiring the permissive plain and simple possession of defendant who did not claim it as adverse to the female heir to be treated as deemed to have become adverse upon her death. As in present case, Narayan, original defendant claimed to have entered possession with consent of Thakabai in 1948-49 and thereafter claimed irrevocable license as she permitted him to construct house, it is obvious that till her death in 1951 he never claimed suit property adversely to her. His possession was therefore not adverse to said female heir Thakabai. In all above reported judgments cited before me, the defendants in possession were claiming adversely to the female heir holding limited estate even during the lifetime of such women. Thus the cause of action was already in existence. Because of explanation (b) such possession of defendant during lifetime of such woman is excluded for the purposes of computing limitation and hence, by deeming fiction, only after death of such limited owner, legislature has recognized it as becoming adverse to the plaintiff thereby requiring filing of suit within twelve years from the date of death of such woman. As cause of action already existed the plaintiffs in reported judgments became entitled to demand possession immediately on death of limited owner and law obliged them to institute it within 12 years of death. Here is Narayan never claimed property adversely against Thakabai, I find that there was no cause for plaintiff to file any suit. Law does not recognize death of limited owner itself as giving rise to cause of action. If a person inducted by limited owner accepts title of reversioner after death of such limited owner, revisioner will have no cause to treat his possession as adverse to him. Hence, Explanation (b) of Article 65 is not at all relevant here and Narayan has to demonstrate that he was in adverse possession as against present plaintiff for twelve years. The nature and character of possession and defence of Narayan is already discussed by me above. I therefore find that Article 141 of old Limitation Act or Article 65 of present Limitation Act have no application in the facts of this case and suit as filed by original plaintiff in 1982 cannot be said to be barred by limitation insofar as his claim as reversioner is concerned.
9. In this view of matter, the plea and claim as reversioner raised by appellant plaintiff needs to be tried to find out existence or absence of necessary factual matrix enabling him to get its advantage. As the plea has been raised for the first time in this second appeal, present respondent/original defendant did not get opportunity to point out facts negating it. In view of my answer to the two questions as above, I quash and set aside the judgment and decree dated 30-8-1988 delivered by Joint District Judge, Nagpur in Regular Civil Appeal 470 of 1984 and also the judgment on decree dated 21-7-1984 delivered by Third Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit 272 of 1982. Said Civil Suit is restored back to the file of said Court only to consider the issue of reversion arising from amended pleadings of parties and to answer it in accordance with law after giving them reasonable opportunity. As the matter is very old, trial Court is directed to decide it as early as possible and in any case within period of nine months from the date of communication of this order to it.
10. Appeal is thus partly allowed. Rule made absolute in above terms with no order as to costs.