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1942 (4) TMI 20

..... M. Parikh Sir Madhavan Nair, These are two appeals from a decree of the High Court of Madras dated 1st October 1937, on appeals from the Additional Subordinate Judge of Guntur which have been consolidated and heard together. The appeals arise out of a suit instituted by the plaintiff for recovery of possession of immovable properties, as the nearest reversioner to the estate of one Ramachandrudu on the death of his widow Achamma in 1926, on the ground that the properties appertaining to the estate had been wrongfully alienated partly by his mother and partly by his widow. The defendants are the alienees or their successors in title. Generally stated, they may be roughly grouped as those claiming under alienations made by the mother, and those claiming under alienations made by the widow. The suit related to 16 items of properties of which items 11 to 14 and 16 were claimed on the footing that they had been acquired with the income of the estate subsequent to Ramachandrudu's death and must be treated as accretions to that estate. The High Court dismissed the plaintiff's claim to those items as unsustainable. The case as regards them is not now before the Board; nor is the ca .....

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..... properties which had legally vested in Achamma, that the possession thus taken was hostile to Achamma, that "she and her transferees were in possession for over 12 years before the Limitation Act of 1871 took effect, i.e., before 1st April 1873" and "so under the provisions of S. 1, R. 12, Limitation Act 14 of 1859, the right of Achamma as also the right of persons representing the reversion became barred and the right which became extinct prior to 1st April 1873, cannot be revived under the Act of 1871." The plea in this form was not pointedly raised in the written statements. In conformity with this plea the issue on the question of limitation was amended and the plea was accepted by the Additional Subordinate Judge with the result that he dismissed the plaintiff's suit as barred under Act 14 of 1859, but only with regard to 2/3 of the suit properties; as in his view "possession which started as hostile to Achamma immediately after her husband's death as regards all the properties became restricted to a 2/3 from the date of Ex. 3"-the settlement effected with Achamma. As regards the 1/3 share allotted to Achamma, subsequently alienated by her .....

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..... led accretions to the estate and those with respect to which a compromise was effected between the parties. From this decree of the High Court, the contesting defendants - the alienees - have filed these appeals to His Majesty in Council. In support of the appeals, Mr. Parikh, the learned counsel, first submitted that the arrangement of 1867 is in the nature of a bona fide settlement of family disputes in respect of Ramachandrudu's estate between the widow and Subbaramayya which in law would bind the reversioner though he was not party to it. No doubt, under this arrangement the disputes between Achamma and Subbaramayya, to whom Bengaramma had transferred in 1866 whatever she had got under the arrangement of 1859, were settled by Subbaramayya taking a 2/3rd and Achamma a 1/3rd share of properties; but what is important to notice is this, that Subbaramayya had no rights to the properties except what he derived by the gift made in his favour by Bengaramma. Since it has not been shown that Subbaramayya had any competing title of his own in respect of the properties in dispute, there can be no basis in their Lordships' opinion for a valid family settlement between the parties w .....

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..... for reasons not disclosed in the evidence the mother-in-law took a larger portion of the estate than the daughter-in-law, but that cannot convert what is referred to as partition in the deed of 1866 into a "surrender". Further, the reservation to herself by Achamma after Bengaramma's death of an interest in remainder in two of the villages, which has not been explained, would make it difficult to hold that the "surrender" is effective as it has not been of the widow's entire interest in the properties. Their Lordships therefore reject the plea that the arrangement relied on amounts to a surrender which in law would accelerate the succession. The next point to consider on this part of the case is whether the plaintiff's suit is barred under cl. (1), R. 12, Limitation Act, 14 of 1859. Ordinarily, the suit would be governed by the Limitation Act, 9 of 1908, which is the law in force when the suit was instituted; but if the defendants are able to show that the right of action had become barred under the Act of 1859 then the title that they had acquired could not be defeated by the subsequent Limitation Acts. The relevant portions of cl. (1) of the Act o .....

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..... 5 : Beng. LR Sup. Vol. 1008 (FB), Nobin Chunder v. Ishur Chunder. That rule has been acted upon in other cases and it appears to their Lordships that the principle of that decision is correct." The crucial point of time with regard to limitation being the dispossession of the widow, it follows that the question for consideration is whether or not Achamma had a cause of action against Bengaramma on the ground that she was dispossessed by her. The evidence on the point is scanty; it consists mainly of a few entries in a few revenue papers, the inferences to be drawn therefrom and the general circumstances of the case. The arrangement of 16th October 1859 being undoubted, the defendants in order to succeed in their contention that Achamma had a cause of action against Bengaramma will have to prove that Bengaramma entered into actual possession of lands prior to that date, but there is no satisfactory evidence to support that contention. The earliest date that can be invoked in favour of the defendants is 6th February 1860 entered in the cist book for fasli 1269 which shows that an instalment of cist with respect to dry land in one of the villages was paid "through Bengaramma .....

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