Case: Kalipada Chakraborti And Another Vs. Palani Bala Devi And Others

but to the heirs of the last male owner. It is admitted that 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: Vide Angurbala v. Debabrata, (1951) S.C.R. l125 at p. l136.16. 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 Art, 124 and not Art. 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 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 Art. 124, 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 Art. 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?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 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 S. 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 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 he disputed that the same rule applies in the case of succession to shebaitship. Reading Art. 124, Limitation Act, along with S. 2(8), the conclusion is irresistible that to defeat the title of the plaintiff under Art. 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 Gnauasambanda 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 plaintiffs 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 Art. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. 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 transfered is adverse from the very beginning. Mr. Chatterjea appearing for the plaintiffs appellant; has not assailed the correctness of this proposition of law; - his contention is that the possession of shebaiti right by defendant 1 and her predecessors might have been adverse against Rajlakshmi ever since the date of transfer 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 Art.141, Limitation Act, expressly recognises and gives effect tolearned Judges of the High Court have held and quite properly that the benefit of Art. 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.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 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 S. 2(8) of the Limitation Act, where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right toportion 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.