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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