Hobhouse, J.@mdashThe point before us in this case is one of some difficulty, because it seems to us to be, upon the facts found, a novel point; and we have no judicial findings of the Courts before us which can be a guide to our judgment. Our duty therefore is simply to do, as best we can, equity and justice between the parties. Upon the findings of facts by the lower appellate Court, which are not now disputed before us, the property in suit was the property of one Ramkant. On his death his widow, Rai Mani, held the property up to some period, at least within twelve years of the time of the present suit. At that time the defendant, special appellant before us, claimed the property as being not a part of Ramkant''s ancestral estate, but as belonging to his own separate talook. Rai Mani thereupon gave up the property to the defendant, and refused, and still refuses, to enter upon it.
2. In this state of facts the plaintiff, who is the reversionary heir of Ramkant, came into Court, and claimed to have his title declared and to obtain possession of the property.
3. The lower appellate Court has given the plaintiff a decree,--apparently a decree which runs in these terms. "That the plaintiff should hold the land as trustee, under his right as heir to Ramkant, on the death of his widow Rai Mani."
4. In special appeal it is urged that until the death of Rai Mani the reversionary heir, the plaintiff, has no right of suit; and we are referred in support of this contention to the Full Bench Ruling in Nobin Chunder Chuckerbutty v. Issur Chandra Chuckerbutty Case No. 460 of 1867; 29th April 1868. (B.L.R. Sup. 1008).
5. We think, however, after the best consideration that we can give to that ruling, that it is not strictly in point; and that if anything, it is rather adverse to, than in favour of, the special appellant''s contention. The question in that case was based on the application of the Statute of Limitation, and it seems to have been held as between the widow and the reversioners, that if there was on the part of a third person a possession adverse to the widow during her lifetime, which under the Statute of Limitation, would have barred her right of suit, then that bar to the widow would be also a bar to the reversioners after her; that is, if she were out of time, had she sued in her life-time, then they (the reversioners) also would be out of time when they sued after her death. No doubt, many supposititious cases were put and discussed by the Judges in illustration of the decision at which they were arriving, but as a judicial binding decision, it does not seem to as to go further than what we have just stated. There are, however, certain remarks of the learned Chief Justice to be found at page 508 which seem to suppose a case very like the present, and which distinctly point out that in such a case the reversioners would have at least some remedy, would at least be allowed to sue for, and get some specific binding order protecting their interests in the property. The learned Chief Justice says:-- "But reversionary heirs presumptive have a right, although they may never succeed to the estate, to prevent the widow from committing waste; and I have no doubt that if a proper case were made out, reversionary heirs would have a sufficient interest, as well as creditors of the ancestor, by suit against the widow and the adverse bolder, to have the estate reduced into possession, so as to prevent their rights from becoming barred by limitation;" and then the learned Chief Justice goes on to show how in the case of moveable property such a right would no doubt exist. The first question therefore that it seems necessary for us to decide in this case is whether the possession of the defendant was, from the time that Rai Mani, the widow, gave up the property in dispute, a possession adverse to her. On this point we do not think that there can be any doubt. She held the estate at one time as the heir of her husband Ramkant, and as a part of his estate. The defendant claimed it, threatening her with legal proceedings, as part of his distinct and separate estate. She therefore wisely or unwisely gave up her own title and possession, and permitted the defendant to hold the property as a part of his estate in contradistinction from her husband''s estate. The fact being so, we think that it cannot be doubted but that the defendant''s holding was a holding adverse to the representative of the estate of Ramkant, that is, go the widow. If then this holding was a holding adverse to the widow, the representative of Ramkant, then under the Full Bench Ruling that I have been quoting, if the plaintiffs, reversioners, did not sue within twelve years from the date of such adverse holding, their suit would be absolutely barred; and it is exactly to such a case that the learned Chief Justice seems to us in so many words to refer when he says that a suit on the part of reversioners against the widow and the adverse holder would lie to have the estate reduced into possession. The lower appellate Court, therefore, we think was right in holding that a suit would lie; and the only question which remains is the step to be taken to reduce the estate into proper possession so as to protect the interests of the reversioners, be they who they may. The widow, Rai Mani, has in one sense committed a waste of the estate, and at least she refuses altogether to have any concern with, or to take any part of, the assets of it; and it is clear therefore that the estate cannot be replaced in her possession. The reversioners have no right until the death of the widow, and therefore it seems to us that the estate cannot be placed in their possession. But there is a middle course which it seems to us we may rightly adopt, and that is to direct the Court to appoint a manager--a manager to collect the assets of the estate, to account for them to the Court, and the Court to hold them in such secure way as may be legal and proper for the ultimate benefit of the heirs of the estate succeeding on the death of Rai Mani.
6. We think therefore that whilst we uphold the decision of the Court below, declaring the property to appertain to the estate of Ramkant, we must set aside the decree of the said Court, and direct that a fresh decree be drawn out to run in the terms just stated. The special appeal is dismissed with costs.
