JUDGMENT
Charles Sargent, C.J.
1. The plaintiffs claim to recover possession of land (Survey No. 352), alleging that they hold under a karanama passed to them, on 2nd August 1880, by Mutyawa, the daughter of one Ugapa, The first and second defendants are the eons of one Somana’ who, they say, was jointly interested in the land with Ugapa, The Assistant Judge, without deciding whether Somana and Ugapa’ were joint, came to the conclusion that Mutyawa was at any rate not in possession when she passed the kararnama; and that, consequently, she could confer no title on the plaintiffs to sue for possession.
2. This is doubtless supported by the reasoning of the Court in Lalubhdi Surchand v. Bai Armit I.L.R. 2 Bom. 299 and more particularly by the Full Bench decision in Bai Suraj v. Dalpatram Dayaahanhar I.L.R. 6 Bom. 380 where it was held, on the authority of the Privy Council decisions in Raja Sahed Pralhad Sun v. Baba Budhusing 12 Moo. I.A. 275, 307 and Rani Bhobosundri Dossah v. Issurshunder Dutt 11 Beng. L.R. 36 followed by this Court in ‘Mathews v. Girdhatlal Fatechand 7 Bom. H. & Rep. O.C.J. 1 and Kachu Bayaji v. Kachoba Vithoba 10 Bom. H.C. Rep. 491 that “the sale of an estate by a person who is not in possession cannot operate “as a present conveyance nor enable the purchaser to sue in ejectment.”
4. As to the Hindu law, their Lordships express an opinion that it does not require that the vendor should be in possession to -give validity to the contract of sale, and that the texts, which relate to the transfer of possession (except in the case of gifts where it is necessary to give a complete title as against the donor) “have reference only to the comparative strength of a title with possession and a title without if.” After commenting on the judgment in Kachu Babuji v. Kachoba Vithoba 18 Bom. H.C. Rep. 491, as proceeding on a misapprehension of what was decided in the cases of Harjivan Anandram v. Naran Haribhai 4 Bom. H.C. Rep. 31 A.C.J, and Girahar Parjaram v. Daji 7 Bom. H.C. Rep. 4 A.C.J, they proceed to explain the decisions in Raja Saheb Pralhad Sen v. Babu Budhusing 12 Moo. I.A. 306 and Rani Bhobosundri Dosseah v. Insurchunder Dutt 11 Beng. L.R. 36 as proceeding on the ground that the contracts from their very nature did not operate as a present transfer of property, being contracts to be performed in future, in the first case on the happening of a contingency which never occurred, and in the second with respect to such property as might be recovered in a certain suit which was never brought, and conclude with the observation that “the ground of them is that the plaintiff was not entitled under the terms of sale to possession.” This decision is irreconcileable with the Full Beach decision of this Court in Bai Saraji v. Dalpatram Dayashankar. I.L.R. 6. Bom. 380 and being a decision of the highest authority must be deemed to overrule it.
5. We must, therefore, hold that the circumstance of Mutyawa not being in possession at the time the kararnama was executed, does not prevent plaintiffs from seeking to obtain possession from the defendants.
6. It was contended, however, for the respondents that as the Assistant Judge has found that Mutyawa was not in possession when the kararnama was executed, the plaintiffs could not have been dispossessed on the day of execution which he alleges in his plaint as constituting his cause of action. But we do not think we ought to allow this objection to prevail, the substantial question between the parties being, who has the better title to ‘ the land. It will, however, be open to the defendants to raise an ‘ issue as to the plaintiffs’ claim being barred by the Statute of Limitation.
7. We must, therefore, reverse the decree of the Assistant Judge and remand the case for trial with reference to the above remarks. Costs to abide the result.
