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B. Budhram Rai v. Benarsi Rai
Judgment Summary
Factual and Procedural Background
This is a plaintiff's appeal arising from a suit for declaration concerning ownership and possession of ancestral property. The lineage began with one Swarath Rai (died 1874), leaving a widow (Mt. Lachmina), a son (Ram Daur) and a daughter (Mt. Bihansa). After successive deaths in the family, part of the estate came into the possession of Mt. Lachmina, who sold half to Mahabal (the plaintiff's father) before 1890 and later (11-4-1897) executed a mortgage by conditional sale in favour of Raji Rai (father of defendants 1 and 2 and predecessor-in-title of defendants 3 to 10).
In 1917 Mt. Bihansa sued to cancel both the sale to Mahabal and the mortgage by conditional sale on grounds of want of legal necessity; that suit was dismissed. In 1919 Mahabal himself brought suit (No. 26 of 1919) challenging the conditional mortgage as not justified by legal necessity; that suit was compromised on 20-3-1919 by which Mahabal relinquished his rights in the property in favour of Khedu (who had acquired rights of the mortgagees) for Rs. 60/-.
The present suit was instituted by the plaintiff in 1942 after his father's death, seeking a declaration that the 20-3-1919 compromise was vitiated by fraud and asserting continuous possession notwithstanding the compromise. The learned Munsif dismissed the suit. The lower appellate Court agreed with the Munsif on the fraud point but found the plaintiff's possession had been with the permission of Sagar Rai (one of Raji Rai's sons). The plaintiff appealed to the court in this opinion.
Legal Issues Presented
- Whether the 20-3-1919 compromise (in which Mahabal relinquished rights for Rs. 60/- in favour of Khedu) was vitiated by fraud.
- Whether the plaintiff (or his father) had acquired title by adverse possession despite the compromise — specifically, whether possession was adverse (i.e., accompanied by the requisite animus to prescribe).
- Whether a finding that possession was with the permission of Sagar Rai (one mortgagee's son) rather than with the permission of Khedu (the assignee) affects the character of the possession for the purpose of adverse possession.
Arguments of the Parties
Appellant's Arguments
- The plaintiff (through Mr. Pande) contended that possession by the plaintiff or his father satisfied the classical tests of adverse possession: continuity, publicity and extent, relying on the definition in State v. Debendra Lalkhan (21 A.I.R. 1934 P.C. 23).
- He argued that, absent clear evidence of permission that would negate adversity, possession should be deemed adverse.
- He further argued that the Court below erred in finding permission from Sagar Rai to be decisive, because the proper person whose permission could change the character of possession was Khedu Rai (the assignee and compromise beneficiary).
Respondent/Defence Position (as summarized in the opinion)
- The defence maintained that the 1919 compromise was not vitiated by fraud.
- The defence also contended that the plaintiff could not prove possession in a manner sufficient to establish adverse possession.
- The lower appellate Court found that any possession was with the permission of Sagar Rai (one of the mortgagees' sons), which undermined the claim of adverse possession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Debendra Lalkhan, 21 A.I.R. 1934 P.C. 23 | Classical definition and outward tests of adverse possession (nee vi nee clam nee precario): continuity, publicity and extent. | The Court acknowledged these outward tests as indicators of adverse possession but held they do not replace the fundamental requirement of an animus to prescribe. |
| Lalit Kishore v. Ram Prasad, 30 A.I.R. 1943 All. 362 | Emphasis that physical acts of possession must be accompanied by the requisite animus or intention to prescribe (noted in the context of easements). | The Court relied on the case for the proposition that physical possession alone is insufficient; possession must be accompanied by the intention to appropriate or prescribe. |
| Bibhabati Devi v. Ramendra Narain Roy, 34 A.I.R. 1947 P.C. 19 | Authority that possession held under a genuine belief (mistake) — e.g., a wife possessing under the belief that her husband was dead — is not adverse because animus to prescribe is absent. | The Court cited the decision (including Lord Thankerton's reasoning) to illustrate that possession without the requisite intention (animus) — even if continuous and public — cannot ripen into title by prescription. |
Court's Reasoning and Analysis
The court's analysis proceeded in these steps, as reflected in the opinion:
- Acknowledgement of the appellant's reliance on the outward indicators of adverse possession (continuity, publicity and extent) as articulated in State v. Debendra Lalkhan. The court accepted that the appellant's possession might meet those outward tests.
- Clarification of the governing legal principle: outward physical indicia are not decisive by themselves because adverse possession fundamentally requires an animus to prescribe — an intention to appropriate the property adverse to the true owner. The court relied on authority in Lalit Kishore v. Ram Prasad to underscore that physical acts must be accompanied by the requisite intention.
- Use of Bibhabati Devi v. Ramendra Narain Roy to demonstrate the principle in context: possession held under a bona fide belief (for example, a wife who believed her husband to be dead) is not adverse because she lacks the animus necessary to claim title by prescription. The court quoted and paraphrased Lord Thankerton's reasoning that possession must be hostile to a living person to be adverse — possession under mistake is not so.
- Application to the facts: the crucial question was whether the appellant (or his father) possessed with the requisite animus to prescribe. The lower appellate court had specifically found possession to have been with permission of Sagar Rai. The appellant argued that permission of Khedu (the assignee) would have been the relevant fact, but the court rejected this contention.
- The court explained that animus is a subjective element concerned with the will of the person in possession: whether that person intended to treat the property as their own adverse to the title-holder. That intention does not turn on which third party's permission may have been present. Thus, whether permission came from Sagar Rai, Khedu Rai, or anyone else was immaterial if the person in possession lacked the intention to prescribe.
- On the basis that the requisite animus was lacking (either because possession was permissive or otherwise not hostile), the court concluded that adverse possession had not been established and upheld the dismissal of the suit.
Holding and Implications
Holding: The court rendered the following dispositive ruling:
Appeal dismissed.
The court further directed that, in the special circumstances of the case, the parties shall bear their own costs.
Implications
Direct consequence: The plaintiff's challenge to the 20-3-1919 compromise (and the related claim to title by adverse possession) failed; the dismissal of the appeal leaves the earlier findings intact, and each party will bear its own costs.
The opinion did not purport to establish any new legal precedent beyond applying established principles (in particular, the requirement of animus for adverse possession). The court's decision turns on application of existing authorities to the facts and the absence of the requisite intention to prescribe.
1. This is a plaintiff's appeal arising out of a suit for declaration. The facts of this case are rather complicated but Mr. Pande, the learned Counsel for the appellant, has stated, them with great clarity. They are briefly these:
2. One Swarath Ri died in 1874, leaving a widow Mt. Lachmina, a son named Rm Daur and a daughter Mt. Bihansa. Ram Daur's wife was Mt. Rano. Bihansa was married to a man named Raji Rai, who had, by her two sons - Sagar Rai and Banarsi Rai - defendants 1 and 2 in this action. After Ram Daur's death the property came in the possession of Mt. Rano. After her death, it went to Mt. Lachmina.
3. Some time, prior to 1890, Mt. Lachmina sold half of the estate to Mahabal, the father of the plaintiff. On 11-4-1897 she executed a mortgage by conditional sale in favour of Raji Rai, the father of defendants 1 and 2 and the predecessor in title of defendants 3 to 10. She died in 1910. In 1917, Mt. Bihansa brought a. suit for cancellation not only of the sale in. favour of Mahabal but, curiously enough, of the mortgage by conditional sale in favour of her husband. Both these transactions were challenged. on the ground of want of legal necessity. That suit was resisted on the ground that Ram Daur, and not Swarath Rai, was the last male owner and Mt. Bihansa, as the sister, had no title. Legal necessity was also pleaded. It might be mentioned here that the Act which improved the status of sisters, had not come into existence by then. The suit was dismissed.
4. In 1919 a suit No. 26 of 1919, was brought by Mahabal Rai for a declaration that the mortgage by conditional sale dated 11-7-1893 was not justified by legal necessity. He claimed to be the nearest reversioner and in this capacity, he instituted the suit. One of the defendants was a man named Khedu who had acquired the rights of defendants 1 to 10, i.e., of the mortgagees, under an assignment of 13-3-1919. This suit was compromised on 20-3-1919. According to this compromise, Mahabal Rai relinquished all his rights in the property in favour of Khedu for a sum of Rs. 60/-.
5. The present suit was instituted by the plaintiff, after the death of his father Mahabal Rai, in 1942, for a declaration that the compromise of 20-3-1919 was vitiated by fraud and that he continued in possession ever since, notwithstanding the compromise and notwithstanding all that had happened prior or happened subsequent to that date.
6. The defence, in brief, was that the compromise was not vitiated by fraud nor could the plaintiff prove his possession. The learned Munsif dismissed the suit. The lower appellate Court agreed with the learned Munsif on the question of fraud, but disagreed with him on the question of possession. It found that this possession was with the permission of Sagar Rai, one of the sons of Raji Rai, the mortgagee by conditional sale under the deed of 11-7-1893.
7. In second appeal before me, Mr. Pande, the learned Counsel for the appellant, contends that in the absence of clear evidence of permission his possession must be deemed to be adverse. He relies on the classical definition of adverse possession: nee vi nee clam nee precario Secy. of State v. Debendra Lalkhan 21 A.I.R. 1934 P.C. 23. His argument is that this possession answered all the tests laid down by their Lordships of the Judicial Committee, i.e., it was adequate in continuity, adequate in publicity and adequate in extent.
8. It is no doubt so but their Lordships were only attempting to define the outward symbols of that possession. Their Lordships have said nothing which comes in conflict with or militates against the fundamental principle of law that I there can be no adverse possession without an animus to prescribe In Lalit Kishore v. Ram Prasad 30 A.I.R. 1943 All. 362 which was no doubt a case of easement, the learned Judges made an observation which will be of assistance in the case before me. Say they : "physical acts must be accompanied by the requisite animus or intention."
9. The question was considered their Lordships of the Judicial Committee in the well known case in Bibhabati Devi v. Ramendra Narain Roy 34 A.I.R. 1947 P.C. 19. The facts were briefly these: One Ramendra Narain, tie husband, was treated. as dead and his wife remained in possession. After about thirteen years he came on the scene and brought a suit for possession of the estate on the allegation that he was wrongly treated as dead, he was alive. One of the grounds on which the suit was resisted was. limitation. It was pleaded by the wife that she had remained in possession for more than twelve year's and had prescribed complete title. Their Lordships rejected the contention on the ground that, she never thought that her husband was alive. She, on the other hand, remained in possession under the impression that the husband was dead, she had, therefore, no animus to prescribe the absolute title. Lord Thankerton delivering the judgment observed thus:
Finally, the appellant rests on Article 144 and Section 23 of the Limitation Act of 1908. On the supposed death of the Second Kumar the appellant entered on her widow's estate in the undivided one - third share of the Bhowal estate, which belonged to her husband and she thereafter enjoyed it - after 1911, through the Court of Wards - for a period much exceeding twelve years, and the question is whether her possession was adverse to her husband, he being in fact alive. Possession in fact must be adverse to a living person, and, as she was possessing under a mistake as to his death, it is difficult to see how she can claim that by her possession she was asserting a right adverse to one whom she regarded as dead.... It might well be argued that, according to the Hindu law the wife is half of the husband, but their Lordship prefer to base their rejection of the appellant's contention on the broader ground that her possess on was not adverse to a husband, whom she regarded as dead.
This is only an amplification of the principle of law already emphasised that there can be no adverse possession without an animus or intention.
10. The learned Counsel for the appellant also contends that the Court below has found that the appellant or his father was in possession with the permission of Sagar Rai, one of the sons of Raji Rai, but the proper person whose permission was necessary or could have changed the character of the possession was Khedu Rai. This argument, though plausible, is, to my mind, not sound. The question of animus is a question of personal equation and all depends upon the will of the person in possession. It has no relation to anyone else.
11. It is, therefore, immaterial whether the appellant or his father was in possession with the permission of Sagar Rai or of Khedu or of anyone else; so long as the intention to prescribe is lacking, there can be no question of adverse possession. I, therefore, dismiss the appeal. In the special circumstances of the case, I direct that the parties shall bear their own costs.
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