Manohar Pershad, J.:—* Respondent No. 7, Veeramma, transferred the suit lands to the appellant through a sale-deed, dated, 9th March, 1950. Respondents 1 to 6 filed a suit O.S No. 10 of 1950, in the District Court of East Godavari at Rajahmundry for declaration that the sale-deed Exhibit B-2, dated 19th March, 1950, executed by respondent 1 in favour of the appellant was not valid and binding on them. This suit of the respondents has been decreed by the Principal Subordinate Judge. The alienee has now come up in appeal.

2. The brief facts are: One Jammi Rayudu, the original ancestor of the plaintiff-respondents 1 to 6's family had three sons, Baliah, Narsiah and Appanna. Baliah had three sons by name Rayudu, father of respondents 1 to 4, Veeraswamy, father of respondents 5 and 6 and Somanna, seventh plaintiff and sixth respondent herein. Jammi Rayudu acquired extensive lands including the suit lands. On the death of Rayudu, the suit lands and other remaining properties devolved on his three sons, Baliah, Narasiah and Appanna who constituted a joint Hindu family. Appanna died 50 years ago undivided and intestate leaving behind him his widow Bagamma. Narsiah also died in about 1904 undivided and intestate leaving behind him his widow Veeramma (respondent 7). After the death of Appanna, his widow, Bagamma claimed maintenance. She was given 4 acres in R.S No. 78 and another 4 acres in R.S No. 54/2 in Rajahmundry village to be enjoyed by her for life in lieu of maintenance and to be reverted to the family after her demise. After the death of Narsiah, his widow Veeramma, respondent 7 also demanded maintenance. At the instance of elderly people, the plaint schedule lands were given to her in lieu of maintenance to be enjoyed by her for life and to be reverted to the family after her death. It is alleged that respondent 7 has no right to sell or dispose of the property, that appellant and respondent 7 having conspired together brought into existence the alleged sale-deed, dated 19th March, 1950 that the said sale is not for legal necessity or benefit of the estate and that therefore is not binding on respondents 1 to 6 who are the reversioner. Respondents 1 to 6 further stated that the sale price was too inadequate. It was also alleged that even assuming that Narsiah died divided in status and the suit lands represented Narsiah's share in the family properties, since Narsiah died issueless and without making any testamentary disposition, the suit lands devolved on respondent 7 with the limited rights of a Hindu widow only and she was bound to enjoy the same till her lifetime. The plea of respondent 7 and the appellant in their written statement was that the sale in question was valid and for adequate consideration. They denied that Baliah and Narsiah were undivided by the time of the death of Narsiah and stated that late Narsiah was divided with his brother Baliah prior to 1902 and was in possession, of about 15 acres, 50 cents which fell to his share, that on 5th May, 1902, the late Narsiah executed a will bequeathing to the seventh respondent with absolute rights his properties, his land, etc. Respondent 7 further denied that she ever demanded any maintenance from respondents 1 to 6 and stated that she was in possession of the suit properties in her own right. She however, denied that her possession was in lieu of maintenance.

3. The Principal Sub-ordinate Judge framed six issues and on the evidence produced by the parties the Court held that partition between Narsiah and Baliah was not proved and that respondent 7 was in possession of the suit lands under an agreement by which she was to enjoy the same in lieu of her maintenance. It further held that the alleged will was a concocted document and the sale-deed was a colourable transaction not binding on the reversioners. In the result, the Principal Subordinate Judge passed a decree in favour of the plaintiffs declaring that the sale-deed was not valid and binding on the reversioners.

4. The learned counsel for the appellant has advanced various arguments. The first argument advanced is that the Court below has erred in declaring that the sale-deed, dated 19th March, 1950, executed by the seventh respondent in favour of the appellant was not true, valid and binding on the reversioners. The next contention advanced is that the Court below has fallen into an error in holding that Narsiah, husband of respondent 7 died undivided. He contended that the evidence on record sufficiently goes to prove that he had separated somewhere about 1902. It is next contended that the Court below has not relied on the evidence produced on behalf of the respondents 1 to 6 to prove that, the suit land was given to respondent 7 in lieu of maintanance, and erred in holding that the seventh respondent must have come into possession of the suit land under arrangement relying on the case of Maladi Venkatappayya v. Jammalagudda Venkatasubbiah . 1907 16 M.L.J 352. It is further urged that he Court below erred in holding that respondent 7 had limited rights of a Hindu widow. It is further urged that the evidence produced on behalf of the appellant sufficiently proves that Narsiah executed a will in favour of his wife and the lower Court erred in holding that the will was a concocted document. Lastly, relying on section 14 of the Hindu Succession Act, 1956, it is contended that Veeramma, respondent 7 acquired an absolute estate.

5. On behalf of the respondent-plaintiffs, it is contended that the Court below had rightly held that the sale was a colourable transaction. It is next contended that the lower Court is right in holding that Narsiah, husband of respondent 7 died as an undivided member. It is further urged that it is erroneous to think that Veeramma, respondent 7 acquired an absolute interest. He urges that she was put in possession under an agreement in lieu of maintenance, and even if the alleged agreement is not proved, she being a Hindu widow would only take a life estate. Adverting to the argument relating to the execution of the will by Narsiah, it is contended on behalf of the respondents that the Court below has rightly come to the conclusion that the will was a concocted document. As regards the argument relating to section 14, Hindu Succession Act, 1956, it is contended that as the widow is not in possession, the said provision does not apply.

6. The points that fall for determination are:

(1) Whether the seventh respondent's husband died divided from respondents 1 to 6?

(2) Whether suit property was given to respondent 7 in lieu of maintenance to be enjoyed for her lifetime?

(3) Whether Narsiah executed a Will bequeathing his property to his wife?

7. In so far as the first point is concerned, the case of the appellant and respondent 7 is that Narsiah became divided with his brother Baliah prior to 1902. Admittedly there is no document at all to evidence partition between Baliah and Narsiah. The evidence is purely oral. Besides the seventh respondent, D.Ws 1 to 3, 5 and 8 have been examined to speak of the fact of partition. Of these, D.W 1 is a carpenter by profession, who states that after Appanna's death, Narsiah and Baliah lived jointly for sometime and later Narsiah came and told him that he would pay his share of remuneration due to him saying that he divided with his brother Baliah. This witness is not a resident of the village and is not related to the parties. His evidence, therefore, cannot be accepted. The trial Court also has not accepted this deposition.

8. D.W 2, the other witness, says that after the death of Narsiah, Baliah, used to cultivate the lands separately. This witness has not given any reasons. He does not give any particulars of division or separate cultivation of the lands. The Court below has not accepted his evidence. We too, are not inclined to accept the same.

9. D.W 3 is a tapper of trees, who does not belong to that village. He migrated from Kadium to Katteru. He was not present when Narsiah and Baliah divided. He further says that D.Ws 1 and 2 and an elderly gentleman of Ponthamuru, a Kamma gentleman by name Kutchipudi Kristnamma were present at the time of partition. This witness is not able to say as to how much land each sharer got. He is not related to the parties. The Court below has not believed his deposition and we also oo not see any reason to differ from the view of the Court below.

10. The next witness is D.W 5. She says that as soon as she joined her husband the very next day, she started a separate mess, and then and there, the lands were divided and that she is ??? the land and paying taxes herself. She also speaks to the fact of her husband executing a Will in her favour. In her cross-examination, she says that there was no dispute among the ladies, that there is no reason for separation, that there are no documents to evidence partition, and that she heard that the panchayatdars divided the lands and she got 16 acres.

11. D.W 8 is the brother of D.W 5. He says that he knows that his brother-in-law and Baliah had become divided and that after the death of his brother-in-law he has been managing the estate on behalf of his sister. He also speaks to the fact of his brother-in law executing a Will. The witness is not personally aware of the fact of division.

12. The evidence discussed above, in our opinion, is not sufficient to prove that Narsiah has separated from his brother Baliah; but it can well be said from this evidence that parties were living separately and messing separately.

13. The nest point that falls for consideration is whether the suit property was put in possession of respondent 7 in lieu of maintenance. The plaintiff-respondents rely on Exhibits A-2, A-3 series, A-5, A-6, A-10 (a), A-10 (b), B-4 and the oral testimony of P.Ws 1 to 3.

14. Exhibit A-2 is the new Digglot, which shows Baliah's sons as registered holder of the suit lands. Exhibit A-3 series are tax receipts paid by Jammi Rayudu, one of the plaintiff-respondents. Exhibit B-4 is the chit receipt book under which D.W 8 paid kist for the land in the possession of the seventh respondent during the time of his management. The name of the seventh respondent appears from 1944 onwards. The karnam has not been examined to show that Veeramma paid kist in her own right. Exhibits A-5 and A-6 are two sale-deeds which are executed by the present plaintiffs, one in favour of Polisetti Sambamurthy and the other in favour of Sri Kumara Venkatareddi Naidu. In these sale-deeds, the northern boundary is shown as the site given to the junior uncle's wife for maintenance. The respondent-plaintiffs rely on those documents in support of their contention that respondent 7 is only a maintenance-bolder. D.W 4 is the scribe of these documents. In re-examination he says that the portions of the document which are marked as Exhibits A-5(a) and A-6(a) refer to Bagamma. The Court below has held that Exhibits A-5 and A-6 could not be relied upon in proof of the fact that the first defendant is a maintenance-holder. We are also of the same view.

15. The next set of documents are A-10 A-10(a) and A-10(b). These are rough pattas granted to the plaintiff-respondents for the suit lands. They contain the present survey number and also the old survey numbers. These do not contain the name of Veeramma. The suit lands from part of the patta numbers 8, 33, 106 and 223. In patta 8, in the detailed list of the holders, the names of the plaintiff-respondents are shown. A reference to the Digglot Register of 1903 shows the names of the three brothers. The contention of the respondents is that from a comparison of the old and new Digglot Registers re id with the rough pattas, the only inference that could possibly be drawn is that the three brother lived jointly in or about 1903. It is also contended that if Narsiah had separated his name would have been registered as pattadar of the land which fell to his share and after his death Veeramma's name would have appeared. This also goes to negative the contention that Narsiah was divided. The entries in the Digglot Register and the rough pattas granted to the plaintiffs also supprt the contention of the respondent. Against these, there is the evidence that cists were paid separately by the parties. The documentary evidence alone, in our opinion, is not sufficient to conclusively establish that they were joint.

16. Now, we have to see how far the oral evidence produced by the parties supports the documentary evidence and the contention of the parties. P.W 1 speaks to the arrangement by which the seventh respondent was given the suit-lands. He says that Narsiah was joint with his brothers even when Appanna was alive, that Veeramma raised a dispute after Narasiah's death and brought some elders from her father's village and she was given 15 acres of land for her lifetime. He also said that he cultivated the land of Jammi people for 2 years after the death of Narsiah. In cross-examination, he says Veeramma was given land 8 months after her husband's death, that he is living by cooly, and that he drives municipal rubbish carts. P.W 2 is another witness who says that Narsiah was living jointly with his brother Baliah that after Narsiah's death, dispute arose and Veeramma wanted some arrangement to be made for her. She was given 15 acres of land with life interest. In cross-examination, he says that Veeramma raised a dispute, his father was called and not himself and he does not personally know where the 15 acres of land were situated. P.W 3 is the seventh plaintiff. He says that they gave 8 acres of land to Bagamma and 15 acres of land to Veeramma, but he does not say that it was given in lieu of maintenance.

17. Against this evidence, there are the depositions of D.Ws 1 to 3, 5 and 8 who depose to the fact of separate messing, separate cultivation. The evidence produced on behalf of the plaintiff-respondents to show that the land in question was given to the seventh respondent in lieu of maintenance is not satisfactory and convincing.

18. The learned counsel for the respondent relying on the undermentioned facts contended that those would go to prove that Veeramma was put in possession of the lands in lieu of maintenance. The points raised are:

(1) that the arrangement is similar to that made for Bagamma;

(2) that in both the cases, it is a grant of land;

(3) that Veeramma has been in possession since a long time, i.e, since 1905;

(4) that there was nothing to show that her possession was ever disturbed;

(5) that the total estate is 80 acres and she is given only 15 acres, 26 cents;

(6) that mutation of the name has not been made in her name and

(7) there is nothing to show that she dealt with the property as absolute owner or asserted her title as such.

19. We are not prepared to accept the contention of the learned counsel. The fact that Bagamma and Veeramma were both given lands, that mutation of the names has not been made in their respective names, that their possession has not been disturbed or that the agreements were similar are not circumstances leading to the inference that the grant was in lieu of maintenance unless there is some positive evidence. Further the fact that Veeramma got only 15 acres and 26 cents is also not a circumstance pointing to that agreement. First of all, there is no clear proof that the total estate is 80 acres excepting the solitary statement of plaintiff 7 as P.W 3. Even if we accept that the total extent is 80 acres, after deducting 8 acres of land given to Bagamma, still about 72 acres remain. Of these only 15 acres, 26 cents were given to Veeramma. It may be that the elders who settled the dispute gave 15 acres, 26 cents to Veeramma taking into account the nature of the lands, and the reeds and necessities of the family members. There may be other considerations also for giving a lesser share. It is next contended on behalf of the respondent that Bagamma was a material witness and her presence at the time of the agreement is proved, that the appellant took out a commission but did not examine, and that is sufficient to raise a presumption against the appellants. We are not inclined to accept this contention either for if it was a fact, as is contended that Bagamma was a material witness, the respondent could have examined her, on their behalf. We are, therefore, of the opinion, that the evidence produced on behalf of the plaintiff respondents is not sufficient to hold that the suit property was given in possession of respondent 7 in lieu of maintenance.

20. The last point is the execution of the Will by Narsiah. This will is purported to have been executed by Narsiah on 5th May, 1902. The attestors and tie writer of the Will are no more. Of the defendants' witnesses, D.Ws 5 and 8 are the only witnesses who speak to the fact of executing the Will. D.W 5 is the seventh respondent herself. She says that her husband executed a Will and gave it to her in cross-examination, she says the Will was executed in the outer piano the house and she was cooking inside and she wrapped it in a white cloth and kept it in a wooden box and gave it to the 2nd defendant. D.W 6 her brother also says that hisbrot her-in-law executed a Will and her sister gave the Will to him 20 years back to be kept when her house caught fire. Both these witnesses do not speak to the fact that Narsiah put the signature on the Will in their presence. Admittedly, D.W 8 was not present at the time of the execution of the Will. This Will was not shown to any other person in authority during the long period of about 48 years. There are certain improbabilities which go against the execution of the Will. In the Will, there is a direction that Veeramma should get herself registered as pattadar. There is nothing on the record to show that any application was filed before the Revenue Authorities. On the other band, the entries show the continuance of original names. D.W 8 admittedly used to stay in the house of his sister. According to him, he came to know of the execution of the Will after hearing from others and not from Narsiah. It is admitted that the house in which the seventh respondent was living caught fire on two occasions. It is strange that in spite of this, this document remained safe. This Will was not filed along with the written statement. The counsel for the plaintiff-respondents filed a memorandum A-8 for production of the Will. Even then it was not filed. The second defendant who was examined as D.W 7 stated that he kept the Will all along with him and he gave it to the pleader along with a photographic copy of the Will. No explanation is forthcoming as to why it was filed so late. It is said that this Will was shown to a pleader and karnam, but none have been examined. No attempt has been made to prove the signatures of the attestors to the Will. On a careful consideration of the evidence, we agree with the opinion of the trial Court that the evidence produced does not go to establish that Narsiah executed a Will.

21. The result of the above discussion is this. It is not proved by the plaintiff-respondent that the suit land is given to respondent 7 in lieu of maintenance. It is also not proved sufficiently that Narsiah and Baliah have separated and divided the properties. Admittedly, the seventh respondent was in possession since 1904. The question arises as to what would be the nature of her possession. It is contended on behalf of the appellants that when the plaintiff-respondents failed to prove that the land in question was given to the seventh respondent in lieu of maintenance, her possession would not be that of a qualified owner under the Hindu Law. In other words, it is contended that she acquires title by adverse possession. Reliance was placed on the cases of Bapanavya v. Peddichalamaiya and Kuppuswamy v. Thiruvengada Thatachari . 1911 1 M.W.N 314.. On behalf of the respondent relying on the cases of Malladi Venkatappayya v. Jonnalagudda Venkatasubbiah . 1906 16 M.L.J 352., Mt. Parbati v. Ram Prashad . A.I.R 1933 Oudh 92. and Desa v. Dani . A.I.R 1929 Lah. 327., it is contended that normal presumption under the Hindu Law is that she takes a life estate and in the absence of any evidence that she asserted her title, the question of adverse possession does not arise.

22. An identical question had arisen in the Hyderabad High Court in the case of Gunde Rao v. Venkatamma . A.I.R 1955 Hyd. 3.. It was held by majority of which one of us was a member that if a Hindu widow not entitled to inherit an estate enters into possession of that estate and remains in possession for over the statutory period, the nature of her estate:

(a) where she asserts a title as an absolute owner from the very beginning of her possession, will be an absolute estate and

(b) when she does not assert her absolute title, it does not become her absolute property, but becomes an accretion to the estate of the last male owner.

23. The view taken by the Full Bench of the Hyderabad High Court is different from the view taken by the Madras High Court, and as we still, hold the same view and there is great divergence of opinion in the other High Courts and the Privy Council, we feel it is better if this question of law is decided by a Full Bench.

24. We, therefore, refer the following question of law to a Full Bench:

(1) Where, a Hindu widow, not entitled to inherit an estate, enters into possession of the estate and remains in possession for the statutory period, what would be the nature of the estate taken by her—

(a) in a case where she asserts her title as an absolute owner, and

(b) where she does not assert her absolute title.

25. The file be placed before the Hon'ble the Chief Justice for formation of a Full Bench.

[In pursuance of the above Order, the Appeal came on for hearing before a Full Bench.]

Chandra Reddy, C.J:— The following question has teen referred to a Full Bench on the ground that there is a conflict of opinion between the view taken by the Hyderabad High Court and the rulings of the Madras High Court:—

“Where, a Hindu widow, not entitled to inherit an estate, enters into possession of the estate and remains in possession for the statutory period, what would be the nature of the estate taken by her—

(a) in a case where she asserts her title as an absolute owner, and

(b) where she does not assert her absolute title”.

27. The material facts giving rise to this question may be briefly related.

28. One Rayudu left behind him three sons Baliah, Narsiah and Appanna and considerable properties. Appanna died nearly half a century ago undivided and intestate survived by his widow Bagamma. Narsiah also died some time later an undivided member without issue, him surviving his widow Veeramma the, seventh respondent According to the plaint averment, after the death of her husband, the seventh respondent demanded maintenance and in lieu thereof the plaint scheduled lands were put in her possession. Contrary to this arrangement she alienated the properties in dispute to the appellant it is to avoid the sale that the present suit has been laid.

29. This claim was resisted by the appellant and the seventh respondent on the defences that Narsiah became divided from the rest of the family during his lifetime and that he left a will bequeathing his properties to the seventh respondent. They also denied that the possession of the seventh defendant was in lieu of maintenance.

30. The trial Court found issues relating to the division and the execution of the will against the defendants. It was also decided by it that the seventh respondent was given possession of the lands to be enjoyed by her in lieu of maintenance.

31. The alienee who was aggrieved by this judgment has preferred the present appeal. When the appeal came on for hearing before the Bench consisting of Justice Manohar Pershad and Justice Kumarayya they affirmed the finding of the trial Court as to the status of the family as also the execution of the will, but they disagreed with the trial Court on the point whether the seventh respondent came into possession of the suit lands under an arrangement. They came to the conclusion that it was not proved by the plaintiff that the suit land was given to the seventh respondent in lieu of maintenance. This led up to the question as to the nature of her possession, namely whether it was that of a qualified owner or an absolute owner. As there was divergence of judicial opinion on this matter it has been referred to a Full Bench.

32. This question has received judicial attention in the Privy Council and also by several other High Courts in India.

33. We may first refer to the pronouncement of the Privy Council in Lachhan Cunwar v. Manorath Ram. There a Hindu died leaving a widow Musamat Jit Kunwar and also a son. The latter died survived by his widow Musamat Jit Kunwar a few years after his father. Jit Kunwar took possession of the property left by her husband either during the son's lifetime or on his death and remained in possession till she died, having held it for the statutory period, in spite of the claim of her daughter-in-law. In a suit by the reversioners on her death, the question arose as to the capacity in which Jit Kunwar took possession of the property. On the evidence on record, their Lordships thought that Musamat Jit Kunwar treated the estate as her absolute estate and that she did not regard herself as a qualified owner. It was also observed that

“unless it were clearly shown that when Jit Kunwar took possession she professed to do it claiming only a limited estate of her husband, the contention on behalf of the reversioners was untenable”

34. This principle was affirmed in Shamkoer v. Dah Koer. On the death of a member of a joint Hindu family governed by Mitakshara Law, his widow and that of his son who predeceased him took possession of some property of his and subsequently assigned it to a third party. The reversionary heirs brought a suit to avoid this assignment and for possession. When the matter went up ultimately before the Judicial Committee of the Privy Council, the plaintiffs were non-suited on the ground that the possession of the widows was adverse to the plaintiffs since it was not shown by them that it was the result of an agreement amongst the parties. It was laid down by their Lordships that since either of the widows was not entitled to anything more than mere maintenance their possession would be adverse to the reversioners if the latter failed to establish that possession was given to them under an arrangement.

35. Our attention was drawn to another ruling of the Privy Council reported in Satgur Prasad v. Raj Kishore Lal. We do not derive much assistance from this case as it turned on the character of the estate acquired by a Hindu widow who held exclusive possession of her husband's estate asserting open title. In that situation it was decided by their Lordships that the property became her absolute property, that she was advise possession of the estate as against the reversioners and perfected absolute title to the property.

36. We may now turn to the decisions of the Madras High Court, the earliest of them being Bapanayya v. Peddi Chelamaiya The proposition laid down therein was that when a woman not entitled to succeed to an estate takes possession of an estate, prima facie she would take it as an absolute owner and it was for those who affirm that her possession was that of a qualified owner to prove it. Reliance was placed on Lachhan Kunwar v. Manorath Ram. Following this, another Bench of the same Court in Kuppuswamy v. Tiruvengada Thatachari, ruled that there was no presumption that the possession of a female member of a family who bad no right to take it as an heir was that of a limited owner and that it was for the person who sets up such a case to establish that she took only a widow's estate. To the same effect is the view of another Bench of that Court Venguduswamy Ayyar v. Narayanawamy Ayyar. It was laid down in definite and clear terms there that the widow had absolute interest in such property. This was again reiterated in Sekhara Rao v. Seshayya by Devadoss and Jackson, JJ.

37. A judgment of the Allahabad High Court in Ulfat Rai v. Sm. Kamala Devi is in conformity with that principle. It is not necessary to multiply authorities which are in accordance with this view. Almost all the High Courts have followed the same line of thought.

38. We may now refer to Lajwanti v. Safachand . 1924 47 M.L.J 935 on which great reliance is placed by the counsel for the respondents and which to a large extent formed the basis of the opinion of the majority of the Full Bench of the Hyderabad High Court which will be adverted to presently. There, one Jawaharmal died survived by his three wives and three brothers at that time, he had no children. Shortly after his death, one of the wives had a posthumous son and another had a posthumous daughter. But the son died after a few months. After the death of Jawaharmal the widows were entered in the settlement records as proprietors of a one-fourth share of certain properties. It appears from the entries in the relevant records that the widows were entered as proprietors of certain mouzhas in respect of their widow's estate of the estate of their late husband Jawharmal. In a suit brought by the reversioners to the estate, the controversy centred round the nature of the estate taken by the three widows. When finally the matter went up in appeal to the Privy Council it was decided that since the widows had no right to take possession of the property but only to be maintained out of the estate, their possession was adverse to the reversioners of the posthumous son of Jawaharmal and consequently their title to the property was extinguished. However as they possessed the properties as the widows of Jawaharmal, they had not acquired the property as stridhana but made them good to their husband's estate. It is manifest that their Lordships have not laid down as a proposition of universal application that in all cases where a female member of a family having no right to inherit property acquires title by adverse possession, she doer, it only as a qualified owner. It was in the peculiar circumstances of the case, namely, that the female members entered possession of the property in a particular capacity, i.e, as the widows of their husband, their title was delimited by that capacity. Their Lordships did not lay down any new principle or depart from their earlier decisions of the Privy Council. It is also worthy of note that a contention similar to the one pressed upon us was repelled by the Privy Council in Lachhan Kunwar v. Manorath Ram in these words:—

“The contention that although it might be barred as against the son and all persons claiming under him, the effect was only to extinguish those rights and to let in the rights of any person who would claim a reversionary heirs of Mangal does not appear to their Lordships to be supported by authority”

39. There is thus a distinction between a case where a female member takes possession asserting open title in her own right and a case where a woman makes an assertion in a particular capacity, such as representing her husband's estate. In the former case, she takes it as her stridhana or her absolute property and in the latter as a qualified owner and as an accretion to the estate of the person as whose heir the claim was made. In the latter event, the property descends on her death to the heirs of her husband or of the person as representing whose estate she claims the property.

40. This distinction is pointed out by the Allahabad High Court in Pragnarain v. Mathwa Prasad. In that case it was decided that a widow of an undivided brother holding joint property for more than twelve years would obtain title to the property with absolute rights by adverse possession and not a mere widow's estate. The learned Judges distinguished Lajwanti v. Safachand relied on by the reversioners on the lines indicated above.

41. Jagmohan Singh v. Prayag Narayan Singh has also emphasised this distinction. In the course of the judgment, it was remarked:

“But it is clear that if they were asserting an adverse title other than a title as widows of their deceased husband they would be asserting a title which after 12 years would give them a right to hold the property as a part of their stridhana……”

42. Mukh Ram v. Mt. Sunday and Chandra Bali Patak v. Bhagwan Prasad Pandey also furnish examples of the same rule. M. Venkatappayya v. J. Venkatasubbayya does not help the respondent as it is a case where the Hindu widow obtained possession of some property pursuant to an arrangement, i.e, in lieu of maintenance.

43. Next the learned counsel for the respondents called in aid Desa v. Dai Umro Singh v. Pirthi. Mst. Prabati v. Ram Prasad and Mahajan v. Mt. Purbho The first three are cases in each of which widows of a last male-holder entered possession of her husband's estate and continued to remain in possession after re-marriage for more than twelve years notwithstanding she forfeits her right to continue in possession of her husband's property by reason of the re-marriage. Yet it was decided that she would hold only a widow's estate ensuring to the estate of her deceased husband's estate. The same rule is extended to the case of un-chastity of the widow also as illustrated by the last mentioned case. The ratio decidendi of all these cases is that the fact of re-marriage or of unchastity would not change the character of the possession as at its inception-in the absence of any assertion of absolute ownership subsequent to the re-marriage or unchastity.

44. A widow who enters possession of her husband's estate could not enlarge her estate unless she expresses her intention to hold it adversely to the husband's estate; otherwise she would remain in the same capacity in which she entered upon the land and would prescribe only to a widow's estate and not to an absolute estate. Thus, the true test is the character in which she steps into possession. Therefore, the cases cited for the respondents do not in any way advance their case. There is no warrant to import the concept of a Hindu widow's estate into a case of acquisition of title by adverse possession as urged by the counsel for the respondents despite the fact that the person who does it happens to be a woman. Her possession in that situation is exactly the same as that of any other trespasser. There is no presumption that when a woman acquires title to property it is only a limited one. It was laid down in Ram Gopal v. Nand Lal that the mere fact that the grant was for the maintenance and residence of a widow would not lead to the inference that it was the prima facie indication of the intention of the executant that it was only for life.

45. We will now allude to the Full Bench of five Judges of the Hyderabad High Court in Gunde Rao v. Venkatamma. Questions identical to the present ones arose, in that case. Justice Manohar Pershad with whom Justice Palnitkar concurred came to the conclusion that in absence of any evidence to indicate the animus of the widow who acquired title to the property by adverse possession it should be presumed that she claimed it as heir of some person of the family. The passage containing the opinion of the learned Judge may be usefully extracted:—

“Before deciding the possession of the widow as adverse it has to be seen, as stated above what was her animus possidendi; did she assert absolute title in herself or did she claim as heir of any person? Ordinarily, the presumption would be that she claimed as heir of some person of the family. The party who claims that she had anything more than a mere widow's limited interest will have to prove that she had an absolute title. This can be shown by some overt acts on the part of the widow.”

46. Further down, this is what the learned Judge remarked:

“To our mind it does not make any difference whether a widow enters into possession as a widow of the last male owner or as a widow of the Hindu family. In both the cases the governing factor would be the ‘animus’. If there is no evidence to show that the widow claimed the property as an absolute owner, the property would be deemed to be an accretion to the estate of the last male owner. If on the other hand there is any evidence on record to show that she asserted a title in herself, she can prescribe to the property an absolute interest which would be her stridhana property and not an accretion to a limited widow's estate.”

47. None of the decisions of the Madras High Court has been referred to in his judgment. Apparently, he was of opinion that Lajwanti's case has gone against the trend of prior decisions of the Privy Council. We have already said that it has not got that effect and it is not irreconcilable with the earlier ones.

48. Justice Siadat Ali Khan seems to have put it more as a matter of evidence though his ultimate conclusion seems to be in accordance with that of Justice Manohar Pershad. This is how the learned Judge has put it:

“And the question whether the widow was prescribing only for a limited estate or for an absolute estate must necessarily be determined on the facts of each case. The test to be applied viz., whether the widow acquired by prescription merely a limited right of a Hindu widow or an absolute title turns on the evidence indicating in what character she took possession of the property and in what character did she hold it. The question primarly is one of fact in each case. In other words, on general principles of law, the quality and extent of the right acquired by possession depends upon the claim accompanying it and upon the nature of the ‘animus possidandi’.”

49. The learned Judge added that a study of the case would show that where there was no evidence regarding the animus with which she prescribed, preference would be given to the ordinary presumption that a person in enjoyment of property was holding it adversely to the real owner and would acquire an absolute title. It is further evident from his opinion that the learned Judge was conscious of the distinction between Lajwanti's case and the other set of rulings. But his answers are formulated in the following words:—

“My answer will be that where a Hindu widow not entitled to inherit an estate enters into possession of that estate and remains in possession for over the statutroy period the nature of her estate—

(a) where she asserts a title as an absolute owner from the very beginning of her possession, it will be an absolute estate, and

(b) where she does not assert her absolute title, it does not become her absolute property but becomes an accretion to the estate of last male owner.”

50. The other two learned Judges, Justice Qamar Hasan and Justice Srinivasachari dissented from this view. In their opinion, the unreported judgment of a prior Full Bench of the same Court (Appeal No. 22 of 1337-F.) which is in consonance with that of the Madras Rulings is not open to any objection. They held that the possession of a widow was prima facie adverse and that the onus was on the reversioners to establish that the widow entered possession under an arrangement or an agreement and consequently was permissive and not adverse.

51. In a case where the animus could be collected from the overt acts of the widow, there can be no difficulty. If it appears that the female member asserted title to the property in her individual capacity she would obtain absolute title to the property. If, on the other hand, the material enables a Court to reach the conclusion that it was only in a limited capacity she was making the claim she would prescribe only for a qualified estate. Either of the two cases does not present any difficulty. It is only in cases where there is no evidence of the character of assertion, the difficulty arises and it is only in such a situation that the presumption indicated above will enable a Court to decide the nature and character of the estate taken by a female member. We think that the rule stated in the opinion of the majority of the Full Bench and which is opposed to the one embodied in the rulings of the Privy Council and of the Madras and other High Courts and also to a prior decision of a Full Bench of that Court is not correct.

52. Our answer to the question referred to us is as follows:

53. In the case where a Hindu woman not entitled to inherit an estate asserts her title as absolute owner, her title to the property is absolute. But where she does not assert her absolute title, still the nature of the title is the same, in the absence of evidence that she stepped into possession of the property in her right as heir of the last male holder or under an arrangement or an agreement.

Reference answered

54. This Appeal coming on for final hearing after the decision of the Full Bench befor Justice Manohar Pershad and Justice Kumarayya, the Court delivered the following Judgment:

55. Manohar Pershad, J.:— This appeal which arises out of a suit for avoiding the sale effected by 7th respondent, a widow in favour of the appellant had come up before us for hearing on a previous occasion. In our order, dated 27th November, 1957, which embodies the decision on all points of fact at issue, we had after careful consideration of the entire material on record, agreed with the conclusions of the trial Court that 7th respondent's husband died as an undivided member of the Hindu joint family of which respondents 1 to 6 are members, and that he did not execute any Will bequeathing his property to his wife as alleged by the appellant and 7th respondent. We however differed from the trial Court on the question that the suit property was given to 7th respondent in lieu of maintenance to be enjoyed for lifetime as alleged by the plaintiffs, respondents 1 to 6. This, in view of the fact that the widow was in possession since 1904 gave rise to the question as to whether by virtue of her long possession she became a qualified owner with a limited estate or an absolute owner of the suit property so as to pass effectively title to the transferee. As there was some conflict of authority, the following question was referred to the Full Bench:

“Where a Hindu widow not entitled to inherit an estate enters into possession of the estate and remains in possession for the statutory period, what would be the nature of the estate taken by her—

(a) in a case where she asserts her title as an absolute owner? and

(b) where she does not assert her absolute title?

56. The Full Bench has answered the question in the following terms:

“In the case where a Hindu woman not entitled to inherit an estate asserts her title as an absolute owner, her title to the property is absolute. But where she does not assert her absolute title, still the nature of her title is the same, in the absence of evidence that she stepped into the possession of the property in her right as the heir of the last male-holder or under an arrangement or agreement”

57. That being the position in law, the suit of the plaintiffs must fail. No doubt, the Court below has held that a major portion of consideration for the sale-deed in question is not proved, nor the writer or the attestors to the sale-deed have been examined but that does not in any manner alter the situation. Plaintiffs would have succeeded only if they had any legal interest in the property. Their right being negatived by the absolute title of the widow being established, they cannot call in question her alienation admitted by her. In the result this appeal is allowed the decree and judgment of the Court below are set aside and the suit of the plaintiffs is dismissed with costs. There will however be no order as to costs of this Court.

T.A.B

58. Appeal allowed.