Sampat Magho Tayade v. Surajmal Kaluram Marwadi

Mudholkar, J.:— This is an appeal by defendants Nos. 1 and 2 to a suit for possession of S. No. 24 of mauza Mhasla Khurd, taluk Chikhli, district Buldana.

2. The aforesaid field admittedly belonged to one Chhogmal who died in the year 1926. After his death his widow Smt. Ullahasbai came into possession of this field. She died on December 14, 1936. According to the plaintiff Ullahasbai was in possession of this field right till her death. The plaintiff, who claims that his father Kaluram was a brother of Chhogmal, alleges in his plaint that the field was the self-acquired property of Chhogmal and that after the death of Ullahasbai he was entitled to succeed to it as the next reversioner. He, therefore, instituted the suit, out of which this second appeal arises, on August 2, 1947. The plaintiff has further stated in the plaint that he learnt that after the death of Ullahasbai her sister Zumkabai took wrongful possession of the aforesaid field, that later she sold it to her son-in-law Jeoraj, who in his turn sold it to Rekchand Ratanlal. Rekchand sold it to two persons Abdul Sattar and Sk. Umar and that these two persons sold it to defendants Nos. 1 to 4 by a sale-deed, dated January 13, 1948. He, therefore, sued them for obtaining possession of the field.

3. The defendants raised a number of pleas of which mention need be made only of the plea of adverse possession. According to them, Ullahasbai and her suecessors-in-title have been in adverse possession of this field uninterruptedly, continuously and openly for over 12 years and that the plaintiff's suit is barred by time. They also alleged two facts, viz. that Ullahasbai adopted a son by name Pannalal with whom she had entered into a family arrangement by virtue of which the field in question was given to her absolutely and that Ullahasbai sold it to Motilal, the husband of Zumkabai. It may, however, be mentioned that the lower appellate Court has held that no adoption took place, that no family arrangement was entered into between Ullahasbai and Pannalal and that the alleged sale by Ullahasbai to Motilal has not been proved at all. It may, however, be pointed out that in his evidence the plaintiff has made the following statements:

“Kalooram and Chhogmal were joint and there was no partition of ancestral property. The property in the village belonged to me and Chhogmal and similarly the property in Desh also similarly belonged to both. I became the owner of the property after the death of Chhogmal and Ullahasbai had only a right of maintenance.”

4. The question is whether in view of these statements made by the plaintiff in his evidence his claim must be dismissed.

5. It is no doubt true that what the plaintiff has stated in his evidence is at variance with his pleadings. At the same time it must be borne in mind that it is open to the defendants to treat these statements as admissions made by the plaintiff and use them against him. From this it would follow that Ullahasbai got no right to obtain possession of this field or to remain in possession thereof after the death of Chhogmal, and that the only right which she had on the date was to claim maintenance from the plaintiff out of the joint family property belonging to him and Chhogmal.

6. As pointed out by their Lordships of the Privy Council in Sham Kcer v. Dah Koer . 1902 I.L.R 29 Cal. 664, S.C 4 Bom. L.R 547, P.C where a widow is only entitled to maintenance out of the estate, her possession thereof or of any part thereof would be adverse to the person who is in law entitled to it unless, it could be shown that possession was the result of an arrangement between him and the widow.

7. Shri Mandlekar refers to a decision in Rajah Chattar Singh v. Diwan Roshan Singh . [1946] Nag. 159. and contends that even if the possession of Ullahasbai was adverse to the plaintiff, she being a qualified heir the estate obtained by her would not be an absolute estate but a qualified estate. In that case what was held by the learned Judges was that when a woman governed by Hindu law enters on an estate as a qualified heir she cannot subsequently prescribe by adverse possession an absolute title to it and that the right of the reversioner is not extinguished because the reversioner is unable to take possession during the life of the woman and prescription cannot, therefore, run against him.

8. In the present case, as already stated, the plaintiff's admission is to the effect that Ullahasbai was no heir at all, the estate being joint, and therefore, there was no question of her being in possession of the estate after her husband's death as a qualified heir. That decision, therefore, is of no assistance to the plaintiff.

9. The decision of their Lordships in Lajwanti v. Safa Chand . 1924 L.R 51 I.A 171, S.C is also distinguishable. In that case it was held that a title acquired under s. 28 of the Indian Limitation Act, 1908, through adverse possession by a widow, who claims and holds a widow's estate, inures to the estate of her deceased husband, and descends upon her death accordingly. Adverting to this decision, it was held in Suraj Balli Singh v. Tilakdhari Singh,4 which was followed in the Nagpur decision above quoted, that their Lordships did not, in Lajwanti's case, say that the widow could not under any circumstances acquire any property for herself while holding her husband's estate, and that their Lordships held that the case related to a widow who entered into possession of her husband's estate as his heir. As pointed out in the Patna case what a Hindu widow acquires by adverse possession becomes her Stridhan and does not become an accretion to her husband's estate, unless it is shown that she took adverse possession of the property as representing her husband's estate. There was no allegation of this kind. A similar view has been taken in a number of cases, viz. Kanhai Ram v. Musammat Amri,5 Uman Shankar v. Musammat Aisha Khatun,6 Kali Charan v. Piari . 1924 I.L.R 46 All. 769. and Rikhdeo Tiwari v. Sukhdeo Tiwari.8 Indeed, in Lachkan Kunwar v. Manorath Ram . 1894 I.L.R 22 Cal. 445, P.C. it was found that a Hindu widow treated the estate to the possession of which she was not entitled as her own absolute property and it was held that the estate that she held was that of an absolute full proprietor and not the limited estate of a Hindu widow after the prescribed period of limitation was over.

10. Again in Satgur Prasad v. Raj Kishore Lal . 1919 I.L.R 42 All. 152, S.C 22 Bom. L.R 451, P.C their Lordships held that a widow can by adverse possession acquire an estate in full ownership.

11. I may also refer to the observations of their Lordships in Harigir Kisangir Gosavi v. Anand Bkarthi Vishnu Bharthi . 1925 21 N.L.R 127. which are to the following effect (p. 132):—

“Now, with regard to the point taken that the plaintiff's suit was barred by limitation, it is contended that Ram Krishna had usurped upon Vishnu and had acquired a title by adverse possession against him. But the plaintiff deduces title from Ram Krishna himself on the ground that he as the adopted son of the brother is the latter's nearest male heir. If Ran Krishna and Vishnu had been joint in estate, Vishnu ought to have succeeded to the property now in dispute as surviving co-parcener, and in that case Sita, the widow, ought not to have taken possession, and having taken possession she would have acquired for herself and for the present appellants as her alienees a title by adverse possession.”

12. In the instant case, it may be mentioned that the plaintiff was living in Rajasthan even prior to the death of Chhogmal and that he never came forward to take possession of the property which he now alleges to be joint family property. Even after the death of Chhogmal he allowed Ullahasbai to remain in possession of the property and deal with it as she liked. It is asserted by the defendants that she was in possession as an absolute owner. There is no reason to think that in the circumstances she had any animus, particularly if the fact is borne in mind that she had no right whatsoever to be in possession of the property. It is not disputed that she and those who claimed through her have been in open and continuous possession of this property for over 12 years since the death of Chhogmal. It would, therefore, follow that at the expiry of 12 years after the death of Chhogmal, Ullahasbai acquired absolute title to the property by adverse possession. In this view I hold that the plaintiff is not entitled to claim possession of this property.

13. Accordingly, I allow the appeal, set aside the decree of the lower appellate Court and restore that of the trial Court.

14. Costs throughout will be borne by the plaintiff.

15. Appeal allowed.