Choudhary, J.:— These two appeals arise out of the same Judgment of the Court below. First Appeal No. 236 of 1958 is by the plaintiff Tilakdhari Rai. He instituted the suit for a declaration that he was the next reversioner to the estate of one Ganesh Rai and was entitled to the lands described in Schedules I and II of the plaint which had been attached under Section 146 of the Cr PC and that the defendants had no right, title or interest in the same. According to the plaintiff, his great (sic) great grandfather, Daswant Rai alias Manorath Rai, had a son, Balkhandi Rai, from his first wife, who had four sons, Chitbahal Rai, Man Rai, Gobardhan Rai and Ganesh Rai. Chitbahal had a son, Autar, who died leaving a widow, Adhikar Kuer, Man Rai died leaving widow, Malida Kuer, Gobardhan died unmarried Ganesh died leaving a widow, Dhanesra Kuer. The plaintiff, there fore, claims to be the nearest and sole surviving agnate of Ganesh Rai, who, according to him, died last. His case was that Ganesh died after the death of all his other three brothers and also after the death of Autar Rai, son of Chitbahal Rai, before the cadastral survey, and his widow, Dhanersra Kuer, was recorded in the survey papers along with the other two widows, Malida Kuer and Adhikaro Kuer. The names of these two widows, Malida and Adhikaro, according to the plaintiff, were got recorded for the, sake of consolation to them, though the properties in suit were inherited only by Dhanesra Kuer as a Hindu widow. Dhanesra died in Baisakh 1358 Fs. Thereafter, there was dispute under Section 145 of the Cr PC between the parties and in that proceeding the lands in suit were attached on the 4th of February, 1953, under Section 146 of the Cr PC. The plaintiff, therefore, filed the suit on the 31st of January, 1956, out of which these two appeals arise.

2. Defendant No. I in the suit is Parma Rai who claims to be the great great grand son of one Adit Rai who is said to be a nephew of Daswant Rai, though, according to the plaintiff, he does not belong to the family of Daswant Rai. According to the genealogy given by defendant No. 1 also, Balkanadi Rai is shown to have four sons, Chitbahal, Man, Gobardhan and Ganesh. A third genealogy has been set up by defendant No. 2, the deities, and the other defendants, who are trustees - of the properties gifted to the deities by Adhikaro, widow of Autar Rai, and Dhanesra Kuer, widow of Ganesh Rai. According to that genealogy also, Balkhandi had four sons, as named above. The contest between the plaintiff and defendant No. 1 was with respect to their being next reversionary heirs of the sons of Balkhandi Rai. According to the plaintiff, he was the next reversioner and the defendant No. 1 did not belong to that family at all, while according to the defendant No. 1, he was the next reversioner and the plaintiff did not at all belong to the family of Daswant Rai. According to the deities and the trustees, the one of the trustees, Meghnath Rai, defendant No. 2(c) was the reversioner, and not the plaintiff nor defendant No. 1. The deities, however, were concerned only with the properties described in schedule 1 to the plaint which had been given to them by a deed of gift dated the 12th of September, 1930, by the two widows, Adhikaro and Dhanesra, Malida having already died. The learned Subordinate Judge accepted the genealogy given by the plaintiff and held the plaintiff to be the next reversionary heir. The learned Judge also accepted the deed of gift as genuine and held it to have conferred a valid title on the deities. The suit with respect to schedule 1 properties, therefore, was dismissed inasmuch as according to the finding of the trial Court, the said properties were validly gifted to the deities. The suit with respect to schedule II properties was, however, decreed inasmuch as according to the finding of the trial Court, the plaintiff was the next reversionary heir and defendant No. 1 was a stranger to the family. The plaintiff filed First Appeal No. 236 of 1958 against the decree dismissing the suit with respect to Schedule 1 properties. Defendant No. 1 filed First Appeal No. 243 of 1958 against the decree with respect to Schedule II properties. Both these appeals were directed to be heard together and they were placed before us for being heard together.

3. In First Appeal No. 243 of 1958, however, a compromise petition has been filed between Parma Rai, defendant No. 1 appellant and Tilakdhari Rai, plaintiff, respondent No. 1. Argument has, therefore, been advanced only in first Appeal No. 236 of 1958. As the compromise petition deals with the properties which are the subject matter of litigation in First Appeal No. 236 of 1958 also, orders recording the compromise will have to be passed after the disposal of First Appeal No. 236 of 1958.

4. First Appeal No. 236 of 1958:

5. According to the case of the plaintiff, Ganesh, the fourth son of Balkandhi, was the last male holder, whereas, according to defendants 2, 2(b) & 2(c) Gobardhan died last. The success of the plaintiff, therefore, depends upon the determination of the question as to who out of the two brothers, Gobardhan and Ganesh died last. (His Lordship then discussed the evidence relating to the question in paragraphs 5 to 8 and proceeded). The finding of the learned Subordinate Judge that Gobardhan died after Ganesh and that Gobardhan was the last male holder of the suit properties is therefore, accepted as a correct finding.

6. On the above finding, the next question that arises is as to the nature of the title of the widows who were recorded in the survey record of rights after the death of Gobardhan. Neither of the three widows was a legal heir of Gobardhan and on his death, the plaintiff, who has been found to be the next reversionary heir, had the right to succeed to the inheritance left by Gobardhan. The plaintiff however, did not choose to put forward his claim to the inheritance for reasons best known to him. But the fact remains that, in spite of the three widows not being heirs of Gobardhan, they got possession of properties left by Gobardhan and continued to be in possession thereof for over twelve years. The Court below held that the possession of the widows to be adverse to the rightful owner and found that the widows acquired absolute title over the properties in suit by adverse possession. On this rinding, the Court below held that the widows (namely, the two executant-widows) had full right to make a gift to the deities, defendant No. 2, and the deities obtained a valid title with respect to the gifted properties. The question whether Gobardhan died last or Ganesh died last Is, therefore, of importance only for the purpose of schedule I properties which are the subject-matter of gift by the two widows, Adhikaro and Dhanesra. Counsel for the appellant had to concede that the three widows, coming in possession of the properties after the death of Gobardhan without being his heirs, were in adverse possession of the properties, and the finding of the learned Subordinate Judge in this regard has not been challenged.

7. But the real question raised by Counsel for the appellant is about the quality of the title acquired by adverse possession by these three widows. It has been submitted that, the widows having entered into possession on the pretext of being heirs, must be presumed to be prescribing for the limited right of acquiring a widow's estate, and not as absolute owners. It has been submitted that the intention of the widows is to be gathered from the circumstances of the case as to in what capacity they entered into possession of the properties and continued to be in possession thereof. It has been urged that at the time when Gobardhan died these widows could not be expected to have taken possession of his inheritance as trespasser with intent to prescribe absolutely against the rightful heir and they must have got into possession under an impression — though it may be a mistaken one — that they were the heirs of Gobardhan and they were to be in possession as his heirs. In these circumstances, it has been submitted that the intention of the three widows must be presumed to be entering into possession as limited owners holding widows' estate, and not as absolute owners. In support of this contention, reliance has been placed on certain observations made by Lokur, J., in Pandappa Mahalingappa v. Shivalingappa Murteppa, AIR 1946 Bom 193 to the following effect:—

“It is well settled that when the possession of a Hindu woman is adverse, it has to be decided what was her animus possidendi:— Did she assert an absolute title in herself or did she claim to hold as the heiress of any person? The latter would be the ordinary presumption and those who claim for her anything more than a widow's limited interest must prove since when she began to assert absolute title in herself. The test is always to be found in the origin of the widow's possession. When she enters on land under a title as heir, which is necessarily a limited title under the Hindu Law, very cogent evidence is necessary to show that she afterwards asserted a title as absolute owner.”

8. The above observation is based on the Privy Council case in Lajwanti v. Safa Chanda, 51 Ind App 171 : (AIR 1924 PC 121). Their Lordships of the Judicial Committee in that case made the following observation:

“It was argued that the widows could only possess for themselves; that the last widow Devi would then acquire a personal title; and that the respondent and not the plaintiff were the heirs of Devi. This is quite to misunderstand the nature of the widow's possession. The Hindu widow, as often pointed out, is not a life renter but has a widow's estate — that is to say, a widow's estate in her deceased husband's estate. If possessing as widow she possesses adversely to anyone as to certain parcels, she does not acquire the parcels as Stridhan but she makes them good to her husband's estate.”

9. In the above Privy Council case the position was that the widow was the only legal heir of her husband at the time of his death and she entered into possession of her husband's properties as a legal heir. Subsequently, a posthumous son was born who became the legal heir of the estate; but the widow continued to remain in possession. The argument advanced in that case was that her possession after the birth of the posthumous son was adverse and she acquired absolute title by adverse possession. This argument was not accepted by the Judicial Committee and it was held that title acquired by her enured to the estate of her deceased husband. That case has, however, no application to the facts of the present case where, admittedly, after the death of Gobardhan, the three widows did not enter into possession as his legal heirs. The above Privy Council case, in my opinion points out the difference between the case of a widow who enters into possession as of right and the case of a widow who takes possession without any right. Similar was the position in the case reported in AIR 1946 Bombay 193, where the widow entered into possession as a legal heir to the estate of the last male-holder.

10. The principle of law to be applied in a case like the present one can be gathered from the decisions of the Judicial Committee in Mt. Lachhan Kunwar v. Anant Singh, 22 Ind App 25 (PC) and Sham Koer v. Dah Koer, 29 Ind App 132 (PC). In the first case, it appears that the last male-holder died leaving a mother and a widow. The mother took possession of the estate asserting herself to have a preferential title on the ground that she inherited the property from her husband, though actually in law the widow of the last male-holder was the legal heir. It was held that, in absence of any direct evidence of any statement by the widow at the time she took possession, or subsequently that she took it as a Hindu widow, her possession was as that of absolute owner. In the second case, a member of an undivided Hindu Mitakshara family, who was possessed of considerable properties, died leaving his widow and a daughter-in-law, the widow of his only son who died in his lifetime. On or immediately before his death, these two widows obtained possession of his properties. The question for consideration before the Privy Council was, whether the possession of these two widows, who could not have legally entered into possession on the death of the undivided member of the Mitakshara family, was in their capacity as absolute owners or only as holding a widows' estate. Their Lordships held that the possession of the widows would be adverse to the reversionary heirs unless it was the result of an arrangement with them, and, if the possession was adverse, the rights of the reversionary heirs would be barred at the expiration of 12 years from the date of the death of that undivided member or from the date of taking possession by the widows. In Mst. Kirpal Kuer v. Bachan Singh, AIR 1958 SC 199 also, it was pointed out that, as there was no evidence of an arrangement with the collaterals under which the widow could be said to have taken possession of the lands, her possession must be taken to have been adverse to the collaterals.

11. The principle of law on this point, therefore, comes to be that, if a widow enters into possession of a property as a legal heir, any claim on the basis of her adverse possession enures to the benefit of the widow's estate; but where she enters into possession without being an heir of having any right, her possession is in her absolute right and she acquires absolute title by adverse possession, unless at the time she enters into possession, or even subsequently, she makes any statement making it perfectly clear that she his taking possession of the property as her widow's estate or she enters into possession under some arrangement with the rightful owner. In other words, the presumption in such a case is that the possession of the widow must be taken to be in her absolute right, unless it is established that she was in possession under some arrangement or there was anything to show that she entered into possession with a clear indication of her possession being as the possession of a widow's estate.

12. In the present case, however, it is not the case of the plaintiff that the widows were in possession under some arrangement. His case, as has been urged before us, seems to be that there is an indication that the widows entered into possession of the properties in question with an intention to remain in possession of the same as their widow's estate. Gobardhan has been held to have died some time after 1901, and the correctness of this finding of the trial Court, as already observed, has not been challenged by the appellant. There is nothing on the record to show that, at the time when the three widows entered into possession, they gave out their intention to be properties as their widow's estate. There are certain transactions between 1901 and 1915 from which it is urged on behalf of the appellant that it must be presumed that their intention was to remain in possession as their widows' estate. (His Lordship then discussed the evidence relating to the transactions.) From the statements made in these documents it cannot be said that the widows declared their intention that they were holding the lands as being their widows' estate, rather in one of the documents, namely. Ext. G-III/I. Malida has clearly stated that the land which was the subject-matter of the transaction was her “own” land. Moreover, according to the case of the plaintiff, neither Malida nor Adhikaro was in actual possession of the suit properties and, according to his case, their names were recorded in the record-of-rights only by way of consolation. According to the plaintiff, it was only Mossammat Dhanesra Kuer who was in actual possession of the properties in suit. There is no document showing any statement by her as to her intention to hold possession as her widow's estate. That being so, it must be held that her possession without any title was in her absolute right, and not as a widow's estate. The intention of the widows to possess the same in their absolute right is also indicated from the deed of gift itself which the two widows executed in the year 1930, where it is clearly recited that they were in possession in their absolute rights.

13. That being the position, they had full right to make a gift of Schedule I properties to the deities, defendant No. 2 which, on such gift, acquired a valid title to the said properties. The suit of the plaintiff with respect to Schedule 1 properties was, therefore, rightly dismissed.

14. Mr. Jha, appearing for respondents 2 and 2(b), has contended that even the finding with respect to the genealogy given by the plaintiff is incorrect and the plaintiff has failed to proved that he was the reversionary heir. But in view of my decision on the question of the title of the three widows and of the deities, defendant No. 2, I do not propose to deal with this point in this case.

15. Mr. Jha has also contended that the decree for costs has been wrongly passed against defendant No. 2(b). Since, however, he has filed no cross-objection with respect to costs, he cannot be given any relief in this regard in this appeal.

16. The result, therefore, is that First Appeal No. 236 of 1958 fails and is dismissed with costs payable by the plaintiff-appellant to defendant-respondents 2 and (2)(b).

17. First Appeal No. 243 of 1958:

18. So far as this appeal is concerned, as already observed, a compromise petition has been filed on behalf of defendant No. 1 appellant and plaintiff-respondent No. I, the terms of which show that they are now sailing in the same boat. Mr. Jha appearing for respondents 2 and 2(b), has opposed the recording of the compromise so far as it relates to Schedule I properties and the money deposited in the Criminal Court with respect to the produce thereof. In view of the decision in First Appeal No. 236 of 1958, the compromise cannot be allowed to be recorded with respect to Schedule I properties and the money deposited in respect of the produce thereof. As there is no minor among the parties to the compromise, let the compromise be recorded so far as Schedule II properties and the money deposited in the Criminal Court with respect to the produce thereof are concerned and let this appeal be disposed of in terms thereof which will form part of the decree of this Court. The compromise will not be recorded so far as it deals with Schedule I properties and the amount deposited in the Criminal Court with respect to the produce thereof. The appeal will stand dismissed as against the respondents other than respondent No. 1. In the circumstances, there will be no order as to costs.

A.B.N Sinha, J.:— I agree.

GG/S/D.V.C

19. Appeals dismissed.