Mukerji and Bennet, JJ.:— This is a first appeal by the plaintiff Mst. Ram Kunwar whose suit has been dismissed by the court of first instance. She claimed to be in adverse possession of certain zamindari property and asked for the relief of a declaration that she was the owner of that property and that it was not attachable or saleable in execution of a decree No. 140 of 1924 held by defendant No. 1 against defendant No. 2, Bishambhar Singh. The following family tree is relevant:—
Bishambhar Singh is the son of an earlier wife, of Tika Singh, and on the death of Tika Singh in 1908 there was a dispute in mutation proceedings, for which there is the evidence of a witness Ajmer Singh, which, following the court of first instance, we accept. This witness states that there was an agreement made during mutation proceedings by virtue of which the property in suit was recorded in the name of the plaintiff, and the remaining property which was larger was recorded for Bishambhar Singh.
The question is as to whether the plaintiff obtained possession of this property as claimed by her…. We consider therefore that the finding of the court of first instance is correct and that the plaintiff has proved that from the year 1908 on the death of her husband she has been in possession of the property in the plaint which has been entered in her name. We agree with the court of first instance that possession was permissive and arose from an agreement with her step-son. Therefore it follows that the plaintiff cannot succeed in her claim that she has a title of absolute ownership to the property by adverse possession, for when possession could be referred to a lawful source adverse possession should not be inferred. In the present case the possession of the plaintiff is referable to the agreement with her step-son. It is true that the plaintiff has not put forward her case on that ground. But we consider that on the finding that she is in possession by virtue of such an agreement with her step-son the plaintiff is entitled to a declaration, although not precisely the declaration for which she had asked in the plaint.
Considerable argument was made as to the right of the plaintiff holding in lieu of maintenance against a decree-holder holding a decree against the defendant No. 2, who is undoubtedly the person entitled to hold the property in the plaint, because the defendant No. 2 was a member of a joint family with his father at the time of the death of his father. Argument was made in regard to cases where there was a charge of a widow against an estate and in regard to the nature of the rights of a widow where a charge had not been made. Reference was made to Mulla's Hindu Law, 6th edition, page 577, paragraph 569, for the proposition that the claim of a Hindu widow for maintenance was not a charge, and that a charge would not arise until there was a decree of a court or an agreement between the widow and the holder of the estate, and therefore that the widow's claim to maintenance is liable to be defeated by a transfer of her husband's property to a bona fide purchaser for value without notice of the claim of the widow for maintenance. These propositions are also contained in section 39 of the Transfer of Property Act. But we consider that the present case is clearly distinguishable on the facts from either a claim for maintenance or a charge. The present case is not one of charge, because the widow is in actual possession of the property in the plaint and the rights of the widow amount to more than a claim for maintenance, because she has been placed in possession of the property in the plaint in lieu of her claim for maintenance. The question before us is: Can the decree-holder of a simple money decree against the rights of the joint Hindu family dispossess the widow who is in possession of a portion of the estate in lieu of her maintenance? We consider that this proposition should be answered in the negative. We hold that the widow has a right to hold this portion of the estate, of which she is in possession in lieu of maintenance, as long as she is entitled to maintenance as a Hindu widow. On her death or if she ceases to be entitled to maintenance as a Hindu widow the right to hold the estate would terminate. Subject to her right to hold the estate it is open to the decree-holder defendant No. 1 to bring this property to sale.
Accordingly we modify the decree of the lower court and the decree which we grant to the plaintiff appellant is a declaration that the property in suit may be sold but the purchaser is not entitled to possession during the period in which the plaintiff is entitled to maintenance as a Hindu widow and the plaintiff is entitled to hold the property in suit for that period. As neither party has succeeded in the suit in full, we consider that the correct order for costs is that each party shall pay its own costs throughout.