Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.M Mullick (with him A.B Mukharji and S.S Bose), for the appellant.
  • L.P.E Pugh (with him B.C De and Bindheswari Prasad), for the respondent.
Judges
  • Das
  • Adami, JJ.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.M Mullick (with him A.B Mukharji and S.S Bose), for the appellant.
  • L.P.E Pugh (with him B.C De and Bindheswari Prasad), for the respondent.
Judges
  • Das
  • Adami, JJ.
Acts
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion (Das, J.; Adami, J. concurring)

Factual and Procedural Background

The plaintiff, grandson of Jado Charan Singh (the proprietor of the Dharguli Estate), sued to recover certain disputed properties of the Dharguli Estate. The defendants resisted on the ground that Jado Charan made a grant (a deed of gift) in favour of his wife (defendant No. 1) dated 16 June 1909. The suit was dismissed by the learned Subordinate Judge and the plaintiff appealed to this Court.

Relevant chronology supplied in the opinion: (a) In 1894 the estate was attached under the Encumbered Estates Act; (b) the estate was released on 15 May 1909; (c) on 16 June 1909 Jado Charan executed the grant to his wife; (d) the plaintiff's father (the eldest son of Jado Charan) predeceased Jado Charan (father died 30 January 1920); (e) Jado Charan died 21 February 1924; (f) the estate was again attached and the present suit was instituted by the plaintiff on 24 February 1925.

In the court below the plaintiff's primary pleading that the 1909 transaction was benami failed; the alternative contention that the gift contravened section 12A of the Encumbered Estates Act and was therefore void succeeded on the question of validity, but the Subordinate Judge held that although the grant was void the defendant had been in possession under that grant for more than twelve years and had therefore acquired title by adverse possession. The plaintiff appeals, advancing several legal arguments against that conclusion.

Legal Issues Presented

  1. Whether the gift of 16 June 1909 was void under section 12A of the Encumbered Estates Act, and if so, from what date the alienation is void (immediately on the alienation or only upon the grantor's death).
  2. Whether section 12A has the effect of preventing acquisition of title by lapse of time (i.e., whether it abrogates or displaces the Statute of Limitation as regards private suits by the proprietor or his representatives).
  3. Whether the defendant's possession under a void grant can constitute adverse possession (i.e., possession under a claim or colour of title) or whether it must be regarded as permissive.
  4. Whether any petition or communications made to the Commissioner (notably the petitions filed on 4 March 1916 and the Commissioner’s order dated 26 April 1916) operated as an acknowledgment under section 19 of the Limitation Act sufficient to save limitation.

Arguments of the Parties

Appellant (Plaintiff — represented by Mr. S. M. Mullick)

  • Argued that the alienation of 16 June 1909 should be regarded as becoming void only upon the death of the grantor (Jado Charan) because section 12A(1)(b) bars creating charges extending beyond the grantor's lifetime; hence, paragraph (b) was said to imply validity for the grantor’s lifetime.
  • Contended that section 12A either expressly or by necessary implication prevents the alienee from acquiring title under the statute of limitation (i.e., that the Act abrogates the law of limitation in favour of the proprietor or his representatives).
  • Maintained that the defendant’s possession was permissive (collusive between grantor and grantee) and therefore could not ripen into adverse possession.
  • Contended that limitation was saved under section 19 of the Limitation Act because of petitions filed on 4 March 1916 (i.e., alleged acknowledgments or admissions were said to suspend or reset limitation).

Respondent (Defendant — represented by Mr. Pugh)

  • Did not dispute that the 16 June 1909 transaction contravened section 12A and was void as a matter of statutory validity.
  • Contended that possession under a void grant can nevertheless operate as adverse possession — possession under a claim or colour of title — and that the defendant's possession for over twelve years therefore gave her a title by lapse of time.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bai Bala v. Parag Khushal (decision of Sir Lawrence Jenkins) Considered whether Collector's summary power under the Bhagdari Act could operate notwithstanding lapse of time; in that context the Collector's power to remove a possessor was held not to be prevented by the statute of limitation. The court treated this decision as distinguishable: it involved a statute (the Bhagdari Act) that expressly empowered the Collector to summarily remove possessors, and thus the decision was not applicable to the Chota Nagpur Encumbered Estates Act, which contains no similar provision. The opinion therefore did not adopt Bai Bala as authority that would defeat limitation here.
Adam Umar Sale v. Bapu Bawaji (Batchelor, J.) Held that possession acquired under an alienation made in contravention of a statute (section 3 of the Bhagdari Act in that case) can become adverse so as to bar a suit by the alienor or his representatives; and that the statute in question contained nothing which by express provision or necessary implication abrogated the law of limitation in favour of a private person. The court relied on this decision to support the conclusion that the Chota Nagpur Encumbered Estates Act does not, by express provision or necessary implication, abrogate the law of limitation; thus title by lapse of time can arise even if the original document was void under section 12A.

Court's Reasoning and Analysis

The court proceeded through a sequence of legal analyses strictly tied to the text of section 12A of the Encumbered Estates Act and to established principles of adverse possession and limitation:

  1. Interpretation of section 12A: The court read sub-section (3) plainly — every alienation or charge made or attempted in contravention of subsection (1) is "void." The court rejected the appellant's argument that the alienation should be treated as valid for the grantor’s lifetime by virtue of paragraph (b) permitting charges extending only to the grantor's lifetime. The court held the statutory language makes the alienation void from the moment of the alienation; paragraph (b) merely indicates that a charge may be valid so far as it does not extend beyond the grantor's lifetime, but this does not mean an alienation otherwise in contravention becomes temporarily valid.
  2. Whether section 12A abrogates the law of limitation: The court found no express provision in the Chota Nagpur Encumbered Estates Act nor any necessary implication to show that it abrogates the Statute of Limitation or prevents acquisition of title by lapse of time. The court rejected the contention that section 12A effectively nullifies adverse possession rights. The court examined Bai Bala v. Parag Khushal and concluded it was inapplicable because that case turned on specific summary powers of the Collector under the Bhagdari Act; by contrast, the Chota Nagpur Act lacks such a provision. The court instead treated Adam Umar Sale v. Bapu Bawaji as more directly persuasive: that decision supports the proposition that possession under an invalid alienation can ripen into title and that the relevant statute did not abrogate limitation.
  3. On adverse possession versus permissive possession: The court explained the legal character of adverse possession as possession "under a claim or colour of title." The defendant entered and continued in possession on the strength of the 16 June 1909 document. Even though the document may be void, the possession was nevertheless under a claim or colour of title and therefore adverse. The court concluded that the defendant's possession was hostile in the sense that it denied the title of the rightful owner and hence was not permissive.
  4. Effect of petitions of 4 March 1916 and the Commissioner’s order (26 April 1916): The court considered the petitions filed by Jado Charan and by the defendant asking the Commissioner to declare or sanction the grants. The Commissioner declined to accord permission. The appellant argued that after these petitions and the refusal the defendant's possession ceased to be hostile and became permissive, or that the petitions amounted to admissions under section 19 of the Limitation Act. The court rejected both points. It held that a possession that commenced as adverse (under claim or colour of title) does not become permissive by subsequent events; and that the petitions were not admissions by either donor or donee that the 1909 grant was void in law. Therefore the defendant continued in adverse possession.
  5. Section 19 Limitation Act (acknowledgment) argument: The court acknowledged that an acknowledgment of the true owner's title can attract section 19 and save limitation. It reviewed the defendant's petition relied upon as an alleged acknowledgment and held that it did not contain an admission of Jado Charan's title to the land. Consequently, section 19 did not apply to save the plaintiff's claim.

Holding and Implications

APPEAL DISMISSED.

Direct effect on the parties:

  • The Subordinate Judge's conclusion that the defendant, though in possession under a grant void under section 12A, acquired title by adverse possession (having been in hostile possession under a claim or colour of title for over twelve years) was upheld.
  • The plaintiff's suit to recover the properties was dismissed with costs.

Broader implications:

  • The court expressly held that the Chota Nagpur Encumbered Estates Act (section 12A) does not, by express provision or necessary implication, abrogate the law of limitation so as to prevent a grantee in unlawful alienation from ultimately acquiring title by lapse of time. The opinion distinguished earlier authority (Bai Bala v. Parag Khushal) and relied on Adam Umar Sale v. Bapu Bawaji to support this conclusion.
  • The opinion contains no statement that it is laying down a novel rule of general application beyond the facts considered; its reasoning applies the settled principle that possession under a colour of title, even if grounded on a void instrument, may ripen into absolute title by limitation unless displaced by an express statutory provision to the contrary. The court noted the absence of any such express provision in the Chota Nagpur Act.

Disposition: Appeal dismissed. (Das, J.; Adami, J. concurred.)

Show full summary ...

    Thakur Bageswari Charan Singh v. Thakurain Jagarnath Kuari

    Das, J.:— In this suit the plaintiff who is the, proprietor of the Dharguli Estate in the district of Hazaribagh claims to recover the disputed properties. The suit is resisted by the defendants on the ground that her husband, the late proprietor of Dharguli Estate made a gift of these properties to her on the 16th June 1909. The learned Subordinate Judge has dismissed the plaintiff's suit and the plaintiff appeals to this Court.

    The husband of the defendant was Jado Charan Singh who at all material dates was the proprietor of Dharguli Estate. The plaintiff is the grandson of Jado Charan, his father who was the eldest son of Jado Charan having predeceased the latter. It appears that in 1894 the Dharguli Estate was attached under the provisions of the Encumbered Estates Act. The estate was released on the 15th May 1909, and on the 16th June, 1909, Jado Charan made a grant in favour of his wife, defendant no. 1, which is the subject of controversy between the parties in this litigation. Jado Charan died on the 21st February, 1924, his eldest son, the plaintiff's father having died on the 30th January, 1920. The estate was again attached under the provisions of the Encumbered Estates Act and the present suit was instituted by the plaintiff on the 24th February, 1925. The plaintiff's case in the plaint is that the transaction of the 16th June, 1909, was a benami transaction and that the object was to save certain properties for the grantor as he was heavily involved in debts. This defence failed in the Court below and Mr. S.M Mullick appearing on behalf of the plaintiff-appellant does not challenge the finding of the learned Subordinate Judge on this point. The alternative case put forward in the court below was to the effect that the gift in question was in contravention of section 12A of the Encumbered Estates Act and was therefore void. The learned Subordinate Judge has had no difficulty in giving effect to this argument; but he has held that although the grant was void, the defendant was in possession under the void grant for over twelve years and therefore acquired a title by adverse possession. Mr. S.M Mullick invites us to consider the effect of section 12A of the Encumbered Apt; and he contends, first, that the alienation in question became void only on the death of Jado Charan which took place on the 21st February, 1924; secondly, that under section 12A not only is the title under the void document void but also the title that has been acquired by lapse of time; thirdly, he contends that there was in fact no adverse possession, but that the possession of the defendant was throughout permissive; and, lastly, he contends that limitation is saved under section 19 of the Limitation Act as a result of the petition which was filed to the Commissioner on the 4th March, 1916. In my opinion there is no merit in any of these arguments.

    Section 12A provides as follows:

    “(1) When the possession and enjoyment of property is restored under the circumstances mentioned in the first or the third clause of section 12, to the person who was the holder of such property when the application under section 2 was made, such person shall not be competent without the previous sanction of the Commissioner,—

    (a) to alienate such property, or any part thereof, in any way, or

    (b) to create any charge thereon extending beyond his lifetime.

    (2) If the Commissioner refuses to sanction any such alienation or charge, an appeal shall lie to the Board of Revenue, whose decision shall be final.

    (3) Every alienation and charge made or attempted in contravention of sub-section (J) shall be void.”

    Mr. Pugh does not dispute the proposition that the transaction of the 16th of June, 1909, contravenes the provisions of section 12A and must therefore be regarded as void; but he contends that possession under a void grant must be regarded as adverse possession and he insists that the defendant having been in possession for over twelve years from the date she took possession, must be regarded as having acquired title under the statute of limitation. Now Mr. S.M Mullick contends that the transaction becomes void not from the date of the grant but from the date of the death of the grantor. The argument is founded on clause (1), paragraph (b), of section 12A which forbids “the holder of such property to create any charge thereon extending beyond his lifetime”. It is contended on paragraph (b) that a charge is perfectly valid for the lifetime of the holder of the property; and that therefore the alienation in paragraph (a) must also be regarded as a good alienation for the lifetime of the holder of the property. It is impossible to give effect to the argument. The section speaks for itself; and it is perfectly clear that it provides that the alienation is void from the moment of such alienation although it suggests that a charge may be good for the lifetime of the holder of the property.

    It was then contended that section 12A in effect provides that the alienee cannot acquire a title under the statute of limitation. The argument assumes that the Act expressly or by necessary implication abrogates the statute of limitation and it is impossible to find any support from that argument in the Act itself. A decision of Sir Lawrence Jenkins in Bai Bala v. Parag Khushal was relied upon; but that was an entirely different case. In that case the plaintiffs sued to recover possession of certain fields alleging that they purchased the entire bhag from the owner thereof. The defence was that the fields were of bhagdari tenure and constituted only a portion of the bhag and that, as a consequence, the plaintiffs' title was defective. It was found as a fact that the plaintiffs had purchased only a portion of the bhag and it was admitted that the title as based upon the purchase was bad. But the plaintiffs relied on the fact that they had been in adverse possession of what was sold to them for over twelve years and they contended that they had acquired a complete title under the provisions of section 28 of the Limitation Act. It appears, however, that the Collector, under the provisions of section 3 of the Bhagdari Act summarily removed the plaintiffs and the whole argument before the Bombay High Court was whether the Collector could exercise the right under section 3 of the Bhagdari Act after the plaintiffs had acquired a complete title by lapse of time. In dealing with this point, Sir Lawrence Jenkins said as follows: “It is also provided that it shall be lawful for the Collector, or other Chief Revenue Officer of the district, whenever he shall upon due enquiry find that any person or persons is or are in possession of any bhag or share in any bhagdari or narwadari village other than a recognised sub-division of such bhag or share in violation of any of the provisions of this section, to summarily remove him or them from such possession and restore possession to the person or persons whom the Collector shall deem entitled thereto, and any suit brought to try the validity of any order or orders which the Collector may make in such matter must be brought within three calendar months after the execution of such order or orders”. Having considered the section upon which the defendants relied, his Lordship proceeded to say as follows: “It seems to us from the words of the section that the Collector, whenever he shall find any person in possession may pass such order, as he has passed in this case, and the statute of limitation does not prevent his so doing.” Now there is no similar provision in the Chota Nagpur Encumbered Estates Act and it therefore seems to me that the case upon which Mr. S.M Mullick relies is not applicable to the facts of this case. But the identical point was decided by Batchelor, J., in Adam Umar Sale v. Bapu Bawaji. It was pointed out that possession acquired under an alienation made in contravention of section 3 of the Bhagdari Act can become adverse so as to bar a suit for recovery by the individual alienor or his representatives in interest; and that the Bhagdari Act contains nothing which by express provision or necessary implication abrogates the law of limitation in favour of a private person. The previous decision of the Bombay High Court in Bai Bala v. Parag Khuslial was cited before His Lordship; but His Lordship distinguished the case on the ground that in the case before him no action had as a matter of fact been taken by the Collector. In my opinion it is impossible to argue that a title acquired by lapse of time should under the Chota Nagpur Encumbered Estates Act be regarded as void since as I have already said there is nothing in the Act to suggest that it expressly or by necessary implication abrogates the law of limitation.

    It was then contended that there is in this case no adverse possession since the grantor and the grantee were colluding with each other and since the possession of the grantee must in the circumstances of the case be regarded as permissive. It is doubtful whether we have any case of adverse possession to try because it would appear that the case falls within Article 142 of the Limitation Act which provides for a suit for possession of immovable properties when the plaintiff, while in possession of the properties has been dispossessed or has discontinued the possession. Discontinuance means that the person in possession goes out and is followed in possession by other persons. But Mr. S.M Muillick argues before us that going out as a result of a document is not discontinuance of possession within the meaning of Article 142 of the Limitation Act. It is not necessary for me to come to any decision on this point, for I am satisfied that even if we are to proceed upon Article 144 of the Limitation Act upon which he relies, it must be held that the defendant has been in adverse possession of the disputed properties for over twelve years. Now as I understand the law, adverse possession denotes possession under a claim or colour of title. Now in this case the defendant entered upon possession by virtue of a document which had been executed by her husband in her favour. She entered upon possession by virtue of that document and continued to be in possession on the strength of that document. It may be that the title as based upon the document itself is void under section 12A of the Encumbered Estates Act, but her possession nevertheless was under a claim or colour of title and must accordingly be regarded as adverse. Mr. S.M Mullick then contends that whatever the position may have been prior to the 4th March, 1916, the position materially changed on that date as a result of certain petitions which were filed before the Commissioner both by Jado Charan and by defendant no. 1. It appears that on that date two petitions were filed before the Commissioner of Chota Nagpur, one on behalf of Jado Charan and the other on behalf of his wife, the defendant in this action. Now Jado Charan in his petition stated that be had made a grant in favour of his wife and he insisted that he was entitled under the law to make a grant for the provision of his wife and that such a grant was outside the operation of section 12A of the. Encumbered Estates Act; but he stated that as doubt had arisen as to the validity of the grant as a result of the section to which I have already referred, it was necessary that permission should be accorded by the Commissioner so that no doubt might be left as to the validity of the grant. In the result he made the following prayers:

    “(1) That if section 12A of Act III of 1909 does not apply to the grants mentioned above (copies of which are filed for your honour's perusal) your honour may be pleased to declare that such sanction is not necessary.

    (2) That if a sanction is necessary your honour may be pleased to accord your honour's sanction to the same.

    (3) That should your honour think that the execution of fresh deeds after your honour sanction is necessary, your honour may be pleased to sanction the grants taking the deeds filed as drafts, so that your petitioners may execute fresh grants according to the said drafts.

    (4) That such alterations in the drafts as your honour may be pleased to order may be made.

    (5) That your honour may be pleased to pass such other order or orders as may validate the grants and give effect to the intentions of the parties according to law.”

    The petition of the defendant was a short one and may be quoted in full. It was as follows:

    “That in view of the petition filed by Thakur Jade Charan Singh your petitioners beg to file original deed of gift and prays that your honour may be pleased to sanction the same or order a fresh grant on the same terms to be executed. And for this your petitioners as bound shall ever pray.”

    Upon these petitions an order was passed by the Commissioner on the 26th April, 1916. That order runs as follows:

    “The petitioner's (no. 1) estate was released from management under the incumbered Estates Act on 15th May, 1909, and a month after its release the petitioner on 16th June, 1909, made a grant of a portion of the estate to his second wife and subsequently on the 17th November, 1909, of another portion to his third son. Under section 12A of Act VI of 1876 the proprietor was not competent, without the previous sanction of the Commissioner to alienate such property or any part thereof in any way. He now applies after seven years for the Commissioner's sanction to his alienation so as to make it valid. The Deputy Commissioner reports that it is probable that the proposed alienation is not approved by the eldest son, and it is also probable that it is against the family, custom. I decline to accord permission under section 12A to the alienations which were made without permission seven years ago immediately on the release of the estates.”

    It was contended by Mr. S.M Mullick that whatever may have been the position before, there was no pretence on the part of the defendant after the 4th March, 1916, or at any rate after the order of the Commissioner on the 26th April 1916, to hold the property under a claim or colour of title; and that; therefore her possession after the 26th April must be regarded as a permissive possession. I am unable to agree with this contention. To start with, it is difficult to understand how a possession which starts under a claim or colour of title and therefore adverse can by virtue of subsequent events become a permissive one. In the next place, I do not regard the petitions of the 4th March, 1916, as constituting an admission either on the part of the donor or on the part of the donee that the grant of the 16th June, 1909 was void and inoperative in law. The defendant continued to be in possession and I must hold that she continued to be in possession under a claim or colour of title. It was contended that her possession could not be regarded as hostile; but her possession was in denial of the title of the rightful owner and in that sense was undoubtedly hostile. In my view it is impossible to contend that the possession of the defendant was in any sense permissive.

    It was lastly contended that limitation is saved under section 19 of the Limitation Act. No doubt any acknowledgment of the title of the rightful owner will attract the operation of section 19 of the Limitation Act and will save limitation and it is well settled that any form of acknowledgment will be sufficient if from it an admission may be implied that the person to whom it is given is the owner of the land. Mr. Sushil Madhab Mullick relies upon the petition of the defendant filed before the Commissioner on the 4th March, 1916. I have already dealt with the petition; and I do not agree with the argument that it contains an admission of the title of Jado Singh. In my opinion section 19-has no operation to the facts of this case.

    I must dismiss this appeal with costs.

    Adami, J.:— I agree.

    Appeal dismissed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Thakur Bageswari Charan Singh v. Thakurain Jagarnath Kuari
    (Jan 9, 1929)