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Kali Charan And Ors. v. Musammat Peare Alias Peari And Ors.
Factual and Procedural Background
Two suits, which gave rise to these connected appeals, were instituted by Chokhe Lal for cancellation of two deeds of gift dated 5 May 1920, executed in favour of the defendant Brijbasi Lal by Musammat Ram Piyari and Musammat Ram Ralli respectively. Chokhe Lal died during the litigation and was succeeded by his three sons, the present appellants.
The contested facts concern a joint family originating with Ramdin and his three sons. Musammat Ram Piyari and Musammat Ram Ralli were widows of two of those sons; the third son, Bhagwan Sahai, survived and in law became the sole owner of the joint family property. On Ramdin's death the names of the two widows were entered in the revenue records as proprietors alongside Bhagwan Sahai. The plaintiffs (originally Chokhe Lal) alleged that the widows' names were recorded merely for their consolation (i.e., as a record of maintenance entitlement) and that the widows were never in possession.
The Subordinate Judge found the widows' account to be correct (that they were not in possession for proprietary purposes), while the District Judge held that the widows were in actual proprietary and adverse possession. The date of Ramdin's death was not found in the record. Bhagwan Sahai died about sixteen or seventeen years before the suit; after his death the widows continued to be entered as proprietors in respect of one-third of the property each. Bhagwan Sahai had a son who died in 1905 without issue; his rights were inherited by his mother, Musammat Mahadei, who is still alive, was made a party-defendant, and has conveyed all her rights to Chokhe Lal.
Legal Issues Presented
- Whether the Court below erred in law in holding the possession of the Musammats (the two widows) to have been adverse.
- Whether an admission made by the widows on 30 June 1907 was wrongly excluded from evidence by the Court below.
- Whether, in light of the Privy Council decision in Lajwanti v. Safa Chand, a widow found in adverse possession acquires only a widow's (life) estate, and consequently whether the deeds of gift are valid only for the widows' lifetimes. (This point was added by the appellants' counsel in argument.)
Arguments of the Parties
Appellants' Arguments
- The trial and appellate courts erred in holding that the widows' possession was adverse; specifically, there was no evidence of adverse possession during the lifetime of the last male holder, Bhagwan Sahai.
- An admission recorded on 30 June 1907 (an application for partition) made by the widows was wrongly excluded from evidence and, if admitted, would bear on the main issue.
- Relying on the Privy Council decision in Lajwanti v. Safa Chand, it was argued that even if the widows' possession were adverse, it would be limited to a widow's estate (life interest), so the deeds of gift would be valid only for the widows' lifetimes.
Respondents' Arguments
- The execution of the 30 June 1907 document by the widows was duly proved; however, mere proof of their marks does not establish that they knew the contents, since they were pardanashin (secluded) ladies and there is no evidence they understood the petition's effect.
- Implicitly, the respondents relied on the District Judge's finding that the widows were in actual proprietary and adverse possession (i.e., the respondents supported the adverse-possession conclusion reached below).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lajwanti v. Safa Chand (Privy Council) (80 Ind. Cas. 788; (1924) A.I.R. (P.C.) 121) | Held, in its facts, that widows in adverse possession (widows of a separated Hindu) who never claimed more than a limited estate were judicially declared to be holding only for their lives; the decision was cited as authority that in such circumstances the possession was of a widow's estate only. | The Court distinguished Lajwanti on its facts and refused to treat it as establishing a universal rule that every widow in adverse possession acquires only a widow's estate; in Lajwanti the widows had expressly limited their claim and were judicially declared to hold for life, facts not present here. |
| Sadik Husain Khan v. Hashim Ali Khan (38 Ind. Cas. 104) | Where a document is acted upon, evidence of knowledge of its contents by the marker may be unnecessary (i.e., execution plus subsequent conduct can dispense with further proof of understanding). | The Court observed that if the 1907 application had been acted upon, the rule in Sadik Husain Khan would apply; but the record of such action was not produced, so the exception could not be invoked here. |
| Satgur Prasad v. Raj Kishore Lal (55 Ind. Cas. 486) | Privy Council authority that a widow can, by adverse possession, acquire an estate in full ownership (i.e., not limited to a widow's estate) in appropriate circumstances. | The Court cited this decision to show that Lajwanti did not displace earlier authorities holding that a widow may acquire full ownership by adverse possession where facts warrant it; the present case was said to be similar to Satgur Prasad. |
| Uman Shankar v. Aisha Khatun (74 Ind. Cas. 869; (1924) A.I.R. (A.) 88) | Authority of this Court holding that where a widow of an undivided brother takes possession and deals with the property as her own, and there is no evidence she claimed only a widow's estate, she must be held to have acquired full title by adverse possession. | The Court treated Uman Shankar as a recent supporting authority analogous to the present facts and used it to reinforce the proposition that absent clear evidence of a limited (widow's) claim, full title may be acquired by a widow in adverse possession. |
| Lachhan Kunwar v. Anant Singh (22 C. 445; 22 I.A. 25) | The Privy Council held that the claim that the rights of the reversioners were not extinguished was untenable unless the widow, when taking possession, clearly professed to do so only as claiming a limited estate (widow's estate). | The Court cited this case to support the principle that a widow who takes adverse possession will extinguish reversioners' rights unless she clearly took possession claiming only a widow's estate; in the present case there was no such clear limitation shown. |
Court's Reasoning and Analysis
The Court analyzed the appeals by reducing the original seven pleas to two principal issues (adverse possession and exclusion of the 1907 admission), with counsel adding the point on Lajwanti as subsidiary to the adverse-possession contention.
On the 1907 document: the execution (i.e., the widows' marks) was proved and not disputed by respondents' counsel. However, the respondents contended that there was no evidence the widows knew the contents because they were pardanashin. The Subordinate Judge had considered this and thought proof of understanding unnecessary because the document was executed many years earlier; the Privy Council decision in Sadik Husain Khan would make evidence of understanding unnecessary if it were shown the document had been acted upon. The Court noted the record contained no evidence of what, if anything, took place after that petition; in the absence of evidence that the document was acted upon, it was impossible to say that admitting it would have affected the learned Judge's conclusion.
On adverse possession: the appellants argued there was no evidence of adverse possession during the lifetime of the last male holder, Bhagwan Sahai, and therefore adverse possession could not be established. The Court rejected this argument because it overlooked an intervening legal fact: on Bhagwan Sahai's death the estate passed to his minor son Anokhe Lal (not to the widow). The Court found there was evidence on which the learned Judge could reasonably have held that adverse possession commenced on Bhagwan Sahai's death; once limitation began running while the estate was in the hands of the last male-holder's heir (Anokhe Lal), the subsequent death of that heir would not interrupt the running of limitation. Therefore the appellants' contention failed.
On the effect of Lajwanti: the Court examined whether Lajwanti established a universal rule that a widow in adverse possession only acquires a widow's estate. The Court held that Lajwanti's facts were distinguishable: in Lajwanti the widows were widows of a separated Hindu, had taken possession on their husband's death, never claimed anything beyond the limited estate of a Hindu female, and were judicially declared to hold for their lives. The Court emphasized that Lajwanti did not lay down a new universal principle and that earlier authorities (including Satgur Prasad, Lachhan Kunwar, and Uman Shankar) supported the proposition that a widow can acquire full ownership by adverse possession where she does not limit her claim to a widow's estate. The Court concluded that in the present case there was no clear showing that the widows professed to claim only a widow's estate when they took possession; therefore Lajwanti did not alter the applicable law as to the present facts.
Holding and Implications
HOLDING: The appeals are DISMISSED with costs, including in this Court fees on the higher scale.
Implications:
- Direct effect: The appellants' challenge to the deeds of gift and to the findings below fails; the dismissal affirms the view that the widows' possession could be adverse and, absent proof they professed to claim only a widow's estate, may give rise to full title by adverse possession.
- On the Lajwanti authority: The Court held that Lajwanti is fact-specific and does not establish a universal rule that widows in adverse possession necessarily acquire only a life (widow's) estate. Earlier precedents remain authoritative where widows, in appropriate circumstances and without limiting their claim, may acquire full ownership by adverse possession.
- No novel legal principle was announced that overturns the series of prior decisions cited; the judgment emphasizes distinguishing Lajwanti rather than extending it beyond its facts.
1. The two suits which have given rise to these two connected appeals were instituted by Chokhe Lal for cancellation of two deeds of gift dated 5th May 1920 executed in favour of the defendant Brijbasi Lal by Musammat Ram Piyari and Musammat Ram Ralli respectively. Chokhe Lal died during the litigation and was succeeded by his three sons, the present appellants. A pedigree showing the relationship of the parties is given in the judgments of the Courts below. Musammats Ram Piyari and Ram Lalli were the widows of two brothers who formed a joint family with a third brother Bhagwan Sahai. The family was joint. The husbands of the two Musammats died in their father's lifetime. Bhagwan Sahai alone survived his father and became in law the sole owner of the joint family property. The name of the father was Ramdin. On Ramdin's death the names of the two Musammats were entered in the revenue papers as proprietors along with Bhagwan Sahai. The plaintiff's case was that their names were recorded merely for their consolation as they were entitled to maintenance, and that they were never in possession. The Subordinate Judge found this to be the case but the District Judge held that they were in actual proprietary and adverse possession. The date of Ramdin's death has not been found, but Bhagwan Sahai died sixteen or seventeen years before the suit. After his death the widows continued to be entered as proprietors in respect of one-third of the property each. Bhagwan Sahai was succeeded by his son and on the death of the latter without issue in 1905 his rights were inherited by his mother, Musammat Mahadei, the widow of Bhagwan Sahai. Musammat Mahadei is still alive and was made a party to the suit as defendant. She has conveyed all her rights to Chokhe Lal.
2. The seven pleas taken in the memorandum of appeal really boil down to two:
1. That the Court below has erred in law in holding the possession of the Musammats to have been adverse.
2. That an admission made by the widows on 30th June 1907 has been wrongly excluded from evidence.
3. The second plea is merely subsidiary to the former. The wrong exclusion of evidence is only material in so far as it can be said to have affected the decision on the main issue. To these two pleas the appellants' Counsel has in argument added a third based on the recent decision of the Privy Council in Lajwanti v. Safa Chand 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) to the effect' that even if the widows' possession was adverse, they acquired by adverse possession only a widow's estate in the property and, therefore, the deeds of gift are only valid for their respective lifetimes. Both widows were made parties to the suits though Musammat Ram Piyari is now dead and her heirs have been substituted in her place.
4. As regards the application of 30th June 1907 which is relied on as an admission by the two Musammats, a reference to the record shows that its execution by them was duly proved and the respondents' Counsel is unable to dispute this fact. He contends, however, with much force that the mere fact that they put their mark on it is not enough and that there is no evidence to bring home knowledge of its contents to them in view of the fact that they were pardanashin ladies. The document in question is an application for partition of a patti put in by Musqmmat Mahadei, Musammat Ram Piyari, Musammat Ram Lalli and two other persons. In that petition Musammats Ram Piyari and Ram Lalli admit that their names were merely entered for consolation and agree to the patti being divided between the other co-sharers. The evidence only goes this far that the document was drawn up in presence of the ladies and. that they put their mark to it. There is no evidence to show that they understood it and were aware of its effect. The learned Subordinate Judge considered this point but held that as the document was executed in 1907 and was only now being challenged, such evidence was unnecessary. If it were shown that the document was acted upon, the rule laid down by the Privy Council in Sadik Husain Khan v. Hashim AliKhan 38 Ind. Cas. 104 : 38 A. 627 : 31 M.L.J. 607 : 14 A.L.J. 1248 : 19 O.C. 192 : 18 Bom.L.R. 1037 : 21 C.W.N. 130 : (1916) 2 M.W.N. 577 : 21 M.L.T. 40 : 1 P.L.W. 157 : 4 C.L.J. 22 : 25 C.L.J. 363 : 6 L.W. 378 : 10 Bur.L.T. 140 : 43 I.A. 212 (P.C.) would apply and such evidence would be unnecessary. Uufortunately the record has not come and there is nothing to show what took place. In the absence of such evidence it is impossible to say that the document, if received, would have or ought to have affected the conclusion at which the learned Judge arrived.
5. The appellants' main case on this issue is that there is no evidence to prove adverse possession during the lifetime of the last male holder Bhagwan Sahai. The whole of the evidence upon which the learned Judge has relied relates to the period after Bhagwan Sahai's death when his widow, Musammat Mahadei, was in possession. Admitting this to be so the appellants' argument loses sight of the fact that on Bhagwan Sahai's death the estate passed to his minor son, Anokhe Lal, and not to his widow. There was certainly evidence on which the learned Judge was entitled to hold, if he accepted it, that adverse possession commenced on Bhagwan Sahai's death. If limitation began running when the estate was in the hands of the last male-holder, Anokhe Lal, the subsequent death of Anokhe Lal would not interrupt it. The argument, therefore, cannot be accepted,
6. It remains to consider the argument based on Lajwantis case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.). The learned Counsel for the appellants asks us to treat this case as establishing a new rule of universal application that wherever a widow is found in adverse possession of property, she must be treated as being in adverse possession of a widow's estate only. There have been recent and conspicuous instances of the danger of applying Privy Council decisions to points which they did not decide but which, in the language of Lord Halsbury, may seem to flow from them. The facts of Lajwanti's case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) are clearly distinguishable. In that case the widows in adverse possession were widows of Jawahir Mal, a separated Hindu, and though Jawahir Mal had a son born after his death, the widows took possession on their husband's death and never claimed to have anything more than the limited estate of a Hindu female. They were judicially declared to be holding for their lives in a decision which is quoted in the judgment of the Privy Council. Their Lordships were laying down no new principle in saying that a widow possessing as such does not acquire the property as her stridhan but makes it good to her husband's estate.
7. In this case the husbands of the two widows died as undivided members of a joint family. They had no separate estate which their widows could inherit or to which property acquired by the widows could accrue. In other cases, such as Satgur Prasad v. Raj Kishore Lal 55 Ind. Cas. 486 : 42 A. 152 : 11 L.W. 384 : (1920) M.W.N. 3 : 24 C.W.N. 394 : 28 M.L.J. 259 : 18 A.L.J. 235 : 2 U.P.L.R. (P.C.) 55 : 22 Bom.L.R. 451 (P.C.), the Privy Council itself has held that a widow can by adverse possession acquire an estate in full ownership, and it is not to be supposed for a moment that in Lajwanti's case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) they meant to lay down anything contrary to this. Satgur Prasad v. Ray Kishore Lal 55 Ind. Cas. 486 : 42 A. 152 : 11 L.W. 384 : (1920) M.W.N. 3 : 24 C.W.N. 394 : 28 M.L.J. 259 : 18 A.L.J. 235 : 2 U.P.L.R. (P.C.) 55 : 22 Bom.L.R. 451 (P.C.) is very similar to that before us. There also the widow of a deceased co-parcener took adverse possession of an estate of which the legal title had passed to the last survivor.
8. Uman Shankar v. Aisha Khatun 74 Ind. Cas. 869 : 45 A. 729 : (1924) A.I.R.(A.) 88 is a recent authority of this Court on the same point. There also the widow of an undivided brother took possession of her husband's share and dealt with it as if it were her own property. The plea that her possession, if adverse at all, was only of the limited estate of a Hindu widow, was put forward and strongly pressed, but the Court held that in the absence of any evidence to show that her claim was limited to a widow's estate, she must. be held to have acquired full title. Reference was made to the case of Lachhan Kunwar v. Anant Singh 22 C. 445 : 22 I.A. 25 : 5 M.L.J. 1 : Rafique & Jackson's P.C. No. 1367 : 6 Sar. P.C.J. 523 (P.C.) in which the question was as to the nature of the estate acquired adversely by Musammat Jit Kunwar, a Hindu widow. The Privy Council treated the claim that the rights of the reversioners were not extinguished as clearly untenable.
Unless it were clearly shown that when Jit Kunwar took possession she professed to do it as claiming only the limited estate of a widow.
9. In Lajwanti's case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) this was clearly shown; in the present case it is not shown. Lajwanti's case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) cannot, therefore, be treated as altering the law laid down by their Lordships in a series of judgments of which Lachhan Kunwar v. Anant Singh 22 C. 445 : 22 I.A. 25 : 5 M.L.J. 1 : Rafique & Jackson's P.C. No. 1367 : 6 Sar. P.C.J. 523 (P.C.) is one.
10. For these reasons we dismiss the appeals with costs including in this Court fees on the higher scale.
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