Mt. Deshrani v. Thakur Kishore Singh

1. The appellants took a sale-deed, dated the 22nd August 1917, from the Respondent No. 2, Mt. Baribahu, in consideration of a mortgage debt due under a deed, dated the 7th February 1908, and a cash payment of Rs. 200. Respondent No. 1 who claims to be a reversionary heir entitled to succeed to the estate involved in this litigation, after the death of Respondent No. 2, instituted the suit of which this second appeal has arisen to set aside the said alienation. This suit was filed on 12th December 1922. The plaintiff alleged that Mt. Baribahu's husband Jalamsingh was the last male holder and that she inherited his estate as his widow, and that as she had no legal necessity to incur mortgage debt or to sell the property for the satisfaction of that debt and a cash payment, the alienation was not binding as against him beyond her life time.

2. Jalamsingh had too brothers Lachhman Singh and Pran Singh.

3. It is common ground that Lachhman Singh died first. While according to plaintiff Pran Singh predeceased Jalamsigh, the defendants' case is that he died after Jalamsingh. Bach of these brothers left behind a widow. Rajrani was the widow of Lachhman Singh; she died in 1906. Mt. Shahjadi Bahu was the widow of Pran Singh; she disappeared from the village of residence of the family a few years after her husband's death; while according to plaintiff she has not returned since then, the defendants contented themselves by asserting that she has not been heard of since she left. Neither party expressly alleged that Shahjadi Bahu actually died or must be presumed to be dead at any particular point of time.

4. On the evidence on record both the Courts below have come to the concurrent conclusion that Pran Singh was the last male holder of the estate, and that his death took place somewhere in Sambat 1929 corresponding to 1872. This necessarily involved the conclusion that the estate devolved on Pran Singh's widow Mt. Shahjadi Bahu and not on the widows of Lachhman Singh and Jalamsingh who predeceased him. The further question arising out of this position was as regards the nature of the interest which Mt. Rajrani and Mt. Baribahu held in the property inherited by Mt. Shahjadi Bahu as against her during all the period that has elapsed since the latter's disappearance. In short the question was: Was the possession and enjoyment of Rajrani and Baribahu adverse merely to Shahjadi Bahu so as to deprive her of her widow's estate and clothe them with the same, or they prescribed for the larger interest of an absolute owner, which would make their possession adverse also against the plaintiff in his capacity of reversionary heir of Pran Singh's estate. The earliest document on record which shows Mt. Shahjadi Bahu's name against the fields in suit is Exhibit 3 D-3 of Sambat 1930. Presumably she continued to hold the land until her disappearance from the village in Sambat 1935 corresponding to 1878-1879, as we find from a remark in Exhibit 3 D-4, a jamabandi for that year, that possession was ordered to remain with Mt. Rajrani and Mt. Baribahu so that Shahjadi Bahu if aggrieved might go to civil Court. It is not clear that this possession of Rajrani and Baribahu had its origin necessarily in an act of trespass pure and simple and not in an act consistent with their asserting their own position as widows of predeceased coparceners entitled to maintenance out of the family estate.

5. It was open to the defendants who allege acquisition of a prescriptive title of an absolute owner by Baribahu to prove by the positive and direct evidence of Baribahu, who is still alive, that she prescribed for and acquired an absolute title which must hold good not only against Shahjadi Bahu in the event of her return but also against the reversioners who may be entitled to succeed to the estate on her death. Where possession is referable to a lawful origin the presumption is that it is acquired lawfully and the burden is on the party asserting adverse possession to prove his case. The learned District Judge has drawn an inference from the evidence on record consistently with Hindu notions. As regards the nature of possession by one Hindu female entitled to maintenance against another Hindu female in whom the inheritance vests for the time being, the quality and extent of right acquired by adverse possession always depends upon the claim accompanying it and upon the nature of the animus possidendi. The question whether possession is adverse or not is always a question of one's own intention to hold adversely and knowledge of such intention must be brought home to the real owner so as to extinguish his title.

6. In the absence of any proved positive assertion of a hostile claim on the part of the two widows Mt. Rajrani and Baribahu, at the time of the commencement of their possession and in the absence of Baribahu's own evidence, it was open to the District Judge to draw the inferences he did and to hold that the nature and quality of Baribahu's possession was not proved to be such as could give rise to the further inference that it was as an absolute owner and that it therefore became adverse as against the present plaintiff also. The case is not taken out of the rule enunciated by Mittra, A.J.C, in Sheolal v. Mt. Sheoraijia(1). The Privy Council case in Lajwante v. Safa Chand A.I.R 1924 P.C 121 , 5 Lah. 1929 is also instructive on this point as regards the nature of interest which a Hindu widow prescribing as a widow acquires and makes good to her husband's estate. Any length of adverse possession against Mt. Shahjadi Bahu could not have therefore set time running against the present plaintiff so long as it is not proved by positive evidence that Mt. Shahjadi Bahu died in a particular year. On the present state of the record it is not possible to hold that limitation began to run against the present plaintiff from any particular date or year. It is a plain proposition of law that no adverse possession can run against a person until he becomes entitled to possession of the property. An adverse possession for any length of time, against a tenant for life is similarly ineffectual against the reversioner or remainderman whose right to possession only accrues on the death of the tenant for life: Naunihal Singh v. Alice Georgina Skinner A.I.R 1925 All. 707 , 47 All. 803.

7. The defendants may at the most be said to have proved only an acquisition by Baribahu of merely the widow's interest of Mt. Shahjadi Bahu and nothing further. So long as such interest is not proved to have come to an end by proof of Shahjadi Bahu's death, the plaintiff cannot be said to have become entitled to possession of the property, and the only relief which he can claim under the law is to have it declared that the alienations made by Baribahu are operative only during her own lifetime and not beyond unless they were proved to be justified by legal necessity. The plea of legal necessity raised in the case not being substantiated in the first Court was not made the subject of any specific ground of appeal before the District Judge. The result is that the transaction does not bind the plaintiff as a reversionary heir of Pran Singh's estate, and it was rightly declared as inoperative beyond Baribahu's lifetime.

8. The argument of the learned counsel for the appellant that the present suit being based on false averment as to Jalamsingh being the last male holder deserved to be dismissed on the finding that Pran Singh was the last male holder. But I am not prepared to uphold this contention in view of this Court's decision in Loola v. Pyare [1915] 12 N.L.R 57 , 33 I.C 497. The second contention is that in view of the admitted disappearance of Mt. Shahjadi Bahu from 1878, the Courts below should have presumed under the combined operation of Sections 107 and 108 of the Evidence Act that she was dead at the end of the period of seven years from 1878 and that the plaintiff's claim was, therefore, hopelessly barred by time even when he instituted his former suit of 1908 to set aside the mortgage of the 7th February 1908 or at any rate at the date of the present suit. In the absence of any specific pleadings on the point of either actual or presumed death, I do not think I should allow the present belated contention to prevail at the stage of second appeal. It exposes the plaintiff to the brunt of a new attack at the stage of appeal at the instance of an unsuccessful litigant: Nathu v. Umedmal [1908] 33 Bom. 35 , 10 Bom L.R 768. The law on the point of such presumption is also clear. There is express authority for the view that when the question is not merely one of death but of death at a particular time there is no presumption as to the time, but the party concerned to make out death on a specified date must prove it by evidence: Hanumanulu v. Lachchamma [1904] 14 M.L.J 464; Jayawant v. Ramchandra [1915] 40 Bom. 239 , 33 I.C 484 , 18 Bom. L.R 14 and Parsoo v. Munnalal [1916] 13 N.L.R 16 , 39 I.C 21: see also Muhammad Sharif v. Bande Ali [1911] 34 All. 36 , 11 I.C 474 , 8 A.L.J 1052; Narhi v. Phelcia [1909] 37 Cal. 103 , 11 C.L.J 138 , 5 I.C 709 , 14 C.W.N 341; B. Veeramma v. G. Channa Reddi [1912] 37 Mad. 440 , 16 I.C 43 , 23 M.L.J 443 and Mairaj Fatima v. Abdul Wahid A.I.R 1921 All. 175 , 43 All. 673. It is held in Gopal Bhimaji v. Manaji Ganuji A.I.R 1923 Bom. 163 , 47 Bom. 451 that the date of a person's death must be proved like any other fact by the party who is interested in establishing that he died on or before a particular date: see also Lalchand Marwari v. Mahant Ramrup Gir A.I.R 1926 P.C 9 , 5 Pat. 312. Since the defendants depended upon the plea of adverse possession for their success it was necessary for them first to allege and then to prove that Mt. Shahjadi Bahu died in a particular year. Not having done so they are not entitled to ask me to make even the limited presumption that she was dead at the time when the question was raised much less to presume that her death took place more than 12 years before the institution of the present suit.

9. Now one more position taken up by the defendants-appellants which is based on the recognition of Baribahu as an absolute occupancy tenant, has remained to be considered. I think this contention cannot stand. As it has not been alleged and proved in this case that the landlord dealt with Baribahu independently of her position as a defendant or representative of the family of Pran Singh, Baribahu could not acquire the status of an absolute occupancy tenant by prescription or by recognition of the landlord. The only effect of the recognition was to raise a personal estoppel against the landlord in the matter of ejecting Baribahu as a trespasser. If did not confer on her any higher and new status so as to work a forfeiture of the plaintiff's reversionary interest in the estate of Pran Singh after Baibahu's death.

10. On the view taken by the Courts below that Mt. Baribahu acquired by adverse possession only Mt. Shahjadi Bahu's life interest as a Hindu widow in the estate of Pran Singh and as such her possession was not adverse to the present plaintiff, the decision that her alienation will not operate or be binding against plaintiff after her death is correct and must be upheld. The appeal, therefore, fails and is dismissed with costs.

11. Appeal dismissed.