1. Hiraman and Amersingh sons of Lachhman were two brothers. The former married Kasturibai and had a son Tikaram who married Subheti Kala and Subheti Khurd. Amersingh left five sons, Ganaram, Harisingh, Durgaprasad Bhairon and Nathuram. These are now all dead Harisingh brought the present suit. Hiraman and Amersingh were separate. After Hiraman's death his property was inherited by his widow Kasturibai, Tikaram having died before his father. The property then consisted of the whole of mouza Bagdari, Lingpani and Bhaliwada and a half share in Bilanda, and fields and houses and moveables. Kasturibai died in 1886, and the two widows of Tikaram remained in possession of the property. After some years these two separated, Subheti Kala getting mouza Bilanda and Bhaliwada and Subheti Khurd getting Begdari and Lingpani. Subheti Khurd is said to have adopted defendant No. 1 as her son, but Subheti Kala sued in 1901 and got that adoption declared invalid. Subheti Khurd died on 28-2-21, and plaintiff has brought this suit for the property left by her. His story is that after Kasturibai's death his father Amersingh became entitled to the property of Hiraman as the next reversioner, but that he allowed the widows of Tikaram to enjoy the property in lieu of maintenance, and that it thus came to be recorded in their names. It was further stated that after the death of Subheti Khurd defendants wrongfully took possession of the property, and it was contended that defendant No. 2 who was an agent of Subheti Khurd for some years took advantage of this position and got the 16 annas of mouza Lingpani entered in the name of his son defendant No. 1, and that Bagdari was entered in his son's name in the same way. Subheti Kala also died but the property left by her is not in suit.

2. The defence was that the fields and moveables did not belong to Hiraman. Subheti Khurd was said to have taken possession as a trespasser after the death of Kasturibai, and it was stated that her possession was adverse to Amersingh, that she acquired a valid title by prescription, that she gave Bagdari and some other property by a deed of gift to defendant No. 1 and later on gave him Langpani and the rest of the property orally, placing him in possession, and that at the time of these gifts defendant No. 2 was not her Mukhtyar and never exercised influence over her. It was further contended that it was decided in Civil Suit No. 33 of 1916 in the Court of the District Judge, Chhindwara, that Subheti Khurd had an absolute interest in the property in suit; and that the plaintiff being a party to that suit, the decision therein operates as res judicata. Plaintiff in reply stated that after Kasturibai's death it was settled between Amersingh and the two Subhetis that the women would enjoy the property in lieu of maintenance, and that they only acquired a widow's interest in the property. It was denied that the alleged gift passed any title to defendant No. 1 who was never put in possession.

3. The case eventually went to trial on the following issues:—

“1. Whether after the death of Mt. Kasturi it was agreed between Ameraingh and the two, Subbetis that they should remain in possession of the property in suit and should enjoy it in lieu of maintenance?

2. If not, what interest did the two Subhetis claim and assert in the plaint property and what interest did they acquire therein by adverse possession?

3. Whether they had only a widow's estate in the property?

4. Whether Subheti Khurd gifted the mouza Bagdari and other property by the deed dated 12-10-12?

5. Whether the mouza Lingpani together with the rest of the plaint property was gifted orally.

6. Whether the defendant No. 1 was duly put in possession?

7. Whether the defendant No. 2 was her Mukhtyar at the time of the gifts?

8. Whether the gifts were made under undue influence or whether she gifted the property of her free will? Whether the gifts are legally valid?

9. Whether the plaintiff is an heir of Mt. Subheti Khurd and whether the gifts are binding on him?

10. Whether the fields in suit belonged to Hiraman or whether they have been acquired by the defendant No. 2?

11. Whether the moveables in suit pertained to the estate left behind by Hiraman: what is their value?

12. Whether the judgment in suit No. 33 of 1916 bars the present claim as res judicata?

13. Whether the plaintiff is entitled to the relief sought?”

4. The trial Court's findings may be summarised as follows. It was agreed between Amersingh and the two Subhetis that they should remain in possession of the property in suit and enjoy it in lieu of maintenance. They took only a limited interest in the property, having only a widow's estate therein. Subheti Khurd did give mouza Bagdari and other property by the deed dated 12-10-12, but mouza Lingpani together with the rest of the property was not gifted orally, nor was the defendant No. 1 duly put in possession of this property. The gifts were made when defendant No. 2 was her agent and under undue influence. Plaintiff was found to be an heir of Mst. Subheti Khurd and the gifts were found not binding on him. The fields in suit did not belong to Hiraman and had been acquired by defendant No. 2 except 4 fields. On the 11th issue the Judge finds that the moveables in suit valued at Rs. 1,400 pertained to the estate left behind him by Hiraman. The judgment in Suit No. 33 of 1916 was held not to be res judicata.

5. It is contended for the appellants-defendants that as Hiraman and Amersingh were separate, and Tikaram pre-deceased his father, on Krishnabai's death in 1886 the widows of Tikaram had no right to the property-left by Hiraman which should have gone to hi reversioners; and that being so, their possession of the property was adverse from the date of Krishnabai's death in 1886. It is admitted that the appellants cannot press the claim as regards the village of Lingpani, and this admission reduces their claim to the other village Bagdari and to the fields which have been decreed to the plaintiff. It is admitted that plaintiff is the heir of the two widows, Subheti Khurd and Subheti Kalan. It is stated that there is nothing in the mutation proceedings as regards the villages going to the two widows of Tikaram for maintenance and in support of the argument that the widows held adverse possess on, we are referred to Exhibits P-17, P-18 and P-19, which are statements of both the widows and Amersingh in the mutation case of mouza Bilanda of 1886. There the two widows said that they were the heirs of their mother-in-law and asked for mutation in their names, but admitted that after their death Amersingh would be the heir. Amersingh made a similar statement.

6. It is contended that there is no detailed evidence of the agreement come to between Amersingh and the two widows and that the two widows acquired by prescription title to the villages and fields: Sheolal v. Mt. Shoerajai(1) and it is pleaded that the widows not being entitled to possession at Kasturibai's death their possession was adverse to the plaintiff unless it can be shown that it was the result of an arrangement by Amersingh: Sham Doer v. Dah Koer(2). Our attention is directed to the statement of Harisingh plaintiff in Case No. 45 of 1901, brought by Mst. Subheti Kalan against her co-widow for the cancellation of the adoption of the 1st defendant. But this does not seem to favour the appellants, for Harisingh therein stated that he is the next heir to the property after the two widows' death. Exhibit P-25 is the appellate judgment in that case, but that document does not help the appellants. Lachhan Kunwar v. Manorath Ram(3) and Gajadhar Pande v. Parbati(4) are quoted in support of the argument that the two widows having been in adverse possession for more than 12 years, the present claim of the plaintiff is time-barred. It is further argued that on the death of Subheti Kalan a suit was brought by Subheti Khurd, Suit No. 33 of 1916, for possession of au 8 annas share in Bilanda and a 16 annas share of Baliwada, against Ramcharan the present plaintiffs son on the ground that on Subheti Kalan's death, the co-widow was the rightful owner of the property; that in that suit the present plaintiff was joined with another brother; and that the gift to the 1st defendant had then taken place. Exhibit D-8 is the judgment in that suit, and it is stated that the judgment shows that in that case Ram-charan admitted that the widows of Tikaram did not inherit the property, but were in possession in their absolute right, and that Harisingh and his brother Nathuram were subsequently joined as co-defendants in that suit as being the reversioner of Hiraman. It seems that Harisingh was no party to the first or second appeal that followed, and on second appeal here, No. 93 of 1918, a compromise was come to between Mst. Subheti Khurd and Ramcharan, the District Judge having dismissed the plaintiff's suit; and that agreement was (1) that Ramcharanlal was to be the sole owner of the 8 annas share in Bilanda and Bhaliwada, as also of soma land in Bijewara of which Subheti Kalan was the owner and (2) Ramcharanlal on his part gave up any claim he might have had to Lingapani and Bagdari. It is contended that this suit makes the present question between the patties, as to the rights under which the widows took, res judicata. Dealing with the question of the gifts made by Subheti Khurd to the 1st defendant, the learned Pleader for the appellants' asks that as that lady had an absolute estate, she had a right to give it away, that the deed of gift was registered as made by her, and that this had been held invalid on two grounds: (1) that possession did not pass under that deed, and (2) that it was made under undue influence as defendant 1's father was the agent of Subheti Khurd. This argument opens up an interesting question of law. In Govinda v. Malhari(5) the Judicial Commissioner of these provinces held:—

“To constitute a valid gift, the Hindu law requires that possession should be given to the donee. That law has not been altered in this respect as to gifts of immovable property by Section 123 of the Transfer of Property Act (Act IV of 1882) which by enacting that to effect a gift of immovable property there must be a registered instrument signed by or on behalf of the donor and attested by at least two witnesses, merely adds on to the Hindu law a formality as necessary to constitute a gift.”

7. This case was followed in Mst. Sani v. Pancham Patil(6), where the view expressed in this case was confirmed. It is argued that both these decisions are wrong under Section 123 of the Transfer of Property Act, read with S. 129 of the same enactment. It is pointed out that the other High Courts in India follow in this respect the provisions of the Transfer of Property Act, and we are referred to Pkul Chand v. Lakkhu(7) Pahlwan Singh v. Ram Bharose(8), Kalidas Mullick v. Kanhaya Lal Pandit(9), a Privy Council, case. Dharmodas Das v. Nistarini Dasi(10), Balbhadra v. Bhawani(11), Bai Rambai v. Bai Mani(12), and Muhammad Abdul Nayeem…Plaintiff v. Jhonti Mahton Another…Defendant .(13) a Patna Case.

8. It seems to us that the decisions in the two cases in 3 and 5 C.P.L.R are erroneous, and that assuming that delivery of possession was essential under the Hindu Law to complete a gift of immovable property, that law has been abrogated by Section 123 of the Transfer of Property Act in cases where the instrument of gift has been registered. The 1st paragraph of that section me in that the gift of immovable property can be effected by the execution of a registered instrument only, nothing more being necessary; but though this finding is in favour of the appellants yet the result of the case will depend on whether the widow had power to make the registered gift, and further whether that gift was obtained by undue influence. These questions will be dealt with later.

9. It is obvious that the most import ant question in this case is as regards the character of the widows' possession. We have to consider whether the villages descended as their stridhan and whether the widows had absolute right to deal with them. Did they intend holding in their own right or as heirs to a male? We have to go back to the beginning of their possession, and consider under what conditions they took possession. In the mutation proceedings where the two widows of Tikaram and Amersingh appeared, it is clear that they took as heirs to the estate, not as wrong-doers, and the widows' assertions that after them the estate would descend to Amersingh strongly points to the fact that they recognised that they had a limited interest in Hiraman's immovable property; they did not then take possession as trespassers or wrong-doers. The decisions in Mahabir Pershad v. Adhikari Koer(14) Lachhan Kunwar v. Manorath Ram are relevant to the present case. Lajwanti v. Safa Chand(15) is also in point. It seems to us clear from the mutation proceedings and from the depositions of the plaintiff, Jhandi Prasad (P.W 2) and Mandra (P.W 3) that there was an arrangement whereby Amersingh permitted the widows of Tikaram to hold possession of Hiraman's property, which had been held by ???, for their lives. Unless this had been the case, the widows would not have stated in the mutation proceedings that they were to hold only for their lives, and that Amersingh was to succeed them; nor would Amersingh have made the same statement. We agree with the Court below that it has been sufficiently proved that the two Mst. Subhetis held only a limited interest, i.e a life interest in their father-in-law's immovable property, and that they could not gift or alienate the same. This finding makes it unnecessary to go into the question of undue influence as regards the registered deed of gift.

10. No question of adverse possession arises. The widows were not in adverse possession, but in permissive possession given by Amersingh. As regards the question of res judicata also we think that it does not arise. In the former suit one widow sued the present plaintiffs son for possession of property left by the other. Plaintiff was, it is true, made a party in that suit at a late stage, but he was not made a party to the first or the second appeal arising from the trial Court's judgment. But as long as one of the widows was alive, it was unnecessary for the plaintiff to assert a title which would come to him, under an agreement, on the death of both the widows. It was therefore unnecessary for him to plead that at that time he had any right to the property in possession of the widows.

11. As to the four fields is possession of defendant No. 2, it is here argued that these fields were bought from the tenant, that the buyer sued for possession; and that then defendant No. 2 having also bought doubtless persuaded Mst. Subheti Khurd as malguzar to sue the purchaser and get the sale set aside. The defendant was apparently made tenant in 1898, and this was by a purchase from the former owner, the field being absolute occupancy. It seems fairly clear that the lady malguzar agreed to the defendant's holding the fields, for at the settlement they were recorded in defendant No. 2's name. The burden of proving the incorrectness of the settlement entry would lie heavily in the present case on the plaintiff. That burden does not seem to have been discharged by him. We therefore change that portion of the decree with regard to the four fields against the defendant No. 2, and dismiss that portion of the plaintiffs claim. No arguments have been advanced as regards the correctness of the amount decreed on account of the value of the moveables.

12. Except as regards the four fields, this appeal fails and is dismissed. Costs to be paid in proportion to success and failure.

13. Appeal partly allowed.