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Smart Summary

Summary of the Provided Legal Opinion

Factual and Procedural Background

The dispute arises from the inheritance and subsequent transfers of immovable property originally held by Hiraman. Hiraman and Amersingh were brothers. Hiraman married Kasturibai and had a son Tikaram (who predeceased Hiraman) whose two widows were Subheti Kala and Subheti Khurd. After Hiraman's death, his widow Kasturibai inherited his property; upon her death in 1886 the two widows of Tikaram came into possession. Over time they separated, Subheti Kala taking mouza Bilanda and Bhaliwada, and Subheti Khurd taking Bagdari and Lingpani. Subheti Khurd allegedly adopted defendant No. 1 (an adoption later declared invalid by Subheti Kala in 1901). Subheti Khurd died on 28-2-1921 and the present suit was brought by Harisingh (plaintiff) seeking the property left by her.

Plaintiff's case: after Kasturibai's death Amersingh (plaintiff's ancestor) became entitled as reversioner to Hiraman's property but allowed the two widows to enjoy it in lieu of maintenance; defendants wrongfully took possession after Subheti Khurd's death and defendant No. 2 (an agent of Subheti Khurd) manipulated records to have portions entered in the name of his son (defendant No. 1).

Defendants' case: the fields and moveables did not belong to Hiraman; Subheti Khurd took possession as a trespasser after Kasturibai's death and her possession was adverse leading to title by prescription; Subheti Khurd gave Bagdari and other property to defendant No. 1 by registered deed dated 12-10-12 and later orally gifted other property and put defendant No. 1 in possession; defendant No. 2 denied undue influence and denied being Mukhtyar at relevant times; defendants relied on a prior suit (Civil Suit No. 33 of 1916) as constituting res judicata.

The trial proceeded on a set of specific issues (see below). The trial court found that the widows held only a life (widow's) interest, that the registered deed of gift (12-10-12) did effect a gift of Bagdari but that other alleged oral gifts and transfers were invalid or not proved, found undue influence in respect of the registered gift as the agent had exercised influence, held the gifts not binding on the plaintiff (who was an heir), held most of the fields had been acquired by defendant No. 2 except four fields, valued moveables at Rs. 1,400 as pertaining to Hiraman's estate, and rejected res judicata. The present appeal challenged various of these findings.

Legal Issues Presented

  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?

Arguments of the Parties

Appellants-Defendants' Arguments

  • Since Hiraman and Amersingh were separate and Tikaram predeceased his father, on Kasturibai's (Hiraman's widow) death in 1886 the widows of Tikaram had no right to Hiraman's property; therefore their possession was adverse from that date and could ripen into title by prescription.
  • Admitted inability to press claim for Lingpani; claim limited to Bagdari and certain fields decreed to plaintiff.
  • Mutation records (Exhibits P-17, P-18, P-19) show the widows asked for mutation as heirs but admitted Amersingh would succeed them, supporting adverse-possession arguments.
  • Authorities (Sheolal v. Mt. Shoerajai; Sham Doer v. Dah Koer; Lachhan Kunwar v. Manorath Ram; Gajadhar Pande v. Parbati) cited to argue possession for more than 12 years barred plaintiff's present claim by prescription.
  • Earlier suit (Civil Suit No. 33 of 1916) and subsequent proceedings and alleged admissions therein (judgment Exhibit D-8) are relied on to assert res judicata or at least conclusive factual findings against plaintiff.
  • Regarding gifts: contended that if Subheti Khurd had an absolute estate she had the right to give it away; the registered deed (12-10-12) was executed by her and should be valid; the deed was previously held invalid on grounds of non-delivery of possession and undue influence but appellants challenged those holdings in light of Section 123 and Section 129, Transfer of Property Act.

Plaintiff's Arguments

  • After Kasturibai's death it was settled between Amersingh and the two Subhetis that the widows would enjoy the property in lieu of maintenance, i.e., only a widow's life-interest (limited interest), not absolute ownership.
  • The widows thereby only acquired a widow's estate; they did not hold adversely to Amersingh.
  • The alleged gifts did not pass title to defendant No. 1 because defendant No. 1 was never put in possession; the registered deed did not validly effect transfer for reasons found at trial (including undue influence).
  • Challenged the applicability of res judicata based on the scope and parties in the earlier proceedings (Suit No. 33 of 1916) and the timing of plaintiff's joinder.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sheolal v. Mt. Shoerajai Cited in support of the proposition that adverse possession/prescription can bar claims. The court records the appellants' reliance on this authority for the adverse-possession argument, but ultimately concludes the widows' possession was permissive (life-interest) and not adverse, so the authority did not decide the case for appellants.
Sham Doer v. Dah Koer Cited for the principle that possession by one not entitled may be adverse to others and lead to prescriptive title. Noted by the court as relied upon by appellants; the court found facts (agreement/mutation statements) showing permissive possession and therefore did not apply the adverse-possession rule relied upon from this case.
Lachhan Kunwar v. Manorath Ram Cited in support of the argument that prolonged adverse possession can time-bar claims. Referred to as one of the authorities relied on by appellants. The court found the mutation and other evidence supported a life-interest and thus that these authorities did not support appellants' claim of prescription in this factual context.
Gajadhar Pande v. Parbati Cited to support the plea of time-bar (prescription) based on adverse possession. Quoted by appellants; the court considered it but held no adverse possession existed here, so the precedent did not lead to dismissal of plaintiff's claim.
Govinda v. Malhari Held that under Hindu law delivery of possession was necessary to constitute a valid gift of immovable property (and commented on the effect of Transfer of Property Act formalities). The court quoted this decision but ultimately treated it as erroneous in light of Section 123 of the Transfer of Property Act when dealing with registered instruments. Nevertheless, the court did not need to decide the validity of the registered deed because it found the widow lacked power to alienate the property (life-interest).
Mst. Sani v. Pancham Patil Followed the view in Govinda v. Malhari concerning delivery of possession as essential under Hindu law for gifts. Cited as a follow-up decision; the court considered both Govinda and Mst. Sani as erroneous insofar as they applied a possession-delivery requirement to registered gifts covered by Section 123 of the Transfer of Property Act.
Pkul Chand v. Lakkhu; Pahlwan Singh v. Ram Bharose; Kalidas Mullick v. Kanhaya Lal Pandit (Privy Council) Cited as authorities from other High Courts/Privy Council reflecting the provisions of the Transfer of Property Act on gifts of immovable property (i.e., validity by registered instrument). The court referred to these cases as following the Transfer of Property Act provisions and used them to show that other courts treat registration under Section 123 as sufficient; this influenced the court's view that the older decisions imposing a delivery-of-possession requirement were erroneous.
Dharmodas Das v. Nistarini Dasi; Balbhadra v. Bhawani; Bai Rambai v. Bai Mani; Muhammad Abdul Nayeem v. Jhonti Mahton (Patna) Cited as further authorities following the Transfer of Property Act's approach to gifts of immovable property. The court cited these cases to support the proposition that Section 123 (and related provisions) changed the law such that a registered instrument can effect a gift of immovable property without the older requirement of delivery of possession under Hindu law.
Mahabir Pershad v. Adhikari Koer Cited as relevant authority regarding the characterization of a widow's possession or similar succession/possession issues. The court regarded this decision as relevant to determining whether the widows held as life-holders or in their own right and relied on it among other authorities to support the conclusion that the widows held a limited (life) interest.
Lajwanti v. Safa Chand Cited as a decision relevant to issues of succession/possession and the character of widows' estate. Considered by the court as in point on the issue whether the widows held merely a life-interest; it contributed to the court's conclusion that the widows had only a limited interest.

Court's Reasoning and Analysis

The court's analysis proceeded along several lines of inquiry explicitly grounded in the record and prior authorities:

  1. Character of the widows' possession:
    • The court examined the mutation proceedings (Exhibits P-17, P-18, P-19) and witness depositions (including plaintiff and P.W. 2 Jhandi Prasad and P.W. 3 Mandra) and found that the widows had presented themselves as heirs who acknowledged that after their deaths Amersingh would succeed. The widows and Amersingh made statements in mutation proceedings indicating that the widows were to hold only for their lives.
    • On this basis the court found that the widows' possession was permissive (an arrangement with Amersingh) and amounted to a life-interest (a widow's estate), not an adverse, absolute estate.
    • Because the court found a life-interest, the widows did not have the power to make absolute gifts or alienations binding on reversioners.
  2. Prescription / adverse possession arguments:
    • Although appellants relied on authorities for adverse possession, the court held that no adverse possession arose because possession was permissive under the agreement with Amersingh; therefore prescription arguments failed on these facts.
  3. Validity of gifts and effect of Transfer of Property Act:
    • The court considered the argument that under Hindu law delivery of possession was required to complete a gift (as stated in Govinda v. Malhari and followed in Mst. Sani v. Pancham Patil). It also considered authorities from other courts applying Section 123 of the Transfer of Property Act which provide that a registered instrument can effect a gift of immovable property.
    • The court concluded that the older decisions requiring delivery of possession are erroneous insofar as they treat delivery as necessary where a registered instrument under Section 123 exists; Section 123 (read with Section 129) allows a registered instrument to effect a gift of immovable property without separate delivery of possession.
    • Despite this view on the law of gifts, the court held that it was unnecessary to decide the validity of the registered deed of gift in this case because the widow (Subheti Khurd) was found only to have a life-interest and therefore lacked the power to alienate the immovable property absolutely; moreover the trial court had found undue influence in respect of the registered deed. Thus the court affirmed the trial court's conclusion that the gifts were not binding on the plaintiff.
  4. Res judicata argument:
    • The court reviewed the prior suit (Civil Suit No. 33 of 1916) and the parties thereto, noting the complexities of joinder and appeal. It held that res judicata did not bar the present claim because the earlier proceedings concerned a widow suing for possession and the plaintiff's estate would only vest upon the deaths of both widows; plaintiff was not a party to the appeals and it was not necessary at the time of the earlier suit for him to assert a present title that would only accrue on the widow's death.
  5. Four fields and burden of proof:
    • The trial court had found that four fields belonged to defendant No. 2 (acquired from a tenant and entered in defendant No. 2's name in settlement). The appellate court observed that the plaintiff bore a heavy burden to show the settlement entry was incorrect and that this burden had not been discharged. Accordingly the appellate court altered the decree to dismiss the plaintiff's claim regarding those four fields.
  6. Moveables:
    • The trial court had valued moveables at Rs. 1,400 and found them to pertain to Hiraman's estate; no arguments were advanced on appeal challenging that valuation, and the appellate court did not disturb that finding.

Holding and Implications

Core Ruling: Except as regards the four fields (which were held by defendant No. 2), the appeal fails and is dismissed; overall, the appeal is described as partly allowed/partly dismissed in the judgment.

Direct consequences for the parties (as stated in the opinion):

  • The trial court's principal findings that the two widows held only a limited life-interest (widow's estate) in Hiraman's immovable property were upheld; they did not have absolute power to alienate the property.
  • The registered and alleged gifts by Subheti Khurd were found not to be binding on the plaintiff (who was held to be an heir), and, on the facts, undue influence was found by the trial court in relation to the registered deed.
  • The appellate court changed the decree concerning the four fields in favour of defendant No. 2 and dismissed the plaintiff's claim as to those fields.
  • The moveables were valued at Rs. 1,400 and were held to pertain to Hiraman's estate; that aspect of the decree stood unchallenged on appeal.
  • Costs were to be paid in proportion to success and failure.

Broader legal observations made by the court:

  • The court expressed the view that earlier decisions (notably Govinda v. Malhari and decisions following it) which held that under Hindu law delivery of possession was necessary to complete a gift are erroneous in cases where a registered instrument of gift exists. The court stated that Section 123 of the Transfer of Property Act abrogates the requirement of delivery of possession for registered gifts of immovable property.
  • However, in this particular case the court did not need to rely on that conclusion to dispose of the appeal because it found the widow only had a life-interest and thus lacked the competence to make absolute gifts binding on the reversioner.

Disposition: Appeal partly allowed in respect of the four fields (in favour of defendants) and otherwise dismissed; costs to follow the result.

Show full summary ...

    Bhagwan Prasad v. Harisingh

    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.

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    Comments

    Bhagwan Prasad v. Harisingh
    (Jul 30, 1924)