Patna High Court
Inderdeo Rai And Ors. vs Deokaran Rai And Ors. on 6 August, 1954
Equivalent citations: AIR1955PAT292, 1954(2)BLJR561, AIR 1955 PATNA 292
JUDGMENT Narayan, J.
1. The plaintiffs are the appellants, and the appeal arises out of a suit for declaration of title and recovery of possession with regard to certain immoveable properties which once belonged to one Nohar Rai. Nohar Rai had six sons, Dudhnath, Harnandan, Sheonandan, Jadu, Misri and Bhadu. Sheonandan, Jadu and Misri died issueless. Dudhnath had six sons, out of whom three are plaintiffs in this suit. Dudhnath's son Mahatim Rai died leaving his son Bihari Rai who is plaintiff 4 in this action. Deokaran Rai, one of the sons of Dudhnath, is defendant 1, and his three sons are defendants 2, 3 and 5. Narain Rai, another son of Dudhnath, had died issueless. Plaintiff 5, Girja Prasad Rai, is the son of Inderdeo Rai, plaintiff No. 1. The case for the plaintiffs is that Sheonandan, Jadu and Misri had died in a state of jointness with their other brothers and the other members of the family, and that the branch of Dudhnath .Rai separated long ago after taking one-third share in the family properties. The branches of Hamandan and Bhadu are said to have remained joint after the separation of the branch of Dudhnath, and according to the plaintiff's allegation they have remained all along joint in property and business, accordingly Brahmadeo, the son of Harnandan, & the deceased husband of defendant 5 & Kapildeo & Banarsi, the sons of Bhadu, were jointly recorded with regard to 10 annas 4 pies share, and the plaintiffs were recorded in respect of 5 annas 4 pies share." Kapildeo was the husband of Mt. Naurangi Kuer, defendant 6, and Benarsi was the husband of Mt. Jagrani Kuer who died in the year 1945. Later on, defendant 1 separated from the plaintiffs, and the plaintiffs still continue to be the members of a joint Hindu family.
The allegation of the plaintiffs is that Brahmadeo died in 1325 Fasli, and thereafter Kapildeo died and Banarsi died last of all. It was contended by the plaintiffs that after the death of Jagrani in the year 1945 the plaintiffs and defendant 1 are the persons entitled to inherit the properties which have been described in Schedule A of the plaint and which originally belonged to the sons of Nohar Rai, but that the defendants 1st party in collusion and con cert with the two widows, defendants 5 and 6, did not allow the plaintiffs to enter into possession and themselves took possession of the entire properties. It is further stated that defendant 1, Deokaran Rai, had brought the three ladies under his influence and had got the name of his son, defendant 2, entered in the Land Registration office with regard to the entire properties. The plaintiffs, therefore seek a declaration that after the death of Jagrani, plaintiffs 1, 2 and 3 are en titled to three-fourth share in the properties, that defendant 1 is entitled to one-fourth share and that the ladies, defendants 5 and 6 are entitled only to maintenance. Consequent upon a declaration of their title they seek to recover possession of the disputed properties. The alternative relief prayed for is that if the plaintiffs be held to be not entitled to possession of the disputed property or any portion of it, then it be declared that the action taken by defendants 5 and 6 for giving the property to defendant 2 will not be binding on the plaintiffs after the death of defendants 5 and 6.
Defendants 2, 5 and 6 resisted the claim on various grounds. Substantially, their defence was that all the sons of Nohar Rai were separate from one another, and while Dhanbrata Kuer, defendant 5, came in possession of the properties left by Brahmadeo as his widow, after the death of Kapildeo who was the male owner of the properties, which had been allotted to the branch of Bhadu Rai, his widow Mt. Naurangi, came in possession of the properties. Defendants 5 and 6 had, according to the authority which they had received from their respective husbands, put defendant 2 in possession of the properties left by their husbands, and defendant 2 has by the efflux of time acquired an absolute title to those properties. The definite assertion of these defendants is that Banarsi had predeceased Kapildeo, and as such Jagrani, his widow, could not come in possession of any property as a limited owner.
2. The learned Subordinate Judge has dismissed the plaintiffs' claim on the findings that the six brothers had separated from one another, that Bana-rsi had predeceased Kapildeo and that defendant 2 has been in possession of the properties since the year 1924.
3. The main points for determination in this appeal are (1) whether Banarsi predeceased Kapildeo; and (2) whether the defendant 2 has acquired any interest in these properties and, if so, whether the plaintiffs are entitled to the alternative relief sought. We have no hesitation in agreeing With die learned Subordinate Judge that Banarsi had predeceased Kapildeo. (After discussion of some oral evidence his Lordships proceeded.) In my opinion, on the admission made by P. W. 3 that Kapildeo died in Kartik or Aglian, the only reasonable conclusion will be that the plaintiffs' version "on this point stands completely discredited. Exhibit B(1) is an application for mutation of names filed by Narain Rai and others, and this petition undoubtedly shows that Kapildeo and Banarsi were both alive on 30-9-1918 when this petition was filed . If Kapildeo had died in Jeth, then he could not be alive on 30-9-1918, which corresponds to 10th Ashin 1326.
It has, however, been pointed out by Mr. Tar-keshwar Nath, the counsel for the appellants, that this is really not a petition on behalf of Kapildeo and' Banarsi, but undoubtedly the contents of this petition go to show that Kapildeo and Banarsi were alive when it was filed. And in the objection petition that was filed on behalf of Dhanbrata Kuer and Naurangi Kuer on 25-1-1919 in this Land Registration case it is distinctly stated that after the death of Banarsi his 'entire property devolved upon Kapildeo and after the death of Kapildeo his 'entire property devolved upon Naurangi Kuer. It appears that there were about 20 Land Registration cases arising out of application for mutation filed by Narain Rai and others and objections were filed in all those cases. Ultimately, these cases were compromised, and the compromise petition is Ex. 1. The adimissibility of the documents, Exs. A and B(1) cannot, in my opinion, be objected to at the present stage. The formal proof of these two documents was waived and, as such, the defendants had no opportunity of proving the execution and the filing of these documents. Our attention has been drawn to the statement of Naurangi Kuer (D. W. 7) to the effect that the objection petition was not drafted under her instructions.
This statement cannot be considered without any regard to the context and without noting the other statements, of the lady in this connection. She had stated in her examination-in-chief that she had filed an objection petition and her name was mutated, and it appears that while she was being cross-examined on the point the cross-examining lawyer wanted to know certain details. She did state even in her cross-examination that her father was looking after the case, but she could not give all the details because, admittedly, she is a pardanashin lady and, she had her father for looking after the proceedings. Naturally, it was not possible for her to state if all the parties to the proceeding had joined in the compromise, nor could she state who had deposed in the case on her behalf. It was also not possible for her to say which mukhtar had drafted the objection petition, and when she says that the petition was not drafted under her instructions, she certainly means that it was not she who had given instruction to the mukhtar for drafting the objection. The statement referred to by the learned Counsel cannot, therefore, be considered without looking to the context in which it was made, and without having regard to her entire statements in this connection including her definite statement in her examination-ill-chief that she had filed an objection petition.
Learned Counsel for the appellants faintly suggested that the lady could not use her own previous statement in her favour and that consequently the statement made in Ex. A, the objection petition, that Banarsi predeceased Kapildeo was inadmissible. But, I think I rightly pointed out during the course of the argument that the statement in question was admissible at least under Section 11, Evidence Act, if under no other section. And Mr. Sinha, the Counsel for the respondents, has placed before us a decision reported in -- 'Sayeruddin Akonda v. Samiruddin Akonda', AIR 1923 Cal 378 (A), which supports my view completely. So far as these documents are concerned, it has to be borne in mind that they are practically admitted documents, inasmuch as their formal proof was dispensed with at the instance of the plaintiffs and also because it is common ground that the Land Registration cases were disposed of on the basis of the com-promise petition, Ex. 1. The applicants, Narain Rai, Deokaran Rai and others, were certainly parties to the compromise, and it is not open to them to question the genuineness of the application for mutation or the objections that were filed in the Land Registration department.
For these reasons we are in absolute agreement with the learned Subordinate Judge in his view that Banarsi had predeceased Kapildeo, and if Banarsi had predeceased Kapildeo, Jagrani could not acquire any interest in these properties. Kapil-deo's widow, Mt. Naurangi Kuer, is still alive, and as a limited owner she is entitled to possess all the family properties till her life-time. Mr. Sinha, the Counsel for the respondents, stated before us the position very correctly when he said that the plaintiffs had no case if Kapildeo was the last male owner and that the defendants had no case if Banarsi was the last male owner. But we have found that Kapilde was the last male owner, and consequently the contention put forward by the plaintiffs cannot succeed.
4. The question of separation and jointiness is not material in view of the above findings, but if any finding on this question be necessary, I am inclined to agree with the learned Subordinate Judge that on the evidence it will be quite reasonable to hold that all the six brothers had separated from one another. Our attention was drawn to the document, Ex. K. wherein one Khewat stands in the name of Dudhnath and another in the name of Harnandan. This was taken to be a circumstance indicating that they had two separate pattis and that the remaining brothers or their descendants have their interests in the patti of Harnandan. But if this document is to be considered, it is to be considered as a whole, and the specification of the shares as given in the document cannot be ignored. The learned Subordinate Judge has rightly pointed out that Ex. B(1) shows that the representatives of the different branches had sought to be substituted in place of Harnandan. I need not repeat that the oral evidence adduced by the defendants is more reliable than the oral evidence adduced by the plaintiffs, and, therefore, on the whole I cannot disagree "with the learned Subordinate Judge even in his finding on the question of jointness or separation.
5. The primary relief sought by the plaintiffs cannot, therefore, be granted, and defendant 6, the widow of Kapildeo is entitled to remain in possession of the properties till her life-time.
6. The next question which arises is whether the plaintiffs are entitled to the alternative relief sought. Undoubtedly, plaintiffs 1, 2 and 3 are the reversioners along with defendant 1, Deokaran Rai. And ordinarily there could be no difficulty in granting a declaration to this effect that alienations or transfers made by the ladies will not be binding on them after the death of defendants 5 and 6. But the evidence unmistakably goes to show that defendant 2 has been in possession ever since the year 1924. It is stated in the written statement that the two ladies as directed by their respective husbands had given the disputed properties to defendant 2 who has been coming in) possession since the year 1923 or 1924 when his name was mutated in the Government papers. The evidence adduced by the defendants for proving the possession of defendant 2 must be regarded as absolutely trustworthy, inasmuch as even P. W. 6 who is plaintiff 2 has admitted that Kedar, defendant 2, is in possession. As usual, Mr. Tarkeshwar Nath submitted a fair argument in the case and stated that defendant 2 must be taken to have been in possession since the year 1924. The contention of the learned Counsel, however, was that his possession should be regarded as permissive possession and, consequently, he should not have been held to have acquired any absolute title to the property.
We have given our best consideration to this contention and we are unable to accept it. The allegation in the plaint is that defendant 1 who is "a shrewd, clever and litigious person brought the three Musammats under his influence and control by use of his tact," and got the name of defendant 2 entered in the Land Registration Office. It is further stated that defendant 1 had "committed several other collusive and fraudulent acts," of which the plaintiffs had no information. Thus, certain very serious allegations have been made against defendant 1, and the impression that one gets after reading para 7 of, the plaint is that defendants 1 and 2 have acted in an improper and a dishonest manner, and their acts have been absolutely hostile to the defendants. Ordinarily, when a plaintiff sues for possession and alleges dispossession but fails to show that he has brought the suit within 12 years of dispossession there is a complete extinguishment of his title under Section 28, Limitation Act, & the title is taken as transferred to the adverse possessor after the lapse of the statutory period. It is also well-established that in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent; in other words, the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation. The conclusion appears to me to be irresistible in this case that in order to injure' the interest of the presumptive reversioners or the future heirs defendant 2 was put in the year 1923 or 1924 and that ever since then he has enjoyed the possession of the properties without any interference or obstruction on the part of anybody. In view of what is stated in para 7 of the plaint there can be no question of the possession of defendant 2 being regarded as permissive possession; the possession rather is notoriously bad and definitely harmful to the interest of the future heirs or reversioners. Really, it is no case of adoption, and, what was done is only this much that defendant 2 was put in possession on account of the manipulations of the ladies and his father. The possession of defendant 2 must, therefore, Be regarded as adverse, and the alternative relief prayed for cannot be granted if the claim is beyond time.
Mr. Tarkeshwar Nath, however, urged that the learned Subordinate Judge was not correct when he applied Article 125, Limitation Act to this case, inasmuch as, there was no alienation, within the meaning of the expression as it has been used in, Article 125, in favour of defendant 2. The contention, though apparently attractive, does not appear to me to be sound. It has been pointed out in several cases that the word "alienation" has not been used in Article 125 in a restricted sense, and there does not appear to be any ground for holding that it means alienation only by means of a written or registered document. This Article has been held to apply in all cases in which the widow has directly or indirectly parted with her right and interest in the estate and passed it to some third person. There is a direct authority on the point, and it is reported in -- 'Anant Bahadur Singh v. Tirathraj, AIR 1939 All 526 (B), and speaking for myself I respectfully agree with the views of Iqbal Ahmad J., as expressed in this case. It follows certain Bench decisions of the Allahabad High Court. In -- 'Ran SARUP v. Ram Dei', 29 All 239 (C), it was held that where a widow who was plaintiff in a suit to recover property in respect of which she was entitled to a Hindu widow's estate bad been party to a collusive arbitration by which the whole of the property of her husband was divided amongst certain female members of the family, it being entered in the compromise that each of the parties to the arbitration proceedings would take an absolute estate in the share allotted to her, the proceeding amounted to an alienation of the property so dealt with within the meaning of Article 125, Limitation Act.
This case followed an earlier decision of the same Court in -- 'Sheo Singh v. Jeoni', 19 All 524 (D), in which it had been held that the action of a Hindu widow in allowing a collusive suit to be brought against her for possession of her late husband's estate and in confessing judgment and suffering a decree to be passed in favour of the plaintiff amounted to an alienation within the meaning of Article 125, Limitation Act. What has been done in this case should, therefore, be regarded as an alienation by the widow, and the case is not taken out of the purview of Article 125, simply because there is no written document with regard to the alienation. But though defendant 2 has acquired title by adverse possession, it is open to the next reversioners to question this alienation after the death of the widow, and it is still open to the widow to surrender her life interest to the next reversioners.
This position of law has now been absolutely made clear by a recent judgment of the Supreme Court reported in -- 'Natvarlal Punjabhai v. Dadu-bhai Manubhai', AIR 1954 SC 61 (E). The appeal before their Lordships of the Supreme Court was from a Full Bench decision of the Bombay High Court reported in --' 'Natvarlal v. Dadubhai', AIR 1950 Bom. 55 (FB) (F). The ratio decidendi of the Bombay decision is that a widow is entitled to surrender her life interest in favour of the next reversioners even though others have completed their title with regard to the estate by adverse possession and she is no longer left with any property, and such a surrender is regarded as valid; and in the event of such a surrender the next reversioner is not bound by it till the death of the widow but becomes entitled to obtain possession immediately on the surrender being executed. The view taken by the Bombay High-Court'seems to have been affirmed completely by their Lordships of the Supreme Court, and I should like to quote the following passage from the judgment of Mukherjea J., who delivered the judgment of the Supreme Court:
"As surrender conveys nothing in law and merely causes' extinction of the widow's rights in her husband's estate, there is no reason why it should be necessary that the estate must remain with the widow before she could exercise her power of surrender. The widow might have alienated the property to a stranger or some one might have been in adverse possession of the same fox more than the statutory period. If the alienation is for the legal necessity, it would certainly be binding upon the estate and it could not be impeached by any person under any circumstance. But if the alienation is not for legal necessity, or if a squatter has acquired title by adverse possession against the widow, neither the alienation nor the rights of the adverse possessor could affect the reversioners' estate at all. These rights have their origin in acts or omissions of the widow which are not binding on the husband's estate. They are in reality dependent upon the widow's estate and if the widow's estate is extinguished by any means known to law, e.g., by her adopting a son or marrying again, these rights must also cease to exist. The same consequences should follow "when the widow withdraws herself from her husband's estate by an act of renunciation on her part .................. The Madras High Court has also expressly held that the position of a person, who has acquired by adverse possession the limited interest of a Hindu widow is exactly the same as that of an alienee from her and if the title o£ such person has been completed already, it could not be defeated by a surrender made by the widow.............In our opinion, there is no warrant in Hindu Law for the proposition that in case of alienation by a Hindu widow of her husband's property without any justifying necessity, or in the case of a stranger acquiring tide by adverse possession against her, the interest created is to be deemed to be severed from the inheritance and if a surrender is made subsequently by the widow, the surrenderee must take it subject to such prior interest. Sulaiman J., in the Allahabad case: -- "Vide Lachmichand v. Lachho', AIR 1927 All 258 (G), cited above enunciated the law with perfect precision when he said that the effect of an alienation by a widow is not to split up the husband's estate into two parts or to give to the alienee an interest necessarily co-extensive with her life-time. The reversionary right to challenge it is no part of the widow's estate at all and, therefore, could not be surrendered to the reversioner ..................... The appellants are not alienees from the widow; they came upon the land as trespassers without any right and it is the law of limitation that has legalised what was originally a clear act of usurpation. They have enjoyed their property since 1925, and as the title which they have acquired is not available against the reversionary interest, we do not see any reason sanctioned by law or equity for not allowing the reversioners their full legal rights."
The Supreme Court decision must now be taken to be the last word on the subjecty and in the event of a surrender or in the event of the widow's death it will be open to the reversioners to claim the property once again. But there is no escape from the position that the present claim is barred under Article 125, Limitation Act. The date of the alienation must be taken to be the date on which defendant 2 entered into possession, and if during the life-time of the widow the reversioners thought of questioning this alienation they had to come within 12 years from the date on which defendant 2 entered into possession. This having not been done, the present claim must be dismissed. A cross-objection has been filed on behalf of defendant 2 in this case, but it has not been pressed and if will, therefore, stand dismissed.
7. In the result, I would dismiss the appeal with costs. The cross-objection is also dismissed, but without costs.
Choudhary, J.
8. I agree.