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Malkarjun Mahadev Belure Vs. Amrita Tukaram Dambare - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 989 of 1916
Judge
Reported inAIR1918Bom142; (1918)20BOMLR762; 47Ind.Cas.152
AppellantMalkarjun Mahadev Belure
RespondentAmrita Tukaram Dambare
DispositionAppeal allowed
Excerpt:
.....in 1207. the other daughter died in 1911. the plaintiff having filed the suit on 13th january 1915 to set aside the alienation :-;that the suit was not governed by art. 141 of the indian limitation act, 1908, inasmuch as the plaintiff claimed as the heir of her mother and the suit was not one brought by a hindu entitled to the possession of immoveable property on the death of a hindu female.;however, that the suit was in time under art. 144, for the vendee's possession, however adverse against the widows, could not he regarded as adverse against the plaintiff. - - 721 they express the well-known rule which is conveyed in the maxim contra non valentem agere non currit prescriptio, that is to say, prescription does not run against a man during the time when he is not entitled to..........it is contended that even if art, 144 applies, the defendant has not had that twelve years adverse possession against the plaintiff which, under the article, would be required for the invalidity of the plaintiff's suit. here, i think, the plaintiff is entitled to succeed. it may be conceded that the defendant's title was adverse to rangubai until her death in 1903 and. as contended by the learned advocate general, it would have been open to the presumptive rever-sioners even during the life time of the widows to sue for a declaration that the alienation by the elder widow was void. that, however, in my opinion, is not enough. the classical definition of the term 'adverse possession' is that given by mr. justice markby in bejoy chunder banerjee v. rally prosonno mookerjee i.l.r......
Judgment:

Stanley Batchelor, Kt., Acting, C.J.

1. You claim as the heir of Shantabai and not as one entitled to possession on the death of a female property on the death of a Hindu female. This Article, as the decided cases show, is restricted to suits by a plaintiff whose right and title to sue for possession occurs upon the death of a female holding the limited woman's estate, The point was so decided in Azam Bhuyan v. Faizuddin Ahamed I.L.R. (1886) Cal. 594 by Mr. Justice Wilson and Mr. Justice Ghose and these learned Judges, in considering the argument now under notice, observed that: 'Article 140 (of the Limitation Act) dealing with remaindermen, reversioners, and others, deals with a class of persons who claim under a title quite independent of the particular limited estate upon which the remainder, reversion, or other estate is dependent. And we think the case is the same under Art. 141...We think it refers to persons who claim under an independent title on the death of a Hindu or Mahomedan female. It would be straining the language and introducing a rule inconsistent with the principle of the Act if we were to hold that this Article applies to the case of a person suing on the very same cause of action which accrued to a Hindu female, and who acquires his right to sue as her heir.' To the same effect is the decision in Hashmat Begam v. Mazhar Husain I.L.R. (1888) All. 343 On this point, therefore, the argument for the appellant must be disallowed.

2. But, secondly, it is contended that even if Art, 144 applies, the defendant has not had that twelve years adverse possession against the plaintiff which, under the Article, would be required for the invalidity of the plaintiff's suit. Here, I think, the plaintiff is entitled to succeed. It may be conceded that the defendant's title was adverse to Rangubai until her death in 1903 and. as contended by the learned Advocate General, it would have been open to the presumptive rever-sioners even during the life time of the widows to sue for a declaration that the alienation by the elder widow was void. That, however, in my opinion, is not enough. The classical definition of the term 'adverse possession' is that given by Mr. Justice Markby in Bejoy Chunder Banerjee v. Rally Prosonno Mookerjee I.L.R. (1878) cal. 327 whore the learned Judge said : 'By adverse possession I understand to be meant possession by a person holding the land, on his own behalf, of some person other than the true owner, the true owner having a right to immediate possession.' These last words are of capital importance, because, as pointed out by Mr. Justice Batty in Tarubai v. Venkatrao I.L.R. (1902) Bom. 43 : 4 Bom. L.R. 721 they express the well-known rule which is conveyed in the maxim contra non valentem agere non currit prescriptio, that is to say, prescription does not run against a man during the time when he is not entitled to immediate possession.

3. The learned Advocate General frankly admits that he cannot urge that during the life-time of the widows any of these reversioners would have been entitled to immediate possession. That being so, the defendants' possession, however adverse against Rangubai, cannot be regarded as adverse against the plaintiff. The suit therefore is in time.

4. The result is that the appeal is allowed, the decree of the lower Court is set aside and the suit must be remanded to the trial Court to be heard out and decided according to law.

5. The appellant must have his costs of this appeal.

6. This judgment disposes also of Second Appeal No. 988 of 1916.

Kemp, J.

7. I agree that Art. 141 does not apply to the facts of this case, and assuming that the possession of the defendants was adverse to Kashibai, still I consider that no adverse possession runs against the plaintiff until the death of Rangubai on the 17th of January 1003. The suit is therefore within time.


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