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Anna Nana Khot Vs. Gojra Dnyanu Kavale - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 74 of 1926
Judge
Reported inAIR1928Bom333; (1928)30BOMLR867; 114Ind.Cas.390
AppellantAnna Nana Khot
RespondentGojra Dnyanu Kavale
Excerpt:
.....law-widow-surrender and acceleration-deed of gift to next reversioner agreement to maintain the widow watan property-adverse possession.;on the death of a hindu watandar his watan and other properties were inherited by his widow; but the widow having remarried, the properties passed to his mother. in 1911, the mother gifted away the non-watan properties to her daughter (the mother of defendant no. 1), who asjreed to maintain the mother. the mother died in 1919; and in 1924, the plaintiffs, the revorsioners of the watandar, sued to recover possession of the property :-;(1) that so far as regards the non watan property was concerned, the alienation was valid as a surrender by a hindu widow, for the mother divested herself of the whole property which came to her as heir :;rangasami..........hari. the learned subordinate judge, with regard to the rayatawa lands and property other than watan property, held that there was a surrender by the widow of the entire estate in favour of her daughter bhagu and that the surrender was valid according to the hindu law. with regard to the watan property the learned subordinate judge held that there who adverse possession of rakhma and of defendants nos. 1 and 2. the suit of the plaintiffs was, therefore, dismissed. on appeal, the learned district judge held with regard to the watan property that the date on which rakhma's possession became adverse was not proved as there was no evidence in the case as to when jija remarried. he also held that even assuming that rakhma was in possession for more than twelve years her possession was not.....
Judgment:

Patkar, J.

1. The properties in suit are Survey Nos. 158, 298, 152 and a house and an open space. Survey No. 158 is watan property and Survey Nos. 298 and 152 aro rayatawa lands. One Rama was the original owner of the property. After his deatli his property was inherited by Hari who died in 1901. Jija, the widow of Hari, remarried and the property went into the possession of Hari's mother Rakhma who, on April 1, 1911, passed a deed of gift with regard to the rayatawa lands in favour of her daughter Bhagu by Exhibit 17. Bhagu died on July 13, 1917, leaving a daughter Gojra, defendant No. 1, who is married to defendant No. 2. On July 11, 1919, Rakhma died and the present suit was filed on April 15, 1924, by the present plaintiffs who are sons of Nana, cousin of Hari, and claim to be the reversioners to the estate of the deceased Hari. The learned Subordinate Judge, with regard to the rayatawa lands and property other than watan property, held that there was a surrender by the widow of the entire estate in favour of her daughter Bhagu and that the surrender was valid according to the Hindu law. With regard to the watan property the learned Subordinate Judge held that there who adverse possession of Rakhma and of defendants Nos. 1 and 2. The suit of the plaintiffs was, therefore, dismissed. On appeal, the learned District Judge held with regard to the watan property that the date on which Rakhma's possession became adverse was not proved as there was no evidence in the case as to when Jija remarried. He also held that even assuming that Rakhma was in possession for more than twelve years her possession was not adverse to the reversioners and that the adverse possession, if any, would benefit herself and not her heirs, and that the property would become a part of the widow's estate according to the ruling in Lajwanti v. safa Chand I.L.R (1924) Lah. 192 With regard to the other property the learned District Judge came to the conclusion that there was a surrender of the widow's estate in favour of the next reversioner and the gift deed in favour of Bhagu dated April 1, 1911, was valid. The decree of the trial Court was, therefore, reversed with regard to the watan lands and confirmed with regard to the non-watan property. The plaintiff's have filed this appeal with regard to the rayatawa and non-watan property, and the defendants have filed cross-objections with regard to the watan property.

2. First, with regard to the non-watan property, it is argued on behalf of the plaintiffs, the reversioners, that the deed of gift was not a surrender of the widow's whole interest in the property as the gift deed comprised only the non-watan property and the watan property was retained by the widow. It is further urged that, there was an agreement to maintain the widow and therefore there was no valid surrender of the widow's estate. So far as the property inherited by Rakhma as a Hindu widow is concerned she has divested herself of the whole property which came to her as heir. The watan property was not inherited by her as an heir, but was acquired by her by adverse possession. Hari died in 1901 and, on April 1, 1911, the widow had not even acquired a title by adverse possession with regard to the watan property. She divested herself of the whole of the property which came to her as heir. It cannot, therefore, be said that the surrender was not of the whole estate inherited by her. The finding of the lower Court is that it was a bona fide surrender, and it cannot be said that it was a device to divide the estate with the reversioners. According to the view of the Privy Council in Rangasami Gounden v. Nachiappa Gounden and Suresh-war Missar v. Maheshrani Misrain (1920) L.R. 47 IndAp 288 the surrender was of the whole estate so far as the estate inherited by Rakhma was con-corned and it was valid and binding as against the reversioners.

3. It is urged that the surrender was not valid as there wan an agreement to maintain the widow and reliance is placed on the case in Adiveppa v. Toutappa (1919) 22 Bom. L.R. 94. As a matter of fact there was no agreement to maintain Rakhma, the only agreement was that Rakhma was to ba taken care of by the donee. Even assuming that the provision amounted to a provision for maintenance, tin- The ruling in Adiveppa v. Toutappa has been dissented from in Rama v. Dhondi : AIR1923Bom432 following the decision of the Privy Council in in Sureshwr Misser v. Maheshrani Misrain (1920) L.R. 47 I.A 233. We think, therefore, that there wan a valid surrender and there was nothing in the deed gift which prevented the acceleration of the estate to the next reversioners.

4. With regard to the watan property, it does not appear that Rakhma took possession of this property soon after the death of Hari as Jija was in possession for some time. The date when Jija re-married does not appear to have been fixed by the evidence on record. It has not, therefore, been shown that Rakhma was in adverse possession for more than twelve years. Assuming, however, that Rakhma was in possession of the property for more than twelve years, the question arises whether Rakhma got title to the watan property by adverse possession, and whether the property became her stridhan which would go to her heirs and not to the heirs of the last male holder. The learned District Judge relied upon the case of the Privy Council in Lajwanti v. Safa Chand. I.L.R (1924) Lah. 192 : 26 Bom. L.R. 1117, P.C. The judgment of the Privy Council is expressed in wide terms. It is argued oil behalf of the respondents that the case in Lajwanti v. Safa Chand was decided on the special facts of that case and reliance is placed on the cases in Lachhan Kunwar v. Manorath Ram I.L.R (1894) Cal 445. Sham Koer v. Dah Koer I.L.R (1902) 29 Cal. 664: 4 Bom. L.R. 547; Uman Shankar v. Musammat Aisha Khatun I.L.R (1923) All. 729; and Kali Charan v. Piari. I.L.R (1924) 1. In considering this question we have also to consider the nature of the property which was taken possession of by Rakhma. The property taken possession of by Rakhma was watan property and it is not shown that the watan property loses its character by reason of adverse possession by a widow in the watandar's family. It has been held that the service commutation settlement has not the effect of converting the watan property into a private property, nor does the imposition of the full assessment change its character. See Bai Jadav v. Narsilal I.L.R (1900) Bom. 470: 3 Bom. L.R. 249 Appaji Bapuji v. Keshav Shamrav I.L.R (1890) Bom. 13; and Shivram v. Mahadev. : (1912)14BOMLR797 . We have to consider whether by reason of adverse possession the character of the property is changed. The point, however, was considered by the Privy Council in Padapa v. Swamirao. I.L.R (1900) Bom. 556 : 2 Bom. L.R. 548 Their Lordship say (p. 562)

Assuming that the appellant was barred by limitation from recovering the lands as heir of his father from those claiming under Kalova, and consequently his title as vatandar from his own birth was extinguished, that circumstance did not alter the tenure. The lands remained vatan and Kalova was vatandar de facto with all the rights and subject to all the restrictions incident to that tenure. In the order of Mr. Gordon, under which Kalova obtained possession, it was conferred on her as vatan and in the mortgage made by her the lands are described as vatan. And in all the proceedings in the Collector's office she is recognised, aa vatandar. It is clear, therefore, that she held possession as vatandar and in no other character. Consequently she could not make any alienation which would be valid against her own heir whether that heir were the appellant or another. And on the assumption that the appellant's earlier title is extinguished by limitation there is nothing to preclude him from asserting his title as Kalova's heir. The argument seems to give greater right to possession as vatandar by wrong or usurpation than would be enjoyed by a rightful vatandar.

5. We think, therefore, that the property did not lose its character of watan property, and after the death of Rekhma the property would go to the present plaintiffs as the next male reversioners in preference to defendant No. 1 who is a granddaughter of Rekhma.

6. In this view, it is not necessary to consider the other questions arising in the case, whether the authority of the case in Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande I.L.R (1885) Bom. 198. has been affected by the ruling of the Privy Council in Madhavrao Waman v. Raghunath Venkatesh I.L.R (1923) Bom. 798: 25 Bom. L.R. 1005, and whether the, ruling in Lajwanti v. Safa Chand I.L.R(1924) Lah. 192 turns upon the special facts of that case. On these grounds we confirm the decree of the lower appellate Court and dismiss the appeal and the cross-objections with costs.

Baker, J.

7. I agree. So far as regards the rayatawa property the widow did divest hereself of the whole estate and thus there was an acceleration of the right in favour of her daughter as the next reversioner and, therefore, the transaction is covered by the Privy Council rulings in Rangasami Gownden v. Nachi-appa Gownden (1818) L.R. 46 IndAp 72: 21 Bom. L.R. 640 and Bhagwat Koer v. Dhanukhdhari Prashad singh .

8. As regards the question of watan property a number of cases have been quoted but in all those cases the widow or the widows asserted their title as full heir to the separate share held by her husband as in the cases of Satgur Prasad v. Raj Kishore Lal I.L.R (1919) All 152: 22 Bom. L.R. 451, p.c and Uman Shankar v. Musammat Aisha Khatun. I.L.R (1923) All. 720 In Kali Charan v. Piari I.L.R (1924) All 769 the widow took possession of the property which was in her husband's possession during his lifetime. That case states that the nature of the widow's possession has to be determined by the facts in each case. In the present case the property is a watan property and there is a direct authority of the Privy Council on the point in Padapa v. Swamirao I.L.R (1900) Bom. 556 : 2 Bom. L.R. 548 where it is held that where a widow held the possession as watandar and in no other character she could not make any alienation which would be valid against her own heir whether that heir were the appellant or another. In these circumstances I agree that the decree of the lower appellate Court should be upheld and the appeal and the cross-objections dismissed with costs.


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