1. This is an appeal by plaintiff 1 and it arises out of a judgment and decree passed by the learned Assistant Judge, South Satara at Sangli, in Civil Appeal No. 178 of 1951 which arose out of a judgment and decree in Civil Suit No. 67 of 1950 which was filed in the Court of the Jt. Civil Judge J.D. at Islampur.
2. The facts of the case which have led to this litigation may now shortly be stated. The suit property in this case is a house in Kalawadl a village in South Satara District. This property originally belonged to one Hari Raghu Shimpi. Hari Raghu died on 25-8-1907 leaving surviving behind him his widow Bai Ganga and daughter Bai Vithabai.
It is not disputed that even during the lifetime of Hari Raghu, Hari's wife Bai Ganga was living an unchaste life. She was living a life of adulterous intercourse with one Sakharam Gopal and as a result of this adulterous intercourse of Bai Ganga with Sakharam Gopal, an illegitimate daughter Bai Soni was born to Bal Ganga on 1-11-1905.
It may be noted at this stage that Bai Vithabai was the natural daughter of Hari by his wife Bai Ganga. Vithabai died somewhere about the year 1925. Bai Ganga died on 11-3-1938. Now, the important transactions with which we are concerned in this litigation are the two transactions of mortgages and one transaction of sale.
The first mortgage transaction is evidenced by Ex. 29. It is a transaction dated 15-5-1908, whereby Bai Ganga mortgaged the suit house to Bala Hari for Rs. 100/-. The second transaction is evidence by Ex. 30. It is also a mortgage transaction dated 18-5-1908 whereby Bat Ganga again mortgaged the suit house to Bala Hari for Rs. 200/-.
The third transaction is evidenced by Ex. 31 and it is a transaction of sale whereby on 30-10-1935 Bai Ganga sold the suit house to the present defendant for Rs. 500/-. It may be noted that to this document of sale Ex. 31 Bai Soni, the illegitimate daughter of Bai Ganga, was a co-executant. After the suit house was sold by Bai Ganga to the defendant on 30-10-1935, the defendant filed Suit No. 771 of 1936 to redeem the mortgage transaction dated 15-5-1908, via., the transaction referred to in the mortgage deed Ex. 29.
On 12-4-1938, Bai Saraswati who is the daughter of Bai Vithabai, sold the suit house to the present plaintiff 1 for Rs. 200/-. The sale deed in this connection is Ex. 24. It may be noted that Bai Saraswati who, as I have just said, is the natural daughter of Bai Vithabai was born in the year 1918. She is plaintiff 2 in this suit. She sold the suit house to the present plaintiff 1 subject to the mortgage of 18-5-1908 which is evidenced by Ex. 30.
In execution of the mortgage decree obtained by the present defendant in his Suit No. 771 of 1936, he (defendant) obtained possession of the suit house on 20-8-1939. The present suit was filed by Bai Saraswati and Sitaram, the purchaser from Saraswati, on 2-3-1950 and it was a suit to recover possession of the suit house on the ground that there was no legal necessity for Bai Ganga to sell this house to the present defendant by the sale deed Ex. 31.
3. The learned trial Judge came to the conclusion that the sale deed Ex. 31 was partially passed for legal necessity. In the view of the learned Judge, there was legal necessity for that transaction to the extent of Rs. 150/-. Accordingly, the learned Civil Judge ordered the sale as evidence by Ex. 31 to be set aside on condition that the plaintiff 1 Sitaram paid Rs. 150/-to the defendant, upon which payment the plaintiff 1 was to recover possession of the suit house from the defendant.
From the above mentioned decision of the learned Civil Judge J. D. at Islampur, the defendant went in appeal. The appeal was heard and decided by the learned Assistant Judge, South Satara. In the appeal the question of legal necessity was not pressed at all. The only point which was raised and pressed in appeal on behalf of the defendant was that Bai Ganga had become an absolute owner of the suit house by adverse possession and that it was as absolute owner that she had sold the house to the defendant.
The learned Assistant Judge accepted the defendant's contention and held that Bai Ganga had become a full owner of the suit house by adverse possession and that, therefore, it was perfectly competent to Bai Ganga to sell the house to the defendant who had, by virtue of the sale become full owner of the house. It is this view of the learned Assistant Judge which is challenged in this appeal by the learned Advocate Mr. Madbhavi appearing for the original plaintiff 1, the purchaser from Bai Saraswati who is plaintiff 2.
4. It would appear that on the date upon which Bai Ganga's husband Hari Raghu died, that is to say on 25-8-1907, Bai Ganga went into possession of the suit house. That possession was wrongful. There is no dispute about that position in this case. As Bai Ganga was living a life of adulterous intercourse with her paramour, Sakharam Gopal, she had forfeited her right to maintenance from her husband's property.
She had also forfeited her right to residence in the suit house and she was not entitled to inherit the property left by her husband. It is, therefore, evident that upon the death of her husband on 25-8-1907, although Bai Ganga went into possession of the suit house, it was a wrongful possession. From 25-8-1907 to 15-5-1903, Bai Ganga remained in wrongful possession of the suit house.
On 15-5-1908, she mortgaged the house for RS. 100 to Bala Hari and put Bala Hari in possession of the house. Bala Hari, it would appear remained in possession of the house till 30-10-1935, the date upon which Bai Ganga sold the house to the present, defendant and put him in possession. It would, thus appear that from 15-5-1908 to 30-10-1935, Bala Hari was in possession, but that possession, also was wrongful possession as the person from whom that possession was obtained viz. Bai Ganga, was also in wrongful possession of this house between 25-8-1907 and 15-5-1908.
5. NOW, the question which has arisen for determination in this case is whether Bai Ganga's possession of this house between 25-8-1907 and 15-5-1908 and thereafter her mortgagee's possession of this house between 15-5-1908 and 30-10-1935 could in law amount to adverse possession by Bai Ganga. If this question is decided in the affirmative, then the plaintiff 1 must lose this appeal and if the answer to the question be in the negative, then the appeal must succeed.
6. If we turn to para 211 at p. 235 of Sir Dinshaw Mulla's Principles of Hindu Law, we find that the learned author has observed thus:
'Property acquired by a Hindu widow or other limited heir by adverse possession, of which she took and retained possession absolutely in her own right for twelve years or upwards, is her stridhan, and she may dispose of it by deed or will: on her death intestate it descends to her stridhan heirs. But if the property acquired by adverse possession was claimed and held by her not in her own right, but as a widow representing her husband's estate, it is not her stridhan, but an accretion to her husband's estate, and in it she takes no more than a widow's estate and it descends on her death to her husband's heirs.'
Now the learned Advocate Mr. Gupte appearing for the defendant-respondent has contended before me that by virtue of the fact that Bai Ganga had taken possession of the suit house upon her husband's death on 25-8-1907 and had consistently retained possession thereafter either through herself or through her mortgagee, we mast come to the conclusion that the suit house had become her stridhan and she was competent to dispose of it in any manner she chose.
In this manner, Mr. Gupte contends that the sale deed Ex. 31 in respect of this house which was passed by Bai Ganga in favour of the defendant on 30-10-35 was a perfectly good and valid transaction, on the other hand, the learned Advocate Mr. Madbhavi for plaintiff 1 contends that Bai Ganga never claimed the suit house in her own right that all along she was dealing with it as her husband's heir and that, therefore, the house had never become her stridhan.
Mr. Madbhavi says that Bai Ganga never had anything more than a widow's estate in this house and that, therefore, upon her death, it must descend to the heirs of her husband, in this case to Bai Saraswati, the daughter of Vithabai who was the natural daughter of Hari Raghu through his wife Bai Ganga,
7. If we turn to the appellate judgment of the learned Assistant Judge in this case, he has referred to a decision in -- 'Chandra Sekhar v. Jagjivan' AIR 1929 Oudh 215 (A). It was held in this case that it was a settled rule of law that the possession of a Hindu woman in respect of the property of which she had come into possession, but to which she was not entitled by way of inheritance under the Hindu Law, must be deemed adverse to the reversioners and could not be considered as the possession of a mere life estate holder unless an arrangement or an agreement to that effect was proved to have been arrived at between her and the reversioners or unless she had herself declared that she held only as a limited owner possession of a life estate.
Then the learned Assistant Judge has referred to another case of -- 'Udai Pratap Singh V. Narottam Singh' AIR 1946 Oudh 38 (B). It was held in this Lucknow case that the nature of a Hindu widow's possession and its extent was to be determined by the facts of each case and that a mere reference by a widow in a certain document to her husband as being the previous owner of the property and to herself having obtained the property as the heir of the husband did not amount to a declaration by her that she held the property of her husband as a Hindu widow or that she was claiming the property in that capacity.
Now, in my opinion, neither the abovementioned Oudh case nor the Lucknow case could assist the defendant. It was observed in the Oudh case that if the widow herself declared that she was holding the property only as a limited owner possessed of a life estate, then her possession, no matter the duration of the said possession, would not amount to adverse possession.
In the present case we have only to turn to the documents, Exs. 29 and 31 to see that, according to Bai Ganga's statements, she was holding the property not in her own right, but as being the widow of her husband and that accordingly her possession and thereafter her mortgagee's possession could not be construed as adverse possession.
Even in the Lucknow case, it was held that the governing factor for the purpose of determining the nature of the possession would be the facts and circumstances of each case. Now, in order to understand and appreciate the facts and circumstances of the present case, we must turn to the important documents Exs. 29 and 31. As I have said, Ex 29 is a document by which Bai Ganga mortgaged this house to Bala Hari on 15-5-1908 and Ex. 31 is a document by which she sold this very house to the defendant on 30-10-1935.
In the mortgage document Ex. 29 Bai Ganga referred to this house as 'maze nawaryache wadilarjita malakeeche ghar'. She distinctly declared, while mortgaging this property to Bala Hari, that the property was the ancestral property of her husband. Prom this expression, it would be perfectly reasonable and legitimate to presume that Bai Ganga was dealing with this property not in her own right, but as an heir to her husband.
It may be noted that her husband Hari Raghu had left surviving behind him not only his wife Bai Ganga but also a natural daughter Bai Vithabai. I am of the opinion that Bai Ganga clearly and unequivocally referred to this house as being the ancestral house of her husband, she in effect was telling the mortgagee whom she was putting in possession of this property that she was dealing with this property as an heir to her husband and that there was another person also, viz., her natural daughter Vithabai who too was an heir to this property.
I cannot accept Mr. Gupte's contention that, when she made the above statements, viz., that this house was the ancestral property of her husband, she was denying the title of her own natural daughter Vithabai and was setting up a case that she alone was the absolute owner of this property in her own right.
In this connection, it would be pertinent to refer to a decision of this Court in -- 'Pandappa Mahalingappa v. Shivlingappa Murteppa' AIR 1946 Bom 193 (C). In this case Lokur J. held that where the possession of a Hindu woman was claimed as adverse, it must be decided what was her 'animus possedendi'. Did she assert an absolute title in herself or did she claim to hold as the heiress of any person? The latter would be the ordinary presumption and those who claimed for her anything more than a widow's limited interest must prove since when, she began to assert absolute title in herself.
The test said Lokur J., was always to be found in the origin of the widow's possession. When she entered on the land under a title as heir, which was necessarily a limited title under the Hindu Law, very cogent evidence was necessary to show that she afterwards asserted a title as absolute owner. Now, if we apply this test to the present case, the defendant must lose his case and the appellant must succeed.
The application of this test would mean the examination, of the question as to how Bai Ganga entered into possession of this house on 25-8-1907 upon which date her husband died, since that entry was the origin of her possession. Thereafter, she remained in possession of this house till 15-5-1903 and after that date her mortgagee remained in possession.
There is no doubt, having regard to the recital in the document Ex. 29 dated 15-5-1908, that Bai Ganga had entered into possession of this house under a title as the heir of her husband, in other words under a limited title under the Hindu Law. Having regard to the expression 'maze nawaryache wadllarjita malakeeche ghar' in Ex. 29, it is impossible for me to accept Mr. Gupte's contention that she had gone into possession of this house under absolute title.
As I am of the view that at the very inception Bai Ganga went into the possession of this house under a limited title, very cogent and convincing evidence would be necessary to show that subsequently she had asserted an absolute title.
8. The next important document to which I must turn my attention is Ex. 31, the sale deed. Mr. Gupte's contention on behalf of the defendant is that, when Bai Ganga was disposing of the suit house in favour of the defendant by this document Ex. 31, she was doing so in her character as an absolute owner, the said owenership having been acquired by her by adverse possession.
I have carefully gone through this document Ex. 31, but I am unable to discover any statement therein which would show that Bai Ganga had asserted her absolute ownership over this house by reason of her adverse possession of it. Now, I cannot understand why Bai Ganga, when she was passing such a detailed document of sale as Ex. 31, should not have explicitly stated therein that she had become the owner of this house by adverse possession and that she was disposing it of in that capacity in favour of the defendant.
The fact remains that she did not say any such thing in this sale deed. On the other hand, what she said was this 'ghar jata arnache No. 1-che nawaryache wa No. 2-che waras malakee wahiwateeche'. It is, therefore, clear that in this important document Ex. 31, upon which the defendant has founded his case, his predecessor-in-title viz. Bai Ganga did not say that the house was of her ownership.
On the contrary, she stated that it was of the ownership of her husband and that Bai Soni, her illegitimate daughter who was a co-executant of the sale deed had rights of ownership and wahiwat as an heir in respect of house. She did not even say that Bai Soni had the right of ownership over this house through her (Bai Ganga) or that Bai Soni was her heir.
If it was carefully examined, from the above-mentioned recital it would appear that Bai Ganga did not put forward any right whatsoever to this house, but merely stated that the house had belonged to her husband that her daughter Bai Soni had rights of ownership and wahivat as an heir in respect thereof. In the context it would appear that when the words 'No. 2-che waras malakee' were used in this document Ex. 31, what was meant was that co-executant No. 2 (Bai Soni) was the owner as being the Waras of her (Bai Ganga's) deceased husband.
It is scarcely necessary to dilate upon the abovementioned recital which is to be found in Ex. 31. Suffice it to say that there is nothing in this expression to suggest that Bai Ganga was claiming this particular house as an absolute owner thereof. That being so, she could not validly convey absolute ownership of the house to her vendee, the defendant. If Bai Ganga at the date of Ex. 31, had been in possession of this house as an absolute owner thereof and had been doing wahiwat thereof in that capacity, I cannot understand why instead of saying that she was the owner of the house and was herself doing the wahiwat thereof, she merely said that Bai Soni was doing the wahiwat of the house.
It would be necessary in this context to refer to the fact that Bai Vithabai did not en-joy the possession of this house. It would seem that when Hari Raghu died in August 1907 both Bai Ganga and Bai Vithabai were present in that house. Thereafter, some disagreement appears to have arisen between Bai Ganga and her daughter Bai Vithabai as a result of which disagreement Bai Vithabai left the house and did not return there subsequently.
From this circumstance, it is not possible for me to come to the conclusion that Bai Vithabai's title to this house was ever denied by Bai Ganga. The relationship between the two was a natural relationship of a mother and a daughter. Bai Vithabai, no matter the disagreement between herself and her natural mother, might not have gone to the length of challenging her mother's right to reside in the house.
Under the law, Bai Ganga had no right to reside in this house, as she had become unchaste even during the lifetime of her husband. But the natural love for a mother might have prevailed in the heart of Vithabai and she might not have objected to Bai Ganga continuing to live in the suit house.
Even after Bai Vithabai's death, her daughter Bai Saraswatibai might also, out of natural love and regard for her grand-mother, have not objected to the grandmother continuing to reside in this house. In these circumstances, merely because Bai Vithabai, and after her death Bai Saraswatibai, did not call upon Bai Ganga to quit the possession of the house, I cannot come to the 'conclusion that Bai Ganga was setting up a title by adverse possession to this house.
9. There is one more point to be referred to and it is that the mortgage transaction evidenced by Ex. 29 was entered into by Bai Ganga for the purpose of raising some money for her maintenance. The learned Assistant Judge has observed in the course of his judgment that this amounted to the use of the house by Bai Ganga adversely to the interests of the reversioner Bai Vithabai.
I am unable to agree. It is quite probable that Bai Ganga might have thought that her natural daughter Bai Vithabai would not object to her dealing with this house in order to raise money for her maintenance. By the subsequent mortgage Ex. 30, Bai Ganga redeemed certain ornaments which were pledged by her husband Hari Baghu.
Again for the same reason as I Just mentioned, Bai . Vithabai, the natural daughter of Bai Ganga, might not have objected to her mother redeeming her father's ornaments. Therefore, in those two mortgage transactions, I am unable to see any evidence of conduct on the part of Bai Ganga amounting to setting up a case of adverse possession.
10. The net result, therefore, is that in the facts and circumstances of the present case, I must accept Mr. Madbhavi's contention that when Bai Ganga passed the two mortgage deeds Exs. 29 and 30 and the sale deed Ex. 31, she was dealing with this property only under a limited title, viz. as an holder of a widow's estate. That being so, the defendant would acquire no title to the suit house.
The appeal accordingly must succeed. The judgment and decree passed by the learned Assistant Judge in Appeal No. 178 of 1951 are reversed and the decree of the trial Court is restored. It is declared that the transaction of sale dated 30-10-1935 as evidenced by Ex. 31 was partially justified by legal necessity in respect of the amount of Rs. 150/-.
The said transaction of sale is set asideupon plaintiff 1 paying Rs. 150/- to the defendant. Upon the payment of that amount byplaintiff 1 to the defendant, plaintiff 1 do recover possession of the suit property from thedefendant. The defendant must bear his owncosts as also the appellant's costs in the appealand in the lower appellate Court. The trialCourt's order as to costs is confirmed.
11. Appeal allowed.