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Darbar Shree Naransinhji Chandrasinhji Vs. Madhavsing Kesarising Desai - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 340 of 1939
Judge
Reported in(1942)44BOMLR146
AppellantDarbar Shree Naransinhji Chandrasinhji
RespondentMadhavsing Kesarising Desai
DispositionAppeal dismissed
Excerpt:
.....rule that each holder of the patdi estate had only a life interest in it;;(4) that treating the suit transaction on the analogy of a transaction entered into by the manager or the mahant of a math, article. 134 b of the indian limitation act, 1908, (which applied retrospectively), applied, with the result that limitation began to run in any case from the time of h's death in 1884, and the plaintiff must be deemed to have acquired title by adverse possession for more than twelve years during the lifetime of s;;(5) that even apart from article 134 b, in the case of managers of religious institutions, if a suit by the predecessor of a manager was barred, his right was extinguished and the succeeding manager or trustee was equally without title:;alam khan sahib v. karuppannaswami [1938]..........known as patdi estate.2. the plaintiff's case in substance was that his grandfather acquired the suit plot along with another bigger plot situated in its neighbourhood from the then chief of patdi on january 17, 1879. the consideration of the transaction was rs. 1,600, out of which rs. 1,200 were paid in cash and for the rest of the amount, i.e. rs. 400, the purchaser transferred to the then chief two rooms belonging to him at patdi. it was thus a transaction of part sale and part exchange. at the time when this transaction took place one himatsinhji was the chief of the patdi estate. he died in 1884 and was succeeded by surajmalji who died in 1913. thereafter dolatsinhji succeeded to the estate till his death in 1928, and after his death the original defendant in the present case.....
Judgment:

Divatia, J.

1. This is an appeal by the present Chief of Patdi who has succeeded to the estate of the former Chief who was the defendant in this suit. The suit was brought by the plaintiff for a permanent injunction against the defendant to restrain him from obstructing the plaintiff's possession and enjoyment of the plaint land which consists of a plot of land situated at Patdi in what is known as Patdi Estate.

2. The plaintiff's case in substance was that his grandfather acquired the suit plot along with another bigger plot situated in its neighbourhood from the then Chief of Patdi on January 17, 1879. The consideration of the transaction was Rs. 1,600, out of which Rs. 1,200 were paid in cash and for the rest of the amount, i.e. Rs. 400, the purchaser transferred to the then Chief two rooms belonging to him at Patdi. It was thus a transaction of part sale and part exchange. At the time when this transaction took place one Himatsinhji was the Chief of the Patdi Estate. He died in 1884 and was succeeded by Surajmalji who died in 1913. Thereafter Dolatsinhji succeeded to the estate till his death in 1928, and after his death the original defendant in the present case Raghuvirsinhji became the Chief. After his death during the pendency of this appeal the present Chief Naransinhji has been brought on the record. I am giving this list of the successive Chiefs of Patdi, because it would be a material point in this appeal as to whether the original transaction of what I might call sale would be binding on the successors of the Chief in whose lifetime it took place. This Patdi estate is situated in British India although some of the villages, belonging to the Chief, are situated in Kathiawar and for those villages Patdi is under the political jurisdiction of the Agent to the Governor General in Kathiawar. But for these particular villages which are situated in British India the Chief of Patdi is holding under a tenure which has, been now defined under the Government Resolution of 1908. It is there described as a sort of Saranjam estate governed by its own rules. The material rules are that the estate is continuable in perpetuity to the holder of the jurisdictional estate of Patdi in Kathiawar for the time being, subject to the conditions specified in the Government Resolution of 1908, that the estate shall be held as a life estate by each holder for the time being, and shall pass to the next holder unencumbered by any debts or charges save such as may be specifically imposed by Government itself. The next rule which is material for the purpose of the present appeal is that the estate shall be inalienable and impartible, and as regards succession and inheritance including adoption will follow the jurisdictional estate in Kathiawar, and that any alienation whatever shall be invalid. It may be taken for the purpose of this appeal that these rules, which were enacted for the first time in 1908, are retrospective in their effect and that they would apply to any transaction which took place before they came into force.

3. Now, the plaintiff's case was that ever since this transaction of 1879 he has been in possession of the property conveyed by sale, which property may be shortly described as the bigger plot and the smaller plot which is the suit plot. The plaintiff's case further is that in 1894 he built a structure over the bigger plot and ever since then he has been occupying the house. His possession, however, of the bigger as well as the suit plot began with the transaction of sale in January, 1879, and although that transaction was an oral one as it took place before the passing of the Transfer of Property Act of 1882, it would be valid if the possession of the property sold was given to the purchaser at the time of the transaction, and one material point, therefore, in the case is whether the plaintiff's predecessor-in-title got possession of the property conveyed under this transaction at the time when it took place. The defendant's case on this point is that even though the bigger plot was taken in possession, the plaintiff's predecessor never got possession of the suit plot even at the time when the sale took place, that ever since then it remained an open plot and it was only in 1932 when the plaintiff tried to put a hedge round it that the defendant came to know about assertion of its title by the plaintiff. The defendant further says that the suit plot has been entered in the records of the Patdi Estate as belonging to the Estate and that entry dates from the year 1894. There is no evidence as to how the suit plot was entered in the records of the Estate before 1894 because it is alleged that those records have been lost or could not be traced.

4. Both the lower Courts have held on the evidence that the plaintiff's predecessor-in-title did get possession of the property in 1879 when the transaction of sale took place. It is true that there is no direct oral evidence on this point, and that is due to the fact that the plaintiff has not been able to give testimony of any person who was alive in 1879 and who could depose that the possession was transferred at that time. But the plaintiff has led the evidence of some witnesses and has also led some documentary evidence to show that the possession of the suit plot must have been given to his predecessor-in-title in 1879. He has produced a rent-note, exhibit 134, of the year 1885, i.e. about six years after this transaction took place. That rent-note is in respect of a godown which was built by the plaintiff's predecessor on the bigger plot in 1885, and there is a recital therein that 'the wall on the north abuts on your open land.' That open land is the plaint land in suit here. So that in this transaction of 1885 this open land has been described to be in possession of the plaintiff's predecessors-in-title. There is a similar description in a document, exhibit 144, of the year 1907. The oral evidence consists of three or four witnesses who have deposed that they have seen the plaintiff and his predecessor making all sorts of use of the plot in dispute, namely, tethering cattle, keeping his carts, keeping instruments of agriculture and sundry articles, etc. The trial Court was of the opinion that the plaintiff's predecessor did get possession of the suit plot in 1879 although after 1894 according to the entries in the bhada patraks in the books of the defendant the suit land was shown as being in possession of the defendant's estate and that therefore the plaintiff's predecessor lost possession in that year. The appellate Court, however, differs from the trial Court on that point and holds that the entry in the bhada patrak is not reliable as the defendant's officers were interested in making that entry. The learned Judge believes the oral evidence led by the plaintiff and holds from the oral as well as documentary evidence that the plaintiff's predecessor-in-title must have got possession of the suit plot in 1879 at the time of the transaction and that ever since then till 1933, when the plaintiff was sought to be ousted by the defendant, he was in possession of the suit plot.

5. It is urged as against this finding that it is based not upon evidence but upon a sort of presumption which is not supported by any evidence. The argument is that there is no direct evidence to show that the plaintiff's predecessor-in-title had been given possession of the suit plot in 1879, and that therefore, even though the plaintiff's evidence may be believed, that possession may be said to date from 1885 onwards but not in any case from 1879. I do not think, however, that the finding of the lower appellate Court that the possession of the suit plot by the plaintiff and his predecessors had been proved from 1879 can be said to be vitiated by any illegality in the sense that there is no evidence to support it. The plaintiff has led the available oral and documentary evidence about possession of the suit plot by his family. If there is no living person coming forward to depose that the possession of the suit plot was given in 1879, the lower appellate Court was entitled to infer from the other evidence adduced by the plaintiff that the possession of the suit plot must have been given to the plaintiff's family at the time when the transaction took place. The earliest document relied upon by the plaintiff is of 1885, i.e. six years after the transaction took place, and if it can be said that the suit plot was in possession of the plaintiff's family in 1885, it would certainly be reasonable to infer that that was because possession had been given to the plaintiff's family in 1879 when the sale transaction took place. That inference is further strengthened by the fact that the bigger plot, which was also sold to the plaintiff's family in the same transaction of 1879, has been not only proved but admitted to be in the possession of the plaintiff's family ever since 1879. I think, therefore, the lower Court was right in making a reasonable inference that the suit plot must have been given possession of to the plaintiff's predecessor at the time when the transaction took place. It must, therefore, be held that this transaction of sale was perfected by possession.

6. The next question is whether the transaction was valid and binding on the Chief of Patdi who was a party to that transaction, as well as on the successive Chiefs who followed him. The defendant's contention on that point is shortly this that this Estate is held as a life estate by each holder for the time being and that it is to pass to the next holder unencumbered by debts or charges except those imposed by Government, and further that the Estate was inalienable and would follow the jurisdictional estate in Kathiawar. It is contended on these rules that whatever may be the position with respect to the Chief of Patdi who entered into the transaction, it would not be binding against the Chiefs who succeeded him. The next Chief, i.e. Surajmalji, who succeeded Himatsinhji in 1884, took the estate not as a successor of Himatsinhji but in his own right on the ground that it was conferred upon him by the Government, or, as the defendant prefers to put it, on the resumption of the Estate by the Government on the death of Himatsinhji and re-grant of the same to Surajmalji in 1884. Surajmalji, therefore, took the Estate free from any incumbrance in the sense that he would not be bound by any transaction of sale executed by his predecessor, and it would, therefore, follow according to the defendant that if any person came on the land under any such invalid transaction, he cannot purport to hold adversely as against the successor. The argument goes further and it is contended that even though the person who claims to be in adverse possession remains in possession for a period of more than twelve years during the life-time of the successor of the Chief who entered into the transaction, i.e. in the present case during the life-time of Surajmalji, and even though, for the sake of argument, Surajmalji may be bound by the adverse possession of the holder of the land, his successor will not be bound by that adverse possession. In other words, it would not amount to adverse possession against his successor because on the death of Surajmalji the Estate must be taken to have been resumed by Government and re-granted to the next Chief Dolatsinhji who took the estate free from any liability. Logically the argument, therefore, comes to this that no transaction, even if it is valid, entered into by the Chief of Patdi would be binding against his successor at any time, because on the death of each Chief, the next Chief takes not as the representative of his predecessor but by virtue of a fresh grant by Government.

7. In order to appreciate this argument, it is necessary to see exactly what the position is according to the rules by which this estate is governed. It must be stated here that these rules were framed in 1908 and they are only applicable to this particular estate of Patdi. In the Bombay Presidency there are several Saranjams, especially in the Southern Maratha Country, and in the year 1898 Government framed with respect to political inams certain rules which are technically known as Saranjam Rules. But it is important to note that the present estate is not governed by those rules. It is governed only by the rules which have been enacted in the Government Resolution of 1908. This difference must be appreciated because there is a material difference in certain respects between the Saranjam Rules of 1898 and what I might call the Patdi Rules of 1908. In the Saranjam Rules there is one rule to the effect that the. proposed orders regarding successions to Saranjams in accordance with the above rules must, as they constitute a technical re-grant of the Saranjam, be submitted for the sanction of Government, and there is another rule to the effect that every Saranjam shall be held as a life estate, that it shall be formally resumed on the death of the holder, and that in cases in which it is capable of further continuance, it shall be made over to the next holder as a fresh grant from Government, unencumbered by any debts or charges save such as may be specifically imposed by Government itself. Now, this technical resumption and re-grant does not find any place in the Patdi Rules. There is a common point between both these sets of. rules to this extent that each holder for the time being is to hold a life estate, and that it is to pass to the next holder unencumbered by any debts or charges save those specifically imposed by Government. The second point-and that is a very material point of difference between these two sets of rules-is that whereas there is no special provision about alienation in the Saranjam Rules of 1898, it is enacted in the Patdi Rules in Rule 4 that the Estate shall be inalienable and impartible and that any alienation whatever shall be invalid.

8. There was some years back a litigation in this Court between the then Chief of Patdi and a bhayat or cadet belonging to that family. The dispute there did not turn upon the point of adverse possession as it does in. the present case but upon the alleged liability of the Chief to pay or to continue certain grants of maintenance to the bhayats of the family of the Chief. Incidentally the Patdi Rules were considered in the judgment of this Court which is exhibited in the. present suit as exhibit 237, and the distinction between the Saranjam Rules of 1898 and the Patdi Rules has been clearly shown in that judgment. It is specifically stated that the Saranjam Rules of 1898 do not apply to the Patdi Estate which is governed by its own rules, and it is further stated that although the Patdi Saranjam is held as a life estate, there is no rule of resumption and re-grant in the case of Patdi Estate.

9. To my mind, therefore, in order to test whether the plaintiff can claim the land by adverse possession as against the Estate, we have to clearly bear in mind this position that all that the Patdi Rules say is that each holder is a holder of a life estate and that any alienation would be invalid. We have, therefore, to start from this position that the sale transaction of 1879 was invalid, and in my opinion, under the rules it must be taken to be invalid from its inception and not from the death of the Chief during whose lifetime it took place. I may state here that that is not a very material point in this case, because even if the adverse possession be taken to run from the death of the Chief who entered into the transaction, the plaintiff's predecessor had got possession for more than twelve years during the lifetime of his successor, but as it is, under the rules it seems to me that the transaction of 1879 must be taken to be invalid at the start and cannot be regarded as valid during the lifetime of Himatsinhji and invalid after his death. That being so, the question would be whether adverse possession begins to run from 1879, and if it does, whether it continues to run throughout during the whole period when the succeeding Chiefs came on the Estate and in such a manner that each succeeding Chief was bound by the adverse possession of the plaintiff for more than twelve years. In an ordinary case, if a person holds land adversely for a period of more than twelve years, the title of the real owner would be extinguished under Section 28 of the Indian Limitation Act, and the adverse holder's title would be complete after that period, so that if there is any litigation between him and the successor of the real owner, the person who has perfected his title by adverse possession can plead his title based on adverse possession. In the present case also, apart from the defendant's argument as to each Chief being the holder of the life estate, title of the plaintiff would be perfected after twelve years' adverse possession. But it is contended that on account of a series of successive life estates there could be no adverse possession at all, and reliance is placed for that purpose on the definition of 'plaintiff' in Section 2 of the Indian Limitation Act and the wording of Article 144 of the Indian Limitation Act. Now, this theory, to my mind, is based upon this that on the death of each holder of the Estate Government resumes the whole Estate and re-grants it to the person who is installed on the Estate as his successor, and as the successor, therefore, comes under the re-grant, he cannot be deemed to be in law the successor-in-title of the previous holder. Therefore, the adverse possession, which might begin to run as against the previous holder, cannot continue to run when the successor comes in possession of the Estate. In my opinion, if this argument is entirely based on the theory of resumption and re-grant, it must be rejected for the simple reason that this estate is not governed by the theory of resumption and re-grant, whatever may be the case with regard to the Saranjam estates governed by the Saranjam Rules of 1898.

10. But then it is contended that even apart from resumption and re-grant, the fact that each holder of the Estate has got a life estate is sufficient to show that his successor does not claim through him but claims independently of him as a grantee from the Government, and therefore, he would not be bound by any act of trespass which might be committed by a person during the lifetime of the previous holder. In support of this argument it seems reliance had been placed on behalf of the defendant in the lower Court upon certain decisions relating to the estate of mahant of a math, and it was sought to be contended that in those cases the alienation made by a particular mahant would not be binding on his successor, although that alienation may be binding on that particular mahant who entered into it. The cases relied upon on behalf of the defendant are the cases of permanent tenancy granted by a mahant and not cases of unauthorised alienations made by him in which the person who comes into possession begins to hold the land from its start adversely against the owner by virtue of the invalidity of the transaction, and with regard to such an alienation in the case of a mahant the position seems to be quite clear under the decisions of the Privy Councl as well as the different High Courts before the introduction of the present Article 134 B in the Indian Limitation Act in 1929. That article expressly says that a suit by the manager of a Hindu, Mahomedan or Buddhist religious or charitable endowment to recover possession of immoveable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration, the period of limitation is twelve years from the death, resignation or removal of the transferor. This article is based on the theory that each manager has power to enter into a transaction during his term of managership and his acts would not be binding on the managers who succeed him. Even so, it has been enacted here that in the case of a person, who comes in possession of any land under an invalid title, limitation does begin to run from the death or removal of the manager who has entered into the transaction of transfer. Therefore, if that person remains in possession for more than twelve years after the death of the manager who entered into the transaction, the title of the possessor by adverse possession would be complete even though the manager at that time had only a limited power of management during his lifetime and did not hold the Estate absolutely. In my opinion, this article being an article in the Indian Limitation Act, would have retrospective effect, because, as laid down by the Privy Council in Soni Ram v. Kanhaiya Lal (1913) I.L.R. 35 All. 227 the law of limitation applicable to a suit or proceeding is the law in force at the time of the institution of the suit or proceeding unless there is a distinct provision to the contrary. As there is no distinct provision here, Article 134B would have retrospective effect. So that if the present case be treated on the analogy of a transaction entered into by the manager or a mahant of a math, Article 134B must, in my opinion, be held as applicable to the facts of the present case with the result that limitation would begin to run in any case from the time of the death of Himatsinhji in 1884, and if that is the case, the plaintiff must be deemed to have acquired title by adverse possession for more than twelve years.

11. But even apart from Article. 134B, it has been held in the case of managers of religious institutions that if a suit by the predecessor of a manager is barred, his right is extinguished and the succeeding manager or trustee is equally without title. I may mention here some decisions which have held to this effect even independently of Article 134B. The latest case on this point is Alam Khan Sahib v. Karuppannaswami [1938] A.I.R. Mad. 415. There is also another case, Panna Sundari v. Benares Bank Ltd. [1938] A.I.R. Cal. 81, and even before that there was a decision to this effect in Nilmony Singh v. Jagabandhu Roy (1896) I.L.R. 23 Cal. 536. Even in our own High Court Sir Lawrence Jenkins has, in Narayan v. Shri Ramchandra (1903) I.L.R. 27 Bom. 373 adopted the same principle.

12. It seems to me, therefore, that if the analogy of a math is to be applied to the present Estate, then it must be clearly held that the plaintiff has perfected his title by adverse possession.

13. But it is now contended on behalf of the defendant that the analogy is not perfect and that the present Estate is governed by its own rules under which each one has a life estate. It is further contended that there is nothing in law against a series of successive life estates, although it may not be open to a person to create such estates by means of a transaction of gift or will. It is contended that it was open to the Government to create a series of life estates in the present case in such a manner that each holder of the Patdi Estate for the time being claims to hold the Estate independently of his predecessor. In my opinion, even though it is true that the successor of the previous holder does not claim through his predecessor in the sense that he is his legal representative by the personal law of inheritance, still it does not necessarily follow therefrom that if a person has acquired a valid title by more than twelve years' adverse possession, that title should be ignored entirely by the successor of the particular Chief during whose lifetime the twelve years' possession has been complete. If in the present case during the lifetime of Surajmalji the plaintiff's family held this suit land openly and adversely to the Paitdi Estate for a period of more than twelve years, under Section 28 of the Indian Limitation Act the title of the real owner, namely, the Patdi Estate, became extinguished. That being so, the successor, who came on the Estate in 1913, got the Estate as it was at the time when his predecessor died. If, therefore, the estate had lost by adverse possession this particular suit land and if the plaintiff's predecessor had become its owners by the extinction of the defendant's title thereto, the Estate which came to the successor was the Estate minus this land the ownership of which had passed from the defendant to the plaintiff's family. In that sense although it is true that each successive holder of the Estate claims in his own right and not on the rights of the previous holder, it still follows that it would be open to a person to acquire title by adverse possession of any land for more than twelve years. The fact, therefore, that under the Patdi Rules the holder for the time being has a life estate, does not, in my opinion, come in the way of the acquisition of title by adverse possession. I may state here that even under the Saranjam Rules of 1898 it has been held that there could be adverse possession of a 'part of the Saranjam property, and I may refer to two decisions of this Court in Trimbak Ramchandra v. Shekh Gulam Zilani (1909) I.L.R. 34 Bom. 329 and Madhavrao Hariharrao v. Anusuyabai (1916) I.L.R. 40 Bom. 606 . The latter decision has been criticised by Fawcett J. in Secretary of State v. Girjabai : AIR1925Bom197 on the ground that the male representative cannot be said to be 'entitled to succeed' under the Saranjam Rules, but it is still good law on the point that it is open to a person to acquire title by adverse possession with regard to a part of the Saranjam Estate where there is a resumption and re-grant. In this Estate there is no resumption and re-grant; there is only a life estate. It would, therefore, follow with much greater force in the present case that there could be acquisition of title by adverse possession.

14. In my opinion, therefore, the lower Court was right in holding that the plaintiff's title has been perfected by adverse possession, and that he & entitled to the relief which he claims.

15. The decree of the lower appellate Court is, therefore, confirmed and the appeal is dismissed with costs.


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