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Govind Balkrishna and ors. Vs. Ramchandra Rajaram and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 43 of 1950
Judge
Reported inAIR1952Bom395; (1952)54BOMLR263; ILR1952Bom621
ActsLimitation Act, 1908 - Schedule - Articles 141 and 144; Limitation Act, 1859; Limitation Act, 1871; Limitation Act, 1877; Hindu Law
AppellantGovind Balkrishna and ors.
RespondentRamchandra Rajaram and anr.
Appellant AdvocateK.N. Dharap and ;M.M. Virkar, Advs.
Respondent AdvocateP.S. Joshi, Adv.
Excerpt:
.....heir on death of widow of last full owner--another reversionary heir succeeding on death of son's widow--suit by purchaser from such reversionary heir for possession of alienated property--limitation whether commences from date of death of widow of last full owner or son's widow.; g, who owned certain property, died leaving him surviving his widow r and a widow l of his predeceased son. r died in 1918, but before her death she had sold g's property without legal necessity to the defendants on march 3, 1910. l died in 1930, and one w succeeded to the property of g as a reversionary heir. in a suit filed in october 1942, by the plaintiffs, who were the purchasers of the property from w, against the defendants, for possession of the property, the plaintiffs contended that the suit was..........heir succeeded to the estate of gopal. on july 16, 1934, defendants nos. 1 and 2 sold the suit property to defendants nos. 3 and 4. defendant no. 7 in his turn sold the suit property to the plaintiffs by a sale deed dated april 12, 1935. the present suit was filed in october 1942 by the plaintiffs against defendants nos. 1 and 2, the purchasers from rakhamabai, defendants nos. 3 and 4 the purchasers from defendants nos. 1 and 2, defendants nos. 5 and 6, the sons of defendant no. 3, defendant no. 7 the reversionary heir to the estate of gopal and defendants nos. 8 and 9, the tenants in possession of the suit house, for a declaration that the sale deed dated january 27, 1910, was null and void and for possession of the suit house together with mesne profits and costs of the suit......
Judgment:

Bhagwati, J.

(1) This is a Letters Patent appeal from a judgment of Mr. Justice Rajadhyaksha in second appeal confirming the decree passed by the Court of Sarnyayadhish of Aundn with certain variations, which decree had reversed the judgment of the learned trial Judge dismissing the plaintiff's suit.

(2) The facts which gave rise to this litigation may be shortly stated as follows. One Gopal, who was the owner of the suit house, died in 1908 leaving him surviving his widow Rakhamabai and a widow of pre-deceased son Laxmibai. Rakhama-bai died in 1918, but before her death she alienated the suit house in favour of defendants Nos. 1 and 2 by a sale deed dated January 27, 1910. On the death of Rakhamabai, Laxmibai succeeded as the next reversionary heir of Gopal. She in her turn died in the year 1930, and on her death, the reversion opened and defendant No. 7 as the reversionary heir succeeded to the estate of Gopal. On July 16, 1934, defendants Nos. 1 and 2 sold the suit property to defendants Nos. 3 and 4. Defendant No. 7 in his turn sold the suit property to the plaintiffs by a sale deed dated April 12, 1935. The present suit was filed in October 1942 by the plaintiffs against defendants Nos. 1 and 2, the purchasers from Rakhamabai, defendants Nos. 3 and 4 the purchasers from defendants Nos. 1 and 2, defendants Nos. 5 and 6, the sons of defendant No. 3, defendant No. 7 the reversionary heir to the estate of Gopal and defendants Nos. 8 and 9, the tenants in possession of the suit house, for a declaration that the sale deed dated January 27, 1910, was null and void and for possession of the suit house together with mesne profits and costs of the suit. The trial Court held that there was legal necessity for the alienation made by Rakhamabai in favour of defendants Nos. 1 & 2 and therefore dismissed the plaintiff's suit. It was not necessary for the trial Court to go into the question of limitation because it held that the alienation was for legal necessity.

The lower appellate Court on the contrary held that the alienation fay Rakhamabai in favour of defendants Nos. 1 and 2 was not for legal necessity, and that being so, the alienation was not binding on the estate beyond the lifetime of Rakhamabai. In regard to limitation, the learned advocate for the contesting defendants conceded that the cause of action arose in the year 1930 and therefore the lower appellate Court held that the plaintiff's suit was in time. It therefore reversed the decree of the trial Court and passed a decree in favour of the plaintiffs. The contesting defendants Nos. 3, 6 and 5 filed the second appeal from this judgment of the lower appellate Court which came before Mr. Justice Rajadhyaksha for hearing and final disposal, and the learned Judge confirmed the decree of the lower appellate Court with certain minor variations. The learned Judge held that so far as legal necessity was concerned, the finding of the lower appellate Court being a finding of fact was binding on him and so far as limitation Was concerned, he held that the suit was governed by Article 141, Limitation Act and was not barred by the law of limitation. Leave to appeal against this decision under Letters Patent was granted by the learned Judge himself and this Letters Patent Appeal has come for decision before us.

(3) The main point which has been discussed before us in the course of the arguments is whether the plaintiffs' suit is barred by the law of limitation. The plaintiffs contend that the suit is governed by Article 141, Limitation Act which runs as under:

'Description o suit.Period of LimitationTime from which period

Like suit by a Hindu or Muhammadan entitled to the possession of immoveable property on the death of a Hindu or Muhammadan female. Twelve years.When the female dies.'

It is urged that defendant No. 7 became entitled to the possession of the suit house on the death of Laxmibai who died on October 16, 1930, and that therefore the suit which was filed in April 1942 was well within the period of twelve years from Laxmi-bai's death and in time. The answer sought to be given on behalf of the contesting defendants is that the twelve years' period should be calculated from the death of Rakhmabai which took place in 1918 because she was the Hindu female on whose death the reversion opened and the reversionary heir became entitled to the possession of the suit house.

The question, therefore, that falls to be determined by us is what is the true construction to be put on the provisions of Article 141, Limitation Act, whether the Hindu female whose death is referred to therein is the widow of the last full owner on whose death the Reversion opens, or is a Hindu female, be she a widow or a reversionary heir, on whose death the reversion opens and the reversionary heir to the last full owner conies to be determined. If one looks at the plain terms of Article 141, there is nothing in the terms thereof to warrant a limited construction of the nature which is contended for by the contesting defendants. The suit has got to be filed by a Hindu male or female who is entitled to the possession of immovable property on the death of a Hindu' female. That Hindu female, on whose death the reversion opens, may be the widow of the last full owner or may be a female heir who succeeds to him either initially, though having a limited estate in what she inherits, or as a reversionary heir on the extinction of a prior limited estate. In either event, the condition which is laid down in the Article would be satisfied, viz., that the Hindu who files the suit becomes entitled to the possession of the immovable property on the death of a Hindu female. The Hindu who files the suit must succeed as the reversionary heir to the estate of the last full owner on the death of a Hindu female and that would be the case in either of the above events happening. The next reversioner who succeeds to the estate of the last full owner after the death of a Hindu female may be a male who enjoys an absolute interest in the property which he thus inherits. She may also be a female who according to the provisions of law as obtaining, e.g., in Bombay, would get an absolute interest in the property thus inherited, or may be in her turn a limited heir not getting an absolute interest in that property, but what is known to Hindu Law as a woman's estate or a widow's estate therein, in which last event the reversion would again open out on her death.

But it is only in the case of a Hindu entitled to the possession of immovable property in his own right as the reversionary heir of the last full owner having to file a suit for such possession that the: question can arise for consideration whether his! suit would be covered by Article 141, Limitation Act and would have to be filed within twelve years of, the death of the Hindu female on whose death he becomes entitled to the possession of the immovable property. Tne plain words of Article 141, there-fore, without anything more, would include a case like the one before us where Waman, the reversionary heir to the estate of the last full owner Oopal, became entitled to the possession of the suit house on the death of Laxrnibai, a Hindu female. Woman did not become entitled to the suit house on the death of Rakhamabai because-there was an intervening heir, though a reversionary heir, Laxmibai. Until Laxmibai's rights were exhausted, Waman could not come in at all. It was only on the death of Laxmibai and the opening of the reversion on her death that Waman. being the next reversionary heir 10 the estate of Gopal, succeeded to the estate of Gopal in his own right as such reversionary heir and not in any manner whatever as claiming through Laxmibai who was only a limited heir, though she was the reversionary heir to the estate of Gopal.

(4) That this is the true position is substantiated by authority. If one turns to Sir Dinshah Mulla's Principles of Hindu Law, I0th Edn., p. 165, section 175, one finds the definition of ' reversioners' as the heirs of the last full owner, who would be entitled to succeed to the estate of such owner on the death of a widow or other limited heir, if they be then living. The reversioner may be a male or a female. It is further stated that where there are several reversioners entitled successively to succeed to an estate held for life by a Hindu widow, no one of such reversioners can be said to claim through or derive his title from another reversioner, but each derives his title from the last full owner. They are independent one from the other, so that whatever be the disabilities attaching to the possession of property of one reversioner they do not affect the title of the next reversioner who comes in by his own right deriving title from the last full owner and not from the previous holder who was a limited heir, even though a reversionary heir of the last full owner. The illustration (b) which is given all the bottom of p. 166 illustrates how various reversionary heirs may come in.

'A Hindu, F, dies leaving a widow, A, a mother, B, a father's mother. C, and a father's brother, D. Here there are three reversioners of whom two, namely, B and C, are females, and one, namely, D, is a male. On F's death, his widow, A, will succeed to his property. On A's death, F's property will revert or pass to F's next heir, B, if she is then living. On B's death, F's property will revert to his next heir C, if she is then living . On C's death, F's property will revert or pass to D, if he is then living. D, however, will take the property as full owner and on his death it will pass to his own heirs and not to F's heirs.'

This illustration shows how there can be a succession of reversionary heirs getting a limited estate in the property which they inherit ultimately followed by a reversionary heir who gets the property absolutely as the full owner. It would be only when the property thus vests in the full-owner that the succession to the property is to be determined with reference to him and not to the last full owner to whom he was the reversionary heir. Until that event happens, there can be a succession of reversionary heirs who would be in possession of the property as the heirs of the last full owner, but enjoying only limited estates in the property which they have thus inherited.

(5) When the reversionary heir thus gets a limited estate in the property being either the widow or a female heir entitled only to a limited estate in accordance with the provisions of law, the question arises whether the limited owner represents the estate for any purposes whatever. It has been laid down that such limited owner represents the estate for certain purposes. Those purposes are laid down in Mulla's Hindu Law, 10th Edn., page 168 (bottom):

'Subject to the above restrictions on alienation,she (a widow inheriting her husband's property)holds the property absolutely, and she completelyrepresents it. She may, therefore, institute suitsin respect of the property, and she may be suedin respect thereof, and decrees passed againsther as representing the estate in respect of debtsor other transactions binding on the estate, arebinding not only on her, but on the reversioners,though the reversioners are not parties to thesuit.'

This power to represent the estate is laid down by the decision of their Lordships of the Privy Council in what is known as the 'SHIVAGUNGA CASE KATAMA NATCHIAR v. MOOTTOO VIJAYA RAGANADHA', 9 Ind App 539 (PC). It was held by their Lordships there that a widow or other limited heir represents the whole estate in legal proceedings relating thereto. Therefore, a decree passed against her and a sale of the estate in execution of such decree is binding not only on her, but on the reversioners, even though they were not parties to the suit, provided-

'(1) the suit was in respect of a debt or other transaction binding on the estate, and

(2) the decree was passed against her as representing the estate, and not in her personal capacity,

'unless it could be shown that there had not been a fair trial of the right in that suit.'

The widow is entitled to compromise the suit, and a decree passed against her, though on a compromise or on an award, binds the reversioners as much as a decree in a suit contested to the end, provided the compromise was entered into by her bona fide for the benefit Of the estate and not for her personal advantage. This rests on the fundamental principle that a compromise entered into by a Hindu widow bona fide for the benefit of the estate, and not for her own personal advantage, binds the reversioners as much as a decree against her after litigation (vide Mulla's Hindu Law, pp. 219-320, section 199). The position, however, where a third person or a stranger dispossesses the limited heir of the property or any portion thereof and squats on it seeking to perfect his title by adverse possession and the limited heir fails to take any action against this squatter within the period prescribed by law in that behalf is quite different. The squatter is not then entitled to perfect his title by such adverse possession against the limited heir and any inaction on the part of the limited heir is not sufficient to perfect the title of the squatter.

It is laid down that

'if the limited heir is dispossessed of any portion of property by a third person, she can sue to recover it, but if she fails to sue and allows the possession of such person to become adverse to her, the reversioners are not affected by such adverse possession, for they succeed not as her heirs, but as her husband's heirs, and they may, therefore, sue for possession within 12 years from. the date of her death' (vide Mulla's Hindu Law, page 169, note under section 176).

This position in regard to adverse possession is more elaborately stated by 'Sir Dinshah Mulla in his Principles of Hindu Law, 10th edn. at p. 222, section 201:

'A person who has been in adverse possession for twelve years or upwards of property inherited by a widow from her husband by any act or omission on her part is not entitled on that ground to hold it adversely as against the next reversioner on the widow's death. The next reversioner is entitled to recover possession of the property, if it is immovable, within twelve years from the date of the widow's death under Article 141, Schedule I, Indian Limitation Act, 1908....'

(6) These propositions enunciated in Sir Dinshah Mulla's Hindu law are based on two cases decided by their Lordships of the Privy Council and reported one in 'RUNCHORDAS VANDRAVANDAS v. PARVATIBAI', 26 Ind App 71 (PC) and the other in 'JAGGO BAI v. UTSAVA LAL', 56 Ind App 267 (PC). 'RUNCHORDAS VANDRAVANDAS v. PARVATIBAI' was a case where the deceased testator had devised the whole residue of his estate to trustees for dharam. The testator had left him surviving two widows, one of whom died in 1871 and the other in 1888. The heir of the deceased testator filed a suit after the death of the second widow for a declaration that the devise to dharam as void and for the administration of the estate of the deceased testator. The gift in favour of dharam was held void, but, in so far as the claim by the heir of the deceased testator to the suit properties was concerned, it was held that the possession of the trustees for dharam since the testator's death had been adverse as' against the widows and the heir, but that the plaintiffs' claim to the immovable property was not barred. On appeal to His Majesty in Council, their Lordships of the Privy Council held that the suit was really governed by Article 141, Limitation Act, and in the course of their judgment they observed (p. 81):

'.....Article 141 is that which applies to the present suit.....The period given is twelve years. Art. 144, which makes the time begin to run from when the possession of the defendant becomes adverse to the plaintiff, is not applicable where the suit is otherwise specially provided for.'

Their Lordships in terms negatived the contention that Article 144, Limitation Act was applicable to the facts of that case. Article 141 was the one which specially provided for a suit filed by a Hindu entitled to possession of immovable property after the death of a Hindu female, and therefore the residuary Article 144 was held not to be applicable. This case was referred to by their Lordships in the decision reported in 'JAGGO BAI v. UTSAVA LAL'. In that case, the appellant filed a suit for a declaration that she was entitled to a 'malikana' granted by the Government and to eject the respondent from a house at Warnagar. The properties in suit formed part of the estate of the appellants' father, who died in 1875, and had been in possession of her mother for a widow's estate until February 1914, when she died and the appellant became entitled as her father's heir. The respondent pleaded that the suit was barred by limitation and that she had acquired title by adverse possession. Even though the respondent had been in adverse possession of the suit property for twelve years during the period when the appellant's mother was in possession, as the limited heir, their Lordships held that Article 144 had no application to the facts of the case and the plain words of Article 141 were sufficient to bring the appellants' suit within the period of limitation.

In the course of their judgment, their Lordships pointed out that Article 141 admittedly applied to the claim to recover possession of the suit house. They referred to the previous enactments in regard to limitation, namely, Act XIV of 1859, the Limitation Act of 1871 and the Act of 1877, and referred lastly to the present provision in the Act of 1908. In their Lordships' opinion, the effect of the Acts of 1871 and 1877 was not to except from the rule laid down in the 'SHIVAGUNGA DECISION', 9 Moo Ind App 539 PC the case where a decree had been obtained against a Hindu widow in Her lifetime founded upon the law of limitation, and they held that where a decree founded upon the law of limitation was obtained against the widow in her lifetime, the reversionary heir was barred and did not get the benefit of Article 141. The position, however, where there had been no decree, though at the death of the widow a stranger had been in adverse possession for twelve years or more was considered by their Lordships and they held that where there had been no decree against the widow or other act in the law in the widow's lifetime depriving the reversionary heir of the right to possession on the widow's death, the heir was entitled after the widow's death, to rely upon Article 141 for the purpose of the determination of the question whether the title was barred by lapse of time.

To hold otherwise would, in their Lordships' opinion, in effect, compel the Court in determining a question within the scope of the Article to ignore the express words of the Article. They reaffirmed what had already been decided in 'RUNCHORDAS v. PARVATIBAI', pointed out that the decision in 'VAITHIALINGA MUDALLAR v. SRIRANGATH ANN!', 52 Ind App 322 PC was not in conflict With, what had been already laid down in 'RUNCHORDAS v. PARVATIBAI', and held that the plaintiffs suit before them was not barred by the law of limitation. This decision of their Lordships of the Privy Council clearly lays down that any adverse possession which may be claimed by a stranger against the limited heir does not enure for his benefit against the reversionary heir who derives title in his own right to the estate of the last full owner. The stranger would hot be entitled to tack on his adverse possession against the limited heir to his adverse possession against the reversionary; heir. What he would acquire by such squatter would only be a right against that limited heir and whatever be the rights of the limited heir would be acquired by him by such adverse possession or squatter, but no more. The limited heir would not represent the estate for the purpose of the stranger perfecting his title by such adverse possession and the squatter would at best only acquire whatever rights of possession and enjoyment the limited heir had in the corpus as well as in the income thereof. On the extinction of the interest of the limited heir, those rights which the squatter would thus acquire would come to an end and his adverse pos-session against the reversionary heir would have to start afresh to enable him to acquire any rights by adverse possession against such reversionary heir.

(7) In this connection, it would be apposite, to-refer to the Pull Bench decision of the Allahabad High Court reported in 'BANKEY LAL v. RAGHU-NATH SAHAI', 51 All 188 PB. In that case a Hindu widow, who had succeeded to the estate of her husband, died in i894, leaving a daughter as the heir. The daughter, however, never got possession, as her father's collaterals took possession of the estate adversely to her. She did not sue-them to recover possession and died in 1920. Her sons, who inherited the estate, sued these collaterals for possession in 1923. The defendants pleaded limitation by reason of their adverse possession for over 12 years, and the question arose, to what extent and under what circumstances adverse possession, as against a Hindu female heir, would bind the reversioners. This was a case which is directly in point as regards the rights and liabilities of the parties before us. There the widow had died in 1894 and the daughter had succeeded as the heir and she got a limited estate, because, unlike the position which obtains in Bombay, the daughter there only got a limited estate and not an absolute estate. The daughter was entitled to the possession of the property in 1894 when the reversion opened, but she did nothing till her death in 1920, i.e., for well-nigh twenty-six years, and the collaterals of her father claimed to be in adverse possession of the property.

If the adverse possession which the collaterals claimed was effective against the estate, the title of the next reversionary heir would have been extinguished. But the learned Judges of the Allahabad High Court held that such adverse possession was not effective against the reversion and that the reversionary heir who became entitled to the estate of the last full owner could file the suit for possession of the immovable property claiming the benefit of Article 141, Limitation Act. The question which was mooted for the consideration of the Pull Bench there was (p. 191):

'To what extent, if any, and under what circumstances will adverse possession, proved as against a Hindu female heir, bind the reversioners?'

The Acting Chief Justice Sir Shah Muhammad Sulaiman discussed all the authorities including 'SHIVAGUNGA'S CASE', 9 Moo Ind App 539 PC 1 'RUNCHORDDAS v. PARVATIBAI, 26 Ind App 71 PC and others and gave the following answer (p. 203):

'.....where a widow has entered into possession as a Hindu widow and has either voluntarily parted with possession or been dispossessed against her consent, a suit by the reversioner brought for possession after her death is governed by Article 141 and not by Article 144, and having been brought within 12 years of the death of Mst. Saraswati (the daughter), is not barred by limitation.'

This decision of the learned Judges of the Allahabad High Court is a clear authority for the proposition that, adverse possession against a Hindu female heir is of no avail against the reversionary heir who succeeds to the estate of the last full owner on the reversion opening on the death of the last limited heir.

(8) The above authorities are sufficient to dispose of the case before us and there is no need to multiply authorities on this point which arises for our consideration. We are, therefore, of the opinion that the conclusion which was reached by the learned Judge, Rajadhyaksha, J. when he decided the second appeal, was correct and we confirm the same.

(9) If the plaintiffs' suit was thus in time, the only question left for determination is what is the value of the improvements which the contesting defendants are entitled to. The learned trial Judge did not go into the question of these improvements on the decision which had been reached by him in regard to the question of legal necessity. The lower appellate Court, however, on the evidence before it came to the conclusion that the fair value of the improvements could be put at an aggregate sum of R.s. 325 and that was the only sum which it awarded to the plaintiffs under Section 51, Transfer of Property Act. When the second appeal came to be heard by him, Rajadhyaksha J. confirmed this finding of the lower appellate Court. He negatived the contention which had been urged by the appellants that the tower appellate Court should have allowed the amounts of Rs. 577-13-0 and Rs. 151-1-0 aggregating to Rs. 728-14-0. We are of the opinion that the decision which was arrived at by Rajadhyaksha J. was quite correct. It was open to the lower appellate Court, on having reviewed the evidence before it, to come to the conclusion that Rs. 325 was, on the whole, a fair value of the improvements, and there was no reason to differ from the same. We, therefore, do not see our way to differ from the conclusion reached by Rajadhyaksha J. in this behalf also.

(10) The result, therefore, is that this Letters Patent appeal will be dismissed with costs.

(11) Appeal dismissed.


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