S.R. Das Gupta, C.J.
1. The appellants before us were defendants 1 to 5 in the trial Court. On 26th June 1951 the plaintiffs filed this suit for possession of suit properties consisting of a land and a house as reversioners of one Bhutali, husband of one Laxmibai. It is not disputed that the properties in suit belonged to the said Bhutali and on his death it devolved on Laxmibai as his widow.
In the year 1910 Laxmibai remarried one Balappa Desai. Defendants 3, 4 and 5 are the sons of Laxmibai by the said Balappa Desai. On 27-5-1927 she sold the suit land to the father of defendants 1 and 2. In the year 1951 Laxmibai died. Thereafter on 26th June 1951 the present suit wasinstituted by the plaintiffs as the reversioners of Bhutali, first husband of Laxmibai.
2. The suit was resisted by defendants 3, 4 and 5 and also by defendants 1 and 2. The principal ground on which the suit was resisted was that Laxmibai had become the absolute owner of the suit properties by adverse possession and the suit properties became her stridhana property and she was competent to pass an absolute title thereto by the sale deed dated 27-5-1927.
The other ground taken was that the suit was barred by limitation, because, as a result of her remarriage Laxmibai ceased to have any interest in Bhutali's estate and the reversioners became entitled to the said estate immediately on such re-marriage. It was contended that the cause of action of the reversioners arose on the said re-marriage and the suit should have been filed within 12 years thereafter either under Article 140 or Article 143 of the Limitation Act and the suit not having been brought within the said period of 12 years, was barred by limitation.
3. Both the Courts found in favour of the plaintiffs. On the question of adverse possession, both the Courts came to the conclusion that possession of Laxmibai even after her remarriage retained the character of possession as a limited owner and, therefore, there was no adverse possession against the reversioners of her first husband. The present appeal has been filed against the said decision of the lower appellate Court.
4. The first ground urged before us by Mr. Kalagate appearing on behalf of the appellants was that a widow on her remarriage forfeits her interest in her deceased husband's estate and if she holds thereafter possession of the properties of her deceased husband for a period of 12 years, the presumption would be that she intends to prescribe for an absolute title unless it is shown that she wanted to hold as a limited owner.
The learned advocate contended before us that Laxmibai having held the properties in question for a period of 12 years after her remarriage, she had prescribed for an absolute title and there is nothing to show that she intended to hold as a limited owner. That being so, the learned advocate urged before us, Laxmibai had obtained an absolute title to the properties in question and the said properties became her stridhana properties.
In support of this contention the learned advocate relied on a decision of the Privy Council in Sham Koer v. Dah Koer, 29 Ind App 132 and particularly on certain observations of their Lordships appearing therein. In that case the widow in question was the widow of one Bhau Nath Singh, a member of an undivided Hindu family governed by the Mitakshara Law, and it was found as a fact that neither she nor her son's widow would be entitled to anything more than maintenance out of the estate of Bhau Nath Singh.
Their Lordships of the Privy Council observed that possession, meaning thereby the possession of the widow and her daughter-in-law, of the three villages in question would be adverse to the reversionary heirs unless it was the result of an arrangement with them. Their Lordships further proceeded to hold that if the possession was adverse, the rights of the reversionary heirs would of course be barred at the expiration of twelve years from the date of Bhau Nath Singh's death, or the date of the widows' taking possession, which seems to have been at or shortly after his death.
The learned advocate strongly relied on these observations in support of his contention that in a case, as at present, where the widow forfeits her interest in her deceased husband's estate but continues to remain in possession of the said estate, her possession would be presumed to be adverse to reversionary heirs and at the expiration of 12 years the rights of the said heirs would be barred.
5. In my opinion, the observations of their Lordships in that case on which the learned advocate for the appellants relies have to be read in connection with the facts found by the Courts below. It was found that the possession of the widow was, right from the beginning, possession as full owner and the same has, therefore, been perfected by lapse of time. The High Court in that case observed that 'her possession as full owner from the beginning has been perfected by lapse of time'.
It was on these facts that their Lordships of the Privy Council held that her posses ion would be adverse to those of the reversioners. But in the present case both the lower Courts have come to a concurrent finding that possession of Laxmibai even after her remarriage retained the character of possession as a limited owner. In any event their Lordships of the Privy Council did not lay down any such proposition, as contended for by the learned advocate for the appellant, viz., that a widow after she had forfeited her interest in her husband's estate, if she continues to hold thereafter the possession of the said estate for the requisite period of 12 years, the presumption would be that she intends to prescribe for an absolute estate unless it is shown that she wanted to hold as n limited owner.
On the other hand in the said case decided by their Lordships, the widow was from the beginning not entitled to anything more than maintenance out of her husband's estate. Their Lordships were not called upon to consider and did not consider a case as at present where the widow entered into possession of the husband's estate as a widow being entitled to it, but continued to be in possession of the said estate even after her interest therein had ceased. In such a case the decision of the question as to whether or not she prescribed an absolute or limited title to the estate will rest on some other principle, to which I shall presently refer.
6. The true principle on which the decision in this appeal has to rest is to he found in a case reported in Tarif v. Phool Singh : AIR1927All274 . In that case also the widow had remarried after her former husband's death and as such she forfeited her rights to the properties of the former husband. The widow, however continued to be in possession and for a period of more than 12 years, and the self-same question which arises in this case also arose in that case, viz., whether or not by such possession she prescribed a title only with respect to the limited estate of which she was in possession before her remarriage, or whether she prescribed an absolute title to the estate.
In dealing with the question their Lordships held that by being allowed to continue in possession of the property notwithstanding the forfeiture, she could only prescribe a title to the widow's estate of which she was in possession before her re-marriage. Their Lordships observed as follows:
'In short by being allowed to remain in possession of Badan's share after her remarriage there could not be an automatic enlargement of her estate, but she must be presumed to have continued in possession of the same limited estate of which she was in possession since the death of Badan,' The principle of that decision is that once a widow enters into possession of her husband's estate as a widow and if, after her interest in the said estate has ceased continues to remain in such possession, she must be presumed to have continued in. such possession, after such cessation, of the same limited estate of which she was in possession at the death of her husband. This view which was taken in this case has subsequently been accepted in a number of decisions of the same Allahabad High Court and of the High Court of Lahore.
7. In the case of Desa v. Dani. AIR 1929 Lah 327 the same question arose for consideration. In that case also the widow after her remarriage continued to remain in possession of her first husband's estate and it was held that her possession after her remarriage was only in respect of her widow's estate and what she acquired by adverse possession was complete title to such limited estate only, and the reversioners' right to succeed on her death could not be defeated.
Mr. Justice Addison, who decided that case, referred with approval to the decision in : AIR1927All274 and observed that by being allowed to Continue in possession of the property notwithstanding the forfeiture, she could only prescribe, a title to a widow's estate of which she was in possession before her remarriage. His Lordship further observed as follows:
'There could be no automatic enlargement of the widow's estate but she must be presumed to have continued in possession of the same limited estate, i.e., her widow's estate and the inaction of the reversioner for a period of twelve years after the remarriage could only result in vesting a complete title in the widow to a widow's estate in respect of her husband's land. The same view was taken in Umrao Singh v. Pirthi : AIR1925All369 , a decision which was affirmed on Letters Patent Appeal. These decisions are based on a decision of their Lordships of the Privy Council in Lajwanti v. Safa Chand, AIR 1924 PC 121: 51 Ind App 171.' I shall refer to the said Privy Council decision a little later. But it appears that their Lordships of the Lahore High Court in the said case took exactly the same view which was taken by their Lordships of the Allahabad High Court in : AIR1927All274 .
8. In a subsequent decision also of the Lahore High Court, the same view appears to have been taken. In Mahajan v. Mt. Purbho. AIR 1930 Lah 504. the widow forfeited her interest due to un-chastity under the local custom, but she remained in possession of the estate for a period extending over more than 12 years. There was no evidence upon the record that she ever claimed the property as an absolute owner or that there was any change in the character of her possession after her becoming unchaste.
On these facts their Lordships held that she continued to hold the property after the forfeiture of her estate in the same way as before, and this continuance of possession could, by prescription confer upon her the limited estate which she enjoyed before the forfeiture, but could not have the effect of automatically enlarging her estate and making her an absolute owner. Chief Justice Shadi Lal, who delivered the judgment in that case, also relied on the Privy Council case reported in 51 Ind App 171: AIR 1924 PC 121.
9. In a subsequent decision of the Allahabad High Court the view taken by their Lordships in : AIR1927All274 was followed. In Chandrabali Pathak v. Bhagwan Prasad Pande, ILR (1944) All 533, their Lordships held that possession, unless it is based upon title, must be deemed to be adverse, but the possession of a Hindu widow must be treated on a different basis.
A true test according to their Lordships has always been furnished by the character in which she steps into possession, and if she has entered possession, not as a widow of the last male owner or as a widow of the family, the possession will be deemed to be adverse, but if she has entered into possession as a widow of the last male owner or as the widow of the family, her possession cannot be treated as adverse.
10. In a decision of the Bombay High Court reported in Maganlalji v. Purshottamlalji, 50 Bom LR 618: (AIR 1949 Bom 80) the above observations of their Lordships of the Allahabad High Court in the case reported in ILR (1944) All 533 were cited with approval. Mr. Justice Coyajee in that case observed that his Lordship was in entire agreement with this view expressed in ILR (1944) All 533, because it was clear that a Hindu widow takes a widow's estate or limited estate and having entered into possession of that estate in that capacity as limited heir, she can certainly hold any part of it adversely to third parties and therefore in the interests of the real reversioner or reversioners.
11. The High Court of Orissa in a recent decision. Dulhabh Seth v. Bharat Seth : AIR1954Ori212 , also took the same view. It should, however, be mentioned that the actual decision in that case did not rest on this ground, but their Lordships clearly expressed themselves by saying that as the widow entered into possession as limited owner her subsequent possession would not be enlarged in the absence of evidence of a change of her animus.
12. As for the Privy Council decision in 51 Ind App 171: (AIR 1924 PC 121) on which most of the decisions to which I have referred rely, the same fully supports the view which I am taking in this matter. What happened in that case was that one Jawahar Mal died leaving him surviving three widows but no children. Shortly after his death his eldest wife had a posthumous son, who died after a few months and his second wife had a posthumous daughter who was the plaintiff in the suit and appellant before their Lordships.
The respondents in the appeal before their Lordships were the reversionary heirs of the saidposthumous son. After the death of the said Jawahar Mal his widows remained in possession of his properties. The question arose as to whether there had been adverse possession by the widows for a period more than 12 years. Their Lordships held that it was clear that there had been adverse possession by the widows from 1869 to 1910 and further held that as a result thereof the title of the respondents (the reversioners of the posthumous son) was destroyed by Section 28 of the Indian Limitation Act.
It was then argued before their Lordships that the widows could only possess for themselves and that the last widow would then acquire a personal title and the respondent and not the plaintiffs were the heirs of the said last widow. This contention was rejected by their Lordships and in doing so their Lordships observed as follows:
'The Hindu widow, as often pointed out, is not a life renter, but has a widow's estate--that is to say, a widow's estate in her deceased husband's estate. If possessing as widow she possesses adversely to any one as to certain parcels, she does not acquire the parcels as stridhana, but she makes them good to her husband's estate. The result is the mauzas are Jawahar Mal's estate, the respondents having no title to them, and as such the plaintiff is entitled as heir to her father to take them.'
This decision clearly establishes that adverse possession by a Hindu widow, although it may result in extinguishing title of third parties, would go to augment the estate of her husband and her husband's reversioners would be entitled to the same after her death. In the said case, it should be noticed, thatthe possession of the widow from the very beginning was without any title and as their Lordships held the various respondents in that case were entitled to exclude the widows from the Manzas in question, still it was held by their Lordships that such possession which was adverse would only augment the estate of her deceased husband although it extinguished the rights of others.
13. Thus the preponderance of authorities is in favour of the view, with which I agree, that when a widow, who has entered into possession as a limited heir, continues to do so even after she forfeited her interest in her husband's estate, the character of her possession would not be enlarged in the absence of evidence of a change of her animus and she must be presumed to have continued in possession of the same limited estate, i.e. her widow's estate. Such possession for a period of twelve years would result in vesting a complete title in the widow to a widow's estate in respect of her husband's lands.
14. There is no satisfactory evidence either side as to the nature of her possession after her remarriage. The undisputed facts in this case, however, are that Laxmibai, remarried after her first husband's death but she continued to remain in possession of the suit land for a period of more than 12 years. The question is whether on these facts it can be said that she by such possession prescribed an absolute title.
On the principle laid down by the authorities to which I have just now referred, it is not possible to take such a view. It must be held that she continued to retain her possession as a limited owner and although there would be adverse possession against third parties, there would be no adverse possession against the real reversioners of the estate.
15. I should also mention that the concurrent finding of both the Courts is to the effect that after her remarriage there was no change in the character of her possession at any time. Sitting in second appeal it would not he right for us to disturb the said concurrent finding of fact. On such finding it must be held that there can be no adverse possession against the plaintiffs.
16. In the result, therefore, this appeal fails and is dismissed with costs.
S.S. Malimath, J.
17. I agree.
18. Appeal dismissed.