(1) The sole question argued in the appeal is whether the suit filed by the plaintiff for possession of Survey No. 17 was barred by limitation.
(2) Suit No. 37/1 of 1953-54 was instituted on 15-9-1953 by one Kishtabai against seven defendants for possession of certain properties and other consequential reliefs. Kishtabai compromised with the first four defendants on 11-2-1954 in respect of certain properties and a decree was drawn up between the parties in terms of the compromise. The suit was continued as against defendants 5 to 7 who are the contesting respondents in the present appeal. It is therefore sufficient to restrict the narration of facts to the subject matter of dispute in this appeal.
One Dattatraya was the last owner of the suit property comprising Survey No. 17 of Kollur village in Gulbarga District. During his minority, his mother Malsabai sold the land to one Deoji in 1328 Fasli (1918-19) representing that it was her own property. The land was mutated in the name of Deoji in June 1919.
Then, subsequently Malsabai sold the property to one Abdul Khader. Defendant No. 5 filed a Civil suit to enforce his right of pre-emption against Malsabai, Deoji and Abdul Khadar and obtained a compromise decree for possession in 1331 Fasli (1921). He was put in possession in 1331 Fasli itself. Defendants 6 and 7 are the full brothers of defendant No. 5. Dattatraya died as a minor in 1330 Fasli while Malsabai died in 1356 Fasli i.e., on 1st July 1947.
Kishtabai then instituted the suit as the stepsister of Dattatraya, for possession and for recovery of Rs. 600/- towards mesne profits for the years 1951 to 53.
(3) Respondents 5 to 7 contested the suit on various grounds. The only material contention for the purpose of the appeal is one of limitation. They pleaded that the suit was barred by limitation.
(4) The learned trial Judge rejected the plea of limitation on the ground that there was no satisfactory evidence in the case from which could be inferred that Malsabai had asserted a title hostile to the real owner and that the suit having been brought within 12 years from the death of Malsabai, was quite in time under Art. 141 of the Limitation Act. He accordingly decreed the plaintiff's suit for possession and mesne profits.
Defendants 5 to 7, being aggrieved by this judgment and decree, filed Civil Appeal No. 156 of 1959-60 in the Court of the District Judge, Gulbarga. The appeal was heard by the Additional District Judge who reversed the judgment and decree of the trial Court and dismissed the suit with costs. The view taken by him is that the alienation made by Malsabai during the lifetime of Dattatraya was void against the minor, that Art. 44 read with S. 6(3) and not Art. 141 of the Indian Limitation Act, 1908 (hereinafter called the Act) was applicable to the facts of the case and that the suit by the reversioners was clearly barred by time as Dattatraya had admittedly died in 1331 Fasli.
(5) The heirs of the original plaintiff have preferred this appeal. Mr. Appa Rao the learned Advocate for the appellants has contended that the learned Additional Judge was in error in holding that Art. 44 of the Limitation Act was applicable and that the learned Trial Judge was right in applying Art. 141 of the Act. It is common ground that Malsabai sold the suit property to Deoji as if it was her own property. She did not execute the sale deed as guardian of the minor. At the date of sale Dattatraya was the sole owner of the property and the alienation by Malsabai in her own right was wholly unauthorised. Article 44 of the Act applies to a suit instituted by a ward, on attainment of majority, to set aside the transfer of property made by his guardian and prescribes the period of limitation as three years to be counted from the date when the ward attains majority. As the sale by Malsabai in favour of Deoji was not in her capacity as the guardian of Dattatraya, sale was initially void against the minor and there could be no question of setting aside the transfer.
As has been laid down by this Court in Meenakshamma v. Aswathanarayana, 1960-38 Mys. LJ 742 : (AIR 1961 Mys. 193), there is no room for the application of Art. 44 to a suit of this type. The same view has been taken by the Calcutta High Court in Banku Behary v. Benku Behary, : AIR1943Cal203 , where it has been laid down that Art. 44 has no application to cases of transfer by wholly unauthorised persons. This view has found favour with the Supreme Court in Wali Singh v. Sohan Singh, : AIR1954SC263 in which it has been held that where the transfer or relinquishment by the guardian does not purport to be on behalf of the minor, there is no case for the application of Art. 44 of the Limitation Act.
(6) In invoking the aid of Art. 141 of the Limitation Act, Mr. Appa Rao advanced the following argument: the alienation by Malsabai in favour of Deoji was void; after the death of Dattatraya, Malsabai inherited the property and became a limited owner of the property; she could not have challenged the sale in favour of Deoji in view of S. 43 of the Transfer of Property Act; therefore the suit instituted by Kishtabai as the step-sister of Dattatraya after the cessation of the limited interest of Malsabai would be governed by Art. 141 alone.
(7) Article 141 applies to suits instituted by a Hindu or Mohammadan reversioner entitled to possession on the death of a female holding a qualified or limited estate to the property. In the present case, the suit property had been alienated during the lifetime of Dattatraya, and Deoji who obtained possession during the lifetime of Dattatraya was undoubtedly a purchaser claiming a title hostile to the real owner, though Deoji's right to possession was assailable by the latter. As Deoji's possession was hostile from the date of his purchase, the right to sue for possession accrued to Dattatraya in 1328 Fasli itself. Dattatraya died before he attained majority. Dattatraya's disability of minority continued up to his death and any person claiming to be his legal representative ought to institute the suit for possession under S. 6(3) of the Act 'within the same period after the death as would otherwise have been allowed from the time so prescribed'. So, his legal representative, viz., his mother should have instituted a suit for possession within 12 years from the date of alienation in view of the provisions contained in S. 6(3) of the Act.
(8) In support of his argument that the plaintiff could file the suit within 12 years from the date of Malsabai's death, Mr. Appa Rao has drawn my attention to certain portions of the commentary on the Indian Limitation Act by Rustomji (1958 Edition). At page 868, under the paragraph entitled 'Limited Interest : Adverse possession of ', the learned Commentator has collected the following observations from certain reported decisions :
'To constitute an adverse possession there need not be exclusive claim to the entire title, nor one necessarily excluding the idea of title in another person. When possession has been adverse only in respect of a limited interest, it is ineffectual to confer an absolute title on the adverse possessor; i.e., the quality and extent of the right acquired by possession depends upon the claim accompanying it and upon the nature of animus possidendi. By virtue of adverse possession a person does not acquire a higher title than he has prescribed for.'
(9) The principles embodied in this passage cannot help the appellants in this case because Deoji the purchaser was not prescribing his title against a limited owner but against Dattatraya who was the absolute owner of the suit property. So Deoji and after him defendant No. 5 continued to enjoy the suit property without obstruction as absolute owners. There was therefore no question of claiming adverse possession only against a limited owner. Mr. Appa Rao has further relied upon the following observations at page 875 of the same book:
'On the whole, then, it appears that the possession of a succession of independent occupiers, who were all wrongdoers as against the true owner, does not bar the latter. In other words, the possession relied on as a bar must be continuous in itself; a claimant cannot tack together successive occupations, however peaceable, which are not connected as of right.'
In my opinion, these observations are wholly inapplicable to the facts of the present case. Defendant No. 5 has been in continues and peaceable possession since 1331 Fasli and he prescribed full title in himself against everybody who claimed through Dattatraya. The latter had been deprived of his right to the enjoyment of the property even during his lifetime. The nature of animus possidendi which Deoji and after him defendant No. 5 had, was the claim of an absolute owner as against the person who had full title and right to immediate possession. There is no question of tacking possession of independent trespassers as defendant No. 5 has been in exclusive possession of the suit land as of right since 1331 Fasli.
(10) It was next contended that as Malsabai could not institute the suit for possession in view of the provisions contained in S. 43 of the Transfer of Property Act, her inaction could not debar the plaintiff from instituting the suit within 12 years after her death. Assuming that the unauthorised transfer made by Malsabai began to operate in favour of the transferee on the interest which she acquired on the death of her son, yet that would not stop the running of time against the reversioner. Besides, Malsabai's liability to sue for possession is not a kind of 'disability' recognised by law, entitling the reversioner to exclude the period of her life time while counting the period of limitation for a suit to obtain possession. The plaintiff cannot claim the benefit of Art. 141 of the Act as the possession of the alienees was adverse to the last male owner even during his lifetime.
(11) As against these arguments, Mr. Zakaulla appearing for the respondents submitted that it was for the plaintiff to establish that Malsabai's possession at the time of alienation was that of a limited owner and that what she had alienated was only her life interest. He further argued that if the alienation by Malsabai was not that of a limited owner, then the suit of the plaintiff instituted in 1953--about 33 years after the death of the last owner--was clearly barred by time as the Article applicable to such facts was Art. 144 of the Limitation Act. In support of his argument, he drew my attention to a Full Bench decision of the Andhra Pradesh High Court in M. Satyanarayana v. Veeraju, : AIR1959AP79 (FB) and to the decision of the Judicial Committee in Sham Koer v. Dah Koer, ILR 29 Cal 664(PC). These decisions relate to the possession of a widow who after entering into possession as a limited owner or for enjoyment towards her maintenance asserts absolute title to property in her possession.
Reliance has also been placed on another decisions of the Judicial Committee in Lachhan Kunwar v. Manorath Ram ILR 22 Cal 445(PC). In that case a Hindu proprietor died leaving behind him a widow and also a son who died a few years after his father's death leaving his own widow. The proprietor's widow took possession of the entire property notwithstanding the claims of the son's widow and held it for 17 years. The suit by the son's widow against her for the property had been dismissed on the ground of limitation. Prior to her death, the proprietor's widow transferred part of the property by gift and part by will. In a suit brought by the revisioner, it was held that she had taken and retained possession of the property absolutely, such possession of the proprietor's widow was not shown to be that of the limited interest of a widow.
It would be clear from these decisions that the nature of possession held by a widow depends upon her own Animus Possidendi. In the present case Malsabai had not been in possession in her own rights either as limited owner or as an absolute owner. She unauthorisedly transferred her son's property when she had no interest in the property.
The last decision relied upon by Mr. Zakaulla is that reported in Mataprasad v. Brij Kishore. AIR 1942 Oudh 303. In that case a Hindu widow of a predeceased son having no right to any share in the property left by her father-in-law, had got into possession of different shares out of the property from time to time and held them adversely to the rightful heirs for more than 12 years. It was not established that her possession was by the consent of the rightful heirs. After holding the property for more than 12 years, she transferred the same by gift. In a suit brought by the rightful owners, it was contended that the intervention of a limited estate by the son's widow would not bar the claim of the rightful heirs. The suit was dismissed on the ground that adverse possession commenced to run against the last male holder himself and that the fact that the son's widow intervened to take possession would not enable the reversioner to say that he had got a fresh cause of action on the death of the owner of the limited estate. This decision is cited only to meet the argument advanced by Mr. Appa Rao, which I have already rejected, to the effect that the failure of Malsabai who was only a limited owner to institute a suit would not debar the step-sister of Dattatraya from instituting a suit within 12 years of Malsabai's death.
(12) On a careful consideration of the facts of this case and the decisions cited before me. I have no doubt in holding that the claim of the plaintiff against defendant No. 5 and his brothers was barred by time. The possession of Deoji and of defendant No. 5 was adverse to Dattatraya himself. Dattatraya died before he attained majority. Any suit instituted by his reversioner would not be governed by Art. 44 since Dattatraya's suit for possession would not have been governed by that Article as the alienation and her death does not give rise to a fresh cause of action in the circumstances of this case. The only Article applicable to the facts of the case is the residuary Article viz., Art. 144 of the Limitation Act and the plaintiff's suit instituted 33 years after the death of Dattatraya was clearly barred by time. I, therefore, concur with the Additional District Judge in holding that the suit was barred by time, though on different grounds. I accordingly dismiss the appeal. In the circumstances stated above, the parties shall bear their costs.
(13) Appeal dismissed.