Manohar Pershad, J.
1. Respondent No.7, Viramma, transferred the suit lands to the appellant through a sale deed, dated 19-3-1950. Respondents 1 to 6 filed a suit O.S. 10 of 1950 in the District Court of East Godavary at Rajahmundry for declaration that the sale deed Ex. B-2 dated 19-3-1950 executed by respondent 1 in favour of the appellant was not valid and binding on them. This suit of the respondents has been decreed by the Principal Subordinate Judge tHE alienee has now come up in appeal.
2. The brief facts are: One Jammi Rayudu, the original ancestor of the plaintiff-respondents 1 to 6's family had three sons, Baliah, Narsiah and Appanna. Baliah had three sons by name Rayudu, father of respondents 1 to 4, Viraswamy, father of respondents 5 and 6 and Somanna, 7th plaintiff and 6th respondent herein. Jammi Rayudu acquired extensive lands including the suit lands.
On the death of Rayudu, the suit lands and other remaining properties devolved on his three- sons, Balaiah, Narsiah, and Appanna who constituted a joint Hindu family. Appanna died 50 years ago un-divided and intestate leaving behind him his widow Baganima. Narsiah also died in about 1904 undivided and intestate leaving behind him his widow Viramma (respondent 7). After the death of Appanna, his widow Bagamma claimed maintenance. She was given 4 acres in revision survey No. 78 and another four acres in revision survey No. 54/2 in Rajahmundry village to be enjoyed by her for life in lieu of maintenance and to be reverted to the family after her demise.
After the death of Narsiah, his widow Virarnma, respondent 7 also demanded maintenance. At the in-stance of elderly people, the plaint schedule lands were given to her in lieu of maintenance to be enjoyed by her for life and to be reverted to the family after her death. It is alleged that respondent 7 has no right to sell or dispose of the property, that Appellant and respondent 7 having conspired together brought into existence the alleged sale deed dated 19-3-50, that the said sale is not for legal necessity or benefit of the estate and that therefore is not binding on respondents 1 to 6 who are the reversioners. Respondents 1 to 6 further stated that the sale price was too inadequate.
It was alsop1 alleged that even assuming that Narsiah died divided in status and the suit lands represented Narsiah's share in the family properties, since Narsiah died issueless and without making any testamentary disposition, the suit lands devolved on respondent 7 with the limited rights of a Hindu widow only and she was hound to enjoy the same till her life time. The plea of respondent 7 and the appellant in their written statement was that die sale in question was valid and for adequate consideration.
They denied that Baliah and Narsiah were undivided by the time of the death of Narsiah and stated that late Narsiah was divided with his brother Baliah prior to 1902 and was in possession of about 15-50 cents which fell to his share, that on 5-5-1902, the late Narstah executed a will bequeatlu'ng to the 7th respondent with absolute rights of his properties, his land etc. Respondent 7 further denied that she ever demanded any maintenance from respondents 1 to 6 and stated that she was in possession of the suit properties in her own right. She, however, denied that her possession was in lieu of maintenance.
3. The Principal Subordinate Judge framed six issues and on the evidence produced by the parties the Court held that partition between Narsiah and Baliah was not proved and that respondent 7 was in possession of the suit lands under an agreement by which she was to enjoy the same in lieu of her maintenance. It further held that the alleged will was a concocted document and the sale deed was a colourable transaction not binding on the never-sioners. In the result, the Principal Subordinate Judge passed a decree in favour of the plaintiffs declaring that the sale deed was not valid and binding on the reversioners.
4. The learned counsel for the appellant has advanced various arguments. The first argument advanced is that the Court below has erred in declaring that the sale deed dated 19-3-50 executed by the 7th respondent in favour of the appellant was not true, valid and binding on the reversioners. The next contention advanced is that the Court below has fallen into an error in holding that Narsiah, husband of respondent 7 died undivided.
He contended that the evidence on record sufficiently goes to prove that he had separated somewhere about 1902. It is nest contended that the Court below has not relied on the evidence produced on behalf of the respondents 1 to 6 to prove that the suit land was given to respondent 7 in lien of maintenance, and erred in holding that the 7th respondent must have come into possession of the suit land under arrangement relying on the case of Venkatappayya v. Venkatasubbayya, 16 Mad LJ 352 (A).
It is further urged that the Court below erred in holding that respondent 7 had limited rights of aHindu widow. It is further urged that the evidence produced on behalf of the appellants sufficiently proves that Narsia executed a will in favour of his wife and the lower Court erred in holding that the will was a concocted document. Lastly, relying on S, 14 of the Hindu Succession Act, 1956, it is contended that Viramma, respondent 7 acquired an absolute estate.
5. On behalf of the respondent-plaintiffs, it is contended that the Court below had rightly held that the sale was a colourable transaction. It is next contended that the lower Court is right in holding that Narsiah, husband of respondent 7 died as an undivided member. It is further urged that it is erroneous to think that Viramma, respondent 7 acquired an absolute interest.
He urges that she was put in possession under an agreement in lieu of maintenance, and even if the alleged agreement is not proved, she being a Hindu widow would only take a life estate. Adverting to the argument relating to the execution of the will by Narsiah, it is contended on behalf of the respondents that the Court below has rightly come to the conclusion that the will was concocted document. As regards the argument relating to Section 14, Hindu Succession Act, 1956, it is contended that as the widow is not in possession, the said provision does not apply.
6. The points that full for determination are :
(1) Whether the seventh respondent's husband died divided from respondents 1 to 6?
(2) Whether the suit property was given to respondent 7 in lieu of maintenance to be enjoyed for her life time?
(3) Whether Narsiah executed a will bequeathing his property to his wife?
7. In so far as the first point is concerned, the case of the appellant and respondent 7 is that Narsiah became divided with his brother Baliah prier to 1902. Admittedly, there is no document at all to evidence partition between Baliah and Narsiah. The evidence is purely oral. Besides the 7th respondent, D. Ws. 1 to 3, 5 and 8 have been examined to speak of the fact of partition.
8-21. (His Lordship then considered the oral and documentary evidence in the case and continued as under). The result of the above discussion is this. It is not proved by the plaintiff-respondent that the suit land is given to respondent 7 in lieu of maintenance. It is also not proved sufficiently that Narsiah and Baliah had separated and divided the properties. Admittedly, the 7th respondent was in possession since 1904. The question arises as to what would be the nature of her possession. It is contended on behalf of the appellants that when the plaintiff-respondents failed to prove that the land in question was given to the 7th respondent in lieu of maintenance, her possession would not be that of a qualified owner under the Hindu Law.
In other words, it is contended that she acquires title by adverse possession. Reliance was placed on the cases of Bapanayya v. Peddichalamaiva, 9 Mad LJ 33(B) and Kuppuswamy v. Thiruvenkata Thatachari (1911) 1 Mad WN 314 (C). On behalf of the respondent relying on the cases of 16 Mad LJ 352 (A), ML Parbati v. Ram Prasad, AIR 1933 Oudh 92 (D) and Desa v. Dani, AIR 1929 Lah 327 (E), it is contended that normal presumption under the Hindu Law is that she takes a life estate and in the absence of any evidence that she asserted her title, the question of adverse possession does not arise.
22. An identical question had arisen in the Hyderabad High Court in the case of Gunderao v.Venkamma,. (S) AIR 1955 Hyd 3 (FB) (F). It was held by majority of which one of us was a member that if a Hindu widow not entitled to inherit anstate enters into possession of that estate and remains in possession for over the statutory period, the nature of her estate-- (a) where she asserts a title as an absolute owner from the very beginningof her possession, will be an absolute estate; and (b) when she does not assert her absolute title, it Joes not become her absolute property, but becomes an accretion to the estate of the last male owner.
The view taken by the Full Bench of the Hyderabad High Court is different from the view taken by the Madras High Court, and as we still hold the same view and there is great divergence ofopinion in the other High Courts and the Privy Council, we feel it is better if this question of law is decided by a Full Bench.
23. We therefore refer the following questionof law to a Full Bench:
(1) Where, a Hindu widow, not entitled to inherit an estate, enters into possession of tile estate and remains in possession for the statutory period, what would be the nature of the estate taken by her -
(a) in a case where she asserts her title as an absolute owner, and
(b) where she does not assert her absolute title.
24. The file be placed before the Hon'ble the Chief Justice for formation of ft Full Bench.