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Ghandharap Singh and ors. Vs. Lachman Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All485
AppellantGhandharap Singh and ors.
RespondentLachman Singh and ors.
Excerpt:
.....(limitation act), sch. ii, nos. 141, 144. - - colvin, and i think rightly, that if the defendant lachman singh had obtained and held adverse possession as against the widow for more than 12 years prior to the date of the institution of the suit, that adverse possession as against her is good as against the reversioners; and as authority for that position i have only to refer to the well-known declaration of their lordships of the privy council in the shiva gunga case, ix moo. it seems to me that the learned judge having found those facts was distinctly right in saying that there was on the part of the minor lachman singh, now major defendant, clear evidence of adverse possession to the widow and to any other person, who had any claim or interest, under or through her, in the property,..........prior to his death in 1869, had adopted the defendant lachman singh as his son, and that upon his death lachman singh entered into possession and enjoyment of his property, to which the suit related, to the exclusion of his adoptive mother dulari kuar, who never held possession of it as an estate of the widow of a separated childless hindu. in other words, what the defendant asserted was that from the date of the death of chittar singh, his adopted son, the defendant lachman singh took and held possession of the property left by him adversely to dulari kuar. supposing that musammat dulari had taken the estate of the widow of a deceased childless hindu, and nothing had intervened to disturb her possession of that estate of the kind i shall presently refer to, the plaintiffs would, no.....
Judgment:

Straight, J.

1. The suit to which this appeal relates is one which on the face of it professes to be brought by the reversioners of the estate of one Chittar Singh, their right to maintain their present claim having, it is alleged, opened up to them upon the death of one Musammat Dulari, who departed this life upon the 14th October 1884. The case for the defendants was that Chittar Singh, prior to his death in 1869, had adopted the defendant Lachman Singh as his son, and that upon his death Lachman Singh entered into possession and enjoyment of his property, to which the suit related, to the exclusion of his adoptive mother Dulari Kuar, who never held possession of it as an estate of the widow of a separated childless Hindu. In other words, what the defendant asserted was that from the date of the death of Chittar Singh, his adopted son, the defendant Lachman Singh took and held possession of the property left by him adversely to Dulari Kuar. Supposing that Musammat Dulari had taken the estate of the widow of a deceased childless Hindu, and nothing had intervened to disturb her possession of that estate of the kind I shall presently refer to, the plaintiffs would, no doubt, have been entitled to come into Court with their suit, and it would have been governed by art. 141 of the Limitation Law. But it has been conceded by Mr. Colvin, and I think rightly, that if the defendant Lachman Singh had obtained and held adverse possession as against the widow for more than 12 years prior to the date of the institution of the suit, that adverse possession as against her is good as against the reversioners; and as authority for that position I have only to refer to the well-known declaration of their Lordships of the Privy Council in the Shiva Gunga Case, IX Moo. I. A. 543. Reference has been made in the course of the argument to three cases. One of those was the case of Raj Bahadoor Singh v. Achambit Lal, L. R., 6 Ind. Ap. 110, another was the case of Jagadamba Chowdhrani v. Dakhina Mohun, L. R., 13 Ind. App. 84, and the last is the case of Rajendro Nath Holder v. Jogendro Nath Banerjee, 14 Moo. I. A., 67.

2. Now as to the first of those cases, the remarks of their Lordships in the second of them, namely, the case of Jagadamba Chowdhrani v. Dakhina Mohun, L. R., 13 Ind. App. 84, explain what the nature of that suit was, and they indicate in unmistakeable language what meaning is to be attached to a particular passage used in the judgment about which misconception had arisen. In that case all that their Lordships did decide was that under the old Limitation Act, IX of 1871, art. 129, upon a particular state of facts, that article applied, and they specifically say in the course of their judgment that they do not profess to decide whether 'the articles of the new law, Act XV of 1877, namely, arts. 118 and 119, denote a change of policy or how much change of law it affects, because those questions were not before their Lordships.'

3. In the third case relied upon by Mr. Colvin, their Lordships of the Privy Council upholding the decision of a Lower Appellate Court upon a peculiar and special state of facts, in reference to that case held that no limitation article applied to bar that suit.

4. It is not necessary for me to decide here whether even if there had not been such a finding as has been recorded by the learned Judge in this case, and there were no materials to show that adverse possession of the estate of Chittar Singh had been obtained by the defendant, Lachman Singh, but it appeared that an adoption had been asserted at the death of Chittar Singh, two remedies might not have been open to the plaintiffs, that is to say, one of a purely declaratory kind, such as is covered by art. 118 of the Limitation Act, when such alleged adoption became known to the plaintiffs, or a suit in the present form on the death of the widow. I think there is much force in what was said by my brother Oldfield on this subject in the case of Basdeo v. Gopal I. L. R., 8 All., 644, but the state of the findings by the learned Judge in this case render it unnecessary to consider this question, and they are as follows:

Plaintiffs had full notice in 1869 A. D. that Dulari made no claim to the estate; that she never asserted that the estate had at any time vested in her; on the contrary, she alleged that on the death of Chittar Singh, the estate, vested in a son adopted by him in his life-time, and that she was only managing during the minority of the adopted son and for his benefit, he being in full possession by right of inheritance from his adoptive father.

5. That is a most specific and clear finding to this effect, that upon the death of Chittar Singh, Lachman Singh was by the direct act of the widow notified to every body, as a person who was the adopted son of her deceased husband, Chittar Singh himself; that he was in possession, not as the son adopted by her in pursuance of any authority conferred on her by her husband, whom she had put into possession, but by direct inheritance from Chittar Singh. It seems to me that the learned Judge having found those facts was distinctly right in saying that there was on the part of the minor Lachman Singh, now major defendant, clear evidence of adverse possession to the widow and to any other person, who had any claim or interest, under or through her, in the property, which has continued down to the present time, and which was obviously for a much longer period than twelve years.

6. That being so, although Mr. Golvin has addressed us very ably in regard to the findings of fact of the learned Judge, I am of opinion that we cannot go behind those findings, and that upon them the learned Judge has properly held that the suit of the plaintiffs not having been brought within twelve years from the date when the defendant first obtained adverse possession, it must be dismissed, Lachman Singh having acquired a good prescriptive title thereby. I therefore dismiss the appeal with costs.

Tyrrell, J.

7. I concur.


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