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Kali Pratap Misir Vs. Amla Pat Tewari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All307
AppellantKali Pratap Misir
RespondentAmla Pat Tewari and ors.
Excerpt:
- - the female never took possession, so she cannot be said to represent the estate effectively in any proceeding relating to the possession of the estate. it is not as if she had taken possession and there had been a subsequent suit in the civil court wherein she may have defended to the best of her ability and knowledge before judges who understood the elementary principles of hindu law. on the basis of such judgments it would be most unsafe to presume action of divesting or acceleration on the part of mt......important to notice this when we consider the question of surrender that neither judge knew that a hindu daughter had any right whatsoever in the property of a separated hindu. the appellate court observed:by her marriage this daughter lost all rights to property in her own family and her son is according to hindu law a mare outsider.3. possibly the learned judge would have allowed the daughter some right if she had not the misfortune to marry. the rights of mt. harpali were overlooked entirely and in proceedings of this nature there was no opportunity given to the female heir of defending the estate. the conditions laid down by their lordships of the privy council in the madras case to make a finding against hindu female effective against a reversioner do not exist here. there is.....
Judgment:

Dalal, J.

1. The plaintiff sued for possession of a property of his mother's father Jurawan from a reversioner of his grandfather, who is in possession. After Jurawan's death his widow Mt. Suraj Bansi took possession. She appears to have died about 1898 when mutation proceedings took place. The papers of those proceedings are not available except the two judgments, one of the trial Court dated 6th August 1898 and the other of the appellate Court of the Collector dated 20th December 1898. On the basis of these two judgments it was alleged by the defendants that the plaintiff's mother Mt. Harpali surrendered her rights and accelerated the reversion of the plaintiff and that, therefore, the defendants had been in adverse possession as against the plaintiff since 1893. The suit on this ground was alleged to be time barred.

2. Point 2 taken up by the defence was that adverse possession as against Mt. Harpali was tantamount to adverse possession against the plaintiff reversioner. The last point is easily disposed of. It has been held by a Full Beach of this Court in Bankey Lal v. Raghunath Sahai : AIR1928All561 , that under the circumstances of the present case the suit was governed by Article 141, Lim. Act and adverse possession against a Hindu female heir could not be affective and binding on the reversioner. Mr. Sen, on behalf of the defendants, pointed out that in his opinion this Full Bench had the temerity to disagree with the opinion expressed by their Lordships of the Privy Council in Vaithialinga Mudaliar v. Srirangath Anni . That ruling does not apply to the circumstances of the present case. The female never took possession, so she cannot be said to represent the estate effectively in any proceeding relating to the possession of the estate. It is not as if she had taken possession and there had been a subsequent suit in the civil Court wherein she may have defended to the best of her ability and knowledge before Judges who understood the elementary principles of Hindu Law. In the present case the two judgments disclose a lamentable lack of the knowledge of Hindu Law. The trial Judge seems to be of opinion that among Hindus a daughter's son is the direct heir having preference over more distant reversioners while the learned Judge of the appellate Court was of opinion that a daughter's son was merely an outsider who had no rights in his maternal grandfather's property. It will be important to notice this when we consider the question of surrender that neither Judge knew that a Hindu daughter had any right whatsoever in the property of a separated Hindu. The appellate Court observed:

by her marriage this daughter lost all rights to property in her own family and her son is according to Hindu Law a mare outsider.

3. Possibly the learned Judge would have allowed the daughter some right if she had not the misfortune to marry. The rights of Mt. Harpali were overlooked entirely and in proceedings of this nature there was no opportunity given to the female heir of defending the estate. The conditions laid down by their Lordships of the Privy Council in the Madras case to make a finding against Hindu female effective against a reversioner do not exist here. There is certainly no bar of limitation to plaintiff claiming the property on the death of his mother Mt. Harpali.

4. I have partly decided point 2 also. There is no paper recording the fact of Mt. Harpali divesting herself of her inheritance from her father's property. No reference whatever is made in either of the two judgments to any divesting of property or acceleration. One may be certain that the Judges who delivered the two judgments would not have understood these doctrines of Hindu Law. In the judgments the claim of Mt. Harpali was not considered at all and the question was discussed as if the plaintiff claimed to be the direct heir of Jurawan without any reference to the rights of her mother. On the basis of such judgments it would be most unsafe to presume action of divesting or acceleration on the part of Mt. Harpali. I hold that Mt. Harpali never divested herself of her rights.

5. In the result I set aside the decrees of both the Subordinate Courts and decree the plaintiff's suit with costs of all the Courts.


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