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Gajadhar Pande and ors. Vs. Musammat Parbati - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.50
AppellantGajadhar Pande and ors.
RespondentMusammat Parbati
Cases ReferredSham Koer v. Dal Koer
Excerpt:
.....the..........as a separated hindu to his share. he had a son named janki who predeceased him leaving a widow musammat katwari kunwar. he also left two widows, namely, musammat hansrani and musammat sitla kunwar. the last of these widows died in 1889. a plea of limitation was set up by the defendants, and this plea was decided in their favour by the learned subordinate judge upon the ground that 12 years had elapsed before the institution of the suit from the death of musammat katwari.2. it appears to us that in the circumstances of the case, the time of the death of musammat katwari is immaterial inasmuch as her husband predeceased his father and she, therefore, acquired no interest in the estate of mulai. the learned subordinate judge failed to appreciate the true rule of limitation governing.....
Judgment:

1. In the suit out of which this appeal has arisen the plaintiffs claimed possession of shares in two villages as reversionary heirs of one Mulai Pande. They also claimed mesne profits. The property in dispute with other' property belonged to one Ajudhia deceased. He left three sons Pargash, Mulai and Hardayal. Before his death he divided his property between these three sons and it is a matter not now in controversy that the three sons were separated Hindus. Mulai accordingly at the time of his death was entitled as a separated Hindu to his share. He had a son named Janki who predeceased him leaving a widow Musammat Katwari Kunwar. He also left two widows, namely, Musammat Hansrani and Musammat Sitla Kunwar. The last of these widows died in 1889. A plea of limitation was set up by the defendants, and this plea was decided in their favour by the learned Subordinate Judge upon the ground that 12 years had elapsed before the institution of the suit from the death of Musammat Katwari.

2. It appears to us that in the circumstances of the case, the time of the death of Musammat Katwari is immaterial inasmuch as her husband predeceased his father and she, therefore, acquired no interest in the estate of Mulai. The learned Subordinate Judge failed to appreciate the true rule of limitation governing claims by reversioners to possession of immovable property on the death of a Hindu female. The rule is to be found in Article 141 of Schedule II of the Limitation Act of 1877. That article provides a period of 12 years limitation in a suit by a Hindu or a Muhammadan entitled to possession of immovable property on the death of a Hindu or Muhammadan female from the time when the female dies. In this case on the death of the survivor of Hansrani and Sitla, the widows of Mulai, the right of the reversioners to possession of the property of Mulai accrued. As we have said, Musammat Katwari was not entitled to the estate of Mulai and consequently, however she enjoyed possession of his property, it was not by right of inheritance as a Hindu widow.

3. It appears that upon the death of the survivor of Hansrani and Sitla, an application for mutation of names was made to the Revenue Court and on that occasion Kali Charan and Debi, the fathers of the present plaintiffs, objected to the name of Katwari being retained upon the record. They were referred to the Civil Court but failed to institute any proceeding in the Civil Court to establish their title. The name of Musammat Katwari accordingly remained upon the record as owner of the property of Mulai. The learned Counsel for the appellants has failed to point oat any evidence whatever which would go to establish that Musammat Katwari was permitted to enjoy the possession of the property by the reversioners. So far from her possession being with their consent, it appears from the documents on the record that they objected to her possession and to the receipt of rent by her from the tenants. In the absence, therefore, of any such agreement between Musammat Katwari and the reversioners, it seems to us clear that her possession must be regarded as adverse to them. If that possession was adverse to them, then the accrual of the cause of action of the plaintiffs commenced from the death of the survivor of Musammat Hunsrani and Sitla and not from the death of Musammat Katwari. It is unnecessary, therefore, for us to determine precise date of the death of Musammat Katwari.

4. It appears to us that inasmuch as admittedly Musammat Hansrani and Musammat Sitla died prior to or in the year 1389, limitation began to run against the reversioners, the present plaintiffs, in that year and consequently the present claim is barred by limitation.

5. The case of Sham Koer v. Dal Koer 29 I.A. 132 : 6 C.W.N. 657 : 4 Bom. L.R. 547 : 29 C. 664 (P.C.) is very similar to the case before us. In that case the owner of property, Bhan Nath Singh, died in November 1862 possessed of considerable property leaving no issue at his death but leaving a widow and a daughter-in-law, the widow of his only son, who had died in his life time. Immediately before or on his death, these two widows obtained possession of the property in dispute. Sohawan Koer, the widow of Bhan Nath Singh, died in 1879 and after her death Dal Koer remained in sole possession. In a suit by the reversioner it was held that possession as of right by the widow and daughter-in-law of Bhan Nath Singh for 12 years barred the heirs of the deceased unless they could show that the possession was permissive. In that case the learned Counsel for the appellants relied very strongly on what he suggested were the probabilities of the case, namely, that there was some arrangement between the reversionary heirs and widows that they should take a life interest in some villages in lieu of maintenance. Their Lordships of the Privy Council repelled this contention observing as follows: The learned Counsel for the appellants relied very strongly on what he suggested were the probabilities of the case. He said that it was probable that there was some arrangement between the reversionary heirs and the two widows that they should take a life-interest in these villages in lieu of maintenance. If one were at liberty to guess, one might adopt that view. But their Lordships cannot say that there is any proof of any such arrangement and the fact that the reversionary heirs did not procure the execution of the ikrarnama (which was relied on by the appellants) by the two widows throws a certain amount of suspicion upon it'. Now here in the present case, so far from there being evidence of any arrangement between the reversionary heirs and Musammat Katwari whereby she was allowed to remain in possession in lieu of maintenance, the evidence shows that the reversioners objected to her possession and resisted the receipt of rent by her of the property.

6. Under all the circumstances, we think that the suit fails by reason of limitation but as we have said the rule stated by the learned Subordinate Judge is erroneous inasmuch as limitation in this case ran from the death of the survivor of the widows of Mulai and not from the date of the death of Katwari. We dismiss the appeal with costs including fees in this Court on the higher scale.


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