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Chand Khan Vs. Ali Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.292
AppellantChand Khan
RespondentAli Khan and ors.
Cases ReferredJafar Husain v. Mashuq Ali
Excerpt:
adverse possession - possession of one co-heir in the absence of others--whether adverse. - .....of the claim which has been decreed. the finding in respect of this is that it belonged to one namdar khan, who died somewhere about the year 1894 a. d. he left surviving him his widow, raj bibi, and two nephews (sons of his own brother jawahir khan) named, ali khan and ghasi khan. the latter has since died, leaving a son named rahim khan, a widow musammat muradi and a daughter musammat mahtabi. on the 22nd of february 1903, musammat raj bibi executed a deed by which she purported to sell the property, with which i am now concerned, to chand khan and moti khan. in the present suit, the plaintiffs are ali khan and the heirs of ghasi khan, that is to say, his son, widow and daughter already named. the defendants are musammat raj bibi, chand khan and moti khan, that is to say, the.....
Judgment:

Piggott, J.

1. This was a suit for recovery of possession over certain house property situated in the city of Jhansi. The lower Appellate Court has dismissed a considerable portion of the plaintiffs' suit, and I am only concerned with that portion of the claim which has been decreed. The finding in respect of this is that it belonged to one Namdar Khan, who died somewhere about the year 1894 A. D. He left surviving him his widow, Raj Bibi, and two nephews (sons of his own brother Jawahir Khan) named, Ali Khan and Ghasi Khan. The latter has since died, leaving a son named Rahim Khan, a widow Musammat Muradi and a daughter Musammat Mahtabi. On the 22nd of February 1903, Musammat Raj Bibi executed a deed by which she purported to sell the property, with which I am now concerned, to Chand Khan and Moti Khan. In the present suit, the plaintiffs are Ali Khan and the heirs of Ghasi Khan, that is to say, his son, widow and daughter already named. The defendants are Musammat Raj Bibi, Chand Khan and Moti Khan, that is to say, the vendor and the vendees, under the sale-deed dated the 22nd of February 1903.

2. The lower Appellate Court has found that the property in dispute devolved on the death of Namdar Khan in accordance with the ordinary rules of Muhatumadan Law, so that Raj Bibi was entitled to the same to the extent of 1/4th share only. It has accordingly decreed the claim of the plaintiffs to the extent of a 3/4th share in the property conveyed by Musammat Raj Bibi under the deed of the 22nd of February 1903. It may be noted that Musammat Raj Bibi did not defend the suit at all, and that Moti Khan in effect admitted the plaintiffs' claim. Chand Khan has contested the suit throughout and has now brought it before this Court in second appeal.

3. The first point taken is substantially a matter of pleadings. The plaintiffs un-doutedly came into Court with the allegation that their family, although converts to Islam, continued to be bound as amongst themselves by the Hindu Law, and in fact always constituted a joint Hindu family. There was also a special plea that the plaintiff Ali Khan had been adopted by his uncle, Namdar Khan. These points have been decided against the plaintiff by both the Courts below and are no longer in dispute. It is suggested, however, that on the pleadings as they stood, the Courts below were not entitled to carry their own findings to their correct legal conclusion but were bound to dismiss the plaintiffs' suit altogether without considering how the inheritance to Namdar Khan's estate would in fact devolve under the Muhammadan Law, when that was held to be the law applicable to the parties concerned. I am unable to accept this contention. No doubt the plaintiffs in their anxiety to invalidate altogether the transfer made by Musammat Raj Bibi came into Court with statements going beyond what they were able to prove. But the alternative plea that in any case the plaintiffs had rights as sharers, or rather as residuary heirs under the Muhammadan Law, underlay the whole case for the plaintiffs, and particularly the 7th paragraph of the plaint to which the learned District Judge has referred. On the issues as framed, I do not think that the defendants were in any way prejudiced by defective pleadings, and I am of opinion that the Courts below, having found that the estate of Namdar Khan devolved in accordance - with the Muhammadan Law of inheritance, were right in giving the plaintiffs the benefit of that finding in so far as it operated in their favour.

4. The more important plea raised on behalf of the appellant, Chand Khan, is as regards the question of limitation. I take it from the learned District Judge that actual possession over the house property now in dispute upon the death of Namdar Khan remained with his widow, Musammat Raj Bibi. This in fact seems to be admitted in the plaint itself, where it is stated that the plaintiff Ali Khan and his brother, Ghasi Khan, were absent from Jhansi at the time of Namdar Khan's death, and were in fact earning a livelihood elsewhere. The plaintiffs' case is that they only came to know recently, after their return to Jhansi, that the property now in dispute, which seems in fact to have formed part of the old house property of the family, had been made the subject of alienation by Musammat Raj Bibi under the sale-deed of the 22nd of February 1903. The question, however, as to when the plaintiffs actually came to know of this alienation does not arise. The Courts below have in effect held that, in the absence of evidence to the contrary, it must be presumed that the possession of Musammat Raj Bibi was on behalf of herself and of her co-sharers, the remaining heirs of Namdar Khan, up to the time when that lady asserted an adverse title to the property now in dispute by dealing with it in the sale-deed of the 22nd of February 1903. In my opinion, this view is correct and is borne out by the rulings relied on by the District Judge. It does not violate the general principle laid down by this Court in Jafar Husain v. Mashuq Ali 14 A. 193 and other cases, because it rests upon the presumption that the possession obtained' by Musammat Raj Bibi in 1894 on the death of Namdar Khan was not adverse to the plaintiffs but was permissive and representative, so as to constitute in law the joint possession of herself and of the other lawful heirs of Namdar Khan. I think that under the circumstances of the present case, this presumption has been rightly drawn, and that it is sufficient for the plaintiffs to have brought the present suit within 12 years of the date on which an adverse title is first shown to have been definitely set up by Musammat Raj Bibi. I accordingly dismiss this appeal with costs.


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