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Kali Charan and ors. Vs. Musammat Peare Alias Peari and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All740; 83Ind.Cas.754
AppellantKali Charan and ors.
RespondentMusammat Peare Alias Peari and ors.
Cases ReferredLachhan Kunwar v. Anant Singh
Excerpt:
parda nashin lady - document acted upon-burden of proof--adverse possession--hindu widow. - - ) are clearly distinguishable. their lordships were laying down no new principle in saying that a widow possessing as such does not acquire the property as her stridhan but makes it good to her husband's estate. the privy council treated the claim that the rights of the reversioners were not extinguished as clearly untenable. unless it were clearly shown that when jit kunwar took possession she professed to do it as claiming only the limited estate of a widow. ) this was clearly shown;.....and ram lalli were the widows of two brothers who formed a joint family with a third brother bhagwan sahai. the family was joint. the husbands of the two musammats died in their father's lifetime. bhagwan sahai alone survived his father and became in law the sole owner of the joint family property. the name of the father was ramdin. on ramdin's death the names of the two musammats were entered in the revenue papers as proprietors along with bhagwan sahai. the plaintiff's case was that their names were recorded merely for their consolation as they were entitled to maintenance, and that they were never in possession. the subordinate judge found this to be the case but the district judge held that they were in actual proprietary and adverse possession. the date of ramdin's death has.....
Judgment:

1. The two suits which have given rise to these two connected appeals were instituted by Chokhe Lal for cancellation of two deeds of gift dated 5th May 1920 executed in favour of the defendant Brijbasi Lal by Musammat Ram Piyari and Musammat Ram Ralli respectively. Chokhe Lal died during the litigation and was succeeded by his three sons, the present appellants. A pedigree showing the relationship of the parties is given in the judgments of the Courts below. Musammats Ram Piyari and Ram Lalli were the widows of two brothers who formed a joint family with a third brother Bhagwan Sahai. The family was joint. The husbands of the two Musammats died in their father's lifetime. Bhagwan Sahai alone survived his father and became in law the sole owner of the joint family property. The name of the father was Ramdin. On Ramdin's death the names of the two Musammats were entered in the revenue papers as proprietors along with Bhagwan Sahai. The plaintiff's case was that their names were recorded merely for their consolation as they were entitled to maintenance, and that they were never in possession. The Subordinate Judge found this to be the case but the District Judge held that they were in actual proprietary and adverse possession. The date of Ramdin's death has not been found, but Bhagwan Sahai died sixteen or seventeen years before the suit. After his death the widows continued to be entered as proprietors in respect of one-third of the property each. Bhagwan Sahai was succeeded by his son and on the death of the latter without issue in 1905 his rights were inherited by his mother, Musammat Mahadei, the widow of Bhagwan Sahai. Musammat Mahadei is still alive and was made a party to the suit as defendant. She has conveyed all her rights to Chokhe Lal.

2. The seven pleas taken in the memorandum of appeal really boil down to two:

1. That the Court below has erred in law in holding the possession of the Musammats to have been adverse.

2. That an admission made by the widows on 30th June 1907 has been wrongly excluded from evidence.

3. The second plea is merely subsidiary to the former. The wrong exclusion of evidence is only material in so far as it can be said to have affected the decision on the main issue. To these two pleas the appellants' Counsel has in argument added a third based on the recent decision of the Privy Council in Lajwanti v. Safa Chand 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) to the effect' that even if the widows' possession was adverse, they acquired by adverse possession only a widow's estate in the property and, therefore, the deeds of gift are only valid for their respective lifetimes. Both widows were made parties to the suits though Musammat Ram Piyari is now dead and her heirs have been substituted in her place.

4. As regards the application of 30th June 1907 which is relied on as an admission by the two Musammats, a reference to the record shows that its execution by them was duly proved and the respondents' Counsel is unable to dispute this fact. He contends, however, with much force that the mere fact that they put their mark on it is not enough and that there is no evidence to bring home knowledge of its contents to them in view of the fact that they were pardanashin ladies. The document in question is an application for partition of a patti put in by Musqmmat Mahadei, Musammat Ram Piyari, Musammat Ram Lalli and two other persons. In that petition Musammats Ram Piyari and Ram Lalli admit that their names were merely entered for consolation and agree to the patti being divided between the other co-sharers. The evidence only goes this far that the document was drawn up in presence of the ladies and. that they put their mark to it. There is no evidence to show that they understood it and were aware of its effect. The learned Subordinate Judge considered this point but held that as the document was executed in 1907 and was only now being challenged, such evidence was unnecessary. If it were shown that the document was acted upon, the rule laid down by the Privy Council in Sadik Husain Khan v. Hashim AliKhan 38 Ind. Cas. 104 : 38 A. 627 : 31 M.L.J. 607 : 14 A.L.J. 1248 : 19 O.C. 192 : 18 Bom.L.R. 1037 : 21 C.W.N. 130 : (1916) 2 M.W.N. 577 : 21 M.L.T. 40 : 1 P.L.W. 157 : 4 C.L.J. 22 : 25 C.L.J. 363 : 6 L.W. 378 : 10 Bur.L.T. 140 : 43 I.A. 212 (P.C.) would apply and such evidence would be unnecessary. Uufortunately the record has not come and there is nothing to show what took place. In the absence of such evidence it is impossible to say that the document, if received, would have or ought to have affected the conclusion at which the learned Judge arrived.

5. The appellants' main case on this issue is that there is no evidence to prove adverse possession during the lifetime of the last male holder Bhagwan Sahai. The whole of the evidence upon which the learned Judge has relied relates to the period after Bhagwan Sahai's death when his widow, Musammat Mahadei, was in possession. Admitting this to be so the appellants' argument loses sight of the fact that on Bhagwan Sahai's death the estate passed to his minor son, Anokhe Lal, and not to his widow. There was certainly evidence on which the learned Judge was entitled to hold, if he accepted it, that adverse possession commenced on Bhagwan Sahai's death. If limitation began running when the estate was in the hands of the last male-holder, Anokhe Lal, the subsequent death of Anokhe Lal would not interrupt it. The argument, therefore, cannot be accepted,

6. It remains to consider the argument based on Lajwantis case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.). The learned Counsel for the appellants asks us to treat this case as establishing a new rule of universal application that wherever a widow is found in adverse possession of property, she must be treated as being in adverse possession of a widow's estate only. There have been recent and conspicuous instances of the danger of applying Privy Council decisions to points which they did not decide but which, in the language of Lord Halsbury, may seem to flow from them. The facts of Lajwanti's case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) are clearly distinguishable. In that case the widows in adverse possession were widows of Jawahir Mal, a separated Hindu, and though Jawahir Mal had a son born after his death, the widows took possession on their husband's death and never claimed to have anything more than the limited estate of a Hindu female. They were judicially declared to be holding for their lives in a decision which is quoted in the judgment of the Privy Council. Their Lordships were laying down no new principle in saying that a widow possessing as such does not acquire the property as her stridhan but makes it good to her husband's estate.

7. In this case the husbands of the two widows died as undivided members of a joint family. They had no separate estate which their widows could inherit or to which property acquired by the widows could accrue. In other cases, such as Satgur Prasad v. Raj Kishore Lal 55 Ind. Cas. 486 : 42 A. 152 : 11 L.W. 384 : (1920) M.W.N. 3 : 24 C.W.N. 394 : 28 M.L.J. 259 : 18 A.L.J. 235 : 2 U.P.L.R. (P.C.) 55 : 22 Bom.L.R. 451 (P.C.), the Privy Council itself has held that a widow can by adverse possession acquire an estate in full ownership, and it is not to be supposed for a moment that in Lajwanti's case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) they meant to lay down anything contrary to this. Satgur Prasad v. Ray Kishore Lal 55 Ind. Cas. 486 : 42 A. 152 : 11 L.W. 384 : (1920) M.W.N. 3 : 24 C.W.N. 394 : 28 M.L.J. 259 : 18 A.L.J. 235 : 2 U.P.L.R. (P.C.) 55 : 22 Bom.L.R. 451 (P.C.) is very similar to that before us. There also the widow of a deceased co-parcener took adverse possession of an estate of which the legal title had passed to the last survivor.

8. Uman Shankar v. Aisha Khatun 74 Ind. Cas. 869 : 45 A. 729 : (1924) A.I.R.(A.) 88 is a recent authority of this Court on the same point. There also the widow of an undivided brother took possession of her husband's share and dealt with it as if it were her own property. The plea that her possession, if adverse at all, was only of the limited estate of a Hindu widow, was put forward and strongly pressed, but the Court held that in the absence of any evidence to show that her claim was limited to a widow's estate, she must. be held to have acquired full title. Reference was made to the case of Lachhan Kunwar v. Anant Singh 22 C. 445 : 22 I.A. 25 : 5 M.L.J. 1 : Rafique & Jackson's P.C. No. 1367 : 6 Sar. P.C.J. 523 (P.C.) in which the question was as to the nature of the estate acquired adversely by Musammat Jit Kunwar, a Hindu widow. The Privy Council treated the claim that the rights of the reversioners were not extinguished as clearly untenable.

Unless it were clearly shown that when Jit Kunwar took possession she professed to do it as claiming only the limited estate of a widow.

9. In Lajwanti's case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) this was clearly shown; in the present case it is not shown. Lajwanti's case 80 Ind. Cas. 788 : 22 A.L.J. 304 : (1924) A.I.R. (P.C.) 121 : 51 L. 192 : (1924) M.W.N. 442 : 20. L.W. 10 : 2 P.L.R. 245 : 28 C.W.N. 960 : 26 Bom.L.R. 1117 (P.C.) cannot, therefore, be treated as altering the law laid down by their Lordships in a series of judgments of which Lachhan Kunwar v. Anant Singh 22 C. 445 : 22 I.A. 25 : 5 M.L.J. 1 : Rafique & Jackson's P.C. No. 1367 : 6 Sar. P.C.J. 523 (P.C.) is one.

10. For these reasons we dismiss the appeals with costs including in this Court fees on the higher scale.


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