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Dhurjati Upadhiya Vs. Ram Bharos Pande and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All109; 121Ind.Cas.701
AppellantDhurjati Upadhiya
RespondentRam Bharos Pande and ors.
Cases ReferredVarada Pillai v. Jeevarathnammal A.I.R.
Excerpt:
- .....possession and got mutation of names effected in her favour. it has been assumed all along that by adverse possession mt. nepali acquired an absolute proprietary interest in this property. the property therefore became her stridhan. in 1890 long after the death of her husband she attempted to make a gift of this property in favour of her daughter mt. lakhpati and got mutation of names effected in her favour. it is admitted that mt. lakhpati continued in adverse possession of this property from 1890 to 1899 when mt. nepali died. on the death of mt. nepali, her daughter mt. lakhpati was her sole heir. she continued in possession of this property as before till her death in 1920. mt. nepali had not executed a registered deed of gift in favour of mt. lakhpati as required by law.2. the.....
Judgment:

1. The property is dispute originally belonged to Molai who in 1881 put his wife Mt. Nepali in possession and got mutation of names effected in her favour. It has been assumed all along that by adverse possession Mt. Nepali acquired an absolute proprietary interest in this property. The property therefore became her stridhan. In 1890 long after the death of her husband she attempted to make a gift of this property in favour of her daughter Mt. Lakhpati and got mutation of names effected in her favour. It is admitted that Mt. Lakhpati continued in adverse possession of this property from 1890 to 1899 when Mt. Nepali died. On the death of Mt. Nepali, her daughter Mt. Lakhpati was her sole heir. She continued in possession of this property as before till her death in 1920. Mt. Nepali had not executed a registered deed of gift in favour of Mt. Lakhpati as required by law.

2. The plaintiff is an heir of Mt. Lakhpati's husband and claims the property on the ground that it was the stridhan of Mt. Lakhpati which would devolve on her own legal heir. On the other hand the defendants contest the claim pleading that Mt. Lakhpati held a Hindu daughter's estate only which reverted the heirs of Mt. Nepali the last full owners and that they being the heirs of Molai are entitled to succeed to this estate.

3. The first Court dismissed the claim with regard to this property and decreed it with regard to other properties with which we are not now concerned in this appeal. The District Judge allowed the appeal and decreed the plaintiff's claim in respect of this two anuas eight gandas share. On appeal an learned Judge of this Court has restored the decree of the first Court. His judgment is based on the principle of law that where there is a title to which possession may be traced, it cannot be assumed or asserted that the possession was adverse and that when the daughter accepted the benefit of the inheritance she could not say that her possession even after her mother's death was adverse to her.

4. It has been laid down by their Lordships of the Privy Council in the case of Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 that where a person has begun to hold a possession adverse to two co-sharers, and, before the statutory period of limitation, succeeds to the title of one of the two, his possession continues to be adverse, to the other co-sharers, though he has become jointly interested with the latter. In such causes the adverse possession continues even though by succession he acquires title to joint possession. But the case of a co-sharer is different from the present case because in that case there is in existence another person who can sue for joint possession or declaration which would at once put an end to the adverse possession.

5. In the present case Mt. Lakhpati was holding the property adversely against Mt. Nepali. On the death of the latter she became the sole heir to the estate. Her possession could not be adverse against any one in the world except herself inasmuch as she alone was entitled to retain possession. It is inconceivable that Mt. Lakhpati's possession could be adverse as against herself. There was no one who could have brought a suit to dispossess her, and of course she herself would not move in the matter. In these circumstances we are of opinion that this case is distinguishable from the case of co-sharers referred to above and we must hold that from the moment Mt. Lakhpati became the sole heir and exclusive owner of the property for the time being, her previous adverse possession came to an end. From that time onwards her possession was that of a Hindu daughter entitled to succeed to her deceased mother's stridhan.

6. It cannot be disputed that on the death of Mt. Lakhpati the property would not go to her own heirs but to the legal heir of Mt. Nepali who was the last full owner. The plaintiff therefore has no right to claim this property. The decree of the learned Judge of this Court is right and we dismiss this appeal with costs including in this Court fees on the higher scale.


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