P.K. Tare, J.
1. This appeal is by the defendants against the decree, dated, 20-4-1960, passed by Shri S. N. Chaturvedi, Additional District Judge, Dhar, in Civil Appeal No. 25 of 1959, reversing the decree, dated 18-11-1958 passed by Shri R. L. Chandani, Civil Judge Class II, Badnawar, in Civil Suit No. 106 of 1953.
2. The suit property originally belonged to 'Pannalal, who died on 6-10-1961, leaving behind two daughters, namely, Anandibai and Sunderbai. The second appellant, Krishna is the son of the first appellant, Anandibai who claimed to be the adopted son of Pannalal.
3. The respondent filed the present suit for partition and separate possession of the property left by Pannalal on the premises that she had inherited the same along with her sister, Anandibai. She also claimed mesne profits. The suit was filed in the year 1953, that is, much before the Hindu Succession Act, 1956 came into force.
4. The appellants' defence was mainly twofold firstly that the second respondent, Krishna had been adopted as a son by Pannalal and that be had been placed in possession of the property by the deceased in acknowledgment of his status as an adopted son; and secondly the suit for partition was not tenable by one of the two sisters inheriting their father's property. The suit for partition was also said to be untenable, as Krishna was in exclusive possession of the property and his mother, Anandibai was not at all in possession.
5. The trial Judge dismissed the suit mainly on the ground that the property was not in possession of a co-heir, but was in possession of Krishna. In the opinion of the learned Judge, Section 14 of the Hindu Succession Act had no bearing on this case. However, the trial Judge negatived the defence contention about the factum of adoption.
6. The plaintiff appealed against that decree to the first appellate Court. Although the learned appellate Judge did not exhaustively consider the question of possession, he roundly came to the conclusion that Section 14 of the Hindu Succession Act was applicable to the present case and, therefore, the plaintiff's suit became tenable during the pendency of the litigation. As regards possession, the learned appellate Judge observed that Anandibai, along with her son, Krishna was in possession of the estate and, therefore, the suit for partition was tenable. The learned appellate Judge affirmed the finding of the trial Judge to the effect that the adoption had not been proved.
7. In the present appeal, the learned counsel for the appellants did not challenge the concurrent finding of the Courts below regarding thefactum of adoption not being proved and, in myopinion, very rightly. The learned counsel at theoutset stated that the finding will not be open to achallenge at the second appellate stage according tothe dictum laid down by Their Lordships of theSupreme Court from time to time. Therefore, theonly questions canvassed in this Court were, (i)regarding the applicability of Section 14 of the HinduSuccession Act, 1956, and (ii) regarding the suitfor partition not being tenable in view of the secondappellant, Krishna, being in possession in pursuanceof a purported adoption by Pannalal and the firstappellant, Anandibai not being in possession at all.It is, therefore, to be seen that the question whetherthe second appellant has been in exclusive possession after the death of Pannalal and that his mother, Anandibai or the respondent never having been inpossession at any time has bearing on both thequestions relating to the applicability of Section 14 of the Hindu Succession Act, as also the question of tenability of a suit for partition and separate possession. Therefore, before dealing with the two questions involved, it would be necessary to decide the question of actual physical possession, which will affect the questions involved.
8. The trial Judge had not given any detailed finding on the question of possession; but , from the cursory observations made by him, it appears that he had expressed the opinion that the second appellant, Krishna was in possession, although his case of adoption was negatived by the trial Judge. On the other hand, the learned appellate Judge also cursorily expressed the opinion that both the defendants were in possession. It was for that reason that the first appellate Court decreed the plaintiff's claim for partition and separate possession. From the documents on record, it appears that the deceased, Pannalal had placed the second appellant in possession of some items of property exclusively. It may be that the first appellant Anandibai may also be in possession of some of the property left by Pannalal. In view of the meagre evidence on record, it is difficult to state as to what property is in possession of Anandi Bai and what property in possession of Krishna.
The respondent will, undoubtedly, be entitled to claim partition and separate possession of the property in possession of Anandibai, who, being her sister, is a co-owner along with her. But she cannot claim partition of property in exclusive possession of the second appellant, Krishna, unless she first obtains possession on behalf of herself and her sister. It cannot be stated that the first appellant is in possession of the entire property left by Pannalal. Even according to the respondent's own allegations in the plaint, vide paragraph 3, Krishna is alleged to be in possession along with his mother. Therefore, although the respondent may be entitled to claim partition, as she has not been completely ousted, her sister, Anandibai being in possession of some items of the family property, she cannot claim partition of the property in possession of Krishna, unless she claims possession as a co-owner by ousting Krishna.
Therefore, I am of the opinion that the suit of the plaintiff cannot be thrown out on this ground alone. I would accept the finding of the learned appellate Judge that the appellants are in possession of the property left by Pannalal, but it is difficult to say as to what items are in exclusive possession of each of them. The possession of the first appellant, Anandibai will, undoubtedly, be as a co-owner and on behalf of the respondent as well. Therefore, the question of possession in fact does not have the effect of defeating the respondent's suit in its entirety.
9. However, in order to remove any technical defect, the respondent, after arguments were closed, filed an application, dated, 6-8-1962 for permission to amend the plaint. The amendment proposed would be within time, as Pannalal died on 6-10-1951. The amendment would be within time even from the date pf alleged adoption of Krishna by Pannalal on 8-9-1951, which would be the starting point of Krishna's adverse possession. It cannot be stated with any reasonable degree of certainty as to when Pannalal placed Krishna in possession of which items of the property. But the respondent's claim for actual physical possession as against Krishna even on the date of amendment would be within time from the date of death of Pannalal, or, in the alternative from the date of alleged adoption on 8-9-1951.
Therefore, I am of the opinion that in order to remove a technical defect, it is necessary to permit the respondent to amend the plaint, particularly when no prejudice is caused to the other side and the amendment is necessary in the interest of justice and is necessitated on account of the defence raised by the appellants about the second appellant alone being in exclusive possession in order to defeat the respondent's claim. As laid down by Their Lordships of the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil (S) AIR 1957 SC 363 all amendments ought to be liberally allowed which satisfy the two tests of not working injustice to the other party and of being necessary for the purpose of determining the real question in controversy between the parties. The second appellant, Krishna's adoption has been negatived by the Courts below and this ground is not pressed in this Court as having been specifically given up.
Therefore, the respondent's claim for possession or partition ought not to be defeated on any hypertechnical ground. Even assuming that the amendment might be barred by time, this would eminently be a case to allow a time-barred amendment, as laid down by Their Lordships of the Supreme Court in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. (S) AIR 1957 SC 357. Undoubtedly, the confusion has been created on account of the vague pleadings of the appellants regarding actual physical possession, But this much is certain that the second appellant, Krishna is not in exclusive possession of the entire property left by Pannalal. Both the appellants are in possession of the property, although it cannot be ascertained as to what items are in possession of each, either jointly or exclusively. Therefore, I permit the respondent to amend the plaint even at the second appellate stage. The plaint shall accordingly be amended, as it is merely to remove a formal defect. No fresh trial is necessitated, or no further evidence is required, as the case can be decided upon the material already on record.
10. The learned counsel for the appellants addressed lengthy arguments on the question of possession and cited several cases contending that Section 14 of the Hindu Succession Act, 1956 is not attracted, as the respondent has not been in possession of the property at all. In this connection, I may only observe that the respondent, although not in possession, will be deemed to be in joint possession through the first appellant, Anandibai, who is a co-owner. However, assuming that this cannot be the position, the further question arises as to whether the property becomes the absolute property of Anandibai and Sunderbai by virtue of Section 14 of the Act.
11. In this connection, it is pertinent to note that their Lordships of the Supreme Court have left this particular question open while deciding the case of Gummalapura Taggina Matada Kotturuswami v. Setra Veerawa AIR 1959 SC 577. That was, evidently, a case of a reversioner claiming to challenge the alienation made by a limited owner. Their Lordships considered this aspect with reference to the provisions of Section 14 of the Hindu Succession Act, 1956. All the cases cited at the bar relate to this aspect only and I do not think it necessary to burden this judgment by referring to all those cases, except a few ones necessary for the discussion of this aspect.
12. Among others, two cases were cited before Their Lordships of the Supreme Court, namely, a Division Bench case of the Calcutta High Court in Gosthe Behari Bera v. Haridas Samantra, (S) AIR 1957 Cal 557 and the case of Venkayamma v. Veerayya, (S) AIR 1957 Andh Pra 280. In the Andhra Pradesh case, (S) AIR 1957 Andh Pra 280 which was a case of a reversioner challenging an alienation made by a limited owner, Viswanathe Sastri, J. delivering the judgment of the Court, made observations to the effect that if a limited owner has the right to property on the date the Hindu Succession Act, 1956 comes into force, she would become absolute owner, although the property might be in possession of a trespasser. However, in the Calcutta case, (S) AIR 1957 Cal 557 Mookerjee, J. in his separate judgment was not prepared to go to that length, although he agreed with the conclusion of Sarkar, J.
It is this observation of Mookerjee, J. that was approved of by their Lordships of the Supreme Court in Gummalapura's case, AIR 1959 SC 577 (supra), although Their Lordships left open the case of a limited owner acquiring absolute right regarding property in possession of a trespasser on the date the Act came into force. Upon a perusal of all the cases cited at the bar, it is clear that they all relate to the right of a reversioner to claim possession or to challenge the' alienation made by a limited owner. The only cases that pertained to this aspect are the following cases, which I propose to discuss in some details, although I find it unnecessary to refer to the cases of a reversioner challenging an alienation made by a limited owner.
13. Before dealing with this aspect, I may observe that the view of a Full Bench of this Court, as also a similar view of other High Courts taken in several cases has been approved of by their Lordships of the Supreme Court in Gummalapura's case. AIR 1959 SC 577 (supra). Before Gummalapura' case AIR 1959 SC 577 (supra) was decided by Their Lordships of the Supreme Court, the Patna and the Allahabad High Courts had reiterated their earlier contrary views in subsequent cases of Hanuman Prasad v. Indrawati, AIR 1958 All 304 and Ramswaroop v. Hiralal Singh, ILR 37 Pat 496 : (AIR 1958 Pat 319). In the said cases, the said High Courts took a view similar to the view of a Division Bench of this High Court in Dhiraj Kunwar v. Lakhansingh, (S) AIR 1957 Madh Pra 38. Therefore, it became necessary for this Court to take notice of the subsequent reiteration of that view by the Allahabad and the Patna High Courts. The Division Bench presided over by Hidayatullah C. J. (as he then was) and of which I happened to be a member in Janku v. Kisan, AIR 1959 Madh Pra 1 considered the further cases in separate judgments. This Division Bench case also happened to be decided before the decision of Gummalapura's case, AIR 1959 SC 577 (supra) by their Lordships of the Supreme Court.
14. In the said case, Hidayatullah C. J. (as he then was) reiterated his earlier view as expressed in the Full Bench case of Mst. Lukai v. Niranjan AIR 1958 Madh Pra 160 (FB), while I happened to criticise the view of the learned Judges of the Allahabad and the Patna High Courts on the aspect of retrospective operation of Section 14 of the Hindu Succession Act, 1956. A reference to that topic is necessary in view of the fact that the observations of their Lordships of the Supreme Court in Smt. Kamla Devi v. Bachulal Gupta, (S) A. I. R. 1957 SC 434, were subsequently brought to my notice.
15. As regards the question of retrospective operation of a statute is concerned, the learned author in his commentary on 'Craies on Statute Law' (Fifth Edition 1952) observes at page 357 as follows: --
Meaning of 'retrospective'. A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. But a statute 'is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing'.' For this proposition, the learned author relies on the case of R. v. St. Mary Whitechapel (Inhabitants) (1848) 12 Q. B. 120, as also the case of R. v. Christchurch (Inhabitants), (1948) 12 Q. B. 149, and the case of Master Ladies 'Tailors' Organisation v. Ministry of Labour, 1950-2 All E. R. 525.
16. In AIR 1959 Madh Pra 1 (supra) while expressing the opinion that no part of Section 14 of the Hindu Succession Act was retrospective, I had relied on the opinion of the learned author, Crawford in his book 'Statutory Construction' in Section 77 at pages 109 and no, as also Section 277 at pages 562 and 563; section 306 at pages 622 and 623 and Section 327 at pages 675 and 676. According to the learned author, an Act cannot be called retrospective or retroactive merely because part of the requisites for its action is drawn from a time antecedent to its passing. The same observations are to be found in 'Maxwell' on the Interpretation of Statutes, Tenth Edition at page 220. I had also relied on the case of 1950-2 All E. R. 525. It was for that reason that I had expressed the opinion that Section 14 of the Act could not strictly be called even partly retrospective.
17. However, I was under that impression, rightly or wrongly, till the observations of their Lordships of the Supreme Court in (S) AIR 1957 SC 434 (supra) were brought to my notice later. In view of the observations of their Lordships of the Supreme Court, which become the law of the land under Article 141 of the Constitution of India, it must now not be doubted that Section 14 of the Hindu Succession Act, 1956 is partly retrospective and partly prospective. According to their Lord-ships' observations, the phrase 'whether acquired before or after the commencement of this Act' would be retrospective, while the phrase 'any property possessed by a female Hindu' would be prospective. It is this phrase 'whether acquired before or after the commencement of this Act' that needs to be considered in the present case with reference to the other phrase 'any property possessed by a female Hindu'.
18. It is to be remembered that the said phrase, 'whether acquired before or after the commencement of this Act' is a qualifying phrase, which qualifies the phrase, 'any property'. The property may be acquired any time either before or after the commencement of this Act. Such property, if possessed' by a female Hindu, is to be held by her as full owner, and not as a limited owner after the Act comes into force. The learned counsel for the appellants, referring to the observations of their Lordships of the Supreme Court in Gummalapura's case AIR 1959 SC 577 (supra), urged that in order that the property should become the absolute property of a female Hindu, it must be in her possession either actually or constructively at the time of acquisition. It means that if the property is acquired by a female Hindu prior to the coming into force of this Act, she must be in actual or constructive possession through somebody on the date this Act comes into force.
On the other hand, if she acquires the property subsequent to the coming into force of this Act, the learned counsel suggested that on the date of subsequent acquisition she must be in possession. This suggestion of the learned counsel would exclude all cases of acquisition by a female Hindu where she is not in actual or constructive possession on the date of acquisition. To put it by way of example, if a Hindu female inherited her husband's or father's property prior to the Act and if the property was in possession of a trespasser, it will not become her absolute property, although she may obtain actual physical possession by executing a decree for possession subsequent to the Act. This reasoning, in my opinion, will lead to an anomalous situation involving an indefensible interpretation of Section 14 of the Act. I do not propose to go to the length of stating that the property, although in possession of a trespasser, will become the absolute property of a female Hindu.
It is not necessary for me to go to the length that Viswanathe Sastri, J. went in (S) AIR 1957 Andh Pra 280 (supra). Even confining myself to the view as expressed by Moookerjee J. in (S) AIR 1957 Cal. 557 (supra), which has been approved of by their Lordships of the Supreme Court in the case of Gummalapura, AIR 1959 SC 577 it is clear that in order that the property be considered to be the absolute property of a Hindu female, two things must co-exist. If any of them is wanting, it cannot be considered to be her absolute estate. The first requisite is that she must acquire the property either before or after the commencement of the Act. The second requisite is that the property must be possessed by her. Even interpreting the word 'possessed' in its broadest aspect, their Lordships of the Supreme Court did not think it necessary to go to the length of laying down that oven the property of a Hindu female in possession of a trespasser would be her absolute estate.
19. If I am able to appreciate the observations of their Lordships of the Supreme Court in the correct perspective, I would state in all humility that the purport of this section appears to be that the two things, that is, the acquisition and possession, either actual or constructive, must co-exist for the conferral of an absolute estate on a Hindu female. I would not be prepared to go to the length of accepting the suggestion of the learned counsel for the appellants that prior acquisition must be co-related with possession on the date of the Act and subsequent acquisition must be co-related to the question of possession on that date. If this suggestion of the learned counsel were to be accepted, it would mean that although a Hindu female may have acquired property at any time before or after the Act, it does not become her absolute property unless she is in actual or constructive possession at the time of acquisition.
In my opinion, such an interpretation would be stretching imagination unwarrantedly. There is no warrant for the suggestion that the two factors, namely, acquisition and possession, actual or constructive, must be simultaneous. In my opinion, what is necessary is that they must co-exist, although at different points of time. For this reason, I am of opinion that Section 14 of the Act will be attracted when these two ingredients co-exist. and not that they must co-exist simultaneously.It is enough if they co-exist at different points of time. This will be the only rational interpretation to be put on Section 14 of the Act, Any other interpretation as suggested by the learned counsel for the appellants would defeat the very provisions of Section 14 of the Act. It is not the object of interpretation to interpret in a way which would defeat the provisions of an enactment. This in my opinion, is the only solution, which would not unwarrantedly deprive a Hindu female of property, which she acquires, but which is not in her actual or constructive possession at the time of acquisition. To conclude, I may state that the property would become her absolute estate when she obtains actual or constructive possession in respect of property acquired by her whether before or after the commencement of the Act.
20. Before considering the cases of the other High Courts, which were either decided before the decision of Gummalapura's case, AIR 1959 SC 577 or which have been decided after that case and which rely on that Supreme Court case, it would toe convenient to mention another judgment of their Lordships of the Supreme Court, which has not yet been reported, namely, R. B. S. S. Munnalal v. S. S. Rajkumar, Civil Appeal No. 130 of 1961, D/- 23-2-1962:(since reported in AIR 1962 SC 1493). In that case some coparceners in a joint Hindu family had sought partition. The share of Mst. Khilonabai, the grand mother of R.B.S.S. Munnalal, had been declared by a preliminary decree. The appeal in the High Court was against the preliminary decree. The Division Bench of the High Court (of which I happened to be a member) expressed the opinion that as under the Hindu law a mother or a grand mother did not have any interest in the joint family property except a right of maintenance and as her right to claim a share arose only at the time of partition between her sons and grandsons, the interest held by her could not become absolute interest by virtue of Section 14 of the Hindu Succession Act, unless that interest were to be finalised by a final decree for partition and by a division by metes and bounds.
Their Lordships of the Supreme Court reversed that view of the High Court and held that even the share declared by the preliminary decree for partition becomes her absolute estate. The view of the High Court was based on the Privy Council case of Pratapmull Agarwalla v. Dhanabati Bibi, 63 Ind App 33: (AIR 1936 PC 20). Their Lordships, while laying down that the principle of Pratapmull's case, 63 Ind App 33: (AIR 1936 PC 20) would no more be applicable after the enactment of the Hindu Succession Act, made the following observations:
'By Section 14 the Legislature sought to convert the interest of a Hindu female which under the Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the Explanation thereto gave the expression 'property' the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By Section 14 manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmull's case, 63 Ind App 33: (AIR 1936 PC 20) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded tinder the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Women's Right to Property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting Section 14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmull's case, 63 Ind App 33: (AIR 1936 PC 20). Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts: Save as otherwise expressly provided in this Act,--
(a) any text, rule of interpretation of Hindu Saw or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act:
Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which Section 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of Section 14. In the light of the scheme of the Act and its avowed purpose It would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property. The High Court was, therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of Section 14 of the Act.'
21. The case of Mst. Mohari v. Mst. Chukli, AIR 1960 Raj 82 decided by a Division Bench, the case of Devising v. Mst. Phulma, AIR 1961 Him Pra 10 decided by Capoor J. C. and the case of Thakur Ram Janki v. Jago Singh, AIR 1962 Pat 131 decided by a Division Bench, are all cases which follow the Supreme Court case of Gummalapura, AIR 1959 SC 577. The last one was a case of an alienation made by a limited owner by way of a permanent lease. The learned Judges held that there would be no distinction between a permanent lease and a temporary lease and the limited owner would still retain by way of right some property which will become her absolute estate, as per Section 14 of the Hindu Succession Act.
22. The case of Jiwanandansingh v. Sia Ram Prasad Singh, AIR 1961 Pat 347 decided by Mahapatra, J. as also the case of Nathubhai Motilal v. Chhotubhai Manibhai Desai, AIR 1962 Guj 68 are cases touching on the aspect which was for consideration, before their Lordships of the Supreme Court in Civil Appeal No. 130 of 1961 D/- 23-2-1962: (AIR 1962 SC 1493) (Supra). In the former case, Mahapatra, J. held that an alienation made by a manager of the joint Hindu family would be binding on a limited owner and her interest in the alienated property would not constitute property possessed by her. The latter Division Bench case of the Gujarat High Court concerned the interest of a wife after preliminary decree in a suit for partition between coparceners. However, the view taken by the learned Judges is contrary to the one laid down by their Lordships of the Supreme Court in Civil Appeal No. 130 of 1961, D/-23-2-1962: (AIR 1962 SC 1493) (supra) and it is not necessary for me to dilate on this aspect any more.
23. Some converse cases, where the limited owner was in possession without any right to the property would establish the proposition that fat conferral of an absolute estate on a limited owner, it is necessary that the acquisition and possession of all interest by a limited owner should co-exist before the estate can be called her absolute estate. Instances of such cases are the Division Bench case of Bisarti Lachchi v. Sukarti Durjan, 1960 MPLJ 227: (AIR 1960 Madh Pra 156), Mst Bakhtawari v. Sadhu Singh, AIR 1959 Punj 558, Gurdas Dayaram v. Mst. Prito, AIR 1961 Punj 203 and the case of Smt. Giano v. Moti Ram, AIR 1961 Punj 274. In these cases, the limited owner was in possession without any right and the persona entitled to the property had not taken any action for some time. The learned Judges held that 9 limited owner in possession without any right cannot claim the estate as her absolute property by virtue of Section 14 of the Act. This would undoubtedly show that acquisition and possession contemplated by Section 14 must co-exist for enlarging the limited interest of a Hindu' female into an absolute one.
24. At this stage, I might mention only two ca?cs, which take a contrary view on the question of possession. The Division Bench case of Ram Gulam Singh v. Palakdharisingh, AIR 1961 Pat 60 lays down that where property is in possession of a trespasser and not in possession of a widow, it does not become her absolute property. This was a case of an alienation made by a limited owner and the suit had been filed by the reversioner challenging that alienation. The observations of the learned Judges, in my opinion, have no particular significance so far as the exact question involved in the present case is concerned. However, I may only mention the other Single Bench case decided by Sanjeeva Row Naydu, J., namely, Annapurnamma v. Bhima Sankararao, AIR 1960 Andh Pra 359, wherein the learned Judge held that actual possession would not be necessary to main the limited interest of a Hindu female absolute.
The learned Judge went to the extent of stating that mere right would be enough. We are not concerned with the other proposition laid down by the learned Judge that the interest of a Hindu female on the passing of a preliminary decree would become her absolute estate. In that behalf, the learned Judge followed the Division Bench view of the Andhra Pradesh High Court in Karri Venkamma v. Karri Venkatareddi, AIR 1959 Andh Pra 158 decided by Subbarao C. J. (as he then was) and Syed Qamar Hasan, J. That view is in consonance with the dictum laid down by their Lordships of the Supreme Court in Civil Appeal No. 130 of 1961, D/- 23-2-1962: (AIR 1962 SC 1493) (supra).
25. However, the view expressed by Sanjeeva Row Nayudu, J. in the said case was based on the view of Mallick, J. in Smt. Kirshna Dassi Saha v. Akhil Ch. Saha, AIR 1958 Cal 671. In these two cases, Mallick, J. and Sanjeeva Row Nayudu, J. undoubtedly expressed the opinion that possession is not sine qua non for conferral of an absolute estate on a limited owner and it would be sufficient if her right is there. That is how the learned Judges have interpreted the word 'possessed' occurring in Section 14 of the Act. The concept of being 'possessed' in my opinion, cannot be divorced from the idea of possession altogether, as was incorrectly assumed by Viswanathe Sastri, J. in the Division Bench case of (S) AIR 1957 Andh Pra 280 (supra), while Mookerjee, J. in the Division Bench case of (S) AIR 1957 Cal 557 (supra) expressed the opinion that howsoever broadly and liberally the word 'possessed' might be understood, it must include possession either actual or constructive in some legal sense.
It was this view of Mookerjee J., which their Lordships of the Supreme Court approved of in the case of Gummalapura, AIR 1959 SC 577. Their Lordships were not prepared to go to the extent to which Viswanathe Sastri, J. had gone in the Division Bench case of the Andhra Pradesh High, Court. Therefore, to conclude, I am of opinion that it is absolutely necessary for the applicability of Section 14 of the Hindu Succession Act that the acquisition and possession, either actual or constructive should co-exist in order to convert a limited estate of a Hindu female into an absolute estate. If any of the two ingredients, namely, acquisition and possession is wanting, the estate continues to be limited estate. When these two ingredients combine, it is only at that time that the estate becomes an absolute estate. However, I reject, as untenable, the suggestion that in respect of property acquired before the Act, possession has to be co-related to the date of the Act; and that in respect of subsequent acquisition possession has to be co-related to the date of the acquisition itself.
There is no warrant for such an interpretation. In my opinion, acquisition and possession, although necessary elements for attracting Section 14 of the Act, may co-exist at different points of time, It is at that time when they co-exist that Section 14 of the Act would become applicable. Therefore, if on the date of acquisition whether prior to or after the Act, a limited owner is not in possession, she continues to be a limited owner till such time, as she obtains juridical possession of the property, either actual or constructive. It is at that time, which may accrue at any time after the acquisition, that the property becomes her absolute property. I have no doubt about the correctness of this proposition after an analysis of the various cases mentioned; and particularly the two Supreme court cases decided by their Lordships of the Supreme Court. Of course, this will be the position unless the possession of a trespasser has ripened into a vested right by virtue of Section 28 of the Limitation Act. But if that right has not been prescribed into an adverse title and if the limited owner's right to obtain possession is still there, no sooner she lawfully obtains possession, she can claim the property as her absolute property.
26. In the present case, the right of the second appellant, Krishna has not ripened into an adverse title by prescription by virtue of S. 28 of the Limitation Act. For this reason, I am, of opinion that the suit of the respondent for partition and separate possession after obtaining possession from the second appellant, Krishna, who is as good as a trespasser, would be tenable. However, a further question arises whether the respondent's suit was tenable at a time when the Hindu Succession Act, 1956 had not come into force.
27. I have already indicated earlier that the plaintiff-respondent was not in possession of any property left by Pannalal on his death, which occurred on 6-10-1951. The property has been in possession of the present appellants from that date, or at the earliest from 8-9-1951 the date of alleged adoption, although it is difficult to say as to what items have been in possession of each of them. The possession of the first appellant could be considered to be constructive possession of the respondent. But regarding the other property in exclusive possession of the second appellant, Krishna, the respondent cannot be said to be in possession even constructively, as it would be possession of a stranger without any right, and not the possession of a co-owner like the first appellant, Anandibai. Therefore, at least regarding such property, the first appellant or the respondent would be required to dispossess the stranger, Krishna, before a partition could be claimed by either of them.
It is from this point of view that I have permitted the respondent to amend her plaint so as to claim relief of possession as against the second appellant, Krishna, which would more or less be a formal matter not necessitating a fresh trial. In this suit one of the following alternative reliefs can be granted, namely, a decree for possession in favour of the first appellant and the respondent can be passed as against the second appellant, or a decree for possession in favour of the respondent alone can be passed, or in order to avoid multiplicity of suits, further the property can be directed to be divided between the first appellant and the respondent. I propose to consider this question at the end, having in view the fact that the attempt of the appellants has been to defeat the just right of the respondent, and the pleadings of the parties are rather, confused and the Courts below did not consider this question, but decided the case mainly on two questions namely, the tenability of a suit for partition at the instance of a co-owner having a limited estate and the effect of Section 14 of the Hindu Succession Act, 1956 on the rights of limited owners.
28. Another reason why the contention of the learned counsel for the appellants regarding con-applicability of Section 14 of the Hindu Succession Act, 1956 ought to be rejected is that his arguments if accepted, will lead to an inconsistent and anomalous position to the effect that the first appellant becomes an absolute owner of the property in her possession, while the respondent continues to be a limited owner on account of the fact that she is not in possession at all.
29. The Hindu Succession Act, 1956 came into force during the pendency of the litigation. Therefore, there can be no doubt that such a suit for partition and separate possession would be tenable, as the property would become the absolute property of the first appellant, Anandibai and the respondent, Sunderbai to the extent that it may be in possession of Anandibai. Regarding the rest, it would become their absolute property no sooner they obtain possession from the second appellant, Krishna. Therefore, the suit cannot be thrown out, as untenable.
30. Even before the enactment of the Hindu Succession Act, 1956, the first appellant, Anandibai and the respondent would bold the property in limited right, they having inherited the same from their father, Pannalal. They would be co-owners with right of survivorship amongst them. For a beneficial enjoyment of their right, they could certainly effect a division between themselves so as not to destroy survivorship. In this connection, I might only refer to Section 531 of Mayne's Hindu Law and Usage (11th Edition 1953) at page 639, where the learned author states that the rights of two or more widows who succeed to the estate of a man, as well as the rights of two or more daughters who take as co-heirs have been authoritatively re-stated in a decision of the Privy Council in Gauri Nath v. Gaya Kuar, 55 Ind App 399: (AIR 1928 PC 251). That was also the earlier view of their Lordships of the Privy Council as expressed in Mst. Sunder v. Parbati, 16 Ind App 186 (PC).
Therefore, the right of a co-widow or a sister as a co-heir to claim partition against another co-widow or another sister was there even before the enactment of the Hindu Succession Act, 1956, subject to the limitation that the right of survivorship amongst them would not be defeasible by such a partition made by them, which would merely be an arrangement operative during their lifetime. From this point of view, there can be no doubt that the suit, as framed originally, was tenable, although it could not be placed on a par with a suit for partition filed by a co-parcener.
31. The last question to be considered is as to what relief the respondent is entitled to. I have indicated that the question of possession is rather indistinct. No doubt, the first appellant is in possession of some items of the property. In view of this fact, the respondent's suit for a partition and separate possession can be said to be tenable. Further, I have also allowed an amendment of the plaint permitting the respondent to claim the relief of possession, if it be found necessary. In case the respondent is permitted to claim possession as a joint owner, one of the parties may have to file a further suit for actual possession. Therefore, in order to curtail the litigation in the present case, I am of opinion that it would be proper to uphold the decree of the first appellate Court, which requires the trial Judge to ascertain the extent of the property involved in the suit and then to take further action by dividing the same between the two sisters.
If it be at all necessary for the respondent to claim possession by ousting the second appellant, that will more or less be a symbolical act, as the first appellant is already in possession. Under the circumstances, the possession of the second appellant can be tagged on to that of the first appellant, as was remarked by the learned appellate Judge. Therefore, I do not think it necessary to modify the decree of the first appellate Court any farther.
32. In view of the fact that I am upholding the decree of the first appellate Court, the amendment, which has already been allowed, becomes redundant or unnecessary. The trial Judge, therefore, may proceed for partition and separate possession in accordance with the direction of the first appellate Court.
33. The learned counsel for the appellants further urged that it should be clarified that the lands over which Krishna's name had been mutated in the lifetime of the deceased, Pannalal some time in the year 1948 are not the subject-matter of the present suit. From a perusal of the plaint Schedule, It is clear that the said lauds are not the subject-matter of the present suit and rights of the parties in regard to that land may have to be worked out independently irrespective of the present suit. However, the question relating to those lands is not decided in the present appeal.
34. As a result of the discussion aforesaid, this appeal fails and is dismissed with costs. The costs of the Courts below shall be borne, as directed by the first appellate Court, Counsel's fee in this Court according to schedule or certificate, whichever be less.