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Dharmu Bharati and ors. Vs. Buli Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 114 of 1961
Judge
Reported inAIR1964Ori25; 29(1963)CLT350
ActsLimitation Act, 1908 - Schedule - Article 144
AppellantDharmu Bharati and ors.
RespondentBuli Dei and ors.
Appellant AdvocateB. Mohapatra and ;R.K. Mohapatra, Advs.
Respondent AdvocateP.C. Chatterji and ;R.C. Patnaik, Advs.
DispositionAppeal allowed
Cases ReferredSuraj Balli Singh v. Tilakdhari Singh
Excerpt:
.....claimed that the plaintiffs were never in possession of the suit lands within twelve years prior to the institution of the suit and had no manner of right of title to the suit property and as such the suit must fail......of said ananta bharati through suna. in 1927 suna executed a deed of gift in respect of the suit property in favour of defendant no. 1. on 10-3-1953, defendant no. 1 executed a sale-deed (ext. 8) in favour of defendant no. 4 in respect of ka schedule property of the plaint. suna died in the year 1953 and the suit was filed in theyear 1954 as the defendants threatened to dispossess the plaintiffs out of the suit land.3. defendant 1 and her husband defendant 2 only contested the suit. their case was that defendant 1 is the daughter of bhima bharati and not of ananta bharati. they also contended that though suna inherited the suit property as the-widow of bhima yet she continued to remain in possession even after her re-marriage with bisi, and her possession being that of an.....
Judgment:

R.K. Das, J.

1. This is a plaintiffs' appeal against the confirming judgment of the Subordinate Judge of Puri in a suit for declaration of title and Recovery of possession in respect of A 2. 551/2 of land, mentioned in Schedule Ka of the plaint.

2. Danei, father of plaintiffs 1 to 4 is a seaparated brother of Bhima who died in the year 1919 leaving his widow Suna. It is the plaintiffs' case that Suna remarried sometime in 1920 or 1921 to one Bisi who also died two years after the marriage. After Bisi's death Suna remained as concubine of one Ananta Bharati and defendant No. 1 Buli Dei is the daughter of said Ananta Bharati through Suna. In 1927 Suna executed a deed of gift in respect of the suit property in favour of defendant No. 1. On 10-3-1953, defendant No. 1 executed a sale-deed (Ext. 8) in favour of defendant No. 4 in respect of Ka schedule property of the plaint. Suna died in the year 1953 and the suit was filed in theyear 1954 as the defendants threatened to dispossess the plaintiffs out of the suit land.

3. Defendant 1 and her husband Defendant 2 only contested the suit. Their case was that defendant 1 is the daughter of Bhima Bharati and not of Ananta Bharati. They also contended that though Suna inherited the suit property as the-widow of Bhima yet she continued to remain in possession even after her re-marriage with Bisi, and her possession being that of an independent owner, was adverse to that of Danei and his sons, the present plaintiffs. They also claimed that the plaintiffs were never in possession of the suit lands within twelve years prior to the institution of the suit and had no manner of right of title to the suit property and as such the suit must fail. They contended inter alia that the deed of gift executed by Suna and the sale deed by defendant No. 1 were valid transactions and were binding on the plaintiffs.

4. Both the Courts below held that Sanei Bharati was the next reversionary heir of Bhima; (2) Defendant No. 1 Buli Dei, is not the daughter of Bhima; (3) Suna even after her remarriage continued to remain adversely in possession and enjoyment of the suit land as full owner thereof and (4) the plaintiffs were not in possession of the suit property within twelve years prior to the institution of the suit. Thus, they dismissed the plaintiffs' suit.

5. The main question that was agitated before the lower appellate Court was whether the possession of Suna Bewa was that of a limited owner and she having died sometime prior to the institution of the suit whether the plaintiff as reversioner are entitled to a decree. On this point, the learned subordinate judge held that after the remarriage of Suna with Bisi, she possessed the land as wife of Bisi to the knowledge of all concerned, and as such that was sufficient indication that the animus of Suna had changed and that she possessed the suit land not as the widow of Bhima, but in her own rights, and had perfected her title by adverse possession.

6. The real controversy therefore is confined to one point viz., whether Suna was in possession of the suit-properties merely as a limited owner or as a full owner. A Division Bench decision of this Court reported in Dulhabh Seth v. Bharat Seth, AIR 1954 Orissa 212 is decisive on this point. The facts of that case were more or less similar to the facts in the present case. There it was held by their Lordships that when a widow entered in possession as a limited owner, the character of her subsequent possession after remarriage would not be changed in the absence of evidence of a change of her animus. In a case reported in Gandu Behera v. Bala Behera, ILR (1956) Cut 529r (AIR 1957 Orissa) 237), their Lordships following the aforesaid decision and after haying noticed a number of other decisions on this point held that once the possession of the widow starts in her capacity as a holder of widow's estate and subsequently becomes adverse on account of the happening of other events, it is for the widow to show that she had asserted and declared her absolute, rights and was possessing adversely as absolute owner in order to prescribe for absolutely ownership.

To the same effect is the view of the Bombay High Court as appears from a case reported in Pandappa Mahalingappa v. Shivalingappa Murteppa, AIR 1946 Bom 193, where it was held that whena widow enters upon a land under a title as heir which is necessarily a limited title under the Hindu Law, very cogent evidence is necessary to show that she afterwards asserted a title as absolute owner. All that has been proved in this case and found by the Courts below is that Suna continued to remain in possession even after her remarriage. There is however nothing to show how the character of her possession underwent a change during the period she was in possession, after the death of her husband Bhima. There is nothing to show that there was any change in her animus or any assertion of absolute right by her as against the plaintiff-reversioners, the test in all such cases being whether the widow asserted and declared her absolute right in her capacity as a holder of widow's estate.

7. It was contended that the rent receipts appearing in the name of both Denei and Sunaand the lecord of rights (Ext. 1) wherein Suna has been recorded as the wife of Bisi are by themselves sufficient to make out a case of assertion of her right as full owner. This contention, to my mind, appears to be untenable. These entries rare not in any way inconsistent with the rights of a limited owner.

8. On behalf of the respondents reliance was placed on a Full Bench decision of the Andhra Pradesh High Court reported in MudragadaSatyanarayanna v. Jammi Veerraju, AIR 1959 Andh Pra 79. That decision, however, cannot be of any assistance to the respondents, as the facts of that case are quite distinguishable. Moreover, in that case their Lordships answered the question referred to the Full Bench in the following terms:

'In the case where a Hindu woman not entitled to inherit an estate asserts her title as absolute owner, her title to the property is absolute. But where she does no assert her absolute title still the nature of the title is the same, in the absence of evidence that she stepped into possession of the property in her right as heir of the last male-holder or under an arrangement or an agreement.'

So the proposition of law as laid down in the above case does not support the contention of the respondents' in the present case where the widow first came into possession of the property purely as a limited owner. It appears that Suna died in the year 1953, and in the absence of any evidence that she had asserted her title as full owner of the suit-property, it must be held that she continued to remain in possession merely as a limited owner and on her death the said right extinguished and the plaintiff-reversioners will get back the property.

9. Learned counsel for the respondent also sought to rely upon a case reported in Suraj Balli Singh v. Tilakdhari Singh, AIR 1928 Pat 220. All that was held in that case was that when a Hindu Widow is in possession of a property by adverse possession, the property becomes her Stridhan and it is only if the property is held in possession by a Hindu widow claiming as the widow of her deceased husband, then the property becomes an accretion to her husband's estate. This decision is of no assistance to the contention of the respondents.

10. In view of the position of law as discussed above, the plaintiff-reversioners must get back the property which Suna was holding as only a limited owner. In the result, the decisions of the Courts below must be set aside and the appealis allowed with costs.


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