1. This second appeal has been filed by the defendants against the confirming judgment of the lower appellate Court arising out of a suit brought by the plaintiff for declaration of title and recovery of possession. It is the admitted case of both parties that the propertyin suit belonged to Kangali Behera who died prior to 1922. The plaintiff claims to be the first cousin of Kangali. Kangali died leaving his widow Sabi Bewa. Sabi having died in the year 1951, thepresent suit has been brought by the plaintiff for recovery of possession. Defendant No. 1 (Gandu Behera) is the son of Sabi through her second husband. Defendants 2 to 4 are the transferees in respect of portions of the disputed property.
2. The defendants resisted the claim of the plaintiff an several allegations that the plaintiff is not the next reversioner of Kangali; that Sabi had obtained absolute rights in respect of the disputed property.
3. It appears from Ext. 3 that the disputed property was allotted to Sabi Bewa, the widow of Kangali by way of maintenance in a compromise decree in a suit brought by Sabi for maintenance in the year 1922 and that she would be entitled to the widow's estate in the disputed property. It has been found by both the Courts below that the plaintiff is the first cousin and is the next reversioner of deceased Kangali. There is no dispute over the position also that a short time after the death of Kangali, Sabi had married for the second time. These and other findings of the Courts below are not challenged before me.
4. Mr. Chatterji, appearing on behalf of the appellants, however, advances his argument that on the finding that Sabi had remarried sometime after the decree obtained in the suit of the year 1922, it is clear that she forfeited all her rights to the property in dispute which she had obtained as the widow of Kangali in lieu of maintenance.
The forfeiture is on the basis of Section 2 of the Hindu Widow's Re-marriage Act, 1356. Since then when admittedly she was in possession of the property till her death, she had prescribed for absolute rights in respect of the said property and Kangali's heirs cannot lay any claim. If indeed Sabi by way of adverse possession had acquired absolute rights for herself but not merely a widow's estate, the plaintiff is bound to be nonsuited. The only question therefore that remains to be determined before me is whether she had prescribed for absolute rights or only a widow's estate which terminated on her death and therefore the property would revert back to Kangali's next heir who admittedly is the plaintiff.
There is no doubt that when Sabi came in possession of the disputed property on the basis of the compromise decree in lieu of her maintenance as the widow of Kangali, she had a widows estate. The position is indisputable that on her re-marriage subsequently within two years from the date of the decree, as asserted by Mr. Chatterji she forfeited her rights to the property as she ceased to be the widow of Kangali. Therefore the adverse possession suited from the date of her forfeiture on account of re-marriage and long before her death she had matured her rights.
5. But the only question is what was the nature of the rights that she had prescribed for? The principle has been very well-settled by high authorities that in order to determine the nature of the property acquired by prescription, it is the animus of the person, who prescribes which will mainly determine the nature of the property prescribed for. When there is nothing represented to me that after 'forfeiture or re-marriage she had asserted her absolute rights as against the reversioners of Kangali and there is nothing to indicate any change of animus, I have got to take it that she continued to be in possession after her re-marriage exactly as she was prior to the re-marriage.
Her rightful possession began as widow's estate, and after re-marriage there was no change in the nature of possession. The possession therefore, continued as on the basis of widow's estate. The result of this position is this : after forfeiture when she had prescribed for widow's estate on the completion of the 12th year's adverse possession, she could effectively resist any attempt of the reversioners to take back possession from her as she had acquired by adverse possession a right to the property to be enjoyed during her lifetime. But on the death of the widow, the right expires and the reversioners are entitled to get back possession of the property from any person found to be in possession of it after the death of the widow. In support of this view, I will first of all refer to the last portion of paragraph 211 at page 236 of Mulla's Hindu Law (11th Edition):
'Thus, where a Hindu widow in the enjoyment of her husband's estate as heir re-married and had thereby forfeited her title to the estate, but continued in possession without asserting any change in the character of her possession, she acquires title by prescription only to a widow's estate and not to an absolute estate.'
This has been taken from a decision of the Chief Court of Oudh reported in Parbati v. Ram Prasad AIR 1933 Oudh 92 (A). Wazir Hasan, C. J., and Srivastava. J., observed as follows:
'If the result of the re-marriage was to effect a forfeiture of her widow's estate, her possession thereafter was unlawful and therefore adverse; but there being no evidence to show that she prescribed for the absolute estate, this adverse possession can only be regarded as adverse possession of the limited estate which she had enjoyed before the re-marriage. The mere fact of re-marriage in the absence of any assert on of absolute ownership or change in the manner of her possession could not enlarge her estate into an absolute one.'
6. I will refer to a few other decisions of the Allahabad and Lahore High Courts accepting the same principle. In Umrao Singh v. Pirthi AIR 1925 All 369 (B) Mukherji, J., on similar facts held:
'Her possession was undoubtedly adverse to them (the reversioners). But the matter does not conclude there. The question is whether Mt. Dhapo has prescribed for herself in her independent right or as the widow of Bawar. It is to be remembered that she came into possession as the widow of Bawar. There is no indication whether she knew or not that on her remarriage she forfeited her right to the estate of Bawar. There is no indication that Mt. Dhapo ever declared that she was holding the property in her own right and not as the widow of Bawar. The probability there-fore is that Mt. Dhapo continued to hold the property in the same right in which she came into possession, viz., as the widow of Bawar. By completing 12 years' possession against Nihal and Fatte she acquired the property for her first husband Bawar.'
Their Lordships therefore held that on the death of Dhapo the reversioners of Bawar would be entitled to the property. This decision was followed by Tabal Ahmed, J., in the case of Tarif v. Phool Singh AIR 1927 All 274 (C). The same view also was taken in Desa v. Dani AIR 1929 Lah 327 (D). There is however another Bench decision of the Lahore High Court reported in Mahajan v. Mt. Pur-bho AIR 1930 Lah 504 (E). The judgment was delivered by a very eminent Judge of India Shadi Lal, C.J., Broadway, J., having concurred. It was decided there:
'She continued to hold the property after the forfeiture of her estate in the same way as before, and this continuance of possession could,by prescription, confer upon her the limited estate which she enjoyed before forfeiture, but could not have the effect of automatically enlarging her estate and making her an absolute owner.'
There their Lordships relied upon a decision of the Judicial Committee of the Privy Council reported in Lajwanti v. Safa Chand AIR 1924 PC 1-1 (F) to come to this view. It would be worthwhile to quote the passage from the judgment of the Judicial Committee relevant on the point:
'If possessing as widow she possessed adversely to any one as to. certain parcels she does not acquire the parcels as stridhan but she makes them good to her husband's estate.'
7. The last decision that I should refer to is a Bench decision of our High Court reported in Dulhabh Seth v. Bharat Seth AIR 1954 Orissa 212 (G). Panigrahi, C. J., observed:
'The rule of Hindu law which lays down that a widow, on her remarriage, forfeits her interest in her husband's estate, applies only to a widow as such and is not applicable to a widow she succeeds as mother. This position of law is covered by ample authority and needs no discussion. Even otherwise if Section 2 of the Hindu Widow's Re-marriage Act (1856) were to be applied, the widow would forfeit her right as mother, but as she entered into possession as limited owner her subsequent possession would not be changed in the absence of evidence of a change of her animus. All that has been Droved in this case is that she continued in possession, and nothing more.'
Mr. Chatterji wants to distinguish this case that this was a case of adverse possession by a mother. But the judgment takes the alternative position that even if Section 2 of the Hindu Widows' Re-marriage Act applies, there would not be a change in the nature of possession 3n the absence of evidence of a change of her animus and therefore she would be entitled, by such adverse possession, only to a widow's estate aS the judgment to which I was a party does not refer to several decisions on the point nor to any other authority, it is for this reason that I had referred to the several decisions as discussed above. But apart from that this decision is absolutely binding on me and I will follow this decision with respect.
8. Mr. Chatterji however wanted to rely upon a few other decisions which I am discussing below. It is to be observed at the outset that none of these cases are with reference to re-marriage of the widow who till the date of the re-marriage was enjoying a widow's estate and after remarriage simply continued to be in possession. Further in none of these cases the possession started as a lawful owner having a widow's estate and became adverse subsequently in which case 1 as I have indicated above, there must be some-thing substantial to indicate the change of animus in the assertion of absolute rights.
9. I will now take up the Privy Council case reported in Satgur Prashad v. Raj Kishore Lal, AIR 1919 P.C. 60(H). In that case:
'the property in dispute was held by a Hindu lady called Dilla Kunwari. She died in 1895, and the controversy turns on whether her possession was that of one claiming adversely as against any other title, or whether as the Courts below have held that possession was not adverse but under licence from or by permission of the predecessors-in-title of the first respondent, a license or permission granted during the lady's life time, in order to afford her the maintenance which she claimed as a widow.'
The decision of their Lordships is based upon the following observations:
'The application o Dilla dated 6-9-1861 made for a record of title after the deaths of Basant's two widows contains an assertion, thus publicly made that she and Kishen had become by these deaths the heirs and the only heirs to the property. It appears that mutation into Dilla's name duly followed on this application. Again in 1880 Dilla made an absolute gift for religious purposes of a part of the property. Their Lordships think that it is impossible in the face of these open assertions of full title, to draw the inference that Dilla claimed no more than such a possession as would yield her maintenance during her life. '
In my opinion, it is on account of these special' circumstances of open assertion of absolute title that Dilla's possession was taken to be with the animus of a full owner. Their Lordships have made it further clear, by another sentence which I am going to quote below:
'If the true inference be that the lady was in possession and asserting a title to full ownership of her share, at all events from the death of Basant in 1859 down to her own death in 1895 it is clear that the title of the plaintiff was barred by limitation.'
If in the present case there would have been materials of such nature that Sabi after forfeiture had made assertions of full and absolute rights in the face of the reversioners, that would have clearly indicated a change of animus and the adverse possession must be for acquisition of her absolute rights. The decision is not at all in conflict with the proposition laid down by the Division Bench of our Court nor by the several other decisions cited by me.
10. Reliance also has been placed upon a Bench decision of the Patna High Court reported in Suraj Balli Singh v. Tilakdhari Singh AIR 1928 Pat 220 (I) where it was held:
'When a Hindu widow is in possession of any property by adverse possession, then the property would become her stridhan, and it was 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.'
Here also there was no question of re-marriage, the possession being adverse from its inception. The same remark will apply to the cases reported in Sekhard Rao v. Seshaya AIR 1925 Mad 1066 (J) and Udai Pratap Singh v. Narotam Singh AIR 1946 Oudh 38 (K). The proposition is therefore very clear to me that once the possession of the widow starts in her capacity as a holder of widow's estate end 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 absolute ownership.
11. In the present case, there was an allegation that Sabi had executed a deed of gift in favour of defendant No. 1. That remains merely as an allegation as the deed of gift is not on record. Neither of the Courts below therefore found that there was any gift. Mr. Chatterji has drawn my attention to a stray sentence in the evidence that she got her name mutated in spite of the opposition of the reversioners. In the absence ofthe record regarding mutation, this is most un-reliable and cannot be held to be the basis for a finding that there was assertion of absolute rights. The attention of either of the Courts below was also not drawn to this solitary sentence in the evidence.
12. In conclusion, therefore, the appeal fails and is dismissed with costs.