Skip to content


Thailambal Ammal Vs. Kesavan Nair - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberA.S. No. 282 of 1955
Judge
Reported inAIR1957Ker86
ActsHindu Succession Act, 1956 - Sections 14(1); Code of Civil Procedure (CPC) , 1908 - Sections 11; Evidence Act, 1872 - Sections 42 and 115; Hindu Law; Limitation Act, 1908 - Articles 142 and 144
AppellantThailambal Ammal
RespondentKesavan Nair
Appellant Advocate A.S. Krishna Iyer, Adv.
Respondent Advocate T.M. Mahalingam Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredIn Gaya Deen v. Amrauti
Excerpt:
.....within the meaning of section 14(1) of the act. in our opinion, the criticism is well-founded. the hindu widow is not a life-rentor but had a widow's estate, that is to say, a widow's estate in her deceased husband's estate'.if possessing as widow she possesses 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. . the principle that possession is prima facie advarse and exclusive can well be applied to the case of a hindu widow & if so, it is for him who claims as exclusive title to show that the possession arose in some way which had preserved his right. her daughter was the best person to speak about her animus possidendi and this she spoke to clearly at a time when there was no controversy and no..........of a hindu woman, the property so acquired will become part of that estate. 'but the position of a hindu widow entitled only to maintenance who obtains possession of a property which belongs to the joint family under a wrongful claim of title as the only heir to the last male holder and denying the right of the true heir, is not free from doubt, particularly in regard to limitation, and is of some importance in hindu law.' the earliest case before the privy council, referred to in this connection is lachhan kunwar v. manorath ram, 22 ind app 25: ilr 22 cal 445 (pc) (f), where the widow had come into possession of the property to the exclusion of her son. the judicial committee found that there was no evidence to show that the widow took possession as a widow but there was evidence of the.....
Judgment:

Varadaraja Iyengar, J.

1. This appeal is by the plaintiffs in a suit for declaration of their reversionary title as against the limited estate holder and her alienees, which has been dismissed by the Court below.

2. The disputed properties belonged originally to the joint family of two Brahmin brothers Chidambara Iyer and Ramaswami Iyer. Ramaswami Iyer died in 1056 leaving his wife Parvathi Ammal deceased and a daughter Kavery Ammal who is the 2nd defendant in the case. Parvathi came into possession of the properties in 1056 after the death of her husband Ramaswami and continued in possession until her death in 1100, when she was succeeded by the 2nd defendant Kaveri.

Soon thereafter, one of the sons of Chidambara filed suit O. S. 342 of 1100 before the District Munsiff's Court of Chittur against her as 2nd defendant and her lessee as the 1st defendant for recovery of the properties on foot of alleged title under a partition arrangement of 1087 entered into between the sons of Chidambara after his death in that same year.

That partition scheme assumed that Parvathi was let into possession by Chidambara under maintenance arrangement enuring for her life and the properties were accordingly recoverable after her death by the members of Chidambara's branch. The 2nd defendant denied the maintenance arrangement and set up a case of her mother's succession to her father to whom she alleged, the properties were allotted in partition in the family. She accounted for her possession, as heir of her father, after her mother's death and contended that the suit for recovery on basis of title was misconceived.

3. The trial Court accepted the case of the 2nd defendant and dismissed the suit. In appeal by the plaintiff the District Court reversed the decree of the trial Court and decreed the suit. In second appeal, however, the High Court of Cochin restored the decree of the Munsiff dismissing the suit. The Judgment of the High Court is dated 15-2-1105 and is filed as Ex. 1. It is also reported as Kaveri Animal v. Sangameswara Ayyar, 21 Cochin LR 39 (A).

In the view the High Court took, it was unnecessary to decide whether the 2nd defendant's case as to partition and allotment in favour of her father was true or not; it was enough to find as they did, that the case of maintenance arrangement with which the plaintiff came to Court was not made out. For according to the learned Judges Parvathi's possession of the joint family properties for more than 12 years, i.e., between 1056 to 1100 constituted adverse possession against the other members of family unless it was proved that she had been let into possession with their consent, which depended solely on the truth of the maintenance arrangement.

The character of the estate obtained by her, whether absolute title or only a widow's estate,might depend upon the nature of the title prescribed for by her. But that was a matter in which the plaintiff in that case was not interested.

4. Subsequently, under Ex. III dated 23-10-1953 the 2nd defendant released her rights in the properties in favour of her sons who are the defendants 3 to 5 in the case and they in their turn, sold the properties under Ex. II dated 20-11-1953 in favour of the 1st defendant. This suit was thereafter filed on 19-10-1954 by the plaintiffs 1 and 2, who are the daughters of the 2nd defendant and sisters of defendants 3 to 5 claiming declaration that they were the reversionary heirs to the properties after the lifetime of the 2nd defendant and that Exs. II and III were incompetent and could not affect them.

According to the plaintiff's their grand-mother Parvathi had prescribed for absolute right and not merely a widow's estate in the properties, by her adverse possession, and they, the plaintiffs, as granddaughters of Parvathi were the preferential reversionary heirs to the estate after the termination of the limited estate of their mother, the 2nd defendant.

5. The suit is resisted by the 1st defendant mainly on the footing that Parvathi entered possession of the estate only as heir to her husband Ramaswami as contended by her daughter, the 2nd defendant, in the previous case and that therefore she had prescribed for only a widow's limited interest in the estate. The 2nd defendant's surrender under Ex. IV of the estate in favour of her sons who were the immediate reversioners and their sale to the 1st defendant under Ex. II were accordingly immune from challenge.

6. The plaintiffs did not let in any evidence in the case apart from Ex. I, judgment of the High Court in the previous case, which they called upon the defendants to produce. The defendants, it would appear, were also content to rest their case on Ex. I, On this material the Court below came to the conclusion that in the absence of any direct evidence as to the intention of Parvathi, reliance had to be placed on the 2nd defendant's case as setup in the previous litigation to estimate the quantum of interest prescribed for by Parvathi.

So viewed, she acquired only a widow's estate and the claim of the plaintiffs to the contrary was unsustainable. The Court also expressed the view that 2nd defendant was representing the estate when she contested the previous case and her 'admissions' in the matter estopped the plaintiffs against contending otherwise and that Ex. I operated as res judicata even, as against the plaintiffs. In the result the Court below dismissed the suit and hence this appeal by the plaintiffs as above said.

7. Before proceeding to discuss the merits of the case, we have to notice a preliminary objection raised by learned counsel for the respondent 1st defendant based on the provisions of Clause (1) of Section 14 of the Hindu Succession Act, XXX of 1956, which was recently enacted:

'any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner.'

According to learned counsel, the effect of this provision was to convert all limited estates under Hindu Law into full proprietary ownership so as to extinguish the very conception of a reversioner under law. So much so, the plaintiff's status as reversioners to the estate, assuming it existed at date of suit, must be deemed to have been put an end to, pending decision of the appeal and the suit had therefore to be dismissed, as not maintainable on this sole ground.

Learned counsel for the appellants contends on the other hand, that the section cannot apply because the 2nd defendant bad parted away with her limited estate, so as not to be 'possessed' of the property, within the meaning of Section 14(1) of the Act. The question is whether the section is intended to enlarge the limited interest of the Hindu female into an absolute estate in the property held by her when the Act came into force or enlarges the right of a purchaser of her limited interest before the Act came into force.

This precise question came up for consideration before a Bench of the Andhra High Court in Venkavamma v. Veerayya, 1956 Andhra WR 988 (B). Viswanatha Sastri, J., delivering the Judgment on behalf of the Bench observed:

'The word 'possessed' is used in Section 14 in a broad sense and in context 'possession' means 'the state of owning or having in one's hands for (sic) power'. It includes possession by receipt of rents and profits. Even if a trespasser is in possession of land belonging to a female owner on the date when the Act came into force, the female owner might conceivably be regarded as being in possession of the land, if the trespasser had not perfected his title by adverse possession before the Act came into force.

'Where, however, before the Act came into force, the female owner had sold away the property in which she had only a limited interest, and put the vendee in possession, she could in no sense be regarded as 'possessed' of the property when the Act came into force. The object of the Act was to confer a benefit on Hindu females by enlarging their limited interest in property inherited or held by them into an absolute estate, with retrospective effect, if they were in possession of the property when the Actcame into force and therefore in a position to take advantage of its beneficent provisions.'the Act was not intended to benefit alienees who, with eyes open, purchased property from female limited owners without any justifying necessity before the Act came into force and at a time when the female vendors had only the limited interest of a Hindu woman.'

To the same effect is a learned article entitled 'The Hindu Succession Act, 1956: A STUDY', published in (1956) 2 Mad LJ (Jour) 59 at p. 66 (C):

'In the case of an alienee from the female owner prior to the passing of the Act, his rights will fall to be measured under the general Hindu Law only. If the alienation was for legal necessity or benefit to the estate, or if the alienee discharges the burden cast on him by Hunuman Persad's case, 6 Moo Ind App 393 (PC) (D), in regard to inquiry by him, he is protected and takes absolutely. In other cases he can hold the property only for the duration of the limited estate of the transferor under the general Hindu Law and the alienee cannot claim any higher right by virtue of Section 14.'

We agree. The preliminary objection therefore fails.

8. Taking up now the merits, learned counsel for the plaintiffs-appellants urges that the Court below had thoroughly misled itself in saying that Ex. I constituted . an estoppel or res judicata as against the plaintiffs.

In our opinion, the criticism is well-founded. For the plaintiffs cannot be said to claim under or through the 2nd defendant in any sense. They are claiming as heirs to Parvathi's alleged Streedhanom estate by way of reversion after the life-time of the 2nd defendant limited owner. The 2nd defendant never purported in the previous litigation to represent the estate on such basis. She had put the extent of Parvathi's rights at less, by saying it amounted only to a widow's estate. No doubt her own interest in either case was only a limited estate. But this does not affect the question. It seems to us that it must depend on the nature of the stand the 2nd defendant took in the prior litigation to say what estate she did represent. And particularly so we remember that so far as the plaintiff in that case was concerned, she was sued as a trespasser in possession after the maintenance-holder had died, and therefore as representing none but herself.

It is again wrong to attribute to Ex. I judgment a judicial force as against the plaintiffs, not parties as the Court below seeks to do, in contrast to a treating of the judgment or transaction which it disclosed as an item of fact in the history of the disputed properties. For, where a judgment is admissible, it is conclusive evidence for or against all persons whether parties, privies or strangers of its own existence, date and legal effect as distinguished from the accuracy of the decision rendered. See Gopi Sundari Dasi v. K.G. Chowdhury, AIR 1925 Cal 194 (E).

9. The question still is, what is the extent of the interest prescribed for by the 2nd defendant's mother Parvathi as a result of her adverse possession of the properties as against her husband's coparceners for the long period between 1056 to 1100? Was it only a widow's estate as the 2nd defendant contended in the prior litigation and still contends for? Or is it absolute estate or Streedhanam as the plain-tiffs would now contend? The principle is stated in Mayne's Hindu Law, 11th Edn., p. 734:

'When a Hindu woman takes possession of property adversely to the true owner, she may either prescribe for a Hindu woman's estate or for an absolute estate. In the latter case it will be her stridhana property. But where the circumstances are such as to show that she claimed as heir to a male or a female and consequently for the limited estate of a Hindu woman, the property so acquired will become part of that estate.

'But the position of a Hindu widow entitled only to maintenance who obtains possession of a property which belongs to the joint family under a wrongful claim of title as the only heir to the last male holder and denying the right of the true heir, is not free from doubt, particularly in regard to limitation, and is of some importance in Hindu Law.'

The earliest case before the Privy Council, referred to in this connection is Lachhan Kunwar v. Manorath Ram, 22 Ind App 25: ILR 22 Cal 445 (PC) (F), where the widow had come into possession of the property to the exclusion of her son. The Judicial Committee found that there was no evidence to show that the widow took possession as a widow but there was evidence of the fact that she always treated the property as her own property, not the estate of a Hindu widow.

In the next case of Sham Koer v. Dah Koer, 29 Ind App 132: ILR 29 Cal 664 (PC) (G), a widow and the daughter-in-law entered into possession and after the death of the widow the daughter-in-law continued to be in possession and executed a gift deed in favour of stranger. Mutation of names was also effected. In suit for declaration that the gift deed was invalid it was held that the widow and the daughter-in-law being widows of members of a joint family were only entitled to maintenance and. their continuous possession would be adverse to the reversioners unless it was established that such possession was the result of an arrangement with them.

The third case before the Privy Council is Satgur Prasad v. Rajkishor Lal, 46 Ind App 197: AIR 1919 PC 60 (H), where their Lordships held that the suit was barred by limitation and that the ownership was absolute. The next case is that in Lajwanti v. Safa Chand, AIR 1924 PC 1.21 (I). It was laid down by their Lordships:

' The Hindu widow is not a life-rentor but had a widow's estate, that is to say, a widow's estate in her deceased husband's estate'. If possessing as widow she possesses 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.'

Now this observation of the Privy Council that she does not acquire the property as stridhan has been the subject of discussion in the various High Courts. Some High Courts have followed this decision and laid down that if a widow enters into possession as a widow of the last male holder or as a widow of the family, her possession must be treated to be an accretion to the estate of her husband: that is, she prescribes for a limited interest; whereas the other High Courts have 'following the earlier Privy Council decision, held that her possession becomes adverse and the property so prescribed will be her stridhan.

10. Analysing the position it appears that the true test is what was the animus possidendi of the widow when she held the property? Did she assert absolute title in herself or did she claim as heir to any person? If it was the former, there could be no doubt she prescribed for absolute property. If it was the latter she could claim only a widow's estate.

The difficult question arises where there is no evidence as to what exactly was her intention. One view is that the presumption would be that she claimed as heir of some person of the family and the party who claims that she had more than a mere widow's limited interest would have to prove that she had an absolute title. That is to say, if there is no evidence to show that the widow claimed the property as absolute owner the property would be deemed to be an accretion to the estate of the last male owner.

The opposite view is that apart from sentiment there is no authority for the proposition that the possession of a Hindu widow is ordinarily in lieu of maintenance.. The principle that possession is prima facie advarse and exclusive can well be applied to the case of a Hindu widow & if so, it is for him who claims as exclusive title to show that the possession arose in some way which had preserved his right. See Sakhard Rao v. K.R. Seshaya, AIR 1925 Mad 1066 (J) and Udai Prasad v. Narotam, ILR 21 Luck 143: (AIR 1946 Oudh 38) (K).

We do not know if the former view is not, to a certain extent coloured by the theory that as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate. But it may now be taken as settled that there is no such difference as was once supposed between a male, and a female in this matter. If so there is no reason why the proper presumption should not be in consonance with the latter view.

11. The question recently came up for consideration in a Full Bench of five Judges in Gundarao v. Venkamma, (S) AIR 1955 Hyd 3 (L), and it was held by majority of three Judges that

'Where a Hindu widow not entitled to inherit an estate enters into possession of that estate and remains in possession for over the statutory period, the nature of her estate (a) where she asserts a title as an absolute owner from the very beginning of her possession, will be an absolute estate, and, (b) where she does not assert her absolute title, it does not become her absolute property but becomes an. accretion to the estate of the last male owner'' and in contrast the minority Judges held that'We nature of the estate taken by a Hindu widow not entitled to inherit the estate is an absolute estate irrespective of the fact whether she asserts her title as an absolute owner or not.'

In Gaya Deen v. Amrauti, AIR 1955 All 630 (M), Agarwala, J., had recently occasion to consider this question and he expressed the view following 22 Ind App 25: ILR 22 Cal 445 (PC) (F) and 29 Ind App 132: ILR 29 Cal 664 (PC) (G), that it was for those who want to assert that the widow's possession was not adverse but in lieu of an arrangement Or for consolation to establish the truth of that position. But he held nevertheless that

'Where a Hindu widow enters into possession, on the death of her husband, over the property whichstood in his name, then, whether the husband was ''the absolute owner of the property in his own right or was a co-parcener in a joint Hindu family, the presumption is that the widow entering into possession enters as the widow of her husband and claims the property as such. No distinction exists, between a case in which the Hindu widow enters into possession of a property absolutely owned by her husband as a separated member of the family or as his self-acquired property, and where she enters on that property when her husband was a member of a joint Hindu family with his coparceners.'

12. In this case it is not as if there is no material from which to ascertain the intentions of Parvathi when she possessed and held the estate. Her husband's death was in 1056 and she entered into possession soon after in the same year. It is impossible to conceive that she got into possession otherwise than as a widow in the family.

Her daughter was the best person to speak about her animus possidendi and this she spoke to clearly at a time when there was no controversy and no need therefore to give false colour and also consistently.

And apart from its argument based on estoppel and res judicata, the Court below was also able to arrive at its finding on the quantum Of the estate possessed by Parvathi, on a review of the circumstances and probabilities of the case. We hold the property in the hands of Parvathi constituted only a widow's estate and not her Streedhanom,

13. There is therefore, no substance in the appeal and it has to be and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //