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Pathumma Beebi Vs. Krishnan Asari and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal Nos. 541 and 542 of 1955 (M)
Judge
Reported inAIR1961Ker247
ActsHindu Law; Limitation Act, 1908 - Schedule - Articles 141 and 144; Hindu Succession Act, 1956 - Sections 14(1) and 14(2)
AppellantPathumma Beebi
RespondentKrishnan Asari and ors.
Appellant Advocate C. Unikanta Menon and; C.R. Dharmaraja Iyer, Advs. in S.A. 541/55 (M),;
Respondent Advocate C.J. Balakrishnan, Advs. for Respondent 9 in S.A. 541/55 (M) and for Respondent 12 in S.A. 542/55 (M)
DispositionAppeals dismissed
Cases Referred and V. Annapurnamma v. V. Bhima Sankararao
Excerpt:
.....the incidents of an estate taken by a limited heir like a daughter are similar to those of a widow's estate and there can be no doubt thaton the death of suppa ammal her daughters tookthe property as qualified owners with rights of survivorship. - the general law is so well-settled that it scarcely requires restatement. they are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income accruing therefrom. it is suggested that in such cases she will perfect a title by adverse possession if no suit is brought within twelve years of the date of the commencement of such possession. it is certain they do not refer to any hostile act of the widow by which she proposed to perfect a title by adverse possession. - the law can..........possession or estate a character different from that attaching to the possession. or estate of a hindu widow.in jaggo bai v. utsava lal, air 1929 pc 166 the board said:- 'in their lordships' judgment where there has been no decree against the widow or other act in the law in the widow's lifetime depriving the reversionary heir of the right to possession on the widow's death, the heir is entitled, after the widow's death, to rely upon article 141 for the purpose of determination of the question whether the title is barred by lapse of time.' the words 'other act in the law', perhaps, are not too clear. they may refer to a bona fide compromise by the widow. it is certain they do not refer to any hostile act of the widow by which she proposed to perfect a title by adverse possession.16. in.....
Judgment:

M.S. Menon, J.

1. The 2nd defendant in O. S. No. 248 of 1951 of the Court of the District Munsiff of Palghat is the appellant in S. A. No. 541 of 1955. The legal representatives of the 3rd defendant in that suit are the appellants in S. A. No. 542 of 1955.

2. The suit was for the recovery of the property described in the A Schedule to the plaint. The total extent of the land comprised therein is about 8 1/2 cents. Of these, about 2 1/2 cents constitute the property specified in the B Schedule to the plaint and the balance constitutes the property specified in the C Schedule thereto.

3. The whole of the property was purchased under Ext. B-3 dated 5-9-1876. The purchaser was one Suppa Animal, wife of a Pathan Asari. Both the lower Courts have concurrently found that she was, till her death sometime prior to 1879, the real owner of the property.

4. On her death the properties devolved on her three daughters, Ayya Ammal, Vella Animal and Meenakshi Ammal. Meenakshi Ammal died before 1909, Vella Animal about 1941 and Ayya Ammal on 27-5-1948.

5. The 1st plaintiff and defendants 7 and 8 are the surviving sons of Ayya Ammal. Plaintiffs 2 and 3 are the sons of a deceased son of Ayya Ammal. Vella Ammal left behind her a son and a daughter. The daughter is the 4th plaintiff and the son, the 9th defendant. Meenakshi Animal had a son. He died without issue.

6. In the appeal from the judgment of the trial Court, A. S. No. 52 of 1953, the Subordinate Judge of South Malabar at Palghat said:-

'It is now admitted on all sides that the property originally belonged to Suppa Ammal only, and that after the death of Suppa Ammal's daughters it is the 4th plaintiff (the daughter of Vella. Ammal) who is entitled to claim succession', (Paragraph 9)

7. The validity of two documents are challenged in the plaint, Exts. A-14 and B-17. Ext. A-14 dated 16-3-1907 is a sale-deed of the property described in the B Schedule to the plaint and Ext. B-17 dated 4-8-1909 is a sale-deed of the property described in the C Schedule to the plaint.

8. Ext. A-14 was executed by Ayya Animal and the 7th defendant in favour of the 1st defendant. The 1st defendant assigned his rights to his wife, the 2nd defendant, by Ext. B-24 dated 1-3-1932. Ext. B-17 was executed by Ayya Ammal, her father and all her children in favour of one Sheik Raw ther and his brother. The Rawthers transferred their rights to the 3rd defendant by Ext. B-19 dated 23-1-1939.

9. The lower appellate Court has held -- we think quite correctly -- that neither of the two documents can be sustained as both of them were executed without the consent or the junction ofVella Ammal, The incidents of an estate taken by a limited heir like a daughter are similar to those of a widow's estate and there can be no doubt thaton the death of Suppa Ammal her daughters tookthe property as qualified owners with rights of survivorship. In Gauri Nath Kakaji v. Mt. Gaya Kuar, AIR 1928 PC 251, a case of co-widows --the Board quoted the following passage from Bhugwandeen Doobey v. Myna Baee, 11 Moo Ind App 487 (PC):-

'Where a childless Hindu dies leaving two widows surviving they succeed by inheritance to their husband's property as one estate in co-parcenary, with a right of survivorship and there can be no alienation or testamentary gift by one widow without the concurrence of the other';

and said:-

'The general law is so well-settled that it scarcely requires restatement. If a Hindu dies leaving two widows, they succeed as joint tenants with a right of survivorship. They are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or a future reversioner. If they act together they can burden the reversion with any debts Contracted owing to legal necessity, but one of them acting without the authority of the other, cannot prejudice the right of survivorship by burdening or alienating any part of the estate'.

10. In Yelumalai Chetty v. Natesachari, AIR 1944 Mad 310 -- a case of daughters succeeding to the estate of their father -- the Court said:-

'Daughters succeeding to the estate of their father are Joint tenants and as such are exactly in the same position as if the estate had devolved on co-widows. Accordingly an alienation by one of the daughters even for family necessity without the consent of others does not bind the reversioners or the other daughters. In order to bind the revetsioner all the daughters must join in the alienation.' (Headnote).

The fact that the estate to which the daughters succeeded in this case was not the estate of their father but of their mother makes no difference and it may be unnecessary to go into the question of the binding character or otherwise of the consideration for Exts. A-14 and B-17.

11. The 1st plaintiff and the father of plaintiffs 2 and 3 were minors on the dates of Exts. A-14 and B-17. They did not figure in Ext. A-14 and they cannot possibly be bound by anything stated therein. They were, however, parties to Ext. B-17, with their father acting as their guardian. .

12. The Subordinate Judge has dealt with the items of consideration recited in Ext. B-17 as follows in paragraph 14 of his judgment;-

'Out of the consideration of Rs. 800/- recited in the document, a sum of Rs. 595-15-9 was reserved with the vendees for discharge of two debts of the assignors. One of them is a debt for Rs. 385-11-9 due to Irulappan Asari as per the decree in O. S. No. 378 of 1906 evidenced by Ext. B-18. This decree, as I have already pointed out, was against all the assignors. It is not known for what purpose the debt under that decree was incurred. At any rate, it cannot be argued that it must be treated as a debt incurred by Ayya Amma!for purposes binding on the estate. It may be that it was a debt binding on the family of the judgment-debtors as such, but that family, we find, is a much bigger unit towards which the estate of Suppa Animal hud no legal obligation. Then the second item is a sum of Rs, 210-4-0 being a debt alleged to be due from the assignors as per a possessory mortgage and lease back in favour of one Vellayanna Rawther dated 15th Meenam 1081 (28-3-1906). The possessory mortgage and the lease back are evidenced by Exhibits B-15 and B-16. These were executed by Ayya Animal, her husband Arumugom Asari and her son the 7th defendant. It is recited in the mortgage deed that the mortgagors and some others had executed a kuri hypothecation bond in favour of one Singily Chetty and another for Bs. 200/-, that Rs. 80/- was due to him under that bond, that the balance sum of Rs. 70 out of Rs. 150/- shown as the consideration for the mortgage was borrowed by them for meeting the expenses of the seemantham ceremony of 7th defendant's wife and for giving her some jewels. Here also the property, viz., the B Schedule property which was mortgaged, was described as belonging in jenmam excuisively to Ayya Ammal. The necessity is generally described as a family necessity. It is difficult to hold that this sum of Rs. 210-4-0 was also a debt binding on the reversioners of Suppa Ammal. About the balance consideration of Rs. 203-0-3 the recital in the document is that it was taken for the purpose of discharging some sundry debts incurred by them on behalf of their family. Here again, it is not possible to say whether any portion of those debts was for any purpose binding on the estate. The estate had no liability to maintain the family of the assignors as such, especially Ayya Animal's father and her husband. We cannot forget the fact that the document was executed as it the property belonged to Pathan Asari, and that the consideration for the sale was necessary for discharging the debts binding on the family consisting of all the members who have executed the assignment deed. Having made such a bargain, the alienees of persons claiming under them cannot be heard to say that the necessity was something else than that recited in the document. At any rate, there was no such evidence also adduced here.'

In view of the fullness of the discussions we need only say that we are in entire agreement with the conclusion that it is impossible to accept the binding character of any of the items of consideration recited in Ext. B-17. It must follow that the fact that the 1st plaintiff and the father of plaintiffs 2 and 3 were represented by their father in Ext. B-17, cannot in any way preclude the plaintiffs from challenging the document in this litigation.

13. The next question for consideration is whether the suit is barred by adverse possession as contended by the appellants before us. Article 141 of the first Schedule to the Indian Limitation Act, 1908, deals with suits by a Hindu or Muhammadan for possession of immovable property where such Hindu or Muhammadan becomes entitled to such possession on the death of a Hindu or Muhammadan female. It provides for a period of twelve years from 'when the female dies'. In this case Ayya Ammal died only on 27-5-1948 and the suitwas filed within less than four years thereafter, on 19-6-1951.

14. The contention is that Article 141 is not applicable to a case where a widow or daughter behaved as if she was a full owner and claimed adversely to the estate. It is suggested that in such cases she will perfect a title by adverse possession if no suit is brought within twelve years of the date of the commencement of such possession. The submission is wrong.

15. As pointed out in Sham Lall Mitra v. Amarendra Nath, ILR 23 Cal 460:-

'A widow cannot, by any act or declaration of her own, while retaining possession of her husband's estate, give her possession or estate a character different from that attaching to the possession. or estate of a Hindu widow.In Jaggo Bai v. Utsava Lal, AIR 1929 PC 166 the Board said:- 'In their Lordships' judgment where there has been no decree against the widow or other act in the law in the widow's lifetime depriving the reversionary heir of the right to possession on the widow's death, the heir is entitled, after the widow's death, to rely upon Article 141 for the purpose of determination of the question whether the title is barred by lapse of time.'

The words 'other act in the law', perhaps, are not too clear. They may refer to a bona fide compromise by the widow. It is certain they do not refer to any hostile act of the widow by which she proposed to perfect a title by adverse possession.

16. In Kalipada Chakraborti v. Sm. Palani Bala Devi, AIR 1953 SC 125 the Court said:-

'The law can now be taken to be perfectly well settled that except where a decree has been obtained fairly and properly and without fraud and Collusion against the Hindu female heir in respect to a property held by her as a limited owner, the cause of action for a suit to be instituted by a re-versioner to recover such property either against an alienee from the female heir on a trespasser who hald adversely to her accrues only on the death of the female heir. This principle, which has been recognised in the Jaw of Limitation in this country ever since 1871, seems to us to be quite in accordance with the acknowledged principles of Hindu Law. The right of reversionary heirs is in the nature of Spes Successionis and as the reversioners do not trace their title through or from the widow, it would be manifestly unjust if they are to lose their rights simply because the widow has suffered the property to be destroyed by the adverse possession of a stranger.'

There is no reason to hold that the position is in any way different where the widow or daughter has attempted to destroy the property by her owit hostile possession and that the reversioners in such a case are bound to sue within twelve years of the commencement of the adverse possession and not within twelve years of her death.

17. The 4th plaintiff died in 1958, that is after the Hindu Succession Act, 1956, came into force on 17-6-1956. Sub-section (1) of Section 14 of that Act provides that 'any property possessed by a female Hindu', whether acquired before or after the commencement of that Act, shall be held byher as fall owner thereof and not as a limited owner. The meaning of the word 'possessed' used in the sub-section came up for consideration in G. T. M. Kotturuswami v. S. Veeravva, AIR 1959 SC 577. The Court quoted the following passage from Gostha Bqhari v. Haridas Samanta AIR 1957 Cal 557:

'The opening words 'property possessed by a female Hindu' obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu whose limited estate in the disputed property is. claimed to have been transformed into absolute estate under this particular section, was at least in such possession taking tile word 'possession' in its widest connotation, when the Act' came into force, the section would not apply;'

and said:-

'In our opinion, the view expressed above is the correct view as to how the words 'any property possessed by a female 'Hindu' should be interpreted.'

18. The sub-section, however, has. no application to the present case in view of Ext. A-l dated 25-1-1950 and executed by the 4th plaintiff in favour of the 1st. The document no doubt is styled as an 'Avakasa Ozhumuri', and the contention is that the surrender being to the first plaintiff alone it is invalid and the 4th plaintiff should be deemed to have died 'possessed' of the property.

We entertain no doubt that the document is an assignment of the rights of the 4th plaintiff to the 1st plaintiff for valuable consideration --Rs. 1000/- -- that it operated as a conveyance to him of her limited rights for the duration of her life in the B and C Schedule properties, and that she cannot be considered as having been 'possessed' of those items subsequent to the date of that document,

19. The lower appellate Court gave a decree for possession of the plaint B and C Schedule properties in favour of the 4th plaintiff. The decree was granted on 29-11-1954. It is contended that Sub-section (2) of Section 14 of the Hindu Succession. Act, 1956, indicates that the acquisition of unrestricted rights under a decree, before or after the commencement of that Act should come within the ambit of Sub-section (1) of Section 14, and that in view of the decree of the lower appellate Court, the 4th plaintiff should be considered as having died 'possessed' of the property. This is dearly wrong. As pointed out in K. Venkamma v, K. Venkatareddi, AIR 1959 Andh Pra 158 and V. Annapurnamma v. V. Bhima Sankararao, AIR 1960 Andh Pra 359, the decree by which the acquisition was made should he a decree other than a decree which has not become final and which is the subject-matter of the appeal in which the question is raised.

20. The Subordinate Judge has held that a sum of Rs. 946-8-0 out of the consideration for Ext. A-14 is binding and directed its payment. This direction is not challenged and will stand.

21. It is not disputed that if our conclusions are as given above, the 1st plaintiff gets, absolute rights to a third of the B Schedule and a fourth of the C Schedule properties. We think we need do no more than grant a declaration to the effect! that Exts. A-14 and B-17 are not binding on him and that he is entitled to the shares above-mentioned, and leave him to work out his rights by a separate suit for partition.

22. It follows that both the Second Appeals have to be dismissed and that the decree of the lower appellate Court, subject to what is stated above, confirmed. Judgment accordingly. In the circumstances of the case the parties will bear their respective costs here and in the Courts below.


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