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Ayyaswami Iyer Vs. Mahadeva Iyer and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in119Ind.Cas.57
AppellantAyyaswami Iyer
RespondentMahadeva Iyer and ors.
Cases ReferredVaithiliga Mudaliar v. Srirangath Anni
Excerpt:
limitation act (ix of 1908), schedule i, article 141 - adverse possession against widow, whether adverse against reversioner--limitation. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution.,..........the husband's estate. no attempt whatever has been made to prove this. therefore, no question of adverse possession by the alienees can arise in this suit and that is apparently the reason why that question was not raised in the lower court.4. notwithstanding the pleadings a very long argument has been addressed to us with a view to showing that the judgment in vaithilinga mudaliar v. srirangath anni is authority for holding that adverse possession against the widow is adverse possession against the reversioners. it is unnecessary to determine, the question but i will refer to it briefly. the privy council in that case were considering the prior decisions relating to prescription against a widow, more particularly katama natchiar v. raja of shivagunga 9 m.i.a. 539 : 2 w.r.p.c. 31 : 1.....
Judgment:

William Watkins Phillips, J.

1. The appellant is the 1st defendant in a suit brought by the plaintiffs as reversionary heirs of one Gurunatha Iyer impleading numerous other defendants who have not appealed. The plaintiffs claimed to be the reversioners and this fact was disputed by the defendants but they only put plaintiffs to proof of it. P.W. Nos. 1 to 7 have all given evidence on the point and their evidence has been believed by the learned Subordinate Judge. Certain criticisms have been put forward in this Court which contain nothing of sufficient importance as to discredit the testimony of the witnesses who have been believed by the trial Judge who had the opportunity of seeing and hearing them give their evidence. It is also significant that defendants Nos. 1 to 3 were not prepared to go into the witness-box and swear that the plaintiffs were not members of their family, a fact which must be within their knowledge. We must, therefore, accept the finding that the plaintiffs are reversioners.

2. The second finding of fact relates to the question of who was the last male holder. The plaintiffs say that Gurunatha Ayyar was the last male holder but the defendants contend that he predeceased his father, Chidambaram Iyer who was the last male holder. The evidence is all on one side, namely that of P.W. Nos. 2, 4, 5 and 7 which is unrebutted by any evidence for the defendants. That evidence is also supported by some prior proceedings in Court where the question had been raised. The learned Subordinate Judge has believed these witnesses and we see no reason to differ from his conclusion.

3. The plaintiffs' case was that Gomathi Ammal, the widow of Gurunatha Iyer came into possession of her husband's property and surrendered the appeal items to her sister-in-law Kamakshi Ammal, and that there was no necessity for that sur-sender and, consequently the plaintiffs are entitled to recover the properties now. The defendants first of all took the plea that Gurunatha Iyer was not the last male holder but Kamakshi's father Chidambaram Iyer from whom she, Kamakshi, inherited the property. In setting out their case in the written statement the plea that Chidambaram Iyer was the last male holder, comes first and then we come to para. 11; 'In the face of it, it is absurd to state in para 11 of the plaint that Gomathi Ammal surrendered some of the properties to Kamakshi Ammal. There was no necessity for such a surrender either'. Thus ends their first plea. Paragraph 12 runs: 'Even if it should be proved that Gurunatha Iyer died after Chidambaram Iyer, inasmuch as the surrender was made to Subbalakshimi Ammal in the interest of her daughter Kamakshi Ammal and her heirs according to the arrangement made by the dayadis with their full consent and as the same has been admitted by the plaintiff and others that arrangement is binding on them. This paragraph is clear admission that if it should be proved as has been done, that Gurunatha Iyer died after Chidambaram Iyer there was a surrender by Gomathi Ammal as was also pleaded by the plaintiffs but not in precisely the same form, for they alleged that the surrender was direct to Kamakshi Ammal whereas the defendants say that it was to Subbalakshimi Ammal on Kamakshi's behalf. On this plea it is incumbent on the defendants to show that the surrender was valid surrender; and their mere statement that the surrender was valid according to the arrangement made by the dayadis does not constitute a part of their admission that there was a surrender but is a plea that even if there was a surrender that surrender was a valid surrender. It is, therefore, incumbent on the defendants to prove the validity of the surrender by the widow of portion of the husband's estate. No attempt whatever has been made to prove this. Therefore, no question of adverse possession by the alienees can arise in this suit and that is apparently the reason why that question was not raised in the lower Court.

4. Notwithstanding the pleadings a very long argument has been addressed to us with a view to showing that the judgment in Vaithilinga Mudaliar v. Srirangath Anni is authority for holding that adverse possession against the widow is adverse possession against the reversioners. It is unnecessary to determine, the question but I will refer to it briefly. The Privy Council in that case were considering the prior decisions relating to prescription against a widow, more particularly Katama Natchiar v. Raja of Shivagunga 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843. After considering the connected cases their Lordships observe: 'The result of the cases to which their Lordships have referred shows in their opinion that the Board has invariably applied the rule of the Shivagunga case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 as sound Hindu Law where that rule was applicable.' In the judgment the only passage where a reference to what the Shivagunga's rule really is on page 899 Page of 19 E.R.--[Ed.]. 'In Harinath Chatterjee v. Mothurmohun Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334 it was held that the rule in the Shivagunga's case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 to the effect that on adverse decree against a Hindu widow binds those claiming in succession applies equally to the case of the daughter.' It would appear that the rule in the Shivagunga's case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 referred to by their Lordships was as stated in that sentence and the words are very clear.

5. It has been sought to extend that rule to all cases of adverse possession and that view has been accepted by one Judge of the Allahabad High Court, who formed the minority in a Bench of three Judges, which, considered this question. It was also held by a Single Judge of the Calcutta High Court but the opposite view was taken by a Bench of the Calcutta High Court in Siva Prasad Saw v. Bhadramoni Dassi : AIR1929Cal93 . With all respect I prefer to adopt the opinion of the majority and hold that Vaithilinga Mudaliar v. Srirangath Anni .

6. The appeal is dismissed with costs.

Tiruvenkata Achariar, J.

7. I agree and I wish to add a few words on the question of limitation which was elaborately argued by the learned Advocate for the appellant. The plaintiff seeks to recover immoveable properties as the reversioner of Gurunatha Iyer who died in 1862, on the death of his widow Gomathi Ammal which took place in 1919. Prima fade the Article of Limitation which applies to the suit is Article 141 of the present Limitation Act, 1908, according to which the suit is in time as it is filed within twelve years from the death of Gomathi Ammal. It is however argued for the appellants that they and their predecessors were in possession of the properties adversly to Gomathi Ammal for more than twelve years. She then represented the estate of her husband Gurunatha Iyer and the effect of her dispossession for more than twelve years was to extinguish her title to the property as the representative of her estate, in other words, that adverse possession for the statutory period of property inherited by a Hindu widow or other female taking a similar estate operates not only to extinguish her title thereto, but also the title of the reversioner who succeeds to the estate on her death. A reversioner, therefore, whose title was thus extinguished is not one who is 'entitled to the possession of immoveable properties on the death of a Hindu female' within the meaning of column 1 of Article 141 and that Article does not, therefore, apply to a suit brought by him for possession of the immoveable property on the death of the female. In support of this contention, the learned Advocate for the appellants relies on the decision of the Privy Council in Vaithilinga Mudaliar v. Srirangath Anni .

8. The respondent's Advocate on the other hand contends that the proposition that adverse possession against a Hindu widow or other qualified Hindu female heir for the statutory period bars the reversioner also was the rule of law under the earlier regulations and the Limitation Act XIV of 1859. But the Legislature changed that rule in Act IX of 1871 by giving a fresh starting point of limitation for a suit by a reversioner to recover immoveable properties which he became entitled to on the death of the widow or other female heir and that provision has been re-enacted in the later Limitation Acts of 1877 and 1908. Under Act XIV of 1859 and the earlier regulations there was only one starting point of limitation for suits for the recovery of immoveable properties and that was from the time the cause of action arose. When immoveable property to which a Hindu widow or other female heir was entitled was held adversely to her, time began to run from the date the adverse possession commenced, and the suit for the recovery of property whether brought by her or by the reversioner who succeeded to the estate after her would be barred unless it is brought within twelve years from that date. But Act IX of 1871 which repealed Act XIV of 1859 changed the law on the point by providing a special article under which the starting point for limitation for the suit by a reversioner arose on the death of the widow, the period of limitation for the suit being twelve years from the death of the widow. This provision was re-enacted in the later Acts and amplified by including in the first column other female heirs also who took the same qualified estate as a widow and on whose death the reversioner succeeded.

9. It is contended that the effect of this change in the law is, that adverse possession against a widow which extinguishes her rights does not affect the rights of the reversioner as it did under Act XIV' of 1859 and the regulations which preceded that Act.

10. Referring to the change made by Act IX of 1871 and the succeeding Acts Mr. Rustomji observes as follows:

A Hindu widow's estate and other estates analogous thereto are for purposes of limitation assimilated to an estate of an ordinary tenant for life. So, as no length of adverse possession against the tenant for life bars the reversioners, the same result follows in cases arising under Article 141. The law allows the reversioner twelve years from the female heir's death, and it is neither in her power nor in the power of any person claiming through or against her to abbreviate that period. Adverse possession cannot run against reversioners until, after the death of the widow. If the female heir never obtained possession on the owner's death and it was taken and continued by another person (in no way entitled to the property) adversely to her, the fact that she herself was barred by twelve years of such adverse possession against her, will not preclude the reversioner from suing within twelve years of her death,' See Rustomji's Limitation Act, Fourth Edition, at page 726.

11. In my opinion, this is a correct statement of the law as laid down by the several High Courts and the Privy Council in cases which arose under the Limitation Acts commencing from Act IX of 1871. See also Mayne's Hindu Law, 9th Edition, para. 643 at pages 951 and 952. The change in the rule of limitation made by Act IX of 1871 does not, however, affect any title which had been acquired by adverse possession before that Act came into force. See Appasami Odayar v. Subramanya Odayar 12 M. 26 : 15 I.A. 167 : 5 Bar. P.C.J. 255.

12. The question then is whether as contended for the appellant, the Privy Council have in Vaithilinga Mudaliar v. Srirangath Anni .

The result of the cases to which their Lordships have referred shows, in their opinion that the Board has invariably applied the rule of the Shivagunga's case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 as soun Hindu Law where that rule is applicable.

13. In the Shivagunga's case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 their Lordships held that the widow who inherits her husband's estate though she has only a qualified interest therein represents the estate absolutely for some purposes and that a decree fairly and properly obtained against her in regard to her husband's estate is in the absence of fraud or collusion binding on the reversionary heir.

14. In Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty 9 W.R. 505 : B.L.R. Supp. 1008, in which the question arose under Act XIV of 1859, it was held following the Shivagunga's case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 that as the reversionary heirs are bound by decrees relating to her husband's estates which are obtained against her without fraud or collusion, they are also bound by limitation by which without fraud or collusion she is barred. This review was affirmed by their Lordships in Aumirtolal Bose v. Rajonee-Kant Mitter 2 I.A. 113 : 23 W.R. 214 : 15 B.L.R. 10 : 3 Sar. P.C.J. 430 : 3 Suth. P.C.J. 94 which was also a casein which the question of limitation, related to Act XIV of 1859.

15. After the passing of Act IX of 1871 the question as to the effect of adverse possession against a female heir as regards a suit brought by a reversioner for possession of the estate on her death was considered by a Full Bench of the Calcutta High Court in Sreenath Kur v. Prosunno Kumar Ghose 9 C. 934 : 13 C.L.R. 372, In that case the reversioner was a daughter's son to whom Article 142 of Act IX of 1871 did not in terms apply as he succeeded not on the death of the widow but on the death of the daughters of the last male owner. There learned Judges contrasting the provisions of the Act of 1859 with the corresponding provisions in the Acts of 1871 and 1877 held that the decision in Nobin Chandra's case 9 W.R. 505 : B.L.R. Supp. 1008 which was passed under the Act of 1859 was no longer the law under the Acts of 1871 and 1877 and that a reversioner who succeeds to immoveable property has under the later acts twelve years to bring his suit from the death of the female heir. The Full Bench case in Sreenath Kur v. Prosunno Kumar Ghose 9 C. 934 : 13 C.L.R. 372 was followed by the other High Courts also as laying down the correct rule on the point decided therein. See Ram Kali v. Kedar Nath 14 A. 156 : A.W.N. (1892) 22 and Shrinivasa Raya v. Ramappa Hebbara 30 Ind. Cas. 991 : 2 L.W. 751 : 18 M.L.T 266.

16. All the other cases reviewed by their Lordships in Vaithilinga Mudaliar v. Srirangath Anni .

23 B. 725

1 Bom. L.R. 607

3 C.W.N. 621

21 I.A. 71

7 Sar. P.C.J. 543

9 M.I.A. 539

2 W.R.P.C. 31

1 Suth. P.C.J. 520

2 Sar. P.C.J. 25

19 E.R. 843

17. The case in Harinath Chatterji v. Mathurmohun Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334 which is one of the cases referred to by their Lordships was one in which the reversioner's Suit was held barred by res judicata. In that case the reversioner sued as heir of the last male owner on the death of the latter's last surviving daughter Sampurna. She had brought a suit for the recovery of the properties against the person who was in possession thereof adversely to her and her suit was dismissed on the ground that it was barred by limitation. In the reversioner's suit it was contended that the plea of limitation which was successful against Sampurna was one which could not be raised against the reversioner having regard to Article 142 of the Limitation Acts of 1871 and 1877 and that, therefore, the decree against Sampurna on a ground which was personal to her cannot bar the reversioner's rights. But their Lordships overruled the contention observing as follows:

The words 'entitled to the possession of immoveable property' refer to the then existing law. Under that law the plaintiff being bound by the decree against Sampurna would not be entitled to bring a suit for possession' With regard to this case bath Mr. Rustomji and Mr. Mitra in their learned commentaries say that it creates an anomalous position 'for while on the one hand, it has now been well-established by all the Courts that no length of possession adverse to the female heir would bar the reversioner (who has twelve years reckoned from her death within which to sue), on the other hand, if she sues to recover the property from the person in adverse possession and fails in her suit, the reversioner is barred by the decree.' See Rustomji's Limitation Act, Fourth Edition, page 728, and Mitra's Limitation Act, Vol. II, Fourth Edition, at page 1035. The same anomaly is referred to in the judgment of the High Court in that very case which was affirmed by their Lordships in Harinath Chatterji v. Mothur Mohun Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334. But a reference to the facts of the case as stated in Vaithilinga Mudaliar v. Srirangath Anni . shows that adverse possession against the daughter Sampurna commenced in 1855 when the widow Perimoni died, with the result that Sampurna's rights as representing the estate became barred by limitation under Act XIV of 1859 and under the than law, as held in Nobin Chunder's case 9 W.R. 505 : B.L.R. Supp.1008 the adverse possession which barred the daughter also barred the reversioner. If the reversioner is bound by adverse possession against the widow, a decree against her based on such adverse possession would a fortiori be binding on him. It seems to me that read in the light of the facts of the case, the reference to the then existing law as barring the reversioner's right is explicable as referring to the state of the law prior to the coming into force of Act IX of 1871 and in that view there will be no anomaly in the decision of their Lordships in Harinath Chatterji v. Mothur Mohun Goswami 21 C. 8 : 20 I.A. 183 : 17 Ind. Jur. 481 : 6 Sar. P.C.J. 334.

18. The only other Privy Council case considered by their Lordships which I need refer to here is the case in Runchordass Vandravandas v. Parvatibai 23 B. 725 : 1 Bom. L.R. 607 : 3 C.W.N. 621 : 21 I.A. 71 : 7 Sar. P.C.J. 543. That case has been regarded by all the High Courts as definitely laying down that under the Acts of 1871 and 1877 limitation can never begin to run against a reversioner in consequence of any possession or dispossession of a female, so long as she holds as heir of the last male. See Mayne's Hindu Law, 9th Edition at page 952.

19. In Vaithilinga Mudaliar v. Srirangath Anni .

23 B. 725

1 Bom. L.R. 607

3 C.W.N. 621

21 I.A. 71

7 Sar. P.C.J. 543

9 M.I.A. 539

2 W.R.P.C. 31

1 Suth. P.C.J. 520

2 Sar. P.C.J. 25

19 E.R. 843

23 B. 725

1 Bom. L.R. 607

3 C.W.N. 621

21 I.A. 71

7 Sar. P.C.J. 543

20. In Vaithilinga Mudaliar v. Srirangath Anni .

21. In the subsequent suit brought by the reversioner in which Murugathal and others claiming under her were impleaded as defendants, one of their main pleas was that the decree against the widow Chokskammal in Murugathal's suit operated as resjudicata against the plaintiff in respect of his claim in the, suit. With reference to that plea their Lordships were inclined to the view that though the adoption was invalid the decree in favour of Murugathal would be binding on the reversioner under the rule in the Shivagunga's case 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 19 E.R. 843. But the main point on which the suit of the reversioner was dismissed was that it was barred under Article 129 of Act IX of 1871 and that the title of Chokkammal and those claiming after her had under that article as held by the Privy Council is Jagadamba Chaodhrani v. Dahhim Mohun Roy Chaodhri 13 C. 308 : 13 I.A. 84 : 4 Sar. P.C.J. 785 become extinguished before Act XV of 1877 came into force. It seems to me that the effect of their Lordships observation in Vaithiliga Mudaliar v. Srirangath Anni .

9 M.I.A. 539

2 W.R.P.C. 31

1 Suth. P.C.J. 520

2 Sar. P.C.J. 25

19 E.R. 843

21 C. 8

20 I.A. 183

17 Ind. Jur. 481

6 Sar. P.C.J. 334

22. In the case before us, there is no question of any previous decree against the widow and the contention rests merely upon adverse possession against the widow. The evidence does not show when adverse possession against Gomathi Ammal commenced but even assuming that such adverse possession commenced on the death of Gurunatha Iyer, Gomathi Animal's rights as representing the estate were not barred when Act IX of 1971 came into force. Unless it was so barred the plaintiff's suit is within time as Gomathi Ammal died only in 1919.

23. The view I take as to the effect of Vaithiliga Mudaliar v. Srirangath Anni .

Raghunath Sahai

Bhadramoni Dassi

Manarma Debi

28 M. 197

Srirangath Anni

24. I am, therefore, of opinion that the learned Subordinate Judge was right in holding that this suit is not barred by limitation.


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