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Ambika Prosad Dass Vs. Annada Prosad Dass and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1928Cal250
AppellantAmbika Prosad Dass
RespondentAnnada Prosad Dass and anr.
Cases ReferredRaja Mohamed Momtaz All Khan v. Mohan Singh A.I.R.
Excerpt:
- .....had in the meantime mortgaged his interest in the estate of his father, with the result that his right, title and interest was brought to sale in execution of a decree made in the original side of this court. on 8th july 1899, prince qamar quadir, of the family of the king of oudh, purchased the property now in suit, and on 14th december 1917, defendant 1 took a conveyance of the property from him on 9th august 1918 the plaintiff instituted the present suit for declaration that at the time of the conveyance in favour of defendant 1 by the execution purchaser, there was no subsisting interest which could be transferred, inasmuch as the interest acquired by him had been extinguished by adverse possession. the subordinate judge has decreed the suit.5. the property in dispute is a house.....
Judgment:

Mookerjee, J.

1. This is an appeal by the plaintiff in a declaratory suit.

2. The subject-matter of the litigation originally belonged to one Digambar Das who made a testamentary disposition on the day of his death, which took place on the 5th July 1888. He left two widows Bindubashini and Birajmohini and two sons, one by each wife namely, Annada Prosad by his first wife Bindubashini; and Ambika Prosad hy his second wife Biraj Mohini. In the litigation Annada is the plaintiff and Ambika is a defendant.

3. The will was proved in due course and in 1893 a suit was instituted by Annada Prosad on the original side of this Courts for construction of the will and for partition of the estate. The preliminary decree was made on the 25th June 1894. The commissioner submitted his report on 13th August 1898, which was confirmed on the 7th September 1898.

4. It appears that Annada Prosad had in the meantime mortgaged his interest in the estate of his father, with the result that his right, title and interest was brought to sale in execution of a decree made in the original side of this Court. On 8th July 1899, Prince Qamar Quadir, of the family of the King of Oudh, purchased the property now in suit, and on 14th December 1917, defendant 1 took a conveyance of the property from him On 9th August 1918 the plaintiff instituted the present suit for declaration that at the time of the conveyance in favour of defendant 1 by the execution purchaser, there was no subsisting interest which could be transferred, inasmuch as the interest acquired by him had been extinguished by adverse possession. The Subordinate Judge has decreed the suit.

5. The property in dispute is a house which was assigned to the mother of the plaintiff under the decree made in the suit for construction of the will and for partition of the estate. The relevant clause of the will is in these terms:

It is further declared that my elder wife shall have right of residence for the term of her natural life in the three-storeyed portions and my younger wife in the two-storeyed portion of my house No. 35, Ram Kamal Mookerjee Street. I direct my executor to pay into the hands of Sbama Charan Boss the sum of Rs. 3,000 to complete the unfinished portion of the three-storeyed portion of my said house No. 85, Ram Kamal Mookerjee Street.

6. In the decree made on 25th June 1894 it was declared that subject to the right of residence of Sreemutty Bindubashini Dassi, the mother of the plaintiff, and Sreemutty Birajmohini Dassi, the mother of defendant 1, and subject to provision being made for the legacies, annuities and bequests made by the said will, the plaintiff is entitled to a moiety or one equal half part of share of the said testator's estate, and that, subject as aforesaid, the defendant Ambika Prosad is entitled to the other moiety or remaining one equal half part or share thereof. The report of the commissioner made on 13th August 1898, stated that the three storeyed or eastern portion of the house had been set apart for the elder widow and the two-storied portion for the junior widow for the purpose of residence during the terms of their natural lives. The report further stated that subject to the right of residence of the widows in the portions mentioned in the map annexed, the remainder of the property had vested in the sons as directed by the will. This was confirmed by the decree of Court made on 7th September 1898. The right, title and interest of the plaintiff was thereafter sold in execution of the mortgage decree on 8th July 1899 and became vested in the prince. The sale certificate, which shows that the sale was duly confirmed, makes it clear that what was sold was the right, title and interest of the mortgagor, subject to the right of residence of his mother during her life. The position, consequently, was that the execution purchaser acquired the right, title and interest of the judgment-debtor subject to the right of residence of the lady.

7. It is now urged on behalf of the plaintiff that it was incumbent upon the auction-purchaser to obtain delivery of possession and that inasmuch as he did not take steps in that behalf, the title he had acquired was extinguished by lapse of time. This view has commended itself to the Subordinate Judge and he has given the plaintiff a declaration that at the time when the prince executed the conveyance in favour of defendant 1 he had no subsisting interest in the property to transfer. We are of opinion that this view cannot possibly be sustained.

8. It is a well-settled rule of construction that where words describing an interest refer only to right of possession personal to the donee, prima facie, life-interest only is created. In support of this proposition Sir Asutosh Chaudhury has relied upon the principle enunciated by the House of Lords in Coward v. Larkman [1889] 60 L.T. 1, which affirmed the judgment of the Court of appeal in Coward v. Larkman [1888] 57 L.T. 285, modifying the decision of Mr. Justice Kay in Coward v. Larkman [1887] 56 L.T. 278. In that case the testator gave his wife free use and occupation of a house. Lord Halsbury held that, as this gave the widow the free use and occupation of a house in words unqualified and unlimited in time, there was an absolute gift in favour of the widow. In his opinion, this fell within the well-known rule that, if you give the income of real or personal estate, and the gift of the income is absolute and unlimited, the corpus is included in the gift or, as is figuratively put, the gift of the fruit in an unqualified and absolute manner is a perpetual gift of the tree. This principle is embodied in Section 159, Succession Act. Lord Watson did not dissent from the view that a gift for use and occupation was governed by the same-rule as a bequest of rent and profits. But he held that the terms of the will before them, if taken as a whole, afforded sufficient indication of the intention of the testator to restrict the interest of the widow in the residence for the period of her life. In the case before us no question arises as to whether the widow took an interest for life or in perpetuity, he-cause, in the suit for construction of the will, it has been held that the widow had-only a personal right of residence during her life. The position thus is that, subject to such interest, the residue is in the son. Consequently the principle enunciated by the Judicial Committee in Rewan Pershad v. Mt. Radha Beeby [1846-50] 4 M.I.A. 132 becomes applicable. Dr. Lushington pointed out that where, by a testamentary instrument the testator gave his wife a life-estate and, subject thereto, an interest in favour of his brother and nephew, the latter took a vested interest though the actual enjoyment of the expectant interest was postponed till the termination of the life. In the present case the plaintiff took a vested interest subject to the right of residence granted in favour of his mother by his father's will. He had no immediate right of possession which remained with his mother during her lifetime. The purchaser of the right, title and interest of the plaintiff was in no better position. The purchase he made was expressly subject to the right of residence of the widow. It would accordingly have been futile for him to make an application to the Court for delivery of possession.

9. It has been next contended on behalf of the respondent that the auction-purcharer might have obtained what is called symbolical possession. The Code no doubt distinguishes between symbolical possession and actual possession. Symbolical possession is delivered where the property is in the occupation of a person, such as a tenant, who is entitled to remain in occupation, notwithstanding the sale of the superior interest. Actual possession is delivered where the property is in the occupation of a person whose interest has been sold by the decree of the Court. In the case before us, the Court could not have delivered symbolical possession, because under the certificate the possession was bound to remain with the lady and the purchaser was not entitled to possession till that right had terminated in accordance with the terms of the will. In these circumstances there could be no room for adverse possession. The doctrine of adverse possession is applied to the detriment of a person who is entitled to possession but is not in possession; it cannot be applied as against a person not competent to claim possession. Illustrations of this fundamental rule may be found in various classes of eases. See, for instance, Priyasakhi v. Bireswar [1917] 44 Cal. 425 (dispossession of mortgagor), Womesh v. Raj Narayan 10 W.R. 15 (dispossession of tenant). We are consequently of opinion that as the execution purchaser could not obtain possession of the property he bad acquired, there could be no adverse possession as against him. We have been finally pressed to hole that, as the plaintiff occupied the house jointly with his mother, his possession must be deemed adverse to that of the auction-purchaser. There is clearly no force in this contention. His occupation was obviously by leave and license of his mother, and was in no sense adverse to her. But, even if there had been such adverse possession, it could not have affected the auction-purchaser who had purchased subject to the right of residence of the widow herself. The Subordinate Judge, we observe, has held that, as the possession of the plaintiff was adequate in continuity and publicity, it must be taken to be adverse. He has clearly misapplied the principle of the decision of the Judicial Committee in Radhamani Debi v. Collector of Khulna [1900] 27 Cal. 943. Lord Robertson pointed out that possession, when adverse, in order that it may extinguish title, must be adequate in continuity, in publicity and in extent. But it does not follow conversely that every possession which is continuous and public is necessarily adverse. In this connexion reference may be made to the decision of the Judicial Committee in the case of Raja Mohamed Momtaz All Khan v. Mohan Singh A.I.R. 1923 P.C. 118, where Lord Salvesen discussed the elements requisite for possession to be adverse in character, and pointed out that mere assertion of adverse title does not transform permissive or fiduciary possession into adverse possession. We are consequently of opinion that in the case before us the possession of the plaintiff, such as it was, was not adverse possession as against the purchaser and did not affect his title, which passed by the sale to the execution purchaser. The plaintiff entirely failed to prove that he has re-acquired a fresh title by adverse possession as against the purchaser or his transferee.

10. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the suit dismissed with costs both here and in the Court below.

Rankin, J.

11. I agree.


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