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Abinash Chandra Ghosh Vs. Narhari Mether and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1930Cal165
AppellantAbinash Chandra Ghosh
RespondentNarhari Mether and anr.
Cases ReferredAmrit Dhar v. Bindesri
Excerpt:
- .....lakhinarain goswami. lakhinarain died leaving behind him a widow dinomoyee who obtained a hindu widow's estate in the property now in question. she executed a deed of surrender of all her husband's estate in favour of one atal goswami. atal, who was the next reversioner died in the month of asar 1327 b.s. on atal's death the property devolved on his widow mrinalini, as atal left no son but only two daughters besides the widow behind him. mrinalini sold the disputed plot to the plaintiff for legal necessity. this is plaintiff's title. plaintiff's case is that defendant 1's father executed a kabuliyat in favour of dinomoyee but as this deed is an unregistered document it has been rightly excluded from evidence and nothing more need be said about it. plaintiff's case further is that a.....
Judgment:

Mitter, J.

1. The plaintiff, now respondent, having sued to recover possession of a plot of land now in dispute in this suit after declaration of his title to the same, had his suit dismissed by the Subordinate Judge of 24 Paraganas on the ground of limitation there being a finding in his favour on the question of title. This decision has been reversed by the Additional District Judge of 24 Parganas on appeal and plaintiff's suit has been decreed.

2. Against this decision defendant 1 has preferred this appeal. Two points have been argued on this appeal : (1) that the decision of the lower appellate Court that the suit is not barred by limitation is wrong; (2) that the lower appellate Court was clearly in error in not allowing the appellant to support the judgment of the Subordinate Judge on the ground that the plaintiff had failed to establish title to the disputed land, a ground which had been decided against him by the Court of first instance and in so doing has misunderstood the plain provisions of Order 41, Rule 22, Civil P.C.

3. The material facts necessary for determining the questions raised by this appeal are these : The property in suit admittedly belonged to one Rup Narain Basak and by successive transfers devolved on Padmabati, On her death it devolved on her son Lakhinarain Goswami. Lakhinarain died leaving behind him a widow Dinomoyee who obtained a Hindu widow's estate in the property now in question. She executed a deed of surrender of all her husband's estate in favour of one Atal Goswami. Atal, who was the next reversioner died in the month of Asar 1327 B.S. On Atal's death the property devolved on his widow Mrinalini, as Atal left no son but only two daughters besides the widow behind him. Mrinalini sold the disputed plot to the plaintiff for legal necessity. This is plaintiff's title. Plaintiff's case is that defendant 1's father executed a kabuliyat in favour of Dinomoyee but as this deed is an unregistered document it has been rightly excluded from evidence and nothing more need be said about it. Plaintiff's case further is that a registered kabuliyat in respect of the disputed land (Ex. 6) was executed by defendant 1 in the year 1298 B.S. in favour of Dinomoyee in the benami of defendant 2. In 1910 Dinomoyee brought a suit for rent against defendant 2 on the basis of the kabuliyat. In that suit on the objection of defendant 2, defendant 1 was impleaded on 28th June 1910. The suit, however, was decreed against defendant 2 and dismissed against defendant 1, as he denied the relationship of landlord and tenant. The decree was executed against defendant 2 and the land and the hut standing thereon was attached as the appellant states. The respondent says that only the hut was attached on 14th July 1910. It does not appear clear on the proceedings whether the land and hub were both attached. On the other hand the register shows that the hut only was attached. A claim was preferred by defendant with the result that defendant 1 was found to be in possession on his own account and the attached property - whatever it was, was released.

4. The present suit was instituted originally on 3rd August 1922 and the Subordinate Judge held that as the suit was filed more than 12 years after 28th June 1910 the date when the denial of tenancy by defendant 1 was given effect to the suit was barred by limitation. On the other hand the learned District Judge has reached the conclusion that Article 143, Schedule 1, Limitation Act, applied and the 'forfeiture was incurred not on the date when the denial was given effect to by the judgment of the Munsiff but on the date when some overt act was done by Dinomoyee i.e., on the date when she served a notice on defendant 1, i.e., on 3 15th January 1911 and as such the suit was well within the period of limitation. The appellant contends that this view cannot be sustained.

5. It seems to us that Article 143 has no application to the present case because the relationship of landlord and tenant does not exist and has not existed between the plaintiff and defendant 1. It was so decided in the Rent Suit 672 of 1910 in the Munsiff's Court at Sealdah. Defendant 1 has been in adverse possession for more than 12 years before the present suit. Dinomoyee died on 1st April 1918 and the present suit has been instituted within 12 years from the date of her death. The question is whether the adverse possession against Dinomoyee could be tacked to the adverse possession against the plaintiff or his predecossor-in-title so as to extinguish plaintiff's right. Atal Goswami through whom the plaintiff claims did not inherit the disputed property from Dinomoyee but from Lakhinarain whose a eversionery heir Atal was. In these circumstances the adverse possession of defendant as against Dinomoyee cannot be tacked to the adverse possession as against Atal who died in 1920 or of his successors-in-interest. It is argued, however, for the appellant that the adverse possession which barred the widow Dinomoyee would also bar the reversioner Atal or the plaintiff who claims through him. This contention, however, seems to be opposed to the decision of their Lordships of the Judicial Committee in the case of Ranchor Das v. Parvati Bai [1899] 23 Bom. 725, where the defence of limitation was raised but their Lordships held that it did not apply saying:

It is not necessary to consider what might be the case if the widows or the survivor of them were suing, as the plaintiff does not derive his right from or through them, and the extinguishment of their right would not extinguish his.

6. It is said on behalf of the appellant that this decision has been explained in another recent decision of their Lordships of the Privy Council in the case of Vithialinga v. Srirangath Anni and it is contended that the true effect of the later decision of their Lordships is to hold that adverse possession for more than the statutory period which would bar a widow would also bar the reversioner. In support of this contention reliance has been placed on a recent decision of Mr. Justice Page in the case of Aurabindo Nath Tagore v. Manorama Devi : AIR1928Cal670 . It seems to us that the decision in Vaithia linga v. Srirangatha Anni , above referred to turned on the circumstance that the decree of 1892 as to adverse possession was binding on the estate. In this case their Lordships were really considering the rule in the Shivaganga case namely:

Where the estate of a deceased Hindu has vested in a female heir a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heir.

7. Although it is not right to speak of a Hindu widow's estate as a mere estate for life for as has been pointed out by their Lordships of the Judicial Committee of the Privy Council in the case of Moniram Kolita v. Kery Kolitani [1880] 5 Cal. 776. She holds an estate of inheritance to herself and the heirs of her husband; still for the purposes of limitation it must be taken to be an estate of an ordinary tenant for life and as Sir Charles Parran, C.J., of Bombay pointed but that Article 141 appears to be intended for limitation purposes to do away with the anomalies which surround a Hindu widow's estate and other estates analogous thereto and to assimilate it for these purposes and for these purposes only to that of the estate of an ordinary tenant for life : see Vundravan Das v. Curson Das [1897] 21 Bom. 646 at p. 669. This decision was affirmed on appeal by their Lordships of the Judicial Committee in Ranchor Das v. Parvati Bai [1899] 23 Bom. 725 already referred to. The decision of the Judicial Committee in Ranchor Das's case has always been understood in India as an authority for the proposition that the statute of limitation can never begin to run against the reversioner in consequence of dispossession of the limited owner whether a Hindu widow or daughter and that in all cases the reversioner has 12 years from the death-of the Hindu widow or daughter or mother as the case may be in which to sue for recovery of possession of property from which the Hindu female was dispossessed. : see Radha Kissen v. Nauratan Lal [1907] 6 C.L.J. 490 Kedar Nath v. Jatindra [1909] 9 C.L.J. 236 at p. 238. Adverse possession cannot run against the reversioner until after the death of the widow or daughter as the case may be but where the adverse possession was the result of a decree which is binding against the reversioner the reversioner is barred. It was to this latter state of circumstances that their Lordships of the Judicial Committee were referring in Vithia Linga's case as will appear from the following observations of Sir John Edge:

The result of the cases to which their Lordships have referred shows, in their opinion, that the Board has invariably applied the rules of the Shivaganga case as sound Hindu law where that rule was applicable

and the Shivaganga case laid down that a decree fairly obtained against a Hindu widow was binding against the reversioner if the decree is not tainted by fraud and collusion. A case is an authority for what it actually decides and not for what would logically follow from such decision. Vithia Linga's case does not in my opinion lend support to the proposition that adverse possession which barred the widow will also bar the reversionary heir under the present Limitation Act. I am not unmindful of the fact that Page, J., has in the Tagore case already referred to arrived at the conclusion that the adverse possession against the widow would be effective as against the reversioners but with great respect to my learned brother it is difficult to read Vaitha Linga's case as supporting the broad proposition that adverse possession for more than the statutory period which was not the result of an adverse decree against a Hindu widow would bar the reversioner.

8. It is true that the Judicial Committee in Vaitha Linga's case quoted the following observation of Sir Barnes Peacock in the Fall Bench case of Nobin Ghunder v. Issuar Chunder [1868] 9 W.R. 505 and said that those observations were very instructive. Sir Barnes Peacock said:

It is said that the reversionary heirs could not sue during the lifetime of the widow (for possession), and that therefore they ought not to be barred by any adverse holding against the widow at a time when they could not sue. But when we look at the widow representative, and see that the reversionary heirs bound by decrees relating to her husband's estate which are obtained against her without fraud or collusion we are of opinion that they are also bound by limitation by which she, without fraud or collusion, is barred.

9. At the time of that decision the Limitation Act was the Act of 1859 under which it was held that the adverse possession which barred the widow or other females having limited estates barred also the reversioners. In the later Limitation Acts of 1871, 1877 and 1908 a reversionary heir was permitted to sue within 12 years from the time when his right to possession accrued i.e. from the date of the death of the Hindu female (Article 141). In Harnath Ghatterjee v. Mathur Mohan [1894] 21 Cal. 8, Lord Watson said:

But you must show that the new law gives a right of action to a reversioner notwithstanding that the widow's right of possession had been extinguished by decree.

10. These observations of Lord Watson are referred to in Vaitha Linga's case A.I.R. 1925 P.C. 240, Prom this it appears that the actual decision in Vaitha Linga's case A.I.R. 1925 P.C. 240 proceeded on the principles of the Shivaganga case, namely, that the decree of 1892 as to adverse possession was binding upon the estate.

11. The Allahabad High Court reads Ranchor Das's case [1899] 23 Bom. 725 as laying down that under Article 141, Schedule 2, Lira. Act 1877, a suit can be brought by a reversioner for possession of immovable property to the possession of which a female heir had been entitled within 12 years from the date of the death of the female heir, although she may have been out of possession for more than twelve years : see Amrit Dhar v. Bindesri [1901] 23 All. 448.

12. It is not necessary to consider in this case whether Article 141 would apply where the widow died a civil death by surrendering all her husband's estate in favour of the next reversioner or would apply only to the case of natural death for in this case both the civil death and the natural death of Dinomoyee took place within 12 years of suit.

13. In this view we think that the decision of the lower appellate Court was right although our reasons are very different from those of the learned District Judge.

14. With regard to ground 2 taken, the learned District Judge was clearly in error for under Order 41, Rule 22, it was open to defendant 1 who was the respondent before the lower appellate Court to support the decree of the Court of first instance on the ground of defect in plaintiff's title although such ground has been decided against him and we would have remanded the case to the lower appellate Court but for the circumstance that it is proved by defendant's own documents tint the disputed land belonged to Lakhinarain Goswami through whom plaintiff claims and the Munsif rightly points out the frivolous nature of the defence regarding title to the property in question. In these circumstances it would be useless to send back the case for a hearing of the appeal on the question of title.

15. The result is the appeal fails and is dismissed with costs.

Jack, J.

16. I agree.


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