1. The following genealogy will serve to explain the relationship amongst the parties to this litigation:
| | | | | |
Parmananda * * * * |
alias Mrittunjoy |
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W.1 W. 2 Rajmoni D. 1267=1860 |
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Krishnananda D. 1250=1842 | |
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Umasundari D. 1276=1869 Bamasundari D. 1322 |
| =29th Feb. 1916 |
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Ananda Mohan D.1312=1905 Bhuban Mohini-Defdt.5 |
| | |
| Dwijendra K. Roy-Defdt. 6 |
| | | | |
W. 1 W. 2 W. 3 W. 4 |
Suratarangini, Khadyatamayi, Kusum Kumari, Kshirode Basini, |
Defendant 4 defendant 1 defendant 2 defendant 3 |
Jnanendra M. Sinha, |
Defendant 7 |
Brahmananda alias Rajnarain
| | | |
Hridayananda, Umeshananda, Saradananda, Bichitrananda,
Plaintiff 1 Plaintiff 2 Plaintiff 3 Plaintiff 4
2. One Ramananda Bhattacherjya was the original owner of an 8-annas share in certain properties which is the share involved in the present suit. He left six sons of whom two were Paramananda alias Mrittunjoy and Brahmananda alias Rajnarain. Paramananda left a son Kalikananda. Kalikananda had two wives by the first of whom he had a son Krishnananda, who died in 1250 B.S. (=1843). By his second wife Rajmoni, Kalikananda had. two daughters, Uma Sundari and Bima Sundari. Rajmoni died in 1267 B.S. (=1860). Uma Sundari died in 1276 B.C. (=1869) leaving a son Ananda Mohan who died in 1312 B.S. (=1905). Defendants 1 to 3 are three of the widows of Ananda Mohan. Defendant 4 is a daughter of Ananda Mohan by another widow who is dead, and the husband of defendant 4 is defendant 7. Bama Sundari died in 1322 B.S. (1916) leaving a daughter who is defendant 5, and the daughter of the latter is defendant 6. Brahmananda's son was Harananda who left two sons, Biswananda and Bodhananda. The plaintiffs who are four in number are the sons; of Biswananda.
3. The following facts have been found, and are not now disputed: The 8-annas share of Ramananda descended in halves to Krishnananda on the one hand and Harananda on the other, and on Harananda's death his 4-annas share was inherited by his sons Biswananda and Bodhananda. Since Krishnananda's death in 1843 his 4-annas share in the properties remained in the possession of Rajmoni till her death in I860. In 1862, after Rajmoni's death, Bodhadanda instituted a suit against Rajmoni's daughters Uma Sundari and Buna Sundari for recovery of possession of the said 4-annas share. This suit ended in a compromise, and a decree based thereon, by which Uma Sundari and Bama Sundari relinquished their right to a 10 gandas share in favour of Bodhananda and Biswananda, the latter of whom, however, was not a plaintiff to the suit though he was a party defendant therein, and they retained the remaining 3-annas 10 gandas share of which they were in possession. la 1865 Uma Sundari's son Ananda Mohan instituted a suit against Biswananda and Bodhananda. to set aside the aforesaid compromise and the relinquishment of the 10 gandas Share There was a compromise out of Court in that suit by which the relinquishment of the 10 gandas share was confirmed.
4. In 1918, that is to say about 18 months after the death of Bama Sundari, the plaintiffs instituted the present suit alleging that Rajmoni having been in adverse possession in respect of the said 4-annas share from 1250 B.S. (=1843), i.e., the death of her stepson Krishnananda down to her death in 1267 B.S. (=1860)--adversely to their grand-father Harananda, and after Harananda's death to their father and uncle Biswananda and Bodhananda -- had acquired an absolute interest therein as her ajautuka stridhan and the plaintiffs as the nearest reversioners on the death of Bajmoni's daughters Uma Sundari and Bama Suadari are entitled to the 3 annas 10 gandas which they were in possession. They prayed for declaration of title and recovery of possession of that share.
5. The defendant's case, on the merits, was that the 4 annas-share which Bajmoni possessed in her life time did not belong to her stepson Krishnananda alone, but also to Ratanmani and Gangamani the widows of two of the other sons of Ramananda, and that she possessed the said share with the permission of Harananda and, after Harananda's death, of Biswananda and Bodhananda and further that her possession did not extend for the statutory period necessary to confer title on her.
6. Two of the properties in suit namely Nos. 14 and 15 were given up in the course of the suit for reasons which do not concern us. The Munsif decreed the suit in respect of the remaining properties declaring the plaintiff's title to 3 annas therein and giving them possession thereof. The Subordinate Judge has on an appeal by the defendants reduced that decree by a moiety. From the decision of the Subordinate Judge two appeals have been preferred. S.A. No. 404 of 1926 has been preferred by defendants 1, 2, 5 and 8. S.A. No. 496 of 1926 has been preferred by plaintiffs 1, 2, 3.
7. The findings of the lower appellate Court on the merits are: that Bajmoni was in adverse possession from 1250 B.S. (=1843) to 1267 B.S. (=1860), that is to say for nearly 17 years; that the plea that she was in possession on behalf of Ratanmani and Gangamani and that such possession was with the permission of Harananda, and after him, of Biswananda and Bodhananda, was not true; that there is nothing to indicate that she was in possession of a limited interest and not of a full and absolute interest; that the adverse possession began when Harananda was alive but was suspended by reason of Harananda's death and his sons Biswananda and Bodhananda being minors, that it recommenced when they attained majority, and that on calculation such adverse possession was for a period of 12 years or more as regards the share of Biswananda but not as regards the share of Bodhananda. On these findings the learned Additional District Judge gave the plaintiffs a decree in respect of a half of 3 annas 10 gandas share.
8. The defendants who are the appellants in S.A. No. 404 of 1926 contend: first that the compromise in the suit of 1862 represents a bona fide family arrangement and the plaintiffs are not competent to go behind it; second, that under the law of limitation as contained in the regulations then in force the possession of Rajmoni cannot be regarded as adverse which could ever ripen into title; third, that the findings of the Subordinate Judge as regards the period over which Rajmoni's possession extended as against Biswananda are mere surmises and are not based on any real materials; and fourth, that in any case Rajmoni's possession was only that in respect of a limited interest and consequently she never acquired any share as ajautuka stridhan to which the plaintiffs can possibly succeed.
9. The plaintiffs who are the appellants in S.A. No. 496 of 1926,, contend that Rajmoni acquired a title by adverse possession both against Biswananda and Bodhananda as at the date of Rajmoni's death a suit instituted by them would be governed by Act 14 of 1859 and under Section 11 of that Act time which had begun to run against Harananda would not cease to run by reason of his death but would continue to run against Biswananda and Bodhananda even during their minority. It will be convenient to deal with the contentions of the appellants in S.A. No. 404 of 1926 in their order and to deal with the contention of the appellants in S.A. No. 496 of 1926 along with the second of the contentions in the former appeal.
10. As regards the first of these contentions, it cannot be disputed that a partition or a settlement of a disputed or doublful claim is a valid and binding arrangement between the parties thereto and the parties themselves or those that claim under or through them are not permitted to deny, ignore or resile there from. On equitable principles such partition or settlement is also binding on persons, who, though they may not have been either parties thereto or have derived their interest from such parties, have acted upon it or have derived some benefit from it. The principles governing such cases have been explained in a long series of decisions of the Judicial Committee: Rajender Narain v. Bijoy Gobind  2 M.I.A. 181; Hetnarain v Modenarain  7 M.I.A. 311; Gajapathi Radhiha v. Gajapathi Nilamani  13 M.I.A. 497; Mantappa v. Basieantrao  14 M.I.A. 24; Greender Chunder v. Troylukho Nath  20 Cal. 373 ; Muhammad Imam Ali v.TIossein Khan  26 Cal. 81; Khuni Lal v. Gobinda Krishna  33 All. 356. There are numerous eases in which Courts in this country have or have not applied these principles and no useful purpose would be served by discussing them here as the facts of none of those cases are identical with the facts that we have to deal with.
11. On examining the principles it appears that the circumstance that Uma Sundari and Bama Sundari were limited owners at the time would not make the settlement any the less binding if the other requisties of validity of the settlement are present. One of the requisites to call this equitable doctrine into play is that the parties should have been parties to the settlement or should claim under or through such parties or should have acted on it or derived some benefit under it ; but here the plaintiffs cannot be treated as coming under any of these categories at all as they are not claiming under their father or uncle but as reversionary heirs to Rajmoni and the 10 gandas share that they are in possession of, they say are entitled to, as such reversionary heirs. Then, as pointed out by Turner, L.J. in Lucy's case  4 Deg. M. & G. 356 the parties should bona fide consider that there is a question to be decided between them, for no comproimise would be good if it ultimately turned out that there was no doubt upon the point which was made the subject of the compromise This involves that there should have been a full disclosure of the facts ; but in the present case it does not appear that the question whether Rajmoni had or had not acquired the share as her ajautuka stridhan by adverse possession was at all raised, and if it is now found that she did, that would, in our opinion, affect the bona fide of the settlement. Moreover even if this question was raised, the settlement would be regarded as ultra vires of the parties because Biswananda and Bodhananda would not have any subsisting rights at the time and would offend against the dictum of Lord Westbury in Dixon v. Evans  5 H.L. 606, that it should be an honest settlement of an existing dispute which must not be manifestly ultra vires of the parties to settle. For these reasons we are of opinion that the first contention of the appellant cannot be allowed to prevail.
12. In support of the second contention that adverse possession could not confer any title on Rajmoni reference has been made to Reg. 3 of 1793, Section 14 and Reg. 2 of 1805, Section 3, Clauses 1, 2 and 4, and it has been contended that the limitation of 12 years fixed by the former provisions was declared by the latter as not being applicable to private claims of right to immovable property if the person in possession shall have acquired possession by violence or fraud or by any other unjust or dishonest means whatever. It has been argued that upon the findings of the Subordinate Judge Rajmoni's possession was of this character and that therefore a suit by Biswananda or Bodhananda for recovery of possession would not be barred by the 12 years' rule. It has also been contended that under the Eegulations so long as they were in force it was the remedy that would be barred by lapse of time ; and that as the Limitation Act 14 of 1859 did not come into force till the 1st January 1862, by the combined operation of Section 18 of that Act and Section 1 of Act 11 of 1861, on the death of Rajmoni in 1860, the remedy of Biswananda and Bodhananda would not have been barred. Against all this the plaintiffs have contended (and that is also their substantive contention as appellants in S.A. No. 496 of 1926) that at the time of Rajmoni's death in 1860, it was Act 14 of 1859, that was in force, and as time had already begun to run against Harananda, it should, under Section 11 of the Act, be regarded as having continued to run notwithstanding Harananda's death.
13. Now Reg. 2 of 1805 makes a distinction between bona fide and mala fide possession--a distinction borrowed from the Roman law and the prevailing law of Continental Europe as well as to some extent of America and possibly also from the Hindu law. In dealing with this matter it is necessary to bear in mind the difference between possession founded on title, and possession founded on a claim of title. Possession to be adverse must be founded on a claim of title because possession without a claim of title would in law be treated as the possession of the true owner and not as adverse to him. What is meant by the terms used namely:
possession acquired by violence, fraud, or by any other unjust or dishonest means or that the property claimed had been so acquired by any other person from whom the actual occupant derived his title and was not subsequently held for 12 years under a fair title believed to convey a right to possession and property
is sufficiently explained by the preamble to that Regulation. Under the Regulation so far as the original acquisition of the possession is concerned it is necessary in order to take it out of the 12 year's rule that the acquisition should have been 'by violence, fraud or any other unjust or dishonest means whatever.' The intention of the legislature was to look to the means by which the acquisition took place and not the merits of the acquisition itself. Rajmoni may not have had a title,--indeed no trespasser will have any,--but if she acquired possession by adopting any of the methods contemplated by the expression aforesaid, the case will be excepted from the rule. The findings of the Subordinate Judge go nowhere near such a position. In our opinion, the 12 year rule would apply and it will of course be open to show that any body who was entitled to sue had been precluded from obtaining redress either from minority or other good and sufficient cause: Section 14, Reg. 3 of 1793. As regards the applicability of Act 14 of 1859 we are not inclined to accept the plaintiff's contention that its provisions could have any bearing upon the present case. The question is what were the rights of Biswananda and Bodhananda at the time when Rajmoni died in 1860. Now in 1860, the position was that if a suit instituted within 2 years from 5th May 1859, it would have to be tried and determined as if the Act had not been passed : vide Section 18 of Act 14 of 1859 and consequently it would have to be tried and determined upon the Regulations. Before the two years elapsed and on 1st May 1861, was passed Act 11 of 1861 which suspended the operation of Act 14 of 1859 till 1st January 1862. Consequently Biswananda or Bodhananda's remedy, as at Rajmoni's death in 1860, was not affected by Act 14 of 1859. In support of the contention that it is Act 14 of 1859 that should govern the question, we have been referred to the decision of the Judicial Committee in the case of Falimazulnissa Begum v. Sundar Das  27 Cal. 1004 and the passage in the decision which runs in these words:
According to the terms of this law (meaning Act 14 of 1859) suits by the mortgagors of 1788 were barred on 17th October 1848 unless in the meantime the required acknowledgment was given. The right to sue was kept alive till 1862 ; but as they did not sue, the Act remains unqualified by that proviso.
14. The question that arose in that case was, in our, opinion, entirely different from the question before us. The suit in that ease was by mortgagors to recover the mortgaged property. Their Lordships pointed out that the earliest law which placed a limit of time upon such suits was Act 14 of 1859 which remained in force till repealed by Act 9 of 1871. Act 14 of 1859, Section 1, Clause 15, gave 60 years to the mortgagor to institute a suit for recovery of possession from the time of the mertgage unless there was acknowledgment, in which case it would be 60 years from such acknowledgment. Their Lordships pointed out that by Section 18 of the Act of 1859 coupled with Act 11 of 1861, suits instituted before January 1862 were to be determined as if the' Act had not been passed. Act 9 of 1871 provided the same limits of time for suits of this kind and it added a provision (Section 29) which laid down that at the expiration of the period thereby limited to any person for instituting a suit for possession of any land, his right to such land shall be extinguished. In this connexion their Lordships made the observations quoted above and further observed that the period limited by the Act of 1871 was 17th October 1848, and the title of the mortgagors was extinguished on that day unless they could show a previous acknowledgmerit in writing. The reason why their Lordships said that the right to sue was kept alive till 1862 was because there was no law prior to Act 14 of 1859 which had barred that right. In the present case the whole question is, had Biswananda or Bodhananda or both of them the right to sue in 1860 at the time when Rajmoni died, and it is a different question altogether as the Regulations which were then in force had provided for a suit of that character and would govern that right. The question whether the Regulations merely barred the remedy or also extinguished the primary right itself is a vexed question but as regards possession and dispossession of immovable property in the absence of any statutory provision fixing a longer period of prescription, the law of limitation is practically a law of prescription. That Regulation 3 of 4793 read with Regulation 2 of 1805 has been always understood as meaning that adverse possession for the prescribed period not merely bars the remedy but gives title was said by Peel, C.J., in-Shib Chunder v. Sib Kissen Bannerji  1 Boul. Rep. 70, and the limitation Regulations and Act 14 of 1859 have been understood and interpreted in that way in a large number of authoritative decisions, (e.g. Golam Rusool v. Mt. Mughlo  1 M.I.A. 446 Ounga Gobind Mundal v. The Collector of 24 Parganas  11 M.I.A. 345; Raja Barada Kant Boy v. Pran Krishna  12 W.R. 192, Ram Loshan Chakravarti v. Ram Soonder Chakravarti  20 W.R. 104, Gossain Dass Chunder v Issur Chunder Nath  3 Cal. 224. The contention of either of the parties noted above, in our opinion, cannot be allowed to prevail. The view taken by the Courts below in our opinion, is right.
15. The third contention which is to the effect that the findings of the Additional District Judge as regards the period over which Rajmoni's adverse possession extended as against Biswananda are mere surmises and are' not based on any real matsrials. The Additional District Judge was right in finding that Harananda died about the year 1254. Taking the date as fairly against both the parties as possible, Rajmoni should be taken to have completed only four years of adverse possession by the time that Harananda died. The question, therefore, is whether Biswananda or Bodhananda or both were majors for at least a period of eight years at the time when Rajmoni died in 1267 B.S. (1860). As regards Bodhananda. having remained a minor till long after Rajmoni's death the finding is clear and the evidence sufficient. But as regards the year in which Biswananda attained majority, the Additional District Judge has put it down as 1256 B.S. or soon after. This finding, in our opinion is not based on any accurate process of reasoning but is more or less a piece of unwarranted surmise. The only materials to which he has referred as safe guides are, on the one hand an ammukhtearnama (Ex. 12) dated 13th Jaista 1256 B.S. which describes Biswananda as a minor and certain documents (Exs. 18, 20 and 21) dated 1255 B.S. which also show him as a minor, and on the other hand chitta (Ex 13) of 1262 B.S. which is said to show Biswananda as a major and a registered kabuliat dated 29th Chaitra 1263 B.S. which also shows him as such. From these data he has come to the con clusion that Biswananda attained majority 'soon after the year 1256.' We are unable to follow how that conclusion is arrived at. It is true that the defendants in their written statement did not specifically put the plaintiffs to the proof of the approximate date of Biswananda's attaining majority, and the plaintiffs may justly complain that they were misled by the nature of the defence that was set up as regards the character of Rajmoni's possession ; but after all it is the plaintiff's who have undertaken in this suit to prove that Rajmoni's adverse possession extended against proper persons and for the statutory period. It is clear that the parties should be allowed to give further evidence on this matter should they desire to do so, but the finding of the Additional District Judge so far as this matter is concerned cannot possibly be allowed to stand.
16. The last contention is to the effect that in any view Rajmoni's adverse possession should be taken to be that in respect of a limited interest. The Additional District Judge has gone very fully into this matter and so also the trial Court and they have unhesitatingly come to the definite conclusion upon proper and sufficient materials that her possession was in its character that of a malik and absolute owner. This contention therefore should be overruled.
17. The result is that S.A. No. 496 of 1926 should be dismissed, and S.A. No. 404 of 1926 should be allowed and the case sent down to the lower appellate Court with directions to rehear the appeal after allowing the parties to bring such further materials on the record as they may desire to do, on the only question that now remains to be retried, namely as regards the date when Biswananda attained majority. If the Court comes to the conclusion that Rajmoni lived for at least eight years after that date, the decree of the lower appellate Court will stand, and that decree will be affirmed with costs in this Court and in the lower appellate Court and if it holds otherwise, the plaintiff's suit should be dismissed with costs in all the Courts.