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Gnanendra Nath Sanyal Vs. Srimati Mohendra Mohini Debya - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.884
AppellantGnanendra Nath Sanyal
RespondentSrimati Mohendra Mohini Debya
Cases ReferredAdhar Chandra Pal v. Dibakar Bhuyan
Excerpt:
ejectment - title, proof of--possession, whether sufficient--hindu law--gift to female--estate taken--presumption--adverse possession--title derived from limited owner--possession after owner's death. - .....year. 1305 corresponding with the year 1898. the conveyance was executed by a hindu widow named. soshi sundari. the plaint as originally drawn alleged that soshi sundari derived title to the property from her husband. that was proved to be a mistake, and the plaint was amended and it was alleged that soshi sundari took the property by gift from her father-in-law, ganga narain acharjee, in the year 1271 corresponding with the year 1864. soshi sundari was at' that time a childless hindu widow and apparently, at any rate it is found by the courts below that ganga narain was about to renounce this world and in the view of the lower appellate court, the gift was made to soshi sundari for her maintenance. soshi sundari died in the year 1314. then plaintiff on the , allegation of.....
Judgment:

Fletcher, J.

1. This is an appeal from a decision of the learned District Judge of Nadia reversing a decision of the Munsif of Meherpur. The plaintiff brought the suit, to recover possession of a moiety share of a, garden which had been conveyed to him by a conveyance executed in the year. 1305 corresponding with the year 1898. The conveyance was executed by a Hindu widow named. Soshi Sundari. The plaint as originally drawn alleged that Soshi Sundari derived title to the property from her husband. That was proved to be a mistake, and the plaint was amended and it was alleged that Soshi Sundari took the property by gift from her father-in-law, Ganga Narain Acharjee, in the year 1271 corresponding with the year 1864. Soshi Sundari was at' that time a childless Hindu widow and apparently, at any rate it is found by the Courts below that Ganga Narain was about to renounce this world and in the view of the lower Appellate Court, the gift was made to Soshi Sundari for her maintenance. Soshi Sundari died in the year 1314. Then plaintiff on the , allegation of dispossession by the principal defendant---the dispossession being alleged to have taken place on the 24th October 1911 when a certain order was made tinder the provisions of, Section 145, Code of Criminal Procedure---brought the suit to recover possession, the suit being a common suit in ejectment. Before proceeding further with the case it is well to recognize what the law is as regards a suit in. ejectment. In a suit for ejectment, the plaintiff must rely on the strength of his own title. It is not a suit in which the plaintiff not being in possession asks for being maintained in possession. It is a suit in which the plaintiff must rely on his own title and the defendant, even though a trespasser, can set up the right of a third party. That is well established, and it is further established in this Court by a decision reported as Nisa Chand Gaita v. Kanchiram Bagani (3) that a possessory title except under the provisions of Section 9 of the Specific Relief Act will not in India support a suit in ejectment. That decision has been recognized and has been followed in this Court for a good number of years. It has been recognised so late as 1913 by Jenkins, C. J., in the case of Adhar Chandra Pal v. Dibakar Bhuyan (1). That decision is binding oh us and it is obvious that, unless the case is sent to a Full Bench, we are not entitled to depart from the decisions of another Bench that settled the law which has been followed for a large number of years. In the present case, the Munsif decreed the plaintiff's suit. He found that the plaintiff had established his title and that he had been in possession within twelve years prior to the suit. No other express finding was made in the Court of first instance as regards possession and the Judge simply decreed the suit on the gift plus the finding that the plaintiff had been in possession within twelve years prior to the institution of the suit. The case then went on appeal before the learned District Judge and the only point that was urged before him was that, if there was a gift in favour of Soshi Sundari, it was a gift for maintenance in its strictest sense and did not confer on her an absolute right to dispose of or in any way deal with the property as she thought fit. The gift itself was a verbal gift. The transaction took place prior to the doming into force of the Transfer of Property Act. But that does not make any difference. The presumption in India, as has been laid down in a series of cases, is that a gift to a female for her maintenance confers a life-interest only. There are many oases in support of that proposition. I take the statement from Golap Chandra Sastri's work on Hindu Law, third edition, page 498. There it is stated that the decisions both in the Courts in India and of the Judicial Committee of the Privy Council establish conclusively that a gift for maintenance to a Hindu female, especially if she be a Hindu widow, confers a life-estate only. As to what would happen in the case1 of a male is another matter. There are many oases in the Courts of India showing that, a gift for maintenance by a deed inter vivos in favour of a male does not confer more than a life-interest. However, as regards a female widow, it would require a very strong case to establish that the person making a gift to a childless Hindu widow intended to give an absolute interest a the property. In my opinion, the learned District Judge had ample warrant in this case, there being no evidence other than the fact that the Hindu widow had been given this grant for her maintenance to find that the interest which she took was an interest which she took for her own life. That was the only interest which could he conveyed to the present plaintiff. The interest she conveyed to the plaintiff, therefore, terminated on her death. The plaintiff had no interest in the property other than the possession which he maintained without any title between the death of Soshi Sundari and the dispossession by the defendant. If that be so, I do not understand how person, who had bought a life-interest in a property which terminated at the end of the life for which the estate had been granted, can maintain a suit in ejectment to recover possession of the land on a title which the Court has found has determined. I think the learned Judge in the present case, having found that this was an interest granted to Soshi Sundari for her maintenance, properly came to the conclusion in the absence of other evidence that the estate was, in fact, granted for the life of Soshi Sundari. If it was granted for life and that interest determined when Soshi died in 1314 B. S., the plaintiff has no title to the property. I agree in the view of the learned District Judge in this respect.

2. Then it is suggested that the plaintiff has got a title by adverse possession. I do not know against whom the adverse possession as suggested is claimed. The defendant has been found to be a trespasser. She has succeeded on the ground that she has set up a title of a third party. That the plaintiff's' title can be adverse as against the true owner when he claims under a grant of a life-estate down to 1314, I cannot for one instance accept. Up to 1314, the plaintiff was in possession as under the estate for life of Soshi Sundari and when that has terminated, he cannot add On that period during which he was in possession under a rightful title to the period for which he was in possession under no title. No case has been suggested before us. in support of that view; and, when the learned Vakil put forward such a proposition, I asked him to show us any authority in support of it and he frankly said that he had none. To me it seems to be a novel proposition and one that has not been heard of before. The plaintiff cannot add the period during which he was in possession under the conveyance from Soshi to the period for which he was in possession under no title. In this case, there is no finding as to the plaintiff having been in adverse possession for twelve years or upwards. The finding is on a totally different question, namely, that the plaintiff was in possession within twelve years prior to the suit. But that is not a finding with reference to adverse possession at all. It is a finding which has got nothing to do with the question of adverse possession. A careful study of the two judgments of the lower Courts has satisfied me that there is no finding in either of these judgments as to the plaintiff having been in adverse possession for twelve years or upwards.

3. Another point has been raised, namely, that the plaintiff was taken by surprise when the learned Judge came to the conclusion that the grant was one for life only and that the case ought to be remanded to the lower Appellate Court for evidence to be taken as to the actual form of the grant. The grant was a verbal grant made by a person who has been dead for more than fifty years, and I cannot believe that any honest evidence can be produced before any Court to show what was said by Ganga Charan to his widowed daughter-in-law before he started for good for the holy city of Benares. I think to send the case back on any such footing would be inviting the parties to produce before the Court evidence which, in fact, has no foundation.

4. In my opinion, the present appeal fails and ought to be dismissed with costs.

Smither, J.

5. There should not be a remand, and there being no finding of possession of the plaintiff and his predecessor for more than twelve years, I think the appeal should fail.


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