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Second Appeal No. 94 of 1954, decided on 28th August 1957.
Adverse possession against widow --Whether operates against reversioner‑Limitation Act (IX of 1908), Art. 141
Where there has been no decree against a Hindu widow or other act in law in the widow's life‑time depriving the reversionary heir of the right to possession on the widow's death, the heir is entitled after the widow's death to rely upon Article 141, Limitation Act, for determining the question whether his title is barred by lapse of time.
Mst. Gaggo Bai v. Utsayalal 33 C W N 809 (P. C.) agreed.
Shivagunga case 9 M I A 589 ; Hurrinath Chaterjee v. Mothoor Mohun 20 I A 183 ; Runchordas Vandrawandas v. Parvatibhai 26 I A 71 ; haithialinga Mudaliar v. Sr irangath Anni 52 I A 322 ; Aurabindo Nath Tagor and another v. Monorama Debi 32 C W N 913 ; Srinath Kar and others v. Prasunno Kumar Ghose (sic) I L R Cal. 934 (F. B.) Ram Kali v. Kedar Nath and another 14 All. 156 and vundrawandas v. Cursondas 21 Bom. 647 ref.
T. H. Khan for B. K. De for Appellant.
B. C. Das and R. K. Banik fur Respondent.
‑This appeal is directed against the decision of Mr. A. S. Chowdhury, Subordinate. Judge, Third Court, Mymensingh in Title Appeal No. 255 of 1952 reversing the judgment and decree passed by Mr. D. C. Chakraborty, Munsif; Second Court, Netrakona, in Title Suit No. 61 of 1951.
This plaintiff instituted this suit for a declaration of his title to the suit land to the extent of 1/3rd share therein and for khas possession thereof upon partition 6v metes and bounds. It appears that there is hardly any dispute about the main facts of this case which may be very briefly stated as follows.
The suit land originally belonged to three brothers, namely, Murari, Ardhachandra and Bhuban, in equal shares. Ardha sold his 1/3rd share to his nephew Upendra, son of Bhuban. Ardha is dead and Bhuban died leaving his only son Upendra as his heir. Murari died on 15th Agrahayan. 1355 B. S., leaving his only daughter Chitrasundari. Chitra sundari died on the 4th Pous, 1356 B. S., leaving her son, the plaintiff, as her sole heir. In February 1917, Murari and his brothers obtained a decree, in part, for a declaration of their title to the suit land and for possession thereof against Iswar, the father of the present defendants, in Title Suit No. 1720 of 1915 in the Court of the local Court of Munsif. In appeal, the suit was decreed. In 1918, Iswar executed a deed of agreement for the lease of the suit land for 8 months, in favour of Upendra alone and he erected huts thereon. Those huts were destroyed by fire in Magh, 1348 B. S.
The plaintiff claimed title as a reversioner after the death of his mother, Chitrasundari, who held a limited estate from her father Murari and alleged that the suit land remained fallow after the burning of the aforesaid but and was in the possession of his predecessors.It is further alleged by the plaintiff that the defendants have tried to erect huts in the suit land in 1358 B. S. Hence the suit.
The defendants have traversed the allegations of the plaintiff to the effect that the suit land remained fallow under Murari and others on the destruction of the huts by fire. The main contention of the defendants is that Upendra had acquired title to the suit land by adverse possession for more than twelve years against the said Chitrasundari and, there fore, the present suit was barred.
The learned Munsif observed as follows with regard to the defendants' contention on the point of adverse possession :
"So Upendra's possession became adverse to the interest of Chitrasundari from 1338 B. S. Even if it be taken that Upendra's possession and thereafter defendants' possession became adverse to the interest of Chitrasundari from 1336 B. S., i.e., from the time of lease, still the plaintiff's claim is not barred by limitation and his title did not extinguish by adverse possession by virtue of Article 141, Limitation Act, according to which time began against him only after the death of his mother Chitrasundari on 4th Poush, 1356 B. S., (December 1949). I have already found above that Murari had possession in the suit land till his death and the adverse possession by Upendra or Iswar and the defendants began after the devolution of Murari's share to the female heir Chitrasundari. So, in spite of the adverse possession for any length of time against the said female heir, her title did not extinguish and the cause of action for the reversioner, the plaintiff, arose only after the death of the female heir. Chitrasundari died in 1949 and this suit was filed in 1951, i.e., within 12 years from the death of the female heir."
On the above finding, the learned Munsif decreed the suit of the plaintiff and held that it was not barred by limitation.
Against the judgment and decree passed by the learned Munsif, defendants preferred an appeal which was heard and disposed of by the aforesaid learned Subordinate Judge . The learned Subordinate judge held that inasmuch as adverse possession had started running against Chitrasundari, the owner of the limited estate, during her life‑time and that such adverse possession continued for more than 12 years, the plaintiff could not claim the benefit of Article 141 of the Limitation Act. The learned Subordinate judge held that present suit is barred by adverse possession against the defendants. He, therefore, reversed the findings arrived at by the learned Munsif and allowed the appeal. He dismissed the plaintiff's suit.
Against the aforesaid appellate decree, the plaintiff has preferred this appeal.
The only argument that was addressed to me on behalf of the plaintiff is that the learned Subordinate Judge was
wrong in holding that Article 141 of the Limitation Act did not apply in the present case and that plaintiff's suit was barred by adverse possession of the defendants. In support of his contention, the learned Advocate for the appellant has cited a decision of the Judicial Committee of the Privy Council in the case of Mst. Gaggo Bai v. Utsayalal (33C W N 809 (PC)). Lord Tomlin who delivered the judgment of the Board observed, as follows, at page 820 of the above report :‑
Article 141 of the Limitation Act, 1908, admittedly applied to the claim to recover possession of the houses. The point raised by the defendant upon the construction and effect of this Article is of importance, and is one upon which there has been some difference of opinion in India.
Under Act XIV of 1859, suits for the recovery of immovable property had to be brought within twelve years from the time when the cause of action arose. The Limita tion Act of 1871, which repealed the Act of 1859, employed different language. Article 142 in the Second Schedule of that Act prescribed for a suit for possession of immovable property by a Hindu entitled to the posses sion of immovable property on the death of a Hindu widow a period of limitation of twelve years beginning to run from the time when the widow died. This provision, enlarged so as to cover a suit by a Muhammedan, was reproduced in the Act of 1877, and again in Article 141 of the Act of 1908.
(1) 33C W N 809 (PC)
The judgment of their Lordships' Board in the Shivagunga case (9 M I A 589) established the principle of the representation of the inheritance by a Hindu widow. That case was decided during the currency of the Act of 1859.
In Hurrinath Chaterjee v. Mothoor Mohun (20 I A 183), their Lord ships' Board held that the effect. of the Acts of 1871 and 1877 was not to except from the rule laid down in the Shivagunga decision, the case where a decree had been obtained against a Hindu widow in her life‑time founded upon the law of limitation. Sir Richard Couch. in delivering the judgment of the Board, said : "Their Lordships see no ground for this contention (i.e. that the case was accepted). The words 'entitled to the posses sion of immovable property' refer to the then existing law."
It is therefore established by this decision that where a decree founded upon the law of limitation is obtained against the widow in her life‑time, the reversionary heir is barred and does not get the benefit of Article 141.
The question raised by the present case is whether the same result follows where there has been no decree, though at the death of the widow a stranger has been in adverse possession for twelve years or more.
In Their Lordships' judgment where there has been no decree against the widow or other act in the law in the widow's life‑time depriving the reversionary heir of the right to possession on the widow's death, the heir is entitled, f after the widow's death, to rely upon Article 141 for the purpose of the determination of the question whether the title is barred by lapse of time. To hold other wise' would, in their Lordships' opinion, in effect, compel the Court, in determining a question within the scope of the Article, to ignore the express words of the Article.
But their Lordships are further of opinion that the point
is already concluded by the judgment of their Board in
Runchordas Vandrawandas v. Parvatibhai (26 I A 71). In that case,
a testator, who died in 1869, leaving two widows, devised
the whole residue of his estate to trustees for dharam.
One widow died in 1871 and the other died in 1888.
After the death of the second widow, the heir of the
testator sued for a declaration that the devise to dharam was
void and for administration. The High Court held that
the gift in dharam was invalid and there was an intestacy.
The High Court further held that the possession of the
trustees for dharam since the testator's death had been
adverse as against the widows and the heir but that the
plaintiff's claim to the immovable property was barred by
limitation. On appeal to His Majesty in Council, their
Lordships' Board held that Article 141 of the Act of 1877
(1) 9 M I A 589 (2) 20 I A 183
(3) 26 I A 71
(now reproduced in Article 141 of the Act, 1908) applied to the immovable property, and that under it time
the death of the second widow, and that, therefore, the plaintiff in the suit was not barred by limitation. It was also held that . Article 120 of the Act, 1877 (now repro duced in Article 120 of the Act, 1908) applied to the movable property, and that the right of the plaintiff in the suit to sue under that Article only accrued on the death of the second widow, and was, therefore, also not barred.
The case of Vaithialinga Mudaliar v. Srirangath Anni (52 1 A 322: A I R 1925 P C 249) illustrates' the application of the rule in the Shivagunga case, where a decree founded upon adverse possession has been obtained against a Hindu widow in her life‑time. The decision is not, in their Lordships' judgment, in con flict with that in Runchordas Vandrawandas v. Par vatibhai in which no decree had been obtained against the widow, nor had there been any other 'act In the law in the life‑time of the widow destroying the heir's interest."
Mr. B. C. Das appearing for the respondents has argued that inasmuch as adverse possession started running against the Hindu female, namely, Chitrasundari, and that inasmuch as such adverse possession continued for more than 12 years during her life‑time, the plaintiff who became the rever sioner on the death of Chitrasundari could not pray in aid Article 141 of the Limitation Act. In support of his con tention, he has relied on a decision of the Calcutta High Court in the case of Aurabindo Nath Tagore and another v. Monorama Debi (32 C W N 913). In this case it was field that according to the common law of Hindus, as now settled by authorities, loss by a widow of her husband's property, Whether movable or immovable, through adverse possession or an adverse decree, operates as a loss by the reversioners. It was further held that this rule has been _leirher abrogated nor varied by any legislative enactment such as Article 141 of the Limitation Acts of 1877 and 1908. Page, J., also observed that there is no .difference in principle between the loss of the reversioners' rights by an adverse decree against the widow holding the estate and the loss of such rights by adverse possession against her without there being any decree. The rights of the reversioners would be equally barred. It will be noticed that in the aforesaid case, Page, J., did not follow the decision of the Judicial Committee of the Privy Council in the case of Runchordas Vanarawandas and others v. Parvatibhai and others. The only reason given by Page, J., for not following the aforesaid Privy Council decision is a passage cited from,a decision of the said judicial Committee in the case of Vaithialinga Mudaliar and others v. Srirangath Anni and others. In anaiysing the said Privy Councii decision,
Page, J., observes as follows :‑
"After analysing the material cases, and ‑pressing
(1) 52 1 A 322: A I R 1925 P C 249
(2) 32 C W N 913
approval of the law as laid down in the earlier authorities, Sir John Edge observed that 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 Shivagunga's case as sound Hindu Law where that rule was applicable."
It is interesting to observe that Page, J., did not follow a series of decisions of the Indian High Courts which held the contrary view, namely, a Full Bench decision of the Calcutta High Court in the case of Srinath Kar and others v. Prasunno Kumur Ghose ((sic) I L R Cal. 934 (F B)), a Full Bench decision of the Allahabad High Court in the case of Ram Kali v. Kedar Nath and another (14 All. 156), and a decision of a Division Bench of the Bombay High Court in the case of Vundrawandas v. Cursondas (21 Bom. 647). The answer to the arguments advanced by Page, J., is to be found in a later Privy Council case which has been cited above, namely, the case of Mst. Gaggo Bai v. Utsaya Lai. I have extensively quoted above from the observations of Lord Tomlin who delivered the judgment of the Board. With the observations quoted above, I respectfully agree and I hold that the plaintiff's case is not barred by adverse posses sion of the defendants during the life‑time of the Hindu female who was a limited owner, namely, Chitrasundari. I hold that Article 141 of the Limitation Act does apply to this case. Inasmuch as the said Chitrasundari died in 1949 and this suit was filed in 1951, it is not barred by the law of limitation.
For reasons stated above, I allow this appeal and set aside the judgment and decree passed by the learned Subordinate Judge. The judgment and decree passed by the learned Munsif is affirmed. 1, however, make no order as to costs.
Z. A. s. Appeal allowed.
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