Gunderao and another vs Venkamma and others

Manohar Pershad, J.—A Division Bench consisting of myself and my learned Brother Vithal Rao Deshpande J., had referred the case to the Pull Bench as an important question of Hindu Law was involved. The Full Bench in turn referred the following questions for consideration to the Higher Bench :

(i) Where a Hindu widow, not entitled to inherit an estate, enters into possession of the estate and remains in possession for the statutory period, what would be the nature of the estate taken by her :

(a) in a case where she asserts her title as an absolute owner and

(b) where she does not assert her absolute title.

We heard the elaborate arguments of the learned advocates. Shri Vinayak Rao Vaidya, the learned advocate appearing for the plaintiff urges that possession of defendant No. 1 does not become adverse as she was in possession as a widow of the family. Defendant No. 1 came into possession, it is submitted, as the daughter-in-law of one Bhimanna and as she was entitled to get possession of the property in lieu of her maintenance after the death of her father-in-law, her possession cannot be treated as adverse.

The second contention is that even if it be held that the possession of defendant No. 1 is adverse, the property does not in any event become her stridhan property but will be deemed to be an accretion to her late husband''s property. Reliance is placed on the cases of -- '' AIR 1924 121 (Privy Council) -- ''Gaya Din v. Badri Singh'', ILR (1943) All 230 (B); -- ''Pandappa Mahalingappa v. Shivalingappa Murteppa'', AIR 1946 Bom 193 (C); -- '' Goswami Shri Maganlalji Gordhanlalji Maharaj Vs. Goswami Shri Purshottamlalji Wagheshalalji Maharaj, ) AIR 1930 504 (Lahore) and -- ''Chattar Singh v. Roshan Singh'', AIR 1946 Nag 277 (F).

On behalf of the respondents it is contended that the possession of defendant No. 1 is adverse and the suit property becomes her stridhan. Reliance was placed on an unreported case of Full Bench of this High Court, namely, -- ''Bomakunti Seshia v. Godmadla Anantappa'', Appeal No. 22/1337F., D/- 18th Isfandar 1339F. (Hyd) (G), and also on the cases of -- AIR 1927 138 (Oudh) -- ''Chandrashekhar Singh v. Jagjivan Bakhsh Singh'', AIR 1929 Oudh 215 (I); -- ''Mata Baksh Singh v. Ajodhiya Baksh Singh'', AIR 1936 Oudh 340 (J); -- Uman Shankar and Another Vs. Musammat Aisha Khatun, ) and - Kali Charan and Others Vs. Musammat Peare alias Peari and Others, B. Budhram Rai Vs. Benarsi Rai and Others, - Ulfat Rai Vs. Sm. Kamla Devi and Others, and -- ''Venkat Bhatt v. Manik Bhatt'', 36 Deccan LR 109 (O).

For a correct appraisal of the respective viewpoints of the learned advocates, a brief reference to the facts is necessary :

One Gorwar Hanumanth Rao filed a suit against Venkamma, Ratnamma and Anant Vithal Rao, for a declaration that the sale-deed executed by Venkamma, defendant No. 1 in favour of defendant No. 2 is ineffective, stating inter alia that the plaintiff is a reversioner, that defendant No. 1 who is the wife of Baiia was in possession of the suit property as a widow, her husband having predeceased his father, Bhimanna. The succession (Virasat) was sanctioned in the joint names of Bhimanna''s widow Achamma and defendant No. 1, the daughter-in-law, and after the death of Achamma, defendant No. 1 came into possession of the suit property. Defendant No. 1 it is alleged, transferred the lands bearing survey Nos. 246, 249, 250 and 251 in favour of defendant No. 2. As the plaintiff is a reversioner, and the existence of the sale-deed is injurious to his rights, he is entitled to a decree. Defendant No. 3 is a remote reversioner and is impleaded as a pro forma defendant.

Defendants Nos. 1 and 2 in their written statements, denied the relationship of the plaintiff and his connection with the defendant''s family. It is, however, admitted that the husband of defendant No. 1 pre-deceased his father and that succession (virasat) was sanctioned in the joint names of Achamma and defendant No. 1, but it is claimed that defendant No. 1 remained in sole and exclusive possession after the death of her father-in-law and that her possession was adverse. As regards the transfer in favour of defendant No. 2, it was pleaded that it was for family necessities. Defendant No. 3 did not appear and so he was set ex parte. The plaintiff''s rejoinder was a mere denial of the allegations of the defendants in their written statements.

On these pleadings, the trial court framed issues and parties led evidence. The trial Court, on a consideration of the evidence, decreed the plaintiffs suit holding that the plaintiff is a reversioner and that the defendants have failed to establish their adverse possession.

Defendants went in appeal. The appellate court allowed the appeal of the defendants and dismissed the plaintiff''s suit having held that the possession of the defendants is adverse. This second appeal has been filed on behalf of the legal representatives of the plaintiff. The case initially came up for arguments before a Division Bench consisting of myself and my learned Brother Vithal Rao Deshpande, J., and having regard to the important questions of Hindu law involved, we referred the case to a Pull Bench. This reference to a larger Bench was occasioned on account of the fact that the Pull Bench of three Judges in the unreported case ''Appeal No. 22 of 1337F. (G)'', had held following the decisions of the Privy Council in the cases of -- ''Mt. Lachhan Kunwar v. Manorath Ram'', 22 Ind App 25 (PC) (P); -- ''Sham Koer v. Dah Koer'', 29 Ind App 132 (PC) (Q) and -- '' AIR 1924 121 (Privy Council) that the widow''s possession would take an absolute estate in the property which would become her stridhan property.

It cannot be denied that there can be adverse possession by a widow of the property belonging to the joint family, but the fact whether the possession is adverse or not has to be decided on the merits of each case. The true test is furnished by the character in which the widow steps into possession. If she enters into possession, not as a widow of the last male owner or as a widow of the family, the possession would be deemed to be adverse. If on the other hand, she enters into possession as a widow of the last male owner or as a widow of the family, her possession can never be treated as adverse.

It is true that possession, unless it is based upon title, may become adverse but the possession of a Hindu widow has to be treated on a different basis in view of the peculiar incidents attached to a Hindu widow''s estate. Whether the possession of a Hindu widow is adverse or not has to be decided with reference to what was her "animus possidendi" that is, did she assert an absolute title in herself or did she claim such right as an heir of any person? The latter would be the ordinary presumption and those who claim that she had anything more than a mere widow''s limited interest, must prove the fact as to when she began to assert her absolute title in herself.

The test is always to be found in the origin of the widow''s possession. When she enters on land under a title as an heir, it is necessarily a limited title under the Hindu Law. Very cogent evidence is, therefore, necessary to show that she was asserting her title as an absolute owner. In view of the presumption above referred to, the question arises as to whether this rule would apply to one who is not entitled to inherit the estate as a widow of the last male owner.

The earliest case cited on this point, is the case of -- ''22 Ind App 25 (PC) (P)''. In this case one Jit Kunwar the widow of Mangal Singh, came into possession of the property to the exclusion of the son Prahlad Singh. Lachhan Kunwar, the widow of Prahlad Singh, filed a suit for possession. It was found by the Judicial Commissioner''s Court that there was no evidence to show that the widow took possession as a widow but there was evidence of the fact that she always treated the property as her own property, not the estate of a Hindu widow. On appeal the Privy Council held that the possession of the widow, Ajit Kunwar, had become adverse and that the suit was barred by limitation.

Another case which came up for consideration before the Privy Council is the case of -- ''29 Ind App 132 (PC) (Q)''. In this case the widow and the daughter-in-law entered into possession and after the death of the widow, the daughter-in-law continued to be in possession, and executed a Hibanama (gift-deed) in favour of one Sajju Pershad Singh. Mutation of names was also effected. In a suit for declaration that the gift-deed (Hibanama) was invalid it was held by their Lordships of the Privy Council that the widow and the daughter-in-law, being widows of members of a joint family, were only entitled to maintenance and their continuous possession would be adverse to the reversioners unless it was established that such possession was the result of an arrangement with them.

The third case of the Privy Council is the case of -- ''Satgur Prasad v. Rajkishor Lal'', AIR 1919 PC 60 (R). In this case it was held by their Lordships of the Privy Council that the suit was barred by limitation and that the ownership was absolute.

The next case is that of -- AIR 1924 121 (Privy Council) The facts of the case are that Jawaharmal, the last holder,'' died leaving three wives but at the time of his death, he had no children : albeit a posthumous son was born, it is alleged, to his eldest wife, called Hira Nand who died after a few months. He undoubtedly had a posthumous daughter also by his second wife who was plaintiff in this action. He had three brothers, the eldest Bhim Sen who in turn had two sons Hemraj and Jamiat Raj. The other two brothers were Ram Bhuj and Gowher Sen who both had sons and grandsons who were some of the respondents in the case. He and his brothers were possessed of considerable property, ancestral and otherwise. After his death, his widows were entered in the settlement record as proprietors of a fourth share.

In 1865 a new settlement was being made and in furtherance of the entries to be made therein an action was raised by Hemraj in 1867 asking that the entries of all parties except himself should be deleted in respect of certain moazas. Hem Raj raised the action in two capacities: he was sole heir of his father Bhim Sen, his brother Jamiat having renounced all his rights in his favour, and he was also, he alleged, the adopted son of Jawaharmal and as such his heir. The first question that had to be determined was whether the mouzas as to which he made exclusive claim were the separate property of Bhim Sen and Jawaharmal or whether they were family property. This claim was finally decided in 1869 and the widows were duly entered as proprietors of certain moazas.

The elder of the two widows died in 1900. On her death, the daughter of the, daughter of the second wife filed a suit to have her right declared to the moazas as heir of her father Jawaharmal. The suit was resisted by the various descendants of Jawaharmal''s brothers who claimed as heirs of Hira Nand to whom the property went on birth after his father''s death. They alleged that the long possession of the widows was only by reason of an arrangement with them that they should hold the moazas as maintenance. The plaintiff denied that Hira Nand ever existed. The District Judge held that Hira Nand had never existed. On appeal the learned Judges of the Chief Court, reversed that judgment and found that Hira Nand did exist and that in consequence the respondents were entitled as heirs to the estate.

On appeal to the Privy Council it was argued that the possession of the widows was adverse and the respondents'' title was destroyed by S. 28, Limitation Act. It was laid down by their Lordships of the Privy Council that:

The Hindu widow is not a life-rentor but had a widow''s estate, that is to say, a widow''s estate in her deceased husband''s estate

If possessing as widow she possesses adversely to any one as to certain parcels, she does not acquire the parcels as stridhan but she makes them good to her husband''s estate. The result is the moazas are Jawaharmal''s estate and the plaintiff is entitled as heir to her father to take them.

The observation of the Privy Council that she does not acquire the property as stridhan was the subject of discussion in the various High Courts as will be seen in the following paragraphs. Some High Courts have followed this decision and laid down that if a widow enters into possession as a widow of the last male holder or as a widow of the family, her possession must be treated to be an accretion to the estate of her husband; that is, she prescribes for a limited interest : whereas the other High Courts have held that her possession becomes adverse and the property so prescribed will be her stridhan.

The question of the nature of the widow''s possession came up for discussion before the Allahabad High Court in the cases of -- Kali Charan and Others Vs. Musammat Peare alias Peari and Others, '', Ram Sarup Singh and Another Vs. Mohan Singh and Others, "Chandrabali Pathak v. Bhagwan Prasad'', ILR (1944) All 533 (T); '' B. Budhram Rai Vs. Benarsi Rai and Others, and '' Ulfat Rai Vs. Sm. Kamla Devi and Others,

- Kali Charan and Others Vs. Musammat Peare alias Peari and Others, was a suit for the cancellation of two deeds of gift executed in favour of defendant Brijbasilal by Mt. Ram Piyari and Mt. Ram Lalli respectively. They were the widows of two brothers who formed a joint family with a third brother Bhagwan Sahai. The husbands of two mussamats pre-deceased their father. Bhagwan Sahai alone survived his father and became, in law, the sole owner of the joint family property. On the death of Ramdin, the father, the names of the two mussamats were entered in the revenue papers as proprietors along with Bhagwan Sahai. The plaintiffs'' case was that the names were recorded merely for their consolation as they were entitled to maintenance. The Subordinate Judge found this to be the case but the District Judge held that they were in actual proprietary and adverse possession. On appeal it was held by Deniel and Neave, JJ. that:

A widow of undivided brother holding portion of joint property for over the statutory period can acquire full ownership of that portion by adverse possession and not only a widow''s estate.

In this case -- ''Lajwanti''s case (A)'', has been distinguished and the other Privy Council decision in the case of -- '' AIR 1919 PC 60 (R)'', was followed.

The next case, namely, Ram Sarup Singh and Another Vs. Mohan Singh and Others, , was a case of similar import. In this case Bhairo Singh died leaving widow Mt. Parewa who held a zamindari share of one anna six pies. Bhairo Singh was separated from his nephew, Kumar Singh, who died three weeks after the death of Mt. Parewa. Mt. Asumedha''s name was entered in the zamindari share of her husband, Kumar Singh. She (Mt. Asumedha) executed a gift-deed in favour of Ram Sarup and Udit Singh, defendants 1 and 2. The plaintiff, as nearest reversioner of Kumar Singh, filed a suit claiming a two annas zamindari share. The trial court held that Mt. Asumedha''s possession became adverse and she acquired an absolute title as full owner of one anna six pies share and not merely the limited estate of a Hindu widow. On appeal it was held by Bennet and Collister, JJ. that:

what claim the widow had put forward at the time she entered into possession had to be established by evidence in the absence of which by adverse possession she had acquired absolute title to the property other than the one inherited from her husband wherein she had only the estate of a Hindu widow.

In this case also ''Lajwanti''s case'' (A) has been discussed and distinguished.

The next, -- '' ILR (1943) All 230 (B)'', was a case of an appeal. The suit in this case was brought by Badri Singh for possession and mesne profits alleging that the property belonged to Debi Singh who separated from his two brothers Jaggu Singh and Beni Singh by partition. Plaintiff was the son of Badri Singh. Debi Singh had a son Ramnath Singh, the husband of Janki Kuer who had executed a gift-deed, but had died before his father Debi Singh. When Debi Singh died, his wife Siddan Kuer, was alive as well as his daughter-in-law, Mt. Janki Kuer. Some, if not all, of the property of his (Debi Singh) was at his death entered in the name of Siddan Kuer and when she died, Janki Kuer applied for mutation in her stead and an objection was raised by Badri Singh that the property belonged to Jaggu Singh.

The learned Civil Judge found that Mt. Janki Kuer had only claimed a life interest so that at her death the property went to the reversioner to the estate of Debi Singh, namely, the plaintiff. On appeal it was held that:

A Hindu woman under the Mitakshara takes by inheritance only a limited or qualified estate. Whether the property is inherited by her from a male or from a female she takes it not absolutely as her Stridhan, but a qualified estate alienable only under the conditions applicable to such an estate and with reverter after her death to the heirs of her predecessors in title.

The fourth case of the Allahabad High Court is the case of -- '' ILR (1944) All 533 (T). It has been laid down by Justices Plowen and Sinha in that case that:

Possession, unless it is based upon title, must be deemed to be adverse, but the possession of a Hindu widow must be treated on a different basis. A true test has always been furnished by the character in which she steps into possession. If she has entered possession not as a widow of the last male owner or as a widow of the family, the possession will be deemed to be adverse. But if she has entered into possession as a widow of the last male owner or as the widow of the family, her possession cannot be treated as adverse.

The next case is the case of - B. Budhram Rai Vs. Benarsi Rai and Others, wherein Sinha J., has held that:

There can be no adverse possession without an animus to prescribe : the question of animus is a question of personal equation and all depends upon the will of the person in possession. It has no relation to any one else. Hence so long as the intention to prescribe is lacking, the question as to whether the possession was with the permission of the proper person or of some other person is immaterial.

The last case of that Court is the case of - Ulfat Rai Vs. Sm. Kamla Devi and Others, '',. Mustaq Ahamed J. held:

The question of the widow''s possession as a limited owner can arise only if she claims through the last male owner, that is to say, if she is his heir and not otherwise, and a fortiori, if she is not the heir of the last male owner and does not claim through him but is the widow of the predeceased son of the last male owner, her possession is adverse to the heirs of the last male owner, and after the lapse of 12 years the property becomes her stridhan, descendible on her own heirs.

In this case too the Privy Council cases have been discussed and ''Lajwanti''s case (A)'' has been distinguished.

Similar discussion had arisen in the Oudh Court in the cases of - AIR 1927 138 (Oudh)

In the case of -- '' AIR 1927 Oudh 138 (H)'', Misra and Raza, JJ. held:

When a Hindu widow who would not be entitled to anything more than maintenance out of her husband''s estate, obtains possession of the property not as the result of an arrangement with the husband''s heirs but absolutely in her own right, her possession becomes adverse to them and their rights are barred at the expiration of 12 years from the date of her husband''s death.

In this case also the Privy Council decision in ''Lajwanti''s case (A)'' was distinguished and the other Privy Council case 29 Ind App 132 (PC) (Q) was followed.

In -- '' AIR 1929 Oudh 215 (I)'', the question of the widow''s estate again came up for discussion before Misra and Nanavati, JJ. It was held:

It is a settled rule of law that the possession of a Hindu female in respect of the property to which she has come into possession but is not entitled to it by way of inheritance under the Hindu Law, must be deemed to be adverse to the reversioners and cannot be considered to be that of a mere life estate holder unless an arrangement or an agreement to that effect is proved to have been arrived at between her and the reversioners or unless she herself declares that she holds only as a limited owner possessed of a life estate.

In the case of AIR 1936 Oudh 340 (J), Thomas, J. of the Oudh Court relying on the decision of the Privy Council in the case of 29 Ind App 132 (PC) (Q) held that:

Where possession is not founded on rights, the party who wishes to say that such possession was not adverse has to prove that it was with his consent. Possession of female when it is without right is prima facie adverse leaving it to the person alleging that it is not adverse to prove so.

In this case also ''Lajwanti''s case (A)'' has been discussed and distinguished on similar grounds as in the previous Oudh decisions.

-- '' AIR 1946 Oudh 38 (U)'', was also a case of a Hindu widow''s possession. It has been laid down by Misra and Madeley, JJ. that

where a Hindu female not being entitled to possession of family property enters into possession of such property and enjoys such property for the statutory period, she will ordinarily prescribe for an absolute title to the property and not merely for the limited estate of a Hindu widow, unless it is shown that she was in possession under some arrangement with the persons entitled to the property, or that she was prescribing only for a limited interest. Where she has been in possession in assertion of full ownership, the mere fact that she says that she got the property from her husband will not show that she only prescribes for a limited interest.

The Lahore High Court in the case of - AIR 1930 504 (Lahore) '', has laid down that:

A widow''s possession becomes adverse and her husband''s reversioners would be entitled to succeed to it on her death. (Sic)

In this case reliance was placed on ''Lajwanti''s case (A)'' but there is no discussion of the other Privy Council decisions.

AIR 1934 270 (Lahore) was a case wherein similar discussion had arisen and it was held by Shadilal C. J., and Rangi Lal, J., that:

When a Hindu widow who has no right to a widow''s estate remains in possession of the property for more than 12 years, she must be regarded as an absolute owner.

In this case ''Lajwanti''s case (A)'' has been distinguished. Though in both the Lahore cases Shadilal, C. J., was one of the Judges still he seems to have taken a different view in the latter case probably on the ground that there should be a distinction between a case where the widow not entitled to inherit gets into possession and a case where the widow entitled to inherit enters into possession.

Dowson Miller, C. J., and Foster, J., have held in the case of -- '' Jagmohan Singh and Others Vs. Prayag Narayan Singh and Others, that:

Property held by a Hindu widowed daughter-in-law claiming as a widow of the deceased husband''s estate becomes an accretion to her late husband''s estate and not her stridhan and any alienation by her of such property is voidable at the option of the heirs of her father-in-law.

In another case of the Patna High Court, -- Suraj Balli Singh and Others Vs. Tilakdhari Singh and Others, Kulwant Sahay and Macpherson, JJ., held that:

When a Hindu widow is in possession of any property by adverse possession then the property would become her stridhan and it was only if the property was held in possession by a Hindu widow claiming as the widow of her deceased husband that the property becomes an accretion to her husband''s estate.

In this case the Privy Council decision of ''Lajwanti''s case (A) has been distinguished and the previous Patna case - Jagmohan Singh and Others Vs. Prayag Narayan Singh and Others, has been followed.

A similar question had come for discussion before the Bombay High Court in the case of -- '' AIR 1946 Bom 193 (C)'', and following the decision of ''Lajwanti''s case'' (A), Lokur, J., held that:

the ordinary presumption regarding the possession of a Hindu widow is that she holds the estate as a widow''s limited estate. Very cogent evidence is necessary to show that the widow asserted her title as an absolute owner and there is no difference in the fact whether the widow claims wrongful possession.

In this case there is no reference to the other Privy Council decisions -- '' AIR 1919 PC 60 (R)'', 22 Ind App 25 (PC) (P) and 29 Ind App 132 (PC) (Q).

In -- Goswami Shri Maganlalji Gordhanlalji Maharaj Vs. Goswami Shri Purshottamlalji Wagheshalalji Maharaj, , Coyajee, J., relying on the case of - AIR 1924 121 (Privy Council) has held that:

Where a Hindu widow enters into possession of the estate of her deceased husband in her capacity as limited heir, she can hold any part of it adversely to third parties and therefore in the interests of the real reversioner or reversioners. Entering upon the estate in that limited capacity and holding such limited estate she cannot enlarge it against the reversioners and hold it so as to make it part of her stridhan.

In the case of -- '' AIR 1946 Nag 277 (F)'' the question of the nature of the possession of a Hindu widow had come up for decision. It was held by Grille C. J., and Hemeon J., that:

Where a widow governed by Hindu Law has entered on the estate as a qualified heir she cannot subsequently prescribe by adverse possession an absolute title to it.

In this case there was a reference to the four Privy Council decisions.

Similar discussion regarding the nature of the possession of the widow had arisen in this Court also in certain cases. In the case of -- ''Peeraji v. Baga Bai'', 24 Deccan LR 588 (Y), Nawab Asghar Yar Jung Bahadur and Raja Bahadur Bishweshwarnath, JJ., following the principle of ''Lajwanti''s case'' (A) have held that:

the widow does not get an absolute estate by adverse possession and the property which she acquires by adverse possession becomes an accretion to the estate of her husband''s estate.

In another case -- ''Gyanji v. Manda Bai'', 24 Deccan LR 512 (Z), a similar view has been expressed by Raja Bahadur Bishweshwarnath and Nawab Musahib Jung Bahadur, JJ. that:

The estate acquired by a Hindu widow by adverse possession does not become her absolute estate, but is an accretion to her husband''s estate.

In the unreported case of the Full Bench -- ''Bomakunti Seshia v. Godmadia Anantappa'', (G), it has been held that:

the possession of the widow is adverse and it becomes her stridhan property also.

Thus from the above discussion it is clear that there are four Privy Council decisions with regard to the question under discussion. The Oudh and Allahabad Courts have followed the decision in the Privy Council case of -- ''Satgur Prasad v. Raj Kishore Lal'', (R), which the High Courts of Bombay, Patna, Nagpur and Lahore as also this Court have followed the Privy Council decision of -- ''Lajwanti v. Safa Chand'', (A). It may be pointed out that the Full Bench of this Court has relied on the three decisions of the P. C., and has held that the property which she gets through adverse possession becomes her stridhan property. In the last two cases it has been held that the property becomes her stridhan property while in the first case it has been laid down that it becomes an accretion to her husband''s estate.

In the Full Bench case of this Court there does not appear to be any detailed discussion regarding this point. It may also be pointed out that in ''Lajwanti''s case'' (A) also there is no reference to the previous Privy Council decisions of -- '' AIR 1919 PC 60 (R)'', 29 Ind App 132 (PC) (Q) and 22 Ind App 25 (PC) (P).

Before deciding the possession of the widow as adverse it has to be seen, as stated above, what was her "animus possidendi": did she assert absolute title in herself or did she claim as heir of any person? Ordinarily, the presumption would be that she claimed as heir of some person of the family. The party who claims that she had anything more than a mere widow''s limited, interest, will have to prove that she had an absolute title. This can be shown by some overt acts on the part of the widow. In the Oudh and the Allahabad cases relied upon by the learned advocate for the respondents, her ''animus qua possession'' was indicated by certain overt acts on behalf of the widow. Naturally such overt acts are clear proof of assertion of absolute ownership in the property. In the absence of any such overt acts of the widow, it is very difficult to come to the conclusion that the widow takes any absolute interest for, the normal presumption is that the widow takes the property as a limited owner.

In the Oudh and the Allahabad cases a distinction has been drawn between a case where the widow entitled to inherit enters into possession and a case where the widow not entitled to inherit gets into possession. Those Courts have kept this distinction in deciding the cases that came up before them. They were guided by two criteria and distinguished the Privy Council ''case of Lajwanti'' (A), accordingly:

(a) Was the widow claiming a widow''s estate in her husband''s property when she entered into possession?

Or

(b) Did she claim anything more than a widow''s estate or never asserted an absolute title?

Keeping the above distinction they have held that what can be deduced from the decision in ''Lajwanti''s case (A)'', is that a widow governed by Hindu Law entering into possession as a qualified heir cannot possibly prescribe an absolute title by adverse possession, that is to say, she cannot enlarge her right in the property having once claimed a limited estate. They further pointed out that it cannot be said that their Lordships of the Privy Council meant to lay down any absolute rule that a widow in possession under no circumstances could claim adverse possession.

A similar argument was advanced before us also. To our mind it does not make any difference whether a widow enters into possession as a widow of the last male owner or as a widow of the Hindu family. In both the cases the governing factor would be the ''animus''. If there is no evidence to show that the widow claimed the property as an absolute owner, the property would be deemed to be an accretion to the estate of the last male owner. If on the other hand there is any evidence on record to show that she asserted a title in herself, she can prescribe to the property an absolute interest which would be her stridhan property and not an accretion to a limited widow''s estate.

Possession ordinarily cannot) be considered as adverse if it can be referred to a lawful title. In such a case the general rule that a party is always presumed to possess for himself will not be applicable. This principle was elucidated in -- ''Thomas v. Thomas'', (1855) 2 K & J 79 (Z1). The facts of that case were that a father entered upon the estate of his infant children; it was held that the presumption was that he entered as a guardian and bailiff and therefore the "Statute of Limitation" did not begin to run against the children until they attained 21 years.

Therefore, our answer to question No. 1 is that the nature of her estate (a) taken by a Hindu widow where she asserts her title as an absolute owner, from the very beginning of her possession, it becomes her absolute property and (b) where she does not assert her absolute title, it does not become her absolute property but becomes an accretion to the estate of the last male owner. The foregoing answer of ours may be sent to the Pull Bench.

Qamar Hasan J :

I have had the advantage of perusing, the opinions and answers formulated by my learned brothers Srinivasachari and Siadat Ali Khan JJ. to the question referred to this Bench. I entirely agree with Srinivasachari J., and desire to add a few observations of my own. I need not recapitulate the facts which with appropriate brevity are stated in the judgments of my learned-brothers.

This reference was necessitated by the fact that one of us, sitting in the Division Bench, doubted the correctness of a Pull Bench Decision, in the unreported case of Appeal No. 22 of 1337F. (Hyd) (G). In that case, on facts substantially similar to the facts of this case, a question in terms analogous to the one before us was referred to a Full Bench. The learned Judges following the decisions of the Privy Council in -- ''29 Ind App 132 (Q)''; -- '' AIR 1919 PC 60 (R)''; and - AIR 1924 121 (Privy Council) held that the possession of a Hindu female who is not an heir, for a period of more than twelve years, would be deemed to be adverse and she would prescribe for an absolute estate.

On the arguments advanced before the Division Bench on behalf of the appellant, it was considered that the decision in the case of -- '' AIR 1924 121 (Privy Council) , would seem to override the previous decisions of the Privy Council inasmuch as it has been held therein that the Hindu widow is not a life renter but has a widow''s estate. If possessing as widow, she possesses adversely to any one as to certain parcels, she does not acquire the parcels as stridhan but she makes them good to her husband''s estate. I for my part while sitting in the Division Bench, held, the view that technically a widow''s estate was invariably an estate of inheritance, therefore a Hindu female who does not hold such estate cannot be said to prescribe for an estate which she never inherited and consequently previous decisions of the Privy Council despite the pronouncement in -- ''Lajwanti v. Safa Chand (A)'', lay down correct law and the answer formulated by the Pull Bench of this Court in -- ''Bomakunti Seshia''s case (G)'', was apparently open to no objection.

After hearing the learned Advocate for the appellant at great length, I see no reason to modify my view which I had tentatively taken in my concurring order of reference.

The crucial fact in the case before their Lordships of the Judicial Committee was that on the death of Jawahar Mal, his widows (belt noted) entered into possession of the property as Hindu widows. They were the legal heirs at the time of Jawahar Mal''s death. No doubt, a posthumous son was subsequently born but at the time of his death, he had no children. The posthumous son also died after two months. There was nothing to show that the widows had at any time afterwards asserted any absolute title to the property and under those circumstances, their Lordships came to the conclusion that the title acquired by adverse possession was only that of a limited interest of a Hindu widow.

It would thus be clear that their Lordships of the Privy Council were dealing with a case in which a widow entered into possession ''as an heiress'' under the Hindu Law but subsequently she became disentitled to retain possession''. Initial entry as a lawful heiress and subsequently being disentitled to retain possession by reason of the birth of a posthumous son were the two determining factors for holding that adverse possession by the widow must be considered as relating to a widow''s estate under the Hindu law. The extension of the ratio decidendi of ''Lajwanti''s case (PC) (A)'', to a Hindu female not entitled to inherit would involve the assumption that she also inherits what is technically called a "widow''s estate" or "woman''s estate". The late Sir Dinshah Mulla in para. 176 of his classical treatise on Hindu law says that the estate taken by a Hindu widow in property ''inherited'' by her from her husband is called a "widow''s estate" or "woman''s estate". The estate taken by every other limited heir is similar in its incidents to a widow''s estate.

In the case of -- ''Bijoy Gopal v. Krishna Mahishi Debi'', 34 Ind App 87 (PC) (Z2), it was held that a Hindu widow is not a tenant for life but is ''owner'' of her husband''s property but subject to certain restrictions on alienations and subject to its devolving upon her husband''s heirs upon her death.

To bring out the exact scope of the expression "widow''s estate" I may refer to the case of -- ''Moni Ram Kolita v. Keri Kolitani'', 7 Ind App 115 (PC) (Z3). In that case, their Lordships observed at p. 154 that according to the Hindu law, a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or survivorship does not take a mere life-estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest. Her estate is an anomalous one, and had been compared to that of tenant-in-tail. It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband.

But whatever her estate is, it is clear that until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs of her husband. The succession does not open to the heir of the husband until the termination of the widow''s estate. In this view of the law, it is impossible to hold that a Hindu widow or other female heir not entitled to inherit acquires the widow''s estate; her right is of the nature of a right of property, her position is that of owner, her powers in that character are limited and so long as she lives no one has any vested interest in the succession. It is for this reason that Art. 127 of the Hyderabad Limitation Act corresponding to Art. 141 of the Indian Limitation Act prescribes a period of 12 years for a suit for possession of immovable property by a Hindu who becomes entitled to possession on the death of a Hindu female, from the date when the female dies. The reason for fixing the ''terminus a quo'' from the death of the female lies in the fact that no such suit for possession could be brought during her life-time.

In such a case, the provisions of S. 28 of the Limitation Act providing for extinguishment of right would apply only where the statutory period is allowed to elapse and no suit for possession is brought, A Hindu female being entitled to possession cannot be evicted simply because she asserted a hostile title against person or persons who possess no more than mere spes successionis. It would be contradiction in terms to say that you cannot bring a suit yet the female in possession would perfect her title by adverse possession. It would now be clear that possession of such a female, if adverse, would not create a prescriptive right to property in her favour but as the Privy Council has said, she would make good to her husband''s estate.

The considerations afore-mentioned do not arise in cases where a Hindu widow not entitled to inherit an estate, enters into possession of that property and remains in possession for over the statutory period. She cannot prescribe for a limited estate of inheritance for the simple reason that she never inherited it. If she ever prescribes, she would prescribe for an absolute title either because no suit was brought within twelve years from the death of the female as required by Art. 127, Hyderabad Limitation Act corresponding to Art. 141 of the Indian Act or because having regard to Art. 130 of the Hyderabad Limitation Act corresponding to Art. 144 of the Indian Act her possession would be deemed to have been adverse from the date when the property fell for possession unless the plaintiff could show it to be the result of an arrangement with the widow posed in the question. In my opinion, in order to constitute adverse possession, it is sufficient that the person claiming to be the owner stood by while others continued to possess not by derivative title but in practical contravention of his alleged rights, and that it is not necessary to prove that such claimant protested against the violation of his rights, and the possession went on despite such protest.

In the result, I am of the opinion that the Pull Bench case of -- ''Bomakunti Seshia v. Godmadla Anantappa (G)'', lays down the correct law and need not be upset or overruled. Therefore, in agreement with my brother Srinivasachari, I am of the opinion that the nature of the estate taken by a Hindu female as posed in the question would be an absolute estate irrespective of whether she asserts her title as an absolute owner or not. Let the answer be remitted to the Bench which referred the question.

Siadat Ali Khan, J.

The reversioner''s suit for a declaration that the transfer by the widow, Venkamma, should be set aside was decreed by the trial court but dismissed by the first appellate court. Hence the second appeal to this court. An important question of Hindu Law, which will be adverted to later on, was raised and a Division Bench referred the question to a Pull Bench by order dated 8-10-1952 and the Pull Bench in turn referred it to this fuller Bench of five Judges by order dated 14-4-1954.

The suit was in respect of four survey numbers which were transferred by Venkamma in favour of one Ratnamma. It is said that Bhimanna had a son Balappa who had died in his life-time and when Bhimanna himself died, his wife, Achamma, and daughter-in-law, Venkamma, survived him; that the pattas of altogether 11 numbers and the office of the patwari, were, after the death of Bhimanna, made in the joint names of the widow and the widowed daughter-in-law; that Achamma also died in 1305F., and after her death Venkamma continued in possession and undisturbed till the transfer by her in favour of Ratnamma in 1351F., when a suit by the reversioners was filed.

It is evident, therefore, that Venkamma was in possession at the time of the suit for over 40 years without let or hindrance. The question, therefore, arises and it is this question which has been referred to us, viz.,

Where a Hindu widow not entitled to inherit an estate enters into possession of that estate and remains in possession for over the statutory period, what would be the nature of the estate taken by her, (a) where she asserts her title as an absolute owner and (b) where she does not assert her absolute title?

We have heard the arguments of the learned advocates of the parties.

The learned advocate for the appellants argued that under the Hindu Law ordinarily the possession of a widow is in lieu of maintenance; that though a widow may by adverse possession prescribe for an absolute title, still, as there can be no adverse possession without animus, the widow will have to prove the requisite animus; that to give her an absolute title the requisite animus is ''animus excludendi''; that it is possible and in the context of Hindu family traditions it is not only possible but also probable that usually such an animus is non-existent and the animus that obtains is the animus to prescribe for a limited estate; and that in any case the burden of proof is on the widow to prove the animus with which she prescribed.

It was argued further that usually reliance is placed on three Privy Council cases -- ''22 Ind App 25 (PC) (P)''; -- ''29 Ind App 132 (PC) (Q) and -- '' AIR 1919 PC 60 (R), for the proposition that the possession of a widow is usually adverse unless it is permissive : and that the burden of proving the permissive nature of the possession is on the reversioners, but really the three Privy Council cases have not held so; and in - AIR 1924 121 (Privy Council) , the Privy Council has held otherwise.

I have carefully considered the above argument of the learned advocate. It appears to me that it does not represent the correct view of the law on the subject. Apart from sentiment, there appears to be scant authority for the proposition that the possession of a Hindu widow is ordinarily in lieu of maintenance. And there is abundant and preponderant authority for the converse proposition that it is adverse. Let us see this in a little detail.

In principle it is axiomatic that possession is evidence of title and that possession is prima facie adverse and exclusive. A person is always presumed to possess for himself unless it is proved that he commenced his possession for another. It is on this basis that the Limitation Act rests. The Select Committee on the Bill of 1855-59 has observed that :

The possession of any property by any person shall be deemed adverse to every other person having or claiming to have a right to the possession of such property by virtue of a different title.

And this principle has been applied to the case of a Hindu widow also. The weight of authority is also on the side of the proposition that as possession is prima facie adverse, it is for him who impugns this exclusive title to show that the possession arose in some way which has preserved his right. The party out of possession must give positive proof of some agreement or arrangement which will account for the other''s sole possession.

The Madras High Court in -- (Kopparaju Gunichandill) Sekhard Rao and Others Vs. Kopparaju Ramaraju Seshaya, , while dealing with the possession of a Hindu widow held on the authority of 22 Ind App 25 (PC) (P), as follows :

Her possession was the possession of an ordinary trespasser and the onus is upon the reversioner to show that she prescribed for a title less than that of a full owner.

Their Lordships of the Privy Council themselves observed :

Unless it was clearly shown that when the widow took possession she proposed to do it as claiming only the limited estate of a widow, it was impossible to hold that the rights of the other claimants were not extinguished.

To the same effect are their Lordships'' observations in -- ''29 Ind App 132 (PC) (Q)'' :

Possession as of right of the widow and daughter-in-law ........ for 12 years bars the heirs of the deceased unless they can show that the possession was permissive.

The above will show that on principle and on authority the possession of a widow is prima facie adverse and that the onus is on the reversioners to show that whether under an arrangement or agreement it is permissive and, therefore, not adverse to them.

The above will show also that the persons entitled to the property (e.g., reversioners) must show clearly that when the widow took possession she proposed to do it as claiming only the limited estate of a widow and it is generally conceded that a widow may prescribe for a limited estate or for an absolute estate. And the question whether the widow was prescribing only for a limited estate or for an absolute estate must necessarily be determined on the facts of each case. The test to be applied, viz., whether the widow acquired by prescription merely a limited right of a Hindu widow or an absolute title turns on the evidence indicating in what character she took possession of the property and in what character did she hold it. The question primarily is one of fact in each case. In other words, on general principles of law, the quality and extent of the right acquired by possession depends upon the claim accompanying it and upon the nature of the ''animus possidendi''.

Thus two things are clear, first is that there can be no prescription without an animus and the animus may be of the two kinds mentioned above, viz., an intention to prescribe for an absolute title or for a limited title of a widow''s estate. The second is that in either case the burden of proof is on the reversioners to show what the animus was. This is because of what has been stated in paragraph 52 above, namely, that possession is evidence of title and is prima facie adverse and every person is presumed to prescribe for one''s own benefit and advantage.

And what would be the period of limitation? It appears clear that it would be 12 years either under Art. 141 or Art. 144, but the starting point will be important. Article 141 will only apply when the widow claims a limited estate; for this Article makes it clear that the reversioners have 12 years alter the death of a female to establish their right as heirs to the last full owner. Article 141 does not apply when the female is entitled absolutely, viz., is the full and complete owner. In that case Art. 144 will apply and the reversioners will have to sue within 12 years from the death of the last full owner.

As already stated, the possession of a Hindu widow who has no right of inheritance is prima facie adverse, for, from the death of the ancestor any person who possesses the property otherwise than in the name and in the right of the heir is considered to hold it adversely to him. Hence, when a Hindu widow, who is by law entitled not to possession but only to maintenance, obtains possession, it is prima facie adverse to the rightful heirs and consequently they must sue ''within 12 years thereafter, to recover possession from her and from those claiming through her, e.g., an alienee through her, (Vide -- ''Sham Koer''s case (Q). But if she was in possession with the consent or permission of the heirs, possession by her or by an alienee claiming under her would not during her life time be adverse to the heirs and they could sue to recover possession within 12 years from her death. Each case has to be treated on its own facts.

It would be quite in keeping with the sentiments of a Hindu father-in-law or other heirs of the last male member to assign some portion of the joint family property to a widowed daughter-in-law in lieu of her maintenance so that she may enjoy its usufruct during her life-time. In such cases no question of adverse possession can possibly arise. The very slightest evidence would be sufficient to raise a presumption that a childless widow in a joint family (who was entitled only to maintenance out of the estate) was in possession of the estate with the consent of the heirs or owners as a licensee only. But where such a widow has been in continued and undisturbed possession of the profit for many years and more particularly when she has dealt with the property by sale as her own and such acts have not been challenged by those interested in the property and ''there is no evidence'' that she was in possession with the consent of the heirs or owners for maintenance, no presumption of law arises except the ordinary presumption that a person in enjoyment of property in such condition is in possession adversely to the owner and acquires an absolute title.

The above appears to me the conclusion from the numerous cases on the subject. As pointed out by the learned advocate for the appellants there are four Privy Council cases on the subject. In three of them, viz., -- ''22 Ind App 25 (PC) (P)''; -- ''29 Ind App 132 (PC) (Q)'' and -- '' AIR 1919 PC 60 (R)'', their Lordships of the Privy Council held in unambiguous terms that :

Where possession is not founded on right, the party who wishes to say that such possession was not adverse has to prove that it was with his consent. Possession of a female when it is without right is prima facie adverse leaving it to the person alleging that it is not adverse to prove so.

It was contended that in the last Privy Council case of - AIR 1924 121 (Privy Council) their Lordships of the Privy Council held differently to the following effect :

If possessing as widow she possesses adversely to any one as to certain parcels, she does not acquire the parcels as Stridhan but she makes them good to her husband''s estate.

It is contended that this case is authority for the proposition that the possession of a Hindu widow is always for a limited estate. In the face of the three Privy Council cases in which no such proposition was mooted, it is for consideration whether the contention can be accepted. It appears to me that -- ''Lajwanti''s case (A)'', does not go against the three prior P. C. cases. Having regard to the litigation between the parties in -- ''Lajwanti''s case (A)'', it was evident that the widows never claimed more than a widow''s estate. There was a decree of the Chief Court of Oudh in 1869 under which the widows were duly entered as proprietors of certain villages in respect of their widow''s estate of the estate of their late husband, Jawaharmul. In this context -- ''Lajwanti''s case (A)'', assumed that the widow was claiming only a widow''s estate and, therefore, held that her prescribing certain parcels could only accrue to their husband''s estate and could not be their Stridhan as the animus was to prescribe for a limited estate only. This case, therefore, does not set at naught the principle that a widow can prescribe for an absolute estate also provided that she has that animus.

The three prior P. C. cases subscribe to this principle and also, as already stated, to the proposition that possession is prima facie adverse and the onus is on them who allege that the possession was not adverse and not for an absolute title. It may be noted that the majority of Allahabad decisions and all the Oudh decisions follow the three Privy Council cases noted above.

The Bombay High Court in -- '' AIR 1946 Bom 193 (C)'', has observed as follows :

The test is always to be found in the origin of the widow''s possession. When she enters on land under a title as heir, which is necessarily a limited title under the Hindu Law, very cogent evidence is necessary to show that she afterwards asserted a title as absolute owner. It makes no difference whether the widow claims to be in wrongful possession as the widow of her husband or as the heir of her son. In both the cases she acquires only a widow''s estate by her wrongful possession.

With respect, it may be observed, that it is difficult to agree with this pronouncement, for, in the first place

The principle that a person who starts with a restricted interest cannot claim adverse possession by improving his title is too well established to be contested.

Hence it appears that no amount of cogent evidence will be sufficient to change a possession which starts with a restricted title into an absolute title. The material time is the time when the widow takes possession. The animus which counts is the animus which she had at the time when she took possession. If she starts her possession with the animus of prescribing a limited title, she cannot enlarge it into an absolute estate. The Bombay High Court itself in -- Goswami Shri Maganlalji Gordhanlalji Maharaj Vs. Goswami Shri Purshottamlalji Wagheshalalji Maharaj, observed to the same effect:

Entering upon the estate in that limited estate and holding such limited estate she cannot enlarge it against the reversioners and hold it so as to make it part of her Stridhana.

In the next place it is also to be observed that the above observation of the Bombay High Court omits to consider that a widow may prescribe for an absolute title, especially when a widow who has no right of inheritance enters upon the property. Her possession being wrongful, will be, as already stated in paragraph 52 et. seq. in her own right and adverse.

The Patna High Court cases, though usually considered to have followed the Bombay High Court, do not appear to have held anything contrary to the three Privy Council cases. In - Jagmohan Singh and Others Vs. Prayag Narayan Singh and Others, , it was observed that :

Property held by a Hindu widowed daughter-in-law claims as the widow of her deceased husband becomes an accretion to her husband''s estate and not her Stridhan.

This proposition is unobjectionable. The point to note is that it is only when the widowed daughter-in-law claims as the widow of her deceased husband that the property prescribed will be an accretion to her husband''s estate. This is equally clearly stated in -- Suraj Balli Singh and Others Vs. Tilakdhari Singh and Others, :

When the widow is in adverse possession, the property becomes her Stridhan and it is only when she possesses as an heir of her deceased husband and claims in that character only that the property accrues to her husband''s estate.

Similarly, the Nagpur High Court has not held anything contrary to the three Privy Council cases mentioned above. In an elaborate Division Bench decision of Nagpur High Court, viz., -- '' AIR 1946 Nag 277 (F)'', the facts were that on the death of Raja Ratansingh an enquiry regarding the right of succession was made by the Revenue authorities and Rani Taramati, the stepmother of the last male holder, was recognised by them as holder of a limited estate according to Hindu Law. The Nagpur High Court commenting on the Privy Council cases and several other cases observed that :

It is, therefore, clear that a woman governed by Hindu Law can, although she has no right of succession to it, prescribe either for a limited or for an absolute estate. This does not take us very far in the case before us in which the real question for determination is where a woman who is governed by Hindu Law has entered on an estate as a qualified heir, can she subsequently prescribe by adverse possession an absolute title to it.

and held :

Where a Hindu widow governed by Hindu Law has entered on the estate as qualified heir, she cannot subsequently prescribe by adverse possession an absolute title to it.

The P. C. case of -- ''Brij Inder Bahadur Singh v. Ranee Janki Koer'', 5 Ind App 1 (Z5), was relied on and reliance was also placed on the maxim ''CONTRA NON VALENTEM AGERE NULLA CURRIT PRAESCRIPTIO'', i.e., prescription does not run against a man during the time when he is unable to act, i.e., to take immediate possession.

There is no use in commenting on the other cases. They do not detract from the question of principle formulated in paragraph 52 et. seq. Hence, the position is reduced to this that a Hindu widow may either prescribe for a limited estate or for an absolute title. The question is a question of her animus at the time of entering possession. The onus is always on the persons out of possession to prove that she had the intention of prescribing for a limited estate only and, therefore, her possession was not adverse to them, possession being prima facie adverse and exclusive. If the widow enters the estate with the animus of prescribing an absolute title, Art. 141 (sic) will apply and the reversioners will have to file their suit within 12 years of the death of the last male holder; and if she prescribes for a limited estate, Art. 144 will (sic) apply, and they will have time to file a suit within 12 years of her death.

The question of animus is no doubt a question of fact but a study of the numerous cases on the subject has shown that where there is no evidence regarding the animus with which she prescribed, preference is given to the ordinary presumption that a person in enjoyment of property is in possession adversely to the owner and acquires an absolute title. The cases snow also that reliance (sic) possession of profit for many years as also acts of disposal in respect of the property whether by way of sale, gift or mortgage. Similarly, the Privy Council in -- ''Shah Koer''s case (Q)'', remarked that though the widows had only right of maintenance, yet as they were in possession of three villages out of several villages, the fact suggests adverse possession in their own right. Similar facts of possession of the whole property can, therefore, also be taken into consideration.

In the light of the above we have to answer the question referred to us. It is stated in full in paragraph 49 above. My answer will be that where a Hindu widow not entitled to inherit an estate enters into possession of that estate and remains in possession for over the statutory period, the nature of her estate (a) where she asserts a title as an absolute owner from the very beginning of her possession, it will be an absolute estate, and, (b) where she does not assert her absolute title, it does not become her absolute property but becomes an accretion to the estate of the last male owner. This Bench cannot go into the facts of the case and I, therefore, do not express any opinion on the facts. 1 may, however, only mention this that there are here two deaths, that of Achamma and that of Venkamma and both have to be taken into consideration.

Srinivasachari, J.

The facts that have held led up to the appeal to the High Court have been set out in the order of reference by the Division Bench to the Pull Bench and in the order of the Pull Bench in referring certain questions for the decision of the fuller Bench. Nevertheless, in order to understand how the questions answered arise in the case I would just state very briefly the facts.

The suit was one by Hanmanthrao against Venkamma and Ratnamma and Anant Vithal Rao for a declaration that the sale deed executed by Venkamma defendant No. 1 in favour of Ratnamma, defendant No. 2 was inoperative and ineffective. The plaintiff alleged that he was the reversioner and he laid the suit as against the widow of the predeceased son of the last holder, Bhimanna. It happened that after the death of Bhimanna the virasat was sanctioned in the name of Atchamma the widow of the last holder and Venkamma, her daughter-in-law (the widow of Balappa, the predeceased son of Bhimanna). Atchamma died and the defendant No. 1 Venkamma came to be in possession of the suit property. While being in such possession she transferred the suit lands in favour of defendant No. 2. This suit was brought to declare this alienation to be invalid and inoperative. The third defendant was impleaded as he was the remote reversioner. Defendants 1 and 2 denied the relationship of the plaintiff and that he was a reversioner and also alleged that inasmuch as defendant No. 1 remained in possession after the death of her father-in-law her possession must be deemed to be adverse. As regards the alienation it was alleged that the same was for family necessity.

The first court negatived the contentions of the defendants and decreed the plaintiffs suit. Defendants went up in appeal. The first appellate court allowed the appeal and dismissed the plaintiff''s suit holding that the possession of defendant No. 1 was adverse. The matter came up before the High Court on an appeal having been preferred by the legal representatives of the plaintiff. The most important and the strongest argument of the learned advocate for the appellants is that the possession of Venkamma could never become adverse under the law. He urged that defendant No. 1 must be deemed to have come into possession of the property in lieu of her maintenance and as such it could never become adverse.

The question that we have to decide is as to whether, where a person, who is not entitled to succeed to the estate, is in actual possession of the property for long over the statutory period, would her possession become adverse to the real owner. The question that has been posed for consideration before us is as follows :

where a Hindu widow not entitled to inherit an estate enters into possession of that property and remains for over the statutory period what would be the nature of the estate taken by her? (a) in a case where she asserts her title as an absolute owner and (b) where she does not assert an absolute title?

This reference was occasioned on account of the fact that a Full Bench of three Judges of this Court in the unreported case of -- ''Appeal No. 22 of 1337F. (G)'', following the decisions of the Privy Council in -- ''22 Ind App 25 (P)''; -- ''29 Ind App 132 (Q)'' and - AIR 1924 121 (Privy Council) '', held that in such cases the person who enters into possession takes an absolute estate in the property which becomes her stridhan property. It has to be observed that while in the first two cases viz., -- ''22 Ind App 25 (PC) (P)'' and -- ''29 Ind App 132 (PC) (Q)'', their Lordships of the Privy Council held that it had been established on the facts that the widows entering into possession in those cases exercised absolute rights of ownership and that there was no evidence that they entered into possession of life estate holders, observed that the property became their absolute property.

In the last mentioned case however, viz., AIR 1924 121 (Privy Council) , their Lordships observed that the Hindu widow was not a life renter but had a widow''s estate. Therefore, if possessing as a widow she possesses adversely to any one as to certain parcels she did not acquire those parcels as stridhan, she made them good as her husband''s estate. In substance in the last mentioned case their Lordships held that the widow in this case prescribed for her husband''s estate and she never prescribed for an absolute title. The Full Bench of this Court has made reference to this case also but has come to the conclusion that she takes an absolute estate in any event.

Property inherited by a woman from a male or female is not her stridhana except in the Bombay School. Although the texts of Hindu Law only speak of property inherited by a widow from her husband or what is popularly known as "widow''s estate" nevertheless we find that the word "widow" illustrates the position of all female heirs taking a similar limited estate. Therefore the rights and disabilities of any female heir in respect of the property inherited by her are the same as those of a widow inheriting property from her husband. She never becomes a stock of fresh descent. The estate taken by a female as non-stridhana is limited in the same sense as the estate taken by a widow from her husband.

The law is clear that where the widow succeeds to an estate she always takes a limited estate. Therefore ordinarily there would be presumption that the widow took a life estate in the property. But the question arises as to whether this rule would apply to a person who does not inherit the estate as a widow of the last male holder and would it always follow that where a widow of a Hindu family enters into possession of an estate she would always prescribe for her husband and never take an absolute estate. In so far as the case law on this subject is concerned it goes back to 1894 when the first pronouncement was made by Privy Council in the case of 22 Ind. App. 25 (P). In that case it would appear that one Ajeet Kunwar the widow of Nangal Singh entered into possession to the exclusion of the son Prahlad Singh. In that case it was found by the Judicial Commissioner that there was no evidence to show that the widow took possession as a widow but there was evidence of the fact that she always treated the property as her own property; not the estate of a Hindu widow. Therefore, in a suit brought by Lachankunwar the widow of Prahlad Singh, the Privy Council held that the suit was barred by limitation as the possession of Ajeet Kunwar had become adverse.

In 1902 another case came up for consideration before the Privy Council -- 29 Ind. App. 132 (Q). In this case the widow of the last holder and the widow of the predeceased son entered into possession and afterwards, after the death of the widow the daughter-in-law continued to be in possession. During the period she was in possession the daughter-in-law executed a hibanama in favour of one Sajju Pershad Singh of three villages. Mutation was also made. At this stage a suit was brought for declaring the hibanama invalid. The Privy Council held that the widow and the daughter-in-law being widows of members of a joint family were only entitled to maintenance, therefore their continuous possession of the villages would be adverse to the reversioners unless it was established that such possession was the result of an arrangement with them; inasmuch as there was no such arrangement the villages became their absolute property. Their Lordships laid down that unless it was shown that the possession of such widows was permissive and in pursuance of an arrangement between them and the next heir it would be regarded as adverse possession.

The third case was decided in 1919. In this case however their Lordships on the facts found that there were open assertions of title; they therefore drew the inference that the ownership was absolute and the suit brought by the plaintiff after the period of limitation was held to be barred. Vide AIR 1919 PC 60 (R).

The last case which has created some amount of difficulty is the case of AIR 1924 121 (Privy Council) It is necessary to give the details of this case in order to understand under what circumstances the decision was given by their Lordships of the Privy Council. The following, genealogical table would make the relationship of the parties in that case clear

It would appear that Jawharmull was the last holder of the estate and after his death his three widows entered into possession as proprietors. Hemraj applied for deletion of the entries of these women as proprietors on the ground that he was the adopted son of Jawaharmull and also stated that inasmuch as Jamiyatraj renounced his rights he alone was entitled to the property acquired by Bhimsen and Jawaharmull. The question was whether the widows were entitled to hold half the share left by Jawaharmull. The facts would show that the first widow died in 1862 when the second and the third widow continued to be in possession. The second widow died in 1900 and the third widow in 1910. Lajwanti the daughter of Jawaharmull by the second widow brought a suit to have her right declared as the daughter of Jawaharmull The suit was resisted by the descendants of Jawaharmull''s brothers stating that the widows held possession of the estate by reason of an arrangement with them for maintenance.

It would appear that the Chief Court of the Punjab was of the opinion that there was no proof that Heeranand the posthumous son of Jawaharmull ever existed and, therefore, the respondents were entitled to succeed as heirs to the estate. On appeal to the Privy Council it was argued that it was clear that there had been adverse possession by the widows from 1869 to 1910 and the respondents'' title was destroyed by S. 28 of the Limitation Act. In this case their Lordships observed:

The Hindu widow is not a life renter but has a widow''s estate, that is to say, a widow''s estate in her deceased husband''s property. If possessing as widow she possesses adversely to any one as to certain parcels she does not acquire the parcels as stridhan but she makes them good to her husband''s estate. The result is that mouzas are Jawaharmull''s estate and the plaintiff is entitled to succeed.

These observations of the Privy Council have created a doubt with regard to the nature of the estate held by a person who although under the Hindu Law is entitled only to a life estate but continues to be in possession of the property for over the statutory period which would perfect the title of a person by prescription. It has to be said that the consensus of opinion of the various High Courts after this decision of the Privy Council has been that their Lordships laid down that principle having regard to the particular facts of that case. The principle was not laid as one of universal application.

The first case which I might refer to after the decision of the Privy Council is the case decided by the Allahabad High Court reported in Kali Charan and Others Vs. Musammat Peare alias Peari and Others, . In this case it was clearly emphasised that Lajwanti''s case (A) could not be treated as altering the law already laid down by the Privy Council in a series of judgments commencing from 22 Ind App 25 (P).

The next case in the order of date would be the one reported in (Kopparaju Gunichandill) Sekhard Rao and Others Vs. Kopparaju Ramaraju Seshaya, . This case was a case where the widow of a predeceased son got into possession and continued to be in possession for over 12 years. It was held that her possession must be considered to be the possession of an ordinary trespasser and the case of ''22 Ind. App. 25 (PC) (P)'' was followed. Yet another case is -- ''Mt. Ram Dulari v. Sher Bahadur Singh'', AIR 1928 Oudh 431 (Z6). This was a case of a widow of a predeceased son entering into possession during the lifetime of another minor son of the propositus and when a suit was brought by a reversioner of the son after 12 years it was held to be barred following ''22 Ind. App. 25 (PC) (P)'' and '' AIR 1919 PC 60 (R)''.

'' AIR 1934 270 (Lahore) was a case decided by the Lahore High Court wherein the Privy Council decision in ''Lajwanti''s case (A)'' was distinguished holding that the widows in that case admittedly claimed a widow''s estate. A stronger case of the Oudh Court is the case of '' AIR 1946 Oudh 38 (U)''. Our Chief Justice Lakshmi Shankar Misra was a party to this judgment as a Judge of the Oudh Chief Court. In this case it was clearly laid down that where a Hindu female not entitled to possession enters into possession she would prescribe an absolute title.

Likewise are the observations of the Allahabad High Court in the case of Ulfat Rai Vs. Sm. Kamla Devi and Others, . Here also it was stated that the possession of a widow who is not an heir would become adverse and would become her stridhan property if she continues to be in possession for over the statutory period. It would, therefore, follow that a distinction has to be drawn between a case where a widow entitled to inherit enters into possession and a case where a person not entitled to inherit getting into possession and further where it is clear that the widow succeeding did not enter into possession in lieu of maintenance she takes an absolute estate and her possession would become adverse. Lajwanti''s case (A) is distinguishable because (a) in that case it was found as a fact that the widows claimed a widow''s estate in their husband''s property when they entered into possession and (b) they did not seem to have claimed anything more than a widow''s estate and never asserted an absolute title. Therefore, what can be deduced from the decision in ''Lajwanti''s case (A)'' is that a widow governed by Hindu Law entering into possession as a qualified heir cannot possibly prescribe an absolute title by adverse possession, that is to say she cannot enlarge her right in the property having once claimed a limited estate. Their Lordships did not mean to lay down that any widow in possession could under no circumstances claim adverse title.

In the first case if such a widow continues to be in possession over the statutory period her possession would not become adverse and she would only prescribe for a limited estate and any accretion to the estate would ensure to the benefit of her husband whom she succeeds. The widow in claiming the widow''s estate does not cherish any animus to exclude her husband but the animus is one of recognition of her husband''s title. Their Lordships of the Privy Council observed in another case, -- AIR 1947 19 (Privy Council) as follows:

It might well be argued that according to the Hindu Law the wife is half of the husband and that on his death she holds his estate as one half of the husband.

This principle as already observed is that a widow governed by Hindu Law succeeding to her husband''s estate and entitled to a life estate cannot by the act or declaration give the estate a character different from that attaching to Hindu widow. This view of mine is supported by a decision of the Nagpur High Court in '' AIR 1946 Nag 277 (F)''. It has been consistently held by all the Courts and support is lent by the decision of the Privy Council also that where a Hindu female not entitled to possession gets into possession and continues to be in possession for over the statutory period she would prescribe an absolute title. In such a case her possession would not be regarded as being founded on any right. The case of '' AIR 1919 PC 60 (R)'' fully supports this view.

Where, therefore, the possession of a woman is not based on any right there is no presumption that possession of such woman was only possession as a life interest holder. It would be for the party alleging as such to establish the fact that her possession was either permissive or that he was in possession with his consent. If for example a widow of a predeceased son who has no right to the property succeeds in getting into possession her possession for over the statutory period would be adverse. (Vide cases already referred to (Kopparaju Gunichandill) Sekhard Rao and Others Vs. Kopparaju Ramaraju Seshaya, and AIR 1928 481 (Oudh) . Likewise where the mother having no right to succeed to her deceased son''s widow enters into possession her possession would be regarded as adverse and she would have an absolute title in the property (Vide) -- ''Drigbijoy Singh v. Drigpal Singh'', AIR 1926 Oudh 126 (Z8).

Our attention was drawn to a decision of the Bombay High Court in '' AIR 1946 Bom 193 (C)''. The observations of the learned Single Judge (Lokur J.) are not different from what has been stated above. The learned Judge observed :

When she enters on land under a title as heir which is necessarily a limited title under the Hindu Law very cogent evidence is necessary that she afterwards asserted a title as absolute owner.

In that case a difference was sought to be made out at the Bar that where a mother succeeds as heir to her son the above principle would not apply. The learned Judge repelled this contention on the ground that even as the heir of her son she would be entitled only to a widow''s estate. The difference, therefore, has to be borne in mind that where a woman succeeds as heir and enters into possession of the property she takes only a life estate and therefore possession however long it may be would not enlarge the nature of the right that she is entitled to. But where it is a woman who does not succeed as heir gets into possession and continues to hold the property for over the statutory period her possession would become adverse just like the possession of any other stranger. For all the above reasons I am of the opinion that question No. 1 has to be answered as follows :

The nature of the estate taken by a Hindu widow not entitled to inherit the estate is an absolute estate irrespective of the fact whether she asserts her title as an absolute owner or not.