Ramji Sahay and Others vs Gopalji and Others

Kulwant Sahay, J.—This is an Appeal by,the plaintiffs against a decision of the District Judge of Saran reversing, the decision of the Subordinate Judge and dismissing the plaintiffs'' suit. The plaintiffs claim the properties in dispute as some of the reversioners to the estate of one Bhagwati Saran. There were two brothers Gobind Ram and Ganpat Ram. The plaintiffs and the defendants 2nd party, namely, defendants 3 to 6 are the descendants of Gobind Ram''s branch. Ganpat had a son Muktanand, who had three sons Sant Saran, Gurdev Saran and Bhagwati Saran. Bhagwati Saran died in the life-time of his father, leaving a widow Mt. Murat Kuer who died on 8th November 1921.

The plaintiffs case is that Bhagwati Saran had before his death separated from his father and his two brothers and that the properties in dispute were the properties given to him on such separation and that on his death these properties were inherited by his widow Mt. Murat Kuer and that on her death the plaintiffs as some of the next reversionary heirs to the estate of Bhagwati Saran are entitled to a three-sevenths share of the properties. Murat Kuer had given the properties in dispute to defendant 2 under a deed of gift, dated 2nd June 1919, and the plaintiff''s case was that when they went to take possession of the properties they were resisted by defendant 2 Gopalji and by his father Harshankar Narayan defendant 1.

The plaintiffs asserted that their, share as the reversionary heirs was three-sevenths of the entire properties of Bhagwati Saran and the remaining four-sevenths share belonged to the defendants 3rd party. The plaintiffs, therefore, instituted the present suit for declaration of title and recovery of possession.

The defence of defendant 2, who was the only contesting defendant, was that Bhatwati Saran died as a member of the joint family; that he had not separated from his father and brothers in his lifetime and that therefore the entire family properties belonged on his death to his father and his brothers Sant Saran and Gurdev Saran; that after the death of Bhagwati Saran, Muktanand the father divided the properties equally between himself and his sons Sant Saran and Gurdeo Saran and that his own one-third share was given by Muktanand to Mt. Murat Kuer and that Murat Kuer continued in possession of the properties as an absolute owner and not as the holder of a Hindu widow''s estate and that, therefore, Murat Kuer had power to make a gift of the properties to him the defendant 2, and that the gift of 2nd June 1919, was a valid gift.

The learned Subordinate Judge found that Bhagwati Saran had separated from his father and brothers before his death and that the properties in dispute were his separate properties which devolved upon his widow after his death and that therefore, the interest which his widow Murat Kuer acquired was only a widow''s estate and that she had no right to make a gift of it to defendant 2. He accordingly made a decree in favour of the plaintiffs. On appeal the learned District Judge has come to a finding that Bhagwati Saran did not separate from the other members of his family in his life-time, but that he died as a member of a joint family. Bhagwati Saran was, according to the finding of the District Judge, not the last male owner of the properties in dispute and therefore the plaintiffs could not claim the properties as reversionary heirs to the estate of Bhagwati Saran.

According to this finding of fact, which has not been challenged and could not be challenged in second appeal, the plaintiffs are completely out of Court. The learned advocate for the appellants, however, contends that upon the case made by the defendant himself and upon the finding of the learned District Judge the plaintiffs are entitled to succeed. He points to the allegations contained in para. 5 of the written statement, the material portion where of runs thus:

The fact is that Bhagwati Saran died in the life-time of his father. Thereafter on account of the death of Bhagwati Saran in the life-time of his father, Mt. Murat Kuer became disinherited , (matrukulirs). Lala Sant Saran Lal and Lala Gurdev Saran began to give Mt. Murat Kuer several sorts of troubles and raised disputes with her. On hearing about the disputes Lala Muktanand the father-in-law of Mt. Murat Kuer, who was in service and always remained outside, made the following arrangement (intezam) with a view to do away with the disputes: "The entire properties, were divided into three shares. One-third share was given to Lala Sant Saran Lal one-third to Gurdev Saran Lal and one-third to Mt. Murat Kuer. Thus the properties were divided and separate possession was given to them.

In the same paragraph the defendant alleges that on account of being in possession for more than 12 years Mt. Murat Kuer had acquired stridhan title. The learned District Judge has come to the finding that there was a division and separation after the death of Bhagwati Saran and in the life-time of Muktanand and that the one-third share of Muktanand came to be given by Muktanand to Murat Kuer. He then proceeds to consider the nature of the title or interest which had vested in Murat Kuer by reason of the separate possession of the properties thus given to her and he came to the finding that she acquired an absolute title in any event by adverse possession for more than 12 years.

The argument of the learned advocate for the appellants is that upon this finding that one-third share was given by Muktanand to Murat Kuer it does not necessarily follow that what was given was an absolute estate. He contends that having regard to the fact that it was a joint Hindu family the presumption arises that what was given to Murat Kuer was only a life estate and he refers to the cases of Mahomed Shumsool Hooda v. Shewukram (1874) 2 IA 7 (PC) and Meda Vengamma v. Mitta Chelamaiah (1912) 86 Mad 484. The learned advocate on behalf of the respondents however points out that a presumption does not necessarily follow .that what is given to a Hindu widow must necessarily be a life estate or the Hindu widow''s estate, and that such a presumption would arise only if property is given to a wife by her husband and in no other case, and reliance has been placed upon the decisions in Mt. Kollany Koer v. Luchmee Pershad (1875) 24 WR 395; Atul Krishna Sircar v. Sanyasi Churn Sircar (1905) 32 Cal 1051; Bhoba Tarini Debya v. Peary Lall Sanyal (1897) 24 Cal 646 and Jagarnath Prasad v. Jaikishun Prasad (1916) 1 PLJ 16.

The present case is a case in which certain properties were given to the widow of a deceased son by the karta of a joint Hindu family after separation in the family. What was given to the widow was the share which the karta got on partition. What is therefore on the evidence to show that what was given was only a widow''s estate, and not an absolute estate? The defendant is in possession under a gift made by the widow. The plaintiffs have come to Court fox declaration of title and for ejectment of the defendant.

It is therefore necessary for the plaintiffs to establish a preferential title to that of the defendant and it is therefore necessary for them to show that the widow Murat Kuer held only a widow''s estate, and not an absolute estate. The mere fact that the property was given to her by her father-in-law does not necessarily lead to the conclusion that it must have been a Hindu widow''s estate. The distinction that has been drawn in the cases cited by the learned advocate for the respondents between a gift to a wife and a gift to any other female member of the family has to be borne in mind. Such a distinction was drawn in the cases cited by the learned advocate, and before the plaintiffs could succeed it was necessary for them to prove affirmatively that what was given was a Hindu widow''s estate only. There is no such evidence and no finding.

On the other hand the learned District Judge has shown on reference to the evidence that ever since the giving of the one-third share to Murat Kuer by Muktanand she had asserted an absolute title in the estate and her title as an absolute owner was never disputed by Sant Saran or Gurdev Saran.

The learned District Judge has found that her possession was adverse and that she has acquired title by being in adverse possession for more than twelve years. If the properties were given by Muktanand to Murat Kuer by way of an absolute gift, then such a title could be created only by a registered instrument. If the title created was that of a Hindu widow, even then a deed was necessary.

The widow had no subsisting title at the time when the one-third share was given to her and in order to create a title in immovable property of the value of more than Rs. 100 it was necessary that a deed should have been executed. No deed was executed, but she continued in possession on assertion of an absolute title. It is therefore clear that she acquired a title by adverse possession as is found by the learned District Judge. The decision of the District Judge appears to be correct, and this appeal must be dismissed with costs.

Mohammad Noor, J.

I agree.