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1954 DIGILAW 57 (MP)

Bheron Singh Bonder Singh v. Ramchandra Bai w/o Mohan Singh

1954-10-22

A.H.KHAN, CHATURVEDI

body1954
JUDGMENT : This first appeal arises out of a suit of a reversioner, who claims the disputed house from the defendants on the ground that Musammat Ganga Bai had no right to make a will of the house in their favour. The trial Court (District Judge, Shajapur) dismissed the suit, holding that Musammat Ganga Bai had been in possession of the house adversely for over twelve years and that in the circumstances, she could will it away. Aggrieved by this, this is plaintiffs first appeal. 2. The allegations in the plaint are that the plaintiff, Bheron Singh belongs to a family, of which one Bhopal Singh was the ancestor, that he is descendant of one of the branches of which Lal Singh was the head; that in the other branch, consisting of Gulab Singh, there was one Maha Singh, who possessed a house and a five anna four pies share in village Akodia; that Maha Singh had a son, Lad Singh, who died in the life-time of Maha Singh; that Lad Singh left behind him his father (Maha Singh), his mother (Gora Bai) and his widow (Ganga Bai); that after the death of Maha Singh, his entire property movable and immovable was inherited by his widow, Gori Bai and his daughter-in-law, Ganga Bai (the widow of his pra-deceased son, Lad Singh), that it is not known when Musammat Gora Bai died, that in 1920 Musammat Ganga Bai made a will in favour of one Anar Singh (Defendant No. 2), that in 1936, fourteen years after making the will, Musammat Ganga Bai passed away, that thereafter the defendants have been in possession of the house in dispute, that Musammat Ganga Bai as a widow of the family had no right to make the will. This suit is not in respect of the entire property of Maha Singh, but is confined to the house. The plaintiff claims to be a reversioner and has prayed that it be declared that he is entitled to the house, that he be put in possession of it and that mesne profits be also allowed to him. 3. This suit is not in respect of the entire property of Maha Singh, but is confined to the house. The plaintiff claims to be a reversioner and has prayed that it be declared that he is entitled to the house, that he be put in possession of it and that mesne profits be also allowed to him. 3. The defence is that Ganga Bai was in adverse possession of the house; that after the statutory period of twelve years, she acquired ownership of it; that she was in consequence competent to will it away to the defendant, that in respect of this very will, the father of the plaintiff (Bodar Singh) had unsuccessfully filed a suit; that the plaintiff had not impleaded his real brother, Ram Lal, as a party to the suit; and, that under the will, Anar Singh has acquired a perfect title. 4. The trial Court framed as many as thirteen issues and held that although the plaintiff was a reversioner, yet the possession of Ganga Bai was adverse and that after twelve years, she became the owner and could bequeath the house. 5. In appeal before us only one point has been pressed and it is that the possession of Musammat Ganga Bai was not adverse, that she had a widows interest in the house and that as a widow of the family, she could not bequeath it. The decision in the case turns upon the determination of the question as to whether the possession of Musammat Ganga Bai was adverse or not? 6. It is an admitted fact that Musammat Ganga Bai was the widow of a pre-deceased son. It is common ground that the widow of a pre-deceased son is not an heir to the property of the father-in-law. In fact the father-in-law (Maha Singh) was under no legal obligation to maintain Ganga Bai. It was a moral obligation only. On his death, Maha Singhs widow, Gora Bai became her heir, and, no doubt it was her legal duty to maintain the daughter-in-law. After Musammat Gori Bais death, the entire property of Maha Singh should have passed on to his reversioners, but none came forward to claim it. In fact it is said in the plaint that it is not known when Musammat Gori Bai died. After Musammat Gori Bais death, the entire property of Maha Singh should have passed on to his reversioners, but none came forward to claim it. In fact it is said in the plaint that it is not known when Musammat Gori Bai died. The question of the widows possession as a limited owner only arises, when the widow were to claim through the last male owner as an heir. But where the widow is not an heir, as in the present case, but is the widow of a pre-deceased son who is not an heir, then her possession of the family property would be without right and would be deemed to be adverse to the heirs (reversioners) of the last male owner, unless the heirs can show that it was by mutual arrangement that property was given to the widow in consideration of her right to maintenance. No such arrangement has been not only not proved, but on the contrary it is alleged in the plaint that Musammat Ganga Bai after the death of Maha Singh, succeeded to the property as an heir a position which is untenable according to Hindu Law. To me it seems that through a misunderstanding of the real position, Musammat Ganga Bai continued to be in possession of her father-in-laws property without any let or hindrance. Her rights to the property were not only not challenged, but to the knowledge of the reversioners she dealt with the property as she liked. For instance it is said in the plaint that about half of the zamindari property she gave to one Prithi Singh and put him in possession thereof. This is undoubtedly a hostile act which should have put the reversioners on their guard. In a Privy Council case reported in Sham Koer v. Dah Koer, ILR 29 Cal 664 (A), where the facts were more or less similar, it was held by their Lordships of the Judicial Committee that where on the death of a male member of a family in 1862, his widow and sons widow obtain possession of a portion of his property, which in 1884 was assigned by hibanama to a third person and then in 1891 the reversionary heirs brought a suit against the survivors of the widow and her assignee, the possession of the widow was adverse. It was said that the widows were entitled to maintenance out of the estate and their possession would be adverse, unless it could be shown that the possession was the result of some arrangement. This view was followed in Ulfat Rai v. Kamla Devi, AIR 1949 All 458 (B) and also in Mata Prasad v. Brij Kishore Singh, AIR 1942 Oudh 303 (C). 7. Mr. Abdul Hafiz, the learned counsel for the appellants has referred us to Bhagirathi Bai v. Dwarkabai, AIR 1933 Bom 135 (D), Appavu Udayan v. Nallammal, AIR 1949 Mad 24 (E) and Ganga Dei v. Jagannath, AIR 1948 Oudh 108 (F). But all these cases are wide of the point. In AIR 1933 Bom 135 (D), the daughter-in-law challenged the gift, which the father-in-law made of his self-acquired property and it was held that she cannot succeed. In AIR 1949 Mad 24 (E), the proposition was laid down that a father-in-law is under a moral obligation to maintain his widowed daughter-in-law, but that after his death, the moral obligation ripens into a legal liability which may pass on to his heirs. In AIR 1948 Oudh 108 (F), the proposition enunciated in AIR 1949 Mad 24 (E), was reconsidered and afffirmed and it was also held that the right for residence is one of the rights included in the right of maintenance. All the above points, I have no doubt lay down good law, but they have no application to the facts of the present case. 8. The conclusion at which I arrive after considering all the authorities cited is that property acquired by a Hindu widow by adverse possession of which property she held possession in her own right and dealt with it as she liked for over twelve years, becomes her Stridhan and she is at liberty to dispose of it by will or gift. 9. On a review of the entire evidence and facts of this case, I am of the opinion that the decision of the learned District Judge is right and ought to be affirmed. 10. The appeal is disallowed with costs.