JUDGMENT : S.B. Sanyal, J. This is a defendants second appeal against 8 judgment of affirmance arising out of a suit for declaration of title and recovery of possession over a house bearing Holding No. 737, in Mohalla Khandapar, in the town of Bihar-sharif. 2. According to the case of the original plaintiff Bishambhar Prasad, he purchased the suit property on 24.3.1969 from Bechui Devi, daughter of Mossomat Lakshminia, widow of Chhotan Mali. The disputed house belonged to the aforesaid Chhotan Mali, who is said to have died in the year 1928, leaving behind a widow Mossomat Lakshminia and a daughter Bechni Devi. After the death of Chhotan Mali, Mosst. Lakshminia inherited the property as limited owner. On 15.8.1938, Mosst. Lakshminia made a gift of the property to three minor sons of Bechqi Devi, namely, Sheo Shankar Mali, Brahamdeo Mali and Jagdeo Mali Sometime in September, 1968, Mosst. Lakshminia died. On 30.11.1968, difendants purchased the suit house from Brahamdeo, one of the done grandsons of Lakshminia, the other grand sons having died unmarried in joint-ness with Brahamdeo. On 24.3.1969, the plaintiff purchased the house in dispute from Mosst. Bechni, the daughter of Lakshminia. 3. According to the case of the original plaintiff, he acquired valid right, title and interest to the property from the reversioner of Chhotan Mali upon the death of Laksminia since the deed of gift conveyed only limited right to Lakshminia's grand-sons which came to an and upon her death in the year 1968 the property thus reverted to the reversioner of Chhotan Mali, namely, the daughter. According to the defeadants' Case the property was the self-acquired property of Lakshminia and it was her absolute property, which she parted with by making a deed of gift in favour of her grand-sons, who got unlimited interest in the disputed house. The death of Lakshminia in the year 1968 made no difference, the alternative case of the defendants is that even if the property belonged to Chhotan Mali, Lakshminia remained in possession of the property inspite of the deed of gift of 1938, and she being possessed of the property in the year 1968, the deed of gift which was of limited character, got automatically enlarged upon Lakshminia's death and the said gift became of unlimited character, excluding the reversioner's entry to the property. 4.
4. The Courts below found that the suit property was the acquisition of Chhotan Mali which he acquired vide the sale deed Ext.6 on 30.1.1912. It was not the self acquired property of Lakshminia. The Courts below further found the deed of gift dated 15.8.1938 Ext K, executed by Lakshminia to be valid. They also found that Lakshminia remained in possession of the property inspite of the deed of gift executed by her since she had paid the rent etc. On the said findings, both the Courts below held that Lakshminia transmitted her limited right which the was possessed of in the year 1938 by the deed of gift which automatically came to an end in the year 1968, when she died. Thereafter the property devolved upon the reversioner of Chhotan Mali, namely Bechni, his daughter, and she being the full owner of the property, rightly conveyed it to the original plaintiff on 24.3.1969. Brahamdeo, the grand-son, could have no right to dispose of the property in favour of the defendants and the defendants acquired no right, title and interest in the property. The question of adverse possession was decided against the defendants. It may be stated here that the suit itself was instituted in the year 1972. 5. At the time of admission of this appeal, the following questions of law were framed :- 1. Whether the Courts below have committed error of law in holding that the property in dispute belongs to Lakshminia's husband Chhotan, who died in the year 1928 only on the basis of a reference to this in an order in a proceeding under section 145 of the Code of Criminal Procedure rejecting in the process statement by Lakshminia herself in a deed of lift executed by her on 15.9.38 2. Whether in view of the statement in paragraph 22 of the trial court judgment about the deed of gift executed by Lakshminia in favour of her daughter Bechni and her daughter's sons, was the inheritance by daughter's sons, the male reversioners not exclerated so as to perfect their absolute interest as reversioners to Chhotan, being his daughter's sons ? 3.
Whether in view of the statement in paragraph 22 of the trial court judgment about the deed of gift executed by Lakshminia in favour of her daughter Bechni and her daughter's sons, was the inheritance by daughter's sons, the male reversioners not exclerated so as to perfect their absolute interest as reversioners to Chhotan, being his daughter's sons ? 3. Whether the Courts below have committed error of law in placing the onus to prove that the property in question was validy gifted by Lakshminia to her daughter and daughter's sons upon the defendants instead of the plaintiff who were required to prove that their transferor Lakshminia had valid subsisting title on the date of their purchase ? However, in course of arguments, learned lawyer for the appellants pressed the first point framed, and framed another substantial question of law to the effect that : The deed of gift executed in the year 1938, which was of limited character automatically enlarged into an unlimited character because inspite of the deed of gift, Lakshminia continued to be in possession of the property in the year 1956 as well when Section 14 of the Hindu Succession Act, came into force. 6. So far as the first point is concerned, I find no substance in it, inasmuch as the finding is based on other evidence, and not founded upon entirely on the order passed under section 145 of the Code of Criminal Procedure. Further, this is purely a question of fact, and not a substantial question of law to be gone into in a second appeal. 6A. Before I take up the second question I would like to state the law relating to a lift of immovable property under the Transfer of Property Act. It has to be by a registered instrument made voluntarily with out consideration by one person to the other and the latter accepting the same during the lifetime of the donor. Handing over the deed of gift to the done or some one on his behalf or signing the deed of gift at the time of execution as well as at the time of presentation to the sub Registrar, is also held acceptance of gift. Law is clear that either donee may accept the gift or it may be accepted on his behalf. Delivery of possession in a registered deed of gift, unlike Mohamedan gifts, is not necessary.
Law is clear that either donee may accept the gift or it may be accepted on his behalf. Delivery of possession in a registered deed of gift, unlike Mohamedan gifts, is not necessary. There is no pleading that this is required under any custom (See Chedi Janti vs. Gangali Debi, 1985 P. L. J. R. 91 Mst. Samrathi Devi vs. Prasuram Pandey, A. I. R. 1975 Patna 140, and Balwant Singh vs. Chatin Singh, A. I. R. 1985 Punjab & Haryana 74). 7. The lower appellate Court has found the deed of gift to be a genuine and valid document during the lifetime of Lakshminia Devi who died in the year 1968. Therefore, the defendants' vendor namely, the donee had right to confer title till up to 1968, the year of the death of the donor. After having so found, the lower appellate Court records another finding “Thus I have no doubt in my mind that the vendor of the defendants did not confer valid right and title upon the defendants by the sale deed dated 30. 11. 1968 before which Lachminia Debi became absolute owner of the suit house which was coming in her possession inspite of the deed of gift which is apparent from Exts. C series, the receipts, and Ext. G series, the site plan passed in her Dame and on her death, daughter Bechni Debi being Class I heir of Chhotan Mali Inherited the suit house and rightly transferred the same to the plaintiff. 8. Learned counsel for the appellants assailed the last part of the said finding but relied upon the fact that Lakshminia remained in possession of the property in the year 1956 and became the absolute owner thereof and, therefore, the deed of gift, which was of limited character, because absolute in nature on and from 1956 and/or upon the death of Lakshminia in the year 1968, and as such the donee had the legal right over the property as also the right to convey it to the defendants. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that once the deed of gift was executed by Lakshminia, she had no right to the property and she ceased to be the owner of the property, She had parted with all her right.
Learned counsel appearing on behalf of the respondents, on the other hand, submitted that once the deed of gift was executed by Lakshminia, she had no right to the property and she ceased to be the owner of the property, She had parted with all her right. Therefore, her possession in the year 1956 is do void of any right, much less, possession recognised by law. 8A. Mr. Mazumdar appearing on behalf of the appellants in support of his submission relied upon the decisions in Gopal Singh vs. Dilo Ram (A.I.R. 1987 Supreme Court 2349) and Terene Traders Vs. Ramesh Chandra Jamnadas & Co. (A.I.R. 1987 Supreme Court 1492). Learned counsel for the respondents, however, contended that those two decisions arc of no assistance to the learned counsel for the appellant and strongly relied upon the decision reported in the case of Munshi Singh and others Vs. Smt. Sohan Bat (A I. R. 1989 Supreme Court 1179). 9. Before I consider the respective arguments of the parties. I must state that two other questions framed by this Court at the time of admission of the appeal are based on wrong assumption of facts, namely, that the deed of gift was also executed in favour of Bechni Devi This ill not correct. None of the learned counsel pressed and/or relied on those two questions. 10. Before I refer to the decisions cited by the learned counsel for the parties the factual and legal position as emerges is as follows- (a) The deed of gift executed by Lakshminia in favour of her minor grandsons in the year 1938 is legal and valid; (b) She, however continued to remain in possession inspite of the deed of gift in the year 1956 and or till her death in the year 1968 : (c) None of the courts below found the deed of gift to be inoperative nor and declaration obtained by anybody from a court of law that the deed of gift executed' by Lakshminia was ineffective and inoperative; (d) Lakshminia did not execute any other document after 1956 or before her death either in favour of her daughter or grandsons, conferring any right, if any, in the property : (c) Bechni Devi is the only reversioner of Chhotan Mali and ; (f) Bechni Devi is Class I heir mother, if the property is held Labhminia's absolute property. 10A.
10A. The original plaintiff Bishambhar Prasad purchased the property from Bechui Devi, whereas the defendants appellants purchased the property from the only surviving donee of Lakshminia Devi. The question, therefore, is who had the right over the property to convey legal and valid title to the property, either to the plaintiff or to the defendants upon the death of Lakshminia Devi ? 11. In the case of Gopal Singh and another (supra), the deed of gift executed by the widow prior to 1956 was held to be invalid by the Court decree, and, therefore, the widow continued to remin in possession of the property, and after coming into force of section 14 of the Hindu Succession Act, when her limited estate became absolute, the will executed by her subsequent to the coming into force of section 14 of tile Hindu Succession Act, was held to be valid. This case is, therefore clearly distinguishable, inasmuch as here the deed of gift by Lakshminia remained operative and there has been no retransfer of the property by the widow In favour of her grand-sons nor could she execute an instrument because she had parted with her right by execution of a registered deed of gift. 12. In the case of Jagannathan Pillai vs. Kunjithapadam and others (A.I.R. 1987 Supreme Court 1493), the Hindu widow transferred the property prior to the commencement of the Hindu Succession Act, 1956, having limited ownership. Subsequent to the commencement of the Hindu Succession Act, the property was retransferred to her by the transferee in whose possession she had transferred it prior to the commencement of the Act. The question arose, whether she was the absolute owner of the property on obtaining retransfer. The Supreme Court held a Hindu female who had acquired a limited estate in the property before or after the commencement of the Act, by remaining in possession thereof, provided she was in possession of the property, when the Act, came into force. The estate possessed by her will be absolute. The same will be the position even if she possessed the property in lieu of her right to maintenance against the estate of her deceased husband. She will become a full or absolute owner on coming into force of the Hindu Succession Act, because the origin of her right is traceable to the right against her husband's estate.
The same will be the position even if she possessed the property in lieu of her right to maintenance against the estate of her deceased husband. She will become a full or absolute owner on coming into force of the Hindu Succession Act, because the origin of her right is traceable to the right against her husband's estate. In that case, the Hindu female acquired the property by re transfer after the commencement of the Act, and, therefore, clearly covered under section 14(2) of the Hindu Succession Act, read with section 14(1) of the Act. The retransfer of the property to the widow in the year 1963 made her a full owner under the said sub section 14(2) read with section 14(1) of the Act. Therefore, on the date when her right to the property was questioned, she was possessed of the property which she had inherited from her husband, she having by then re-acquired and re-gained what she had lost. Therefore, it is not open to anyone to contend that she had limited ownership in the property. This case also is clearly distinguishable and docs not support the contention of Mr. Mazumdar. On the contrary, it goes against his submission. -The word “possess” has been held in Jagannathan Pillai's case (supra) in the context of section 14 of the Hindu Succession Act, a right to the property or control over the property. After the execution of the deed of gift, Lakshminia had no right to the property or control over the property. She might be looking after the property on behalf the donee. To become an absolute owner her possession should be in a form recognised by law. On execution of the registered deed of gift, she ceased to have any right to the property. She might be looking after the property on behalf of her minor grand sons. This is neither actual possession nor constructive possession over the property or possession in any legal sense. I am aware that the word possession is a polymorphous term which may have different meaning in different contexts. It is not possible to have a precise definition of possession uniformly applicable in the context of all Statutes (see Superintendent and Rememberancer of Legal Affairs vs. Anil Kumar Bhunja, A.I.R. 1980 Supreme Court 52).
I am aware that the word possession is a polymorphous term which may have different meaning in different contexts. It is not possible to have a precise definition of possession uniformly applicable in the context of all Statutes (see Superintendent and Rememberancer of Legal Affairs vs. Anil Kumar Bhunja, A.I.R. 1980 Supreme Court 52). The decision of the Supreme Court in the case of Munshi Singh vs. Smt. Sohan Bai (A.I.R. 1989 Supreme Court 1179) appears to be apt It was held in the said case that on the date Hindu Successesion Act, came into force, the widow having already made a valid deed of gift prior to the coming into force of the said Act, in favour of some one, she, could not be said to be possessed of any right in the property on the date t he Act, came into force and, therefore, she cannot get any advantage from the coming into force of the Hindu Succession Act. Therefore, the sale deed executed by the widow after the coming into force of the Hindu Succession Act, conferred no title to the property nor she was in possession thereof there was no residuary right left to her, but if any residuary right could be thought of that could be the right of the reversioners to get as heirs of her husband on her death, and on that basis, it could not be said that she could be possessed of any right in the property which she held as a limited owner on the date the Hindu Succession Act, came into force. Gopal Singh's case (supra) was distinguished on the ground that the deed of gift was ineffective and the donor continued in enjoy her right and benefit she had during her limited ownership until 1956, by the compromise decree of the Court. 13. In the instant case, the herd of gift Wall executed by Mosst. Lakshminia on 15 6.1938, which is held to be valid, she kept to herself no residuary right, but ceased to be the owner of the property with no right to herself and, therefore, her possession in the year 1956 cannot be deemed to be her possession recognised in law. It is just possible that she was being maintained by her grandsons by allowing her possession on their behalf, and not on her own right.
It is just possible that she was being maintained by her grandsons by allowing her possession on their behalf, and not on her own right. Her right is not traceable to the right against her husband's estate. Therefore, upon her death, the limited ownership conferred by the deed of gift stood extinguished and the property reverted to her daughter, who was the only reversioner to the estate of her father, conversely, if it is assumed that Mosst. Lakshminia possessed of the property in her own right and the deed of gift executed by her on 15.8.1938 remained inoperative, the property will in that event will also go to her daughter, she being Class I heir of her mother. It may be remembered that Lakshminia, if it be assumed to have become an absolute owner of the property on the coming into force of section 14 of the Hindu Succession Act, she died leaving behind no instrument conferring her right, title and interest in the property to anyone. So looking from any angle, upon the death of Lakshminia, the right to the property will devolve upon the reversioner of her husband and or of the heir of Lakshminia, namely, her daughter Bechni Devi under both the conditions. She had, therefore, right, title and interest to convey the property to the original plaintiff, and on one else. The grand-son Brahamdeo could confer no right, title and interest by execution of a deed of sale to the defendants on 30.11.1968. 14. In the result, this appeal is dismissed. The judgment and decree of the Courts below is affirmed. There will be no order as to costs. HP. Appeal dismissed.