Mst. Kirpal Kaur Vs. Bachan Singh
& Ors [1957] INSC 101 (15 November 1957)
SARKAR, A.K.
DAS, SUDHI RANJAN (CJ) IMAM, SYED JAFFER
CITATION: 1958 AIR 199 1958 SCR 950
ACT:
Adverse possession-Hindu Jat widow in
possession as full owner-Life estate by subsequent agreement with collaterals-
Agreement not registered-If admissible in evidence-lndian Registration Act,
1908 (XVI of 1908), s. 49.
HEADNOTE:
On the death of R, a Hindu jat, in April or
May, 1920, the widow of his pre-deceased son, H, took possession of the
properties and on August 24, 1920, obtained a mutation of the settlement
records showing her as the owner of the lands in the place of R. A gift of half
of the properties by H to her daughter K 949 gave rise to disputes between them
and the collaterals but the matter was settled on H executing a document on
February 6, 1932, whereby, inter alia, she agreed that the lands would belong
to her for her life and after her death to her daughter for the latter's life
and that none of them would be entitled to sell or mortgage the lands. The
document, however, was not registered. In 1939 H made a gift of the entire
lands to K who obtained a mutation of the settlement records showing her as the
owner of the lands, and in 1945 a suit was filed by the collaterals challenging
the transaction as not binding on them as the reversionary heirs of R. Under
the general custom governing the parties as admitted by them a widow of a
pre-deceased son was entitled only to maintenance when there were collaterals,
and as H was in possession of the properties since 1920 it was said by her and
K that she had, at the date of the gift, acquired an absolute title by adverse
possession. It was contended for the plaintiffs, interalia, that the agreement
of February, 1932, though not admissible in evidence to prove that H and K had
only life estates in the lands, was admissible to show the nature of H's
possession and that it showed that her possession was not adverse.
Held, that the document dated February 6,
1932, was in- admissible in evidence, in view Of S. 49 of the Indian Registration
Act, 1908, as H had been in possession before the date of the document and to
admit it in evidence to show the nature of her possession subsequent to it
would be to treat it as operating to destroy the nature of the previous
possession and to convert what had started as adverse possession into a
permissive possession, and therefore, to give effect to the agreement contained
in it.
Varatha Pillai v. jeevarathnammal, (1918)
L.R. 46 I. A. 285, distinguished,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 137 of 1953.
Appeal from the judgment and decree dated the
November 30, 1951, of the former Pepsu High Court in R. S. Appeal No. 49 of
1948 against the judgment and decree dated the May 1, 1948, of the Court of the
District Judge, Patiala, in Civil Appeal No. 22 of 1946-47, arising from the
judgment and decree dated the April 4, 1947, of the Court of the Sub Judge 11
Class, Bassi in Suit No. 721 of 1945.
Achhru Ram and K. L. Mehta, for the
appellant.
Raghbir Singh and S. S. Dhillon, for the
respondent No. 1.
950 1957. November 15. The following Judgment
of the Court was delivered by SARKAR J.-The only question for decision in this
appeal is whether title had been acquired to certain lands by adverse
possession.
Ram Ditta was a Hindu Jat of village Bhathal
in District Bassi which was originally in Patiala but subsequently came to be
included in Patiala & Eastern Punjab States Union. He died in April or May
1920 leaving certain lands which were the subject matter of dispute in the suit
out of which this appeal arises. Ram Ditta had a son named Jeona who
predeceased him leaving a widow, Harnam Kaur. Harnam Kaur has a daughter,
Kirpal Kaur and the latter is the appellant before us. Kirpal Kaur has a son of
the name of Satwant Singh. Ram Ditta had certain collateral relations and the
dispute was between them on the one hand and Harnam Kaur and Kirpal Kaur on the
other. These collaterals are the contesting respondents in this appeal.
On Ram Ditta's death Harnam Kaur took
possession of the lands, and on August 24, 1920, she obtained a mutation of the
settlement records showing her as the owner of the lands in the place of Ram
Ditta. By a deed dated November 27, 1929, she purported to make a gift of half
of the lands to Kirpal Kaur on the occasion of the latter's marriage.
Thereafter an attempt was made to obtain a
mutation of the settlement records showing Kirpal Kaur as the owner of the
lands given to her but on the objection of the collaterals the mutation was
refused on May 12, 1930. This gift gave rise to various litigation both civil
and criminal between Harnam Kaur and Kirpal Kaur on the one hand and the collaterals
on the other. Mutual friends intervened to put an end to this unhappy state of
affairs and at their efforts a settlement of the disputes was arrived at. On
February 6, 1932, a document was executed by Harnam Kaur whereby she agreed
that the lands would belong to her for her life and after her death to Kirpal
Kaur for the latter's life and that none of them would be entitled to sell or
mortgage the lands. The document further stated 951 that Harnam Kaur had
previously created a mortgage on the lands and that she would have the right to
create another mortgage on them to pay off certain specified debts due by her
and such mortgage would be binding on the collaterals but after her death there
would be no other burden on the collaterals. This document was never
registered. In 1936, Harnam Kaur created another mortgage on the lands and this
mortgage was subsequently transferred to Satwant Singh, son of Kirpal Kaur. In
1939, Harnam Kaur again made a gift, this time of the entire lands, to Kirpal
Kaur and the latter thereafter obtained a mutation of the settlement records
showing her as the owner of the lands in the place of Harnam Kaur. This
eventually brought about the institution of the suit out of which the present
appeal arises.
This suit was filed in March 1945, by some of
the collaterals against Harnam Kaur, Kirpal Kaur and Satwant Singh impleading
certain other collaterals who did not join as plaintiffs, as defendants. It
sought a declaration that the gift of the lands by Harnam Kaur to Kirpal Kaur and
the mortgage of 1936 were illegal and were not binding on the collaterals who
were the then reversionary heirs of Ram Ditta. The suit was contested by Harnam
Kaur, Kirpal Kaur and Satwant Singh.
The court of first instance framed the
following issues for trial:
1. Are the plaintiffs the collaterals of
Jeona ?
2. Is the property in dispute ancestral ?
3. Was the mortgage in dispute effected for
legal necessity ?
4. Is the gift in dispute valid according to
custom ?
5. Is the suit time barred ?
6. Had Harnam Kaur acquired a right to the
lands by adverse possession at the time of the gift to Kirpal Kaur ? The first
five issues were decided in favour of the plaintiffs, and the sixth against
them. With regard to the sixth issue it appears to have been admitted 121 952
before the learned trial Judge by both parties that according to the general
custom governing the parties a widow of a pre-deceased son, as Harnam Kaur was,
was entitled to maintenance only when there were collaterals of the degree that
the collaterals in this case are. The learned Judge held that the possession of
Harnam Kaur was, therefore, adverse to the collaterals and that as she had
admittedly been in possession since 1920 and as the relations between her and
the collaterals had been unfriendly, she had acquired at the date of the gift
an absolute title to the lands by adverse possession. It was contended before
him that the agreement of February 6, 1932, though not admissible in evidence
in the absence of registration to prove that Harnam Kaur and Kirpal Kaur had
only life estates in the lands, was admissible to show the nature of Harnam
Kaur's possession and that it showed that her possession was not adverse. The
learned Judge did not accept this contention. In the above view of issue No. 6
he dismissed the suit.
The plaintiffs then took the matter up in
appeal to the District Judge of Patiala. Harnam Kaur and her side never took
any exception to the issues found against them by the trial Judge. The learned
District Judge was therefore only concerned with the sixth issue. It was
contended before him on behalf of the plaintiffs that Harnam Kaur's possession
was not adverse to them as she had been in Possession claiming only a right of
maintenance and this was sought to be supported by the Patwari's report in
connection with the mutation of August 24, 1920. The learned District Judge
held that the report, a reference to which will be made later, did not show any
assertion on the part of Harnam Kaur that she claimed to be the heir of Ram Ditta
or that she was in possession in lieu of her maintenance. With regard to the
agreement of February 6, 1932, he held that it was of no assistance to the
collaterals. In the result he dismissed the appeal.
The collaterals then went up in appeal to the
High Court of Patiala and Eastern Punjab States 953 Union. The High Court took
the view that in coming to the conclusion that Harnam Kaur's possession was
adverse to the collaterals the Courts below had proceeded on the basis that
being the widow of Ram Ditta's predeceased son she was not an heir to him and,
therefore, her possession of Ram Ditta's estate was necessarily adverse to his
heirs, the collaterals. The High Court felt that in doing so the Courts below
were thinking of Hindu Law under which the widow of a pre-deceased son was not
an heir but was entitled to maintenance only, and had overlooked the fact that
the parties being Punjabi Jats, were governed by custom. The High Court then
referred to paragraph 9 of Rattigan's Digest of Customary Law-which is a book
of unquestioned authority on Punjab customswhere it is stated that " the
widow of a sonless son who predeceases his father, is, in some tribes, permited
to succeed to his share " and held that it appeared from the Patwari's
report mentioned earlier that Harnam Kaur was regarded as Ram Ditta's heir and
that was why mutation in her favour had been sanctioned. The High Court then
proceeded to hold that it was legitimate to presume from this that the tribe to
which Ram Ditta belonged recognised the right of a widow of a predeceased son
to succeed her father-inlaw in the place of her husband in preference to the
collaterals of the deceased. The High Court thought that in view of this
custom, which it found was proved in this case, Harnam Kaur was entitled to the
possession of the lands and no presumption could therefore &rise that she
was holding them adversely to the collaterals. The High Court also held that
the agreement of February 6, 1932, was admissible in evidence to prove the
nature of Harnam Kaur's possession of the lands though it was not admissible to
prove title as it had not been registered. The High Court was of the view that
the agreement showed that since its execution the nature of Harnam Kaur's
possession was permissive and not adverse and as at the date of the agreement
she had not been in possession for the requisite period, she never acquired
title by adverse possession, whatever may have been the character of 954 her
possession prior to it. The High Court lastly held that in any event, Harnam
Kaur had entered into possession as heir of her father-in-law and, therefore,
adverse possession by her would be considered as creating only a widow's estate
in her and therefore she had not become an absolute owner and the nature of the
estate acquired by her by adverse possession was that of a widow's estate
governed by the customary law with no power of alienation. The High Court,
therefore, allowed the appeal and decreed the suit.
From this judgment of the High Court the
present appeal to us arises. The appeal had been filed by Harnam Kaur and
Kirpal Kaur, but later Harnam Kaur abandoned it and she was removed from the
record as an appellant. The appeal before us now, therefore, is only by Kirpal
Kaur.
Learned counsel for the respondents, by which
we mean the contesting respondents, contended that Kirpal Kaur alone was not
competent to appeal because the alienations challenged had been made by Harnam
Kaur. We cannot accept this contention. Kirpal Kaur as the alienee is certainly
entitled to prosecute this appeal to protect her rights under the alienation.
Her rights in no way depend on whether the alienor chooses to stand by the
alienation or not.
The points argued before us were the same as
were canvassed in the High Court. With regard to the special custom, which the
High Court held governed the parties to this case, learned counsel for the
appellant contended that no such custom had been pleaded and no issue about it
framed, nor indeed any hint of it given at any earlier stage of the proceeding
in any of the courts below. We feel that these contentions are justified. In
the plaint no mention of the custom is to be found. The plea as to adverse
possession was raised by Harnam Kaur and Kirpal Kaur in an amended written
statement that they filed. The plaintiffs never filed any replication setting
up the special custom alleged by them as they should have done if they wished
to rely on it in answer to the case made by the defendants by the amendment.
Further. more, as earlier stated, it was admitted by both, 955 parties before
the trial Judge, that the custom governing the parties was that the widow of a
predeceased son was only entitled to maintenance out of her fatherin-law's
estate.
As learned counsel for the appellant pointed
out, the passage in Rattigan's Digest makes it clear that the general custom is
that the widow of a predeceased son is not an heir of her father-in-law but
that in some tribes a special custom prevails which makes her the heir, and
that the onus of proving the special custom lies on those who assert it.
It was therefore in this case for the
respondents to have pleaded and proved the special custom. As already stated,
they neither pleaded the special custom, nor proved it nor even made an attempt
to do so. After Harnam Kaur and Kirpal Kaur had closed their case, the
respondents were given a chance to produce evidence in rebuttal but even then
they did not make any attempt to establish the special custom.
In these circumstances, in our view, no
question as to the special custom should have been permitted by the High Court
to be raised.
Furthermore, we are unable to agree with the
High Court that there is evidence in this case to prove the special custom.
As already stated, the High Court thought
that it might be presumed from the Patwari's report that the special custom
governing the tribe to which the parties belonged prevailed.
This report of the Patwari is dated June 9,
1920, and was made in connection with the proceedings for the mutation of the
name of Ram Ditta to that of Harnam Kaur soon after the former's death. That
report reads as follows:
"Sir, Ram Ditta S/o Begha Jat Bhathal
died a month back.
Mst. Harnam Kaur widow of Jeona, who is the
real daughter- in-law of the deceased, is the heir and is in possession of the
property. Hence the mutation having been entered is hereby submitted for
orders." Upon this report the following order was made:
" The factum was confirmed in the
general gathering in presence of Bhana, Arjan Singh and Narain Singh,
lambardars and of Mst. Harnam Kaur, the daughter-in-law of the deceased. Hence
the mutation 956 of the holding of Ram Ditta deceased in favour of Mat.
Harnam Kaur, widow of Jeons Jat, is hereby
sanctioned.
Dated......... 24th August, 1920, A.D."
The report, no doubt, states that Harnam Kaur was Ram Ditta's heir. It is said
that she could be an heir only under the special custom and hence the special
custom must be deemed to have been proved in this case. But the report of the
Patwari shows that in his own opinion Harnam Kaur was the heir of Ram Ditta. We
do not know, how he came to have such an opinion or whether he had based it on
the special custom. The report was not evidence given in court and is not
strictly admissible to prove the custom and, in fact, the report was not
tendered as evidence of the custom. It is said that the Patwari's report
indicated that there must have been an application by Hamam Kaur claiming the
mutation on the basis that the had succeeded to the lands as the heir of Ram
Ditta under the special custom. No such application is, however, on the
records. We are unable to draw any presumption as to what statement might have
been made in the application, if there was one. We do not think that the order
of August 24, 1920, carries the matter further. It is said that when the order
stated that " the factum was confirmed " it meant that the factum of
the custom was confirmed. We cannot accept this contention. The factum referred
to may well have been the death of Ram Ditta or that Harnam Kaur was the
daughter-in-law of Ram Ditta. Even if it could be said that the factum
confirmed was the special custom, the same difficulty would arise again,
namely, that the order would show that it is only the opinion of the lambardars
as to the existence of the special custom. Such opinion, for the reasons
earlier stated, would not be evidence in this case to prove the custom. Further
in the operative part of the order the mutation is not stated to be based on
the ground that Harnam Kaur was the "heir" of Ram Ditta. We are, therefore,
unable to hold that the Patwari's report or the order thereon proves that
Harnam,Kaur was the customary heir of Ram Ditta and had got into possession in
1920, as such heir and,, 957 therefore, could not have been in adverse
possession.
It is then said that the agreement of
February 6, 1932, showed that since its date her possession was permissive.
The High Court has held that the agreement
was admissible to prove the nature of her possession. In Varatha Pillai v. Jeevarathnammal
(1) it was held that a document which should have been registered but was not,
was admissible to explain the nature of the possession of a person. What had
happened there was that two widows who were in possession of a property in
equal shares, presented a petition to the Collector on October 10, 1895,
whereby after reciting that they had on October 8, 1895, given away the
property as stridhan to one Duraisani, they prayed that orders might be passed
for transferring the villages into her name. On this petition the property was
registered in the name of Duraisani and she was put in possession and
thereafter continued in possession till her death in 1911. The question was
whether Duraisani had acquired title to the property by adverse possession. It
was held that though the petition in the absence of registration could not be
admitted to prove a gift, it might be referred to for showing that the
subsequent possession of Duraisani was as a donee and owner of the land and not
as trustee or manager for the two donors and therefore to show that the nature
of such possession was adverse to them. We cannot agree that on the authority
of Paratha Pillai's case (1) the agreement of February 6, 1932, can be admitted
in evidence in the case in hand to show the nature of Harnam Kaur's possession
of the lands subsequent to its date. In Varatha Pillai's case (1) Duraisani had
got into possession only after the petition and claimed to retain possession
only under the gift mentioned in it. The petition was therefore admissible in
evidence to show the nature of her possession. In the present case Harnam Kaur
had been in possession before the date of the document and to admit it in
evidence to show the nature of her possession subsequent to it would be to
treat it as operating to destroy the nature of the (1)(1918) 46 I.A. 285. 958
previous possession and to convert what had started as adverse possession into
a permissive possession and, therefore, to give effect to the agreement
contained in it which admittedly cannot be done for want of registration.
To admit it in evidence for the purpose
sought would really amount to getting round the statutory bar imposed by s. 49
of the Registration Act.
Lastly, the High Court held that as Harnam
Kaur had entered into possession as the heir of Ram Ditta she could, at most,
be considered to have acquired by adverse possession a widow's estate in the
lands and could not therefore, make a gift of them. The High Court had referred
to Bura Mal v. Narain Das (1) as an authority for this proposition. In our
view, that case is of no assistance. There a female who was not an heir of the
last full owner but was only entitled to maintenance, took possession of the
properties in lieu of her maintenance by an arrangement with the heirs of the
owner, and in those circumstances it was held that her possession could not be
adverse to the heirs. There is no evidence of any such arrangement in this
case, nor is it the case of the respondents that such an arrangement had ever
been made. The High Court also referred to the case of Pandappa Mahalingappa v.
Shivalingappa This case was based on Lajwanti v. Safa Chand and it would be
enough to refer to " It was then argued that the widows could only possess
for themselves; that the last widow Devi would then acquire a personal title;
and that the respondents and not the plaintiffs were the heirs of Devi. This is
quite to understand the nature of the widows' possession. The, Hindu widow' as
often pointed out, is not a life renter, but has 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."
(1) 102 P. R., 1907. (2) A.I.R. 1946 Bom. 193.
(3) (1924) 51 I.A. 71, 176.
959 In order that the authority of this case
may apply to the case in hand, it has to be proved that Harnam Kaur entered
into possession of lands claiming a widow's estate therein as an heir of Ram
Ditta. We find no evidence to prove that such was her claim. The Patwari's
report earlier referred to cannot be construed as such a claim. It was only the
Patwari's opinion of the situation. It cannot therefore be said in this case
that Harnam Kaur was in possession claim- ing a widow's estate in the lands, as
the customary heir of her father-in-law. Furthermore, in Lajwanti's Case the
widows who were found to have acquired title by adverse possession were undoubtedly
the heirs of their husband and would have succeeded to his properties if a
posthumous son whose existence was assumed by the Judicial Committee, had not
been born to him. It was possible for these widows to bold property as heirs of
their husband and make them good to his estate. Lajwanti's Case therefore was
concerned with a female who was admittedly an heir. That is not the case here.
As we have already stated, the special custom under which alone Harnam Kaur
could have become an heir of Ram Ditta has not been proved. On the case as made
and the evidence before us, it must be held that Harnam Kaur could never have
been the heir of Ram Ditta. That being so, it was impossible for her to have
acquired by adverse possession title to property as his heir or to make such
observation of the Judicial Committee in sham Koer v.
applies to this case " Assuming that
Bhau Natli Singh was a member of an undivided Hindu family governed by the
Mitakshara law, as the Lower Court found and the High Court assumed, neither
his widow nor his son's widow would be entitled to anything more than
maintenance out of his estate. Their possession, therefore, of the three
villages in question would be adverse to the reversionary heirs unless it was
the result of the arrangement with them. If the possession was (1) (1902) 29
I.A. 132, 135, 136.
1 22 960 adverse, the rights of the
reversionary heirs would of course be barred at the expiration of twelve years
from the date of Bhau Nath Singh's death, or the date of the widows' taking
possession, which seems to have been at or shortly after his death." As
there is no evidence of any arrangement with the respondents under which Harnam
Kaur can be said to have taken possession of the lands, her possession must be
taken to have been adverse to the collaterals. Admittedly such possession
commenced in 1920 on the death of Ram Ditta and has continued ever since. So at
the date of the mortgage and gift, Harnam Kaur had acquired a title to the
lands by adverse possession. The respondents' claim must fail.
We, therefore, allow the appeal with costs
throughout.
Appeal allowed.
Back
