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1986 Supreme(SC) 151

SUPREME COURT OF INDIA
R.S. PATHAK AND R.B. MISRA, JJ.
Bai Reva, Appellant
Versus
Bai Jadav, Respondent.
Civil Appeal No. 1047 of 1972
 Decided on 24-4-1986
Advocates appeared
Mr. S. K. Dholakia, Sr. Advocate, Mr.R.C. Bhatia and Mrs. Yamini Dholakia, Advocates, for Appellant; Mr. P.H. Parekh, Advocate, for Respondent.

Advocates:
P.H.Parekh, R.C.BHATIA, S.K.DHOLAKIA, V.DHOLAKIA

Headnote:

Suit for partition - Co-widow and for possession - This is a widows appeal on a certificate of Valuation granted by the Gujarat High Court – It arises out of a suit for partition of the deceased husbands properties filed by the co-widow and for possession of her one half share therein – He was the owner of immovable properties which consisted of houses and lands – Died leaving behind two widows – He had married and some years later in 1936 he entered into matrimony – Apparently his second marriage was not approved of by the first wife and she left the husbands residence and went to live with her fathers family – On the death second wife, continued in possession of husbands properties – It was easy for her to do so for she had been residing with him all along – As we have said was residing away from her husband with her parents – It appears executed a gift deed of her one-half share in property of her deceased husband in favour – Held, Our attention has been drawn by learned counsel to the initiation of mutation proceedings by the appellant, when an application was made by the appellant before the Revenue authorities for the entry of her name in respect of the properties as an heir of her husband – There is nothing on the record before us to indicate that she asserted absolute right to the property to the exclusion of the respondent– During the lifetime respondent had obtained an order for payment of maintenance from her husband and, on the death appellant continued payment of maintenance from the property to the respondent up – It is pointed out that the appellant took out insurance in respect of some of the properties and that is evidence, it is said, of asserting absolute title to the properties – Court are unable to agree. Insuring the property is merely an act of management, and cannot constitute proof of ouster of the respondent Bai Jadav – In any event, it was done only – Court are of the view that there is no evidence on the record to show that the appellant asserted any exclusive right to the properties for a period of 12 years before the suit was filed – Appeal dismissed.

JUDGMENT:— This is a widows appeal on a certificate of Valuation granted by the Gujarat High Court. It arises out of a suit for partition of the deceased husbands properties filed by the co-widow and for possession of her one half share therein.

2. One Bhikhabhai resided at Rahad in the Taluka of Wagra in the district of Broach. He was the owner of immovable properties which consisted of houses and lands. Bhikhabhai died on March 12, 1947 leaving behind two widows, Bai Jadav and Bai Reva. He had married Bai Jadav in 1933, and some years later in 1936 he entered into matrimony with Bai Reva. Apparently his second marriage was not approved of by the first wife and she left the husbands residence and went to live with her fathers family. On the death of Bhikhabhai, Bai Reva, the second wife, continued in possession of her husbands properties. It was easy for her to do so for she had been residing with him all along. As we have said, Bai Jadav was residing away from her husband with her parents. It appears that in May 1958 Bai Jadav executed a gift deed of her one-half share in the Gabhan property of her deceased husband in favour of one Jijibhai Shankerbhai. Thereafter on May 27, 1959, Bai Reva sold the Gabhan property to one Ahmad Vali Isap. This provoked Bai Jadav to file a suit on June 15, 1959 in the Court of the learned Civil Judge, Senior Division at Broach. She claimed partition and possession of her half share as well as past and future mesne profits.

3. The suit was resited by Bai Reva on a number of grounds, but the only plea with which we are concerned in this appeal is that of adverse possession.

4. The trial Court decreed the suit and granted a declaration that Bai Jadav was entitled to a half share in the properties in suit and also passed a preliminary decree for partition of the properties. The trial Court also directed ail enquiry for the purpose of ascertaining future mesne profits.

5. Bai Reva appealed to the High Court, and the High court dismissed the appeal by its judgment and decree dated August 11, 1970, maintaining the finding of the trial Court that the suit was within time and not barred by limitation, that Bai Reva had not succeeded in establishing adverse possession, and that Bai Jadav was entitled to the share decreed in her favour by the trial Court. The High Court also passed a decree for past, pendente lite, and future mesne profits.

6. In this appeal, learned counsel for the appellant Bai Reva has strenuously contended that both the trial Court and the High Court have erred, in holding that the appellant has failed to establish adverse possession for a period of twelve years and that the suit filed by Bai Jadav was not barred by limitation.

7. In our opinion, the appeal must fail. Although Bhikhabhai died on March 12, 1947. there is nothing to show that the appellant Bai Reva asserted possession to the exclusion of the respondent Bai Jadav and claimed hostile title against her for a period 12 years immediately before the suit was filed. Our attention has been drawn by learned counsel to the initiation of mutation proceedings by the appellant on April 28, 1947, when an application was made by the appellant before the Revenue authorities for the entry of her name in respect of the properties as an heir of her husband Bhikhabhai. There is nothing on the record before us to indicate that she asserted absolute right to the property to the exclusion of the respondent Bai Jadav. During the lifetime of Bhikhabhai, the respondent Bai Jadav had obtained an order for payment of maintenance from her husband and, on the death of Bhikhabhai the appellant Bai Reva continued payment of maintenance from the property to the respondent Bai Jadav up to 1958. It is pointed out that the appellant took out insurance in respect of some of the properties and that is evidence, it is said, of asserting absolute title to the properties. We are unable to agree. Insuring the property is merely an act of management, and cannot const




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