Judgement

Appeal (No. 53 of 1933) from a decree of the High Court (April 22, 1931) reversing a decree of the Additional District Judge of Aligarh (June 21, 1928), which affirmed a decree of the Subordinate Judge of Aligarh (March 26, 1928).

This appeal arose out of a suit instituted by the appellants claiming an estate left by one Musammat Naraini, a Hindu widow. The respondents were grandsons of Musammat Narainis father, Ji Sukh Ram, being the sons of another daughter of Ji Sukh Ram, and they alleged that the estate held by Musammat Naraini during her lifetime was not an estate of an absolute owner, but was a limited estate of a Hindu daughter, and that she having died childless the estate descended in the line of her fathers family and not in the line of her husbands family, as claimed by the appellants, and that they (the respondents), being the only reversioners of her father, Ji Sukh Ram, were entitled to succeed to the estate on her death.

The question for determination was whether Musammat Jamna, the widow of Ji Sukh Ram, who gave the property in question to her daughter Naraini, had herself an absolute estate.

The facts appear fully from the judgment of the Judicial Committee.

The Subordinate Judge allowed the appellants claim for possession, and made a decree accordingly.

On appeal the District Judge affirmed the decree.

On second appeal to the High Court the learned judges (Pullan and Niamat-Ullah JJ.) allowed the appeal and set aside the decrees of the two lower Courts and dismissed the plaintiffs suit. [The application for leave to appeal to His Majesty in Council is reported at ( 1932) I. L. R. 54 A. 431.]

1935. Nov. 26, 28. Hyam for the appellants. The question is whether an estate which was given to a Hindu daughter devolved on her own heirs as stridhanum, or whether it was a limited daughters estate, devolving not on her own heirs but reverting back to her fathers estate. The only dispute is whether her mother, Jamna, had an absolute estate in the property which she purported to convey absolutely to her daughter by deed of gift. Separate acquired estate forms joint property, but it does not form joint family property. By the separation deed of 1873 the youngest brother separated, but Ji Sukh Ram and his other brother continued to remain joint. Under the award of 1892 Jamna got an absolute interest. There was the further question of adverse possession. The award was made in 1892, and Jamna took possession of the estate then and remained in possession for over twelve years, until 1905, when she made the gift, asserting her right to have full power to transfer. She acquired the right to dispose of the property in the way she did after the expiration of the twelve years. On the construction of the award See Sreemutty Rabutty Dossee v. Sibchunder Mullick (( 1854) 6 Moo. I. A. 1, 17.) “The deed must be construed with reference to the situation of the parties and their rights at the time the deed was executed." The High Court drew a deduction which was quite unauthorized. The true interpretation of the award was that Jamna did not get anything as heir of her husband. There is nothing to prevent a Hindu widow from taking an absolute estate in a portion of the joint property in lieu of maintenance, provided that there is an agreement by the donor, and on the true construction of the award in the present case Jamna got an absolute interest in the property allotted to her.

[LORD BLANESBURGH. If she did not, she would not by any lapse of time get against the brother any more than the award gave her?]

Failing the construction that the award gave her an absolute estate, we have at least her assertion that she was holding it with full power of alienation from 1892 to 1905. She therefore matured her title. She did not get the property as heir to her husband; the High Court should have given effect to the finding of the first Appeal Court that the two brothers were joint. On the point of adverse possession, all that is decided