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1963 Supreme(Pat) 70
PATNA HIGH COURT
R.K.Choudhary and A.B.N.Sinha JJ.
Tilakdhari Rai
Versus
Parma Rai
Decided On : MAY 15, 1963
A widow who enters into possession of a property without being an heir or having any right acquires absolute title by adverse possession, unless she makes it clear that she is taking possession as her widows estate.
Headnote:
ADVERSE POSSESSION - HINDU LAW - WIDOWS POSSESSION - PRESUMPTION - ABSOLUTE TITLE - INTENTION - EVIDENCE - BURDEN OF PROOF - GIFT BY WIDOWS - VALIDITY.
Fact of the Case:
After the death of Gobardhan, the last male holder, three widows, Malida, Adhikaro, and Dhanesra, took possession of the properties. The plaintiff, Tilakdhari Rai, claimed to be the next reversionary heir and filed a suit for a declaration that he was entitled to the properties. The widows claimed absolute title by adverse possession, and the deities, to whom they had gifted the properties, claimed a valid title. The trial court held that the widows had acquired absolute title by adverse possession and that the gift to the deities was valid.
Finding of the Court:
The court held that the widows' possession was adverse to the rightful owner and that they had acquired absolute title by adverse possession. The court also held that the widows had full right to make a gift of the properties to the deities, who acquired a valid title to the said properties.
Issues: 1. Whether the widows' possession was adverse to the rightful owner? 2. Whether the widows acquired absolute title by adverse possession? 3. Whether the widows had full right to make a gift of the properties to the deities? 4. Whether the deities acquired a valid title to the said properties?
Ratio Decidendi: 1. The court held that the widows' possession was adverse to the rightful owner because they entered into possession without being his heirs and continued to be in possession for over twelve years. 2. The court held that the widows acquired absolute title by adverse possession because there was no evidence of an arrangement with the collaterals under which the widow could be said to have taken possession of the lands, and her possession must be taken to have been adverse to the collaterals. 3. The court held that the widows had full right to make a gift of the properties to the deities because they had acquired absolute title by adverse possession. 4. The court held that the deities acquired a valid title to the said properties because the widows had full right to make a gift of the properties to them.
Final Decision: The court dismissed the plaintiff's suit with respect to Schedule I properties and allowed the compromise petition with respect to Schedule II properties.
Choudhary, J.
1. These two appeals arise out of the same Judgment of the Court below. First Appeal No.236 of 1958 is by the plaintiff Tilakdhari Rai. He instituted the suit for a declaration that he was the next reversioner to the estate of one Ganesh Rai and was entitled to the lands described in Schedules I and II of the plaint which had been attached under Sec.146 of the Code of Criminal Procedure and that the defendants had no right, title or interest in the same. According to the plaintiff, his great (sic) great grandfather, Daswant Rai alias Manorath Rai, had a son, Balkhandi Rai, from his first wife, who had four sons, Chitbahal Rai, Man Rai, Gobardhan Rai and Ganesh Rai. Chitbabal had a son, Autar, who died leaving a widow, Adhikar Kuer, Man Rai died leaving widow, Malida Kuer, Gobardhan died unmarried Ganesh died leaving a widow, Dhanesra Kuer. The plaintiff, there fore, claims to be the nearest and sole surviving agnate of Ganesh Rai, who, according to him, died last. His case was that Ganesh died after the death of all his other three brothers and also after the death of Autar Rai, son of Chitbahal Rai, before the cadastral survey, and his widow, Dhanersra Kuer, was recorded in the survey papers along with the other two widows, Malida Kuer and Adhikaro Kuer. The names of these two widows, Malida and Adhikaro, according to the plaintiff, were got recorded for the sake of consolation to them, though the properties in suit were inherited only by Dhanesra Kuer as a Hindu widow. Dhanesra died in Baisakh 1358 Fs. Thereafter, there was dispute under Sec.145 of the Code of Criminal Procedure between the parties and in that proceeding the lands in suit were attached on the 4th of February, 1953, under Sec.146 of the Code of Criminal Procedure. The plaintiff, therefore, filed the suit on the 31st of January, 1956, out of which these two appeals arise.
2. Defendant No. I in the suit is Parma Rai who claims to be the great great grand son of one Adit Rai who is said to be a nephew of Das want Rai, though, according to the plaintiff, he does not belong to the family of Daswant Rai. According to the genealogy given by defendant No.1 also, Balkanadi Rai is shown to have four sons, Chitbahal, Man, Gobardhan and Ganesh. A third genealogy has been set up by defendant No.2, the deities, and the other defendants, who are trustees of the properties gifted to the deities by Adhikaro, widow of Autar Rai, and Dhanesra Kuer, widow of Ganesh Rai. According to that genealogy also, Balkhandi had four sons, as named above. The contest between the plaintiff and defendant No.1 was with respect to their being next reversionary heirs of the sons of Balkhandi Rai. According to the plaintiff, he was the next reversioner and the defendant No.1 did not belong to that family at all, while according to the defendant No.1, he was the next reversioner and the plaintiff did not at all belong to the family of Daswant Rai. According to the deities and the trustees, the one of the trustees, Meghnath Rai, defendant No.2 (c) was the reversioner, and not the plaintiff nor defendant No.1. The deities, however, were concerned only with the properties described in Schedule 1 to the plaint which had been given to them by a deed of gift dated the 12th of September, 1930, by the two widows, Adhikaro and Dhanesra, Malida having already died.
3. The learned Subordinate Judge accepted the genealogy given by the plaintiff and held the plaintiff to be the next reversionary heir. The learned Judge also accepted the deed of gift as genuine and held it to have conferred a valid title on the deities. The suit with respect to Schedule 1 properties, therefore, was dismissed inasmuch as according to the finding of the trial Court, the said properties were validly gifted to the deities. The suit with respect to Schedule II properties was, however, decreed inasmuch as according to the finding, of the trial Court, the plaintiff was the next reversionary heir and defendant No.
