The possession of a Hindu widow who has entered into possession as the widow of the last male-owner or as the widow of the family cannot be treated as adverse.

( 1 ) THIS is a defendants appeal arising out of a suit brought by the first respondent for the cancellation of a sale-deed, dated 22nd October, 1946, executed by Srimati Surja defendant No. 2, in favour of Jamuna defendant No. 1, in respect of a house and for possession over the same.

( 2 ) IN order to appreciate the facts of this case a short pedigree of the parties would be found very helpful. One Sahsa Pandcy died leaving two sons, Gopal and Bhagirath. Gooal had two sons, ori Pandey and Swarup. Ori Pandey had no issue while Swarup had a son, Adhin, who was married to Srimati Smja, defendant No. 2 to this suit. Ori and Swarup and his son Adhin constituted a joint Hindu family and the house in suit belonged to the said joint Hindu family. Swarup died first and then Adhin died on 15th of July, 1927, leaving his widow Smt. Surja. On the death of Adhin, Ori became the sole surviving coparcener of the joint Hindu family, Smt. Surja however continued to live in the house in questjon as a widow of a pre-deceased coparcener of the said joint Hindu family, and this she continued to do even after the death of ori in or about 1931. On 22nd October, 1946 she executed the sale-deed in question in respect of the said house in favour of Jamuna Pandey, the first defendant to this suit. The plaintiff who is the great grandson of Bhagirathi, a brother of Gopal, father of Ori and Swarup, and admittedly the nearest reversioner to Ori, thereupon brought the suit which has given rise to the aforesaid second appeal for the reliefs already stated in the opening paragraph of this judgment.

( 3 ) THE defence of the vendee, Jamuna Prasad, defendant No. 1, who alone was interested in contesting this suit was that the house in suit was the exclusive property of Ori and that Smt. Surja by continuing to occupy it without any right Or title for more than the statutory period of 12 years after the death of Ori, had acquired full rights of ownership of the said house by prescription as against the nearest reversioner of Ori, that is to say, the plaintiff. As such it was pleaded that she had full rights to transfer the said house to defendant No. 1.

( 4 ) THE trial Court dismissed the plaintiffs suit holding that there was no evidence to show that ori and Adhin formed a joint Hindu family, and that as such Smt, Surjas possession of the said house after the death of Ori was adverse to the nearest reversions of Ori, viz. the plaintiff; and as she had remained in possession over it for more than 12 years she had perfected her right of ownership by adverse possession and so was competent to execute the sale deed in question.

( 5 ) ON appeal the lower appellate Court reversed the judgment and decree passed by the trial court and decreed the plaintiffs suit on the ground that the only right which Smt. Surja had in the house in dispute was the right of residence which every Hindu widow has and that after the death of her husband and later on her husbands uncle Ori, her possession would be deemed to be in continuation of the exercise of the said right of residence and as the nearest reversioner, viz. the plaintiff could not have ejected her, her possession after the death of Ori could not be deemed to be adverse to the plaintiff.

( 6 ) THIS appeal was first heard by a learned Single Judge of this Court who feeling somewhat doubtful about the correctness of his decision on the same point in the case of Ulfat Rai v. Kamla devi, AIR 1949 Ail 458 (A), referred it to a Division Bench.

( 7 ) THE lower appellate Court in decreeing the plaintiffs appeal did not record any findings on the questions whether Ori and Adhin had been joint or separate and whether the house in suit was then ancestral property, or the exclusive property of Ori, as in its opinion, for some reason which we fail to appreciate, the decision of those questions was not necessary for the purpose of the present case. We do not agree with this view of the court below. In our opinion the ques