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High Court Of Madhya Pradesh
S. R. DAS, C. J. I. , S. J. IMAM AND A. K. SARKAR, JJ.
KIRPAL KUAR - Appellant
Versus
BACHAN SINGH - Respondents
Civil 137 Of 1953
Decided On : 11/15/1957
ADVERSE POSSESSION - TITLE ACQUISITION - CUSTOMARY LAW - SPECIAL CUSTOM - BURDEN OF PROOF - ADMISSIBILITY OF EVIDENCE - REGISTRATION ACT, S. 49 - WIDOW'S ESTATE - HINDU LAW - MITAKSHARA LAW - REVERSIONARY HEIRS - LIMITATION.
Fact of the Case:
Ram Ditta, a Hindu Jat, died in 1920 leaving certain lands. His widow, Harnam Kaur, took possession of the lands and obtained a mutation of the settlement records showing her as the owner. In 1929, she made a gift of half of the lands to her daughter, Kirpal Kaur. The collaterals of Ram Ditta filed a suit seeking a declaration that the gift and a subsequent mortgage were illegal and not binding on them. The trial court held that Harnam Kaur had acquired title to the lands by adverse possession and dismissed the suit. The District Judge upheld the trial court's decision. On appeal, the High Court held that Harnam Kaur was entitled to the possession of the lands under a special custom and that her possession was not adverse to the collaterals. The High Court allowed the appeal and decreed the suit.
Finding of the Court:
The Supreme Court held that the High Court erred in holding that there was evidence to prove the special custom. The Court also held that the agreement of 6-2-1932, was not admissible in evidence to show the nature of Harnam Kaur's possession of the lands subsequent to its date. The Court further held that Harnam Kaur could not have acquired by adverse possession a widow's estate in the lands as she was not an heir of Ram Ditta. The Court allowed the appeal and dismissed the suit.
Issues: 1. Whether the special custom alleged by the respondents was proved? 2. Whether the agreement of 6-2-1932, was admissible in evidence to show the nature of Harnam Kaur's possession of the lands subsequent to its date? 3. Whether Harnam Kaur could have acquired by adverse possession a widow's estate in the lands?
Ratio Decidendi: 1. The onus of proving the special custom lies on those who assert it. In this case, the respondents failed to plead and prove the special custom. 2. The agreement of 6-2-1932, was not admissible in evidence to show the nature of Harnam Kaur's possession of the lands subsequent to its date because 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. 3. Harnam Kaur could not have acquired by adverse possession a widow's estate in the lands as she was not an heir of Ram Ditta.
Final Decision: The Supreme Court allowed the appeal and dismissed the suit.
( 1 ) THE only question for decision in this appeal is whether title had been acquired to certain lands by adverse possession.
( 2 ) 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 and 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 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.
( 3 ) ON Ram Ditta's death Harnam Kaur took possession of the lands, and on 24-8-1920, 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 27-11-1929, 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 12/05/1930. 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 6-2-1932, 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 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.
( 4 ) 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.
( 5 ) THE Court of first instance framed the following issues for trail: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 gift to Kirpal Kaur?6. 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 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
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