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PETITIONER: DINDYAL & ANR.

       Vs.

RESPONDENT: RAJARAM

DATE OF JUDGMENT: 17/04/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C. GROVER, A.N.

CITATION:  1970 AIR 1019            1971 SCR  (1) 278  1970 SCC  (1) 786  CITATOR INFO :  RF         1977 SC1206  (3)

ACT: Hindu Succession Act, 1956, s. 14-Widow who has made gift of husband’s property to daughter and thereafter reoccupied  it as  trespasser  whether acquires rights  of  full  ownership under s. 14(2)-"Possessed" in s.   14(1) meaning of. C.P. Tenancy Act, 1920, s. 104(1) read with Art.  I,  Second Schedule  Article is inapplicable when suit is filed not  as dispossessed tenant but as reversioner of last male  holder- Act  does not enable trespassers on tenancy land to  acquire right against third parties by adverse possession.

HEADNOTE: The  defendants  were the grandsons of G’s  brother  between whom and G there had been division of Hindu undivided family property.   G  died  in 1920 and his widow  L  entered  into possession of his property, namely, land held in tenancy  in the former Central Provinces.  In 1936 L made a gift of  the property to her daughter N. Thereupon K, G’s daughter by his pre-deceased wife, filed a suit seeking declaration that the gift-deed  was not binding on her.  The suit was decreed  in 1937.   N died in 1941 and thereafter N’s  children  entered into  possession  of  the property.  K died  in  1943.   The possession of N’s children continued till June 1, 1951  when L wrongfully dispossessed them under the guise of  enforcing the  decree  obtained  by  K.  Thereafter  L  continued   in exclusive  possession  of the suit property.   In  1952  she gifted  some of those properties to one R and the  remaining properties  she gifted to the defendants in 1957.  She  died in  1960.   Meanwhile in 1956 the Hindu succession  Act  had come into force.  The plaintiff after the death of L filed a suit  claiming the properties in question as daughter’s  son and  reversioner of G. The suit was decreed and  the  decree was  upheld by the High Court.  The High Court came  to  the conclusion that L’s possession of the suit properties  after June  1, 1951 was that of a trespasser, and as such she  did not  become  an absolute owner of those  properties  on  the coming  into  force of the Hindu Succession  Act.   It  also held,  that  the  plaintiff  became  entitled  to  the  suit

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properties  on the death of L as the nearest reversioner  of G. In appeal to this Court by special leave it was contended on  behalf of the appellants : (i) that ’as soon as  L  took possession  of the suit properties from the children  of  N, her  previous possession as widow of G sprang up  again  and thereafter she was holding the properties in her capacity as the widow of G and hence she became absolute owner of  those properties  when the Hindu Succession Act came  into  force; (ii)  that the suit for possession of a holding by a  person claiming  to be tenant from which he had  been  dispossessed could be filed under s. 104(1) of the C.P. Tenancy Act, 1920 read with Art.  1 of the Second Schedule thereto only within three  years of the date of dispossession., and the  present suit  not having been filed within that period,  the  result must be that L had acquired title to the suit properties  by adverse possession. HELD:     (i) The gift made by L and in favour N was a valid gift  and N came into possession of the suit  properties  on the  strength  of that gift.  L could have  no  interest  in those   properties  thereafter.   Therefore,  when  L   took possession  of  those properties in 1951, she did  so  as  a trespasser, and she continued in possession thereafter  only as  a  trespasser.  As such, he could not be  held  to  have acquired  any right under the Hindu Succession  Act  because before any property can be said to be, "possessed" 299 by  a  Hindu  woman as provided in s.  14(1)  of  the  Hindu Succession Act. two things are necessary (a) she must have a right  to the possession of that property and (b)  she  must have been in possession of that property either actually  or constructively. [301 C-E] S.   S.  Munnia Lal v. S. S. Rajkumar & Ors. [1962] Supp.  3 S.C.R. 418. and Kuldip Singh &- Ors. v. Surain Singh &  Ors. C.A. No. 138/64 dt. 1-5-67. relied on. (ii) Article 1 of the Second Schedule read with s. 104(1) of the C.P. Tenancy Act was not applicable to the present  suit as  it  had  been  filed  not  on  the  basis  of   wrongful dispossession  of a tenant but on the basis of  reversionary rights.  There was nothing in the C.P. Tenancy Act to enable a trespasser to impose himself as a tenant on ’the  landlord by means of adverse possession of the holding as against the tenant  for a period of three years, Similarly, it  was  not possible  to  hold that the tenancy right  could  have  been acquired  in a holding so as to affect the rights  of  third parties  by being in wrongful ’,possession of  that  holding for a period of three years.  If it was otherwise,  valuable rights  of third parties could have been jeopardised for  no fault of theirs. [303 A-E] In 1951 the plaintiff had two different rights over the suit properties  one under the gift referred to earlier  and  the other as reversioner.  One was an existing right, the  other was  a  prospective one.  His right under the gift  must  be held to have been extinguished under Art. 1, Second Schedule read  with  s.  104(1) of the Act, but his  right  to  those properties. as reversioner arose only after the death of  L. That  right  could  not  have been  barred  even  before  it accrued.   As  against the prospective  reversioners  L  was holding  the suit properties as a trespasser.  She  had  ac- quired no rights in those properties as against them.   Till her  death  it was not possible under law to  predicate  who would  have  been her husband’s nearest reversioner  on  the date of her death. [303 E-G]

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 404 of 1967. Appeal  by special leave from the judgment and  order  dated September  28,  1966 of the Madhya Pradesh High  Court.   In Second Appeal No. 938 of 1965. R.   L. Kohli and J. C.  Talwar, for the appellants- S.   N. Prasad for B. P. Singh, for the respondent., The Judgment of the Court was delivered by Hegde, J. This appeal by special leave arises from the deci- sion  of Madhya Pradesh-High Court in second appeal No.  938 of 1965 on its file. The  facts found which are no more in dispute, and  relevant for the purpose of deciding the questions of law arising for decision  in  this appeal may now be  briefly  stated.   One Gulli  Gotamia had two sons by name Girdharilal and  Nandoo. From the material on record, it is not possible to find  out the  date of death of Gulli Gotamia but admittedly  he  died leaving behind him his aforementioned two sons.  Girdharilal and Nandoo were divided.  Girdharilal died on May 17,  1920. His first wife had pre-deceased him.  But at the time of his death,  his second wife Ladli Bahu was alive.  On his  death his widow took possession of his pro 300 perties.   Girdharilal’s brother Nandoo had-  two  children. Gajadhar and Lachhi died issueless.  Gajadhar also is  dead. He  has two children Dindayal (It defendant) and  Prameshwar Dayal (,second defendant).  Girdharilal had a daughter  from his  Bahu  had a daughter   by name Nanni Bai  who  died  in 1941. The children of Nanni Bai , Narbada Bai, Raja Ram, Ram Narain and Gaya Prasad are the -plaintiffs in the suit. Ever  since  the  death of Girdharilal  Ladli  Bahu  was  in possession  of  the  suit  Properties.   She  gifted   those properties  to her daughter Nanni Bai on July 30,  1936  and put  the donee in possession of the same.   Thereupon  Konsa Bai filed a suit in 1937 seeking a declaration that the gift deed  in question is not binding on her and that  it  cannot come  in  her way in inheriting the suit properties  on  the death of Ladli Bahu.  That suit was decreed on May 3,  1937. As mentioned earlier, Nanni Bai died in 1941.  On her death, the plaintiffs came into possession of the suit  properties. Ladli  Bahu took wrongful possession of the suit  properties from  the  plaintiffs  on June 1, 1951 under  the  guise  of enforcing  the  decree  in  the suit  filed  by  Konsa  Bai. Thereafter  she continued to be in exclusive  possession  of the  suit properties.  On May 27, 1952, she gifted  some  of those  properties to one Rameshwar Prasad and the  remaining properties  she gifted to the appellants on March 21,  1957. She  died on April 9, 1960.  The Hindu Succession  Act  came into force on June 17, 1956. Two  questions  namely  (1)  What  is  the  effect  of   the possession taken by Ladli ’Bahu on June 1, 1951 and (2)  Did Ladli  Bahu  become ’lie full owner of those  properties  in view  of  s. 14(2) of the Hindu Succession Act,  1956,  were presented  to the High Court as well as to the courts  below for decision. The  High  Court came to the conclusion  that  Ladli  Bahu’s possession  of the suit properties after June 1,  1951,  was that  of  a  trespasser and as such she did  not  become  an absolute owner of those properties on the coming into  force of  the  Hindu  Succession  Act.   It  also  held  that  the plaintiffs  became  entitled to the suit properties  on  the death   of  Ladli  Bahu  as  the  nearest   reversioner   of Girdharilal. It  was  urged on behalf of the appellants that as  soon  as Ladli  Bahu took possession of the suit properties from  the

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plaintiffs,   her  previous  possession  as  the  widow   of Girdharilal  sprang up again and thereafter she was  holding the  properties in her capacity as the widow of  Girdharilal and hence she became the absolute owner of those  properties when the Hindu Succession Act came into force.  On the other hand,  it  was urged on behalf of the respondents,  that  as soon  as Ladli Bahu parted with the possession of  the  suit properties, in favour of her daughter under a gift deed, she lost pre-deceased-wife by name  Konsa Bai.  She 301 All  rights  in  thosee  properties.   Therefore  when   she acquired  possession  in 1951, she did so as  a  trespasser. As-  she had no right to possess those properties  when  the Hindu Succesion Act came, into force she acquired no  rights under s. 14(2) of the Hindu Succession. The High Court and the courts below, have, come to the  con- clusion that the gift made by Ladli Bahu in favour of, Nanni Bai  is  a  valid  gift  and  that  Nanni  Bai-  came  into: possession  of the suit properties on the strength of  that, gift.   Hence she must be held to have’ had no  interest  in those  properties  thereafter.  Therefore  when  Ladli  Bahu took’ possession of those properties in 195 1, she did so as a  trespasser.   This  conclusion, in our  opinion,  is  un- assailable.  If we come to the conclusion that she continued as  a trespasser on the date the Hindu Succession  Act  came into  force  and even thereafter till her  death,  then  she cannot  be held to have acquired any right under  the  Hindu Succession  Act because before, any property can be said  to be "possessed" by a Hindu woman, as provided in s. 14(1)  of the  Hindu Succession Act, two things are necessary (a)  she must have had a right to the possession of that property and (b) she must have been in possession of that property either actually  or  constructively-see S. S. Munna Lal  v.  S.  S. Rajkumar and Ors. Kuldip Singh and Ors. v. Surain  Singh and Ors. (1). The next question is whether in view of s. 104(1) read  with Art.  I of the Second Sch. of the C.C Tenancy Act, 1920  (to be hereinafter referred to -as the Act) it can be held  that Ladli  Bahu  had  acquired  a  title  to  possess  the  suit properties. Section 104(1) of the Act provides that the suits and appli- cations  specified in the Second Schedule therein  shall  be instituted  or  made  within the  time  prescribed  in  that Schedule   for  them  respectively;  and  every  such   suit instituted   and  application  made  after  the  period   of limitation so prescribed shall be dismissed.  Art. 1 of  the Second Schedule is as follows: ----------------------------------------------------------- Description of suit- Period of limitation-  Time for which or application.                           period begins to                                              run. ------------------------------------------------------- For possession          Three years     The date of of a holding                            dispossession by a person                         of exclusion Three years claiming to be a tenant from which he has been dispossessed or excluded from possession by any person. ----------------------------------------------------- Admittedly  the suit properties were held on tenancy  right. Girdharifal  was the protected tenant of  these  properties. Under the gift mentioned earlier, the plaintiffs became  the

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tenants  of  those  properties.  In view of Art.  1  of  the Second  Schedule  read  with s. 104 (I )  of  the  Act,  the plaintiffs as tenants could not have sued for possession  of the  suit proper-ties after June 1, 1954.  It was urged  on. behalf  of  the  appellants that in view  of  the  principle underlying (1)  [1962] Supp. 3 S.C.R. 418     (2) C.A. No. 138/1964  dt 1-5-1967 302 s.   28 of the Indian Limitation Act, 1908, which  principle is  not  confined  to  suits  and  applications  for   which limitation  is prescribed under that Act but is  of  general application,  the plaintiffs’ right to the  suit  properties must be held to have been extinguished.  In other words, the contention was in view of the aforementioned provisions, the plaintiffs  had  not  merely lost their  right  to  sue  for possession  of  the  suit properties,  their  right  in  the properties itself had been extinguished.  It is well settled that the principle underlying S. 28 of the Indian Limitation Act, 1908 (same as S. 27 of the Indian Limitation Act, 1963) is of general application.  It is not confined to suits  and applications for which a period of limitation is  prescribed under the Limitation Act. Art.   1 of the second schedule to the Act applies  only  to suits  brought  by  a person claiming to be,  a  tenant  for possession of a holding from which he has been  dispossessed or  excluded from possession by any person.  In other  words before this Art. can apply, the following conditions must be fulfilled. (1)  The plaintiff must claim to be the tenant of the  hold- ing which is the subject matter of the suit; (2)  The suit must be one for possession; and (3)  The  suit must be on the ground that he had  been  dis- possessed or excluded from possession by any person. Though  the  plaintiffs in this suit where at one  time  the tenants in the suit holding in view of the gift in favour of their  mother,  they have not brought the  present  suit  as tenants  of  that  holding.  They have  brought  it  on  the strength  of  their  title as the  nearest  reversioners  to Girdharilal.   Nor is their dispossession in 1951 a part  of the  cause  of action for the present suit.  This is  not  a suit  for possession on the ground that the  plaintiffs  had been earlier dispossessed.  This is a suit for possession on the  strength  of the new title acquired by  the  plaintiffs after  the  death of Ladli Bahu.  Therefore Art.  1  of  the second  schedule  does not apply to the present  suit.   The limitation  for this suit is governed by the  provisions  of the Limitation Act, 1908. Further  it  is one thing to say that a tenant  who  was  in possession   of   the  tenancy  holding  at  the   time   of dispossession  had lost his rights in the holding but it  is another thing to say that a trespasser had become the tenant of  that  holding at the end of the prescribed  period.   It must be remembered that C. P. Tenancy Act is a special  Act. It  only governs those matters for which provision  is  made therein.   In  other respects the general law  continues  to apply.  The Act does say that a tenant’s right in respect of any  property can be acquired by adverse possession.  We  do not think 303 that  the  provisions of the Act enabled (The Act  has  been since-, repealed) a trespasser to impose himself as a tenant on  the  landlord  by means of  adverse  possession  of  the holding  as against the tenant for a period of three  years. Similarly,  it is not possible to hold that a tenancy  right

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could  have been acquired in a holding, so as to affect  the rights  of third parties by being in wrongful possession  of that  holding  for  a  period of  three  years.,  If  it  is otherwise, valuable rights of third parties could have  been jeopar-dised  for  no fault of theirs.  Take the case  of  a widow  who  was in. possession of a  tenancy  holding.   The prospective reversioner to, her husband’s estate would  have had  no right in that holding during her life time.   Is  it reasonable to hold that the reversioner would have lost  his rights in the holding even before he acquired’ them  because someone  was in possession of that holding adversely to  the widow for a period of three years ? That would not have been the  position  even under Art. 144 of  the  Limitation  Act, 1968.   It  could not be different under the Act.   A  right cannot be barred’ even before it accrues.  The fact that the tenant  dispossessed’ happened to become the reversioner  on the death of the widow cannot make any different in law. In  1951, the plaintiffs had two different rights  over  the suit  properties-one under the gift referred to earlier  and the  other as reversioner.  One was an existing  right,  the other  was  a prospective one.  Their right under  the  gift must  be held to have been extinguished under Art.   1  Sch. II  read with s. 104 of the Act.  But their right to  those, properties  as  reversioner arose only after  the  death  of Ladli  Bahu.   That right could not have  been  barred  even before it accrued.  As against the prospective  reversioners Ladli’ Bahu was holding the suit properties as a trespasser. She  had  acquired no right in those properties  as  against them.   Till  her death, it was not possible  under  law  to predicate   who  could  have  been  her  husband’s   nearest reversioner on the date of her death. In  the  result this appeal fails and it is  dismissed  with costs. G.C.                            Appeal dismissed. The above judgment dated April 17, 1970 was reviewed by  the Court  on  Review Petition No. 38 of 1970.   The  followings order was passed on October, 17, 1970                            ORDER Correction to be made at appropriate places in the  Judgment by  showing the name of Rajaram as plaintiff instead of  the names referred to as of "plaintiffs", and also  substitution to   be  made  of’  the  word  "plaintiff"  for   the   word "plaintiffs" wherever it occurs. in the Judgment.  No  order as to costs.  The security will be refunded.  Mesne  profits deposited  by  the  appellants  to  be  paid  over  to   the respondent Rajaram. 304