KALAWATIBAI Vs. SOIRYABAI

JUDGEMENT

(1.) Litigation, between two sisters, by way of cross-suits one, for permanent injunction by the appellant basing her claim on gift deed executed in 1954 by her mother, a Hindu widow, of the entire estate inherited by her from her husband, and another for declaration and partition by respondent assailing validity of the gift deed and claiming reversioner's right after death of the mother in 1968, has reached this Court by grant of special leave against judgment of the Bombay High Court in second appeal raising a legal issue of seminal importance as to nature of right and title of female donee of Hindu widow's estate after coming into force of Hindu Succession Act (hereinafter referred, to as the Act).

(2.) Facts are simple. Stakes, also, are not substantial, but the issue is of far reaching consequence. Could a Hindu widow alienate by gift the entire estate inherited from the husband, in favour of one of the female reversioners prior to enforcement of Act 20 of 1956. In case answer to issue is in the affirmative then what was the nature of right that the donee got under law Did she become an owner of a widow's estate, a limited owner, an owner with some right or title, so as to acquire rights of absolute ownership under S. 14 of the Act or a trespasser and if trespasser then whether she acquired rights by adverse possession by perfecting her rights against the donor only or it was essential to prescribe rights against reversioners as well

(3.) Shorn of details, and various issues raised in the suits, suffice it to mention that even through the trial court found the gift deed. to have been duly attested and executed after obtaining permission from the appropriate authority the claim of appellant, for permanent injunction, was decreed not on S. 14 of the Act as the widow who had executed the gift deed in 1954 was 'incompetent to alienate widow's estate by gift permanently' under Hindu Law but on adverse possession and estoppel. The appellate court while affirming the finding on S. 14 of the Act allowed the appeal and dismissed the suit as adverse possession against the widow is not adverse against reversioners, and the next reversioner is entitled to recover the possession of the property or his share in it within 12 years from the date of the death of the widow. It was further held that the appellant could not acquire any right by 'estoppel under S. 41 of the Transfer of Property Act against the reversioners by reason of the widow's conduct'. In view of the concurrent findings of two courts below on S. 14 of the Act the High Court appears to have been invited to adjudicate, only, on the question if the appellate court was justified in reversing the finding on adverse possession which it disposed of treating it as finding of fact, and observing that possession of appellant 'must be deemed to be on behalf of other co-sharers in the absence of any evidence before ouster of the other sisters'. Whether the High Court was justified in not examining the question of adverse possession is not necessary to be gone into as the appellant can succeed, only, if the finding recorded by the first appellate court that the appellant could not acquire any rights against reversioners during lifetime of the widow is found to be erroneous in law.