VIRBHADRAPPA RACHAPPA Vs. BABU VIRBHADRAPPA

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiffs for a partition and possession of their half share in two lands, Survey Nos. 107 and 278, in the village of Ankalgi in Belgaum Taluka. Their grandfather Virbhadrappa had two brothers, Ramlingappa and Sidramappa. Defendants Nos. 4, 5 and 6 represent Ramlingappa's branch. Sidramappa died leaving a son Virupaxappa. On Virupaxappa's death his widow Shivatayavva claimed that Virupaxappa and his father were separated from the branches of Ramlingappa and Virabhadrappa and filed a suit ( (No.312 of 1919) in the Court of the First Class Subordinate Judge at Belgaum for her third share in certain lands situated at Jankatti and Gurlgunji, As she was then in possession of the two lands of Ankalgi, which are now in suit, they were not included in that partition suit. It was held in that suit that her husband Virupaxappa and his father Sid-ramappa had died in union and that on their death the branches of Ramlingappa and Virbhadrappa succeeded to the entire joint family property by survivorship. He suit was, therefore, dismissed but she continued to remain in possession of the two lands of Ankalgi in suit. When it was held that the family was still joint, the descendants of Ramlingappa and Virbhadrappa forcibly dispossessed Shivatayavva of the Ankalgi lands also, but she filed Possessory Suit No.22 of 1911 in the Mamlatdar's Court and the possession of those lands was restored to her. Thereafter she took Gurupadappa in adoption and put him into possession of those lands as owner, Gurupadappa made a fresh attempt to recover a third share in the other lands of the family by filing a suit (No.186 of 1918) but that; suit was dismissed on the ground that the question whether the family was joint or separate had been already decided in Shivatayavva's suit and it could not be re-opened as it was res judicata. Gurupadappa died in 1921 leaving his widow Kallavva. Kallavva having re-married, the lands again went into the possession of Shivatayavva. It is alleged in the plaint that Shivatayavva passed a malkipatra conveying the lands in suit to her daughter Savawa: but that malkipatra is not on record and has not been relied upon, though it was mentioned in the plaint. Savawa, however, died before Shivatayavva and on Shivatayavva's death in 1931, her mother-in-law Rachavva succeeded to the lands as the next reversioner. Rachavva died in 1938 and the lands are now in possession of Savavva's sons, defendants Nos. 1, 2 and 3 The plaintiffs, therefore, filed this suit to recover their half share in those lands alleging that defendants Nos. 4, 5 and 6, the representatives of Ramlingappa's branch, were entitled to the other half. The suit was filed on September 25, 1939. The defendants contended that Shivatavawa's possession was adverse against the plaintiffs, and that she had acquired a title to the lands by such possession for more than twelve years. Defendants Nos. 4 to 6 supported the plaintiffs' claim. Both the Courts below upheld the contention of defendants Nos. 1 to 3 and dismissed the suit. The plaintiffs have preferred this appeal.

(2.) THE facts as set out above are not disputed. It is urged on behalf of the appellants that Shivatayavva's possession was not adverse to the plaintiffs and defendants Nos. 4 to 6 as she could not be evicted by them unless some provision was made for her maintenance. As no such provision had been made, it is contended that she must be presumed to be holding the lands for her maintenance and not adversely against the coparceners of her deceased husband. This contention finds some support in the remarks of Broomfield J. in Shankar Vinayak v. Ramraa Sahebrao (1935) I. L. R. 60 Bom. 89: S. C. 37 Bom. L. R. 786. THE view expressed there was that the widow in a joint Hindu family had the right to continue in possession of the property both in respect of her maintenance as well as her residence; and the co-parceners of her deceased husband could not remove her or recover possession of the property without making sufficient provision for her maintenance. and for her residence. In those circumstances they were perfectly justified in allowing her to continue as the widow in a joint family till her death. But those remarks cannot apply to every case in which a widow in a joint Hindu family remains in possession of some of the joint family property against the wishes of her deceased husband's co-parceners. In Bkogilal v. Ratilal (1938) 41 Bom. L. R. 497 where the widow had thus acquired wrongful possession of the property of the joint family and claimed it in her own right, as the widow of her deceased husband, her possession was held to be adverse to the surviving co-parceners from its inception, the possession not being attributable to an arrangement between the widow and the co-parceners.

(3.) BEFORE concluding I must endorse the remarks made by the learned District Judge in para. 2 of his judgment regarding the delay in the disposal of this suit by the trial Court. The evidence was closed on October 25, 1940, and the case was adjourned for argument to December 20, 1940. The roznama shows how it was put off from time to. time for no adequate reasons for nearly nine months and finally the judgment was delivered on July 28, 1941. The judgment does not fully consider the points arising in the case and it shows that many points, which must have been argued, were apparently lost sight of owing to the long interval between the hearing of the arguments arid the disposal of the case.