BHAGWAN DAS Vs. KRISHEN LAL

JUDGEMENT

(1.) THIS is a second appeal directed against an order of the learned Additional District Judge, Jammu, dated 16 -7 -2011 whereby he has confirmed a decree for possession passed by the trial Court in favour of Kanshi Ram, plaintiff. The following pedigree table will facilitate an easy understanding of the facts of this case: JIWA RAM Bhagwan Das Kanshi Ram Sant Ram Defendant Plaintiff I Mst. Tulsi widow of Sant Ram.

(2.) JIWA Ram died on 17th Phagan 1982 leaving behind him some agricultural land. The plaintiff Kanshi Ram has averred in the plaint that on the death of Jiwa Ram the lands left by him were mutated in the name of the plaintiff and his two brothers Bhagwan Das and Sant Ram. During the trial of the suit it came to light that Sant Ram had died in the lifetime of Jiwa Ram and as a matter of fact, on the death of Jiwa Ram, the land was mutated in the name of Kanshi Ram and Bhagwan Das Jiwa Rams two sons and Mst. Tulsi, widow of Sant Ram. These mutations were effected as early as 1983 and 1984. Along with the two brothers, i.e., Kanshi Ram and Bhagwan Das, Mst. Tulsi also entered into possession of the land that was mutated in her name and retained it all along in her exclusive possession. On 15th May 1999 Tulsi executed a will by which she bequeathed the property mutated in her name to Bhagwan Das, defendant. Tulsi died in the month of Magh 1999, and on her death mutation was effected on the basis of the will in the name of Bhagwan Das. The plaintiff, Kanshi Ram, brought the present suit on the ground that Tulsi being a Hindu widow, she could not alienate the property mutated in her name. It is further averred in the plaint that the mutation in Tulsis name was effected as the heir of her husband, and that on her death, the property will revert back to the plaintiff and the defendant who are her reversioners. The plaintiff prayed for a decree for 1/2 of the property mutated in Tulsis name.

(3.) THE suit was resisted by defendant, wan Das, on the ground that Tulsi not being an heir of Jiwa Ram, the land mutated in her name on the death of Jiwa Ram should be presumed to have been held by her adversely to other heirs of Jiwa Ram. It was further pleaded by the defendant that Sant Ram, Tulsis husband, having died in the lifetime of his father, no question of her having got the land as a heir of Sant Ram could arise. The mutation was effected in her Tulsis name unconditionally and she continued to retain possession unmolestedly for more than 12 years and by the mere lapse of time she became an absolute owner of this land which she could have bequeathed or alienated to anybody without any restriction. Now the learned Additional District Judge has somehow or other arrived at a finding that Tulsi was given the l/3rd share of Jiwa Rams land with the consent of the plaintiff and the defendant and it should be presumed that the parties consented to this l/3rd share being allotted to her in lieu of her maintenance. But the point is not so simple as the learned Additional District Judge thinks. Admittedly Tulsi being the wife of a predeceased son of Jiwa Ram, she according to Hindu law is entitled to maintenance only. But instead of allotting her a maintenance grant, she was given a share as the heir of Jiwa Ram which everybody should have known she was not. According to Hindu law the wife of a predeceased son is not at heir of her father -in -law. All that she can claim! in the family estate is maintenance. This point arose, in Raj Bahadur Singh v. Kanhaiya Bakhsh 1927 Oudh 138 AIR V 14 A, wherein it has been laid down that: "When a Hindu widow who would not be entitled to anything more than: maintenance out of her husbands estate obtains possession of the property not as a result of an arrangement with the husbands heirs but absolutely in her own right, her possession becomes adverse to them and their rights are barred at the expiration of 12 years from the date of the husbands death.  The learned Additional District Judge has held that in the present case a presumption should be drawn that l/3rd share allotted to Mst. Tulsi on the death of Jiwa Ram her father -in -law was in lieu of her maintenance. But it need be said here that according to Hindu law, there is no such presumption available. This point is covered by an authority of the Allahabad High Court in Ulfat Rai v. Sm. Kamla Devi, 1949 All 458 AIR V36 B wherein it has been held: "Where on the death of a member of an undivided Hindu family, his widow assumes possession of the family property or a portion thereof, there is no presumption that she has been allowed this for her mere consolation or in lieu of maintenance and unless the surviving member proves an arrangement making her possession permissive it would be adverse". Now in the present case there is not an lota of proof that the land was mutated in the name of Tulsi as a result of an arrangement arrived at between the surviving sons heirs of Jiwa Ram. As such the possession far from being permissive, must be treated as adverse possession from the very beginning. In Gaya Deen v. Mt. Amrauti, 1955 All 630 AIR V42 C it has been laid down that "Where a Hindu widow in a joint Hindu family takes possession over family property, it is for those who want to assert that her possession was not adverse but in lieu of an arrangement or for consolation to establish the truth of that assertion".