MT. MANJU Vs. GULAB RAO GANPATRAO MAHADIK

JUDGEMENT

(1.) 1. The facts leading to this appeal are shortly these : One Bandaji had two sons, Tatyarao and Golabrao, with whom he formed a joint Hindu family governed by the Mitakshara law. Upon Bandaji's death in 1911 the whole village of Kirna, which till then stood recorded in his name, came to be mutated in the names of his two sons in equal shares. A year after Bandaji's death, on 3rd May 1912, Gulabrao, who was then nine years of age, was given away in adoption in the Mahadik family ; but in spite of this his name was not removed from the mutation register in respect of the half share in the village.

(2.) TATYARAO died in 1918 and was succeeded by his widow Mt. Manjubai and the eight annas share in the village which stood in Tatyarao's name was then mutated in her name. For about three years one Abarao Shindhe managed the whole village for Manjubai and then, as Gulabroo attained majority, he succeeded to the managership and was also appointed lambardar. Disputes arose later on between Manjubai and Gulabrao which culminated in the filing of the, present suit by Manjubai, in 1925, against Gulabrao for possession of the eight annas share in the village which continued in the mutation register recorded in the name of the defendant. The principal defence to the plaintiff's claim made by Gulabrao was that in spite of his adoption in another family he continued in possession of the eight annas share in dispute by receiving profits appertaining to it from Tatyarao up to the latter's death and even thereafter, and that the plaintiff's claim was thus barred by his adverse possession for over 12 years next before the institution of the suit.

(3.) ON the findings concurrently arrived at by both the Courts below that upon his adoption the defendant lost his undivided interest in the 8 annas share of the village in dispute, that till his death Tatyarao alone was in physical possession of the whole village and that the defendant did not receive any share in the profits as alleged by him, the mere continuance of his name in the mutation register would not legally justify the conclusion that he was in adverse possession of the 8 annas share claimed in the suit : Kunwar Sen v. Darbari Lal (1916) 38 All 411. If then, till Tatyarao's death, the possession of the defendant was not adverse it is clear that even if his possession thereafter became adverse on any account it would be ineffectual to confer any title, by adverse possession, upon him because the present suit was filed admittedly, within 12 years of Tatyarao's death. Mere inaction on the part of Tatyarao in having the name of the defendant removed from the mutation register, after the defendant's adoption, could not, as contended by the learned Counsel for the defendant, be construed to mean that, in spite of the adoption, Tatyarao still continued to hold the other 8 annas share in the village for and on behalf of the defendant; the more so since the defendant himself, as D. W. 7, has explained that his name was allowed to remain in the revenue records under an honest impression that he had not forfeited his right thereto by his adoption and for the purpose of protecting his right in the natural family if his adoption turned out to be illegal. I then hold, disagreeing from the lower appellate Court, that the defendant-respondent has failed to establish his plea of adverse possession.