MT. DESHRANI Vs. THAKUR KISHORE SINGH

JUDGEMENT

(1.) KINKHEDE , A.J.C. 1. The appellants took a sale-deed, dated the 22nd August 1917, from the Respondent No. 2, Mt. Baribahu, in consideration of a mortgage debt due under a deed, dated the 7th February 1908, and a cash payment of Rs. 200. Respondent No. 1 who claims to be a reversionary heir entitled to succeed to the estate involved in this litigation, after the death of Respondent No. 2, instituted the suit of which this second appeal has arisen to set aside the said alienation. This suit was filed on 12th December 1922. The plaintiff alleged that Mt. Baribahu's husband Jalamsingh was the last male holder and that she inherited his estate as his widow, and that as she had no legal necessity to incur mortgage debt or to sell the property for the satisfaction of that debt and a cash payment, the alienation was not binding as against him beyond her life time.

(2.) JALAMSINGH had too brothers Lachhman Singh and Pran Singh. It is common ground that Lachhman Singh died first. While according to plaintiff Pran Singh predeceased Jalamsingh, the defendants' case is that he died after Jalamsingh. Each of these brothers left behind a widow. Rajrani was the widow of Lachhman Singh; she died in 1906. Mt. Shahjadi Bahu was the widow of Pran Singh; she disappeared from the Tillage of residence of the family a few years after her husband's death; while according to plaintiff she has not returned since then, the defendants contented themselves by asserting that she has not been heard of since she left. Neither party expressly alleged that Shahjadi Bahu actually died or must be presumed to be dead at any particular point of time.

(3.) IT was open to the defendants who allege acquisition of a prescriptive title of an absolute owner by Baribahu to prove by the positive and direct evidence of Baribahu, who is still alive, that she prescribed for and acquired an absolute title which must; hold good not only against Shahjadi Bahu in the event of her return but also against the reversioners who may be entitled to succeed to the estate on her death. Where possession is referable to a lawful origin the presumption is that it is acquired lawfully and the burden is on the party asserting adverse possession to prove his case. The learned District Judge has drawn an inference from the evidence on record consistently with Hindu notions. As regards the nature of possession by one Hindu female entitled to maintenance against another Hindu female in whom the inheritance vests for the time being, the quality and extent of right acquired by adverse possession always depends upon the claim accompanying it and upon the nature of the animus possidendi. The question whether possession is adverse or not is always a question of one's own intention to hold adversely and knowledge of such intention must be brought home to the real owner so as to extinguish his title.