RAM BHAROS PANDE Vs. DHURJATI UPADHIYA

JUDGEMENT

(1.) This appeal relates to two properties with respect to which the facts appear to be as follows: Mt. Naipali was the mother and Mt. Lakhpati was her daughter. Mt. Lakhpati married Batuk and the plaintiff-respondent is Batuk's brother and heir. The two properties in question were originally owned by Mt. Naipali's husband Molai. Molai purported to transfer these properties in favour of his wife by merely effecting mutation of names so far back as in 1881. Mt. Naipali, therefore, started holding adversely against her husband and it may be that she completed an absolute title in herself. It has been assumed, therefore, that Mt. Naipali was the absolute owner of the properties. She, in 1890, got the name of her daughter entered in the papers against the properties in question. No deed of gift was executed but the mutation proceedings Show that the mutation was applied for on the basis of a gift from mother to the daughter. Mt. Naipali died in 1899 and Mt. Lakhpati continued to be in possession, as before, under the mutation order. The plaintiff says Mt. Lakhpati died as the full owner of the property and the property being her stridhan, was inherited by her husband Batuk and he, the plaintiff, as the heir of Batuk is entitled to the property. On the other hand, the defendants say that the property was Mt, Naipali s. Mt. Lakhpati's possession, although it started as adverse to Mt. Naipali, became permissive and as that of an heir, when she succeeded to the estate of Mt. Naipali, that on the death of Mt. Lakhpati the property reverted to the estate of Molai or it would go to such person as may be the heir of Mt. Naipali and not to the plaintiff. The decision of the case, therefore, turns on the question whether Mt. Lakhpati's adverse possession ceased to be adverse on the death of her mother? The learned District Judge held that the original adverse possession continued but I do not find myself in a position to accept this proposition of law. The possession, no doubt, started adversely to the mother, but the nature must be deemed to have changed on the accrual of a rightful title to the property.

(2.) No cases have been cited before me as supporting the learned Judge's view. My view is based on the eternal principle of law, viz., where there is a title to which possession may be traced, it cannot be assumed or asserted that the possession was adverse. The case would have been different if, before the mother's death Mt. Lakhpati had completed a title for herself by twelve years possession. On the death of the mother, her heir might have successfully claimed her property, if Mt. Lakhpati could point to no title in herself other than nine years (1890 to 1899) adverse possession against the mother. The gift, for want of a registered deed, was void in law and there being no consideration moving from the daughter, no question of part performance of a contract could arise. Thus, when the succession opened out, Mt. Lakhpati's possession ceased to be adverse. She could not, having accepted the benefit of inheritance, say that her possession, even after her mother's death, was adverse to her.

(3.) The appeal succeeds and is allowed with costs. The decree of the Court below is set aside and the decree of the original Court is restored with costs to the appellants throughout.