MAHEPAT Vs. MUKUNDRAO

JUDGEMENT

(1.) 1. One Ganpati, father of the plaintiffs' vendor Mt. Baiji, owned an absolute occupancy field No. 192, area 2' 14 acres, rental Rs. 60, one-third share in a well in the said field and two mango trees standing thereon, situated in patti No. 1 of mouza Kumari of Tahsil Saoner. On his death, which occurred in 1891, the aforesaid field was recorded in the village papers in the name of his mother Mt. Kapuri. His daughter Mt. Baiji was nearly three years old at the time of his death. It is common ground that Mt. Kapuri died in the year 1925. On 7th May 1925 Mt. Baiji sold the said field with the mango trees and one-third share in the well to the two plaintiffs Mukundrao and Padamrao Malguzars of patti No. 1 by virtue of a registered sale-deed for Rs. 2000. The plaint alleges that after the execution of the sale-deed the plaintiffs took possession of the field and did summer ploughing, but that all the three defendants obstructed them in June 1925 and prevented them from sowing crops in the field and hence they seek possession of the field in question with the two mango trees and one-third share in the well. It is an admitted fact that Ganpati's two widows, Radha and Maini, remarried shortly after his death.

(2.) THE plaintiffs contend that on Ganpati's death, the field in dispute devolved on his two widows and on their remarriage, on Mt. Baiji as his heir, while according to defendants 2 and 3, Ganpati left behind him a minor son by name Mahadeo who died a few months after Ganpati's death. According to them the field in dispute devolved on Ganpati's death on his son Mahadeo and on the latter's death on his grand-mother Mt. Kapuri as his heir. Defendants 2 and 3 claim to be reversionary heirs of Mahadeo, entitled to succeed to his property after the death of Mt. Kapuri. Defendant 1, disclaimed any interest in the property in dispute and denied his having obstructed the plaintiffs. The plaintiffs denied the existence of Mahadeo and the alleged relationship of defendants 2 and 3. The Court of first instance awarded the plaintiff's claim for possession, holding that Ganpati did not leave behind him a son by name Mahadeo, that defendants 2 and 3 were not related to Ganpati and Mahadeo as alleged by them, that the entry in Kapuri's favour in the settlement records was a mistake, that the plaintiffs purchased the propety in dispute from Baiji on 7th May 1925, that the purchase was not unreal, and that defendant 1 obstructed the plaintiffs. The appeal preferred by the three defendants in the Court of the District Judge was dismissed by that Court and all the findings of fact arrived at by the Court of first instance were upheld by it. It is from the appellate decree of the District Judge that the present appeal has been preferred by the defendants.

(3.) IT is next contended that Mt. Kapuri, was in possession of the field in dispute on her own account for over 30 years till her death which took place in 1925, that her possession was adverse to Baiji, and that consequently the plaintiffs' claim is barred by limitation. The question of adverse possession and limitation does not appear to have been raised in either of the two lower Courts. Apart from the fact that the question of limitation in the present case is a mixed question of law and fact, and that consequently it is not open to the appellants to raise it for the first time in this Oourt, it seems to me that the said question cannot arise in the present case for the following reasons. Even if no reliance be placed on the testimony of the plaintiffs' vendor Mt. Baiji as P.W. 5, to the effect that Kapuri managed the estate for the witness, and if Kapuri's possession be held to be adverse to Mt. Baiji it would be possession either of a limited owner or of an absolute owner. If on the strength of the ruling in Sheolal v. Mt. Sheoraji [1914] 10 N.L.R. 35, Kapuri be held to have acquired by prescription a limited title as a female heir of deceased Ganpati as against the rightful heir Mt. Baiji, the property in suit would under Hindu law pass on Kapuri's death in the year 1925 to Mt. Baiji as the heir of the last male holder Ganpati. While if Kapuri be held to have acquired by prescription the title claimable by an absolute owner, her two daughters Malan and Jani would succeed to the field in suit as her heirs, but Malan and Jani by executing a registered farkat patrak, dated 11th October 1925 (Ex. P. 2) in plaintiff's favour have relinquished their rights as tenants if any, in favour of the malguzars of patti No. 1, and the latter are consequently entitled to claim possession of the field in suit from the defendants who have no legal right to retain it. In this view of the case the plaintiffs' right to claim possession would accrue in Kipuri's death, which occurred in 1925, and their suit, being instituted in December 1925 would be in time even on the assumption of acquisition of prescriptive title by Kapuri. It seems to me that the fact of Mt. Kapuri being Ganpat's mother, who would have been, but for the existence of the nearer heir Baiji, entitled to succeed to his property, after the remarriage of his two widows, and the further fact of her having taken possession of the land, in suit, after Ganpat's death, presumbably as his heir, and not as a mere trespasser would very well warrant in absence of proof to the contrary, the presumption that Kapuri prescribed for a limited title of a female heir, and that it was such a limited title that was acquired by prescription, and would thus attract the application of the principle involved in the decision in Sheolal v. Mt. Sheoraji [1914] 10 N.L.R. 35. It is urged on appellants' behalf that the interest involved in Sheolal v. Mt. Sheoraji [1914] 10 N.L.R. 35, was a proprietary interest and therefore, the decision in that case has no application but in so far as the question of the right of inheritance and succession is concerned, a proprietary interest in immovable property stands on the Same footing as the interest of an absolute occupancy tenant in his holding.