SREEPATI BHUSAN MANDAL Vs. SARBESWAR MANDAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs and it arises out of a suit brought by them for recovery of possession of several plots of land--19 in number mentioned in the plaint after declaration of their title thereto. The plaintiffs claimed the disputed plots as the reversionary heirs of one Shyam Chandra Mandal. There is a genealogical tree attached to the plaint which shows the relationship between the Syam Chandra and the present plaintiffs and it has not been questioned before us that the plaintiffs are the reversionary heirs of Syam Chandra. The defendants case was that plots Nos. 1 to 13 and 17 and 19 belonged to Syam Chandra but that their father purchased the same from Syam Chandra on the 18 Falgun 1272 B.S. and that since then they had been in possession thereof in their own right. They further said that plots Nos. 14, 15 and 16 were their own ancestral property and that Syam Chandra had no interest therein As regards plot No. 18, their case was that it was the stridhan property of their sister Nistarini and that they had got it from her. The Court of first instance found in favour of the defendants as regards plots NOS, 14, 15, 16 and 18; and, as regards the remaining plots, it held that the defendants had made out a case of adverse possession-- although it disbelieved the story of the purchase of those plots by the defendants father from Syam Chandra in 1272 B.S. The plaintiffs suit in respect of all these plots was accordingly dismissed by the trial Court On appeal, that decision has been affirmed by the learned Subordinate Judge. The plaintiffs have thereupon preferred this second appeal.

(2.) The points taken before us are with reference to plots Nos 1 to 13 and 17 and 19 and plot No. 18. We shall first deal with plots Nos, 1 to 13 and 17 and 19; and plot No. 18 will be dealt with afterwards separately. It has been contended before us by the learned Advocate appearing for the plaintiffs appellants that the decision of the lower Appellate Court on the question of adverse possession by the defendants is wrong as it. has not been shown that, at the time of Syam Chandra's death, the defendants predecessor in-interest had acquired a right by adverse possession to plots Nos. 1 to 13 and 17 and 19. It appears from the genealogical tree appended to the plaint that Ramlal--the son of Syam Chandra, predeceased his father leaving behind him his widow Nistarini who died in Pous 1327 B.S. and it is argued that, as the present, suit was instituted within 12 years of the date of the death of Nistarini-- the limited owner, if should have been held that the suit was in time and that it should also have been held that the right of Syam Chandra to the plots in question was not extinguished by adverse possession. It appears, however, on the finding of the lower Appellate Court that Syam Chandra was not in possession of these lands shortly before his death and that Court also finds on a consideration of the documentary evidence in the case that Ram Narain Mandal--the defendants father was in possession of these plots as would appear from the Thoka of the year 1277 B.S. in which it is stated that these plots appertain to the jama of Syam Chandra but are in the possession of the defendants father Ram Narain. The lower Appellate Court has rightly approached the question from the point of view, namely, as to whether Shyam Chandra was in possession of these disputed plots at the time of his death. If Syam Chandra was not in possession of these plots at the time of his death, limitation would begin to run against him from that time and as he died more than 50 years before the institution of the suit, the defendants have been in possession for a period of upwards of 12 years so as to acquire a title by adverse possession. If time had once begun to run from Syam Chandra's life-time, no subsequent interposition of a life estate would be of any avail. If any authority is needed for this proposition, reference may be made to the ease cited by the learned Subordinate Judge in his judgment, namely, the case of Mohendra Nath Biswas v. Shamsunnessa Khatun 27 Ind. Cas. 954 : 19 C.W.N. 1280 : 21 C.L.J. 157. This was the only, point urged on behalf of the appellants as regards plots Nos. 1 to 13 and 17 and 19 and we think that the lower Appellate Court was right in coming to the conclusion that the reversioners title to these plots was barred by the Statute of limitation by adverse possession for more than the statutory period by the defendants father Ram Narain and the defendants. The result, is that the appeal in so far as it relates to these plots must fail and be dismissed.

(3.) As regards plot No. 18, the defendants in para. 14 of their written statement aver that Nistarini had got an absolute title to this property. Evidence was laid on behalf of the defendants to prove that Nistarini got this property from Syam Chandra who was her father- in-law. The plaintiffs witness Jatil who was examined on commission did, as a matter of fact, admit in his examination-in-chief that this property--plot No. 18 was given to Nistarini by Syam Chandra. It is said also that this was given to her for her maintenance. The lower Courts have held that Nistarini had got an absolute title to this property--and have dismissed the plaintiffs suit in respect of this plot. In second appeal before us, it has been strenuously argued on behalf of the appellants that this decision of the Courts below is wrong inasmuch as, the grant in favour of Nistarini having been made only for her maintenance, the said grant spent its force when she died and that, after her death, the property would revert so the heirs of Syam Chandra which the plaintiffs claim to be and which claim has been established on the findings of the Court. It appears clear that Nistarini was the widow of the predeceased son of Syam Chandra and that Syam Chandra was not under any legal obligation to maintain Nistarini. This grant, therefore, which was made in favour of Nistarini could not be regarded as a maintenance grant in the technical sense of the term; that is, a grant which is given to a person for maintenance who is entitled to claim maintenance under the Hindu Law. It is not a case where the grant is evidenced by a document wherein it is expressed that the grant is in lieu of maintenance or for maintenance. The effect of the evidence of defendant No. 2 Bishnu Chandra and of the plaintiffs witness Jatil is that this property was given to Nistarini and those witnesses proceeded to state that it was given to her for her maintenance. The evidence also shows that, after the grant was made, Nistarini left her father-in-law's place and went to reside at her father's place and lived there with her brothers up to the time of her death which took place in 1327 B.S. The evidence is that the property was given to her and it must be taken that it was given to her absolutely Where a property is given to a person whether that person is a man or a woman, the grant must be taken to be an absolute grant. If a person says: "I give this property to a particular woman," there is no rule of Hindu Law which limits that grant to the life-time of that particular woman. The matter was considered in the case of Kollany Kooer V/s. Luchmee Pershad 24 W.R. 395, which was decided in 1875 by Mr. Justice Romesh Chunder Mitter and the learned Judge pointed out that "Adopting the rule of construction above quoted, we must hold that the gift in question was an absolute gift unless it can be shown that by the Hindu Law gift to a female means a limited gift or carries with it the effect of creating an estate exactly similar to the widow's estate under the law of inheritance. I am not aware of any such provision in the Hindu Law nor have we been referred to any authority in support of it." This passage is quoted and approved by their Lordships of the Judicial Committee in the case of Surajmani V/s. Rabinath Ojha 12 C.W.N. 241 : 30 A. 84 : 5 A.L.J. 67 : 18 M.L.J. 7 : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 3 M.L.T. 144 : 35 I.A. 17 (P.C.). We are not called upon here, it is to be observed, to construe any grant on paper or to construe a particular grant the terms of which are known to us. The effect of the evidence, as we have already stated, is that this gift was made to Nistarini. This was a gift of a small portion of the property which belonged to Syam Chandra and was a gift to the widow of his predeceased son of the same kind as, the evidence shows, the gift to his daughter Sarbeswari. The evidence discloses that Sarbeswari parted with the property which she got by way of gift in favour of her son-in-law and that there was subsequently a sale thereof by this son-in law to another man. It is argued on behalf of the respondents that the effect of the evidence of the witness is that both these gifts, namely, the gift to Nistarini and the gift to Sarbeswari stood on the same footing. There is considerable force in this argument. The learned Advocate for the respondents has attempted to draw a distinction with regard to maintenance grants, that is, grants which are made in favour of persons who are entitled under the Hindu Law to claim maintenance. But it has already been stated that Nistarini was not such a person. The gift to her must be taken to stand on the same footing as a gift to a stranger--whether male or female.