DHURJATI UPADHIYA Vs. RAM BHAROS PANDE

JUDGEMENT

(1.) The property is dispute originally belonged to Molai who in 1881 put his wife Mt. Nepali in possession and got mutation of names effected in her favour. It has been assumed all along that by adverse possession Mt. Nepali acquired an absolute proprietary interest in this property. The property therefore became her stridhan. In 1890 long after the death of her husband she attempted to make a gift of this property in favour of her daughter Mt. Lakhpati and got mutation of names effected in her favour. It is admitted that Mt. Lakhpati continued in adverse possession of this property from 1890 to 1899 when Mt. Nepali died. On the death of Mt. Nepali, her daughter Mt. Lakhpati was her sole heir. She continued in possession of this property as before till her death in 1920. Mt. Nepali had not executed a registered deed of gift in favour of Mt. Lakhpati as required by law.

(2.) The plaintiff is an heir of Mt. Lakhpati's husband and claims the property on the ground that it was the stridhan of Mt. Lakhpati which would devolve on her own legal heir. On the other hand the defendants contest the claim pleading that Mt. Lakhpati held a Hindu daughter's estate only which reverted the heirs of Mt. Nepali the last full owners and that they being the heirs of Molai are entitled to succeed to this estate.

(3.) The first Court dismissed the claim with regard to this property and decreed it with regard to other properties with which we are not now concerned in this appeal. The District Judge allowed the appeal and decreed the plaintiff's claim in respect of this two anuas eight gandas share. On appeal an learned Judge of this Court has restored the decree of the first Court. His judgment is based on the principle of law that where there is a title to which possession may be traced, it cannot be assumed or asserted that the possession was adverse and that when the daughter accepted the benefit of the inheritance she could not say that her possession even after her mother's death was adverse to her.