Bhagwan Das vs Krishen Lal and Others

Kilam, J.—This is a second appeal directed against an order of the learned Additional District Judge, Jammu, dated 16-7-2011 whereby he

has confirmed a decree for possession passed by the trial Court to favour of Kanshi Ram, plaintiff. The following pedigree table will facilitate an

easy understanding of the facts of this case:

JIWA RAM

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____________________________________________

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Bhagwan Das Kanshi Ram Sant Ram

(Detendant) (Plaintiff)

Mst. Tulsi widow

o Sant Ram.

Jiwa Ram died on 17th Phagan 1982 leaving behind him some agricultural land. The plaintiff Kanshi Ram has averred in the plaint that on the

death of Jiwa Ram the lands left by him were mutated in the name of the plaintiff and his two brothers Bhagwan Das and Sant Ram. During the trial

of the suit it came to light that Sant Ram had died in the lifetime of Jiwa Ram and as a matter of fact, on the death of Jiwa Ram, the land was

mutated in the name of Kanshi Ram and Bhagwan Das (Jiwa Ram's two sons) and Mst. Tulsi, widow of Sant Ram.

These mutations were effected as early as 1983 and 1984. Along with the two brothers, i.e., Kanshi Ram and Bhagwan Das, Mst. Tulsi also

entered into possession of the land that was mutated in her name and retained it all along in her exclusive possession. On 15th May 1999 Tulsi

executed a will by which she bequeathed the property mutated in her name to Bhagwan Das, defendant.

Tulsi died in the month of Magh 1999, and on her death mutation was effected on the basis of the will in the name of Bhagwan Das. The plaintiff,

Kanshi Ram, brought the present suit on the ground that Tulsi being a Hindu widow, she could not alienate the property mutated in her name.

It is further averred in the plaint that the mutation in Tulsi's name was effected as the heir of her husband, and that on her death, the property will

revert back to the plaintiff and the defendant who are her reversioners. The plaintiff prayed for a decree for 1/2 of the property mutated in Tulsi's

name.

The suit was resisted by defendant, Bhagwan Das, on the ground that Tulsi not being an heir of Jiwa Ram, the land mutated in her name on the

death of Jiwa Ram should be presumed to have been held by her adversely to other heirs of Jiwa Ram. It was further pleaded by the defendant

that Sant Ram, Tulsi's husband, having died in the lifetime of his father, no question of her having got the land as a heir of Sant Ram could arise.

The mutation was effected in her (Tulsi's) name unconditionally and she continued to retain possession unconditionally for more than 12 years and

by the mere lapse of time she became an absolute owner of this land which she could have bequeathed or alienated to anybody without any

restriction.

Now the learned Additional District Judge has somehow or other arrived at a finding that Tulsi was given the 1/3rd share of Jiwa Ram's land with

the consent of the plaintiff and the defendant and it should be presumed that the parties consented to this 1/3rd share being allotted to her in lien of

her maintenance. But the point is not so simple as the learned Additional District Judge thinks.

Admittedly Tulsi being the wife of a predeceased son of Jiwa Ram, she according to Hindu Law is entitled to maintenance only. But instead of

allotting her a maintenance grant, she was given a share as the heir of Jiwa Ram which everybody should have known she was not. According to

Hindu law the wife of a predeceased son is not a heir of her father-in-law. All that she can claim in the family estate is maintenance. This point

arose in AIR 1927 138 (Oudh) , wherein it has been laid down that:

When a Hindu widow who would not be entitled to anything more than maintenance out of her husband's estate obtains possession of the property

not as a result of an arrangement with the husband's heirs but absolutely in her owr Tight, her possession becomes adverse to them and their rights

are barred at the expiration of 12 years from the date of the husband's death.

The learned Additional District Judge has held that in the present case a presumption should be drawn that 1/3rd share allotted to Mst. Tulsi on the

death of Jiwa Ram her father-in-law was in lieu of her maintenance. But it need be said here that according to Hindu law, there is no such

presumption available. This point is covered by an authority of the Allahabad High Court in Ulfat Rai Vs. Sm. Kamla Devi and Others, wherein it

has been held:

Where on the death of a member of an undivided Hindu family, his widow assumes possession of the family property or a portion thereof, there is

no presumption that she has been allowed this for her mere consolation or in lieu of maintenance and unless the surviving member proves an

arrangement making her possession permissive it would be adverse.

Now in the present case there is not an iota of proof that the land was mutated in the name of Tulsi as a result of an arrangement arrived at

between the surviving sons (heirs) of Jiva Ram. As such the possession far from being permissive, must be treated as adverse possession from the

very beginning. In Gaya Deen Vs. Mst. Amrauti, it has been laid down that

Where a Hindu widow in a joint Hindu family takes possession over family property, it is for those who want to assert that her possession was not

adverse but in lieu of an arrangement or for consolation to establish the truth of that assertion.

In AIR 1940 269 (Oudh) it has been held that

There is no presumption that mutation in the name of a Hindu widow is by way of consolation. Consequently, whoever raises the plea of mutation

being for consolation must prove it.

Now in the present case there is no evidence to establish that the mutation was effected in the name of Tulsi as a mere consolation or in lieu of

maintenance as a result of an arrangement arrived at between the heirs of Jiwa Ram, and as such we hold that her possession started from the very

beginning adversely to other heirs of Jiwa Ram. She remained in possession of this land for more than 15 years.

All along she received its profits in an unquestioned manner. Lastly she willed it to Bhagwan Das whom she described in her will as a person who

had been very kind to her in her lifetime and had tended her in her illness and above all taken her care. She having remained in adverse possession

for more than twelve years, her possession matured actually into ownership. The matter would have been different if an arrangement such as is

visualized in the above authorities was there as a result of which the land may have been mutated in her name.

The evidence on record shows that both Bhagwan Das and Kanshi Ram adopted an attitude of indifference and neutrality when the mutation was

effected in her name. It is significant to note that in the mutation orders she is described as an heir of Jiwa Ram and none of the two brothers raised

even a little finger to protest against this palpably incorrect statement.

Under these circumstances, we accept this appeal, set aside the order of the Courts below, and find that Tulsi having held the land in adverse

possession for more than 12 years, had become its absolute owner and that she had power to alienate it by will without let or hinderance from any

quarter. In view of the peculiar circumstances of the case, we leave the parties to bear their own costs throughout.