Lilku Mahto and Others vs Amar Mahto

Rowland, J.—The facts leading up to this appeal are that the plaintiff-respondent got a deed of ijara executed in his favour by Mt. Sarpato Kaur, widow of Sheobux Mahto, in whose estate she had the limited interest of a Hindu widow. In her lifetime the defendants-appellants brought a declaratory suit asserting that they were the nearest reversioners of Sheobux and that the deed being without consideration and not for necessity was not binding on them as reversioners after the death of the widow. The Subordinate Judge decreed their suit finding in favour of the alleged reversioners on both issues. In appeal (F.A. No. 225 of 1926) a Bench of this Court held that the plaintiffs of that suit were not the nearest reversioners of Sheobux Mahto and that the suit was not maintainable at their instance. Accordingly they dismissed the entire suit. The judgment was pronounced on 6th January 1929. Meanwhile the lady died in March 1927, and the defendants-appellants of the present suit dispossessed plaintiff-respondent in 1928, the judgment of the Subordinate Judge in favour of the defendants-appellants being at that time still in force. In 1929 the plaintiff tried to resume possession but was resisted, and on 14th January 1930 he brought the present suit to recover possession asserting his right to hold possession until repayment of the rehan money and redemption of the rehan.

The Subordinate Judge before whom the suit came for decision, found that the rehan deed of 23rd May 1919 was genuine but not valid and for consideration, and that the defendants had dispossessed the plaintiff at a time when they had in their favour the decision of the Subordinate Judge in the earlier litigation but had in fact no title. He was of opinion that the plaintiff, not himself having title, could not succeed merely on the weakness of the defendants'' title unless he brought his suit within six months of the dispossession and in accordance with Section 9, Specific Relief Act. On this view he dismissed the suit. In appeal the Additional District Judge reversed this decision being of opinion that previous possession even without title and even for a period short of a statutory period of 12 years entitled the plaintiff to a decree for possession against a trespasser. Of the decisions relied on by the Additional District Judge the majority either proceed on or can be supported by the principle of Section 110, Evidence Act:

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

There are, however, two decisions which at first sight appear to go further, namely Sahodra Kuar v. Gobardhan Tiwari 1917 Pat 546 and Bodha Ganderi v. Ashloke Singh 1927 Pat 1. In both these cases the decision in the plaintiff''s favour was apparently based on the fact of his previous possession and not on the inference of the existence of a title drawn from the fact of that possession; but in Ranjit Singh v. Johri Singh 1929 Pat 601, which cites and follows Bodha Ganderi v. Ashloke Singh 1927 Pat 1 and other authorities, the decision is ultimately founded on Section 110, Evidence Acts with the observations:

The plaintiff brings a suit in ejectment. It is quite true that ho can only succeed by the strength of his own title. He satisfies the Court of the fact that he was in possession of the disputed property before he was forcibly dispossessed. Section 110 assumes that he might be taken to be the owner till the contrary is established. It follows therefore that if the case attracts the operation of Section 110, Evidence Act, the onus must be upon the defendants to show that the plaintiff who has proved that he was in possession before his forcible dispossession is not entitled to the disputed property.

Some of the cases referred to by the District Judge are cases in which the plaintiff at the time of suit had in fact been in possession and in such cases the presumption from Section 110, Evidence Act, was clearly available in aid of the plaintiff. The respondent invites us to read the decisions in Sahodra Kuar v. Gobardhan Tiwari 1917 Pat 546 and Bodha Ganderi v. Ashloke Singh 1927 Pat 1 as laying down that a plaintiff who was ab initio a trespasser, and in whose favour no presumption u/s 110 can possibly arise, would still be entitled though out of possession for more than six months to a decree for restoration of his possession as against another trespasser. Whether the learned Judges intended to go so far, and whether that is indeed the law, it is unnecessary to decide in the present case. At any rate, the authorities seem to be clear that wherever Section 110 can be called in aid by the plaintiff the Courts can give effect to it; that is to say, wherever the plaintiff''s original entry had an ostensible lawful basis. The Privy Council in Ismail Arifi v. Mahomed Ghouse (1893) 20 Cal 834 dealt with a case in which the plaintiff had shown quiet possession on foot of a conveyance the validity of which was challenged by the defendants who were trespassers. It was held that the plaintiff was entitled to a decree without being called upon to negative the alleged defect in his title. In the present case the respondent had entered into possession lawfully under an alienation made by a Hindu widow who was undoubtedly competent to give possession of the property for her lifetime. Such an alienation, as was pointed out by their Lordships of the Judicial Committee in Bijoy Gopal Mukharji v. Krishna Mahishi Debi (1907) 34 Cal 329, is not absolutely void but is prima facie voidable at the election of the reversionary heir, who may affirm it or treat it as a nullity. Again in Ramgowda Annagowda v. Bhausaheb 1927 PC 227 their Lordships of the Judicial Committee observed:

It is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioners.

In Raja Modhu Sudhan Singh v. Rooke (1897) 25 Cal 1 their Lordships observed:

that the patni was not void; it was only voidable; the Raja might elect to assent to it and treat it as valid. Its validity depended upon the circumstances in which it was made. The learned Judges of the High Court appear to have fallen into the error of treating the patni as if it absolutely came to an end at the death of the widow.

This decision was applied in the Bombay High Court in Sitaram v. Khandu 1921 Bom 413. Macleod, C.J. considered the question regarding the nature of the widow''s alienation to be concluded by the above decision. He said:

It is perfectly valid until it is set aside. In other words it is only voidable, not void. The question is who are the persons who are entitled to dispute the validity of such a grant. Clearly the reversioners.

He went on to hold that a third party (in the case before him a mortgagee) had no locus standi to resist the claim of a person who on the face of it had a good title granted by a Hindu widow, and the only person who can dispute the validity of such a grant is the reversioner, and Heaton, J. agreeing said:

Not only does a widow convey her life-interest, but she conveys something that may become a permanent interest, unless it is claimed by somebody competent to claim it. The next reversioner, for example, on the widow''s death, can get an alienation declared to be no longer of any validity. But anyone dealing with a widow, and taking her interest in the property, does acquire an interest in that property, and acquires an interest that does not automatically cease to exist merely because the widow dies. It may come to an end as the result of proceedings taken by the reversioner, or possibly in other ways, but it does not automatically cease. Indeed it continues until it is put an end to in some regular and legal way.

Therefore it seems to me that the plaintiff-respondent was entitled to succeed as of right, the defendants not being entitled to put him to the proof that the transfer in his favour was effective beyond the life time of the widow. The appellants have referred to the findings arrived at both in the earlier litigation and by the Court of first instance in this litigation that the plaintiff did not establish that his ijara deed was for consideration, still less that it was for necessity; and it has been argued that on those findings the plaintiff cannot claim any higher position than that of a trespasser. The answer is that for the reasons above given, this was a question of fact which the defendants in this action were not entitled to raise. The findings are mere obiter dicta and have no legal consequence. The plaintiff was entitled to succeed both on the principle that his ostensible title must be presumed to be a good title until displaced by some one having a better title and on the principle that the alienation in his favour by a Hindu widow is in fact good unless and until the nearest reversioners elect to treat it as not binding on them. I would dismiss the appeal with costs.

James, J.

I agree.