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Adverse possession-Hindu Jat widow in possession as full owner-Life estate by subsequent agreement with collaterals- Agreement not registered-If admissible in evidence-lndian Registration Act, 1908 (XVI of 1908), s. 49. = On the death of R, a Hindu jat, in April or May, 1920, the widow of his pre-deceased son, H, took possession of the properties and on August 24, 1920, obtained a mutation of the settlement records showing her as the owner of the lands in the place of R. A gift of half of the properties by H to her daughter K 949 gave rise to disputes between them and the collaterals but the matter was settled on H executing a document on February 6, 1932, whereby, inter alia, she agreed that the lands would belong to her for her life and after her death to her daughter for the latter’s life and that none of them would be entitled to sell or mortgage the lands. The document, however, was not registered. In 1939 H made a gift of the entire lands to K who obtained a mutation of the settlement records showing her as the owner of the lands, and in 1945 a suit was filed by the collaterals challenging the transaction as not binding on them as the reversionary heirs of R. Under the general custom governing the parties as admitted by them a widow of a pre-deceased son was entitled only to maintenance when there were collaterals, and as H was in possession of the properties since 1920 it was said by her and K that she had, at the date of the gift, acquired an absolute title by adverse possession. It was contended for the plaintiffs, interalia, that the agreement of February, 1932, though not admissible in evidence to prove that H and K had only life estates in the lands, was admissible to show the nature of H’s possession and that it showed that her possession was not adverse. Held, that the document dated February 6, 1932, was in- admissible in evidence, in view Of S. 49 of the Indian Registration Act, 1908, as H had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession, and therefore, to give effect to the agreement contained in it. Varatha Pillai v. jeevarathnammal, (1918) L.R. 46 I. A. 285, distinguished, =1958 AIR 199, 1958SCR 950, , ,

PETITIONER:

English: The Mohindra College, Patiala estd 18...

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MST. KIRPAL KAUR

Vs.

RESPONDENT:
BACHAN SINGH AND OTHERS

DATE OF JUDGMENT:
15/11/1957

BENCH:
SARKAR, A.K.
BENCH:
SARKAR, A.K.
DAS, SUDHI RANJAN (CJ)
IMAM, SYED JAFFER

CITATION:
1958 AIR 199 1958 SCR 950
ACT:
Adverse possession-Hindu Jat widow in possession as full
owner-Life estate by subsequent agreement with collaterals-
Agreement not registered-If admissible in evidence-lndian
Registration Act, 1908 (XVI of 1908), s. 49.

HEADNOTE:
On the death of R, a Hindu jat, in April or May, 1920, the
widow of his pre-deceased son, H, took possession of the
properties and on August 24, 1920, obtained a mutation of
the settlement records showing her as the owner of the lands
in the place of R. A gift of half of the properties by H to
her daughter K
949
gave rise to disputes between them and the collaterals but
the matter was settled on H executing a document on February
6, 1932, whereby, inter alia, she agreed that the lands
would belong to her for her life and after her death to her
daughter for the latter’s life and that none of them would
be entitled to sell or mortgage the lands. The document,
however, was not registered. In 1939 H made a gift of the
entire lands to K who obtained a mutation of the settlement
records showing her as the owner of the lands, and in 1945 a
suit was filed by the collaterals challenging the
transaction as not binding on them as the reversionary heirs
of R. Under the general custom governing the parties as
admitted by them a widow of a pre-deceased son was entitled
only to maintenance when there were collaterals, and as H
was in possession of the properties since 1920 it was said
by her and K that she had, at the date of the gift, acquired
an absolute title by adverse possession. It was contended
for the plaintiffs, interalia, that the agreement of
February, 1932, though not admissible in evidence to prove
that H and K had only life estates in the lands, was
admissible to show the nature of H’s possession and that it
showed that her possession was not adverse.
Held, that the document dated February 6, 1932, was in-
admissible in evidence, in view Of S. 49 of the Indian
Registration Act, 1908, as H had been in possession before
the date of the document and to admit it in evidence to show
the nature of her possession subsequent to it would be to
treat it as operating to destroy the nature of the previous
possession and to convert what had started as adverse
possession into a permissive possession, and therefore, to
give effect to the agreement contained in it.
Varatha Pillai v. jeevarathnammal, (1918) L.R. 46 I. A. 285,
distinguished,

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 137 of 1953.
Appeal from the judgment and decree dated the November 30,
1951, of the former Pepsu High Court in R. S. Appeal No. 49
of 1948 against the judgment and decree dated the May 1,
1948, of the Court of the District Judge, Patiala, in Civil
Appeal No. 22 of 1946-47, arising from the judgment and
decree dated the April 4, 1947, of the Court of the Sub
Judge 11 Class, Bassi in Suit No. 721 of 1945.
Achhru Ram and K. L. Mehta, for the appellant.
Raghbir Singh and S. S. Dhillon, for the respondent No. 1.
950
1957. November 15. The following Judgment of the Court was
delivered by
SARKAR J.-The only question for decision in this appeal is
whether title had been acquired to certain lands by adverse
possession.
Ram Ditta was a Hindu Jat of village Bhathal in District
Bassi which was originally in Patiala but subsequently came
to be included in Patiala & Eastern Punjab States Union. He
died in April or May 1920 leaving certain lands which were
the subject matter of dispute in the suit out of which this
appeal arises. Ram Ditta had a son named Jeona who
predeceased him leaving a widow, Harnam Kaur. Harnam Kaur
has a daughter, Kirpal Kaur and the latter is the appellant
before us. Kirpal Kaur has a son of the name of Satwant
Singh. Ram Ditta had certain collateral relations and the
dispute was between them on the one hand and Harnam Kaur and
Kirpal Kaur on the other. These collaterals are the
contesting respondents in this appeal.
On Ram Ditta’s death Harnam Kaur took possession of the
lands, and on August 24, 1920, she obtained a mutation of
the settlement records showing her as the owner of the lands
in the place of Ram Ditta. By a deed dated November 27,
1929, she purported to make a gift of half of the lands to
Kirpal Kaur on the occasion of the latter’s marriage.
Thereafter an attempt was made to obtain a mutation of the
settlement records showing Kirpal Kaur as the owner of the
lands given to her but on the objection of the collaterals
the mutation was refused on May 12, 1930. This gift gave
rise to various litigation both civil and criminal between
Harnam Kaur and Kirpal Kaur on the one hand and the
collaterals on the other. Mutual friends intervened to put
an end to this unhappy state of affairs and at their efforts
a settlement of the disputes was arrived at. On February 6,
1932, a document was executed by Harnam Kaur whereby she
agreed that the lands would belong to her for her life and
after her death to Kirpal Kaur for the latter’s life and
that none of them would be entitled to sell or mortgage the
lands. The document further stated
951
that Harnam Kaur had previously created a mortgage on the
lands and that she would have the right to create another
mortgage on them to pay off certain specified debts due by
her and such mortgage would be binding on the collaterals
but after her death there would be no other burden on the
collaterals. This document was never registered. In 1936,
Harnam Kaur created another mortgage on the lands and this
mortgage was subsequently transferred to Satwant Singh, son
of Kirpal Kaur. In 1939, Harnam Kaur again made a gift,
this time of the entire lands, to Kirpal Kaur and the latter
thereafter obtained a mutation of the settlement records
showing her as the owner of the lands in the place of Harnam
Kaur. This eventually brought about the institution of the
suit out of which the present appeal arises.
This suit was filed in March 1945, by some of the
collaterals against Harnam Kaur, Kirpal Kaur and Satwant
Singh impleading certain other collaterals who did not join
as plaintiffs, as defendants. It sought a declaration that
the gift of the lands by Harnam Kaur to Kirpal Kaur and the
mortgage of 1936 were illegal and were not binding on the
collaterals who were the then reversionary heirs of Ram
Ditta. The suit was contested by Harnam Kaur, Kirpal Kaur
and Satwant Singh.
The court of first instance framed the following issues for
trial:
1. Are the plaintiffs the collaterals of Jeona ?
2. Is the property in dispute ancestral ?
3. Was the mortgage in dispute effected for legal
necessity ?
4. Is the gift in dispute valid according to custom ?
5. Is the suit time barred ?
6. Had Harnam Kaur acquired a right to the lands
by adverse possession at the time of the gift to Kirpal Kaur
?
The first five issues were decided in favour of the
plaintiffs, and the sixth against them. With regard to the
sixth issue it appears to have been admitted
121
952
before the learned trial Judge by both parties that
according to the general custom governing the parties a
widow of a pre-deceased son, as Harnam Kaur was, was
entitled to maintenance only when there were collaterals of
the degree that the collaterals in this case are. The
learned Judge held that the possession of Harnam Kaur was,
therefore, adverse to the collaterals and that as she had
admittedly been in possession since 1920 and as the
relations between her and the collaterals had been
unfriendly, she had acquired at the date of the gift an
absolute title to the lands by adverse possession. It was
contended before him that the agreement of February 6, 1932,
though not admissible in evidence in the absence of
registration to prove that Harnam Kaur and Kirpal Kaur had
only life estates in the lands, was admissible to show the
nature of Harnam Kaur’s possession and that it showed that
her possession was not adverse. The learned Judge did not
accept this contention. In the above view of issue No. 6 he
dismissed the suit.
The plaintiffs then took the matter up in appeal to the
District Judge of Patiala. Harnam Kaur and her side never
took any exception to the issues found against them by the
trial Judge. The learned District Judge was therefore only
concerned with the sixth issue. It was contended before him
on behalf of the plaintiffs that Harnam Kaur’s possession
was not adverse to them as she had been in Possession claim-
ing only a right of maintenance and this was sought to be
supported by the Patwari’s report in connection with the
mutation of August 24, 1920. The learned District Judge
held that the report, a reference to which will be made
later, did not show any assertion on the part of Harnam Kaur
that she claimed to be the heir of Ram Ditta or that she was
in possession in lieu of her maintenance. With regard to
the agreement of February 6, 1932, he held that it was of no
assistance to the collaterals. In the result he dismissed
the appeal.
The collaterals then went up in appeal to the High Court of
Patiala and Eastern Punjab States
953
Union. The High Court took the view that in coming to the
conclusion that Harnam Kaur’s possession was adverse to the
collaterals the Courts below had proceeded on the basis that
being the widow of Ram Ditta’s predeceased son she was not
an heir to him and, therefore, her possession of Ram Ditta’s
estate was necessarily adverse to his heirs, the
collaterals. The High Court felt that in doing so the
Courts below were thinking of Hindu Law under which the
widow of a pre-deceased son was not an heir but was entitled
to maintenance only, and had overlooked the fact that the
parties being Punjabi Jats, were governed by custom. The
High Court then referred to paragraph 9 of Rattigan’s Digest
of Customary Law-which is a book of unquestioned authority
on Punjab customswhere it is stated that ” the widow of a
sonless son who predeceases his father, is, in some tribes,
permited to succeed to his share ” and held that it appeared
from the Patwari’s report mentioned earlier that Harnam Kaur
was regarded as Ram Ditta’s heir and that was why mutation
in her favour had been sanctioned. The High Court then
proceeded to hold that it was legitimate to presume from
this that the tribe to which Ram Ditta belonged recognised
the right of a widow of a predeceased son to succeed her
father-inlaw in the place of her husband in preference to
the collaterals of the deceased. The High Court thought
that in view of this custom, which it found was proved in
this case, Harnam Kaur was entitled to the possession of the
lands and no presumption could therefore &rise that she was
holding them adversely to the collaterals. The High Court
also held that the agreement of February 6, 1932, was
admissible in evidence to prove the nature of Harnam Kaur’s
possession of the lands though it was not admissible to
prove title as it had not been registered. The High Court
was of the view that the agreement showed that since its
execution the nature of Harnam Kaur’s possession was
permissive and not adverse and as at the date of the
agreement she had not been in possession for the requisite
period, she never acquired title by adverse possession,
whatever may have been the character of
954
her possession prior to it. The High Court lastly held that
in any event, Harnam Kaur had entered into possession as
heir of her father-in-law and, therefore, adverse possession
by her would be considered as creating only a widow’s estate
in her and therefore she had not become an absolute owner
and the nature of the estate acquired by her by adverse
possession was that of a widow’s estate governed by the
customary law with no power of alienation. The High Court,
therefore, allowed the appeal and decreed the suit.
From this judgment of the High Court the present appeal to
us arises. The appeal had been filed by Harnam Kaur and
Kirpal Kaur, but later Harnam Kaur abandoned it and she was
removed from the record as an appellant. The appeal before
us now, therefore, is only by Kirpal Kaur.
Learned counsel for the respondents, by which we mean the
contesting respondents, contended that Kirpal Kaur alone was
not competent to appeal because the alienations challenged
had been made by Harnam Kaur. We cannot accept this
contention. Kirpal Kaur as the alienee is certainly
entitled to prosecute this appeal to protect her rights
under the alienation. Her rights in no way depend on
whether the alienor chooses to stand by the alienation or
not.
The points argued before us were the same as were canvassed
in the High Court. With regard to the special custom, which
the High Court held governed the parties to this case,
learned counsel for the appellant contended that no such
custom had been pleaded and no issue about it framed, nor
indeed any hint of it given at any earlier stage of the
proceeding in any of the courts below. We feel that these
contentions are justified. In the plaint no mention of the
custom is to be found. The plea as to adverse possession
was raised by Harnam Kaur and Kirpal Kaur in an amended
written statement that they filed. The plaintiffs never
filed any replication setting up the special custom alleged
by them as they should have done if they wished to rely on
it in answer to the case made by the defendants by the
amendment. Further. more, as earlier stated, it was
admitted by both,
955
parties before the trial Judge, that the custom governing
the parties was that the widow of a predeceased son was only
entitled to maintenance out of her fatherin-law’s estate.
As learned counsel for the appellant pointed out, the
passage in Rattigan’s Digest makes it clear that the general
custom is that the widow of a predeceased son is not an heir
of her father-in-law but that in some tribes a special
custom prevails which makes her the heir, and that the onus
of proving the special custom lies on those who assert it.
It was therefore in this case for the respondents to have
pleaded and proved the special custom. As already stated,
they neither pleaded the special custom, nor proved it nor
even made an attempt to do so. After Harnam Kaur and Kirpal
Kaur had closed their case, the respondents were given a
chance to produce evidence in rebuttal but even then they
did not make any attempt to establish the special custom.
In these circumstances, in our view, no question as to the
special custom should have been permitted by the High Court
to be raised.
Furthermore, we are unable to agree with the High Court that
there is evidence in this case to prove the special custom.
As already stated, the High Court thought that it might be
presumed from the Patwari’s report that the special custom
governing the tribe to which the parties belonged prevailed.
This report of the Patwari is dated June 9, 1920, and was
made in connection with the proceedings for the mutation of
the name of Ram Ditta to that of Harnam Kaur soon after the
former’s death. That report reads as follows:
“Sir, Ram Ditta S/o Begha Jat Bhathal died a month back.
Mst. Harnam Kaur widow of Jeona, who is the real daughter-
in-law of the deceased, is the heir and is in possession of
the property. Hence the mutation having been entered is
hereby submitted for orders.”
Upon this report the following order was made:
” The factum was confirmed in the general gathering in
presence of Bhana, Arjan Singh and Narain Singh, lambardars
and of Mst. Harnam Kaur, the daughter-in-law of the
deceased. Hence the mutation
956
of the holding of Ram Ditta deceased in favour of Mat.
Harnam Kaur, widow of Jeons Jat, is hereby sanctioned.
Dated……… 24th August, 1920, A.D.”
The report, no doubt, states that Harnam Kaur was Ram
Ditta’s heir. It is said that she could be an heir only
under the special custom and hence the special custom must
be deemed to have been proved in this case. But the report
of the Patwari shows that in his own opinion Harnam Kaur was
the heir of Ram Ditta. We do not know, how he came to have
such an opinion or whether he had based it on the special
custom. The report was not evidence given in court and is
not strictly admissible to prove the custom and, in fact,
the report was not tendered as evidence of the custom. It
is said that the Patwari’s report indicated that there must
have been an application by Hamam Kaur claiming the mutation
on the basis that the had succeeded to the lands as the heir
of Ram Ditta under the special custom. No such application
is, however, on the records. We are unable to draw any
presumption as to what statement might have been made in the
application, if there was one. We do not think that the
order of August 24, 1920, carries the matter further. It is
said that when the order stated that ” the factum was
confirmed ” it meant that the factum of the custom was
confirmed. We cannot accept this contention. The factum
referred to may well have been the death of Ram Ditta or
that Harnam Kaur was the daughter-in-law of Ram Ditta. Even
if it could be said that the factum confirmed was the
special custom, the same difficulty would arise again,
namely, that the order would show that it is only the
opinion of the lambardars as to the existence of the special
custom. Such opinion, for the reasons earlier stated, would
not be evidence in this case to prove the custom. Further
in the operative part of the order the mutation is not
stated to be based on the ground that Harnam Kaur was the
“heir” of Ram Ditta. We are, therefore, unable to hold that
the Patwari’s report or the order thereon proves that
Harnam,Kaur was the customary heir of Ram Ditta and had got
into possession in 1920, as such heir and,,
957
therefore, could not have been in adverse possession.
It is then said that the agreement of February 6, 1932,
showed that since its date her possession was permissive.
The High Court has held that the agreement was admissible to
prove the nature of her possession. In Varatha Pillai v.
Jeevarathnammal (1) it was held that a document which should
have been registered but was not, was admissible to explain
the nature of the possession of a person. What had happened
there was that two widows who were in possession of a
property in equal shares, presented a petition to the
Collector on October 10, 1895, whereby after reciting that
they had on October 8, 1895, given away the property as
stridhan to one Duraisani, they prayed that orders might be
passed for transferring the villages into her name. On this
petition the property was registered in the name of
Duraisani and she was put in possession and thereafter
continued in possession till her death in 1911. The
question was whether Duraisani had acquired title to the
property by adverse possession. It was held that though the
petition in the absence of registration could not be
admitted to prove a gift, it might be referred to for
showing that the subsequent possession of Duraisani was as a
donee and owner of the land and not as trustee or manager
for the two donors and therefore to show that the nature of
such possession was adverse to them. We cannot agree that
on the authority of Paratha Pillai’s case (1) the agreement
of February 6, 1932, can be admitted in evidence in the case
in hand to show the nature of Harnam Kaur’s possession of
the lands subsequent to its date. In Varatha Pillai’s case
(1) Duraisani had got into possession only after the
petition and claimed to retain possession only under the
gift mentioned in it. The petition was therefore admissible
in evidence to show the nature of her possession. In the
present case Harnam Kaur had been in possession before the
date of the document and to admit it in evidence to show the
nature of her possession subsequent to it would be to treat
it as operating to destroy the nature of the
(1)(1918) 46 I.A. 285.
958
previous possession and to convert what had started as
adverse possession into a permissive possession and,
therefore, to give effect to the agreement contained in it
which admittedly cannot be done for want of registration.
To admit it in evidence for the purpose sought would really
amount to getting round the statutory bar imposed by s. 49
of the Registration Act.
Lastly, the High Court held that as Harnam Kaur had entered
into possession as the heir of Ram Ditta she could, at most,
be considered to have acquired by adverse possession a
widow’s estate in the lands and could not therefore, make a
gift of them. The High Court had referred to Bura Mal v.
Narain Das (1) as an authority for this proposition. In our
view, that case is of no assistance. There a female who was
not an heir of the last full owner but was only entitled to
maintenance, took possession of the properties in lieu of
her maintenance by an arrangement with the heirs of the
owner, and in those circumstances it was held that her
possession could not be adverse to the heirs. There is no
evidence of any such arrangement in this case, nor is it the
case of the respondents that such an arrangement had ever
been made. The High Court also referred to the case of
Pandappa Mahalingappa v. Shivalingappa This case was based
on Lajwanti v. Safa Chand and it would be enough to refer to
” It was then argued that the widows could only possess for
themselves; that the last widow Devi would then acquire a
personal title; and that the respondents and not the
plaintiffs were the heirs of Devi. This is quite to
understand the nature of the widows’ possession. The, Hindu
widow’ as often pointed out, is not a life renter, but has a
widow’s estate-that is to say, a widow’s estate in her
deceased husband’s estate. If possessing as widow she
possesses adversely to any one as to certain parcels., she
does not acquire the parcels as stridhan, but she makes them
good to her husband’s estate.”
(1) 102 P. R., 1907. (2) A.I.R. 1946 Bom. 193.
(3) (1924) 51 I.A. 71, 176.
959
In order that the authority of this case may apply to the
case in hand, it has to be proved that Harnam Kaur entered
into possession of lands claiming a widow’s estate therein
as an heir of Ram Ditta. We find no evidence to prove that
such was her claim. The Patwari’s report earlier referred
to cannot be construed as such a claim. It was only the
Patwari’s opinion of the situation. It cannot therefore be
said in this case that Harnam Kaur was in possession claim-
ing a widow’s estate in the lands, as the customary heir of
her father-in-law. Furthermore, in Lajwanti’s Case the
widows who were found to have acquired title by adverse
possession were undoubtedly the heirs of their husband and
would have succeeded to his properties if a posthumous son
whose existence was assumed by the Judicial Committee, had
not been born to him. It was possible for these widows to
bold property as heirs of their husband and make them good
to his estate. Lajwanti’s Case therefore was concerned with
a female who was admittedly an heir. That is not the case
here. As we have already stated, the special custom under
which alone Harnam Kaur could have become an heir of Ram
Ditta has not been proved. On the case as made and the
evidence before us, it must be held that Harnam Kaur could
never have been the heir of Ram Ditta. That being so, it
was impossible for her to have acquired by adverse
possession title to property as his heir or to make such
observation of the Judicial Committee in sham Koer v.
applies to this case
” Assuming that Bhau Natli Singh was a member of an
undivided Hindu family governed by the Mitakshara law, as
the Lower Court found and the High Court assumed, neither
his widow nor his son’s widow would be entitled to anything
more than maintenance out of his estate. Their possession,
therefore, of the three villages in question would be
adverse to the reversionary heirs unless it was the result
of the arrangement with them. If the possession was
(1) (1902) 29 I.A. 132, 135, 136.
1 22
960
adverse, the rights of the reversionary heirs would of
course be barred at the expiration of twelve years from the
date of Bhau Nath Singh’s death, or the date of the widows’
taking possession, which seems to have been at or shortly
after his death.”
As there is no evidence of any arrangement with the
respondents under which Harnam Kaur can be said to have
taken possession of the lands, her possession must be taken
to have been adverse to the collaterals. Admittedly such
possession commenced in 1920 on the death of Ram Ditta and
has continued ever since. So at the date of the mortgage
and gift, Harnam Kaur had acquired a title to the lands by
adverse possession. The respondents’ claim must fail.
We, therefore, allow the appeal with costs throughout.
Appeal allowed.

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