JUDGMENT O.P. Saxena, J.
1. This is an appeal against the judgment and decree dt. 28th Oct. 1969 passed by the Civil Judge, Saharanpur in Original Suit No. 12 of 1965 dismissing the suit with costs to defendants 1 and 2.
2. The dispute relates to the following property : --
(1) One double storeyed Haveli situated at Mohalla Saraogan in the town of Mangalore, Tahsil Roorkee. District Saharanpur and bearing municipal Nos. 100/1 and 100/6.
(2) Five shops including an Ahata situated at Mohalla Tonga stand in the town of Manglore bearing Municipal Nos. 248 to 253 :
(3) One grove on plot No. 2320 area 7 bighas 6 biswas in the town of Manglore;
(4) One shop in Mohalla Bandtol in the town of Manglore bearing Municipal No. 279;
(5) Half share in grove on plot No. 1440 area 1 bigha 5 biswas in the town of Manglore.
3. The property in suit along with other property belonged jointly to Bhagwan Das and his brother Banwari Lal. Banwari Lal had a son Bansukh Rai and defendant 5 Mithan Lal is the son of Bansukh Rai. Bhagwan Das had two sons and one daughter viz., Banarsi Das, Ramji Das and Smt. Pisto Devi, Bhagwan Das died sometime near about 1901 leaving behind his widow Smt. Nirma Devi, two sons and one daughter. Banarsi Das died in 1911, He left behind his widow Smt. Kishan Devi. Ramji Das died on 22nd July 1912. He was succeeded by mother Smt. Nirma Devi.
4. On 25-8-1921, there was a partition between Smt. Nirma Devi and Smt. Kishan Devi on the one hand and defendant 5 Mithan Lal on the other, vide copy paper No. 129-Gal. The property in suit fell in the share of Smt. Nirma Devi and Smt. Kishan Devi.
5. On 30th April 1925, Smt. Nirma Devi executed gift deed vide copy paper No. 134-gal in favour of Smt. Kishan Devi.
6. Smt. Pisto Devi was married to Asha Ram. Nihal Chand is the brother of Asha Ram. Plaintiff Bhushan Lal is the natural son-of Nihan Chand. Sometime in the year 1929-1930, Asha Ram and Smt. Pisto Devi adopted Bhushan Lal.
7. Smt. Nirma Devi died in the year 1941. She was succeeded by her daughter Smt. Pisto Devi who died on 31-7-1961.
8. On 19-4-1960. Smt. Kishan Devi adopted Suresh Kumar defendant No. 1, the natural son of defendant 2 Jagmandar Das and defendant 3 Smt. Prakashvati.
9. On 13-2-1964, Smt. Kishan Devi executed will deed paper No. 203 Ka-1 in favour of defendant 1 Suresh Kumar.
10. Smt. Kishan Devi died in Feb. 1964. On 25th April 1964, plaintiff filed the suit for possession over the property and pendente lite and future damages for use and occupation at the rate of Rs. 100/- per mensem. It was said that Banarsi Das predeceased Ramji Das, that Smt. Kishan Devi had no right in the property and she could not get any right on account of he having been made a party to the partition deed, that the gift deed executed by Smt. Nirma Devi in favour of Smt. Kishan Devi was without any legal necessity and was void, that on the death of Smt. Nirma Devi, Smt. Pisto Devi succeeded to the property, that she permitted Smt. Kishan Devi to live in the house and use the income of the property as she was a widow of the family, that defendants Nos. 2 to 4 are near relations of Smt. Kishan Devi, that by exercising undue influence on her, they got an adoption deed executed by her on 19-4-1960 regarding the adoption of defendant 1, that in fact no adoption took place, that Smt. Kishan Devi was never the owner of the property, that she constructed six shops out of the income of the property, that defendants 1 to 4 entered into possession of the property during the illness of Smt. Kishan Devi who died in Feb. 1964, and that the plaintiff is entitled to the possession over the property as well as mesne profits.
11. The suit was contested by defendants 1 and 2 with the allegations that Ramji Das predeceased Banarsi Das, that on the death of Ramji Das, his mother succeeded him, that on the death of Banarasi Das, Smt. Kishan Devi succeeded him, that smt. Kishan Devi obtained possession over the property in pursuance of the partition deed and the gift deed, that no steps were taken to get the gift deed cancelled within the period of limitation, that it is wrong to say that Smt. Kishan Devi was permitted to remain in possession of the property as a widow of the family, then they duly adopted defendant 1, that on 13-2-1964, she executed a will in his favour, that on her death, he succeeded to the property and that plaintiff is not the adopted son of Asha Ram and Smt. Pisto Devi.
12. Defendant 5 Mithan Lal contested the suit with the allegations that the property in suit along with other property was joint Hindu family property of Bhagwan Das, his sons, Bansukh Rai and Mithan Lal, that Bhagwan Das and his sons died as members of the joint Hindu family, that after the death of his sons, defendant No. 5 Mithan Lal became the owner of the entire property as the sole surviving coparcener, that Smt. Nirma Devi and Sm. Kishan Devi had no title to the property, but they made a demand for maintenance, and as there was some dispute, a family arrangement was made vide deed dt. 25th Aug. 1921, that the property in suit was given to Smt. Nirma Devi and Smt. Kishan Devi for maintenance, that on the death of Smt. Kishan Devi, her limited right came to an end and the property reverted to defendant 5, that the gift deed executed by Smt. Nirma Devi is not binding on defendant No. 5 and that there was no adoption of defendant 1 as alleged.
13. The trial court accepted the plaintiffs version regarding his having been duly adopted by Asha Ram and Smt. Pisto Devi. It also accepted the version of defendant 1 regarding his adoption by Smt. Kishan Devi. The plaintiffs version that Banarsi Das predeceased Ramji Das was accepted and it was held that Smt. Kishan Devi did not succeed to the right or interest of Banarsi Das. The version of defendant 5 that on the death of Ramji Das the propeVty in suit devolved on defendant 5 by survivorship was rejected. It was held that Bhagwan Das formed a joint Hindu family with his sons, but he was separate from his brother Banwari Lal. It was held that Smt. Kishan Devi had no right or interest by virtue of her having been made a party to the partition deed. The plea that the document dt. 25th Aug. 1921 was a family arrangement and not a partition deed was rejected. It was held that Smt. Nirma Devi was not competent to execute a gift deed in favour of Smt. Kishan Devi. The plaintiff's version that Smt. Kishan Devi was permitted to remain in possession over the property as a widow of the family was rejected. It was held that Smt. Kishan Devi acquired title by adverse possession for over 12 years. It was also held that Smt. Kishan Devi became owner under Section 14(1) Hindu Succession Act, 1956. The will by Smt. Kishan Devi in favour of defendant 1 was accepted. In view of the finding regarding adverse possession and conferment of absolute interest under Section 14(1) of the Hindu Succession Act the suit was dismissed with costs to defendants Nos. 1 and 2.
14. Sri. S. N. Verma, learned counsel for the appellant challenged the findings of the trial court on three points viz. that Smt. Kishan Devi did not remain in possession of the property with the permission of Smt. Pisto Devi, that Smt. Kishan Devi acquired the by adverse possession and that smt. Kishan Devi became an absolute owner under Section 14(1), Hindu Succession Act, 1956.
15. Sri Ravi Kant learned counsel for the respondents 1 and 2 supported the aforesaid findings and raised some more pleas.
16. The findings that the plaintiff is the adopted son of Asha Ram and Smt. Pisto Devi that defendant 1 is the adopted son of Smt. Kishan Devi, that Banarsi Das predeceased Ramjit Das and Smt. Kishan Devi did not succeed to the right or interest of Banarsi Das, that Bhagwan Das was joint with his sons but was separate from his brother Banwari Lal and that on the death of Ramji Das, the property did not revert to defendant 5 Mithan Lal but Smt. Nirma Devi succeeded to the property as mother were not challenged.
17. The first point for determination in this appeal is as to whether on the death of Smt. Nirma Devi, Smt. Kishan Devi continued in permissive possession of the property in suitor she was in possession in her own right.
18. It is not disputed that Banarsi Das had predeceased Ramji Das. Smt. Kishan Devi could not succeed to the interest of Banarsi Das in the property and the same devolved on Ramji Das the sole surviving coparcener. As a Hindu widow, Smt. Kishan Devi was entitled to reside in the family dwelling house in which she lived with her husband. She was also entitled to maintenance. On the death of Ramji Das. his mother Smt. Nirma Devi succeeded to his interest in the property. The document dt. f 25th Aug. 1981 was not a family arrangement but a partition deed pure and simple. A partition could take place between co-sharers only. Smt. Nirma Devi and Mithan Lal were co-sharers. Smt. Kishan Devi was not a co-sharer and could not join the partition. Even " if Smt. Nirma Devi wanted to share her limited interest in the property with Smt. Kishan Devi she could do so only for her lifetime. She had no power to dispose of the corpus of immoveable property inherited by her except for legal necessity or with the consent of the next reversioners or when it was surrender of her interest in the whole estate in favour of the next reversioners. She had no power to dispose of the property by gift or will. The gift deed executed by Smt. Nirma Devi was void. Smt. Kishan Devi could share possession with Smt. Nirma Devi during her lifetime by virtue of the partition deed and the gift deed, Smt. Kishan Devi could not claim title to the property after the death of Smt. Nirma Devi. She had only a right of residence and maintenance. Except for this she could not remain in possession of the property by virtue of any right of her own.
19. In para 14 of theplaint it wassaid that Smt. Kishan Devi had become a widow soon after her marriage and in view of this, Smt. Pisto Devi permitted her to utilise the income of the property. In para 20 of the plaint it was said that after the death of Smt. Pisto Devi, the plaintiff deemed it proper that Smt. Kishan Devi should utilise the income of the property for her lifetime in lieu of 'Nan nafqa'.
20. P.W. 4 Bhushan Lal plaintiff stated that after the death of Smt. Nirrna Devi Smt. Pisto Devi became owner of the property but she permitted Smt. Kishan Devi to remain in possession of the property by way of Diljoi as she was the widow of the family and permitted her to utilise the income of the property for maintenance.
21. D.W. 4 Jagmandar Das stated that there was no such talk that Smt. Kishan Devi was in possession of the property with the permission of Smt. Pisto Devi.
22. The trial court did not take into consideration some material facts. Smt. Pisto Devi and Smt. Kishan Devi are dead. It is not possible to have direct evidence on the point.
P.W. 4 Bhushan Lal gave his age as 46 years in his statement recorded on 25th Sept. 1969. He could have been born in 1923. He was adopted by Smt. Pisto Devi and Asha Ram in 1929-1930. His statement shows that when he was between 20 to 25 years old, his mother told him about the permissive nature of Smt. Kishan Devi's possession. It is but natural that Smt. Pisto Devi should have apprised her adopted son about family affairs and the statement of P.W. 4 Bhushan Lal is highly probable and believable. The property in suit is situated in the town of Mangalore. Smt. Pisto Devi was married in village Imli Khera. The evidence of P.W. 1 Babu Ram, P.W. 2 Shitla Prasad and P.W. 3 Abdul Majid shows that Asha Ram and Nihal Chand were very well off, did money lending business and paid Rs. 10,000/- as land revenue, Smt. Kishan Devi was the widowed sister-in-law of Smt. Pisto Devi and in the circumstances it is highly probable that she may have permitted her to remain in possession of the property for purposes of residence and maintenance. I am thus of the opinion that the trial court erred in rejecting the plaintiffs version regarding permissive possession of Smt. Kishan Devi. I believe the same and hold that Smt. Pisto Devi permitted Smt. Kishan Devi to remain in possession of the property in suit for residence and maintenance.
23. The second point for determination in this appeal is as to whether the suit is barred by Article 64 Limitation Act.
24. It is not disputed that Smt. Pisto Devi, predecessor of the plaintiff was never in actual possession of the property after the death of Smt, Nirma Devi.
25. Sri A. N. Verma placed reliance on Kunji v. Niyaz Husain, AIR 1934 All 262, Bindhyachal v. Ram Gharib, AIR 1934 All 993 (FB) and Qadir Bux v. Ramchand, AIR 1970 All 289 (FB) in support of the contention that on proof of title, a suit can be dismissed only if the defendant establishes adverse possession. He, however, submitted that as the suit was filed on 25th April 1964, Limitation Act, 1963 applies.
26. Article 64 of the Limitation Act, 1963 provides a limitation of 12 years from the date of dispossession for a suit for possession of immoveable property based on previous possession and not on title when the plaintiff while in possession of the property has been dispossessed.
27. The corresponding Article 142, Limitation Act 1908 provided a limitation of 12 years from the date of dispossession or discontinuance for a suit for possession of immovable property when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession.
28. A comparison of the two sections would show that Article 64, Limitation Act, 1963 does not apply to suit for possession based on title and has been now restricted to suits based on possessory title. Article 65 of the Limitation Act applies to suits based on title. It is not necessary for a plaintiff to prove possession within 12 years in suit for possession based on title. A suit can only be defeated if the defendant is able to prove adverse possession for over 12 years.
29. Reliance may be placed on Kidar Nath v. Ram Chand, AIR 1972 Punj and Har 335 and Ram Shankar v. Mahatma Gandhi Higher Secondary School, AIR 1979 All 184.
30. Sri Ravi Kant placed reliance on Ulfat Rai v. Sm. Kamla Devi, AIR 1949 All 458, Mst. Kirpal Kaur v. Bachan Singh, AIR 1958 " SC 199 and Satyanarayana v. J. Veeraju, AIR 1959 Andh Pra 79 (FB). These cases are on the nature of possession of a Hindu female and are obviously distinguishable.
31. I, therefore, hold that the suit for possession is not barred by Article 64, Limitation Act. The suit can fail only if the defendants Nos. 1 and 2 succeed in proving adverse possession for over 12 years or title under Section 14(1), Hindu Succession Act, 1956.
32. The third point for determination in this appeal is as to whether Smt. Kishan Devi acquired title by adverse possession.
33. In view of my finding on the first point the question of adverse possession does not arise. However, assuming that the possession of Smt. Kishan Devi was not permissive, I will consider the question as to whether she acquired title by adverse possession.'
34. Sri Ravi Kant submitted that even if the gift deed dt. 30th April 1925 was invalid, Smt. Kishan Devi obtained possession over the property in pursuance of the gift deed and she continued in possession even after the death of smt. Nirma Devi. If her possession was not permissive it shall be deemed to be adverse to Smt. Pisto Devi. He placed reliance on certain cases.
35. In Ulfat Rai v. Kamla Devi, AIR 1949 All 458 it was held that where on the death of member of undivided Hindu family, his widow assumes possession of the property of a portion thereof, there is no presumption that she has 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 possession.
36. In Kundan Singh v. Hardan Singh, AIR 1953 All 501 there was a usufructuary mortgage by Manager of a joint Hindu family without legal necessity. Other member had knowledge of mortgage. It was held that the mortgagee's possession must be deemed to be adverse to such member.
37. In Mst. Kirpal Kaur v. Bachan Singh, AIR 1958 SC 199 there was no evidence of any arrangement with the respondents under which Harnam Kaur could be said to have taken possession of the lands. It was held that her possession must be taken to have been adverse to the collaterals.
38. In Satyanarayana v. J. Veeraju, AIR 1959 Andh Pra 79 (FB) it was held that in case where a Hindu woman not entitled to inherit an estate asserts her title as absolute onwer, her title to the property is absolute. But where she does not assert her absolute title, still the nature of the title is the same in the absence of evidence that she stepped into possession of the property as heir of the last male holder or under arrangement or agreement.
39. In Chacko Mathew v. Ayyapan Kutty, AIR 1962 Ker 164 (FB), it was held that if possession accompanied the alienation and continued unchallenged with the alliance for a period of 12 years, he gets an indefeasable right to property.
40. In Bharit v. Board of Revenue, AIR 1973 All 201 it was held that if the document of sale is invalid, the transferee gets no title under it. His possession will not be referable to any legal title. It will be adverse to the transferor.
41. Sri Ravi Kant drew my attention, to the statement of P.W. 4 Bhushan Lal which shows that after the death of Smt. Nirma Devi, Smt. Pisto Devi made no attempt to get her name mutated or to realise rent, that Smt. Kishan Devi used to live in the house and used to realise rent from the tenants, that she used to increase the rent and that she used to realise rent of the shops.
42. Para 22 of the plaint in which it was said that Smt. Kishan Devi contructed six shops from the income of the property was referred to.
43. Sri Ravi Kant placed reliance on documentary evidence.
44. Exs. A-i to A-13 are houses tax receipts for 1962-63. A-l to A-5 are in respect of premises Nos. 248 to 253 Lalbara.Exs. A7 to A12 are in respect of premises Nos. 100/1 and 100/2 Saraogan. Exs. A-13 is in respect of premises No. 279 Bandtol.
45. Exs. A-14 to A-20 are house tax receipts for 1955-56. Exts. A-14 to A-17 relate to premises Nos. 225 to 228 Lalbara. Ex. A-18 relates to premises No. 245 Lalbara. Exs. A19 relates to premises No. 92 Saraogan. Ex, 20 relates to premises No. 289 Bandtol.
46. Exs. A-21 to A-27 are irrigation slips for the period from 1960 to 1963. Exs. A-29 and A-30 are slips for 1958 and 1959. Exs. A-31 and A-32 are irrigation slips for 1962. Ex, A-28 is an irrigation slip dt. 28-6-1947 in respect of Khata Khatauni No. 115. The relevant extract of Khatauni has, however, not been filed to connect the slip.
47. Sri Ravi Kant also placed reliance on three copies of sale deeds executed by Smt. Kishan Devi. Paper No. 29 Gal is a copy of sale deed dt. 14-10-1958. Paper No. 30 Gal is a copy of sale deed dt. 12-6-1959. Paper No. 137 Ga 1 is a copy of sale deed dt 1-12-1958.
48. Sri. Ravi Kant submitted that the manner in which Smt. Kishan Devi asserted her title over the property clearly shows that she was in adverse possession of the same.
49. Sri S. N, Verma submitted that the gift deed executed by Smt. Nirma Devi in favour of Smt. Kishan Devi was not a voidable but a void document. It was not necessary for Smt. Pisto Devi to file a suit for cancellation of the gift deed. He placed reliance on two cases.
50. In Radha Rani v. Hanuman Prasad, AIR 1966 SC 216, it was held that in case of alienation by Hindu widow, without legal necessity, reversioners are not bound to institute a declaratory suit during the lifetime of the widow. They can sue the alienee after her death for possession of the alienated property treating the alienation as a nullity without the court's intervention.
51. In Jamuna v. Bansdeo, AIR 1958 All 739, it was held that after the death of a member of joint Hindu family his widow has a right of residence in the family house. The right does not come to an end on the death of the last male holder but continues for her lifetime and her possession of the house therefore remains that of a Hindu widow and in the absence of any evidence of any assertion of a right of ownership over it after the death of the last male holder, no amount of lapse of time would make her possession adverse to the nearest reversioner.
52. Sri S. N. Varma submitted that mere possession of a Hindu widow cannot confer a title by prescription unless there is cogent evidence that the possession.is hostile to the real owner.
53. In Ejas Ali v. Special Manager, Court of Wards, AIR 1935 PC 53 it was held that a person claiming adverse possession must show that his possession is hostile to real owner and amounts to denial of title.
54. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254 it was held that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at least to show when possession became adverse so that the starting point of limitation against the party affected may be found.
55. Sri S. N. Varma urged that there was no assertion either in the pleadings or in the evidence regarding the point of time at which possession became adverse/He also referred to Mahommed Sab v. Abdul Gani, AIR 1985 Kant 177.
56. Sri. S. N. Verma relied on Puttathayamma v. Rathnarajiah, AIR 1955 Mys 33. It was held that where plaintiff and defendant are close relations much more better and stronger evidence of a positive character was necessary to establish title by prescription and adverse possession in favour of plaintiff.
57. Sri S. N. Verma submitted that the suit was filed on 25th April 1964 except for Ex. A-28 which has not been connected, there is no document of the period prior to 25th April 1952. As far as the sale deeds are concerned, he urged that the same have not been duly proved. Formal proof was dispensed by the learned counsel for defendant 5 and not by the plaintiffs counsel and the sale deeds should have been duly proved. In the absence of proper proof, the same cannot be relied upon.
58. I find much substance in the submissions of Sr. S. N. Varma. The gift deed in favour of Smt. Kishan Devi was a void document. It was not necessary for Smt. Pisto Devi to sue for its cancellation. There is no evidence to show that Smt. Kishan Devi obtained proprietary possession in pursuance of the gift deed or that she got her name mutated in municipal records or revenue papers or she paid house tax or land revenue or other dues during the lifetime of Smt. Nirma Devi. She may have continued possession along with Smt. Nirma Devi.
59. Smt. Kishan Devi had a right of residence and maintenance. In view of close relationship, positive evidence was required to prove that she asserted a hostile title. The contesting defendants did not file copies of the mutation application or orders passed thereon or copies of the municipal assessment register or relevant extracts of khasras and khataunis. It cannot be said that mutation was done after "notice to Smt. Pisto Devi. Smt. Kishan Devi is dead. Defendant No. 1 Suresh Kumar did not enter the witness box to prove the case of adverse possession. D.W. 4 Jagmander Das is the solitary witness on this point. His evidence is hardly satisfactory. The documentary evidence filed by the contesting defendants except for Ex. A-28 does not relate to a period more than 12 years prior to the suit. Ex. A-28 has not been connected. The sale deeds have not been duly proved. There is no proper pleading or proof as to when possession of Smt. Kishan Devi became adverse. In the circumstances I hold that the contesting defendants failed to prove that Smt. Kishan Devi acquired title by adverse possession.
60. The fourth point for determination in this appeal is as to whether Smt. Kishan Devi became owner under Section 14(1), Hindu Succession Act, 1956.
61. I have held that Smt. Pisto Devi permitted Smt. Kishan Devi to remain in possession of the property for residence and maintenance.
62. Sri S. N. Varma urged that Smt. Kishan Devi was not a limited owner of the property and she could not claim benefit of Section 14(1) of the Hindu Succession Act, 1956. He placed reliance on three cases.
63. In Damodhar Rao v. Bhima Rao, AIR 1965 Mys 290. Section 14(1) was not applied as the female was residing in the house as a widow of the joint Hindu family and the house was not allotted to her in lieu of her right to separate residence and maintenance.
64. In Eramma v. Veerupana, AIR 1966 SC 1879 it was held that Section 14(1) is not attracted when a female Hindu widow is in possession of property without any right to it. The object of Section 14(1) is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a 'limited owner', a 'full owner' of the property with all the powers of disposition.
65. In Mangal Singh v. Smt. Rattno, AIR 1967 SC 1786 it was held that the words "possessed by" in Section 14(1) are not intended to apply to a case of mere possession without title.
66. These cases are obviously distinguishable. Smt. Kishan Devi was not in possession without any right or interest. She was in possession in recognition of her preexisting right of residence and maintenance.
67. Sri Ravi Kant placed reliance on Bai Vajia v. Thakorbhai, AIR 1979 SC 993. Reliance was placed on the case of V. Tulasamma v. V. Sesha Reddy AIR 1977 SC 1944. It was held at page 1003 :
"........A combined reading of the two Sub-Sections and the explanation leaves no doubt in our mind that Sub-section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the purview of Sub-section (1)".
68. The aforesaid decision applies squarely to the facts of this case. Smt. Kishan Devi became owner under Section 14(1) Hindu Succession Act, 1956.
69. In view of my findings above the appeal fails and is dismissed with costs to contesting defendants respondents 1 and 2.