JUDGMENT J.N. Takru, J.
1. This is a defendant's appeal arising out of a suit brought by the first respondent for the cancellation of a sale-deed, dated 22nd October, 1946, executed by Srimati Surja defendant No. 2, in favour of Jamuna defendant No. 1, in respect of a house and for possession over the same.
2. In order to appreciate the facts of this case a short pedigree of the parties would be found very helpful. One Sahsa Pandcy died leaving two sons, Gopal and Bhagirathi. Gooal had two sons, Ori Pandey and Swarup. Ori Pandey had no issue while Swarup had a son, Adhin, who was married to Srimati Smja, defendant No. 2 to this suit. Ori and Swarup and his son Adhin constituted a joint Hindu family and the house in suit belonged to the said joint Hindu family.
Swarup died first and then Adhin died on 15th of July, 1927, leaving his widow Smt. Surja. On the death of Adhin, Ori became the sole surviving coparcener of the joint Hindu family, Smt. Surja however continued to live in the house in questjon as a widow of a pre-deceased coparcener of the said joint Hindu family, and this she continued to do even after the death of Ori in or about 1931.
On 22nd October, 1946 she executed the sale-deed in question in respect of the said house in favour of Jamuna Pandey, the first defendant to this suit. The plaintiff who is the great grandson of Bhagirathi, a brother of Gopal, father of Ori and Swarup, and admittedly the nearest reversioner to Ori, thereupon brought the suit which has given rise to the aforesaid second appeal for the reliefs already stated in the opening paragraph of this judgment.
3. The defence of the vendee, Jamuna Prasad, defendant No. 1, who alone was interested in contesting this suit was that the house in suit was the exclusive property of Ori and that Smt. Surja by continuing to occupy it without any right Or title for more than the statutory period of 12 years after the death of Ori, had acquired full rights of ownership of the said house by prescription as against the nearest reversioner of Ori, that is to say, the plaintiff. As such it was pleaded that she had full rights to transfer the said house to defendant No. 1.
4. The trial Court dismissed the plaintiff's suit holding that there was no evidence to show that Ori and Adhin formed a joint Hindu family, and that as such Smt, Surja's possession of the said house after the death of Ori was adverse to the nearest reversions of Ori, viz. the plaintiff; and as she had remained in possession over it for more than 12 years she had perfected her right of ownership by adverse possession and so was competent to execute the sale deed in question.
5. On appeal the lower appellate Court reversed the judgment and decree passed by the trial Court and decreed the plaintiff's suit on the ground that the only right which Smt. Surja had in the house in dispute was the right of residence which every Hindu widow has and that after the death of her husband and later on her husband's uncle Ori, her possession would be deemed to be in continuation of the exercise of the said right of residence and as the nearest reversioner, viz. the plaintiff could not have ejected her, her possession after the death of Ori could not be deemed to be adverse to the plaintiff.
6. This appeal was first heard by a learned Single Judge of this Court who feeling somewhat doubtful about the correctness of his decision on the same point in the case of Ulfat Rai v. Kamla Devi, AIR 1949 Ail 458 (A), referred it to a Division Bench.
7. The lower appellate Court in decreeing the plaintiff's appeal did not record any findings on the questions whether Ori and Adhin had been joint or separate and whether the house in suit was then ancestral property, or the exclusive property of Ori, as in its opinion, for some reason which we fail to appreciate, the decision of those questions was not necessary for the purpose of the present case.
We do not agree with this view of the court below. In our opinion the question whether the possession of Smt. Surja was to be regarded as ad verse or not to the plaintiff after the death of On depended entirely upon whether Ori and Adhin were separate or joint at the time of the death of latter and whether the house was the exclusive property of Ori or the joint property of Ori and his nephew Adhin.
It is only if we hold that Ori and Adhin were joint and that the house in suit was their joint family property that Smt. Surja would have a right to remain in residence and occupation of the house in dispute as a widow of a predeceased member of a joint Hindu family and not otherwise. In this view of the matter we might have found it necessary to remit an appropriate issue to the court below, but having regard to all the circumstances of the case we do not feel inclined to do so, (1) because the case is a very old one and (2) because there is ample material on the record to enable us to come to a finding on those matters ourselves.
There is no doubt that at one time the family was joint and there is no evidence on the record to show that the members thereof separated at any time. We would, therefore, be justified in relying upon the presumption of the Hindu Law that in the absence of any evidence of separation, Ori and Adhin must be held to have continued joint during the entire relevant period.
So far as the house in dispute is concerned we have the evidence of Paras Pandey, a witness for the defendants, wherein he has admitted that after the death of Gopal, his sons Ori and Swamp and Swarup's son Adhin began to live in this house. It is clear from this statement that the house was owned jointly by Gopal and his two sons, Ori and Swarup, and Ori's nephew Adhin. Indeed this is the finding which was also arrived at by the learned Munsif and we find ourselves in agreement with it and accept it.
8. Learned Counsel appearing for the appellant has argued that on the death of Ori the right to claim title and possession of the house in suit went to the nearest reversioner, i. e. the plaintiff, and that the possession of Smt. Surja thereafter became adverse to him. This contention of the learned counsel overlooks the fact that Ori and Adhin have been found by us to have been joint and the house in suit to have been joint family house, and as such Sri. Surja had in law the right of residence in the said house.
This right of residence would not come to an end on the death of Ori, but would continue for her life time. There is nothing on the record to show that Smt. Surja had any time asserted any other right except the right of residence of a widow of a joint Hindu family over the said house. Her possession of the house in suit, therefore, remained that of a Hindu widow and in the absence of any evidence of an assertion of a right of ownership over it, no amount of lapse of time would make her possession adverse to that of the nearest reversioner.
9. Learned Counsel for the appellant further contended that the possession of a person who is not the widow of the last male holder but is the widow of another member of the family is prima facie adverse to the nearest reversioners and in support of this proposition, he relied upon the cases of Rikhdeo Tewari v. Sukhdeo Tewari, ILR 49 All 713 : (AIR 1928 All 45) (B); Chandrabali Pathak v. Bhagwan Prasad, ILR (1944) All 533 (C) and AIR 1949 All 458 (A).
The facts of those cases are however distinguishable from those of the present case. In the case of Rikhdeo v. Sukhdeo (B), Rikhdeo brought a suit to have a sale-deed executed by his grandmother Smt, Naulasi along with his elder brother Sukhdeo who purported to execute it both on behalf of his self and the plaintiff who was a minor at that time, adjudged void. The suit was brought on the allegation that Smt. Naulasi's husband Sita Ram was a son of Sheo Tewari and that the property came down to Smt. Naulasi from Sheo Tewari through Sita Ram. It was found as a fact in that Sheo Tewari was not the father of Sita Ram but was his uncle and that Sita Ram predeceased Sheo Tewari. It was further found that Smt. Naulasi was not entitled to possession even as a Hindu widow at the time when she went into possession of the said house.
It was under these circumstances that it was held that when Sheo Tewari died, Smt. Naulasi's possession which was not based upon any right or title was treated as adverse to the reversioners of Sheo Tewari. The facts which distinguish that case from the present one are that in that case there was no question that Sita Ram and Sheo Tewari formed a joint Hindu family and that the house in suit was joint Hindu family property in which the widow of a predeceased coparcener would have a right of residence under the law, as in the case before us.
10. The case of Chandra Bali v. Bhagwan Prasad (C) far from supporting the appellant's contention has taken the view which we have expressed above. It was held in that case that :
"Possession, unless it is based upon title must be deemed to be adverse but the possession of a Hindu widow must be treated on a different basis. The true test has always been furnished by the character in which she steps into possession. If she has entered possession, not as a widow of the last male-owner or as a widow of the family, the possession will be deemed to be adverse but if she has entered into possession as the widow of the last male-owner or as the widow of the family, her possession cannot be treated as adverse."
11. In the case of Ulfat Rai v. Smt. Kamla Devi (A), the learned Single Judge did not consider the essential difference between the nature and character of the possession of a person as a widow of the family and her possession in some other capacity. Besides, it would appear from the narrative of the facts of that case that the property in suit in that case was the exclusive property of Shu-gun Chand, the last male-holder, and was not the joint property of the said Shugun Chand and his son Mithan Lal whose widow Smt. Suneshri was held to have acquired full ownership over the house in suit by adverse possession as against Ulfat Rai, the nearst reversioner. We would, therefore, hold that that case is distinguishable on iacls from the present case.
12. No other point was argued before us by, the learned counsel for the appellant, and we, therefore, dismiss this appeal and affirm the decree passed by the lower appellate court, The first respondent will be entitled to his costs of the appeal.