JUDGMENT Bennet, J.
1. This is a first appeal by the plaintiff Mt. Rain Kunwar whose suit has been dismissed by the Court of first instance. She claimed to be in adverse possession of certain zamindari property and asked for the relief of a declaration that she was the owner of that property and that it was not attachable or saleable in execution of a decree No. 140 of 1924, held by defendant 1 against defendant 2, Bishambhar Singh. The following family tree is relevant:
Kishan Singh |
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2. Bishambhar Singh is the son of an earlier wife, of Tika Singh, and on the death of Tika Singh in 1908 there was a dispute in mutation proceedings for which there is the evidence of a witness Ajmer Singh, which, following the Court of first instance, we accept. This witness states that there was an agreement made during mutation proceedings by virtue of which the property in suit was recorded in the name of the plaintiff and the remaining property which was larger was recorded for Bishambhar Singh. Subsequently to this, on 8th September 1915, there was a lease executed by the plaintiff and defendant 2 of their half-share in certain property which had come from Tika Singh and also by Mt. Qadam Kunwar, who owned the other half-share. This lease was for a period of ten years ending with the rabi of the year 1924-25, two years before the suit, and by virtue of the lease the net profits of the property leased, said to amount to Rs. 6,000, were divided as one-half to Mt. Qadam Kunwar and the other half between the plaintiff and defendant 2 in the proportion that the plaintiff received Rs. 200 annually and the remainder of the Rs. 3,000 went to defendant 2 and to pay a debt due from defendant 2. The lease set forth five items of property. Of these five items the plaint claimed one-fourth of items 2 and 5 for the plaintiff and one-half of item 4. Comparing the figures for revenue in the lease with the property claimed in the plaint we find that the share of revenue on the property in the plaint would be Rs. 154 per annum. The rate of profit therefore of Rs. 200 per annum is not improbable as put down by the lease. The question is as to whether the plaintiff obtained possession of this property as claimed by her. She has produced four witnesses and they have given evidence to the effect that payments were made by the lessee of the Rs. 200 per annum to the plaintiff and one tenant has stated that he made certain payments to the plaintiff of rent.
3. It is true that the plaintiff might have produced very much better evidence of payment of rent, such as siyaha, which would be signed by the person dictating the payment. But on the other hand defendant 1 has not produced any evidence to contest the evidence on behalf of the plaintiff. We consider therefore that the finding of the Court of first instance is correct and that the plaintiff has proved that from the year 1908, on the death of her husband she has been in possession of the property in the plaint which has been entered in her name. We agree with the Court of first instance that that possession was permissive and arose from an agreement with her stepson. Therefore it follows that the plaintiff cannot succeed in her claim that she has a title of absolute ownership to the property by adverse possession, for when possession could be referred to a lawful source adverse possession should not be inferred. In the present case the possession of the plaintiff is referable to the agreement with her stepson. It is true that the plaintiff has not put forward her case on that ground. But we consider that on the finding that she is in possession by virtue of such an agreement with her stepson the plaintiff is entitled to a declaration, although not precisely the declaration for which she had asked in the plaint.
4. Considerable argument was made as to the right of the plaintiff holding in lieu of maintenance against a decree-holder holding a decree against defendant 2, who is undoubtedly the person entitled to hold the property in the plaint, because defendant 2 was a member of a joint family with his father at the time of the death of his father. Argument was made in regard to cases where there was a charge of a widow against an estate and in regard to the nature of the rights of a widow where a charge had not been made. Reference was made to Mulla's Hindu Law, Edn. 6, p. 577, para. 569, for the proposition that the claim of a Hindu widow for maintenance was not a charge, and that a charge would not arise until there was a decree of a Court of an agreement between the widow and the holder of the estate, and therefore that the widow's claim to maintenance is liable to be defeated by a transfer of her husband's property to a bona fide purchaser for value without notice of the claim of the widow for maintenance. These propositions are also contained in Section 39, T.P. Act. But we consider that the present case is clearly distinguishable on the facts from either a claim for maintenance or a charge. The present case is not one of charge, because the widow is in actual possession of the property in the plaint. And the rights of the widow amount to more than a claim for maintenance, because she has been placed in possession of the property in the plaint in lieu of her claim for maintenance. The question before us is can the decree-holder of a simple money-decree against the rights of the joint Hindu family dispossess the widow who is in possession of a portion of the estate in lieu of her maintenance? We consider that this proposition should be answered in the negative. We hold that the widow has a right to hold this portion of the estate of which she is in possession in lieu of maintenance as long as she is entitled to maintenance as a Hindu widow. On her death, or if she ceases to be entitled to maintenance as a Hindu widow, the right to hold the estate would terminate. Subject to her right to hold the estate it is open to the decree-holder defendant 1 to bring this property to sale. Accordingly we modify the decree of the lower Court and the decree which we grant to the plaintiff-appellant is a declaration that the property in suit may be sold but the purchaser is not entitled to possession during the period in which the plaintiff is entitled to maintenance as a Hindu widow and the plaintiff is entitled to hold the property in suit for that period. As neither party has succeeded in their suit in full, we consider that the correct order for costs is that each party shall pay their own costs throughout.