JUDGMENT Lindsay and Sulaiman, JJ.
1. This is a plaintiffs' appeal arising out of a suit for recovery of possession as reversioners of Sarjiwan Lal, the alleged last male owner. It was the plaintiffs' case that Sarjiwan Lal who was a separated Hindu died many years ago and on his death Musammat Dulari his widow entered into possession of his estate, that she made a transfer of the property in dispute without any legal necessity in the year 191]. to Chait Ram who, in his turn, on the 15th of March, 1917, sold it to the defendant respondent; that Musammat Dulari died within twelve years of the suit and the plaintiffe are entitled to possession.
2. On behalf of the contesting defendant it was denied that Dulari's husband Sarjiwan Lal was separate from his other brothers, and it was further pleaded that Musammat Dulari without any right and title had entered into possession and remained in adverse possession for more than twelve years and had acquired title to the property absolutely. It was also pleaded that in any case there was legal necessity for the transfer.
3. The learned Subordinate Judge was of opinion that the evidence was insufficient to establish that Sarjiwan Lal had separated from his brothers at the time of his death. He found that Musammat Dulari had entered into adverse possession and that therefore the plaintiffs' claim was barred by time. On the question of legal necessity newfound that the defendant had failed to establish it. The suit however was dismissed on the finding that the family had been joint.
4. In appeal it is contended that it is proved that Sarjiwan Lal was a separated Hindu and, further, that even assuming that he was joint with his brothers, Musammat Dulari's possession, in consequence of her own admissions, was never adverse and that at best she only acquired a Hindu widow's estate.
5. On the question of jointness or separation the documentary evidence is practically nil. The earliest document which we have on the point is an application, dated the 21st of March, 1896, filed by Musammat Dulari in the Revenue Court for a perfect partition of her share which was described as being 20 out of 54 shares in a 5 biswas share of the mahal. On the 21st of May, 1896, another application on behalf of Hori Lal was also presented desiring partition. These applications were resisted by an objection, dated the 28th of May, 1896, filed by Musammat Mano Kunwar on behalf of Kirpa Shankar and Bodh Raj. In this objection she asserted that' the family had all along remained joint and that Musammat Dulari had no right to possession or to have any share separated. This objection does not appear to have been pressed at all and was ultimately disallowed. The Revenue Court apparently directed .the partition to be effected and Musammat Dulari's share was actually separated. Afterwards we find that on the 20th of December, 1898, Musammat Dulari executed a mortgage deed in favour of Maharaj". Tika Ram in which she stated that the property mortgaged had belonged to her husband and was in her possession but that she was the owner of it. The amount borrowed was taken partly in order to pay off a bond of the 5th of April, 1897, said to have been executed in order to meet the expenses of the Revenue Court litigation as well as for cash received at the time of registration. On the 26th of April, 1903, she executed a second mortgage deed in favour of the same Tika Ram in order to pay off the amount due on the previous mortgage deed of 1898 as well as some parole debts due to the mortgagee and for a further advance in order to meet certain miscellaneous debts and expenses of her food. Those mortgage deeds remained unchallenged for a large number of years.
6. On the 13th of February, 1911, she executed a sale-deed of the entire share in this village in favour of Chaitram for a sum of Rs. 2,000. The amount was said to have been required in order to pay off the earlier mortgage deed as well as some previous debts and there was a further advance of Rs. 1,200. In this sale-deed she did state that the property sold was the zamindari property left by her husband. As we have already said, this was followed by the sale-deed of the 15th of March, 1917, which is the subject matter of dispute in this case. "We can find nothing in any of these documents which would necessarily show that her husband at the time when he died had been separate from his brothers. The mere fact that? the widow's name is entered in the revenue papers does not in our opinion necessarily raise the presumption that she is the widow of a separated Hindu.
7. Coming to the oral evidence adduced by the plaintiffs we find that that evidence, too, is not reliable. The learned Subordinate Judge who heard the witnesses did not believe, them. The first witness is Pitambar Das who stated that all the brothers of Sarjiwan Lal lived separately. They were separate in mess, business, house and everything. He admits, however, that he is by relationship connected with the plaintiffs and that this alleged separation must have taken place prior to his attaining the age of discretion. It is admitted that all these brothers lived in one and the same house, Borne living in the upper storey and some in the lower storey. There is nothing to show that the names of these brothers were separately entered during their life-time against the zamindari property owned by them. This witness in cross-examination stated that it was 5, 6, 8 or 10 years after Sarjiwan Lal's dealh that the name of Musammat Dulari was entered in the revenue papers.
8. If this statement were to be accepted it would follow that she could not have got her name entered by right as, the widow of a separated Hindu.
9. The next witness is Hazari Lal, whose statement in examination-m-chief was to the same effect, but in cross-examination he too admitted that Sarjiwan Lal and his brothers did not separate in his presence; that they did not divide the amount of profits in his presence, and that they lived in separate portions of one and the same house. Balkishan, one of the brothers, lived in the upper storey and the other brothers in the lower storey. The remaining three brothers also lived in the upper storey. This witness also is related to the plaintiffs by family relationship and was not considered an independent witness by the court below.
10. The third witness Kishan Narain also stated in a general way that, the brothers of Sarjiwan Lal were separate from each other. In cross-examination he had to admit that he did not know who used to make the collections in respect of the, zamindari property.
11. The fourth witness Gauri Prasad in cross-examination stated that as far as he knew Sarp.wan Lal and his brothers did no work except collecting rents from the zamindari property; that Sarjiwan Lal and his brothers did not divide the income in his presence and that Musammat Dulari obtained possession of the estate not on Sarjiwan Lal's death but on the death of Indarjit; that Indarjit died 20 or 22 years ago and as long as he was alive he himself was in possession of the property and it was he who used to give money to Musammat Dulari. If this statement of the plaintiffs' own witness is to be believed it would destroy the plaintiffs' case and would show that Musammat Dulari never obtained possession as a Hindu widow as long as the surviving brother Indarjit was alive; that it was somehow or other after Indarjit's death that she obtained possession of the property.
12. The last witness on the point is Murad Lal who stated that he had seen Indarjit and Dulari separate since 1878, but in cross-examination he admitted that he saw Indarjit and Dulari separate in mess only and in no other way. It is admitted by the other witnesses that all the branches of the family lived in one and the same house.
13. It is true that the oral evidence produced by the defendant is even worse. Banke Lal who was only 56 years of age stated that he had seen Sarjiwan Lal and Indarjit and found them living and dining together. He stated that he himself used to live and dine with them. In cross-examination however he could not fix the exact date. He had said originally that he was appointed patwari in 1875 and that he was living in the house of Indarjit in 1877 or 1878. In cross-examination, though he repeated this statement yet he said that during the days when he was living with Sarjiwan Lal he was not a patwari at all. His statement was to the effect that Dulari lived separate from Indarjit and that it was after the death of Sarjiwan that she became separate and that she was separate also as regards food etc.
14. The only other witness is one Abdul Hafiz who himself has no personal knowledge of the matter.
15. There can be no doubt that the presumption of law was. in favour of the jointness of all the four brothers. The plaintiffs, who came into court on the allegation that they were separate, had to establish it by clear and cogent evidence. The documentary evidence, we have already pointed out, is altogether inconclusive. The oral evidence also is, under the circumstances suggested above, altogether unreliable. In this view of the matter we find, it impossible to differ from the view taken by the learned Subordinate Judge that the plaintiffs have failed to prove that the four brothers were separate.
16. It is however contended on behalf of the appellants that even assuming that the four brothers were joint, the possession of Musammat Dulari was never adverse. Reliance is placed on the statement contained in the mortgage deed of 1898 and the sale-deed of 1911 to the effect that the property, transferred had been acquired by the lady from her deceased husband. Although those statements profess to show the origin of her title, it does not follow that these statements necessarily imply that at that time she was not asserting her full ownership but was only putting forward a limited interest in the estate. In 1896 when she applied for partition there was no admission on her behalf that she was only a limited owner. The evidence as to when and how she obtained possession is practically nil. Some of the plaintiffs' own witnesses have stated that she entered into possession many years after Sarjiwan Lal's death, one witness going so far as to say that she obtained possession after Indarjit's death. Under'these circumstances, we are bound to hold that there is absolutely nothing to show how she originally obtained possession of the estate and when and how her name was entered in the revenue papers. All that we know is that in the year 1896 she was a co-sharer when she applied for partition in the Revenue Court as against the other co-sharer. From this conduct of hers no inference can be drawn one way or the other. The subsequent admissions also are not conclusive on the point. It was laid down by their Lordships of the Privy Council in the case of Lachhan Kunwar v. Manorath Ram (1894) I.L.R. 22 Calc. 445 that "unless it was clearly shown that when the widow took possession she professed to do it as claiming only the limited estate of a widow it would be impossible to hold that the rights of the other claimants were not extinguished."
17. In the present case, we have already said, there is nothing whatsoever to show how she got into possession. It may be that she got into possession claiming adverse title to the estate or it may be that she obtained possession surreptitously or with. the consent of the other members. So long, however, as the plaintiffs have not shown that she entered into possession of the estate with an assertion of only a limited interest, it seems to us impossible to hold that her possession had all along remained either permissive or qualified. Her subsequent conduct, namely, the execution of the mortgage deeds, would rather go to show that she was all along treating herself as" full owner of the property. The case of Satgur Prasad v. Raj Kishore Lal (1919) I.L.R. 42 All. 152 is somewhat similar inasmuch as in that case there were also a number of admissions of Musammat Dilla Kunwari that she had acquired the property as heir to her husband. These admissions however were not taken to necessarily involve the legal inference that she was asserting only a limited interest and not her absolute right. The learned vakil for the appellants relies on the case of Baijnath Prasad Singh v. Tej Bali Singh (1916) I.L.R. 38 All. 590; in particular on the observations made by one of the learned Judges at page 624. That case, however, was quite a different one. There the lady was not in possession of the property as a trespasser but only asserted a Hindu widow's estate. As was pointed out by the learned Chief Justice at page 636, her possession could be legally explained on the basis of a will by her late husband as well as on the basis of custom set up in the case. When the case went up in appeal to their Lordships of the Privy Council the question of adverse possession was altogether dropped. That case therefore is in our opinion no authority for the contention advanced on behalf of the appellants.
18. The result therefore is that in our opinion the lady must be deemed to have remained in adverse possession of the property for more than twelve years and as having asserted her full ownership. Under these circumstances the plaintiffs' claim is barred by limitation. The appeal accordingly fails and is hereby dismissed with costs.