GOPALAKRISHNA (D) BY LRS. & ORS. versus NARAYANAGOWDA (DEAD) BY LRS. & ORS. on 3 April 2019

SUPREME COURT REPORTS

[2019] 6 S.C.R.

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GOPALAKRISHNA (D) BY LRS. & ORS.

v.

NARAYANAGOWDA (DEAD) BY LRS. & ORS.(Civil Appeal No.1332 of 2008)

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APRIL 03, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

Mysore Hindu Law Women’s Rights Act, 1933 – ss. 4,10 and11 – Limitation Act, 1908 – Arts. 140, 141 and s.28 – Appellantscase that one ‘R’ was the owner of the scheduled properties – HeCpassed away in 1907 – He had two wives ‘J’ & ‘S’ – From his firstwife ‘J’, he had one daughter ‘V’ and ‘V’ in turn had a daughter‘JK’ – His first wife predeceased him and daughter ‘V’ died in 1910– His second wife ‘S’ died in 1938 – Appellants claimed right toproperties by virtue of sale deeds executed by ‘JK’ in the year 1955D– On the other hand, respondents contended that they hadpurchased the said property from one ‘SR’, who had in turnpurchased from second wife of ‘R’ i.e. ‘S’ – Respondents were inpossession of the property – Trial court decreed the suit in favourof appellants and declared them as owner of the properties entitledthem to recover possession from the respondents – However, in firstEappeal, the Appellate Court inter alia found that the respondentswere in possession and as the properties were not recovered within12 years, thus suit was barred by limitation – High Court affirmedthe judgment of the First Appellate Court – On appeal, held: In1938, ‘S’ passed away – Even proceeding on the basis that ‘JK’,Fthe grand-daughter of ‘R’ was a reversioner, her estate in expectancybecame vested in her, upon the death of the ‘R’s widow, ‘S’ in 1938– While it is true that it was open to the reversioner to ignore thesale deed executed by the widow, as not binding on her, as far assuit for recovery of possession, the law clearly provided for a periodof 12 years and the period of limitation started with the death of theGlimited owner, namely, the widow in 1938 – The time started tickingwith the passing away of the widow in 1938 – The period of limitationbeing 12 years, it ran out in 1950 – With the running out of theperiod of limitation prescribed under the Limitation Act, 1908 (byArts.140 and 141), the very right of the alleged reversioner ‘JK’

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also came to an end – Thus, when she executed the sale in the year1955 in favour of the appellants, she could not have conveyed anyright – In such circumstances, no reason to interfere with thejudgment of the High Court – Hindu Law – Madras School ofMitakshara Law – Limitation Act, 1963 – s. 31.

Dismissing the appeals, the Court

HELD: 1. Under the Hindu Law, a widow took a limitedestate. She was not a trustee for the reversioners. She was ownerof the properties. But she could alienate the property only fornecessity or benefit of the estate. By the Mysore Hindu LawWomen’s Rights Act, 1933 the widow’s estate became stridhana,which by virtue of Section 11 conferred upon her absolute rightto dispose the property either by way of inter vivos transfer orwill. The State Act came into force on 01.01.1934. When thesuccession opened on ‘R’ dying in 1907, he was survived by bothhis widow ‘S’ and also his daughter ‘V’. Therefore, it is quiteclear that ‘S’ would not get an absolute right under Section 11 ofthe State Act. When succession opened in this case to the estateof ‘R’, in fact, the State Act was not in force at that time. Theestate which was inherited by ‘S’ was that of a widow. Therefore,be it from stand point of Hindu Law as applicable prior to theState Act or the provisions of the State Act, ‘S’ did not acquireabsolute rights. As such, the right which she had, was the right ofthe Hindu widow under Hindu Law. [Para 23][397-F-H;398-A-B]

2. Further, as long as ‘S’-widow of ‘R’ was alive, noreversioners had any vested interest. The daughter of ‘R’ (‘V’)through his first wife passed away in the year 1910. At that time,‘S’ the widow of ‘R’ was alive. Therefore, she (‘V’) would not getany right in the property. ‘S’ died only in the year 1938. When‘S’ died in 1938, no doubt ‘JK’ (daughter of ‘V’) was alive. It ishere that the Court must consider the argument of therespondents that the daughter of a daughter was not recognizedas a heir. When succession opened upon the death of the widow,in this case, namely ‘S’ in the year 1938, if ‘JK’ could be treatedas the reversioner being grand daughter of the last full owner,then the property would vest in ‘JK’. [Para 23][398-B-D]

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A3. There would be two obstacles for the appellants:- firstly,it would have to be held that ‘JK’ being the grand daughter of ‘R’was a reversioner upon the death of ‘S’, the widow of ‘R’.Secondly, even assuming for a moment that ‘JK’ was thereversioner whether it was incumbent upon her to instituteproceedings for recovery of possession within 12 years of deathBof ‘S’. [Para 24][398-E]

4. While it was open to the reversioners to ignore analienation made by a Hindu widow and the period of limitationwould not start to run upon a transfer effected by the Hindu widow,undoubtedly, the period of limitation for filing a suit for recoveryCof possession would commence upon the death of the widow.[Para 26][401-E-F]

5. The property was alienated by ‘S’, the widow of ‘R’ infavour of her brother ‘SR’ in the year 1913. Undoubtedly, it wasopen to the reversioner to proceed on the basis that suchDalienation does not bind her. [Para 27][401-F-G]

6. Thereafter, in 1938, ‘S’ passed away. Even proceedingon the basis that ‘JK’, the grand-daughter of ‘R’ was areversioner, her estate in expectancy became vested in her, uponthe death of the ‘R’ widow, ‘S’ in 1938. While it is true that it wasEopen to the reversioner to ignore the sale deed executed by thewidow, as not binding on her, as far as suit for recovery ofpossession, the law clearly provided for a period of 12 years andthe period of limitation started with the death of the limited owner,namely, the widow in 1938. The time started ticking with theFpassing away of the widow in 1938. The period of limitation being12 years, it ran out in 1950. With the running out of the period oflimitation prescribed under the Limitation Act, 1908 (by Articles140 and 141), the very right of the alleged reversioner ‘JK’ alsocame to an end. Thus, when she executed the sale in the year1955 in favour of the appellants, she could not have conveyedGany right. That apart, even for a moment, proceeding on the basisthat period of limitation would start from 12 years from 1955 whenthe sale deed was executed in favour of the appellants by ‘JK’even that period ran out in 1967. In such circumstances, noreason to interfere with the Judgment of the High Court.H[Para 28][401-G-H; 402-A-C; F]

Jaisri Sahu v. Rajdewan Dubey & Ors. AIR 1962 SC83 : [1962] SCR 553 ; Gogula Gurumurthy & Ors. v.Kurimeti Ayyappa (1975) 4 SCC 458 : [1974] 3 SCR595 – relied on.

Kalipada Chakraborti & Anr. v. Palani Bala Devi &Ors. AIR 1953 SC 125 : [1953] SCR 503 –referred to.

Case Law Reference

[1962] SCR 553relied onPara 20[1974] 3 SCR 595relied onPara 21[1953] SCR 503referred toPara 26

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1332of 2008

From the Judgment and Order dated 28.11.2005 of the High Courtof Karnataka at Bangalore in R.S.A. No. 870/1996 C/w R.S.A.No. 871/1996.

Trideep Pais, N. K. Verma, Pranav Jain, Ms. Sanya Kumar,Ms. Anjana Chandrashekar Advs. for the Appellants.

M. Gireesh Kumar, Anand Srivastava, Vijay Kumar, Advs. forthe Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. This appeal filed by special leave is directed against the judgmentdated 28.11.2005 passed by the High Court of Karnataka in RegularSecond Appeal Nos. 870/1996 and 871/1996. The High Court, by itsimpugned judgment, dismissed the appeals and affirmed the judgment ofthe First Appellate Court which had reversed the decree passed by theTrial Court. The Trial Court decreed the suits [O.S. No. 68/1985 and21/1986 (O.S. No. 393/75)] filed by the appellants.

2. The case of the appellants is as follows:- One Ramanna was the owner of the properties which arescheduled to the plaint. He passed away in 1907. He was married to A

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AJankamma (first wife) who predeceased him. The second wifeSeethamma passed away in the year 1938. Through his first wife(Jankamma), he had a daughter named Venkamma. Venkamma passedaway in 1910. Venkamma, in turn, had a daughter named Jankamma.The appellants before us claimed right to the properties by virtue of saleBdeeds executed by Jankamma in the year 1955.

After the sale executed by Jankamma, the father of the firstplaintiff and the second plaintiff claimed that they were in possession ofthe suit properties. The respondents filed the suits (bearing O.S. Nos.211 and 213 of 1955) for declaration of their title and injunction. Thesaid suit was decreed by the Trial Court. The High Court in secondCappeal set aside the decree of the lower court and confirmed the sale ofJankamma in favour of the first plaintiff’s father and the second plaintiffand held that title to the properties could not be decided. It is their casethat since Venkamma survived Ramanna, Jankamma became a full ownerof the properties and through her under the sale deed, the plaintiffs claimedDabsolute ownership, and sued for declaration of title, recovery ofpossession and mesne profits.

3. The respondents, on the other hand, denied the allegations thatRamanna had a daughter by name Venkamma and Venkamma had adaughter by name Jankamma. The ownership by Jankamma was denied.ESeethamma had sold the properties to her brother - Srinivasa Rao.

It is the further case of the respondents (defendants) that theypurchased property from Srinivasa Rao under registered sale deed dated13.09.1954 and they are in possession since then. They also claimedadverse possession. They have been found to be in possession right uptoFthe High Court in the earlier proceedings.

4. The Trial Court decreed the suit and found inter alia thatVenkamma was the daughter of Ramanna and Venkamma had twodaughters by name Patamma and Jankamma. Patamma died andJankamma alone survived. The Trial Court further proceeded to enquireGwhether Jankamma had acquired any right in the properties of hergrandfather which was alienated to the plaintiffs. The Court referred tothe following findings of the High Court in the earlier litigation commencedby the respondents:

“17. Now, whether Seethamma independently got any right toHacquire the suit property from her husband is a matter to be lookedinto.

Further, this aspect has also been considered by the Hon’ble HighCourt in S.A. No. 801/60 at page-16. It is observed in the said judgment:-

“Now it should be point out that although there is no dispute thatRamanna left behind him his wife Seethamma, who died in theyear 1938, there was a serious controversy in this litigation inregard to the question whether Ramanna had a daughterJankamma. A question which was even more serious than thatwas whether Venkamma was alive when Ramanna died in theyear 1907 or there about. This question assumes great importancein the context of the finding recorded by the courts below, thatSeethamma under the provisions of Mysore Hindu Law Women’sRight to property Act became an absolute owner of the propertiesof her husband. It is clear from Sec. 10(2)(g) of the Act that shecould become absolute owner of these properties, only if Ramannawhen he died did not left behind his a daughter or daughter’s son.If Venkamma was the daughter of Ramanna and she was alivewhen Ramanna died, then it becomes clear that Sec. 10(2)(g) ofthe Act is no application and Seethamma had only a widow’sestate and the properties could not become her Sreedhanaproperties. It was for this purpose to demonstrate that they didnot that way become Sreedhana properties of Seethamma thatdefendants contended that Ramanna left behind him his daughterVenkamma and that Venkamma had a child Jankamma, who couldconvey to the contesting defendants the properties purchased bythem. Both the courts have found that Venkamma was thedaughter of Ramanna and that finding being a finding on thequestion of fact has remained undisturbed. They have furtherfound that defendant No.8 is Jankamma, daughter of Venkammaand that finding is equally unassailable for the same reason.

18. While answering issue Nos. 1 and 2, not only I have come tothe conclusion that Venkamma survived her further and she wasthe daughter of Ramanna and she had a daughter by nameJankamma but earlier proceedings between the same parties havealso established this fact beyond any shadow of doubt. WhenVenkamma survived her father, who died in the year 1907, thenSeethamma, the 2[nd] wife of late Ramanna enquiring the propertiesof her husband could not have been there at all. Because as it isalready stated above under Section 10(2)(g) of Hindu Law

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AWomen’s Right to Properties Act she could not become an absoluteowner of the properties of her husband, Ramanna. BecauseRamanna had left behind his daughter Venkamma. The saidVenkamma died in the year 1910. Leaving behind her daughterby name Jankamma. So under Section 10(2)(g) of the said Act,Seethamma had only a widow’s estate but the properties of herBhusband could not form her Sreedhana properties so in that wayany alienations made by her in favour of her brother SrinivasaRao were all illegal.”

5. When Venkamma survived her father then Seethamma (thesecond wife of Ramanna) could not acquire properties of her husband.CReference was made to Section 10(2)(g) of the Mysore Hindu LawWomen’s Rights Act, 1933 (for short ‘the State Act’). On finding thatRamanna had left behind her daughter - Venkamma who died in theyear 1910, therefore under Section 10(2)(g) of the Act, the widowSeethamma had only widow’s estate which could not form her StridhanDproperties and therefore any alienation made by her in favour of herbrother - Srinivasa Rao was illegal. Seethamma was found to have novested interest in the properties of her husband except having widow’sestate. Seethamma herself had not acquired any saleable interest in theproperties of her husband - Ramanna. It was observed that in the earliersecond appeal that the sale by Srinivas Rao in favour of the respondentsEcould not be sustained and accordingly the sale had been set aside onlyconfirming the decree for permanent injunction against the appellants.The sale of the properties by Jankamma was upheld in the earlierproceedings. On this basis, the sale of properties by Seethamma infavour of her brother was found to be illegal entitling the plaintiffs to beFdeclared as owner.

6. The contention of the respondents was that they were inpossession and there were also entries in the revenue record to thateffect. It was found that the entries in the revenue record would notadvance the case of the respondents.G

The Trial Court proceeded to consider the question whether thepossession of the defendants could be found to be adverse and the Courtcame to the conclusion that the defendants had miserably failed toestablish adverse possession. The contention based on limitation wasaccordingly rejected. Accordingly, on these findings, the suit came to beHdecreed declaring the appellants as owners of the scheduled properties and entitled to recover possession of the suit properties and also mesneprofits from the respondents.

7. In the first appeal, the Appellate Court inter alia found that therespondents were in possession and if the properties were not recoveredwithin 12 years, then the right to recovery is extinguished as per thedecision in [AIR 1972 Mysore 22].

Though the High Court in the earlier round of litigation observedthat the question relating to whether Venkamma survived Ramanna orpredeceased him has to be decided, the appellants should haveapproached the Court immediately but they had approached the Courtwith the delay of beyond 12 years and that too without giving any properexplanation for the delay.

It was found that the right of the appellants for recovery ofpossession on the foot of their acquisition of title by sale from Jankammaon 16.04.1955 accrued on 16.04.1955. The judgment of the High Courtin the earlier second appeal delivered on 16.09.1963 did not give rise toany cause of action. Accordingly, the appeals were allowed and thesuits were dismissed.

Proceedings in the High Court

8. The High Court framed the following substantial questions oflaw in R.S.A. No. 870/96 and R.S.A. No. 871/96:

R.S.A. No. 870/96

i) Whether the finding of the first appellate Court that the suit isbarred by time is without considering the provisions of Section 65of the Limitation Act of 1963?

ii) Whether the finding that the respondents have perfected theirtitle by adverse possession is justified when they have contendedthat they are the owners of the property by virtue of a registeredsale deed?

R.S.A. No. 871/96

i) Whether the lower appellate Court was justified in holding thatthe suit was barred by limitation?

ii) Whether the lower appellant court was justified in holding thatthe respondents acquired title by adverse possession?

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A9. The High Court came to the following findings after referringto the relationship of the parties. It was found inter alia that during thelife time of Jankamma although the properties were sold by Seethammain favour of his brother Srinivasa Rao but she had not challenged thesame, so possession of the properties by the defendants by virtue of saledeed in favour of Srinivasa Rao and by Srinivasa Rao in favour of theBrespondents remained unchallenged and that would be the starting pointof limitation.

10. The transferees from Jankamma namely the appellants movedthe Court only in 1975, 1985 and 1986. As per Madras School ofMitakshara Law in a catena of decisions, it is held that at a place otherCthan Bombay State the right of survivorship necessarily is in favour ofthe widow than the daughter and the grand-daughter. So the alienationmade by Seethamma in favour of Srinivas Rao and by Srinivas Rao tothe respondents could not be said to be invalid.

11. Thereafter, the Court referred to the ‘the State Act’ andDobserved that even under Section 4 as per Section 4(1)(ii) of the StateAct, the widow stands in preference to the daughters i.e. the right ofwidow (Seethamma) is preferable to the right of daughter andJankamma’s position comes only afterwards. Jankamma - the granddaughter is in category (ix) of the aforesaid provision.

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12. Such being the position of law, the sale made by Jankamma,grand-daughter of Ramanna, in favour of the appellants, if any, is nonest, more so, as noted, since Jankamma had not challenged the earliersale made by Seethamma in favour of Srinivas Rao. Seethamma althoughhad a limited interest, the alienation had not been challenged by theFreversioners of Ramanna for 50 years. The right of Seethamma stoodunchallenged and the alienation made also remained unchallenged.

As regards the point relating to limitation, it was found that first ofall Jankamma had to challenge the alienation by Seethamma, whichwas of the year 1913. No special privilege was given in excludingGlimitation created by the Limitation Act by the observation of the HighCourt in the earlier second appeals (801/1960 and 819/1960). Since theright of Seethamma had not been challenged by Jankamma, the suits arenecessarily barred by time.

Thereafter, regarding the adverse possession, this is what the Courtheld:H

“As to the point of adverse possession is concerned, it is madeclear by the lower appellate court that even after order ofdeclaration has been negatived by this Court in the second appeals801/60 and 819/60, the suits are belatedly filed by the plaintiffs inthe year 1985 and 86 respectively and as such Sreenivas Rao andthereafter, the defendants have acquired right and title to the suitproperties by adverse possession. It is needless to say that whennecessarily these defendants have set up their right not only forpossession, but also by virtue of the sale deed, that finding wouldnot be appropriate.”

13. We have heard learned counsel for the parties. Learnedcounsel for the appellant drew our attention to Section 4 of the State Actand then he further sought support from Section 10 of the Act. Section10 (2) (g) of the Act reads as follows:- “10. (2)Stridhana includes:-

(g) property taken by inheritance by a female from another femaleand property taken by inheritance by a female from her husbandor son, or from a male relative connected by blood except whenthere is a daughter or daughter’s son of the propositus alive at the”time the property is so inherited.

14. The appellant’s contention is that the High Court has committeda clear error in taking the view that Seethamma - the widow would getan absolute right. It is his contention that as per the definition of Stridhanwhich undoubtedly is her absolute right, there is an exception carved outin Section 10(2)(g) of the Act. In so far as the properties in questionwere properties inherited by Seethamma on the death of her husband -Ramanna and at that time the daughter Venkamma was very much alive,therefore, Seethamma would not get an absolute right. In this case, thedaughter of Ramanna (Venkamma) died only in 1910 which was afterthe death of Ramanna – 1907. When succession to the estate of Ramannain 1907 opened, then Seethamma his widow would inherit the propertywhere the right is only limited to the estate of a widow. On her death,the property would revert back to the reversioners of her late husband -Ramanna.

15. It is his complaint that the High Court has overlooked this vitalaspect by not referring to Section 10 of the Act and confining its focus AB

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Aon Section 4 of the State Act. Under Section 4 of the State Act, thewidow has priority over daughter and granddaughter.

When it was pointed out to the learned counsel for the appellantthat since Ramanna died in 1907 and the State Act was not in existenceas the Act was passed in 1933, learned counsel for the appellant took upBanother contention. He contended that under the Mitakshara law whichwas applicable, the widow was entitled only to a limited estate. Hewould contend that the position even prior to the passing of the State Actwas that the widow did not get absolute estate.

16. Per contra, learned counsel for the respondents would contendCthat Seethamma had transferred the property in the year 1913.Seethamma died in 1938. If that is so, the suit should have been filed ifat all within a period of 12 years from the date on which the alleged rightin the reversioners came to be vested namely upon the death ofSeethamma in the year 1938. The period of 12 years would run out in1950. The appellants - plaintiffs purchased the property in the yearD1955 from Jankamma - grand daughter of Ramanna. Even then the suitwas filed by them only after more than 20 years. It is further contendedby learned counsel for the respondent that under Mitakshara lawapplicable in the region in question, the grand daughter was not a heir.Only the daughter of a male upon his death intestate could inherit theEproperty. Therefore, even the limited right attributed to the widowSeethamma would by default become an absolute right.

Findings in the earlier Second Appeal

17. The findings in the earlier Second Appeals which emanatedfrom the suits filed by the respondents are as follows: The High CourtFdid not interfere with a finding that the sale deeds executed bySeethamma in favour of Srinivas Rao were genuine. Equally, the HighCourt affirmed the finding that the respondents in this appeal were inpossession of the properties purchased by them. Jankamma was foundto be the grand-daughter of Ramanna. Further, the Court proceeded toGpose the question whether Venkamma was a daughter of Ramanna andwhether she was alive when Ramanna died having regard to Section10(2)(g) of the State Act. It was noticed that both the Courts below hadfound that Venkamma was the daughter of Ramanna and Jankammawas the daughter of Venkamma. It was, however, observed that there H

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were no pleadings as to whether Venkamma survived or predeceasedRamanna.

18. The Court was of the view that the first issue in all the caseswas whether Seethamma became absolute owner of the properties ofher husband and it was equally true that the processes by which shecould become such owner would be by her being alive and there beingno surviving child of Ramanna when he died.It was found that theparties did not have the opportunity to produce all evidences in this regardand an investigation was required. The finding that Seethamma becameabsolute owner of Ramanna’s properties was set aside. The Court,however, proceeded to find that the fact that the aforesaid finding wasset aside did not mean that the Court held that Seethamma had notbecome the absolute owner. No opinion was expressed as it wasdependent upon the question whether Venkamma was alive whenRamanna died and materials in this regard were insufficient.

19. On this basis, the decree declaring the respondents to be theowners of the property was set aside. The decree restraining theappellants from disturbing the respondents’ possession was also affirmed.It may be seen from the judgment of the High Court in the earlier roundof litigation that the respondents were found to be in possession. Thequestion relating to title was essentially not decided as is clear fromwhat was found by the High Court. The Court left it open to be decidedon the basis that Seethamma would become absolute owner if Venkamma- the daughter of Ramanna had not survived Ramanna.

20. Now we shall proceed to render our findings.

Position of a Hindu Widow prior to Hindu Succession Act and theState Act There is no dispute that the parties are governed by the MadrasSchool of Hindu Law. Thereunder, every female who succeeded as aheir whether to a male or a female, took a limited estate in the propertyinherited by her. As regards widow’s estate, this statement is found inMulla Hindu Law, 23[rd] Edition.

“176. Widow’s estate – A widow or other limited heirs is not atenant for life, but is owner of the property inherited by her, subjectto certain restrictions on alienation and subject to its devolvingupon the next heir of the last full owner upon her death. The A

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SUPREME COURT REPORTS

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whole estate is for the time vested in her, and she represents itcompletely. As stated in a Privy Council case, her right is of thenature of a right of property; her position is that of owner; herpowers in that character are, however limited; but so long as sheis alive no one has any vested interest in the succession.”

In Jaisri Sahu v. Rajdewan Dubey & Ors. [AIR 1962 SC 83],this Court proceeded to hold that it could not be an inflexible propositionof law that whenever there is a usufructory mortgage, the widow couldnot sell the property on the ground that it would deprive the reversionersof the right to redeem it. This is what the Court held:

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C“……...Such a proposition could be supported only if the widowis in the position of a trustee, holding the estate for the benefit ofthe reversioners, with a duty cast on her to preserve the propertiesand pass them on intact to them. That, however, is not the law.When a widow succeeds as heir to her husband, the ownership inthe properties both legal and beneficial vests in her. She fullyDrepresents the estate, the interest of the reversioners therein beingonly spec successiones. The widow is entitled to the full beneficialenjoyment of the estate and is not accountable to any one. It istrue that she cannot alienate the properties unless it be for necessityor for benefit to the estate, but this restriction on her powers is notEone imposed for the benefit of reversioners but is an incident ofthe estate as known to Hindu law. It is for this reason that it hasbeen held that when Crown takes the property by escheat it takesit free from any alienation made by the widow of the last maleholder which is not valid under the Hindu law vide : Collector ofMasulipatam v. Cavaly Venkata 8 Moo Ind App 529(PC). Where,Fhowever, there is necessity for a transfer, the restriction imposedby Hindu law on her power to alienate ceases to operate, and thewidow as owner has got the fullest discretion to decide what formthe alienation should assume. Her powers in this regard are, asheld in a series of decisions beginning with Hunooman Persaud v.GMussamat Babooee Mundraj Koonweree, 6 Moo Ind App 393(PC) those of the manager of an infant’s estate or the manager ofjoint Hindu family.”

(Emphasis Supplied)

21. In Gogula Gurumurthy & Ors. v. Kurimeti Ayyappa (1975)4 SCC 458, this Court reiterated the position of a Hindu widow and ofgreater relevance to us held no one has any vested interest in successionas long as the widow is alive.

“A hindu widow is entitled to the full beneficial enjoyment of theestate. So long as she is not guilty of wilful waste, she isanswerable to no one. Her estate is not a life-estate, because incertain circumstances she can give an absolute and complete title.Nor is it in any sense an estate held in trust for reversioners.Within the limits imposed upon her, the female holder has the mostabsolute power of enjoyment and is accountable to no one. Shefully represents the estate, and so long as she is alive, no one hasany vested interests in the succession. It cannot be predictedwho would be the nearest reversioner at the time of her death. Itis, therefore, impossible for a reversioner to contend that for anyloss which the estate might have sustained due to the negligenceon the part of the widow he should be compensated from out ofthe widow’s separate properties. He is entitled to get only theproperty left on the date of the death of the widow. The widowcould have, during her lifetime, for necessity, including hermaintenance alienated the whole estate.”

(Emphasis Supplied)

The impact of the State Act of 1933

The State Act that is the Mysore Act of 1933 (as it was when itwas passed) came into force on first day of January, 1934.

Section 2 reads as follows: -

“2. (1) This Act applies to persons who but for the passing of thisAct, would have been subject to the law of Mitakshara in respectof the provisions herein enacted.

(2) Save as aforesaid, nothing herein contained shall be deemedto affect any rules or incidents of the Hindu Law which are notinconsistent with the provisions of this Act.”

Thus, the rules or incidents of Hindu law to the extent they werenot inconsistent with the Act was to continue to operate. Section (4) ofthe Act provided as follows:-

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A“4(1) The succession to a Hindu male dying intestate shall, in thefirst place, vest in the members of the family of the propositusmentioned below, and in the following order:-

(ii) the widow;

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(ix) daughters’ daughters;

As far as Section 10 is concerned, the relevant portion reads asfollows: - “10(1) “Stridhana” means property of every description belongingCto a Hindu female, other than property in which she has, by law orunder the terms of an instrument, only a limited estate.

10(2) Stridhana includes:-

(g) property taken by inheritance by a female from another femaleand property taken by inheritance by a female from her husbandDor son, or from a male relative connected by blood except whenthere is a daughter or daughter’s son of the propositus alive at thetime the property is so inherited.”

It is necessary to notice Section 11 also. Section 11 reads as follows:-E

“11.(1) A female owning stridhana property shall have over itabsolute and unrestricted powers both of enjoyment and ofdisposition inter vivos and by will, subject only to the general lawrelating to guardianship during minority.

F(2) Except when acting as the lawful guardian of his wife, ahusband shall have no right to or interest in any portion of hiswife’s stridhana during her life nor shall he be entitled to controlthe exercise of any of her powers in relation thereto.”

Thus, the female owning stridhana property was conferred absoluteGpowers to dispose of the same as also in the matter of enjoyment. Thedisposal could be by will or transfer inter vivos. The only limitation wasthe law relating to guardianship would continue to operate during minority.Reverting back to Section 10 (2) (g), the property inherited by a womaninter alia from her husband was brought under the definition of stridhana.This was a clear expansion of a widow’s rights by conferring upon aH

widow absolute right over property inherited from her husband being aradical departure from the widow’s estate under Hindu Law which wasa limited estate and under which there was no such absolute right ofdisposal. There was however a catch and it was this. If the husbandwas survived by the widow and a daughter or a daughter son, then thewidow’s estate as understood in Hindu Law was to continue undisturbed.If a daughter or grandson as mentioned did not survive the husband, thewidow would get the absolute right notwithstanding Section 10(1) definingstridhana as meaning property of any description belonging to a Hindufemale other than which she has by law ‘only a limited estate’. Thusthough under Section 4, the widow would inherit in preference to thedaughter and daughters’ daughter the nature of the right is as containedin Section 10 and Section 11, the effect of which we have called out.

22. The next thing which we must ascertain is who are thereversioners. The reversioners are the heirs of the last full owner, whowould be entitled to succeed to the estate of such owner on the death ofa widow or other limited heir, if they be then living (as per para 175 ofthe Mulla on Hindu Law).

The nature of the interest of reversioners is also discussed underthe same para, which is as follows:

(2) Interest of reversioners – The interest of a reversioner is aninterest expectant on the death of a limited heir and is not a vestedinterest. It is a spes successionis or a mere chance of successionwithin the meaning of Section 6, Transfer of Property Act, 1882.It cannot, therefore, be sold, mortgaged or assigned, nor can it berelinquished. A transfer of a spes successionis is a nullity, and ithas no effect in law.

23. Under the Hindu Law, a widow took a limited estate. She wasnot a trustee for the reversioners. She was owner of the properties. Butshe could alienate the property only for necessity or benefit of the estate.By the State Act, the widow’s estate became stridhana, which by virtueof Section 11 conferred upon her absolute right to dispose the propertyeither by way of inter vivos transfer or will. The State Act came intoforce on 01.01.1934. When the succession opened on Ramanna dyingin 1907, he was survived by both his widow Seethama and also hisdaughter Venkamma. Therefore, it is quite clear that Seethama wouldnot get an absolute right under Section 11 of the State Act. When AB

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Asuccession opened in this case to the estate of Ramanna, in fact, theState Act was not in force at that time. The estate which was inheritedby Seethama was that of a widow. Therefore, be it from stand point ofHindu Law as applicable prior to the State Act or the provisions of theState Act, Seethama did not acquire absolute rights. As such, the rightwhich she had, was the right of the Hindu widow under Hindu Law.B

Further, as long as Seethamma - widow of Ramanna was alive,no reversioners had any vested interest. The daughter of Ramanna(Venkamma) through his first wife passed away in the year 1910. Atthat time, Seethamma the widow of Ramanna was alive. Therefore,she (Venkamma) would not get any right in the property. SeethammaCdied only in the year 1938. When Seethamma died in 1938, no doubtJankamma was alive. It is here that we must consider the argument oflearned counsel for the respondents that the daughter of a daughter wasnot recognized as a heir. When succession opened upon the death ofthe widow, in this case, namely Seethamma in the year 1938, if JankammaDcould be treated as the reversioner being grand daughter of the last fullowner, then the property would vest in Jankamma.

24. There would be two obstacles for the appellants:- firstly, itwould have to be held that Jankamma being the grand daughter ofRamanna was a reversioner upon the death of Seethamma, the widowEof Ramanna. Secondly, even assuming for a moment that Jankammawas the reversioner whether it was incumbent upon her to instituteproceedings for recovery of possession within 12 years of death ofSeethamma.

25. Taking up the second question, we notice the followingFcommentary of Mulla on Hindu Law:

“207. Reversioner’s suit for possession and limitation._ A suit byreversioners, entitled to succeed to the estate on the death of awidow or other limited heir, for possession of immovable propertyfrom an alienee from her must be brought within 12 years fromGher death (the Indian Limitation Act, 1908, Schedule I, Article141), and of movable property, within six years from that date.

Now see Articles 65, 109 and 113 of the new Limitation Act,1963.

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The reversioner may sue for possession without suing to havealienation set aside. The reason is that he is entitled to treat theunauthorized alienation as a nullity without the intervention of anycourt.

26. Learned counsel for the respondents has placed considerablereliance on the judgment of this Court in Kalipada Chakraborti & Anr.v. Palani Bala Devi & Ors. [AIR 1953 SC 125]. Therein, this Courtdealt with transfer of Shebeiti right by Hindu Widow and the suit byreversioners challenging the same. This Court held as follows:

“But all doubts on this point were set at rest by the decision of thePrivy Council itself in Faggo v. Utsava [(1929) 56 I.A. 267] andthe law can now be taken to be perfectly well settled that exceptwhere a decree has been obtained fairly and properly and withoutfraud and collusion against the Hindu female heir in respect to aproperty held by her as a limited owner, the cause of action for asuit to be instituted by a reversioner to recover such propertyeither against an alienee from the female heir or a trespasser whoheld adversely to her accrues only on the death of the femaleheir. This principle, which has been recognized in the law oflimitation in this country ever since 1871 seems to us to be quite inaccordance with the acknowledged principles of Hindu law. Theright of reversionary heirs is in the nature of spes succession is,and as the reversioners do not trace their title through or from thewidow, it would be manifestly unjust if they are to lose their rightssimply because the widow has suffered the property to bedestroyed by the adverse possession of a stranger. The contentionraised by Mr. Ghose as regards the general principle to be appliedin such cases cannot, therefore, be regarded as sound.

Ordinarily, there are two limitations upon a widow’s estate. Inthe first place, her rights of alienation are restricted and the in thesecond place, after her death the property goes not to her heirsbut to the heirs of the last male owner.”

This view has been followed in the judgment reported in AIR1969 SC 204. The law of limitation relevant at that point of time was theIndian Limitation Act, 1908. It is crucial to notice Articles 140 and 141:-

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Description of SuitPeriod of Time from which Limitation period begins to run 140. By a remainderman, a Twelve years When his estate falls reversioner (other than a into possession. landlord) or a devisee, for Bpossession of immovable property. 141. Like suit by a Hindu Twelve years When the female or Muhammadan entitled dies. to the possession of immovable property on the death of a Hindu or CMuhammadan female.

It is this statutory framework which formed the basis of the lawlaid down by this Court which we have noticed.

DIt is next relevant to notice Section 28 of the Act:- “28. Extinguishment of right to property. - At the determination ofthe period hereby limited to any person for instituting a suit forpossession of any property, his right to such property shall beextinguished.”

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In other words, while it was open to the reversioners to ignore analienation made by a Hindu widow and the period of limitation would notstart to run upon a transfer effected by the Hindu widow, undoubtedly,the period of limitation for filing a suit for recovery of possession wouldcommence upon the death of the widow.F

27. The property was alienated by Seethamma, the widow ofRamanna in favour of her brother Srinivas Rao in the year 1913.Undoubtedly, it was open to the reversioner to proceed on the basis thatsuch alienation does not bind her.

28. Thereafter, in 1938, Seethamma passed away. Even proceedingGon the basis that Jankamma, the grand-daughter of Ramanna was areversioner, her estate in expectancy became vested in her, upon thedeath of the Ramanna’s widow, Seethamma in 1938. While it is true thatit was open to the reversioner to ignore the sale deed executed by thewidow, as not binding on her, as far as suit for recovery of possession, H

the law clearly provided for a period of 12 years and the period of limitationstarted with the death of the limited owner, namely, the widow in 1938.The time started ticking with the passing away of the widow in 1938.The period of limitation being 12 years, it ran out in 1950. With the runningout of the period of limitation prescribed under the Limitation Act, 1908(by Articles 140 and 141), the very right of the alleged reversionerJankamma also came to an end. Thus, when she executed the sale inthe year 1955 in favour of the appellants, she could not have conveyedany right. That apart, even for a moment, proceeding on the basis thatperiod of limitation would start from 12 years from 1955 when the saledeed was executed in favour of the appellants by Jankamma even thatperiod ran out in 1967. Admittedly, the suits were filed several yearseven after 1967. Section 31 of the Limitation Act, 1963 reads as follows:- “31 Provisions as to barred or pending suits, etc:- Nothing in thisAct shall,—

(a) enable any suit, appeal or application to be instituted, preferredor made, for which the period of limitation prescribed by the IndianLimitation Act, 1908 (9 of 1908), expired before the commencementof this Act; or (b)affect any suit, appeal or application instituted, preferred ormade before, and pending at, such commencement.”

Quite clearly much before the Limitation Act, 1963 came intoforce, the period of limitation for instituting the suits had expired. This isapart from the effect of not filing such a suit on the very right itself.

29. In such circumstances, we see no reason to interfere with thejudgment of the High Court. The appeals will stand dismissed with noorder as to costs.

Ankit Gyan Appeals dismissed.

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