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Gopalakrishna (D) Bylrs. . vs Narayanagowda (Dead) By Lrs. . on 3 April, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s).1332 of 2008

GOPALAKRISHNA (D) BY LRS. ORS. Appellant(s)

VERSUS

NARAYANAGOWDA (DEAD)BY LRS. ORS. Respondent(s)

J U D G M E N T

K.M. JOSEPH, J.

1. This appeal filed by special leave is directed

against the judgment dated 28.11.2005 passed by the High

Court of Karnataka in Regular Second Appeal Nos. 870/1996

and 871/1996. The High Court, by its impugned judgment,

dismissed the appeals and affirmed the judgment of the

First Appellate Court which had reversed the decree passed

by the Trial Court. The Trial Court decreed the suits

[O.S. No. 68/1985 and 21/1986 (O.S. No. 393/75)] filed by

the appellants.

1

2. The case of the appellants is as follows:-

One Ramanna was the owner of the properties which are

scheduled to the plaint. He passed away in 1907. He was

married to Jankamma (first wife) who predeceased him.

The second wife Seethamma passed away in the year 1938.

Through his first wife (Jankamma), he had a daughter

named Venkamma. Venkamma passed away in 1910.

Venkamma, in turn, had a daughter named Jankamma. The

appellants before us claimed right to the properties by

virtue of sale deeds executed by Jankamma in the year 1955.

After the sale executed by Jankamma, the father of

the first plaintiff and the second plaintiff claimed that

they were in possession of the suit properties. The

respondents filed the suits (bearing O.S. Nos. 211 and 213

of 1955) for declaration of their title and injunction.

The said suit was decreed by the Trial Court. The High

Court in second appeal set aside the decree of the lower

court and confirmed the sale of Jankamma in favour of the

first plaintiff’s father and the second plaintiff and held

that title to the properties could not be decided. It is

2
their case that since Venkamma survived Ramanna, Jankamma

became a full owner of the properties and through her under

the sale deed, the plaintiffs claimed absolute ownership,

and sued for declaration of title, recovery of possession

and mesne profits.

3. The respondents, on the other hand, denied the

allegations that Ramanna had a daughter by name Venkamma

and Venkamma had a daughter by name Jankamma. The

ownership by Jankamma was denied. Seethamma had sold the

properties to her brother – Srinivasa Rao.

It is the further case of the respondents

(defendants) that they purchased property from Srinivasa

Rao under registered sale deed dated 13.09.1954 and they

are in possession since then. They also claimed adverse

possession. They have been found to be in possession right

upto the High Court in the earlier proceedings.

4. The Trial Court decreed the suit and found inter

alia that Venkamma was the daughter of Ramanna and

Venkamma had two daughters by name Patamma and Jankamma.

Patamma died and Jankamma alone survived. The Trial

Court further proceeded to enquire whether Jankamma had

3
acquired any right in the properties of her grandfather

which was alienated to the plaintiffs. The Court

referred to the following findings of the High Court in

the earlier litigation commenced by the respondents:

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

Further, this aspect has also been considered by
the Hon’ble High Court 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 that Ramanna left behind him his wife
Seethamma, who died in the year 1938, there was a
serious controversy in this litigation in regard
to the question whether Ramanna had a daughter
Jankamma. A question which was even more serious
than that was whether Venkamma was alive when
Ramanna died in the year 1907 or there about. This
question assumes great importance in the context
of the finding recorded by the courts below, that
Seethamma under the provisions of Mysore Hindu Law
Women’s Right to property Act became an absolute
owner of the properties of her husband. It is
clear from Sec. 10(2)(g) of the Act that she could
become absolute owner of these properties, only if
Ramanna when he died did not left behind his a
daughter or daughter’s son. If Venkamma was the
daughter of Ramanna and she was alive when Ramanna
died, then it becomes clear that Sec. 10(2)(g) of
the Act is no application and Seethamma had only
a widow’s estate and the properties could not
become her Sreedhana properties. It was for this
purpose to demonstrate that they did not that way
become Sreedhana properties of Seethamma that
defendants contended that Ramanna left behind him
his daughter Venkamma and that Venkamma had a child
Jankamma, who could convey to the contesting
defendants the properties purchased by them.

4

Both the courts have found that Venkamma was the
daughter of Ramanna and that finding being a
finding on the question of fact has remained
undisturbed. They have further found that
defendant No.8 is Jankamma, daughter of Venkamma
and that finding is equally unassailable for the
same reason.

18. While answering issue Nos. 1 and 2, not only
I have come to the conclusion that Venkamma
survived her further and she was the daughter of
Ramanna and she had a daughter by name Jankamma but
earlier proceedings between the same parties have
also established this fact beyond any shadow of
doubt. When Venkamma survived her father, who
died in the year 1907, then Seethamma, the 2nd wife
of late Ramanna enquiring the properties of her
husband could not have been there at all. Because
as it is already stated above under Section
10(2)(g) of Hindu Law Women’s Right to Properties
Act she could not become an absolute owner of the
properties of her husband, Ramanna. Because
Ramanna had left behind his daughter Venkamma.
The said Venkamma died in the year 1910. Leaving
behind her daughter by name Jankamma. So under
Section 10(2)(g) of the said Act, Seethamma had
only a widow’s estate but the properties of her
husband could not form her Sreedhana properties so
in that way any alienations made by her in favour
of her brother Srinivasa Rao were all illegal.”

5. When Venkamma survived her father then Seethamma

(the second wife of Ramanna) could not acquire properties

of her husband. Reference was made to Section 10(2)(g)

of the Hindu Law Women’s Right to Properties Act (for short

‘the State Act’). On finding that Ramanna had left behind

her daughter – Venkamma who died in the year 1910,

therefore under Section 10(2)(g) of the Act, the widow

5
Seethamma had only widow’s estate which could not form her

Stridhan properties and therefore any alienation made by

her in favour of her brother – Srinivasa Rao was illegal.

Seethamma was found to have no vested interest in the

properties of her husband except having widow’s estate.

Seethamma herself had not acquired any saleable interest

in the properties of her husband – Ramanna. It was

observed that in the earlier second appeal that the sale

by Srinivas Rao in favour of the respondents could not be

sustained and accordingly the sale had been set aside only

confirming the decree for permanent injunction against

the appellants. The sale of the properties by Jankamma

was upheld in the earlier proceedings. On this basis, the

sale of properties by Seethamma in favour of her brother

was found to be illegal entitling the plaintiffs to be

declared as owner.

6. The contention of the respondents was that they

were in possession and there were also entries in the

revenue record to that effect. It was found that the

entries in the revenue record would not advance the case

of the respondents.

6
The Trial Court proceeded to consider the question

whether the possession of the defendants could be found

to be adverse and the Court came to the conclusion that

the defendants had miserably failed to establish adverse

possession. The contention based on limitation was

accordingly rejected. Accordingly, on these findings,

the suit came to be decreed declaring the appellants as

owners of the scheduled properties and entitled to recover

possession of the suit properties and also mesne profits

from the respondents.

7. In the first appeal, the Appellate Court inter

alia found that the respondents were in possession and if

the properties were not recovered within 12 years, then

the right to recovery is extinguished as per the decision

in [AIR 1972 Mysore 22].

Though the High Court in the earlier round of

litigation observed that the question relating to whether

Venkamma survived Ramanna or predeceased him has to be

decided, the appellants should have approached the Court

immediately but they had approached the Court with the

delay of beyond 12 years and that too without giving any

proper explanation for the delay.

7

It was found that the right of the appellants for

recovery of possession on the foot of their acquisition

of title by sale from Jankamma on 16.04.1955 accrued on

16.04.1955. The judgment of the High Court in the earlier

second appeal delivered on 16.09.1963 did not give rise

to any cause of action. Accordingly, the appeals were

allowed and the suits were dismissed.

Proceedings in the High Court

8. The High Court framed the following substantial

questions of law 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 is barred by time is without considering the

provisions of Section 65 of the Limitation Act of 1963?

ii) Whether the finding that the respondents have

perfected their title by adverse possession is justified

when they have contended that they are the owners of the

property by virtue of a registered sale deed?

8
R.S.A. No. 871/96

i) Whether the lower appellate Court was justified in

holding that the suit was barred by limitation?

ii) Whether the lower appellant court was justified in

holding that the respondents acquired title by adverse

possession?

9. The High Court came to the following findings

after referring to the relationship of the parties. It

was found inter alia that during the life time of Jankamma

although the properties were sold by Seethamma in favour

of his brother Srinivasa Rao but she had not challenged

the same, so possession of the properties by the

defendants by virtue of sale deed in favour of Srinivasa

Rao and by Srinivasa Rao in favour of the respondents

remained unchallenged and that would be the starting point

of limitation.

10. The transferees from Jankamma namely the

appellants moved the Court only in 1975, 1985 and 1986.

As per Madras School of Mitakshara Law in a catena of

decisions, it is held that at a place other than Bombay

State the right of survivorship necessarily is in favour

9
of the widow than the daughter and the grand-daughter. So

the alienation made by Seethamma in favour of Srinivas Rao

and by Srinivas Rao to the respondents could not be said

to be invalid.

11. Thereafter, the Court referred to the ‘the State

Act’ and observed that even under Section 4 as per Section

4(1)(ii) of the State Act, the widow stands in preference

to the daughters i.e. the right of widow (Seethamma) is

preferable to the right of daughter and Jankamma’s

position comes only afterwards. Jankamma – the grand

daughter is in category (ix) of the aforesaid provision.

12. Such being the position of law, the sale made by

Jankamma, grand-daughter of Ramanna, in favour of the

appellants, if any, is non est, more so, as noted, since

Jankamma had not challenged the earlier sale made by

Seethamma in favour of Srinivas Rao. Seethamma although

had a limited interest, the alienation had not been

challenged by the reversioners of Ramanna for 50 years.

The right of Seethamma stood unchallenged and the

alienation made also remained unchallenged.

10
As regards the point relating to limitation, it was

found that first of all Jankamma had to challenge the

alienation by Seethamma, which was of the year 1913. No

special privilege was given in excluding limitation

created by the Limitation Act by the observation of the

High Court in the earlier second appeals (801/1960 and

819/1960). Since the right of Seethamma had not been

challenged by Jankamma, the suits are necessarily barred

by time.

Thereafter, regarding the adverse possession, this

is what the Court held:

“As to the point of adverse possession is
concerned, it is made clear by the lower appellate
court that even after order of declaration has been
negatived by this Court in the second appeals
801/60 and 819/60, the suits are belatedly filed
by the plaintiffs in the year 1985 and 86
respectively and as such Sreenivas Rao and
thereafter, the defendants have acquired right and
title to the suit properties by adverse
possession. It is needless to say that when
necessarily these defendants have set up their
right not only for possession, but also by virtue
of the sale deed, that finding would not be
appropriate.”

13. We have heard learned counsel for the parties.

Learned counsel for the appellant drew our attention to

Section 4 of the State Act and then he further sought
11
support from Section 10 of the Act. Section 10 (2) (g)

of the Act reads as follows:-

“10. (2) Stridhana includes:-

(g) property taken by inheritance by a female

from another female and property taken by
inheritance by a female from her husband or son,
or from a male relative connected by blood except
when there 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 committed a clear error in taking the view that

Seethamma – the widow would get an absolute right. It is

his contention that as per the definition of Stridhan

which undoubtedly is her absolute right, there is an

exception carved out in Section 10(2)(g) of the Act. In

so far as the properties in question were 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, the daughter of Ramanna

(Venkamma) died only in 1910 which was after the death of

Ramanna – 1907. When succession to the estate of Ramanna

in 1907 opened, then Seethamma his widow would inherit the

property where the right is only limited to the estate of
12
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 vital aspect by not referring to Section

10 of the Act and confining its focus on Section 4 of the

State Act. Under Section 4 of the State Act, the widow

has priority over daughter and granddaughter.

When it was pointed out to the learned counsel for

the appellant that since Ramanna died in 1907 and the State

Act was not in existence as the Act was passed in 1933,

learned counsel for the appellant took up another

contention. He contended that under the Mitakshara law

which was applicable, the widow was entitled only to a

limited estate. He would contend that the position even

prior to the passing of the State Act was that the widow

did not get absolute estate.

16. Per contra, learned counsel for the respondents

would contend that Seethamma had transferred the property

in the year 1913. Seethamma died in 1938. If that is so,

the suit should have been filed if at all within a period

of 12 years from the date on which the alleged right in

13
the reversioners came to be vested namely upon the death

of Seethamma in the year 1938. The period of 12 years

would run out in 1950. The appellants – plaintiffs

purchased the property in the year 1955 from Jankamma –

grand daughter of Ramanna. Even then the suit was filed

by them only after more than 20 years. It is further

contended by learned counsel for the respondent that under

Mitakshara law applicable in the region in question, the

grand daughter was not a heir. Only the daughter of a male

upon his death intestate could inherit the property.

Therefore, even the limited right attributed to the widow

Seethamma would by default become an absolute right.

Findings in the earlier Second Appeal

17. The findings in the earlier Second Appeals which

emanated from the suits filed by the respondents are as

follows: The High Court did not interfere with a finding

that the sale deeds executed by Seethamma in favour of

Srinivas Rao were genuine. Equally, the High Court

affirmed the finding that the respondents in this appeal

were in possession of the properties purchased by them.

Jankamma was found to be the grand-daughter of Ramanna.

Further, the Court proceeded to pose the question whether
14
Venkamma was a daughter of Ramanna and whether she was

alive when Ramanna died having regard to Section 10(2)(g)

of the State Act. It was noticed that both the Courts

below had found that Venkamma was the daughter of Ramanna

and Jankamma was the daughter of Venkamma. It was,

however, observed that there were no pleadings as to

whether Venkamma survived or predeceased Ramanna.

18. The Court was of the view that the first issue

in all the cases was whether Seethamma became absolute

owner of the properties of her husband and it was equally

true that the processes by which she could become such

owner would be by her being alive and there being no

surviving child of Ramanna when he died. It was found

that the parties did not have the opportunity to produce

all evidences in this regard and an investigation was

required. The finding that Seethamma became absolute

owner of Ramanna’s properties was set aside. The Court,

however, proceeded to find that the fact that the

aforesaid finding was set aside did not mean that the Court

held that Seethamma had not become the absolute owner. No

opinion was expressed as it was dependent upon the

15
question whether Venkamma was alive when Ramanna died and

materials in this regard were insufficient.

19. On this basis, the decree declaring the

respondents to be the owners of the property was set aside.

The decree restraining the appellants from disturbing the

respondents’ possession was also affirmed. It may be

seen from the judgment of the High Court in the earlier

round of litigation that the respondents were found to be

in possession. The question relating to title was

essentially not decided as is clear from what was found

by the High Court. The Court left it open to be decided

on 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 the State Act

There is no dispute that the parties are governed by

the Madras School of Hindu Law. Thereunder, every female

who succeeded as a heir whether to a male or a female, took

a limited estate in the property inherited by her. As

16
regards widow’s estate, this statement is found in Mulla

Hindu Law, 23rd Edition.

“176. Widow’s estate – A widow or other limited
heirs is not a tenant for life, but is owner of the
property inherited by her, subject to certain
restrictions on alienation and subject to its
devolving upon the next heir of the last full owner
upon her death. The whole estate is for the time
vested in her, and she represents it completely.
As stated in a Privy Council case, her right is of
the nature of a right of property; her position is
that of owner; her powers in that character are,
however limited; but so long as she is 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 proposition of law that whenever there is a

usufructory mortgage, the widow could not sell the

property on the ground that it would deprive the

reversioners of the right to redeem it. This is what the

Court held:

“………Such a proposition could be supported only
if the widow is in the position of a trustee,
holding the estate for the benefit of the
reversioners, with a duty cast on her to preserve
the properties and pass them on intact to them.

That, however, is not the law. When a widow
succeeds as heir to her husband, the ownership in
the properties both legal and beneficial vests in
her. She fully represents the estate, the
interest of the reversioners therein being only
spec successiones. The widow is entitled to the
full beneficial enjoyment of the estate and is not

17
accountable to any one. It is true that she cannot
alienate the properties unless it be for necessity
or for benefit to the estate, but this restriction
on her powers is not one imposed for the benefit
of reversioners but is an incident of the estate
as known to Hindu law. It is for this reason that
it has been held that when Crown takes the property
by escheat it takes it free from any alienation
made by the widow of the last male holder which is
not valid under the Hindu law vide : Collector of
Masulipatam v. Cavaly Venkata 8 Moo Ind App
529(PC). Where, however, there is necessity for
a transfer, the restriction imposed by Hindu law
on her power to alienate ceases to operate, and the
widow as owner has got the fullest discretion to
decide what form the alienation should assume.
Her powers in this regard are, as held in a series
of decisions beginning with Hunooman Persaud v.
Mussamat Babooee Mundraj Koonweree, 6 Moo Ind App
393 (PC) those of the manager of an infant’s estate
or the manager of joint 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 of greater relevance to us held no one

has any vested interest in succession as long as the widow

is alive.

“A hindu widow is entitled to the full beneficial
enjoyment of the estate. So long as she is not
guilty of wilful waste, she is answerable to no
one. Her estate is not a life-estate, because in
certain 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 most
absolute power of enjoyment and is accountable to
no one. She fully represents the estate, and so
long as she is alive, no one has any vested
interests in the succession. It cannot be
18
predicted who would be the nearest reversioner at
the time of her death. It is, therefore,
impossible for a reversioner to contend that for
any loss which the estate might have sustained due
to the negligence on the part of the widow he should
be compensated from out of the widow’s separate
properties. He is entitled to get only the
property left on the date of the death of the widow.
The widow could have, during her lifetime, for
necessity, including her maintenance 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 it was 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 this Act, would have been subject to the law
of Mitakshara in respect of the provisions herein
enacted.

(2) Save as aforesaid, nothing herein contained shall
be deemed to affect any rules or incidents of the Hindu
Law which are not inconsistent with the provisions of
this Act.”
Thus, the rules or incidents of Hindu law to the extent

they were not inconsistent with the Act was to continue to

operate. Section (4) of the Act provided as follows:-

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

(ii) the widow;

(iii) daughters;

(ix) daughters’ daughters;

19

As far as Section 10 is concerned, the relevant portion reads

as follows: –

“10(1) “Stridhana” means property of every description
belonging to a Hindu female, other than property in
which she has, by law or under the terms of an
instrument, only a limited estate.

10(2) Stridhana includes:-

(g) property taken by inheritance by a female from
another female and property taken by inheritance by a
female from her husband or son, or from a male relative
connected by blood except when there is a daughter or
daughter’s son of the propositus alive at the time the
property is so inherited.”
It is necessary to notice Section 11 also. Section 11

reads as follows:-

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

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

Thus, the female owning stridhana property was conferred

absolute powers to dispose of the same as also in the matter

of enjoyment. The disposal could be by will or transfer inter

vivos. The only limitation was the law relating to

guardianship would continue to operate during minority.

Reverting back to Section 10 (2) (g), the property inherited

by a woman inter alia from her husband was brought under the
20
definition of stridhana. This was a clear expansion of a

widow’s rights by conferring upon a widow absolute right over

property inherited from her husband being a radical departure

from the widow’s estate under Hindu Law which was a limited

estate and under which there was no such absolute right of

disposal. There was however a catch and it was this. If the

husband was survived by the widow and a daughter or a daughter

son, then the widow’s estate as understood in Hindu Law was

to continue undisturbed. If a daughter or grandson as

mentioned did not survive the husband, the widow would get

the absolute right notwithstanding Section 10(1) defining

stridhana as meaning property of any description belonging

to a Hindu female other than which she has by law ‘only a

limited estate’. Thus though under Section 4, the widow would

inherit in preference to the daughter and daughters’ daughter

the nature of the right is as contained in Section 10 and

Section 11, the effect of which we have called out.

22. The next thing which we must ascertain is who are

the reversioners. The reversioners are the heirs of the last

full owner, who would be entitled to succeed to the estate

of such owner on the death of a widow or other limited heir,

21
if they be then living (as per para 175 of the Mulla on Hindu

Law).

The nature of the interest of reversioners is also

discussed under the same para, which is as follows:

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

23. Under the Hindu Law, a widow took a limited estate.

She was not a trustee for the reversioners. She was owner of

the properties. But she could alienate the property only for

necessity or benefit of the estate. By the State Act, the

widow’s estate became stridhana, which by virtue of Section

11 conferred upon her absolute right to dispose the property

either by way of inter vivos transfer or will. The State Act

came into force on 01.01.1934. When the succession opened

on Ramanna dying in 1907, he was survived by both his widow

Seethama and also his daughter Venkamma. Therefore, it is

quite clear that Seethama would not get an absolute right

under Section 11 of the State Act. When succession opened in

22
this case to the estate of Ramanna, in fact, the State Act

was not in force at that time. The estate which was inherited

by Seethama was that of a widow. Therefore, be it from stand

point of Hindu Law as applicable prior to the State Act or

the provisions of the State Act, Seethama did not acquire

absolute rights. As such, the right which she had, was the

right of the Hindu widow under Hindu Law.

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. At that time, Seethamma the widow of

Ramanna was alive. Therefore, she (Venkamma) would not get

any right in the property. Seethamma died only in the year

1938. When Seethamma died in 1938, no doubt Jankamma was

alive. It is here that we must consider the argument of

learned counsel for the respondents that the daughter of a

daughter was not recognized as a heir. When succession

opened upon the death of the widow, in this case, namely

Seethamma in the year 1938, if Jankamma could be treated as

the reversioner being grand daughter of the last full owner,

then the property would vest in Jankamma.

23

24. There would be two obstacles for the appellants:-

firstly, it would have to be held that Jankamma being the

grand daughter of Ramanna was a reversioner upon the death

of Seethamma, the widow of Ramanna. Secondly, even assuming

for a moment that Jankamma was the reversioner whether it was

incumbent upon her to institute proceedings for recovery of

possession within 12 years of death of Seethamma.

25. Taking up the second question, we notice the

following commentary of Mulla on Hindu Law:

“207. Reversioner’s suit for possession and
limitation._ A suit by reversioners, entitled to
succeed to the estate on the death of a widow or
other limited heir, for possession of immovable
property from an alienee from her must be brought
within 12 years from her death (the Indian
Limitation Act, 1908, Schedule I, Article 141),
and of movable property, within six years from that
date.

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

The reversioner may sue for possession without
suing to have alienation set aside. The reason is
that he is entitled to treat the unauthorized
alienation as a nullity without the intervention
of any court.

26. Learned counsel for the respondents has placed

considerable reliance on the judgment of this Court in

Kalipada Chakraborti Anr. v. Palani Bala Devi Ors. [AIR

1953 SC 125]. Therein, this Court dealt with transfer of
24
Shebeiti right by Hindu Widow and the suit by reversioners

challenging the same. This Court held as follows:

“But all doubts on this point were set at rest
by the decision of the Privy Council itself in
Faggo v. Utsava [(1929) 56 I.A. 267] and the law
can now be taken to be perfectly well settled that
except where a decree has been obtained fairly and
properly and without fraud and collusion against
the Hindu female heir in respect to a property held
by her as a limited owner, the cause of action for
a suit to be instituted by a reversioner to recover
such property either against an alienee from the
female heir or a trespasser who held adversely to
her accrues only on the death of the female heir.
This principle, which has been recognized in the
law of limitation in this country eversince 1871
seems to us to be quite in accordance with the
acknowledged principles of Hindu law. The right
of reversionary heirs is in the nature of spes
successionis, and as the reversioners do not trace
their title through or from the widow, it would be
manifestly unjust if they are to lose their rights
simply because the widow has suffered the property
to be destroyed by the adverse possession of a
stranger. The contention raised by Mr. Ghose as
regards the general principle to be applied in such
cases cannot, therefore, be regarded as sound.

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

This view has been followed in the judgment reported in AIR

1969 SC 204. The law of limitation relevant at that point of

time was the Indian Limitation Act, 1908. It is crucial to

notice Articles 140 and 141:-

25
Description of Suit Period of Time from which period
Limitation 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 possession of
immovable property.
141. Like suit by a Hindu Twelve years When the female dies.
or Muhammadan entitled to
the possession of
immovable property on the
death of a Hindu or
Muhammadan female.

It is this statutory framework which formed the basis of the

law laid down by this Court which we have noticed.

It is next relevant to notice Section 28 of the Act:-

“28. Extinguishment of right to property. – At the
determination of the period hereby limited to any
person for instituting a suit for possession of
any property, his right to such property shall be
extinguished.”

In other words, while it was open to the reversioners to

ignore an alienation made by a Hindu widow and the period of

limitation would not start to run upon a transfer effected

by the Hindu widow, undoubtedly, the period of limitation for

filing a suit for recovery of possession would commence upon

the death of the widow.

27. The property was alienated by Seethamma, the widow

of Ramanna in favour of her brother Srinivas Rao in the year

26
1913. Undoubtedly, it was open to the reversioner to proceed

on the basis that such alienation does not bind her.

28. Thereafter, in 1938, Seethamma passed away. Even

proceeding on the basis that Jankamma, the grand-daughter of

Ramanna was a reversioner, her estate in expectancy became

vested in her, upon the death of the Ramanna’s widow,

Seethamma in 1938. While it is true that it was open to the

reversioner to ignore the sale deed executed by the widow,

as not binding on her, as far as suit for recovery of

possession, the law clearly provided for a period of 12 years

and the period of limitation started 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

running out of the period of limitation prescribed under the

Limitation Act, 1908 (by Articles 140 and 141), the very right

of the alleged reversioner Jankamma also came to an end. Thus,

when she executed the sale in the year 1955 in favour of the

appellants, she could not have conveyed any right. That apart,

even for a moment, proceeding on the basis that period of

limitation would start from 12 years from 1955 when the sale

deed was executed in favour of the appellants by Jankamma even

27
that period ran out in 1967. Admittedly, the suits were filed

several years even after 1967. Section 31 of the Limitation

Act, 1963 reads as follows:-

“31 Provisions as to barred or pending suits, etc:-

Nothing in this Act shall,—

(a) enable any suit, appeal or application to be
instituted, preferred or made, for which the period of
limitation prescribed by the Indian Limitation Act,
1908 (9 of 1908), expired before the commencement of
this Act; or

(b) affect any suit, appeal or application instituted,
preferred or made before, and pending at, such
commencement.”

Quite clearly much before the Limitation Act, 1963 came into

force, the period of limitation for instituting the suits had

expired. This is apart 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 the judgment of the High Court. The appeals will stand

dismissed with no order as to costs.

…………………..J.

[ASHOK BHUSHAN]

…………………..J.

[K.M. JOSEPH]
NEW DELHI;

APRIL 03, 2019.

28

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