Dindyal & Anr. v. Rajaram

b} Hegd.e, J. This appeal by special leave arises trom the deci­ sion of Madhya Pradesh High Court in second appeal No .. 938 of 1965 0n its file. The facts found which are no more in dispute, and relevant for the purpose of deciding the questions of law arising for deci­ sion in this appeal may now be briefly stated. One Gulli Gotamia had two sons by name Girdharilal and Nandoo. From the mate­ rial on record, it is not possible to find out the date of death of Gulli Gotamia but admittedly he died leaving behind him his aforementioned two sons. Girdharilal and Nandoo were divided. Girdharilal died on May 17, 1920. His first wife had pre-deceased him But at the time of his death, his second wife Ladli Babu was alive. On his death his widow t<lok possession of his pro- perties. Girdharilal's brother Nandoo had two children. Gajadhar and Lachpi, Lachhi died issueless. Gajadhar also is dead. He has two·\children Dindayal (!st defendant) and Prameshwar Dayal (second defendant). Girdharilal had a daughter from his pre-dedeased wife by name Konsa Bai. She died in 1943. Ladli Bahu had a daughter by name Nanni Bai who died in 1941. The children of Nanni Bai, Narbada Bai, Raja Ram, Ram Narain and Gaya Prasad are the plaintifis in the ~.uit. Ever since the death of Girdharilal,!Ladli Bahu was in posses­ .sion of th' suit properties. She gifted those properties to her daughterNanni Bai on July 30, 1936 and put the donee in posses­ sion of ~e .same. Thereupon Konsa Bai filed a suit in 1937 seek­ ing a d~claration that the gift deed in question is not binding on her and that it cannot come in her way in inheriting the suit pro­ parties on the death of Ladli Babu. That suit was decreed on May 3, 1937. As mentioned earlier, Nanni B'ai died in 1941. On her death, the pl&intiffs clime into possessiol) qf the suit properties. Ladli Bahu took wrongful possession of the suit properties from ·the plaintiffs en. June 1, 1951 under the guise of i:nforcing the decree in the suit filed by Konsa Bai. Thereafter she -continued to be in exClusive possession of the suit properties. On May 27, 1952, she gifted some of those properties to one Rameshwar Prasad and the remaining properties she gifted to the appellants on March 21, 1957. She died on April 9, 1960. The Hindu Succession Act came into force on June 17, 1956. Two questions namely ( f) What is the effect of the possession taken by Ladli Babu on June 1, 1951 and (2) Did Ladli Bahu become 1 he full owner of those properties in view of s. 14 ( 2) of the Hindu Succession Act, 1956, were presented to the High Court as well as to the courts below for decision. The High Court came to the conclusion that Ladli Bahu's possession of the suit proi;erties after June 1, 1951, was that of a 1respasser and as such she did not become an absolute owner of those properties on the coming into force of the Hindu Succession Act. It also held that the plaintiffs became entitled to the suit properties on the death of Ladli Bahu as the nearest reversioner of Girdharilal. It was urged on behalf of the appellants that as soon as Ladli Bahu took possession of the suit properties from the plaintiffs, her previous 11ossession as the widow of Girdharilal sprang up again and thereafter she was holding the properties in her capacity as the widow of Girdharilal and hence she became the absolute owner of those properties when the Hindu Succession Act came into force. On the other hand. it was urged on behalf of the respondents, 1hat as soon as Ladli Bah11 parted with the possession of the suit properties, in favoLlr cf her daughter under a gift deed, she lost u DEENOAYAL v. RAJARAM (Hegde, J.) 301 all rights in th_ose properties. Therefore when she acquired posses­ sion in 1951, she did so as a trespasser. As she had no right to possess those properties when the Hindu Succession Act came into force, she acquired no rights under s. 14(2) of the Hindu Succes­ sion Act. The High Court and the courts below have come to the con­ clusion that the gift made by Ladli Bahu in favour of Na11ni Bai is a valid gift and that Nanni Bai came into possession of the suit properties on the strength of that gift. Hence she must be held to have had no interest in those properties thereafter. Therefore when Ladli Bahu took possession of those properties in 1951, she did so as a trespasser. This conclusion, in our opinion, is un­ assailable. If we come to the conclusion that she continued as a trespasser' (\n the date the Hindu Succession Act came into force and even thereafter till her death, then she cannot be held to have acquired anv right under the Hindu Succession Act because before, any property can be said to be "possessed" by a Hindu woman, as provided ins. 14(1) of the Hindu Succession Act, two things are necessary (a) she must have had a right to the possession of that property and (b) she must have been in possession of that property either actually or constructively-see S. S. Munna Lal v. S. S. Rajkumar and Ors.(') : Ku/dip Singh and Ors. v. Surain S;"ngh and Ors.('). The next question is whether in view of s. 104 (1) read with Art. 1 of the Second Sch. of the C.C. Tenancy Act, 1920 (to be hereinafter referred to as the Act) it can be held that Ladli Bahu had acquired a title to possess the suit properties. Section 104 (1) of the Act provides that the suits and appli­ cations specified in the Second Schedule therein shall be instituted or made within the time prescribed in that Schedule for them res­ pectively; and every such suit instituted and application made after the period of limitation so prescribed shall be dismissed. Art. 1 of the Second Schedule is as follows : Description .of suit or application. Period of limita· ti on Tin1e from which period begins to run. F'or possession of a holding by a person Three years The date of dis­ possession or ex· clusion. clain1ing to be a tenant from which he has been dispossessed or excluded fron1 possession by any person. - Admittedly the suit properties we.re held on tenancy right. Girdharilal was the protected tenant of these properties. Under the gift mentioned earlier, the plaintiffs becam.~ the tenants of those properties. In view of Art. l of the Second Schedule read with s. 104 ( 1) of the Act, the plaintiffs as tenants could not have sued for possession of the suit properties after June 1, 1954. It was urged oa behalf of the appellants that in view of the principle underlying (1) [19621 s·•pp. 3 s.c.R. t.18 (2) C.A. No. 138/1964 dt 1-5-1967 s. 28 of the Indian Limitation Act, 1908, which principle is not A confined to suits and applications for which limitation is prescribed under that Act but is of general application, the plaintiffs' right to the suit properties must be held to have been extinguished. In other words, the contention was in view of the aforementioned provisions, the plaintiffs had not merely lost their right to sue for possession of the suit properties, their right in the properties itself B· had been extinguished. It is well settled that the principle under­ lying s. 28 of the Indian Limitation Act, 1908 (same as s. 27 of the Indian Limitation Act, 1963) is of general application. It is not confined to suits and applications for which a period of limitation is prescribed under the Limitation Act. Art. 1 of the second schedule to the Act applies only to suits brought by a person claiming to be a tenant for possession of a holding from which he has been dispossessed or excluded from possession by any person. In other words before this Art. can apply. the following conditions must be fulfilled. ( 1 ) The plaintiff must claim to be the tenant of the hold- I> ing which is the subject matter of the suit; (2) The suit must be one for possession; and ( 3) The suit must be on the ground that he had been dis­ possessed or excluded from possession by any person. Though the plaintiffs in this suit w~re at one time the tenants in the suit holding in view of the gift in favour of their mother, they have not brought the present suit as tenants of that holding. They have brought it on the strength of their title as the nearest reversioners to Girdharilal. Nor is their dispossession in 195 l a part of the cause of action for the present suit. This is not a suit for possession on the ground that the plaintiffs had been earlier dispossessed. This is a suit for possession on the strength of the new title acquired by the plaintiffs after the death of Ladli Bahu. Therefore Art. 1 of the second schedule does not apply to the pre- sent suit. The limitation for this suit is governed by the provisions of the Limitation Act, 1908. Further it is one thing to say that a tenant who was in posses- sion of the tenancy holding at the time of dispossession had lost his rights in the holding but it is another thing to say that a tres­ passer had become the tenant of that holding at the en_d of the prescribed period. It must be remembered that C. P. Tenancy Act is a special Act. It only governs those matters for which pro­ vision is made therein. In other respects the general law continues H to apply. The Act does say that a tenant's right in respect of any propert·: can be acquired by adverse possession. We do not think DEENDAYAL v. RAJARAM (Hegde, !.) 303" that the provisions of the Act enabled (The Act has been since" repealed) a trespasser to impose himself as a tenant on the land· lord by means of adverse possession of the holding as against the tenant for a period of three years. Similarly, it is not possible to hold that a tenancy right could have been acquired in a holding. so as to affect the rights of third parties by being in wrongful possession of that holding for a period of three years.. If jt is· otherwise, valuable rights of third parties could have been jeopar­ dised for no fault of th.~irs. Take the case of a widow who was in possession of a tenancy holding. The ;>rospective reversioner to· her husband's estate would have had no right in that holding dur· ing her life time. Is it reasonable to hold that the reversioner would have lost his rights in the holding even before he acquired them because someone was in possession of that holding adversely to the widow for a period of three years ? That would not have been the position even under Art. 144 of the Limitation Act, 19tl8. It could not be different under the Act. A right cannot be barred even before it accrues. The fact that the~ tenant dispossessed happened to become the rev.~rsioner on the death of the widow cannot make any differeni in law. In 1951, the plaintiffs had two different rights over the suit properties--0ne under the gift referred to earlier and the other as reversioner. One was an existing right, the other was a prospective· one. Their right under the gift must be held to have been ex­ tinguished under Art. 1 Sch. II read with s. 104 of the Act. But their right to tho'e properties as reversioner arose only after the death of Ladli Bahu. That right could not have been barred even before it accrued. As against the prospective reversioners Ladli Bahu was holding the suit properties as a trespasser. She had ac­ quired no_right in those properties as against them. Till her death, it was not possible under law to predicate who could have been her husband's nearest reversioner on the date of her death. In the result this appeal fails ond it is dismissed with costs. G.C Appeal dismissed. [The above judgment dated April 17, 1970 was reviewed by the Court on Review Petition No. 38 of 1970. The following. order was passed on October, n, 1970 :] ORDER L'orrection to be made at appropriate places in the Judgment · by showing the name of Rajaram as plaintiff instead of the names referred to as of "plaintiffs", and also substitution to be made of the word "plaintiff" for the word "plaintiffs" wherever it occurs in the Judgment. No order as to costs. The security will be re­ funded. Mesne profits deposited by the appellants to be paid. over to the respondent Rajaram.