Case: GOPALAKRISHNA (D) BYLRS.  Vs. NARAYANAGOWDA (DEAD) BY LRS.

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 firstfather and the second plaintiff and held that title to the properties could not be decided. It is 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 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 theNow, 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 theHigh Court in S.A. No. 801/60 at page-16. It is observed in the saidit 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 LawRight 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 orson. 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 aestate 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. 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.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 2 nd 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 LawRight 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 aestate 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.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 LawRight to Properties Act (for short ‘the StateOn 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 Seethamma had onlyestate 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 havingestate. 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.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.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 Court8. 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. 870/96i) 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?R.S.A. No. 871/96i) 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 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 Stateand 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 andposition 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.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 Courtto 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

Reasoning:
Findings in the earlier Second Appeal17. 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 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 ofproperties 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 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 thepossession 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 survivedis 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.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 definition of stridhana. This was a clear expansion of arights by conferring upon a widow absolute right over property inherited from her husband being a radical departure from theestate 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 theestate 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 limitedThus though under Section 4, the widow would inherit in preference to the daughter anddaughter 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, if they be then living (as per para 175 of the Mulla on Hindu Law).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, theestate 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 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 theWhen 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.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 ofother 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 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 thewidow, 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 that period ran out in 1967. Admittedly, the suits were filed several years even after 1967.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.