TMI Blog1929 (1) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ul Kishore, who predeceased him leaving Mt. Rajeshwari Debi as his widow. It was alleged by the plaintiff that the two widows, namely, those of Babu Bansi Lal Singh and of his son Babu Jugul Kishore lived together and were in joint possession of the property and that after the death of the widow of Babu Bansi Lal Singh on 25th September 1913, her daughter-in-law Mt. Rajeshwari Debi came into possession of the property, became the absolute owner thereof, and got mutation effected in her name in respect of the said grove on 23rd January 1922. Mt. Rajeshwari Debi was alleged to have transferred the grove to the plaintiff respondent by a sale deed dated 13th October 1921. It was further alleged that when Babu Bansi Lal Singh shifted from Lakhimpur to Lucknow, he left the said grove in charge of one Babu Sheo Bakhsh Rai, pleader of Lakhimpur, who died in May 1906. After his death his widow Mt. Man Kuar, defendant 1 in the present suit, remained in possession of the grove as a care taker, and was in such possession on the date of the aforesaid sale. Soon after the execution of the sale deed a dispute seems to have arisen for the possession of the grove and the parties took the matter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grove in suit to the plaintiff respondent. It is said that Babu Bansi Lal Singh and Babu Bishunath Prasad Singh constituted members of a joint Hindu family there having been no partition effected between them and after the death of Babu Bansi Lal Singh, his widow and after her death his daughter-in-law must be deemed in the eyes of law to be in adverse possession thereof. It was further alleged that Mt. Rajeshwari Debi could in any case be deemed to possess in her a possessory title in respect of the grove, which she was competent to transfer to the plaintiff-respondent, and thus she was entitled to preference against the defendants, who had no title to the property whatever. The benami character of the sale deed dated 1st March 1924, in favour of defendant 1 was denied. Lastly it was urged that since the mutation of names had been effected in respect of the grove in suit in favour of Mt. Rajeshwari Debi and her name was entered in the khewat, she should be deemed to be an ostensible owner of the grove in suit and that the defendants could not be allowed to challenge the title of the plaintiff-respondent. 4. It would thus appear from the pleadings that the main points for trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Act, 4 of 1882. Lastly he decided that the building and the well standing on the grove in suit had been constructed by the father of defendant 2 and himself respectively, and that he was therefore, entitled to compensation. In result he passed a decree on 26th January 1928, in favour of the plaintiff in respect of the grove in suit as well as the building and the well situate thereupon, but allowed defendant 2 compensation to the extent of ₹ 1,500. 6. It is against this decree that defendant 2 has appealed to this Court. The plaintiff has filed cross-objections in respect of the compensation that has been awarded against him to defendant 2. In appeal, therefore, all the contentions which were raised on either side have been revived and the whole case has been argued before us at length on either side. (After confirming the finding on first point, the judgment proceeded.) 7. Second point.--Whether Babu Bansi Lal Singh and Babu Bishunath Prasad Singh constituted a joint Hindu family at the time of the death of the former and was the grove in suit the property of the joint family at the time of the former's death or was it separate and self-acquired property of Babu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partition of the property by metes and bounds. It is now amply settled by authorities that in order to constitute separation it is not necessary that there should be any partition of the property by metes and bounds. What is necessary to establish separation is that there must be a division of interests and not of the property itself. This rule of law was for the first time laid down by their Lordships of the Privy Council in Appovier v. Rama Subba Aiyar [1866] 11 M.I.A. 75 and has been repeatedly confirmed in several cases by the Privy Council itself and it is not necessary to refer to them. In our opinion, therefore, the evidence of Babu Bishunath Prasad Singh on this point which has not at all been shaken in cross-examination, must stand. 10. Mt. Rajeshwari Debi was also examined on commission in this case and she has also given clear evidence on this point. On P.R. 16 she stated that all the property belonging to Babu Bansi Lal Singh at Kheri was his self-acquired property, that there was no sharer in the property acquired by him and that Babu Bishunath Prasad Singh and his father Anant Ram used to live separately from Babu Bansi Lal Singh. She further stated that so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Babu Bishunath Prasad Singh who was at the time according to the pedigree proved in the case the nearest heir of Babu Bansi Lal Singh. That he was the nearest heir has not been contested in arguments by the learned advocate for the plaintiff-respondent. 15. Fourth point.--Could the possession of Babu Bansi Lal Singh's widow and after her death of her daughter-in-law be treated as adverse and did it confer title on any one of them? 16. We have already found that. Babu Bansi Lal Singh was a separate member of a Hindu family at the time of his death and that he was not in any way joint with Babu Bishunath Prasad Singh. The widow of Babu Bansi Lal Singh would, therefore, be entitled in law to possession of the grove in suit for her lifetime, and that her possession could not be considered to be adverse to the reversioner Babu Bishunath Prasad Singh, since he could not be entitled to the possession of the property till she was dead. 17. As to the possession of the daughter-in-law the matter, however, stands on a different position. It is a settled rule of Hindu Law that daughter-in-law is no heir either to her father-in-law or to her mother-in-law. If any authority were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the sale deed dated 1st March 1924, benami for defendant 1? 20. (Their Lordships considered the evidence and concluded by observing to the effect that it was satisfactorily proved that the consideration of the sale deed was paid by the appellant Khush Waqt Rai after borrowing it from the gentleman, and proceeded.) There is therefore, left no room for doubt that, the sale deed dated fist March 1921 (Ex. B4) is really benami in the name of M. Jagannath for defendant 2 and we hold accordingly. 21. Sixth point.--Could the plaintiff-respondent get a decree on the basis of possessory title of Mt Rajeshwari Debi, if established? On the point of possessory title we may state the position stands thus. Mt. Rajeshwari Debi who had transferred the property in favour of the plaintiff-respondent was herself examined as a witness on behalf of the plaintiff in this case. Her evidence will, be found to be printed on P.R. 15 and subsequent pages. She stated clearly in her evidence that the grove came into, her possession after the death of her mother-in-law, and that after her death, she went only twice to Lakhimpur to see the grove. Daring these two visits she said she had brought certain f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value from an ostensible owner? The learned Subordinate Judge has given a finding on this point in favour of the plaintiff-respondent. After a consideration of all the facts of the case we however, do not find ourselves in a position to agree with his finding on this point. In this connexion the learned advocate for the plaintiff-respondent principally relied upon Ex. 18 which is an application filed on behalf of Babu Bishunath Prasad Singh during the course of mutation proceedings on 16th December 1920. In that application he referred to the mutation case which was then pending in the revenue Court between Babu Khush Waqt Rai, defendant 2 and Mt. Raieshwari Debi, the daughter-in-law of Babu Bansi Lal Singh and clearly stated that he was the nephew and the next reversioner of Babu Bansi Lal Singh and was as such entitled that his name should be entered in the Government papers along with that of Rajeshwari Debi. A great deal of reliance was placed upon the request of Babu Bishunath Prasad Singh contained in this application to the effect that mutation in his name was to be made but jointly with Rajeshwari Debi. The argument advanced was to the effect that if in such circumstances t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; provided that the transferee after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. 24. It would appear from the terms of the above section that in order to apply Section 41 to the facts of a particular case it must be shown (1) that the person who transfers the property is the ostensible owner of such property with the consent express or implied, of the real owner; (2) that the transfer must have been made for consideration, and (3) that the transferee must have taken the transfer after taking reasonable care to ascertain the title of the transferer and must have acted in good faith. 25. Applying these principles to the facts of the present case we find that the first element of ostensible ownership of the transferer of the plaintiff-respondent with the consent, express or implied of Babu Bishunath Prasad Singh who is the real owner of the property has not been made out. It is no doubt true that the transfer in favour of the plaintiff-respondent by Mt. Rajeshwari Debi was a transfer for a consideration. We have, however, to see whether the plaintiff respondent took the transfer after taking reasonable care to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u female he must be expected to take good care to ascertain as to whether the female had title to the property. It is a settled rule of Hindu Law that a female cannot succeed to any property except in the capacity of a widow or a daughter or a mother and in all such cases she possesses only a life estate. A transferee from a Hindu widow cannot therefore, be permitted to plead against the reversioner the bar of Section 41, T.P. Act. As an authority for this proposition we would refer to a recent case decided by their Lordships of Allahabad High Court and reported in Shib Deo Misra v. Ram Prasad AIR1925All79 . We are, therefore, of opinion that, the plaintiff-respondent cannot be held to have taken reasonable care to ascertain the title of his transferrer. 28. We might refer in. this connexion to a very pertinent case decided by their Lordships of the Allahabad High Court and reported in Pateshri Partab Narain Singh v. Nageshar Pershad Pande [1911] 8 A.L.J. 358. In this case a widow succeeded to the property of her husband and on her death a person alleging himself to be next reversioner took possession and he borrowed money on the security of the property and thereby paid the deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a position to defeat the title of the real owner. 29. This case was taken in appeal to the Privy Council and the judgment of their Lordships of the Privy Council will be found to be reported in Nageshar Prasad Pande v. Pateshri Partab Narain Singh A.I.R. 1915 P.C. 103. Their Lordships observed that the judgment of the High Court was so satisfactory and sufficient that they-did not wish to say anything further. We are, therefore, of opinion, that applying the principle laid down in the above case to the facts of the case before us the plaintiff-respondent is not entitled to the protection provided for under Section 41, T.P. Act. 30. Eighth point--Was defendant 2 entitled to any compensation in case the plaintiff be found entitled to a decree? In face of our findings on the above issue it is not necessary that we should give any finding on this point. If we were, however, called upon to give our finding on this point we would agree with the finding of the learned Subordinate Judge on on issue 9. His finding in respect of this-matter is to the effect that the plaintiffs were held to be entitled to this property on payment of ₹ 1,500 to the defendants for compensation on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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