When suit for possession by heir of deceased hindu woman having absolute right in property will not be barred by limitation?

It was submitted on behalf of the appellants that Anandibai became entitled to possession of the property on the death of Shakuntalabai in the year 1962. The name of Chimasaheb, original defendant, was mutated and possession of Chimasaheb became adverse w.e.f. the date of death of Shakuntalabai in the year 1962. Thus the suit preferred by the plaintiffs in the year 1979 beyond a period of 12 years, was hopelessly barred by limitation. We are unable to accept the submission as Explanation (b) toArticle 65 of the Act is applicable only in the case where property is not claimed through the female but independently of woman who has died. The word “entitled” contained in Explanation (b) to Article 65 clearly means a person is entitled independently of the right of the Hindu or Mohammedan female. In case she is absolute owner Article 65(b) will have no application. In other words, it is necessary to trace the right to someone else and not to the Hindu or Mohammedan female, as the case may be. In the instant case, Shakuntalabai, daughter of Shankara Rao became absolute owner of the property on 6.2.1958 and on her death on 1.10.1962, the right accrued to Anandibai on the basis of inheritance made from Shakuntalabai who was the owner of the ½ share in question. When the property is claimed from a woman, Hindu or Mohammedan, who was the full owner, it could not be said that Anandibai or the plaintiffs became entitled to the property independently of the rights of female i.e. Shakuntalabai. Thus the suit filed by such heir of female for separate possession/partition would not be governed by Explanation (b) to Article 65. In such a case limitation would not commence as per Explanation (b) toArticle 65 on death of female Hindu. However, the starting point of limitation for computation of 12 years would be the date of start of adverse possession otherwise.

9. In Hashmat Begam & Anr. v. Mazhar Husain & Ors. (1888) ILR 10 All. 343, a Division Bench has opined that the word “entitled” has to be understood in Explanation (b) to Article 65 as meaning “entitled independently of the right of the Hindu or Muhammadan female”. Similar view has been taken in Ghisa Singh & Anr. v. Gajraj Singh AIR 1916 Oudh 50, Mohammad Yaqub v. Bijai Lal AIR 1918 Oudh 32, and Zarif un-nisa & Ors. v. Chaudhri Shafiq-uz-zaman & Ors. AIR 1923 Oudh 185. Explanation (b) to Article 65 is not applicable to a heir of Hindu or Mohammedan female who is full owner of the property as it could not be said that the person became entitled to the property independently of the right of the female but derives right through her. Hence, the suit by such a heir could not be said to be governed by Explanation (b) to Article 65 as held in Hashmat Begam & Anr. (supra), Ghisa Singh (supra), Mohammad Yaqub (supra), Zarif un-nisa & Ors. (supra); and Malkarjun Mahadev Belure v. Amrita Tukaram Dambare & Ors. AIR 1918 Bom. 142 on consideration of provisions of Article 141 of the Limitation Act.

13. In the instant case possession never became adverse to the plaintiffs. There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.

Reportable

Supreme Court of India

Bapusaheb Chimasaheb ... vs Mahesh Vijaysinha Rajebhosale & ... on 25 April, 2017

Bench: Arun Mishra, S. Abdul Nazeer

Citation:(2017)7 SCC 769

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Whether wife will acquire absolute right over property which was given to her in lieu of maintenance?

 Hence, applying the above principles enunciated, to answer the substantial question of law framed in this appeal, it could be safely said that the suit property was given to appellant No. 1 under Exhibit D. 5 in lieu of maintenance and there could be no restriction on the appellants' right over the property and it definitely did not require any registered conveyance in order that she could claim an absolute right over the property on such property being given in lieu of her maintenance.

11. Incidentally, in Tulasamma's case, the instrument, under which the property had been conferred on Tulasamma was circumscribed by certain conditions. The question whether those conditions restricted the right of the Tulasamma was covered under sub-section (2) of Section 14 was answered in the negative and the Court read down the conditions imposed and the property was treated as her absolute property. In the present case on hand, there are not even any such restrictions imposed and it was acted upon, in the mutation entries being effected on an application made by the plaintiff himself and therefore he was estopped from contending otherwise to defeat the right which is absolutely protected under Section 14 of the HS Act.

Consequently, the substantial question of law is answered in favour of the appellants and both the Courts below were wrong in their conclusions that the sale deed in favour of appellant No. 2 was null and void as it was on the basis of the opinion formed that appellant No. 1 did not have absolute right over the property. The substantial question of law stands answered in the vein aforesaid.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Regular Second Appeal No. 562/2005

Decided On: 19.07.2016

 Anusuya and Ors. Vs.  Mallayya

Coram:Anand Byrareddy, J.

Citation:AIR 2016 karnataka, 201

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