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.   

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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

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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.

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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 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

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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.

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  Mysore  Hindu  Law

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Women’s Right Act, 1933 (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 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.   

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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].   

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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 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:

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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?

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

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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

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

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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.

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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 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

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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 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

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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  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

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- 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 Venkamma was a

daughter of Ramanna and whether she was alive when

Ramanna died having regard to Section 10(2)(g) of the

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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

question whether Venkamma was alive when Ramanna died

and materials in this regard were insufficient.

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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 regards widow’s estate, this

statement is found in Mulla Hindu Law, 23rd Edition.

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“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 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

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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  predicted  who  would  be  the  nearest

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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;

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(iii) daughters; (ix) daughters’ daughters;

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 21

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 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.

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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).

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

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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 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

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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 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.

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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 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

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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:-

Description of Suit Period  of Limitation

Time  from  which period begins to run

140. By a remainderman, a  reversioner  (other than  a  landlord)  or  a devisee,  for  possession of immovable property.  

Twelve years When his estate falls into possession.

141.  Like  suit  by  a Hindu  or  Muhammadan entitled  to  the possession  of  immovable property on the death of a  Hindu  or  Muhammadan female.

Twelve years When the female dies.

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

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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  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

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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. 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.”

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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.

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