JUDGMENT
K.P. Mohapatra, J.
1. The appellant who was the sole defendant in the court below has assailed the judgment and decree passed by the learned Subordinate Judge, Bhawanipatna declaring title of respondent 1 (plaintiff 1) in the suit in respect of immovable property described in Schedules A and B of the plaint, confirmation of her possession over Schedule B land, directing recovery of possession of Schedule A land and granting mesne profits @ Rs. 326/-per year beginning from the year 1972.
2. The respondents jointly instituted the suit. Their case, in brief, is that Keshab had three sons namely Trilochan, Khageswar and Nilamani. Khageswar is the defendant-appellant. Respondent 2 is the natural born son of Trilochan and respondent 1 was the legally married wife of Nilamani. The three brothers named above effected partition of joint family property inherited from their father Keshab. In the said partition 19.06 acres of cultivable land described in the Schedule A and 0.23 acres of homestead land consisting of a house described in Schedule B of the plaint excluding some other lands which had been transferred fell to the share of Nilamani. As he had no children pf his own, Nilamani adopted respondent 2 as his son, but died very early in the year 1960. After his death, the suit property was inherited by respondents and they were in peaceful-possession thereof. In October, 1972 however the appellant threatened them with dispossession and so respondent 2 initiated a proceeding under Section 145 of the Cri. P.C. in which the appellant took the plea that he had purchased the suit land and was in possession thereof. The Executive Magistrate by order dt. 24-9-1973 declared appellant’s possession and directed delivery of possession to him. That is how the respondents instituted the suit claiming reliefs for title, confirmation of possession, recovery of possession and mesne profits.
3. The appellant in his written statement stated that respondent 1 was not the legally married wife of Nilamani, but was his concubine. He did not also adopt respondent 2 as his son who was the only son of Trilochan. Nilamani died in the year 1959-60 leaving behind the suit property and his widow mother. After his death, respondent 1 married one Daya Sunari of Lakhapadar and lived with him as his second wife for about two years and then came away to live with her parents. Thereafter, she married one Prabhakar Payasingh and since then has been living with him as his legally married wife in village Kandel. It is further averred that there was in fact, a partition amongst three brothers, but as Nilamani was of tender age, he re-united with the appellant and continued to live jointly with him till his death, whereafter, his widow mother continued to live with him jointly till she died in the year 1969. While alive, for the purpose of his treatment, Nilamani had sold lands in favour of the appellant by two sale-deeds dt. 11-2-1959 and 19-2-1959 to meet the expenses of his treatment. Thus he was in exclusive and continuous possession of the suit property since 1959-60 and has acquired title in respect thereof. The Executive Magistrate was correct in declaring his possession in the, proceeding under Section 145 of the Cri. P.C. Therefore, the respondents are neither entitled to declaration of title, possession nor . mesne profits.
4. The learned Subordinate Judge held
that respondent 1 was the legally married
wife of Nilamani, Respondent 2 was not his
adopted son, Nilamani did not re-unite to live
jointly with the appellant who did not acquire
title in respect of the suit property. On the
other hand, respondent 1 being the widow of
Nilamani has title and possession over the
suit land. Having found as above, the learned
Judge declared title of respondent 1 in respect
of the suit property and granted
consequential reliefs of confirmation of
possession, recovery of possession and mesne
profits.
5. Mr. K. N. Jena, learned counsel appearing for the appellant, urged that respondent 1 was not the legally married wife of Nilamani, but was his concubine Therefore she is not entitled to inherit the property left by Nilamani. In view of this challenge, it is necessary to scrutinise the evidence adduced by the parties. P.W. 1 stated that after the death of his first wife, Nilamani married respondent 1 according to social custom. A Brahmin priest who is since dead performed the marriage. He was present when the marriage ceremony was performed. Nilamani and respondent No. 1 lived for long as husband and wife. After death of Nilamani, respondent 1 is living in the same house and possessing the lands left by her husband. P.W. 2 is the father of respondent 1. He stated that he gave his daughter in marriage to Nilamani. The marriage was performed according to social custom. A child was born to them, but died. P.W. 3 is a cousin of Nilamani. He stated that Nilamani married respondent No. 1 and both of them lived as husband and wife. A male child was also born to them, but he died. He specifically stated that respondent No. 1 was not the concubine of Nilamani. P.W. 4 is respondent 1 herself. She stated that she was married to Nilamani and both of them led a conjugal life. A male child was born to them, but he died. She denied that she was the concubine of Nilamani, P.W. 5 is respondent 2 who claimed to be the adopted son of Nilamani. He stated that Nilamani married respondent 1 and they lived as husband and wife. D.W. 1 stated that respondent No. 1 was the concubine of Nilamani, but not the married wife. But he admitted in cross-examination that Nilamani and respondent No. 1 lived as husband and wife. D.W. 2 stated that respondent No. 1 was concubine of Nilamani, but not the married wife. She lived with him for 15 or 16 years. D.W. 3 is the appellant. He stated that respondent 1 is the daughter of the maternal uncle of Nilamani. She voluntarily came and became his concubine.
6. The aforesaid evidence indicates that Nilamani and respondent 1 lived together as husband and wife for a pretty long time. They were recognised as such not only by close relations, but also by persons of the locality. There is also good evidence that Nilamani married respondent No. 1 according to social custom. In such circumstances, legal and valid marriage between the two, as well as relationship of husband and wife must have to be presumed. In connection with the legal principle of presumption with regard to validity of marriage, a large number of decisions were cited at the Bar, but I would refer only three decisions reported in AIR 1929 PC 135, Mohabbat Ali Khan v. Muhammad Ibrahim Khan, AIR 1952 SC 2311 Gokal Chand v. Pravin Kumari and AIR 1978 SC 1557, Badri Prasad v. Dy. Director of Consolidation. It was held by their Lordships of Privy Council in the case of Mohabbat Ali Khan that law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years. Fazl Ali, J, speaking for the Court in the case of Gokal Chand held that continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken that presumption, the Court cannot ignore them. Their Lordships of the Supreme Court in the case of Badri Prasad held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. These principles have consistently been followedbyall Courts in India including our own in AIR 1951 Orissa 337, Subarna Bissoiani v. Arjuno Bissoi.
7. In view of the evidence and the legal principles, I uphold the finding of the learned Subordinate Judge that respondent No. 1 was the legally married wife of Nilamani.
8. The next contention of Mr. K. N. Jena was that Nilamani died in the year 1959-60, Soon after his death, respondent No. 1 first re-married one Daya Sunari of Lakhapadar and thereafter, she re-married one Prabhakar Payasingh of Kandel through whom she begot children. As she severed all her connections with the family of Nilamani by re-marriage, she was not entitled according to law to succeed to any property left by him. The contention of Mr. S. Misra (2) was that according to Section 14(1) of the Hindu Succession Act, the property which vested in respondent 1 absolutely could not be divested after remarriage, if any.
9. There was some controversy as to whether respondent 1 remarried. But P. W. 2, the father of respondent 1 admitted in cross-examination that the latter was living in the house of Prabhakar Payasingh for the last 5 years and had begotten three children through her. P.W, 4, respondent No. 1 herself admitted that she had begotten children through Prabhakar Payasingh who is her present husband. In view of the aforesaid admission, there is hardly any scope to disbelieve the fact that respondent 1 after becoming widow on the death of her husband Nilamani, re-married Prabhakar Payasingh and begot children through him.
10. The lawhas now become settled that the estate taken by a female Hindu under Section 14(1) of the Hindu Succession Act is an absolute one and is not defeasible and its ambit cannot be cut down by any text or rule of Hindu law or by any presumption or any fiction under that law. The property possessed by a female Hindu as contemplated in the section is clearly the property to which she has acquired some kind of title and she becomes the full owner of such property. In this connection, the contention of Mr. Jena to the effect that even though the settled position of law is as above, yet after remarriage a widow is divested of the property should be noticed. In support of his contention he placed reliance on AIR 1976 SC 2595, Smt. Kasturi Devi v. Dy. Director of Consolidation in which Hon’bte Fazl Ali, J. speaking for the Court made a lucid exposition of Hindu law with regard to inheritance with specific reference to unchastity and re-marriage of a widow mother. His Lordship held :
“…..Mulla in his ‘Hindu Law’, 14th. Edn., while describing the incidents of a mother regarding inheritance under clause (iii) observed at page 116 as follows : —
(iii) Unchastity and remarriage –Unchastity of a mother is no bar to her succeeding as heir to her son nor does remarriage constitute any such bar”.
A large number of authorities have been cited in support of this view. We find ourselves entirely in agreement with this view. Our attention has not been invited to any text of the Hindu Law under which a mother could be divested of her interest in the property either on the ground of unchastity or remarriage. We feel that application of the bar of inheritance to the Hindu widow is based on the special and peculiar, sacred and spiritual relationship of the wife and the husband. After the marriage, the wife becomes an absolute partner and an integral part of her husband and the principle on which she is excluded from inheritance on re-marriage is that when she relinquishes her link with her husband even though he isdead and enters a new family, she is entitled to retain the property inherited by her. The same, however, cannot be said of a mother. The mother is in an absolutely different position and that is why the Hindu Law did not provide that even the mother would be disinherited if she remarried.”
Mr. Jena however cannot take advantage of this decision because, although it exposed the Hindu Law as it stood, there was no reference to Section 14(1) and other provisions of Hindu Succession Act. On the other hand, there are direct decisions of this Court laying down the proposition that once property of deceased husband has devolved on the widow after coming into force of Hindu Succession Act she acquires an absolute interest in the property under Section 14(1) and cannot be divested of the same even after her re-marriage with some other person. The decisions were rendered by Section Acharya, J and reported in AIR 1977 Orissa 142, Harabati v. Jasodhara Debi and by a Division Bench consisting of B. K. Behera and R. C. Patnaik, JJ. and reported in AIR 1987 Orissa 11, Sulochana Dei v. Khali Dei. In AIR 1971 Bom 413, Pandurang Narayan Salunke v. Sindhu, Chandrachud, J. (as his Lordship then was) spoke for the Division Bench and held that a Hindu widow who has inherited the property from her deceased husband and who becomes its absolute owner after commencement of the Hindu Succession Act does not on her re-marriage forfeit her right to sell the property. Making reference to AIR 1970 SC 1730, Punithavalli Ammal v. Ramalingam it was further held that the rights conferred on a Hindu female under Section 14(1) constitute a clear departure from the Hindu law, texts or rules and that from a plain reading of that section it is clear that the estate taken by Hindu female under it is, an absolute one and is not defeasible under any circumstances. Similar views were taken in AIR 1968 Raj 139, Mst. Bhuri Bai v. Mst. Charhpi Bai, AIR 1971 Mad 453, Chinnappavu Naidu v. Meenakshi Ammal, and AIR 1972 Gauhati 107, Annapurna Chakrabarty v. Kalpana Debi. In view of the principles laid down in the aofresaid decisions, it is clear that even after remarriage to another person in a different family a widow having acquired absolute interest in the property of her deceased husband is not divested of the same.
11. Nilamani died in 1959-60 leaving behind his widow-respondent 1 and his widow mother. By operation of Section 8 read with Sections 9 and 10 of the Hindu Succession Act, respondent No. 1 and the widow mother of Nilamani being Class-I heirs succeeded simultaneously and were entitled to half shares each in the immovable property of Nilamani. Even after re-marriage with Prabhakar Payasingh, respondent No. 1 shall be entitled to retain her half share which she had inherited absolutely. The widow mother of Nilamani died in the year 1969. She had also succeeded to half of the property left by Nilamani as the fullowner. After her death in 1969 the property she had acquired shall devolve on the heirs of her husband, i.e. father of Nilamani according to entry “b” of Section 15(1) of the Hindu Succession Act. The heirs of her husband who are long dead are undoubtedly heirs either of Class-I or Class-11 of the schedule under Section 8 of the Hindu Succession Act or any other provision thereunder. It may be clarified that these considerations have arisen because it was held by the learned Subordinate Judge that respondent No. 2 was not the adopted son of Nilamani and against this finding appeal or cross-objection has not been preferred. Therefore, the finding with regard to adoption has become final. It is further to be noted that in order that respondent No. 1 shall get her half share in the schedules A and B property of the plaint, there shall be a division in a final decree proceeding in which her half share shall be defined to facilitate delivery of possession in her favour. She shall also be entitled to half of the mesne profits decreed and to be recovered on payment of court-fees. So far as the half share of the widow mother of Nilamani is concerned, succession thereto shall have to be determined in a separate suit.
12. Mr. Jena urged that the appellant pleaded adverse possession and claimed title in respect of the suit property. He made reference to the averments in paras 6 and 11 of the appellant’s written statements. In these paragraphs although the appellant pleaded exclusive and undisturbed possession, he did not specifically state that his possession was adverse to that of the true owners. It is, therefore, not entirely correct to say that the appellant had pleaded adverse possession in respect of the suit property.
13. Any way. the question of possession being material, it is necessary to make a brief reference to the evidence adduced by the parties relating to it. P.W. 1 stated that respondent No. 1 was in possession of the disputed property. He was however unable to say about the details thereof obviously because he had no land near the suit land. P.W. 2, the father of respondent No. 1 stated that after death of Nilamani, respondent 1, widow mother of Nilamani and respondent No. 2 cultivated the suit land. He had, however, no idea about the details thereof. P.W. 3, a cousin of respondent No. 2 stated that after the death of Nilamani his mother and respondents cultivated the suit land. He was also unable to say a few particulars about the same. P.W. 4, respondent No. 1 stated that after death of her husband she and her mother-in-law looked after cultivation of the suit land. P.W. 5, respondent No. 2 similarly stated that after death of Nilamani, the suit land was cultivated by respondent 1, her mother-in-law and himself. On the side of the appellant, D.W. 1 stated that the appellant cultivated the lands of Nilamani who was staying with him till his death. He was unable to say about some descriptions of the suit land. D.W. 2 stated that Nilamani and his mother were living with the appellant. Nilamani and the appellant were cultivating the lands of the former. After his death, appellant alone cultivated the same. He admitted that his own land was at a distance of one mile from the suit land. He was unable to speak about the details thereof. D.W. 3, the appellant himself stated that he and his two brothers partitioned their lands in 1948. At that time Nilamani was aged about 18 or 19 years. So he continued to live with him and both of them jointly cultivated lands though they were separate in mess. After , death of Nilamani in 1959, his mother lived with him till 1969 when she died. The aforesaid evidence of the appellant himself will show that he pleaded re-union with Nilamani. He also made a specific statement of re-union in para 3 of his written statement. He specifically stated in the said paragraph that the mother of Nilamani continued to live with him jointly till her death in 1969. On his own showing therefore, the appellant was not in adverse possession of the suit property left by Nilamani, because Nilamani’s mother was living with him in jointness till 1969 and the suit was instituted in the year 1974 clearly within 12 years. The learned Subordinate Judge took into consideration the evidence of possession arid held that respondent No. 1 was in possession of the disputed property within 12 years prior to the institution of the suit. On review of the evidence, I am unable to arrive at a different conclusion. In any event, appellant’s case of adverse possession cannot be accepted and as respondent 1 has some evidence of possession, as well as title, her case cannot be thrown over board. It is needless to point out that even in respect of the widow mother of Nitamani, the appellant has no case of adverse possession, because on his own showing she must be deemed to be in joint possession till her death in the year 1969.
14. In the ultimate analysis, I record the following findings : —
(a) The respondent 1 has half share in the suit property described in Schs. A and B of the plaint. She is entitled to have it partitioned in a final decree proceeding. She is also entitled to recover half of the mesne profits decreed on payment of requisite court-fees.
(b) The other half of the suit property described in Schs. A and B of the plaint shall devolve on the heirs of Nilamani’s father by operation of Section 15 of the Hindu Succession Act. This shall however be determined in a separate suit to be filed by all or any of the heirs entitled to the share or a part thereof.
15. In the result, the appeal is dismissed subject to the claim of a share by the appellant, if any which shall be determined in a separate suit as indicated above. The decree passed by the learned Subordinate
Judge is modified to the extent that it shall be
a preliminary decree which shall give effect
to the findings and conclusions recorded
above. The parties shall bear costs of this
appeal.