Guramma Bhratar Chanbasappa Deshmukh
& ANR Vs. Malappa [1963] INSC 173 (19 August 1963)
19/08/1963 SUBBARAO, K.
SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1964 AIR 510 1964 SCR (4) 497
CITATOR INFO:
R 1966 SC 984 (8,9) RF 1967 SC 569 (9)
ACT:
Hindu Law-joint family-Manager, powers
of-Gifts of property to stranger and to daughter after marriage, validity ofAdoption-Whether
existence of son in embryo invalidates adoption-partition-Sudras of Bombay
Presidency-Share of adopted son vis-a-vis natural born son.
HEADNOTE:
'A' died on January 8, 1944. He left behind
him three wives and two widowed daughters, children of his predeceased wife.
The senior most widow filed a civil suit for
partition and possession of 1/6th share after setting aside the alienations
made by her husband on January 4 and 5, 1944.
It was alleged that at the time of the death
of 'A' his youngest wife was pregnant and that she gave birth to a male child
on October 4, 1944. On January 30, 1944, the senior most widow took her
sister's son in adoption. A few days before his death 'A' executed two deeds of
maintenance in favour of his two wives (defendant Nos. 1 and 2) and also
executed deeds of gift in favour of widowed daughter, a son of an illegitimate
son and a relative. Long before his death he also executed two deeds viz one a
deed of maintenance and a deed of gift in favour of the senior most widow (the
plaintiff). To this suit the two widows were made defendants 1 and 2; the
alleged adopted son, defendant 3, (1) A.I.R. 1960 Mad. 443.
(2) L. R. 63 I. A. 372.
(3) [1955] 2 S.C.R. 1140.
498 the alleged posthumous son, defendant 4;
and the alienees defendants 5 to 8. These two appeals arise out of the
certificate granted by the High Court.
Held (1) that the existence of a son in
embryo does not invalidate an adoption.
Narayana Reddi v. Varadachala Reddi, S. A.
No. 223 of 1859 M.S.D. 1859, P. 97, referred to.
Nagabhushanam v. Seshammagaru, (1878-81)
I.L.R. 3 Mad. 180 Shamvahoo v. Dwarakadas Vasanji, (1888) I.L.R. 12 Born. 202,
Daulat Ram v. Ram Lal, (1907) I.L.R. 29 All 310, approved.
(2)that the High Court was right in affirming
the alienations made in favour of the plaintiff and was equally justified in
setting aside the alienations made in favour of defendants 1 and 2. The former
documents were executed by "A" in 1937 and 1939 when he was the sole
surviving coparcenar whereas the latter documents were executed when he had
ceased to have that power because the malechild i.e., 4th defendant was already
conceived.
(3)that a managing member of the family has
power to, alienate for value joint family property either for family necessity
or for the benefit of the estate. The sole surviving member of a coparcenary
has an absolute power to alienate the family property, as at the time of
alienation there is no other member who has joint interest in the family. If
another member was conceived in the family or inducted therein by adoption the
power of the manager was circumscribed as aforesaid and if the alienations were
made by the manager or father for a purpose not binding on the estate, they
would be voidable at the instance of subsequently born son or adopted son.
Avdesh Kumar v. Zakaul Hassain, I.L.R. [1944]
All 612, Chandramani v. jambeswara, A.I.R. 1931 Mad. 550 and Bhagwat Prasad
Bahidar v. Debichand Bogra, (1941) I.L.R. 20 Pat.727, referred to.
(4) that a gift to a stranger of joint family
property by the manager of the family is void as he has not the absolute power
of disposal over the joint Hindu family property.
Partha Sarathi Pillai v. Tiruvengada, (1907)
I.L.R. 30 Mad.
340, referred to.
(5) that the Hindu Law texts conferred a
right upon a daughter or a sister, as the case may be, to have a share in the
family property at the time of partition. The right was lost by efflux of time.
But it became crystallized into a moral obligation. The father or his
representative can make a valid gift by way of reasonable provision for the
maintenance of the daughter, regard being had to the financial and other
relevant circumstances of the family.
By custom or by convenience, such gifts arc
made at the time of marriage, but the right of the father or his representative
to make such a gift is not confined to the marriage occasion. It is a moral
obligation and it continues to subsist till it is discharged Marriage is only a
customary occasion for such a gift. But the 499 moral obligation can be
discharged at any time, either during the life time of the father or
thereafter. Applying the aforesaid principles, the deed of gift made by father
to the daughter, i.e. 8th defendant in the present case, was within his right
and certainly reasonable.
Jinnappa Mahadevappa v. Chimmava, (1935) I.L
R. 59 Bom. 459, disapproved.
Vettorammal v. Poochammal, (1912) 22 M.L.J.
321, Kudutamma v. Narasimhacharyalu, (1907) 17 M.L.J. 528, Sundaramaya v. Seethamma,
(1911) 21 M.L.J. 695, Ramaswamy Aiyyar v. Vengidsami Iyer, (1898) I.L.R. 22
Mad. 113, Bachoo v. Mankorebai (1907) I.L.R. 31 Bom. 373, Ramalinga Annavi v. Narayana
Annavi, (1922) 49 I.A. 168, Sithamahalakshmamma v. Kotayya, (1936) 71 M.L.J.
259, Annamalai v. Sundarathammal, (1952) 2 M.L.J. 782 and Churaman Sahu v. Gopi
Sahu, (1910) I.L.R. 37 Cal. 1 approved.
(5) that the Hindu Law applicable to Sudras
applies to lingayats as well.
(6) that in Bombay Presidency the rule
accepted in Dattaka Chandrika has never been followed and the share of an
adopted son in competition with a natural born son among Sudras has always been
1/5th in the family property, i.e. 1/4th of the natural born son's share. The
rule in Dattaka Chandrika is that among Sudras an adopted son and an after born
natural son take equal share in the family property and it is followed in
Madras and Bengal provinces.
Tirkangauda Mallangauda v. Shivappa Patil,
I.L.R. 1943 Bom706, Gopal Narhar Safray v. Hanumant Ganesh Safray, (1879)
I.L.R. 3 Bom. 273, Gopalan v. Venkataraghavulu, (1915) I.L.R. 40 Mad. 632 and
Asita v. Nirode, (1916) 20 C.W.N. 901, referred to.
Arumilli Perrazu v. Arumilli Subbarayadu,
(1921) 48 I.A.
280, distinguished.
Giriapa v. Ningapa, (1892) I.L.R. 17 Bom. 100
and Tukaram Mahadu v. Ramachandra Mahadu, (1925) I.L.R. 49 Bom. 672, approved.
CIVIL APPELLATE JURISDICTION :Civil Appeals
Nos. 334 and 335 of 1960.
Appeals from the judgment and decree dated
16/17th August 1955 of the Bombay High Court in First Appeal No. 341 of 1950.
A. F. Viswanatha Sastri, M. Rajagopalan and
K. R. Chaudhri for appellants Nos. 1 and 3 (in C.A. No. 334/60) and respondents
Nos. 1 and 3 (in C.A. No, 335/60).
R. Gopalkrishnan, for appellants Nos. 4, 5
and 13 (in C.A. No. 334/1960) and respondents Nos. 4, 5 and 13 (in C.A. Nos. 335/60).
500 Naunit Lal, for appellants Nos. 6, 9 to
11 and 12 (in C.A. No. 334/60) and respondents Nos. 6, 9 to 11 and 12 (in C.A. No.
335/60).
N.C. Chatterjee, S. Venkatakrishnan and A. G.
Ratnaparkhi, for the respondents (in C.A. No. 334/60) and the appellants (in C.
A. No. 335/60).
August 19, 1963. The Judgment of the Court
was delivered by SUBBA RAO J.-These two appeals by certificate arise out of
Special Civil Suit No. 47 of 1946 filed by Nagamma, wife of Chanbasappa, for
partition and possession of one-sixth share in the plaint scheduled properties
with mesne profits.
Chanbasappa died possessed of a large extent
of immovable property on January 8, 1944. He left behind him three wives,
Nagamma, Guramma and Venkamma and two widowed daughters, Sivalingamma and
Neelamma, children of his predeceased wife. It is alleged that at the time of
his death Venkamma was pregnant and that she gave birth to a mate child on
October 4, 1944. It is also alleged that on January 30, 1944, Nagamma, the
senior most widow, took her sister's son, Malappa, in adoption. A few days
before his death, Chanbasappa executed gift and maintenance deeds in favour of
his wives, widowed daughter, a son of an illegitimate son, and a relative. Long
before his death, he also executed two deeds-one a deed of maintenance and
another a gift deed of some property in favour of Nagamma.
We shall deal with these alienations in
detail in appropriate places.
The plaintiff, one of the three surviving
widows of Chanbasappa, filed the aforesaid suit for recovery of her share after
setting aside the alienations made by her husband on. January 4 and 5, 1944. To
that suit, Guramma and Venkamma, the other two widows of Chanbasappa, were made
defendants 1 and 2; the alleged adopted son, defendant 3;
the alleged posthumous son, defendant 4; and
the alienees, defendants 5 to 8.
Defendant 3 naturally supported the
plaintiff, and the other defendants contested the suit. The. contesting
defendants denied the factum and validity of the adoption of defendant's by the
plaintiffs and they asserted that defendant 4 was the posthumous son of
Chanbasappa by Ven501 kamma, the second defendant. The alienees sought to
sustam.
the validity of the alienations in their
favour.
As many as, 12 issues were, framed in the
case, The learned Civil judge found that defendant 3 was taken in adaption by
the plaintiff on January 30, 1944, but, it was invalid in law; that. defendant
4 was born to defendant 2 by the deceased; that the plaintiff had. failed to
prove that the deeds executed by-Chanbasappa. on January 4, 1944, in favour of
defendants 2, 5, 6, 7 and 8 were vitiated by fraud; and that the plaintiff was
entitled to one-sixth share in the suit. property and for partition and
recovery of the same.
In the result he passed a decree for
partition and delivery of the plaintiff's one-sixth share in the property. He
also held that defendants 1 and 2 would each be entitled to onesixth; share and
that defendant 4 would be entitled to three-sixths share therein. He declared
that the deeds executed by the deceased in favour of the plaintiff as well as
in favour of the defendants were binding on the parties to the suit. He directed
an enquiry as to the future mesne profits from the date of the suit. The
plaintiff and defendant 3 preferred an appeal to the High Court, being First
Appeal No.341 of the 1950 against the decree of the Civil Judge insofar as it
went against them. The High Court agreed with the learned Civil Judge that
defendant 4 was the posthumous son of the deceased by the second defendant; it
accepted the finding of the learned Civil Judge that the adoption took place;
but it also held that it was valid in law. It declared that the deeds executed
by the deceased on January 4 and 5, 1944 in favour of defendants 6, 7 and 8
were invalid as also the gift over in favour of defendant 5.
It held that, as defendants 1 and 2 were
getting a share in the property, they were not entitled to separate maintenance
given to them under the deed executed by their husband and directed that
property also should be brought into the hotchpots and divided between the
Parties. It declared that the plaintiff and defendants 1 and 2 were each entitled
to 4/27 share in the suit property, that defendant 3 was entitled to 1/9 share
therein, and defendant 4 was entitled to 4/9 share therein. It also gave
further directions in the matter of partition, costs and mesne profits.
Plaintiff and defendant 3 preferred Civil
Appeal No.
502 335 of 1960, and defendants 1, 2, 4 and
5, the legal representatives of defendant 7 and defendant 8 preferred Civil
Appeal No. 334 of 1960 to this Court against the decree of the High Court
insofar as it went against them.
At the outset it would be convenient to clear
the ground and focus our attention on the outstanding points of difference
between the parties. The factum of adoption of defendant 3 by the plaintiff is
accepted, but its legality is questioned. The fact that the 4th defendant is
the posthumous son of Chanbasappa by the 2nd defendant is also not disputed. In
the result the following questions only remain to be answered in the present
appeals: (1) Whether the adoption of defendant 3 by the plaintiff was void as
it was made at a time when defendant 4 had already been conceived. (2) Whether
the alienations in favour of defendants 2, 5, 6, 7 and 8 are binding on the
members of the family. And (3) What is the share of an adopted soil of a sudra
in competition with the natural born son? Mr. Viswanatha Sastri, appearing for
defendants 1 and 4 (Appellants 1 and 3 in Civil Appeal No. 334 of 1960)
contends that the adoption of defendant 3 was void inasmuch as at the time of
the adoption defendant 4 had been conceived. He presses on us to extend the
legal position, by analogy, of the right of a son in the womb at the time his
father made an alienation of a family property to set aside that alienation, to
that of an adopted son in similar circumstances.
The Hindu law texts do not throw much light
on the subject.
Dattaka Chandrika and Dattaka Mimamsa are the
treatises specially composed on the subject of adoption. Nanda Pandita cites
the following texts of Atri and Cankha in Dattaka Mimasa:
"By a man destitute of son only must a
substitute for the same be adopted". (Atri).
"One to whom no son has been born, or
whose son has died having fasted, etc " (Cankha).
In section 13, Nanda Pandita explains that
the term "destitute of a son" must be understood to include a son's
sort and grandson. In Dattaka Chandrika the relevant part of the text of Cankha
is stated thus:
"One destitute of a son"-see s. I,
4.
"One having no male issue"-see s.
II. 1.
503 These texts ex facie do not equate a son
in existence with a son in the womb. If the authors of the said treatises
intended to equate the one with the other, they would not have left it in
doubt, for such an extension of the doctrine would introduce an element of
uncertainty in the matter of adoption and defeat, in some cases, the religious
object underlying adoption. It is now well settled that the main object of
adoption is to secure spiritual benefit to the adopter, though its secondary
object is to secure an heir to perpetuate the adopter's name. Such being the
significance of adoption, its validity shall not be made to depend upon the
contingencies that may or may not happen. It is suggested that an adoption
cannot be made unless there is certainty of not getting a son and that if the
wife is pregnant, there is a likelihood of the adopter begetting a son and,
therefore, the adoption made is void. The texts cited do not support the said
proposition. Its acceptance will lead to anomalies. Suppose a husband who is
seriously ill and who had no knowledge of the pregnancy of his wife, makes an
adoption; in such an event, the existence of a pregnancy, of which he has no
knowledge, invalidates the adoption, whether the pregnancy turns out to be
fruitful or not. If he has knowledge of the pregnancy, he will not be in a
position to take a boy in adoption, though ultimately the wife may have an
abortion, or deliver a stillborn child or the child born may turn out to be a
girl. Further, as it is well settled law that a son includes a son's son and a
grandson of the son, the pregnancy of a son's widow or a grandson's widow, on
the parity of the said reasoning, will invalidate an adoption. We cannot
introduce such a degree of uncertainty in the law of adoption unless Hindu law
texts or authoritative decisions compel us to do so. There are no texts of
Hindu law imposing a condition of non-pregnancy of the wife or son's widow or a
grandson's widow for the exercise of a person's power to adopt. The decisions
of the High Courts on the subject discountenance the acceptance of any such
condition. But there is a decision of Sudr Adalut in Narayana Reddi v.
Vardachala Reddi(1), wherein it was observed that it was of the essence of the
power to adopt that the party adopting should be hopeless of having issue.
Mr. Mayne S.A. No. 223 of 1859, M.S.D. 1859,
p. 97.
504 commenting upon the said observation drew
a distinction between a husband taking a boy in adoption knowing that his wife
was pregnant and doing so without the said knowledge and stated:
"If a wife, known to be pregnant at the
time of adoption, afterwards brought forth a son it might fairly be held he was
then in existence to the extent of precluding an adoption...." A division
Bench of the Madras High Court in Nagabhushanam v. Seshammagaru(1) criticized
the opinion of the pandits as well as the observation of W. Mayne, and came to
the conclusion that an adoption by a Hindu with knowledge of his wife's
pregnancy was not invalid. The Bombay High Court in Shamavahoo v. Dwarkadas
Vasanji (2) accepted the said view.
A division Bench of the Allahabad High Court
in Daulat Ram v. Ram Lal(3) followed the Madras and Bombay decisions. No other
decision has been brought to our notice either taking a different view or
throwing a doubt thereon. All textbooks-Mayne, Mulla, Sarkar Sastri-accepted
the correctness of the said view without any comment.
Mr. Viswanatha Sastri contends that under the
Hindu law a son conceived or in his mother's womb is equal in many respects to
a son actually in existence in the matter of inheritance, partition,
survivorship and the right to impeach an alienation made by his father and
that, therefore, logically the same equation must hold good in the case of
adoption. When a son in his mother's womb is equated with a son in existence
vis-a-vis his right to set aside an alienation or to reopen a partition, the
argument proceeds, the father cannot validly adopt, as from the date of conception
the son must be deemed to be in existence. But there is an essential
distinction between an alienation, partition and inheritance on the one hand
and adoption on the other: his right to set aside an alienation hinges on his
secular right to secure his share in the property belonging to the family, as
he has a right by birth in the joint family property and transactions effected
by the father in excess of his power when he was in embryo are voidable at (1)
(1978-81) I.L.R. 3 Mad. 180.
(2) (1888) I.L.R. 12 Bom. 202.
(3) (1907) I.L.R. 29 AU. 310.
505 his instance: but, in the case of
adoption, it secures mainly spiritual benefit to the father and the power to
adopt is conferred on him to achieve that object. The doctrine evolved wholly
for a secular purpose would be inappropriate to a case of adoption. We should
be very reluctant to extend it to adoption, as it would lead to many anomalies and
in some events defeat the object of the conferment , of the power itself. The
scope of the power must be reasonably construed so as to enable the donee of
the power to discharge his religious duty. We, therefore, hold that the
existence of a son in embryo does not invalidate an adoption.
The next contention of Mr. Viswanatha Sastri
is that the High Court, having set aside the alienations made by Chanbasappa,
should have brought into hotchpot the property covered by the said alienations
for the purpose of partition. The particulars of the alienations may be noticed
at this stage.
---------------------------------------------------------Exhibit
Nature of Properties S. No. No. Date In favour of document comprised of
---------------------------------------------------------1. 3624-1-44 D-1
Guramma Deed of Pit. Sch. A.
maintenance 2. 3725-1-44 D-2 Venkamma Deed of
Pit. Sch. A.
maintenance & giftover to D-5 3.
3694-1-44 D-6 Imam Sahib Deed of Pit. Sch. A.
Gift.
4. 3704-1-44 D-7 Channappa Deed of Plt.Sch.A-3.
5. 3714-1-44 D-8 Neelamma Deed of
Plt.Sch.A-3.
maintenance 346 30-1-37 Plff. Nagamma Deed of
maintenance 347 14-2-39 Plff. Nagamma Deed of Gift.
----------------------------------------------------------33-2
S. C. India/64 506 This argument is based upon a misapprehension.The High
Court, having set aside the alienations, including those in favour of
defendants 1 and 2 directed the said property to be divided in accordance with
the shares declared by it.
This position is also conceded on behalf of
the plaintiff and defendant 3. We need not, therefore, pursue this matter.
Mr. K. R. Chaudhri, following Mr. Viswanatha
Sastri, further contends that the High Court went wrong in making a distinction
between the documents executed in favour of the plaintiff in that while it
confirmed the documents Exs. 346 and 347 executed in favour of the plaintiff,
it set aside the deeds executed in favour of defendants 1 and 2. There are no
merits in this contention. The documents executed in favour of the plaintiff
are Exs. 346 dated January 30, 1937 and 347 dated February 14, 1939. These two
documents were executed by Chanbasappa at a time when he was the sole surviving
coparcener, whereas he executed the documents in favour of defendants 1 and 2
-after the 4th defendant was conceived. The former were -executed when he had
absolute power of disposal, whereas the latter were executed when he had ceased
to have the said power. On the basis of this distinction the High Court rightly
set aside the alienations made in favour of defendants 1 and 2.
Mr. Naunit Lal, appearing for some of the
legal representatives of defendant 7 who are appellants 6, 9 to 11 and 12 in
Civil Appeal No. 334 of 1960 and respondents 6, 9 to 11 and 12 in Civil Appeal
No. 335 of 1960, contends that the gift deeds executed by, Chanbasappa in
favour of defendants 7 and 8 were binding on the members or' the family. The
High Court held that Chanbasappa could not have validly made these gifts of
immovable property of the joint family after the 4th defendant was conceived
and, therefore, they were void. Mr. Naunit Lal broadly contends that the
alienations effected by Chanbasappa were voidable only at the instance of the
4th defendant, who was in the womb on the date of the alienations and that as
he has chosen to adopt them, the third defendant, who was adopted subsequent to
the alienations, could not question their validity.
Before we advert to the legal aspects of the
argument, it may be stated at once that no question 507 of consent of the 4th
defendant can possibly arise in this case, as he was not born when the
alienations were made and he was a minor at the time the suit was filed. We
must, therefore, proceed on the basis that the alienations were made by one of
the members of the joint family without the consent of the other members of the
family. If so, at the time the alienations were made Chanbasappa had not the
absolute power to alienate the family property, but only a limited one to do so
for the purpose of necessity or benefit of the estate. The relevant principles
are well settled. A coparcener, whether he is natural born or adopted into the
family, acquires an interest by birth or adoption, as the case may be, in the
ancestral property of the family. A managing -member of the family has power to
alienate for value joint family property either for family necessity or for the
benefit of the estate. An alienation can also be made by a managing member with
the consent of all the coparceners of the family. The sole surviving member of a
coparcenary has an absolute power to alienate the family property, as at the
time of alienation there is no other member who has joint interest in the
family. If another member was in existence or in the womb of his mother at the
time of the alienation, the power of the manager was circumscribed as aforesaid
and his alienation would be voidable at the instance of the existing member or
the member who was in the womb but was subsequently born, as the case may be,
unless it was made for purposes binding on the member of the family or the
existing member consented to it or the subsequently born member ratified it
after he attained majority. If another member was conceived in the family or
inducted therein by adoption before such consent or ratification, his right to
avoid the alienation will not be affected: See Avdesh Kumar v. Zakaul
Hassain(1) Chandramani v. Jambeswara(2) ; and Bhagwat Prasad Bahidar v.
Debichand Bogra(3). In the instant case the impugned alienations were made at a
time when the 4th defendant was in the womb i.e., at a time when Chanabasappa
had only a limited right of disposal over the joint (1) I.L.R. [1944] All-612.
(2) A.I.R. 1931 Mad. 550.
(3) (1941) I.L.R. 20 Pat. 727.
508 family property. The 4th defendant being
in the womb, he could not obviously give his consent, nor ratify the
alienations before the adoption of the 3rd defendant took place and he was
inducted into the family. If the alienations were made by the father for a
purpose not binding on the estate, they would be voidable at the instance of
the 3rd or 4th defendant.
The next question is whether the two gifts
were binding on the family. We shall now take the two gift deeds Exs. 370 and
371 executed by Chanbasappa-the former in favour of the 7th defendant and the
latter in favour of the 8th defendant.
The High Court, agreeing with the learned
Civil Judge, set aside the gifts on the ground that the donor had no power to
make a gift of the family property. Learned counsel for the legal
representatives of the said defendants seeks to sustain the validity of the
said two gifts. We shall consider the validity of the two gift deeds
separately.
Ex. 370 dated January 4, 1944, is a gift deed
executed by Chanbasappa in favour of Channappa, the 7th defendant, in respect
of immovable property valued at Rs. 1,500/-. The donee was described as the
donor's relative. The gift was made in token of love for the services rendered
by the donee to the donor during the latter's lifetime. The gift was made, as
it was narrated in the document, out of love and affection for the donee. It is
contended that the said gift was for pious purposes and, therefore, valid in
law. Can it be said that a gift of this nature to a relative out of love and
affection is a gift for "pious purposes" within the meaning of that
expression in Hindu law? In Mitakshara, Ch. I, s. 1, v. 28, it is stated:
"Even a single individual may conclude a
donation, mortgage, or sale of immovable property, during a season of distress,
for the sake of the family and especially for pious purposes." In support
of his contention that pious purposes include a charitable purpose, learned
counsel relies upon certain passages in Mukherjea's "Hindu Law of
Religious and Charitable Trust", 2nd Edn. The learned author says at p.
12:
"In the Hindu system there is no line of
demarcation between religion and charity. On the other hand 509 charity is
regarded as part of religion.......
All the Hindu sages concur in holding that
charitable gifts are pious acts par excellence, which bring appropriate rewards
to the donor...............
The learned author proceeds to state, at p.
58 "Religious and charitable purposes have nowhere been defined by Hindu
lawyers. It was said by Sir Subrahmanya Ayyar J. in Partha Sarathi Pillai v.
Tiruvengada(1) that the expression "dharma" when applied to gifts
means and includes according to Hindu text writers, what are. known: as Istha
and Purtta works. As I have said already in the first lecture, no exhaustive
list of such works has been drawn up by the Hindu lawgivers, and they include
all acts of piety and benevolence whether sanctioned by Vedas or by the popular
religion, the nature of the acts differing at different periods of Hindu
religious history." The learned author defines the words Istha and Purtta
briefly thus, at p. 10:
"By Istha is meant Vedic sacrifices, and
rites and gifts in connection with the same; Purtta on the other hand means and
signifies other pious and charitable acts which are unconnected with any Srouta
or Vedic sacrifice." It may, therefore, be conceded that the expression
"pious purposes " is wide enough, under certain circumstances, to
take in charitable purposes though the scope of the latter purposes has nowhere
been precisely drawn. But what we are concerned with in this case is the power
of a manager to make a gift to an outsider of a joint family property. The
scope of the limitations on that power has been fairly well settled by the
decisions interpreting the relevant texts of Hindu law. The decisions of Hindu
law sanctioned gifts to strangers by a manager of a joint Hindu family of a
small extent of property for pious purposes. But no authority went so far, and
none has been placed before us, to sustain such a gift to a stranger however
much the donor was beholden to him on the ground that it was made out of
charity. It must be remembered that the manager has no absolute power of
disposal over joint Hindu family (1) (1907) I.L.R. 30 Mad. 340.
510 property. The Hindu law permits him to do
so only within strict limits. We cannot extend the scope of the power on the
basis of the wide interpretation given to the words "pious purposes"
in Hindu law in a different context. In the circumstances, we hold that a gift
to a stranger of a joint family property by the manager of the family is void.
The second document is Ex. 371, dated July 4,
1944. Under that document, Chanbasappa created a life-interest in a property of
the value of about Rs. 5,000/in favour of his widowed daughter, the 8th
defendant. In the document it is recited thus:
"You are my own daughter and your
husband is dead. After his death you have been living in my house only. For
your well being and maintenance during your life time I have already given some
property -to you. As the income from the said property is not sufficient for
your maintenance, you have asked me to give some more property for your
maintenance. I have therefore gladly agreed (to the same) and passed a deed of
maintenance in your favour regarding the below mentioned property and delivered
it to your possession to-day only." Under the said deed the daughter
should enjoy the property during her lifetime and thereafter it should go to
the 5th defendant. The gift-over would inevitably be invalid. But the question
is whether the provision for the daughter's maintenance during her lifetime
would also be invalid. The correctness of the recitals are not questioned
before us.
It is in evidence that the family possesses a
large extent of property, worth lakhs. The short question is whether the father
could have validly conferred a lifeinterest in a small bit of property on his
widowed daughter in indigent circumstances for her maintenance. It is said that
the Hindu law does not permit such a gift. In Jinnappa Mahadevappa v.
Chimmava(1), the Bombay High Court accepted that legal position. Rangnekar J.
held that under the Mitakshara school of Hindu law, a father has no right to
make a gift even of a small portion of joint family immovable property in
favour of his daughter, although it is made on the ground that she looked after
him in his (1) (1935) I.L.R. 59 Bom. 459, 465.
511 old age. The learned judge distinguished
all the cases cited before him on the ground that they were based upon long
standing customs and ended his judgment with the following observations :
"Undoubtedly, the gift is a small
portion of the whole of the property; but, if one were to ignore the elementary
principles of Hindu law out of one's sympathy with gifts of this nature, it
would be difficult to say where the line could be drawn, and it might give rise
to difficulties which no attempt could overcome." We agree with the
learned Judge that sympathy is out of place in laying down the law. If the
Hindu law texts clearly and expressly prohibit the making of such a gift of the
family property by the father to the widowed daughter in indigent
circumstances,, it is no doubt the duty of the Court to accept the law, leaving
it to the Legislature to change the law. We shall therefore, consider the
relevant Hindu law texts bearing on the subject.
At the outset it would be convenient to clear
the ground.
Verses 27, 28 and 29 in Ch. I, Mitakshara,
describe the limitations placed on a father in making gifts of ancestral
estate. They do not expressly deal with the right of a father to make provision
for his daughter by giving her some family property at the time of her marriage
or subsequently.
That right is defined separately by Hindu law
texts and evolved by a long catena of decisions, based on the said texts. The
relevant texts have been collected and extracted in Vettorammal v.
Poochammal(1). Section 7 of the Ch. I, Mitakshara, deals with provision for
widows, unmarried daughters etc. Placitum 10 and 11 provide for portions to
sisters when a partition is made between the brothers after the death of the
father. The allotment of a share to daughters in' the family is regarded as
obligatory by Vignaneswara. In Ch. I, s. 7 pp. 10 and 11, he says:
"The allotment of such a share appears
to be indispensably requisite, since the refusal of it is pronounced to be a sin."
He relies on the text of Manu to the effect that they who refuse to give it
shall be degraded: Manu Ch. I,s. 118. In Placitum 11, Ch. 1, withholding of
such a portion is (1) (1912) 22 M.L.J. 321.
512 pronounced to be a sin. In Madhaviya, pp.
41 and 42, a text of Katyayana is cited authorizing the gift of immovable
property by a father to his daughters beside a gift of movables upto the amount
of 2,000 phanams a year. In Vyavahara Mayukha, p. 93, the following text of
Brihaspati is also cited by the author of the Madhaviya to the same effect:
"Let him give adequate wealth and a
share of land also if he desires." Devala says:
"To maidens should be given a nuptial
portion of the father's estate"-Colebrooke's Digest, Vol. 1, p. 185. Manu
says:
"To the unmarried daughters by the same
mother let their brothers give portions out of their allotments respectively,
according to the class of their several mothers. Let each give one-fourth part
of his own distinct share and those who refuse to give it shall be degraded."
These and similar other texts indicate that Hindu law texts not only sanction
the giving of property to daughters at the time of partition or at the time of
their marriage, as the case may be, but also condemn the dereliction of the
said duty in unequivocal terms. It is true that these Hindu law texts have
become obsolete. The daughter has lost her right to a share in the family
property at the time of its partition. But though the right has been lost, it
has been crystallized into a moral obligation on the part of the father to
provide for the daughter either by way of marriage provision or subsequently.
Courts even recognized making of such a provision not only by the father but
also after his death by the accredited representative of the family and even by
the widow. The decision in Kudutamma v. Narasimhacharyalu(1) is rather
instructive. There, it was held that a Hindu father was entitled to make gifts
by way of marriage portions to his daughters out of the family property to a
reasonable extent. The first defendant was the half-brother of the plaintiffs
and the father of the 2nd defendant. After the death of his father and after
the birth of the 2nd defendant he for himself and as guardian of the 2nd
defendant executed a deed of gift, to the plaintiffs jointly, of certain
portions of the joint (1) (1907) 17 M.L.J. 528.
513 family property. The question was whether
that gift was good. It will be seen from the facts that the gift was made by
the brother to his half-sisters not at the time of their marriage but
subsequently. Even so, the gift was upheld.
Wallis J. in his judgment pointed out that
unmarried daughters were formerly entitled to share on partition and that
after-marriage they were entitled to an endowment and that though that right fell
into desuetude, a gift made to a daughter-was sustained by Courts as a
provision for the married couple. The learned judge summarized the position
thus, at p. 532:
"...... although the joint family and
its representative, the father or other managing member, may no longer be
legally bound to provide an endowment for the bride on the occasion of her
marriage, they are still morally bound to do so, at any rate when the
circumstances of the case make it reasonably necessary." If such a
provision was not made at the time of marriage, the learned Judge indicated
that such moral obligation could be discharged subsequently by a representative
of the family. To quote his observations-"Mere neglect on the part of the
joint family to fulfill a moral obligation at the time of the marriage, cannot,
in my opinion, be regarded as putting an end to it, and I think it continued
until it was discharged by the deed of gift now sued on and executed after the
father's death by his son, the 1st defendant who succeeded him as managing
member of the joint family.
Another division Bench of the Madras High
Court considered the question in Sundararamaya v. Seethamma(1) and declared the
validity of a gift of 8 acres of ancestral land by a Hindu father to his
daughter after marriage when the family was possessed of 200 acres of land. The
marriage took place about forty years before the gift. There was no evidence
that the father then had any intention to give any property to the daughter.
The legal position was thus expounded by the learned judges, Munro and Sankaran
Nair JJ.
"The father or the widow is not bound to
give any property. There may be no legal but only a moral obligation. It is
also true that in the case before us ---the father did not make any gift and
discharge that (1) (1911) 21 M.L.J. 695, 699.
514 moral obligation at the time of the
marriage.
But it is difficult to see why the moral
obligation does not sustain a gift because it was not made to the daughter at
the time of marriage, but only some time later. The moral obligation of the
plaintiff's father continued in force till it was discharged by the gift in
1899." Another division Bench of the Madras High Court in Ramaswamy Ayyer
v. Vengidusami Ayyer(1) held that a gift of land made by a widow, on the occasion
of her daughter's marriage, to the bridegroom was valid. Sundara Aiyer and
Spencer JJ.
held in Vettorammal v. Poochammal(2) that a
gift made by a father to his own daughter or by a managing member to the
daughter of any of his coparceners, provided it be of a reasonable amount, is
valid as against the donor's son.
After elaborately considering the relevant
texts on the subject and the case law bearing thereon, the learned Judges came
to the conclusion that the plaintiff's father was competent to make a gift of
ancestral property to the 1st defendant, his brother's daughter. The learned
judges also held that the validity of the gift would depend upon its
reasonableness. The legal basis for sustaining such a gift was formulated by
the learned Judges at p. 329 thus:
"No doubt a daughter can no longer claim
as of right a share of the property belonging to her father, but the moral
obligation to provide for her wherever possible is fully recognized by the
Hindu community and will support in law any disposition for the purpose made by
the father." In Bachoo v. Mankorebai(3), the Judicial Committee held that
a gift by a father, possessed of considerable ancestral property, of a sum of
Rs. 20,000/to his daughter was valid. No doubt this was not a gift of immovable
property;
but there is no difference in the application
of the principles to a gift of immovable property as illustrated by the
decision of the Judicial Committee in Ramalinga Annavi v.
Narayana Annavi(4). There, both the
Subordinate judge and the High Court held that the assignments by a member of a
joint Hindu family to his daughters of a (1) (1898) I.L.R. 22 Mad. 113. (2)
(1912) 22M. L.J. 321.
(3) (1907) I.L.R. 31 Bom. 373. (4) (1922) 49
I.A. 168, 173.
515 sum of money and of a usufructuary
mortgage were valid, as they were reasonable in the circumstances in which they
were made. The Privy Council confirmed the finding of the High Court. In
considering the relevant point, Mr. Ameer Ali observed at p. 173 thus:
"The father has undoubtedly the power under
the Hindu law of making, within reasonable limits, gifts of movable property to
a daughter. In one case the Board upheld the gift of a small share of immovable
property on the ground that it was not shown to be unreasonable."'
Venkataramana Rao J. in Sithamahalakshmamma v.
Kotayya(1) had to deal with the question of
validity of a gift made by a Hindu father of a reasonable portion of ancestral
immovable property to his daughter without reference to his son. Therein, the
learned judge observed at p. 262:
"There can be no doubt that the father
is under a moral obligation to make a gift of a reasonable portion of the
family property as a marriage portion to his daughters on the occasion of their
marriages. It has also been held that it is a continuing obligation till it is
discharged by fulfillment thereof. It is on this principle a gift of a small
portion of immovable property by a father has been held to be binding on the
members of the joint family." Adverting to the question of the extent of
property he can gift, the learned Judge proceeded to state:
"The question whether a particular gift
is reasonable or not will have to be judged according to the state of the
family at the time of the gift, the extent of the family immovable property,
the indebtedness -of the family, and the paramount charges which the family was
under an obligation to provide for, and after having regard to these
circumstances if the gift can be held to be reasonable, such a gift will be
binding on the joint family members irrespective of the consent of the members
of the family." This decision was followed by Chandra Reddy J. of the,
Madras High Court in Annamalai v. Sundarathammal(2)..
(1) (1936) 71 M.L.J. 259.
(2) (1952) 11 M.L.J. 782, 784.
516 A division Bench of the Calcutta High
Court in Churaman Sahn v. Gopi Sahu(1) held that it was competent to a Hindu
widow governed by the Mitakshara law to make a valid gift of a reasonable
portion of immovable property of her husband to her daughter on the occasion of
the daughter's gowna ceremony. The learned Judges have followed some of the
aforesaid decisions of the Madras High Court.
It is, therefore, manifest that except the
decision of a single Judge of the Bombay High Court in Jinnappa Mahadevappa v.
Chimmava(2) all the decisions on the subject recognize the validity of a gift
of a reasonable extent of joint family property to a daughter under varying
circumstances. The observations of Rangnekar J. that Hindu law does not
sanction the validity of such a gift and that the said decisions were based
only on long standing custom do not appear to be correct. The Hindu law texts
as well as decided cases support such a gift.
The legal position may be summarized thus:
The Hindu law texts conferred a right upon a daughter or a sister, as the case
may be, to have a share in the family property at the time of partition. That
right was lost by efflux of time.
But it became crystallized into a moral
obligation. The father or his representative can make a valid gift, by way of
reasonable provision for the maintenance of the daughter, regard being had to
the financial and other relevant circumstances of the family. By custom or by
convenience, such gifts are made at the time of marriage, but the right of the
father or his representative to make such a gift is not confined to the
marriage occasion. It is a moral obligation and it continues to subsist till it
is discharged. Marriage is only a customary occasion for such a gift. But the
obligation can be discharged at any time either during the lifetime of the
father or thereafter. It is not possible to lay down a hard and fast rule,
prescribing the quantitative limits of such a gift as that would depend on the
facts of each case and it can only be decided by Courts, regard being had to
the overall picture of the extent of the family estate, the number of
daughters' to be provided for and other paramount charges and other similar
circumstances. If the 37 Cal. 1. (2) (1935) I.L.R. 59 Bom. 459.
517 father is within his rights to make a
gift of a reasonable extent of the family property for the maintenance of a
daughter, it cannot be said that the said gift must be made only by one
document or only at a single point of time. The validity or the reasonableness
of a gift does not depend upon the plurality of documents but on the power of
the father to make a gift and the reasonableness of the gift so made. If once
the power is granted and the reasonableness of the gift is not disputed, the
fact that two gift deeds were executed instead of one, cannot make the gift any
the less a valid one.
Applying the aforesaid principles, we have no
doubt that in the present case, the gift made by the father was within his
right and certainly reasonable. The family had extensive properties. The father
gave the daughter only life-estate in a small extent of land in addition to
what had already been given for her maintenance. It has not been stated that
the gift made by the father was unreasonable in the circumstances of the case.
We, therefore, hold that the said document is valid to the extent of the right
conferred on the 8th defendant.
Mr. Chatterjee, learned counsel for the
respondents in Civil Appeal No. 334 of 1960 and appellants in Civil Appeal No.
335 of 1960, contended on behalf of the
adopted son that in a competition between an adopted son and a subsequent born
natural son among Sudras, each takes an equal share in the family property. A
controversy was raised before us on the question whether the Lingayats, to
which community the parties 'belong are Sudras or dwijas. The Bombay High Court
in Tirkangauda Mallanagauda v. Shivappa Patil(1), after considering the
relevant authorities on the question, held as follows, at p. 742:
"Whether the Lingayats are Hindus or
not, we are concerned to see what is the law by which they are governed, and
ever since the ruling in Gopal Narhar Safray v. Hanumant Ganesh Safray ( 2),
they have been subject to Hindu law as applied to Shudras." In this case
it is not necessary to express our opinion on the question whether Lingayats
are Sudras or not, for we proceed on the assumption that they are, or at any
rate that (1) I.L.R. [1943] Bom. 706.
(2) (1879) I.L.R. 3 Bom. 273.
518 the Hindu law applicable to Sudras
applies to them.
In Arumilli Perrazu v. Arumilli Subbrayadu(1)
it was held by the judicial Committee that among Sudras in the Madras
Presidency an adopted son on partition of the family property would share
equally with a son or sons born to the adoptive father after the adoption. The
Judicial Committee based its conclusion mainly on the following ground:
"........ the rule of the Dattaka
Chandrika that on a partition of the joint family property of a Sudra family an
adopted son is entitled to share equally with the legitimate son born to the
adoptive father subsequently to the adoption had been accepted and acted upon
for at least more than a century in the Presidency of Madras, as the law
applicable in such cases to Sudras until the law on that subject was disturbed
in 1915 by the decision of the High Court at Madras in Gopalam v.
Venkataraghavulu(2)." It will be seen
that the decision rested on the fact that Dattaka Chandrika was the recognized
authority in the Madras Presidency and that the rule that an adopted son and an
afterborn natural son take in equal shares the family property had been
followed for over a century. On this decision Sarkar Sastri commented in his
valuable book on Hindu Law, 8th Edn., at p. 211, thus:
"Another novel rule enunciated for the
first time by the Dattaka Chandrika is that a Sudra's adopted son should share
equally with his begotten son, on the ground that a Sudra's illegitimate son
may by the father's choice get an equal share with his legitimate sons.
It is difficult to understand the cogency of
this argument. This rule, however has been followed by the Calcutta and Madras
High Courts, for this book is said to be of special authority in Bengal and
Madras. But the Madras High Court, after consideration of the authorities on
the subject, came to the conclusion, following an earlier decision of the same
Court, that an adopted son of a Sudra was entitled to only a fifth share of
what a natural born son gets. But in the case (1) (1921) 48 I.A. 280.
(2) (1915) I.L.R. 40 Mad. 632.
519 of Arumilli Perrazu(1) the above decision
has been overruled and it has been finally settled by the Privy Council that an
adopted son shares equally on partition with an after-born son of a
Sudra." In Bengal where Dattaka Chandrika is given same importance as in
the Madras Presidency, the same rule has been followed in the matter of
partition between an adopted son and an after-born natural son among Sudras:
see Asita v. Nirode(2).
It is not necessary to pursue that matter. It
may be accepted that in Bengal and Madras the said rule governs the shares
between them. But in Bombay, Dattaka Chandrika is not given the place of honour
as in Madras and Calcutta. As early as 18_2, a division Bench of the Bombay
High Court in Giriapa v. Hingappa(3) had to consider the question of shares
inter se between an adopted son and an after-born aurasa son. It held that in
Western India, both in the districts governed by the Mitakshara and those
specially under the authority of Vyavahara Mayukha, the right of the adopted
son, where there was a legitimate son born after, the adoption, extended only
to a fifth share of the father's estate. The question therein was whether the
adopted son takes one-fourth of the estate or one-fourth of the natural born
son's share in the property. After considering all the relevant texts the
division bench came to the conclusion that he takes one-fourth of a natural
born son's share.
After the decision of the Judicial Committee
in Perrazu v. Subbarayadu(1) another division Bench of the Bombay High Court,
in Tukaram Mahadu v. Ramachandra Mahadu(4) reviewed the law and came to the
same conclusion. Adverting to the Privy Council decision, the learned Judges of
the Bombay High Court observed:
"No doubt this case Perrazu v.
Subbarayudu(1) is an authority for holding that in Madras and in Bengal among
Sudras the rule is that for which the appellant's counsel contends." Then
the learned judges posed the following question:
"Assuming that the parties here are
Sudras ought we (1) (1921) 48 I.A. 280. (2) (1916) 20 C.W.N. 901.
(3) (1892) I.L.R. 17 Bom. 100.
(4) (1925) I.L.R. 49 Bom. 672, 679, 680, 684.
520 to apply to this Presidency the rule
which their Lordships of the Privy Council have laid down as prevailing in the
Madras and Bengal Presidencies?" After citing the relevant extracts from
the decision of the Judicial Committee, the learned judges proceeded to answer
thus:
"In this Presidency where the rule of
Dattaka Chandrika upon the question at issue has never been followed, for no
case, and no kind of judicial or other pronouncement is forthcoming, (and as I
have said the leading case is against it), ought we to accept the rule upon the
authority of the Dattaka Chandrika alone? In my opinion we should err if we did
so. The authority of the Dattaka Chandrika has never been placed so high in
Western India as in Bengal and Madras......
The case is one where the principle of stare
decision should be maintained." Coyajee J., said much to the same effect:
"We have no reason to believe that the
rule propounded in paras. 29 and 32 of section V of the Dattaka Chandrika has
been so accepted and acted upon in this Presidency; and there is therefore no
justification for holding that the decision in Giriappa's case(1) is not
applicable to the parties to this suit even if they were Sudras." Steele
in his valuable book on Hindu Law and Customs, compiled as far back as 1868,
did not find any justification for excepting the Sudras from the general rule.
It is, therefore, manifest that in Bombay Presidency the rule accepted in
Dattaka Chandrika has never been followed and the share of an adopted son
in-competition with a natural born son among Sudras has always been 1/5th in
the family property, i.e., 1/4th of the natural born son's share.
Nothing has been placed before us to compel
us to depart from the long established rule prevalent in the Bombay State. We,
therefore, cannot accept the argument of Mr.
Chatterjee in this regard.
In the result, Civil Appeal No. 335 of 1960
filed by the plaintiff and defendant 3 is dismissed with costs, and Civil
Appeal No. 334 of 1960 filed by defendants 1, 2, 4, (1892) I.L.R. 17 Bom. 100.
521 5, the legal representatives of defendant
7 and def. 8, except to the extent of the 8th defendant's right to maintenance
under Ex. 371, is dismissed with costs. So far as the 8th defendant is concerned,
the appeal filed by her is allowed with costs proportionate to her interest in
the property throughout.
Appeal No. 335 dismissed.
Appeal No. 334 partly allowed.
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