1. This was a suit brought by the plaintiff for a declaration that the deed of gift passed by his wife Tulsava in favour of the defendant, her brother, was invalid as it was passed by her without the consent of the plaintiff, her husband.
2. The property in suit was bequeathed in 1907 by the maternal grandfather to the plaintiff's wife Tulsava, who passed a deed of gift in 1926 in respect thereof in favour of her brother, the defendant. According to the finding of the lower Court, which we think is correct, the plaintiff and his wife did not live together ever since they were married. The learned Subordinate Judge held that the property which came to the plaintiff's wife was saudayika stridhan, and therefore, she was competent to make a gift in favour of her brother without the consent of her husband. In the alternative he held that even if it were not saudayikastridhan, she was competent to alienate it as she had beenabandoned by her husband and was not under coverture, and relied on the decision in the case of Bhagvanlal v. BaiDivali : AIR1925Bom445 .
3. The question, therefore, in this appeal is whether the property which the plaintiff's wife obtained by bequest from her maternal grandfather is saudayika stridhan according to Hindu law. According to the decision in Bhau v.Raghunath I.L.R. (1905) Bom. 229 Saudayika stridhan is that which is obtained by a married woman or by a virgin in the house of her husband or of her father, from her brother or parents. It is contended on behalf of the appellant that this being a bequest from the maternal grandfather, it is not obtained from her brother or her parents and therefore it is not saudayika stridhan. The dictionary meaning of saudayika is ' whatever is given to a woman at her marriage by her parents, or a relative in general, which becomes her own property.'
4. The text dealing with this question in Mayukha, Chapter IV, section X, pl. 5 and 8, (Mandlik's translation, p. 93) is as follows :-
A wife, a son, and a slave are all incapable of property. Whatever they earn, belongs to him to whom they belong', that too has reference to wealth acquired by mechanical arts and the like. It is also proper [to interpret the text as showing] the absence of absolute dominion even in theadhivedanika or other [species of stridhan]. Hence, says Manu [ch. IX, v. 1S9] ;-' a woman should never make [any] expenditure out of the family [property] belonging to several or even [out of] her own wealth without the assent of her husband'...In a certain [kind of] property, Katyayana declares [their] absolute dominion. ' That which is obtained by a married woman, or by a virgin in the house of her husband, or of her father, from her brother, or her parents, is termed Saudayika. The independence of women who have received the Saudayika wealth is desirable [in regard to it], for it was given [by their kindred] for their maintenance out of affection. The power of women over Saudayika at all times is celebrated both in respect) of gift and sale, according to their pleasure, even in [the case of] immoveables.
5. In Colebrooke's Digest of Hindu Law, Vol. II, pages 594 and 595, after reciting the texts of Katyayana, reference is made to several commentaries. Reference is made to Chandeswara, who says that the words 'from her brother or her parents' are merely illustrative and a gift from affectionate kindred would include a gift from other persons. Misra, instead of saying from other persons, says ' from her own kindred, or from the relations of her lord.' Reference is made to Jimutavahana who says :- 'That which is received from affectionate kindred (sudaya), is the gift of affectionate kindred (saudayica)'. ThenRaghunandana's commentary is:-'That which is received from an affectionate father, mother, or husband, or from the kindred of these, is a gift from affectionate kindred.'
6. Apararka quotes also the text of Vriddha Vyasa as follow:-
That which is received by a woman either at the time of or subsequent to the marriage or which is obtained from the house of the father or the brother is called Saudayika
7. In Smriti Chandrika for the word (sic) (brother), the word (sic) (husband) is used. In SmritiChandrika, Ch, IX, s. II, pi, 5 and 6, the texts of Katyayana and Vyasa are cited. See Setlur's translation, page 260:-
5 The same author [Katyayana] also defines Saudayika : 'That which is received by a married woman or by a maiden in the house of her husband, or of her father, from her brother or from her parents, is termed the gift of affectionate kindred [Saudayika,]
6 Vyas accordingly ;-' Wealth which is received by a woman either at the time of, or subsequent to, marriage, from the house of the father or her husband, is denominated'Saudayika'.
8. The subject relating to the description of stridhan is dealt with inMitakshara, Ch, II, s. XI, Gharpure's translation, pages 270 to 274, and Mayukha, Ch. IV, s. X, Gharpure's translation, pages 127 to 131.
9. In placitum (4) the Mitakshara dealing with the six kinds of stridhan mentioned by Manu says that the denomination ofsix-fold property of a woman is intended not as a restriction of a greater number but as a denial of a less, It would, therefore, follow that the texts are not exhaustive but illustrative. In placitum (5) Saudayika is defined as follows:-'That which is received by a married woman or by a maiden, in the house of her husband or of her father, from her brother or from her parents, is termed 'a kind gift' (saudayikam,)'', A gift after marriage in the house of her father would include the gift from the father's relations. FurtherYanyavalkya in verse 144 mentions a kind of stridhan (sic) (Bandhu-dattam) that which has been given to a woman by her kindred and is explained by Mitakshara as follows:-'By her kindred,i.e., by the matribandhus as well as pitribandhus of the damsel.' A maternal grandfather would be included in the matribandhus.
10. Mayukha in Ch. IV, section X, pl, 5 to 8, Gharpure's translation pp. 128 and 129, deals with the text of Katyayana. In pl. (5) the Mayukha in dealing with the texts of Katyayana and Vyasa says that even immoveable property can be given in gift by father, mother, brother, husband and kindred (Dnati). In pl. (7) and (8) distinction is made as regards wealth acquired from mechanical arts and received from a stranger and also presents at the time of supercession (Adhivedanika) which can be spent with the assent of her husband, and in pl. (8) reference is made to the power of disposal over saudayika as beingstridhan over which the woman has independent power of disposal on the ground that it is given out of affection and for maintenance. Distinction is, therefore, made between a gift from kindred which term would include maternal grandfather and gift from a stranger as regards the power of disposal.
11. Mayne in his Hindu Law, 9th Edition, pp. 971 and 972, after referring to the text of Katyayana and Vyasa, states:-
Provided the gift is made by the husband, or by a relation either of the woman or of her husband, it seema to be immaterial whether it is made before marriage, at marriage, or after marriage ; it is equally her saudayika.
12. The same view is accepted by Golapchandra Sarkar Shastri in his Hindu Law, 6th Edition, p. 638, and by Sir Dinshah Mulla in his Hindu Law, 7th Edition, p. 142, followed in Emperor v. SatNarain I.L.R. (1930) All. 437
13. Sir Gurudas Banerjee in his Hindu Law of Marriage and Stri-dhan, 5th Edition, p. 337, observes that 'Saudayika, or gift of affectionate kinsmen, is explained as being a general name for several sorts of stridhan.'
14. In Bhau v. Raghunath I.L.R. (1905) Bom. 229 the vritti inherited by the woman as the bequest to her by the grandmother was invalid, and the precise point under consideration did not arise for decision.
15. In Muthukaruppa Pillai v. Sellathammal I.L.R. (1914) Mad. 298 Seshagiri Ayyar J, observes as follows (p. 300):-
An examination of the various commentaries shows that stridhanamproperty is divisible into Yautaka and Ayautaka, Yantaka is that which is given at the nuptial fire, That interpretation is in accordance with the etymological significance of the term. In that term, moreover, are included all gifts made during the marriage ceremonies. Ayautaka is gift made before or after marriage, Saudayika includes both Yautaka and Ayautaka not received from (strangers, It is defined to be gifts from affectionate kindred. This property can be dealt with by a married woman in any way she likes.
16. The gift or bequest from a maternal grandfather, having the essential attribute of a gift from relations or affectionate kindred falls within the class of stridhan calledsaudayika.
17. I think, therefore, that the lower Court is right in holding that the property obtained by the plaintiff's wife by bequest from her maternal grandfather is saudayika stridhan, and she can alienate it without the consent of her husband.
18. It is, therefore, unnecessary to go into the alternative ground on which the decision of the lower Court is based, and consider the decision in the case of Bhagvanlal v. BaiDivali : AIR1925Bom445 .
19. We, must, therefore, dismiss this appeal with costs.
1. This is a plaintiff's appeal and the grievance is that the Court below has refused him a declaration that his wife had no power to give her stridhan estate to her brother, during the continuance of their marriage and without his assent. What he set out to prove was that the property gifted was ordinary stridhan and not the kind which is excepted from the need of the husband's sanction before alienation, and that he has been living with his wife, in order to counter the finding of abandonment of the Court below. A second point is also involved in the second appeal we are also deciding, the plaintiff having been refused a decree for restitution of conjugal rights in another suit.
2. As to the first point, the decision turns upon whether the property in question is of the class of stridhan known as saudayika, or not. If it is, then the husband's sanction was not necessary to the wife's gift. This property which consists of a house and some land, was willed to the defendant by her grandfather. To discover the answer we must refer to one of the governing texts of the Hindu law. According to Mr. Ghose's translation of this text, quoted in the judgment in Muthukaruppa Pillai v.Sellathammal I.L.R. (1914) Mad. 298 saudayika is, ' whatever is received from the husband's father's family, from the brothers, or from the parents.' According to the translation in Sir Dinshah Mulla's work on Hindu Law, the meaning of the text is ' what a woman, either after marriage or before it, either in the mansion of her husband or of her father, receives from her lord or her parents is called Saudayika, that is, a gift from affectionate kindred.' Our attention has been drawn to another version to be found inGolachandra Sarkar Sastri's book on Hindu Law, which is to the following effect:'That which is received by a married or maiden in the house of the house of her husband or of her father, from her husband or from her parents, is termed the gift of affectionate kindred.' The word itself means good kindred and this finds expression in the term of ' affectionate kindred.'
3. Mr. Thakor's main contention has been that there is no text which includes as saudayika a gift from a maternal grandfather as in this case. On the other hand, gifts from strangers come within another category, and unless we consider the grandfather as included in the group of parents, there is no place for him in this connection, for clearly he is not a stranger. The case law does not solve the exact question before us. The leading cases are Bhau v.Raghunath I.L.R (1905) Bom. 229 and Muthukaruppa Pillai v. SellathammalI.L.R. (1914) Mad 298 The Bombay case was a decision that property got by inheritance was not saudayika, though it had originally been got as a gift, and it was held that the gift was exhausted on the donor's-a Hindu widow's-death owing to her limited estate. In the Madras case, the property had been gifted by the father to the daughter, and it was held to be saudayika as being included in the gifts from affectionate kindred. Neither of these cases really cover the point we have to decide.
4. It is clear that the plaintiff can only succeed if we hold that the terms used in the text are meant to exclude all donors except the husband, or the father, or the brother or the mother, that is, who are not mentioned. Personally I think 'parents' would include a maternal grandfather, as this view seems to be more in harmony with the general ideas of the Hindu law on thesubject, as in the case of bandhus where the mother's father is not mentioned in the list of thematribandhus but has been held to be included logically, the reason given being that the text is illustrative and not exhaustive. Similarly, the word son has been used in the text, and has been held by the Court to be used in ageneric sense and not literally. So here it seems to me that the real meaning must have been to include both the ancestral lines, and not to limit it to the immediate parents of the person mentioned.
5. I agree, therefore, that the case has been rightly decided, and the appeal must be dismissed.