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Tatoba Ganu Vs. Tarabai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1129 of 1953
Judge
Reported inAIR1957Bom280; (1957)59BOMLR633; ILR1958Bom667
ActsHindu Law; Indian Contract Act, 1872 - Sections 2 and 196; Evidence Act, 1872 - Sections 101, 102, 103, 104 and 115; Transfer of Property Act, 1882 - Sections 54, 122, 355, 369 and 370; Code of Civil Procedure (CPC), 1908; Mitakshara Law; Indian Limitation Act - Schedule - Articles 62 and 97; Mulla's Hindu Law
AppellantTatoba Ganu
RespondentTarabai and ors.
Appellant AdvocateM.V. Paranjpe, Adv.
Respondent AdvocateY.V. Chandrachud, Adv.
Excerpt:
hindu law - gift--coparcener as manager of joint family executing deed of gift of ancestral property--motive of gift, friendship between donor's grandfather and donee's family--deed of gift not affirmed by other coparceners--validity of deed of gift.;the manager of a joint hindu family, consisting of himself and his two brothers, in his capacity as a managing member, executed a deed of gift in respect of ancestral property held by them, in favour of the plaintiff. the motive for the deed of gift as recited in the deed wais the friendship which subsisted between the family of the plaintiff and the donor's grandfather. the deed of gift was not affirmed at any time by the other coparceners. on the question whether the donor was competent to make a valid gift to the plaintiff:-;that under the.....dixit, j.1. the only question argued in this appeal is about the effect of a deed of gift executed by one balgonda in favour of plaintiff no. 1 on 9th june 1043. mr. m. v. paranjpe who appears for the plaintiff-appellant contends that the deed of gift is a voidable document, while mr. y. c. chandrachud, appearing for defendants nos. 4 and 5, contends that the deed of gift is void.2. the facts relevant to the determination of the question may be shortly stated. the first plaintiff is the adopted son of one yamunabai who died in 1934, the plaintiff having been previously adopted by her in 1926. yamunbai was the daughter of one shidu who wag the eldest in a family of four brothers. on the 8th june 1880 a possessory mortgage was executed by one santai, the widow of narsinga and the mother of.....
Judgment:

Dixit, J.

1. The only question argued in this appeal is about the effect of a deed of gift executed by one Balgonda in favour of plaintiff No. 1 on 9th June 1043. Mr. M. V. Paranjpe who appears for the plaintiff-appellant contends that the deed of gift is a voidable document, while Mr. Y. C. Chandrachud, appearing for defendants Nos. 4 and 5, contends that the deed of gift is void.

2. The facts relevant to the determination of the question may be shortly stated. The first plaintiff is the adopted son of one Yamunabai who died in 1934, the plaintiff having been previously adopted by her in 1926. Yamunbai was the daughter of one Shidu who wag the eldest in a family of four brothers. On the 8th June 1880 a possessory mortgage was executed by one Santai, the widow of Narsinga and the mother of the four brothers, and by the mortgage two fields bearing survey Nos. 366 and 367 were conveyed to one Ishwara for a sum of Rs. 600/-. It is said that this transaction of mortgage was consented to by Subai, the widow of Shidu, by Naiku, by Jivaba and by Joti. The contesting defendants are defendants Nos. 3 and 5, who are the grandsons of Jivaba. On 23rd April 1914 Yamunatbai executed a sale deed in respect of her one-third share to Paygonda, On the same day another sale deed was executed by defendants Nos. 8 and 9 in regard to the same portion of the property to the same Paygonda. Although, therefore, by the two transactions of sale two-thirds of the property was conveyed, it is now found that the sale-deeds are valid to the extent of a half, one-fourth share in respect of the first sale deed and one-fourth share in respect of the second. On 9th June 1943 Balgonda, the eldest of the three brothers, executed in favour of the first plaintiff a deed of gift and he purported to execute the document as manager of the joint family consisting of himself and his two brothers, Paygonda alias Kakasaheb and Anagonda, The relationship of these three brothers to Paygonda will be seen from the genealogical table set out in the appellate judgment.

3. The plaintiffs of whom plaintiffs Nos. 2 and 3 are purchasers from plaintiff No. 1, filed this suit on the 19th April 1945. They claimed to redeem the mortgage of 1830 and to recover possession upon the basis that the property was the stridhan property of Subai, the widow of Shidu. In the alternative, they claimed to recover, by partition, separate possession of plaintiff No. 1's one-half share conveyed to him under the deed of gift upon the basis that the property was the family property of the four brothers.

4. One of the defences taken up by defendants Nos. 3 and 5, and which is material to this appeal, was that the deed of gift executed on, the 9th June 1943 by Balgonda in favour of plaintiff No. 1 wag sham, colourable and hollow.

5. The learned trial Judge dismissed the plaintiffs' suit, holding, Inter alia, that Balgonda was not competent to alienate the property comprised in the deed of gift & the decree dismissing the suit was confirmed by the Assistant Judge, Kolhapur. It is from the appellate decree that the first plaintiff has come up in appeal.

6. Now, there is no dispute as regards certain facts in this appeal. The factum as well as the validity of the adoption of the first plaintiff were challenged in the trial Court and the findings recorded by the trial Court have not now been disputed in this appeal. There was also a dispute as regards the question whether the property was the Stridhan property of Subai and the finding recorded was that the property was not the Stridhan property of Subai but was the joint family property of the four brothers. That finding also is no longer in dispute in this appeal. There was also a controversy as regards the nature of the Property in the hands of Balgonda, but there is no dispute now that the property acquired by Paygonda under the two sale deeds was ancestral in the hands of Balgonda and his two brothers. Again, there is no dispute that Balgonda was the manager of the joint family consisting of himself and his two brothers, Paygonda alias Kakasaheb and Anagonda. The only question which now survives and which has been debated at great length is about the validity of the deed of gift of the 9th June 1943. The property in suit being ancestral in the hands of Balgonda, it is clear that in respect of this property there is community of interest and unity of possession. A member of a joint Hindu family can alienate his share in the family property for value. A managing member of a Joint Hindu family can alienate the family property for legal necessity or for the benefit of the estate. If the managing member is the father, he can, in addition, alienate the family property for the payment of his antecedent debts. A widow may alienate family property for legal necessity. The position of a Hindu widow in respect of the family property Inherited by her is that of owner with certain restrictions upon her power as to disposition of the property. As stated by their Lordships of the Privy Council in Janaki Ammal v. Narayanasami Aiyer 43 IA 201 : AIR 1916 PC 117 , '

'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 the case of a managing member, he has a representative character. A managing member represents the family in the family's relations towards the rest of the world. In the case of agift, however, the position under Hindu Law isdifferent. In the Principles of Hindu Law by D.F. Mulla, 11th edition, 1952, this is what the learned commentator says at page 312:

'According to the Mitakshara law as appliedin an the States, no coparcener can dispose ofhis undivided interest in coparcenary property bygift, such transaction being void altogether thereis no estoppel or other kind of personal bar whichprecludes the donor from asserting his right torecover the transferred property. hP ma', however, make a gift of his interest with the consent of the other coparceners'.

If, therefore, there is a disability as regards an alienation by way of gift in the case of a coparcener, much more so is the disability in the case of a managing member, because the managing member holds a representative capacity. If an individual member i. e., a coparcener cannot make a valid gill in respect of his undivided interest in the coparcenary property, we fail to see how a managing member would be able to make a valid gift in respect of the family property. However, it is also recognised that a manager of a joint Hindu family may make a gift of a small portion of the family property. If an individual member, that is to say, a coparcener cannot make a valid gift in respect of his undivided interest in the family property, it must follow, we think, that a widow succeeding to the property of her husband cannot equally make a valid gift in respect of the property of which she is in possession. In Mayne's Hindu Law and Usage, 11th edition, 1953, this is what the learned commentator says at page 484:

'It is now equally well settled in all the States that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid. The exceptional cases as recognised by the Mitakshara where it is open to the father or managing member to make a gift of ancestral moveable or immoveable property have been already noticed (Sections 355, 369, 370). A coparcener cannot make a gift of his undivided interest in the family property, moveable or immovable, either to a stranger or to a relative except for purposes warranted by special tests'. It is therefore necessary to refer to the texts upon the subject. Now, the relevant texts under the Mitakshara Law are as follows:

'28. Even a single individual may conclude a donation, mortgage or sale of immoveable property during a season of distress for the sake of the family and especially for pious purposes.

29. While the sons and grandsons are minors and incapable of giving their consent to a gift and the like; or while brothers are so and continue unseparated : even one person who is capable may conclude a gift, hypothecation, or sale, of immoveable property if a calamity affecting the whole family require it or the support of the family render it necessary, or indispensable duties such as the obsequies of the father or the like, make it unavoidable See Kalu v. Barsu ILR 19 Bom 803

It is clear that the power to dispose of interest in the family property by way of gift is based upon the texts quoted above and in three cases, only will the gift of a portion of the family property be valid i. e., during the season of distress, for the sake of the family and especially for pious purposes. If therefore, the question is to be decided by reference to the texts quoted above, it is clear that a single individual may make a gift only for purposes mentioned in paragraph 28 quoted above. So far as the gift deed in the present case is concerned, the motive for the deed of gift, as recited in the deed is the friendship which subsisted between. Paygonda and the family of the first plaintiff. In the deed of gift it is recited:

^^ vkeps vktkackapk rqeps ?kjk.;kZoj ykHkvlyseqGsa

lnjP;k feGdrhojhy [kjsnh ?kryy gDd rqep nkd

ekrksJk ;euk dke x.kq eigus fgtyk ck{ke l:uns.ka

cn~y vkeaps vktkckuka ej.kiwohZ vkeps ofMyjk;xkMsa

y'oaexksMk ikVkay ;kuk lkafxry gkrsa- ijUrq ]vkep vfMy%

jk;xkaMk mQa ckiwlkgc ikVhy ;kukfga lnj izek.kacf{kl&

i= d:u ns.ksa tkgysa ukgha **

This means that there wag a feeling of cordiality towards the family of the first plaintiff on the part of the grandfather of the donor and that the grandfather had directed before his death to make a deed of gift bat that the father of the donor was unable to make the deed of gift, though directed to do so by the grandfather. It is not in dispute that the deed of gift was executed by Balgonda in his capacity as the managing member of the joint family consisting of himself and his two brothers, and the question which arises for decision is whether he was competent to make a valid gift to the first plaintiff.

7. Mr. M. V. Paranjpe who appears for the first plaintiff contends that the deed of gift is only a voidable document, that it is not void, and that if it is voidable, it can be ratified. He says that if the deed of gift is void, then there is no question of the deed being ratified. But he argues that if the deed of gift is a voidable document then there is nothing to prevent the other members of the family from ratifying the deed of gift, though before ratification, it is not an enforceable document. In this connection, be draws an analogy between a sale and a deed of gift. In the case of a sale by a managing member the law on the subject is stated in Mulla's Hindu Law, Section 242(4) at page 288 as follows:

'An alienation by the manager of a joint family made without legal necessity is not void, but voidable at the option of the other coparceners. They may affirm it or they may repudiate it.'

Mr. Paranjpe argues that an alienation by way of gift may be treated upon the same footing. He says, applying the analogy, that the deed of gift is voidable at the option of the other coparceners and if the other coparceners affirm it, there is no reason why the deed of gift is not valid. It may, however, be pointed out that in this case it is not suggested that the other coparceners i. e., 'Paygonda alias Kakasaheb and Anagonda have at any time affirmed the deed of gift. Therefore, the position is that the deed of gift was executed by Balgonda as a managing member of the family and there has been in this case no ratification of the deed of gift either by Paygonda or by Anagonda. Mr. Paranjpe does not dispute the fact that Balgonda as a manager would have no power to make a valid gift in respect of this property. Prom what I have stated above, it follows, I think, that if the deed of gift by a coparcener in a joint family is invalid, then there is no reason why a deed of gift executed by a managing member should be valid, unless it comes within the exceptions which I have mentioned above. If a coparcener cannot make a valid deed of gift, much more so would be the disability in the case of a managing member, because the power of a managing member is derived from the peculiar position which he holds in the family and which he represents in his relations towards the rest of the world. But Mr. Paranjpe's argument is that in the case of a sale, even if the sale is in excess of the powers of the manager and even if the sale is without legal necessity, it is open to the other members of the family to affirm the sale. If, therefore, the other members of the family can affirm the sale, there is no reason why the other members of the family cannot, equally, affirm the deed of gift. But, in our view, there is an essential difference between the case of a deed of sale and a deed of gift. In the case of a deed of sale the sale is good only for consideration. In the case of a gift there is no consideration proceeding from the donee to the donor except, what one may call, natural love and affection as constituting the consideration for the transaction, and as I have already pointed out, in the case of family property there is community of interest and unity of possession. Every member of the family is the owner of the whole property Until the property is made the subject of partition between the members of the family and that is the reason why the law has made an alienation of the family property a valid alienation where the alienation is supported by consideration. Apart from authority, therefore, and relying upon the texts mentioned above, we have come to the conclusion that the deed of gift executed by Balgonda in favour of the first plaintiff is invalid, and does not confer any title upon the first plaintiff.

8. Turning next to the authorities which have been cited at the Bar, it will be convenient first to refer to the case reported in ILR 19 Bom 803 . It will be noticed that that case is very much in point. The facts in that case were these. The suit was one in ejectment. In 1891 Dagdu and Nathu made a gift of a field in favour of the plaintiff as the worshipper of the God Shri Sadgura, and executed & deed of gift dated 9th January 1891, which was duly registered. Nathu's brother, Ragho, was at the time of the deed of gift a minor and he was not made a party to the gift. The field in question happened at that time to be in the possession of the defendant and was in his possession since 1881. The plaintiff, relying upon the deed of gift, filed a suit to recover possession of the property from the defendant and it was held that the plaintiff could not recover it. The decision was no doubt based upon a concession made at the Bar. This will be clear from the opening part of the judgment of Mr. Justice Fulton. He says:

'It was not disputed that under ordinary circumstances the gift by one coparcener of his undivided share is invalid, or that a minor's share cannot be given away by the manager except in case of necessity or for certain specified purpose'. The argument in the case was that as the gift was made to the plaintiff as worshipper of the God, the purpose of the gift rendered it binding upon the minor. The learned Judges then proceed to quote the texts which have a bearing upon the question and those texts I have already quoted in an earlier part of this judgment. Then in proceeding to give reasons for their conclusion, this is what they say: 'Now, in the present case, it has not been found, nor in argument has it been urged, that any necessity for this gift has been established, or that it was made in performance of any pious duties obligatory on the minor or the family. .............. Mr. Khare urged that as the defendant was a trespasser it was not open to him to question the validity of the gift, but we think that a defendant in possession is entitled to require the plaintiff seeking to eject him to prove that he has a superior title.'

This case is therefore, an authority for the proposition that the deed of gift not being sanction ed by the texts was invalid are also for the pro-position that the defendant, though a trespasser, being in possession, was entitled to ask the plaintiff to prove his title strictly in order to enable him to successfully eject the defendant. If this was the only case, so far as this Court is concerned, there is no doubt that the appellant must fail. But Mr. Paranjpe argues that the case reported in Sitaram v. Khandu ILR 45 Bom 105: AIR 1921 Bom 413, supports his contention.

The facts In that case were these. The suit land belonged to one Laxman and after Laxman's death his son Hari became owner of the same. Hari died childless, leaving his mother Gopai as his sole heir. In 1858 Gopai mortgaged the land to one Krishnai, the predecessor-in-title of defendants Nos. 9 to 11, for Rs. 40/- auu in 1863 Gopai conveyed the land to Laxman and four others by way of gift. Gopai having died, the plaintiff, as the heirs of the donees, sued to redeem the mortagage of 1858 when the defendant contended that the deed of gift on which the plaintiffs relied was void. The suit having come up in second appeal, Sir Norman Macleod C. J. considered that the deed of gift was perfectly valid until it was set aside and in coming to this conclusion, he relied upon a decision of the Privy Council reported in Modhu Sudan Singh v. Rooke 24 IA 164 . Sir Norman Macleod also considered that the deed was only voidable and not void. He further took the view that the persons who were entitled to dispute the validity of the deed were the reversioners and not the defendants. It is to be borne in mind that the alienation was by a Hindu widow. In the case of a Hindu widow, she is the owner of the property during her life-time, though her powers with regard to the disposition of the property are limited. The position of a managing member is different. A managing member represents the family and manages the family property on behalf of the family. In the case of a Hindu widow, she is as I have already pointed out, the owner of the property, though her powers are limited. She is entitled to enjoy the whole of the property and even if an alienation is made by her which is not supported by legal necessity, the purchaser from her is entitled to remain in possession so long as the widow is alive. In the case of a managing member, however, if a managing member sells away the property, not supported by legal necessity, it is clear that the alienation is not binding upon the other members of the family and that the other members of the family can question the alienation at any time they choose to do so. That distinction is we think, vital in deciding the present question. It may also be pointed out that in giving reasons for the conclusion Sir Norman Macleod did not consider the texts, unlike the learned Judges who decided ILR 19 Bom 803. Mr. Justice Bayley and Mr. Justice Fulton considered the question with reference to the special texts of Hindu Law having a bearing upon the question. It may be pointed out, with respect, that Sir Norman Macleod and Mr. Justice Heaton decided the question on the general principle, relying upon 24 IA 164 . The view which Sir Norman Macleod seems to have taken was that it was not for the defendant to question the deed of gift. It was only for the reversioner to question it. It may, however, be pointed out that if the suit is one in ejectment, it is for the plaintiff to prove his title strictly. It is not for the defendant to prove his title. The defendant may well urge that the suit being one in ejectment, it is for the plaintiff to prove his title before he could successfully eject the defendant. This aspect of the question which was considered in Kalu v. Barsu (B), was not considered by Sir Norman Macleod in Sitaram's case (C). The position, therefore, is that there are two decisions of this Court which seem to be apparently in conflict. Both decisions are decisions given by Courts of co-ordinate jurisdiction and it is open to us to follow any one of the two decisions, sitting as we are also as a Court of co-ordinate jurisdiction. In our view, the case in Kalu v. Barsu (B), is correctly decided and we take the view that the case in Sitaram v. Khandu (C), is with respect, not correctly decided.

9. This would be enough for the disposal of this appeal. But Mr. M. V. Parahjpe appearing for the plaintiff-appellant has relied upon certain decisions of the Allahabad High Court to support his contention that the deed of gift is only voidable and not void. On the Other hand, Mr. Chandrachaud appearing for defendants Nos. 3 and 5 has relied upon certain other decisions to support his contention that the deed of gift is not merely voidable, but it is void. It would be enough to mention these cases, though briefly. Apart from the case in ILR 19 Bom 803, there are two other Bombay cases which take a similar view. In Jinnappa Mahadevappa v. Chimmava Krishnappa : AIR1935Bom324 . Mr. Justice Rangnekar was dealing with a case of gift. In that case, one Tammanna, a member of a joint family, possessed of considerable property made a gift by a writing registered in favour of his daughter who had nursed him in his illness and for whom he had great affection. The deed of gift having been challenged by his son and grandsons, Mr. Justice Rangnekar observed:

'Under the Mitakshara Law, no individual coparcener, whilst the family remains undivided, can even predicate of the coparcenary property that he, that particular member, has a definite share, much less either alienate it or gift it away or any part thereof, except under certain circumstances and subject to certain limitations. According to the texts, originally this prohibition applied even to the father as against his sons, but the restrictions on the father's power to alienate have been gradually removed, and it is clear that a Hindu father has a special power of disposal of ancestral property for certain purposes. Thus, the father may within, reasonable limits gift away ancestral moveables without the consent of his sons for the purpose of performing 'indispensable acts of duty and for purposes prescribed by the texts as gifts through affection, support of the family, relief from distress and so forth'. But even as to this, a gift of the whole of the ancestral moveable property to one son to the exclusion of another is not upheld by the Courts. Then, the Hindu father or a manager of a joint family may gift away, again within reasonable limits, ancestral immoveable property for 'pious purposes'. But even here the gift must be made inter vivos and not by will. The third exception is that a Hindu father may sell or mortgage the joint family property to discharge an antecedent debt contracted by him for his own personal benefit and such an alienation would bind the sons, provided that the debt was not incurred for an immoral or unlawful purpose'.

In the concluding part of his judgment, he further observed:

'Undoubtedly, the gift is of 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.'

With respect, we think this is the correct principle. Then this question arose in Lilavati Ganpatrao v. Takappa Bhimappa. 50 Bom LR 127: AIR 1948 Bom 315, in which case I had to deal with the question of the validity of a deed of gift. In that case, one Ramchandrappa had, In 1919, made a gift of a small portion of the joint family property to a Swami of Kolhapur for the purpose of building a hostel for Jain students studying in the schools and college at Dharwar. The other members of the family having objected to the deed of gift, a question arose as to whether the deed of gift was valid. The motive, as mentioned in the deed of gift, was said to be 'for the meritorious action lRdk; dkeh **-At page 129 (of Bom LR) : (at p. 316 of AIR) I had occasion to quote the texts from the Mitakshara and after considering certain authorities including : AIR1935Bom324 , I came to the conclusion that the deed of gift was invalid. Incidentally, I may also refer to the case reported in Vrandavandas Ranidas v. Yamunabai 12 Bom HC 229 . It will be enough, I think, to quote a part of the head-note which is in the following terms :

'A member of an undivided Hindu family, on this side of India, cannot without the consent of his coparceners, make a gift of his share in the undivided property'.

10. A similar view has been taken in three decisions of the Madras High Court and these are : Baba v. Timma ILR 7 Mad 357 , Rottala Runganatham Chetty v Pulicat Ramasami Chetti ILR 27 Mad 163 and Venkatappayva v. Ragha-Vayya, : AIR1951Mad318 (H) is a Full Bench case in which it has been held that a Hindu father while unseparated from his son has no power except for purposes warranted by special texts to alienate to a stranger his undivided share in the ancestral estate, movable or immovable. In ILR 27 Mad 162 a Bench of three Judges of that Court including so eminent a judge as Mr. Justice Bhashyam Ayyangar, while dealing with the question about the validity of a deed of gift, observed at page 166 :

'It has now bean definitely settled by judicial decisions that it is incompetent to an undivided member of a Hindu family, to alienate by way of gift his undivided share or any portion thereof and that such alienation is void in toto, and this principle cannot be evaded by the undivided member professing to make an alienation for value, when such value is manifestly inadequate and inequitable'.

A similar view has been taken in : AIR1951Mad318 , which following ILR 27 Mad 162 , says :

'It is incompetent to an undivided member of a Hindu family to alien to by way of gift his undivided share or any portion thereof, and such alienation is void in toto.'

If this string of authorities is not enough to support the conclusion to which we have come, we have been in a happy position, for this conclusion has been reinforced by a decision of the Privy Council and that decision is reported in Radhakant Lal v. Nazma Begum ILR 45 Cal 733: AIR 1917 PC 128. That was a case where one Dringal executed deeds of gift in favour of his concubines and a daughter of one of them and the deeds of gift, were challenged by his son and grandsons and their Lordships of the Privy Council held that the properties purporting to be conveyed to the respondents by the deeds of gift were joint family properties over which Drignel the father of the first, appellant and the grand-father of the other appellants, had no power of disposition and that the appellants were entitled to re-cover the properties. It is we think, unnecessary to quote other authorities, but it would not be out of place to complete the case-law to mention a decision of the Lahore High Court reported in Raisat Ali v. Iqbal Rai ILR 16 Lah 659: AIR 1935 Lah 827. It was held in that case that

'under Hindu Law a father has no power to make a gift of joint family property in favour of a stranger, and there is no law requiring a member of a joint Hindu family who is in possession of property to sue to set aside such a gift and his failure to do so does not render the gift valid and binding on him'.

11. In view of these authorities, one of which is the authority of the highest Court, we have no doubt that the deed of gift in this case is invalid and does not confer any title upon the plaintiff. The suit is one in ejectment. It is for the plain-till to prove his title and the Court is not concerned with the weakness of the title of the defendant. The defendant may be a trespasser, but as a defendant in possession, he is entitled to ask the plaintiff to prove strictly his title. As the plaintiff has no title, the plaintiff's suit must fail.

12. But Mr. M. V. Paranjpe argues that there are decisions in his favour. One of such decisions is the one reported in Imperial Bank of India, Jullundur v. Maya Devi ILR 16 Lah 714: AIR 1935 Lah 867. In order to understand these decisions, it is necessary to make a preliminary observation. Mr. Parenjpe argues that most of the cases are cases in which the deeds of gift are challenged by the members of the family and he says that the case in ILR 19 Bom 803 is a case in which the deed of gift was challenged by a stranger. But we fail to see the point of distinction. If a deed of gift is invalid, it makes no difference whether the challenge proceeds from a member of the family or from a stranger. What is invalid must remain Invalid. Surely, it cannot be valid if the challenge proceeds from, a member of the family and the deed of gift is valid because it proceeds from a stranger to the family and I have been unable to find any point of principle in this distinction. If an alienation by way of gift is not sanctioned by the special texts, it makes no difference whether the challenge proceeds from one or from the other. In either case the deed must be invalid. Now, turning to ILR 16 Lah 714: AIR 1935 Lah 867, Mr. Paranjpe argues that the deed of gift is voidable and not void ab initio. In this connection, there is passage at page 717 (of ILR Lah) : (at p. 868 of AIR) which is as follows :

'But it is equally well settled that an alienation by him (manager), which cannot be support-ed on these grounds, is not unlawful or void ab initio, but is merely voidable at the option of the other coparceners who alone are affected by his unauthorised act. This proposition is too well established to reouire elaborate discussion. It will be sufficient to refer to the dictum of their Lordships of the Privy Council in Hannman Kamat v. Hanuman Mandur ILR 19 Cal 123 , that the alienation by a manager was not necessarily void, but was only viodable if objection were taken to it by the other members of the joint Hindu family.'

This passage undoubtedly supports, to some ex-tent, Mr. Parpnjpe's contention. But as regards this passage, it may be pointed out that their Lordships of the Privy Council were considering this passage in another connection and that was a case where their Lordships of the Privy Council had to consider the question of limitation and deciding the question of limitation viz. whether the suit was governed by Article 62 or 97 of the Indian Limitation Act their Lordships made the above observation. With respect to this, in Mayne's Hindu Law it is stated at page 507 in the footnote (w) as follows :

'The observation in 18 IA158: ILR 19 Cal 123, that 'the sale was not necessarily void, hut was only voidable if objection were taken to it by the other members of the joint family' was made in a different context and does not carry the matter further'.

It is clear, therefore, that we have to look at this observation in the light of the question which the Privy Council had to decide in determining the question of limitation. Then Mr. Paranjpe has relied upon certain Allahabad rulings and they are Sheo Ghulam v. Badri Narayan 11 All LJ 798 (CO & Jageshar Pande v. Deo Dat Pande ILR 45 All 654: AIR 1924 All 51. In both these cases the view taken is that the deed is only voidable and not void. A similar view appears to have been taken in Ajodhia Prasad v. Musammat Sanjhari Kuar ILR 6 Luc710 : AIR 1932 Oudh 342 and it may be pointed out incidentally that that case followed a decision of this Court in ILR 45 Bom 105: AIR 1921 Bom 413. Mr. Paranjpe also relied upon a Calcutta decision reported in Amar Chandra Chakravarti v. Sarodamayee Debi. : AIR1929Cal787 , but it may be observed that in that case that Court also relied upon a judgment of this Court reported in ILR 19 Bom 803. The last case mentioned by Mr. Paranjpe was the one reported in Maharaja Kesho Prasad Singh v. Chandrika Prasad Singh ILR 2 Pat 217: AIR 1923 Pat 122 and at page 229 (of ILR Pat): (at. p. 128 of AIR) the remarks made by the Patna High Court would seem to support the contention urged by Mr. Paranjpe.

13. We have referred to all the authorities cited at the Bar on either side and after giving our best attention to the point raised, we are of the opinion that the case in ILR 19 Bom 803 lays down the correct principle and that the contrary principle laid down in ILR 45 Bom 105: AIR 1921 Bom 413 is with respect, not correct. In view of this conclusion, it must follow, we think, that the decision of the Court below is right.

14. The appeal, therefore, fails and will be dismissed, but in the circumstances there will be no order as to costs.

Vyas, J.

15. I concur in the judgment just pronounced by my learned Brother.

16. The answer to the question whether a gift of property made by an undivided member of a Hindu family, though he be a Karta, is invalid at the inception and therefore, void or is merely defective being in excess of the donor's right to donate and therefore, voidable must be derived from ancient texts. ILR 19 Bom 803 was decided upon the authority of the Mitakshara. Vijnaneswsra's well-known commentary on Yajnavalkya Smriti. Mr. Justice Fulton delivering the Judgment in that case said :

'The law on the subject was stated in paragraphs 28 and 29 of S. I of Chap. I of the Mitakshara'

and the law was that

'even a single individual might conclude a donation, mortgage or sale of immoveable property during a season of distress for the sake of the family and especially for pious purposes' (Paragraph. 28, S. I, Chap. I of the Mitakshara). The meaning of this text was explained by the learned author of the Mitakshara who said :

'While the sons and grandsons were minors and incapable of giving their consent to a gift and the like; or while brothers were so and continued unseparated; even one person who was capable might conclude a gift, hypothecation, or sale, of immoveable property if a calamity affecting the whole family required it or the support of the family rendered it necessary, or indispensable duties, such as the obsequies of the father or the like, made it unavoidable' (Paragraph 29, S. I, Chap. I of the Mitakshara).

Four learned Judges of the Madras High Court who decided ILR 7 Mad 357 relied upon the authority of special texts for answering the question whether a Hindu father unseparated from his son had power to alienate the joint family property. Amongst the special texts which were considered by the learned Judges in that case was the Mitakshara (pages 360 to 363 of the Judgment). In : AIR1929Cal787 also the learned Judges of the Calcutta High Court drew upon the authority of the Mitakshara for answering the question as to Wow far the Hindu Law allowed a gift of immoveable property by a Karta (See page 42 of the judgment); (at p. 788 of AIR).

17. I may, therefore, turn directly to the original texts of the Mitakshara. What could be the object of a valid gift by a Hindu was stated by so celebrated an authority as Yajnavalkya in verse 175, Chap. 12 of his well-known work. Yajnavalkya said ^^ Lo dqVqackfojk/ku ns;a** This would mean that one's own property might be given without any impediment being raised by the family. What is not one's own cannot be the object of a valid gift. That, in the giving of which there would be an impediment raised by the family cannot be given. A member of a joint Hindu family -- may he be a manager or Karta -- cannot claim the whole of the family property as his own. To the giving away of that property an impediment fojks/k would be raised by the rest of the members of the family, since they have an undivided interest in the property

18. The significance of the expression ^^ dqVqEckfojks/ksu **was explained by Vijnaneswara in these words ^^ dqVqEckfojks/ksuR;uukns;eadfo/kan'kZlfr **This would show that the expression ^^ dqVqEckfojks/ksu ** was used by Yajnavalkya to emphasize that one class of property which was not capable of being given was compendiously described as that, in the giving of which the family would raise an impediment fojks/k ,

This means that a member of a joint family, though he be a Karta cannot give away the property belonging to the family, since he cannot can that property his own Eoa According to the Mitakshara, Yajnavalkya used the words ^^L= na;a** with a purpose and the purpose was thus expressed by the Mitakshara :

^^ Lo n|kfnU;uu pkLoHkwrkukeUokfgr ;kfprdkf/k&

lk/kkj.k fu{ksik.kka ipkukeI; ns;R;aO;frjsdrks nf'kZre~ **

This means that the words ^^ Lo ns;a ** were used with a view to exclude certain categories of property which could not he given away by an undivided member of a Hindu family. The excluded categories are those which the donor or tie alienor cannot call his own vLoHkwr - They (the excluded categories) are ^^ vUokfgr] ;kfpr] etc.'. Amongst the excluded categories of property, there occurs the category ^^ lk/kkj.k ** meaning joint family property. It may be noted that while dealing with the classes of property Which a Hindu could not give away, the learned author of the Mitakshara put ^^ vUokafgr ** property and ^^ lk/kkj.k ** property on a par. It may there be necessary to know what ^^ vUokafgr ** property is. It is described thus by the Mitakshara:

^^ ;nsdL;gLrs fufgra nzO;a rsukI;uq iknU;gLrs

Lokfeus nsfgrs fufgra rnUokfgre~ **

If A keeps his property with B which B must re-turn to A and if B gives it to C with a direction that C must give it to its owner A, the property is ^^ vUokafgr ** property 'in the hands of C andC has no ownership over it and he cannot makeB gift of it, By putting the ^^ lk/kkj.k ** property i. e. joint family property on a par with ^^ vUokafgr **property, while mentioning properties which could not be validly given away, the learned author of the Mitakshara clearly enjoin-ed that just as no gift could be made of ^^ vUokafgr ** property, so also no gift could be made of the joint family property by a member of the family, though he be a manager.

19. According to Narada, the classification of property which could not be given away was eight-fold and in that classification also the ^^ lk/kkj.k ** property (joint family property) wasincluded. Narada referred to the learned teachers who had preceded him and said upon the authority of those learned men that the eight classes of property staled by him could not be validly given away even in times of catastrophe. This is what Narada said:

^^ vUokfgr ;kfprdekf/k% lk/kkj.ke~p ;r~ Afu{ksi% iq=nkjka loZLoapkUo;s lfr AA vkiRLofip d'VkalqorZekusu nsfguk Avns;kU;kgqjkPpk;kZ pPpkU;LeS izfrJqr fefr **

It would be seen that narada included ^^iq=** (son) ^^ nkx ** (wife) and ^^ vUo;s lfr loZL=a ** (one's everything when there are sons and grandsons) in the list of classesof property, of which no valid gift could be made and there was a reason for their inclusion. An express exclusion of ^^iq=] nkjkand vUo;s lfr loLo ** from the classes of property which could be given away was necessary, since, but for such exclusion, a son, a wife and one's everything or entire property while there are sobs and grandsons would be hit by the dictum ^^ Lo ns; ** as they would fall within the mischief of the word ^^ Loa ** (one's own).What Narada did by including ^^iq=] nkjkand vUo;s lfr loLo ** in his eight-fold classification of property of which no gift could bemade, Yajnavalkya did by saying in the latterpart of verse 175:

^^nkl lqrknrs A ukUo;s lfr loZLoa ;PpU;LeSizfrJqre~ **

20. There is one important distinction between Yajnavalkya and Narada. Whereas Narada has said that the eight classes of property referred to by him cannot be given away even in times' of catastrophe, Yajnavalkya has not gone to that extreme and the words ^^ vkiRlq d'Vklq ** or analogous words are absent in verse 175, Chap. 12 of Yajnavalkya Smriti. Yajnavalkya has left a certain amount of latitude, and the latitude left is that under certain exceptional contingencies an individual member of a Hindu undivided family can give away the family property. This is pointed out by the learned author of the Mitakshara under the Chapter ^^nk;k foHkkx izdj.ke ~** (distribution of where the learned author says : ^^ nk;k ** Translated in English, this 'would mean :

^^ ,dksMfi LFkkojs dq;Znkuk/keukod;e~ AvkiRdkys

dqVqEckFksZ /kekZFksZp fo'ksLr% bfr **

'Even a single individual may conclude adonation, mortgage, or sale of immoveable property, during a season of distress, for the sakeof family, and especially for pious purposes.'

Then the learned author proceeds to explainthe meaning of this, and the meaning, accordingto him is :

^^ vizkIr O;ogkjs'kq iq=s'kq okvuqKkuknkuknko leFksZ'kq

Hkzkrq'kq ok rFkkfozFks'ofoHks'ofi ldy dqVqEc O;kfiU;kek

ifn rRiks'k.k oko';a drZO;s'kqfir`Jk)kfn'kq LFkkojL;

nkuk/keufpdz;esdksfi leFkZ% dq;kZfnfr**

Rendered in English, this would mean :

'While the sons and grandsons are minors and incapable of giving their consent or doing similar acts or white the brothers are so and continue unseparated, even one person, who is capable, may conclude a gift, hypothecation, or sale of immoveable property, if a calamity affecting the whole property requires it, or for supporting the family, or for performing indispensable duties, such as the obsequies of the ancestors.'

21. Upon this point Yajnavalkya, as interpreted by vijnaneswara in the Mitakshara, has been followed by this Court in Kalu v. Barsu (B) and by the High Courts of Calcutta and Madras in Amar Chandra Chakravarti v. Saradamayee Debi (R) and Baha v. Timma (H) respectively and the law which hits been followed in these cases is that just as no gift could be made of certain properties, for instance, ^^ vUokfgr ** property or ^^ vUo;s lfr loZLoa ** (one's all property when there are sons and grandsons), so alsono gift could be made of ^^ lk/kkj.k ** property(joint family property) by a member of an undivided Hindu family, except when there is a catastrophe affecting the whole family or a family necessity or when indispensable duties are to be performed. In the present case there is nothing to show that the gift made by Balgonda fell within any of the above exceptional contingencies. No reasons are shown why we are not bound by Kahi v. Barsu (B) and why we should not follow the Full Bench decisions in Amar Chandra Chakravarti's case (R) and Baba's case (H).

22. I would here add a few observations about the Calcutta case of Amar Chandra v. Saradamayee Debi (R). The principle that a manager or a Karta cannot make a gift of the family property so as to bind the other members of the family, except for the benefit of the estate or for pious purposes, was accepted by the learn-ed Judges and it was held that the gift would be void, unless there was ratification or acquiescence by all the members of the family. Ratification or acquiescence was considered as a validating circumstance, that is a circumstance which would validate what was otherwise invalid at the inception. Ratification or acquiescence meant that the members of the family gave, though subsequently, a consent to what had been done by one of them. This subsequently expressed consent or approval would lead a character to the alienation, as though It was made by all the members of the family.

23. In the Allahabad, Lucknow and Lahore cases cited by the learned Advocate Mr. Paranjpe the special texts do not appear to have been considered and hence, with respect, we are unable to follow those decisions. I L R 45 Bom 105 : AIR 1931 Bom 413 was a case of a gift by a Hindu widow. Different considerations would arise as between a gift by a Hindu widow and a gift by a Karta or manager a Hindu widow is the owner of property subject to certain restrictions on alienation and subject to the property devolving upon the next heir of the last full owner upon her death, whereas a Karta or manager is not the owner. A Hindu widow can say that the property is her own within the meaning of the word ^^ Loa ** (verse No. 175. Chapter 12 of Yajnavalkya), whereas a manager or Karta cannot say so. That being so, the principle laid down in ILR 45 Bom 105 : AIR 1921 Bom 413 would not apply to this case.

24. Mr. Paranjpe says that this is a case of a donor having merely exceeded his power and, therefore, the gift is not void but voidable. The contention must fail. Where there is power, there can be a case of an excess of power. Where there is right, there can be a case of an excess in the exercise of that right. Where there is no power at all to start with, no question can arise of a person having acted in excess of it. A person has no power at all to give away that which is not his own, he does not do something which is merely in excess of his power, but does what he has no power to do. Here what Balgonda gave away was not his own. Therefore, the gift was void ab initio.

25. In the result, I agree with the order proposed by my learned Brother.

26. Appeal dismissed.


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