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Hanmant Bando Kale Vs. Rango Kallo Huddar - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal (B) No. 229 of 1956
Judge
Reported inAIR1961Kant206; AIR1961Mys206
ActsHindu Law
AppellantHanmant Bando Kale
RespondentRango Kallo Huddar
Appellant AdvocateS.V. Mahajan, Adv.
Respondent AdvocateK.I. Bhatta, Adv.
Excerpt:
.....the husband would not also come within that word. it is not necessary, in my opinion, that such property in order to be saudayika must be received out of love or affection as contended by the learned advocate for the appellant. --the law regarding gifts before marriage or wedding gifts or post-nuptial gifts is well settled. 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 a gift from affectionate kindred (sauda-yaka); and such a gift having by them been presented through kindness that the woman possessing it may live well, is declared by law to be her absolute property. ' the amarekosa says that 'sudaya' means gifts of yautaka and the like' and at saudayika is merely a derivative..........with this question.6. it appears that originally a restricted view prevailed as to the powers of a hindu woman over her properties. in the text of manu (viii, 416) it is said as follows:--'a wife, a son, and a slave, all these three are declared to have no property; whatever wealth they acquire, is of him, to whom they belong. a woman should never make expenditure out of the family property belonging to several, or even out of her own wealth without the consent of her husband.' the text in mayukha, chapter iv, section x, p1. 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.....
Judgment:

S.R. Das Gupta, C.J.

1. This appeal raises an important point of Hindu Law. It arises in this way:--

2. The appellant before us is the husband of the original plaintiff. The plaintiff filed a suit in the year 1944 for maintenance and a decree for maintenance was passed against the appellant An appeal was filed by the appellant against the said decree but that appeal was dismissed. A second appeal to the High Court also failed. Thereafter in the year 1948 execution proceedings were started by the plaintiff. Pending disposal of that execution proceedings the plaintiff on 27-11-48 assigned her right in respect of the-arrears of maintenance upto 1948 in favour of her brother. Thereafter the plaintiff died.

The assignee then filed an application in which he prayed that his name be substituted in the execution proceedings. That application, was resisted by the judgment-debtor on the ground that the property in question being the non-saudayika property of his wife could not be alienated except with consent of her husband, i.e. the appellant. The main question, therefore, which arose for consideration in that application was-whether or not the arrears of maintenance in question was the saudayika or non-saudayika property of the wife.

3. It is not disputed that if it is saudayika property, then the wife can alienate the same.

4. Both the courts held in favour of the assignee. They held that the property in question was saudayika property and hence this second appeal.

5. The question as to what is Saudayika property has been the subject of various judicial decisions. In a Full Bench decision of the Bombay High Court reported in Gajanan Yeshwant v. Pandurang Govind, : AIR1950Bom178 this question was considered. It should, however, be mentioned that this question did not arise directly in that case but only in an incidental manner. Their Lordships, however, referred to the Texts bearing on the question as to what is saudayika property.

This question was also considered in another decision of the Bombay High Court reported in Venkaraddi Mardeppa v. Hanmantgowda Raman-gowda, 34 Bom LR 1144: (AIR 1932 Bom 559). In that case this question directly arose for their Lordships' consideration and various Texts bearing on this point were referred to by their Lordships in their judgment. The Madras High Court in Rajamma v. Varadarajulu Chetti, : AIR1957Mad198 has also dealt with this question.

6. It appears that originally a restricted view prevailed as to the powers of a Hindu woman Over her properties. In the text of Manu (VIII, 416) it is said as follows:--

'A wife, a son, and a slave, all these three are declared to have no property; whatever wealth they acquire, is of him, to whom they belong.

A woman should never make expenditure out of the family property belonging to several, or even out of her own wealth without the consent of her husband.'

The text in Mayukha, Chapter IV, Section X, P1. 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 the adhivedanika or other (species of stridhan). Hence, says Manu (ch. IX, V.199):-- 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.'

Even though a restricted view as to the powers of a Hindu woman over her property had been taken by the original writer of texts on Hindu Law, the subsequent commentators on such texts have gradually taken a more and more liberal view as to the said powers. It is not necessary for me to state in detail how the law on this point has gradually been evolved and how a more liberal view came to be taken as to the power of Hindu woman over her property. The precise question, with which we are concerned in this case, is what is saudayika as it is now understood in Hindu Law.

7. This question has been specifically dealt with in the Smriti of Katyayana (400 A.D. 600 A.D.). Katyayana in enumerating what is stridhana property said as follows:--

'894. What was given before the nuptial fire, what was Seven at the tame of the bridal procession, what was given to a woman through affection, what was received from the brother, mother or father -- this stridhana is declared to be sixfold.

'895 What is given to a woman (by anybody) at the time of marriage before (the nuptial) fire, that is declared to he Headhyagni stridhana by the wise.

'896 That again which a woman obtains when she is being taken (in a procession) from her fathter's house (to the bridegroom's) is termed stridhana of the adhyayahanika kind.

'897 Whatever is given (to a woman) through affection by the father-in-law or mother-in-law and what is received at the time of saluting the feet of elders is termed pritidatta (gift through affection).

'898 That is declared to he sulka, which is obtained as the price of household utensils, of beasts of burden, of milch cattle, ornaments and slaves.

'899 Whatever is obtained by a woman after marriage from the family of her husband and also what is similarly obtained from the family of her (father's) kinsmen is said to be anvadheya (gift subsequent).

'900 Whatever is obtained by a woman through affection after her marriage from her husband or from her parents, that is anvadheya. This is the view of Bhrugu.

'901. That is known as saudayika which is obtained by a married woman or by a maiden in her husband's or father's house from her brother or from her parents.'

The last of these verses mentions what is saudayika. The question which is now before us in this case and which was before their Lordships in the cases to which I have already referred rested on the interpretation of this verse. It is necessary, in my opinion, to set out the original of this verse and it reads as follows:--

<;k dU;;k okfi HkrZq% fir`x`gsfiok A

Hkzkrq% ldk'kkfRii=ksokZ yC/ka lkSnkf;da Le`reAA

In interpreting this verse, two questions arise for consideration: (a) what is the meaning of the word ^yC/ke* and (b) is the verse limited only to what is given by the brother or the parents of the woman either in her husband's house or in her father's house.

8. The learned Advocate appearing in support of this appeal contended before us that the verse restricts itself only to gifts that are made out of affection; and secondly he contended that these gifts must be gifts made by the brother or parents of the woman. The learned Advocate further contended that if anything has been given not out of affection but under compulsion that would not come within the scope of this verse, because, that would not be a gift.

In this case, he contended, what was payable by the husband was payable not out of affection but under compulsion, i.e. under a decree obtained by the wife against the husband. That, according to him, cannot come within the scope of this verse. He also contended that, according to this verse, saudayika is what is obtained by a woman from her brother or her parents, and therefore anything obtained by the woman from a person other than her brother or her parents cannot be saudayika.

9. In my opinion, these contentions of the learned Advocate cannot be accepted as sound. I shall first take up the contention, viz. whether or not what is contemplated in this verse is only a gift made out of affection- I have already mentioned that, according to the learned Advocate for the appellant anything given not ont of affection but under compulsion would not come within the scope of this verse. In order to determine this contention it has to be ascertained what is the meaning of the word ^yC/ke*as used in the said verse.

10. The question as to the scope and meaning of the expression ^yC/ke* came to be considered by a Full Bench of the Bombay High Court in 52 Bom LR 238: (AIR 1950 Born 178). Mr. Justice Gajendragadkar who delivered the judgment in that case held that:--

'The word ^yC/ke* or ^izkIre* (labdham or praptam) which has been used by Katyayana in this connection may well include property obtained by her by gift, by bequest, as well as by succession. It is true that most of the discussion relates to gifts made by relations through affection. It is also true that in some of the Smriti texts the word ^nke* (dattam-given ) is used while describing property obtained by a female from her relations, and the word ^nke* (dattam) would not include property obtained by succession, But strictly speaking the word ^nke* (dattam) would denote a Rift by an act inter vivos and from that point of view it may not very appropriately include a bequest. Even so property obtained by bequest has been held to be saudayika stridhana in Fakirgowda v. Dyamawa, (AIR 1933 Bom 287). On principle it is difficult to see why If property obtained under a bequest becomes the sandayika stridhana of the legatee it should not be her saudayika stridhana in case the female obtains it by succession.'

His Lordship further held as follows:--

'But apart from this it seems to us that rending the text of Katyayana as a whole there would be no justification for putting a restrictive interpretation upon the word ^yC/ke* (obtained or received) used by him while describing saudayika property- In fact when Katyayana proceeds to consider woman's power of disposal over her property, he seems to make one broad division and that is between property obtained by a woman by mechanical arts and from strangers through affection on the one hand, and the resfi of her property on the other. He does no doubt deal with the property gifted by the husband to his wife on a different basis; but it may be point ed out that Judicial decisions have not approved of this distinction.'

It should be noted that the question which arose in that Full Bench case of the Bombay High Court was whether or not the property obtained by a woman by inheritance from her parents would come within the scope of that verse and become saudayika property. In order to determine that question, their Lordships had to determine the meaning of the word ^yC/ke*

11. The learned Advocate for the appellant no doubt contended before us that that decision is not in any way helpful for the present case, because, their Lordships were not concerned with the present question. But, in my opinion, their Lordships made the meaning of the word ^yC/ke* which is the word used in the sloka in question quite clear. Their Lordships made it clear that the word ^yC/ke* would mean obtained or received. It is on that view that their Lordships held that what is obtained by way of inheritance would also come within the word ^yC/ke* . I fail to see why, if a property obtained by inheritance can come within the word ^yC/ke* (obtained or received), then property obtained by virtue of a decree from the husband would not also come within that word. On principle it is difficult to see how there can be any distinction between the said two classes of properties. If the meaning of the word ^yC/ke* is obtained or received, then the property obtained or received by virtue of a decree would also come within that word. It is not necessary, in my opinion, that such property in order to be Saudayika must be received out of love or affection as contended by the learned Advocate for the appellant. The text of Katyayana which I have set out before docs not say anything to that effect. All that it says is that what is obtained by a married woman from the persons mentioned in that verse would be her saudayika. I am unable, therefore, to accept this part of the learned Advocate's contention, viz. that in order to be saudayika, the property in question must be obtained by the wife out of affection from her husband and property obtaned by her under a decree cannot he Saudayika.

12. I now come to the next question which is raised by the learned Advocate for the appellant. That question is whether or not saudayika only includes those properties which are obtained by woman from her brother or from her parents. The learned Advocate contended that according to the text of Katyayana, to which it have just now referred, saudayika is what is obtained by a woman from her brothers and Parents. Therefore, he contended, anything obtained from persons other than brothers and parents would not be saudayika. This view does not seem to have been accepted by any of the commentators who commented on the said verse of Katyayana. In 34 Bom LR 1144: (AIR 1932 Bom 559) this point has been elaborately dealt with. As observed by their Lordships in that case:--'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'. Jimutavahana on this point says as follows:--

'That which is received from affectionate kindred (sudaya), is the gift of affectionate kindred (saudayika).'

13. Raghunandana's commentary makes it quite clear:--

'that which is received from an affectionate father, mother, or husband, or from the kindred of these, is a gift from affectionate kindred'.

The text of Vridha Vyasa as quoted by Apararka which when translated reads:--

'That which is received by a woman either at the time or subsequent to the marriage or which is obtained from the house of the father or the brother is called Saudayika'.

Mayukha in Ch. IV, Section X, pp. 5 to 8, Ghar-pure's translation pp. 128 and 129 as pointed out by their Lordships 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).'

Mayne in his Hindu Law, 9th Edition, pp. 971 and 972 in dealing with the text of Katyayana, staves as follows:--

'Provided the gift is made by the husband, or by a relation either of the woman or of her husband, it seems to be immaterial whether it is made before marriage, at marriage, or after marriage; it is equally her saudayika.' Sir Gurudas Banerjee in his Hindu Law of Marriage and Stridhan, 5th Edition, p. 337, states that 'Saudayika, or gift of affectionate kinsmen, is explained as being a general name for several sorts of stridhan.'

The same view has also been taken by Golap-chandra Sarkar Shastri in his Hindu Law, 6th Edition, p. 638-

14. Thus it appears that the commentators on Hindu Law in explaining the said text of Katyayana have taken the view that the words 'her brother' or 'her parents' are merely illustrative and not exhaustive. They have further taken the view that any kind of gift made by the husband or her relations or by the relations of the woman in her father's family whether before marriage, at marriage or after marriage would also become saudayika.

In effect, the law on this point as it now stands is that anything other than property acquired by mechanical arts or received from stranger, is her saudayika and the woman has complete dominion over such property. What is obtained from mechanical arts or received from a stranger would, however, be subject to the dominion of the husband. This is also made clear in the text of Katyana which has been quoted n the Full Bench decision of the Bombay High Court and which reads as follows:--

'904. In that wealth which is obtained (by a woman) by mechanical arts or from a stranger through affection the ownership is of the hus-oand; the rest is declared to be the stridhana.

'905-906. On obtaining wealth of the saudayika kind it is held (Lit. desired) that women have independent ownership (over it), since it was given by them (by the kindred) as a support in order (that they may not be reduced to a terrible (or wretched) condition. It has been declared that women always have independence in saudayika wealth as regards sale or gift at their pleasure and even in immoveables (if saudayika).' In Muthukaruppa Pillai v. Sellathammal, ILR 39 Mad 298: (AIR 1915 Mad 475) Scshagiri Ayyar J. held as follows:--

'An examination of the various commentaries shows that stridhana property is divisible into Yautaka and Ayautaka. Yautaka 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.'

This view taken by Mr. Justice Seshagiri Ayyar conforms with the text of Katyayana to which I have just now referred.

15. The Madras High Court in : AIR1957Mad198 has also taken a similar view. Their Lordships observed as follows:--

'The law regarding gifts before marriage Or wedding gifts or post-nuptial gifts is well settled. These gifts constitute stridhana, literally meaning women's property and a species of it is known by the name of saudayika. Katyayana declares:

'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 a gift from affectionate kindred (sauda-yaka); and such a gift having by them been presented through kindness that the woman possessing it may live well, is declared by law to be her absolute property. The absolute exclusive dominion of women over such a gift is perpetually celebrated.'

Their Lordships quoted a verse of Vyasa which defines Saudayika and which reads as follows:--

'Whatever is obtained by a woman as a maiden at the time of marriage and after marriage from the house of her father or husband is termed saudayika.' Their Lordships then observed as follows:--

'The word 'saudayika' is derived from 'sudaya' and means, according to the Dayabhaga IV. 1-22, I age 76 'received from affectionate kindred.' The Amarekosa says that 'sudaya' means gifts of Yautaka and the like' and at saudayika is merely a derivative without change of meaning. Saudayika means literally a gift made through affection. Therefore Saudayika means all gifts and bequests from relations, but not gifts and bequests from strangers and saudayika of all sorts are absolutely at a woman's own disposal. She may spend, sell, divide, or give it away at her own pleasure.'

These texts and the decisions to which I have referred in my opinion, support the view that whatever is obtained by a woman, except by mechanical process or as gift from strangers, would be her saudayika and she will have absolute dominion over the same.

16. I am, therefore, unable to accept the narrow interpretation which the learned Advocate for the appellant seeks to put on the material text of Katyayana. That view has not been accepted either by any of the commentators who subsequently interpreted the same or by judicial decisions.

17. In the result, therefore, both the contentions of the learned advocate for the appellant fail.

18. This appeal is dismissed with costs.

Hombe Gowda, J.

19. I agree.

20. Appeal dismissed.


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