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Sri Thakurji Through Parmeshari Das Vs. Nanda Ahir - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in55Ind.Cas.317
AppellantSri Thakurji Through Parmeshari Das
RespondentNanda Ahir
Cases ReferredSahu Ram Chandra v. Bhup Singh
Excerpt:
hindu law - joint family property--co--parcener, power of, to transfer without consent of all coparceners. - - ' i do not think it safe to take this exception and to qualify it in any way......and 4 1/2 dants in favour of the defendant no. 1. the allegation was that this property was the joint property of the family; that sovai aforesaid had no right to give it in gift : that the defendant had taken possession of the entire 15 gandas and 4 1/2 dants; that the property was not the self-acquired property of sovai. the finding of the lower appellate court is that he agrees with the munsif that it was satisfactorily proved that sovai acquired the property in question from the income of the joint ancestral property and that at the time he acquired it, he, nanda and his other sons were joint with him, and that sovai had no right to give the property away by gift. the lower appellate court decreed the plaintiff's claim for recovery of possession of 1 1/2 pies only and declared the.....
Judgment:

George Knox, J.

1. The appellant in this second appeal is Sri Thakurji through Parmeshri Das. The suit was instituted by one Nanda Ahir and the relief claimed by him was that a decree might be given him for possession of 15 gandas and 41/2. dants share together with sir land, etc., by removal of the unlawful possession of the defendant, first party, and cancelment of a wakfnama so called dated the 1st of November 1911. In the lower Appellate Court's judgment the facts are given that on the 1st of April 1901 Sovai Ahir, father of the plaintiff, executed a deed of gift of 1 1/2 pies out of 15 gandas and 4 1/2 dants in favour of the defendant No. 1. The allegation was that this property was the joint property of the family; that Sovai aforesaid had no right to give it in gift : that the defendant had taken possession of the entire 15 gandas and 4 1/2 dants; that the property was not the self-acquired property of Sovai. The finding of the lower Appellate Court is that he agrees with the Munsif that it was satisfactorily proved that Sovai acquired the property in question from the income of the joint ancestral property and that at the time he acquired it, he, Nanda and his other sons were joint with him, and that Sovai had no right to give the property away by gift. The lower Appellate Court decreed the plaintiff's claim for recovery of possession of 1 1/2 pies only and declared the deed of gift in respect of it invalid. On behalf of the appellant it is contended that the gift, being only of a small portion of the donor's property, was valid under the Hindu Law, and in support of this contention reference is made to a passage in the Mitakshara, being Slokas 28 and 29 of the Mitakshara, Chapter I, Section 1, in part 2 of the Law of Inheritance. Reference is also made to the case of Gopal Chand Pande v. Babu Kunwar Singh 5 Sud. Dew. Adalat Rep. 24 : 7 Ind. Dec. (O.S.) 355 and Raghunath Prasad v. Gobind Prasad 8 A. 76. In this last named case the learned Judges say: 'That an examination of the authorities is sufficient to show that a father is competent to deal with ancestral property, not only for the especial exigencies mentioned by the Judge, but also to make pious and reverential gifts to Brahmans, as Brahmutra Krishnarpana,' also 'gifts from affection towards Vishnu and other divinities.' Looking into the original text, in the passage quoted, this seems to be an extension of the word there used. Paragraph 27 begins by saying that it is settled that ownership in the father's and grandfather's estate is by birth, and paragraph 26 is cited as an exception to the above, but one of the limitations attached to this exception is that the alienation most be during a season of distress (apat kale) for the sake of the family and specially for pious purposes. I do not think we can eliminate the words during a season of distress' from the rest. Following the ordinary rules of interpretation they qualify the following words; and in the present case, it has not been established that the transfer in dispute was made 'during a season of distress.' It is suggested that the mention made in the plaint in para graph 2, namely, 'that the plaintiff was sentenced to transportation for life in a murder case and after sixteen years he was released and came here in Jeth last,' covers the provision 'during a season of distress.' I have been referred to no evidence which shows that the transfer was made 'during a season of distress.' I do not think it safe to take this exception and to qualify it in any way. Then, besides that, we have the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 15 A.L.J. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 126 (P.C.) which lays down broadly tbat joint family property cannot be the subject of a gift, sale or mortgage by one co-parcener except with the consent, express or implied, of all the other co-parceners. For the passage from the Mitakshara see page 442. Page of 15 A.L.J.-Ed.

2. For these reasons I dismiss this appeal with costs.


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