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Guramma Bhratar Chanbasappa Deshmukh and anr. Vs. Malappa - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Reported inAIR1964SC510; (1964)66BOMLR284; 1964MhLJ133(SC); [1964]4SCR497
ActsHindu Law
AppellantGuramma Bhratar Chanbasappa Deshmukh and anr.
Cases ReferredTukaram Mahadu v. Ramachandra Mahadu I.L.R.
the case debated on powers of the manager in the joint family according to the hindu law - the validity of the gifts of property made to the stranger and to the daughter after the marriage was discussed - it was also discussed if the existence of the son in the embryo invalidates adoption in relevance to partition - it was held that existence of the son in the embryo do not invalidate adoption - that the managing member of the family had power to alienate for value joint family property either for family necessity or for the benefit of the estate - [a.k. sarkar,; m. hidayatullah,; n. rajagopala ayyangar,; raghuvar dayal, jj.] the respondent had brought a suit in the court of the sub- ordinate judge, jalpaiguri for declaration of his title as the sole heir and successor to his.....subba rao, j.1. these two appeals by certificate arise and out of special civil suit no.47 of 1946 filed by nagamma, wife of chanbasappa, for petition and possessionof one-sixth share in the plaint scheduled properties with means profits.chanbasappa died possessed of a large extent of immovable property on january8, 1944. he left behind him three wives, nagamma, guramma and venkamma and twowidowed daughters, sivalingamma and neelamma, children of his pre-deceasedwife. it is alleged that at the time of his death venkamma was pregnant andthat she gave birth to male child on october 4, 1944. it is also alleged thaton january 30, 1944, nagamma, the senior most widow, took her sister's son,malappa, in adoption. a few days before his death, chanbasappa executed giftand maintenance deeds in.....

Subba Rao, J.

1. These two appeals by certificate arise and out of Special Civil Suit No.47 of 1946 filed by Nagamma, wife of Chanbasappa, for petition and possessionof one-sixth share in the plaint scheduled properties with means profits.Chanbasappa died possessed of a large extent of immovable property on January8, 1944. He left behind him three wives, Nagamma, Guramma and Venkamma and twowidowed daughters, Sivalingamma and Neelamma, children of his pre-deceasedwife. It is alleged that at the time of his death Venkamma was pregnant andthat she gave birth to male child on October 4, 1944. It is also alleged thaton January 30, 1944, Nagamma, the senior most widow, took her sister's son,Malappa, in adoption. A few days before his death, Chanbasappa executed giftand maintenance deeds in favour of his wives, widowed daughter, a son of anillegitimate son, and a relative. Long before his death, he also executed twodeeds - one a deed of maintenance and another a gift deed of some property infavour of Nagamma. We shall deal with these alienations in detail inappropriate places.

2. The plaintiff, one of the three surviving windows of Chanbasappa, filedthe aforesaid suit for recovery of her share after setting aside thealienations made by her husband on January 4 and 5, 1944. To that suit, Gurammaand Venkamma, the other two widows of Chanbasappa, were made defendants 1 and2; the alleged adopted son, defendant 3; the alleged posthumous son, defendant4; and the alinees, defendants 5 to 8.

3. Defendant 3 naturally supported the plaintiff, and the other defendantscontested the suit. The contesting defendants denied the factum and validity ofthe adoption of defendant 3 by the plaintiff; and they assured that defendant 4was the posthumous son of Chanbasappa by Venkamma, the second defendant. Thealinees sought to sustain the validity of the alienations in their favour.

4. As many as 12 issues were framed in the case. The learned Civil Judgefound that defendant 3 was taken in adoption by the plaintiff on January 30,1944, but it was invalid in law; that defendant 4 was born to defendant 2 bythe deceased; that the plaintiff had failed to prove that the deeds executed byChanbasappa on January 4, 1944 in favour of defendants 2, 5, 6, 7 and 8 werevitiated by fraud; and that the plaintiff was entitled to one-sixth share inthe suit property and for partition and recovery of the same. In the result hepassed a decree for partition and delivery of the plaintiff's one-sixth sharein the property. He also held that defendants 1 and 2 would each be entitled toone-sixths share and that defendant 4 would be entitled to three-sixths sharetherein. He declared that the deeds executed by the deceased in favour or theplaintiff as well as in favour of the defendants were binding on the parties tothe suit. He directed an enquiry as to the future mesne profits from the dateof the suit. The plaintiff and defendant 3 preferred an appeal to the HighCourt, being First Appeal No. 341 of the 1950 against the decree of the CivilJudge insofar as it went against them. The High Court agreed with the learnedCivil Judge that defendant 4 was the posthumous son of the deceased by thesecond defendant; it accepted the finding of the learned Civil Judge that theadoption took place; but it also held that it was valid in law. It declaredthat the deeds executed by the deceased on January 4 and 5, 1944 in favour ofdefendants 6, 7 and 8 were invalid as also the gift over in favour of defendant5. It held that, as defendants 1 and 2 were getting a share in the property,they were not entitled to separate maintains given to them under the deedexecuted by their husband and directed that that property also should bebrought into the hotchpot and divided between the parties. It declared that theplaintiff and defendants 1 and 2 were each entitled to 4/27 share in the suitproperty, that defendant 3 was entitled to 1/9 share therein, and defendant 4was entitled to 4/9 share therein. It also gave further directions in thematter of partition, costs and mesne profits.

5. Plaintiff and defendant 3 preferred Civil Appeal No. 335 of 1960, anddefendants 1, 2, 4 and 5, the legal representatives of defendant 7 anddefendant 8 preferred Civil Appeal No. 334 of 1960 to this Court against thedecree of the High Court insofar as it went against them.

6. At the outset it would be convenient to clear the ground and focus ourattention on the outstanding points of difference between the parties. Thefactum of adoption of defendant 3 by the plaintiff is accepted, but itslegality is questioned. The fact that the 4th defendant, is the posthumous sonof Chanbasappa by the 2nd defendant is also disputed. In the result thefollowing 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 ata time when defendant 4 had already been conceived. (2) Whether the alienationsin favour of defendants 2, 5, 6, 7 and 8 are binding on the members of thefamily. And (3) What is the share of an adopted son of sudra in competitionwith the natural born son ?

7. Mr. Viswanatha Sastri, appearing for defendants 1 and 4 (Appellants 1 and3 in Civil Appeal No. 334 of 1960) contends that the adoption of defendant 3was void inasmuch as at the time of the adoption defendant 4 had beenconceived. He presses on us to extend the legal position, by analogy, of theright of a son in the womb at the time his father made an alienation of afamily property to set aside that alienation, to that of an adopted son itsimilar circumstances.

8. The Hindu law texts do not throw much light on the subject. DattakaChandrika and Dattaka Mimamsa are the treatises specially composed on thesubject of adoption. Nanda Pandita cites the following texts of Atri and Cankhain Dattaka Mimamsa :

9. In section 13, Nanda Pandita explains that the term 'destitute of ason' must be understood to include a son's son and grandson. In DattakaChandrika the relevant part of the text of Cankha is stated thus :

10. These texts ex facie do not equate a son in existence with a son in thewomb. If the authors of the said treatises intended do equate the one with theother, they would not have left it in doubt, for such an extension of thedoctrine would introduce an element of uncertainty in the matter of adoptionand defeat, in some cases, the religious object underlying adoption. It is nowwell settled that the main object of adoption is to secure spiritual benefit tothe adopter, though is secondary object is to secure an heir to perpetuate theadopter's name. Such being the significance of adoption, its validity shall notbe made to depend upon the contingencies that may or may not happen. It issuggested that an adoption cannot be made unless there is certainty of notgetting a son and that if the wife is pregnant, there is likelihood of theadopter begetting a son and, therefore, the adoption made is void. The textscited do not support the said proposition. It acceptance will lead toanomalies. Suppose a husband who is seriously ill and who had no knowledge ofthe pregnancy of his wife, makes an adoption; in such an event, the existenceof a pregnancy, of which he has no knowledge, invalidates the adoption, whetherthe pregnancy turns out to be fruitful or not. If he has knowledge of thepregnancy, he will not be in a position to take a boy in adoption, thoughultimately the wife may have an abortion, or deliver a still-born child or thechild born may turn out to be a girl. Further, as it is well settled law that ason include a son's son and a grandson of the son, the pregnancy of a son'swidow or a grandson's widow, on the parity of the said reasoning, willinvalidate an adoption. We cannot introduce such a degree of uncertainty in thelaw of adoption unless Hindu law texts or authoritative decisions compel us todo so. There are no texts of Hindu law imposing of condition of non-pregnancyof the wife or son's widow or a grandson's widow for the exercise of a person'spower to adopt. The decisions of the High Court on the subject discountenancethe acceptance of any such condition. But there is a decision of Sudra Adalutin Narayana Reddi v. Varadachala Reddi 1859 M.S.D. 97., wherein it was observed that it was of the essence of the power toadopt that the party adopting should be hopeless of having issue. Mr. Maynecommenting upon the said observation drew a distinction between a husbandtaking a boy in adoption knowing that his wife was pregnant and doing sowithout the said knowledge and stated :

11. A division Bench of the Madras High Court in Nagabhushanam v.Seshammagaru I.L.R. 1878 Mad. 180 criticized the opinion of thepandits as well as the observation of Mr. Mayne, and came to the conclusionthat an adoption by a Hindu with knowledge of his wife's pregnancy was notinvalid. The Bombay High Court in Shamavahoo v. Dwarkadas Vasanji I.L.R. (1888) Bom. 202 accepted the said view. A division Bench of the AllahabadHigh Court in Daulat Ram v. Ram Lal I.L.R. (1907) All. 310 followed theMadras and Bombay decisions. No other decision has been brought to our noticeeither taking a different view or throwing a doubt thereon. All textbooks -Mayne, Mulla, Sarkar Sastri - accepted the correctness of the said view withoutany comment.

12. Mr. Viswanatha Sastri contends that under the Hindu law a son conceivedor in his mother's womb is equal in many respects to a son actually inexistence in the matter of inheritance, partition, survivorship and the rightto impeach an alienation made by his father and that, therefore, logically thesame equation must hold good in the case of adoption. When a son in hismother's womb is equated with a son in existence vis-a-vis his right to setaside an alienation or to reopen a partition, the argument proceeds, the fathercannot validly adopt, as from the date of conception the son must be deemed tobe in existence. But there is an essential distinction between an alienation,partition and inheritance on the one hand and adoption on the other : his rightto set aside an alienation hinges on his secular right to secure his share inthe property belonging to the family, as he has a right by birth in the jointfamily property and transaction effected by the father in excess of his powerwhen he was in embryo are voidable at his instance : but, in the case ofadoption, it secures mainly spiritual benefit to the father and the power toadopt is conferred on him to achieve that object. The doctrine evolved whollyfor a secular purpose would be inappropriate to a case of adoption. We shouldbe very reluctant to extend it to adoption, as it would lead to many anomaliesand in some events defeat the object of the conferment of the power itself. Thescope of the power must be reasonably construed so as to enable the donee ofthe power to discharge his religious duty. We, therefore, hold that theexistence of a son in embryo does not invalidate an adoption.

13. The next contention of Mr. Viswanatha Sastri is that the High Court,having set aside the alienations made by Chanbasappa, should have brought intohotchpot the property covered by the said alienations for the purpose ofpartition. The particulars of the alienations may be noticed at this stage.


S. Exhibit Nature of Properties

No. No. Date In favour of document comprised of


1. 362 4-1-44 D-1 Guramma Deed of Plt. Sch. A.


2. 372 5-1-44 D-2 Venkamma Deed of Plt. Sch. A.

maintenance &

giftover to D-5

3. 369 4-1-44 D-6 Imam Deed of Gift. Plt. Sch. A.


4. 370 4-1-44 D-7 Channappa Deed of Plt. Sch. A-3

5. 371 4-1-44 D-8 Neelamma Deed of Plt. Sch. A-3



346 30-1-37 Plff. Nagamma Deed of


347 14-2-39 Plff. Nagamma Deed of Gift.

14. This argument is based upon a misapprehension. The High Court, havingset aside the alienations, including those in favour of defendants 1 and 2directed the said property to be divided in accordance with the shares declaredby it. This position is also conceded on behalf of the plaintiff and defendant3. We need not, therefore, pursue this matter.

15. Mr. K. R. Chaudhri, following Mr. Viswanatha Sastri, further contendsthat the High Court went wrong in making a distinction between the documentsexecuted in favour of the plaintiff in that while it confirmed the documentsExs. 346 and 347 executed in favour of the plaintiff, it set aside the deedsexecuted in favour of defendants 1 and 2. There are no merits in thiscontention. The documents executed in favour of the plaintiff are Exs. 346dated January 30, 1937 and 347 dated February 14, 1939. These two documentswere executed by Chanbasappa at a time when he was the sole survivingcoparcener, whereas he executed the documents in favour of defendants 1 and 2after the 4th defendant was conceived. The former were executed when he hadabsolute power of disposal, whereas the latter were executed when he had ceasedto have the said power. On the basis of this distinction the High Court rightlyset aside the alienations made in favour of defendants 1 and 2.

16. Mr. Naunit Lal, appearing for some of the legal representatives ofdefendants 7 who are appellants 6, 9 to 11 and 12 in Civil Appeal No. 334 of1960 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 7and 8 were binding on the members of the family. The High Court held thatChanbasappa could not have validly made these gifts of immovable property of thejoint family after the 4th defendant was conceived and, therefore, they werevoid. Mr. Naunit Lal broadly contends that the alienations effected byChanbasappa were voidable only at the instance of the 4th defendant, who was inthe womb on the date of the alienation and that as he has chosen to adopt them,the third defendant, who was adopted subsequent to the alienations, could notquestion their validity. Before we advert to the legal aspects of the argument,it may be stated at once that no question of consent of the 4th defendant canpossibly arise in this case, as he was not born when the alienations were madeand he was a minor at the time the suit was filed. We must, therefore, proceedon the basis that the alienations were made by one of the members of the jointfamily without the consent of the other members of the family. If so, at thetime the alienations were made Chanbasappa had not the absolute power toalienate the family property, but only a limited one to do so for the purposeof necessity or benefit of the estate. The relevant principles are wellsettled. 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 ancestralproperty of the family. A managing member of the family has power to alienatefor value joint family property either for family necessity or for the benefitof the estate. An alienation can also be made by a managing member with theconsent of all the coparceners of the family. The sole surviving member of acoparcenary has an absolute power to alienate the family property as at thetime of alienation there is no other member who has joint interest in thefamily. If another member was in existence or in the womb of his mother at thetime of the alienation, the power of the manager was circumscribed as aforesaidand his alienation would be voidable at the instance of the existing member orthe member who was in the womb but was subsequently born, as the case may be,unless it was made for purpose binding on the member of the family or theexisting member consented to it or the subsequently born member ratified itafter he attained majority. If another member was conceived in the family orinducted therein by adoption before such consent or ratification, his right toavoid the alienation will not be affected : See Avdesh Kumar v. Zakaul HassainI.L.R. [1944] All. 612; Chandramani v. Jambeswara : AIR1931Mad550 ;and Bhagwat Prasad Bahidar v. Debichand Bogra I.L.R. (1941) Pat. 727. In theinstant case the impugned alienation were made at a time when the 4th defendantwas in the womb i.e., at a time when Chanbasappa had only a limited right ofdisposal over the joint family property. The 4th defendant being in the womb,he could not obviously give his consent, nor ratify the alienations before theadoption 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 theestate, they would be voidable at the instance of the 3rd or 4th defendant.

17. 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 8thdefendant. The High Court, agreeing with the learned Civil Judge, set aside thegifts on the ground that the donor had no power to make a gift of the familyproperty. Learned counsel for the legal representatives of the said defendantsseeks to sustain the validity of the said two gifts. We shall consider thevalidity of the two gift deeds separately.

18. Ex. 370 dated January 4, 1944, is a gift deed executed by Chanbasappa infavour of Chanbasappa, the 7th defendant, in respect immovable property valuedat Rs. 1,500/-. The donee was described as the donor's relative. The gift wasmade in token of love for the services rendered by the donee to the donorduring the latter's lifetime. The gift was made, as it was narrated in thedocument, out of love and affection for the donee. It is contended that thesaid gift was for pious purposes and, therefore, valid in law. Can it be saidthat a gift of this nature to a relative out of love and affection is a giftfor 'pious purposes' within the meaning of that expression in Hindulaw In Mitakshara, Ch. I, s. 1, v. 28, it is stated :

19. In support of his contention that pious purposes include a charitablepurpose; learned counsel relies upon certain passages in Mukherjea's'Hindu Law of Religious and Charitable Trust', 2nd Edn. The learnedauthor says at p. 12 :

20. The learned author proceeds to state, at p. 58 :

I.L.R. (1907) Mad. 340

21. The learned author defined the words Istha and Purtta briefly thus, atp. 10 :

22. It may, therefore, be conceded that the expression 'piouspurposes' is wide enough, under certain circumstances, to take incharitable purposes though the scope of the latter purposes has nowhere beenprecisely drawn. But what we are concerned with in this case is the power of amanager to make a gift to an outside of a joint family property. The scope ofthe limitations on that power has been fairly well settled by the decisionsinterpreting the relevant texts of Hindu law. The decisions of Hindu lawsanctioned gifts to strangers by a manager of a joint Hindu family of a smallextent of property for pious purposes. But no authority went so far, and nonehas been placed before us, to sustain such a gift to a stranger however muchthe donor was beholden to him on the ground that it was made out of charity. Itmust be remembered that the manager has no absolute power of disposal overjoint Hindu family property. The Hindu law permits him to do so only withinstrict limits. We cannot extend the scope of the power on the basis of the wideinterpretation given to the words 'pious purposes' in Hindu law in adifferent context. In the circumstances, we hold that a gift to a stranger of ajoint family property by the manager of the family is void.

23. 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 documentit is recited thus :

24. Under the said deed the daughter should enjoy the property during herlifetime and thereafter it should go to the 5th defendant. The gift-over wouldinevitably be invalid. But the question is whether the provision for thedaughter's maintenance during her lifetime would also be invalid. Thecorrectness of the recitals are not questioned before us. It is in evidencethat the family possesses a large extent of property, worth lakhs. The shortquestion is whether the father could have validly conferred a life-interest ina small bit of property on his widowed daughter in indigent circumstances for hermaintenance. It is said that the Hindu law does not permit such a gift. InJinnappa Mahadevappa v. Chimmava I.L.R. 1935 Bom. 459, the BombayHigh Court under accepted the legal position. Rangnekar J. held that under theMitakshara school of Hindu law, a father has no right make a gift even of asmall 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 old age. Thelearned Judge distinguished all the cases cited before him on the ground thatthey were based upon long standing customs and ended his judgment with thefollowing observations :

25. We agree with the learned Judge that sympathy is out of place in layingdown the law. If the Hindu law texts clearly and expressly prohibit the makingof such a gift of the family property by the father to the widowed daughter inindigent 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, considerthe relevant Hindu law texts bearing on the subject.

26. At the outset it would be convenient to clear the ground. Verses 27, 28and 29 in Ch. I, Mitakshara, describe the limitations placed on a father inmaking gifts of ancestral estate. They do not expressly deal with the right ofa father to make provision for his daughter by giving her some family propertyat the time of her marriage or subsequently. That right is defined separatelyby Hindu law texts and evolved by a long catena of decisions, based on the saidtexts. The relevant texts have been collected and extracted in Vettorammal v.Poochammal : (1912)22MLJ321 . Section 7 of the Ch. I, Mitakshara, dealswith provision for widows, unmarried daughters etc. Placitum 10 and 11 providefor portions to sisters when a partition is made between the brothers after thedeath of the father. The allotment of a share to daughters in the family isregarded as obligatory by Vignaneswara. In Ch. I, s. 7 pp. 10 and 11, he says :

27. He relies on the text of Manu to the effect that they who refuse to giveit shall be degraded : Manu Ch. I. s. 118. In Placitum 11, Ch. I, withholdingof such a portion is pronounced to be a sin. In Madhaviya, pp. 41 and 42, atext of Katyayana is cited authorizing the gift of immovable property by afather to his daughters beside a gift of movables upto the amount of 2,000phanams a year. In Vyavahara Mayukha, p. 93, the following text of Brihaspatiis also cited by the author of the Madhaviya to the same effect :

28. Devala says :

29. Manu says :

30. These and similar other texts indicate that Hindu law texts not onlysanction the giving of property to daughters at the time of partition or at thetime of their marriage, as the case may be, but also condemn the dereliction ofthe said duty in unequivocal terms. It is true that these Hindu law texts havebecome obsolete. The daughter has lost her right to a share in the familyproperty at the time of its partition. But though the right has been lost, ithas been crystallized into a moral obligation on the part of the father toprovide for the daughter either by way of marriage provisions or subsequently.Courts even recognised making of such a provision not only by the father butalso after his death by the accredited representative of the family and even bythe widow. The decision in Kudutamma v. Narasimhacharyalu (1907) 17 M.L.J. 528 is rather instructive. There, it is was held that a Hindu father wasentitled to make gifts by way of marriage portions to his daughters out of thefamily property to a reasonable extent. The first defendant was thehalf-brother of the plaintiffs and the father of the 2nd defendant. After thedeath of his father and after the birth of the 2nd defendant he for himself andas guardian of the 2nd defendant executed a deed of gift to the plaintiffsjointly, of certain portions of the joint family property. The question waswhether that gift was good. It will be seen from the facts that the gift wasmade by the brother to his half-sisters not at the time of their marriage butsubsequently. Even so, the gift was upheld. Wallis J. in his judgment pointedout that unmarried daughters were formerly entitled to share on partition andthat after marriage they were entitled to an endowment and that though thatright fell into desuetude, a gift made to a daughter was sustained by Courts asa provision for the married couple. The learned Judge summarized the positionthus, at p. 532 :

31. If such a provision was not made at the time of marriage, the learnedJudge indicated that such moral obligation could be discharged subsequently bya representative of the family. To quote his observations - 'Mere neglecton the part of the joint family to fulfil a moral obligation at the time of themarriage, cannot, in my opinion, be regarded as putting an end to it, and I thinkit continued until it was discharged by the deed of gift now sued on andexecuted after the father's death by his son, the 1st defendant who succeededhim as managing member of the joint family'. Another division Bench of theMadras High Court considered the question in Sundararamaya v. Seethamma : (1911)21MLJ695 and declared the validity of a gift of 8 acres of ancestralland by a Hindu father to his daughter after marriage when the family waspossessed of 200 acres of land. The marriage took place about forty yearsbefore the gift. There was no evidence that the father then had any intentionto give any property to the daughter. The legal position was thus expounded bythe learned Judges, Munro and Sankaran Nair JJ.

32. Another division Bench of the Madras High Court in Ramaswamy Ayyer v.Vengidusami Ayyer I.L.R. 1898 Mad. 113 held that a gift of land made bya widow, on the occasion of her daughter's marriage, to the bridegroom wasvalid. Sundara Aiyer and Spencer JJ. held in Vettorammal v. Poochammal : (1912)22MLJ321 that a gift made by a father to his own daughter or by a managingmember to the daughter of any of his coparceners, provided it be of areasonable amount, is valid as against the donor's son. After elaboratelyconsidering the relevant texts on the subject and the case law bearing thereon,the learned Judges came to the conclusion that the plaintiff's father wascompetent to make a gift of ancestral property to the 1st defendant, hisbrother's daughter. The learned Judges also held that the validity of the giftwould depend upon its reasonableness. The legal basis for sustaining such agift was formulated by the learned Judges at p. 329 thus :

33. In Bachoo v. Mankorebai I.L.R. (1907) Bom. 373, the Judicial]Committee held that a gift by a father, possessed of considerable ancestralproperty, of a sum of Rs. 20,000/- to his daughter was valid. No doubt this wasnot a gift of immovable property; but there is no difference in the applicationof the principles to a gift of immovable property as illustrated by thedecision of the Judicial Committee in Ramalinga Annavi v. Narayana Annavi(1922) 49 I.A. 168. There, both the Subordinate Judge and the High Courtheld that the assignments by a member of a joint Hindu family to his daughtersof a sum of money and of a usufructuary mortgage were valid, as they werereasonable in the circumstances in which they were made. The Privy Councilconfirmed the finding of the High Court. In considering the relevant point, Mr.Ameer Ali observed at p. 173 thus :

34. Venkataramana Rao J. in Sithamahalakshmamma v. Kotayya : AIR1936Mad825 had to deal with the question of validity of a gift made by a Hindu fatherof a reasonable portion of ancestral immovable property to his daughter withoutreference to his son. Therein, the learned Judge observed at p. 262 :

35. Adverting to the question of the extent of property he can gift, thelearned Judge proceeded to state :

36. This decision was followed by Chandra Reddy J. of the Madras High Courtin Annamalai v. Sundarathammal : AIR1953Mad404 , 784). A division Bench ofthe Calcutta High Court in Churaman Sahu v. Gopi Sahu I.L.R. (1910) Cal. 1held that it was competent to a Hindu widow governed by the Mitakshara law tomake a valid gift of a reasonable portion of immovable property of her husbandto her daughter on the occasion of the daughter's gowna ceremony. The learnedJudges have followed some of the aforesaid decisions of the Madras High Court.

37. It is, therefore, manifest that except the decision of a single Judge ofthe Bombay High Court in Jinnappa Mahadevappa v. Chimmava I.L.R. (1935) Bom. 459 all the decisions on the subject recognize the validity of a gift ofa reasonable extent of joint family property to a daughter under varyingcircumstances. The observations of Rangnekar J. that Hindu law does notsanction the validity of such a gift and that the said decision were based onlyon long standing custom do not appear to be correct. The Hindu law texts aswell as decided cases support such a gift.

38. The legal position may be summarized thus : The Hindu law textsconferred a right upon a daughter or a sister, as the case may be, to have ashare in the family property at the time of partition. That right was lost byefflux of time. But it became crystallized into a moral obligation. The fatheror his representative can make a valid gift, by way of reasonable provision forthe maintenance of the daughter, regard being had to the financial and otherrelevant circumstances of the family. By custom or by convenience, such giftsare made at the time of marriage, but the right of the father or hisrepresentative to make such a gift is not confined to the marriage occasion. Itis 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 canbe discharged at any time, either during the lifetime of the father orthereafter. It is not possible to lay down a hard and fast rule, prescribingthe quantitative limits of such a gift as that would depend on the facts ofeach case and it can only be decided by Court, regard being had to the overallpicture of the extent of the family estate, the number of daughters to beprovided for and other paramount charges and other similar circumstances. Ifthe father is within his rights to make a gift of a reasonable extent of thefamily property for the maintenance of a daughter, it cannot be said that thesaid 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 pluralityof document but on the power of the father to make a gift and thereasonableness of the gift so made. If once the power is granted and thereasonableness of the gift is not disputed, the fact that two gift deeds wereexecuted instead of one, cannot make the gift anytheless a valid one.

39. Applying the aforesaid principles, we have no doubt that in the presentcase, the gift made by the father was within his right and certainlyreasonable. The family had extensive properties. The father gave the daughteronly a life-estate in a small extent of land in addition to what had alreadybeen given for her maintenance. It has not been stated that the gift made bythe 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 onthe 8th defendant.

40. Mr. Chatterjee, learned counsel for the respondents in Civil Appeals No.334 of 1960 and appellants in Civil Appeal No. 335 of 1960, contended on behalfof the adopted son that in a competition between an adopted son and asubsequent born natural son among Sudras, each takes an equal share in thefamily property. A controversy was raised before us on the question whether theLingayats, to which community the parties belong, are Sudras or dwijas. TheBombay High Court in Tirkangauda Mallanagauda v. Shivappa Patil I.L.R. [1943] Bom. 706., after considering the relevant authorities on the question, held asfollows, at p. 742 :

I.L.R. (1879) Bom. 273

41. In this case it is not necessary to express our opinion on the questionwhether Lingayats are Sudras or not, for we proceed on the assumption that theyare, or at any rate that the Hindu law applicable to Sudras applies to them.

42. In Arumilli Perrazu v. Arumilli Subbrayadu (1921) 48 I.A. 280 it washeld by the Judicial Committee that among Sudras in the Madras Presidency anadopted son on partition of the family property would share equally with a sonor sons born to the adoptive father after the adoption. The Judicial Committeebased its conclusion mainly on the following ground :

I.L.R. (1915) Mad. 632

43. It will be seen that the decision rested on the fact that DattakaChandrika was the recognized authority in the Madras Presidency and that therule that an adopted son and an afterborn natural son take in equal shares thefamily property had been followed for over a century. On this decision SarkarSastri commented in his valuable book on Hindu Law, 8th Edn., at p. 211, thus :

(1921) 48 I.A. 280

44. In Bengal where Dattaka Chandrika is given same importance as in theMadras Presidency, the same rule has been followed in the matter of partitionbetween an adopted son and an after-born natural son among Sudras : see Asitav. Nirode 20 C.W.N. 901. It is not necessary to pursue that matter. Itmay be adopted that in Bengal and Madras the said rule governs the sharesbetween them. But in Bombay, Dattaka Chandrika is not given the place of honouras in Madras and Calcutta. As early as 1892, a division Bench of the BombayHigh Court in Giriapa v. Hingappa I.L.R. (1892) Bom. 100 had to considerthe question of shares inter se between an adopted son and an after-born aurasason. It held that in Western India, both in the districts governed by theMitakshara and those specially under the authority of Vyavahara Mayukha, theright of the adopted son, where there was a legitimate son born after theadoption, extended only to a fifth share of the father's estate. The questiontherein was whether the adopted son takes one-fourth of the estate orone-fourth of the natural born son's share in the property. After consideringall the relevant texts the division bench came to the conclusion that he takesone-fourth of a natural born son's share. After the decision of the JudicialCommittee in Perrazu v. Subbrayadu (1921) 48 I.A. 280 another division Benchof the Bombay High Court, in Tukaram Mahadu v. Ramachandra Mahadu I.L.R. (1925) Bom. 672 reviewed the law and came to the sameconclusion. Adverting to the Privy Council decision, the learned Judges of theBombay High Court observed :

(1921) 48 I.A. 280

45. Then the learned Judges posed the following question :

46. After citing the relevant extracts from the decision of the JudicialCommittee, the learned Judges proceeded to answer thus :

47. Coyajee J., said much to the same effect :

I.L.R. (1892) Bom. 100

48. Steele in his valuable book on Hindu Law and Customs compiled as farback as 1868, did not find any justification for excepting the Sudras from thegeneral rule. It is, therefore, manifest that in Bombay Presidency the ruleaccepted in Dattaka Chandrika has never been followed and the share of anadopted son in competition with a natural born son among Sudras has always been1/5th 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 longestablished rule prevalent in the Bombay State. We, therefore, cannot accept theargument of Mr. Chatterjee in this regard.

49. In the result, Civil Appeal No. 335 of 1960 filed by the plaintiff anddefendant 3 is dismissed with costs, and Civil Appeal No. 334 of 1960 filed bydefendants 1, 2, 4, 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 appealfiled by her is allowed with costs proportionate to her interest in theproperty throughout.

50. Appeal No. 335 dismissed.

51. Appeal No. 334 partly allowed.

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