1. This appeal arises out of a suit brought by the plaintiffs for a declaration that a deed of gift executed by the first defendant in favour of the defendants 3 to 6 on 12th February, 1925, will not be operative as against the plaintiffs after the death of the first defendant. The first defendant is a daughter of one Subbayya who had three sons, namely, the first plaintiff, the second defendant and the second plaintiff's father. It would appear that some time before 1900 there was a partition in the family, not evidenced by any document, and that at that time about 24 acres of land were allotted to the first defendant. The plaintiffs attempted to prove an express arrangement at the time that the first defendant was to take only a life interest in the property. The Courts below have refused to believe the oral evidence on this point and I see no reason to go behind their view in this matter. The plaintiffs also relied upon a document, Ex. A, of 1900 wherein it is provided that this lady should enjoy the property for her life and that thereafter it should be divided between the plaintiffs and the second defendant. The learned Subordinate Judge has held that it has not been proved that the first defendant was aware of the contents of Ex. A or that her mark was put to it with her consent. With this conclusion also I am not prepared to interfere. But the question still remains what, in the absence of any direct evidence one way or the other, is the quantum of interest that the first defendant must be taken to possess in these properties.
2. The learned Subordinate Judge starts the discussion of the question in paragraph 7 with a statement that the burden of proving that the properties were given to the first defendant only to be enjoyed for her life and not with absolute rights of disposition is upon the plaintiffs. I am not able to agree that that is the true position. I am inclined to think that there is no question of burden of proof in these matters and the Court has to determine the quantum of interest which the first defendant has, independently of any particular view of burden of proof. The learned Subordinate Judge next goes on to say 'There is no presumption that properties given to a female are given only with limited rights and not with absolute rights.' In a sense that statement is indisputable but the exceptions to it are so many that it is perhaps not safe to attempt to lay down any general rule one way or the other. Where the matter turns on the construction of a document, it is possible at this time of the day to say that Courts have leaned towards giving the widest interpretation to the words used, independently of the sex of the grantee. But the difficulty in this case is not merely that there is no document to be construed but that the circumstances are such that it would be scarcely correct to speak of any gift or disposition of property having been intended in favour of the first defendant.
3. The evidence shows that the first defendant became a widow even while she was aged about 11 and that ever thereafter she had been living with her father. If, in those circumstances, at a time when the father is dividing the family property between his sons, he allots certain property to the widowed daughter of his who has been living with him for several years and does not think it necessary to embody the arrangement in her favour in any document, it seems to me much more consistent with probabilities to assume that it was intended only as a provision for her maintenance. It is one thing to say that she is not legally entitled to maintenance though even on this point there are cases in this Court justifying an allotment of joint family property by a father in favour of his indigent daughter. But, apart from any legal liability, if the father and his sons agree to make an allotment to the daughter in circumstances of the kind above stated, I am unable to hold that it could have been intended to be an absolute gift in her favour. In Ramaswami v. Papayya : (1893)3MLJ205 while recognising that there is no presumption that a gift in favour of a Hindu daughter must be taken to be only of a limited interest, the learned Judges laid stress on the fact that the daughter there was under coverture and not a widow. In this case the first defendant had become a widow quite early in life, she had no children and the gift of an absolute estate to her would merely mean that after her death the property will devolve upon her husband's reversioners. On the other hand, if all that was intended was that she should have the use of the property during her lifetime, it will remain in the family itself after her death. I am unable to ignore these considerations, merely out of regard for the theory that every gift must be presumed to be an absolute gift independently of the sex of the grantee.
4. It was argued before me on behalf of the respondents that the question is one of fact and that I will not be justified in differing from the conclusion of the Courts below. I am unable to see how the question whether in particular circumstances a person takes a limited estate or an absolute estate can be said to be a question of fact. There is no doubt a statement in the depositions of D.W's 2 and 3 that the share was given to the first defendant to be enjoyed by her absolutely but the lower Appellate Court does not base its conclusion upon this statement in the oral evidence. That D.W. 2 knows next to nothing of the affairs of the family is clear from the fact that according to him first defendant's husband lived ten years after the marriage with the first defendant and that the first defendant attained age and lived with her husband for three years: a story which is opposed to the evidence of the first defendant herself.
5. In paragraph 13 of the lower Appellate Court's judgment reference is made to some evidence led on behalf of the first defendant to show that Subbayya utilised some properties of the first defendant's husband and that that was the reason why he gave these lands to the first defendant. Even if the story is held to be proved, I do not see that it bears very much on the question of the quantum of interest taken by the first defendant. As I pointed out already, Subbayya and his sons were under no kind of obligation to make any provision for the first defendant and if Subbayya had taken some monies belonging to the first defendant's husband, it may explain a life allotment quite as much as an absolute allotment. The District Munsif observes that the first defendant states in her evidence that the lands were given to her with absolute powers because her father acquired lands with the money brought by her husband. I regret to observe that for reasons best known to herself D.W. 3 has carefully refrained from swearing to any such statement. In her chief examination she contents herself with a statement that before her marriage her father had no lands and says nothing more as to her father having taken any funds of her husband. In cross-examination she only adds that her husband had no land but only money. It is therefore incorrect to state that the defendant deposed that her father utilised any funds of her husband. D.W. 1 takes care to say-even in chief examination that he does not know under what conditions the share was given to Mangamma, though he asserts that Subbayya increased his property by the property of Mangamma and hence gave her a share. The learned Subordinate Judge has not expressed himself very definitely as to how much of this kind of evidence he accepts. The only two sentences relevant to this subject are 'The father would not have given a share equal to that of his sons if he had not got some property of the first defendant's husband. The oral evidence shows that some property of the first defendant's husband was with Subbayya'. But he bases his conclusion against the plaintiff's case not upon this theory but upon the absence of a document at the time of the partition. Even if I should understand the learned Subordinate Judge as being of opinion that Subbayya had the use of some funds of the first defendant's husband, without any definite knowledge as to the quantum thereof, I do not see that that throws much light upon the nature of the estate or interest intended to be taken by the first defendant.
6. Under the Hindu Law, even the texts which recognise the giving of a share to a daughter at the time of a partition only proceed on the footing that she takes a qualified interest therein and not an absolute interest. The fact that the father allotted to the first defendant the same extent of land as he gave to the sons seems to me more in favour of the view that she was taking the lands only for her life than that she was intended to take them absolutely so as to divert the line of inheritance altogether.
7. I would therefore set aside the decree of the Courts below and give a declaration that the gift deed dated 12th February, 1935, is not operative beyond the first 'defendant's lifetime. In the view I have taken I do not propose to express any opinion as to how far the third plaintiff who is not a member of the family will get any rights by virtue of this declaration, because I have found against the express arrangement put forward by the plaintiffs. In the circumstances of the case I direct the parties to bear their own costs throughout.