1. The 1st defendant is the half-brother of the plaintiffs and the father of the 2nd defendant. On the 24th of January 1895, after the death of his father and after the birth of the 2nd defendant, he for himself and as guardian of the 2nd defendant, executed a deed of gift to the plaintiffs jointly of certain portions of the joint family property. The plaintiffs sue to obtain possession of the land, and both the donor and his son resist the claim. The question which we have to decide is whether the gift can be enforced.
2. The District Judge has dismissed the suit and in appeal the case for the plaintiffs is presented upon two grounds: it is contended that the gift is good (1) as provision for the maintenance of the donees whose husbands are unable to support them, and (2) as marriage portions allotted after marriage instead of at the time of the ceremony.
3. The first contention necessarily fails in this case because we have no materials on which we can find that the families of the plaintiffs' husbands are unable to support them, and none of the authorities to which our attention was drawn, from the time of Narada downwards, can be held to support a gift of family land for the maintenance of a sister whose husband's family is not (?) unable to support her.
4. The second contention has a better foundation. Both plaintiffs were married at the same time during the life-time of their father, and the District Judge finds that their father did not then promise them marriage portions out of the family property, and we may, I think, take it that he also finds that the father is not shown to have expressed at any time an intention of making the gift which was made. It is, however, contended for the appellants that that is not necessary; that it is sufficient if it be found that no gift was actually made at the time of the marriage, and that the gift now made is such as might reasonably have been made at that time.
5. Mr. Seshagiri Aiyar was prepared to concede that if this gift had been made by the plaintiffs' father at the time of their marriage it could not be invalidated. It is clear that having regard to the extent of the family property it cannot be said to be unreasonably large, and it was not denied that a Hindu father is entitled to make gifts by way of marriage portions to his daughters out of the family property to a reasonable extent. It was, however, contended that on the findings of the District Judge the gift to the plaintiffs cannot be regarded as being of that class. The defendants have not alleged that any marriage portions were given to the plaintiffs at the time of their marriage. Had they set up and made good such a case the plaintiffs' claim would have necessarily failed. The plaint afforded them an opportunity of doing this by alleging that the gift was made to the plaintiffs in pursuance of the intention of their father to give them land, and though the issue as framed is very wide and wanting in precision, evidence was adduced by the plaintiffs to prove that the gift was promised at the marriage, and the defendants did not call evidence to show that any gifts were actually made at that time.
6. In these circumstances, though the plaintiffs' witnesses have been disbelieved, we may fairly take it that it was not the case for the defendants that provision had before the date of the gift been made for the marriage portions of the plaintiffs.
7. We have it then that the gift is such as might have been legitimately made by the father of the plaintiffs and that he did not make to the plaintiffs this or any other similar gift daring his life-time. And in the circumstances of this case, having regard to the wealth of the family and to the fact that the sons-in-law chosen by the plaintiffs' father were not wealthy persons, I think with my learned brother that we shall not be wrong in holding that the plaintiffs' father not only might properly have made such a gift as that in question but that he ought to have done so. Those passages in the Mitakshara (I. VII. 6--14) which were held in Ramasami Aiyar v. Vengidusami Aiyar 22 M. 113 to authorize a qualified owner to make out of the family property customary marriage gifts of land, expressly direct brothers to provide for the marriage of their maiden sister. If then a brother finding that his sister though married in his father's life-time has been for any reason left without a marriage portion which she ought to have received it is difficult to see how he can be held to have exceeded his powers if he makes good the deficiency out of the family property. We are not required to hold that he is bound to do so; we are not required to hold that his father was bound in law to give his daughter anything at her marriage; it is only necessary for us to hold that the gift is not in excess of the powers of the brother, and cannot, therefore, be re-called by him or avoided by his son. It is probable that the gift was in fact made by the 1st defendant for the very purpose of providing a marriage portion for the plaintiffs, and that the reason why no such provision was made at the time of their marriage was that they were maintained with their husbands in their father's house until his death.
8. This is set out in the instrument of gift Exhibit B, and the gift is there expressed to be for family maintenance, and for pasupukunkuma, the latter phrase meaning, according to Brown's Telugu Dictionary, 'pin-money or dower, because it is property given to a bride nominally to supply her with yellow and red paint for the forehead.' Though the 1st defendant does not admit that this recital represents truly the circumstances under which the gift was made, the District Judge does not find that the explanation now given by him is to be accepted. It is not, however, necessary for the decision of the present question to obtain a finding on the question for whatever the actual motive, the gift was one which the 1st defendant was entitled to make and in the circumstances ought to make, and the 2nd defendant cannot avoid it.
9. The second appeal is allowed and the appeal is remanded to the District Judge to return findings on the other issues on the evidence on record, with power to take further evidence on the second issue if he finds that evidence has been wrongly excluded by the District Munsif.
10. The findings should be submitted within six weeks. Seven days will be allowed for objections.
11. The facts of this case are sufficiently set out in the judgment of my learned brother with which I agree, and I propose only to deal with the principles upon which our decision rests. In Mr. Tiruvenkatachariar's learned arguments many texts have been cited which go to show that unmarried daughters were formerly entitled to share a partition and that at their marriage they were entitled to an endowment. Although they cannot now insist either upon a share or an endowment it has been held by Subramania Aiyar and Moore, JJ., in Ramasami Aiyar v. Vengidusami Aiyar 22 M. 113 that a gift of land by a widow on the occasion of her daughter's marriage to the bridegroom should be supported as an act proper and incidental to the marriage of a female according to the general practice of the community to which she belongs, and they refer in support of this view to the practice of making a real or symbolical gift of land to the bridegroom at the time the bride is given to him in marriage. Although in that case the donor was a limited owner having a widow's estate, the grounds on which the gift was supported are equally applicable to a similar gift made by a father or other managing member of the joint family on the marriage of a girl belonging to the joint family. As pointed out in the judgment already cited such a gift is in reality a provision for the married couple, and the fact that joint family property may be given away to a reasonable extent for such a purpose shows that although the joint family and its representative the father or other managing member may no longer be legally bound to provide an endowment for the bride on the occasion of her marriage, they are still morally bound to do so, at any rate when the circumstances of the case make it reasonably necessary. The present is undoubtedly such a case as here the daughters of a wealthy family were given in marriage to two men of very small means who were maintained by the girls' father as dependents of his household until his death three years after the date of marriages. In such a case there was, I think, a strong moral obligation on the joint family and the father as managing member to make a gift out of the joint family property on the occasion of the marriages either to the girls themselves or to their husbands as a provision for them, and the fact that the father maintained both daughters and their husbands out of the joint family property until his death may be regarded as a continuing recognition of such moral obligation. Mere neglect on the part of the joint family to fulfil a moral obligation at the time of marriages cannot, in my opinion, be regarded as putting an end to it, and I think it continued until it was discharged by the deed of gift now sued on and executed after the father's death by his son the 1st defendant who succeeded him as managing, member of the joint family. The gift was in the circumstances of the case an eminently proper and reasonable one and represented the better mind of the 1st defendant himself and it would be matter for regret if we were obliged to hold that such a gift was opposed to the rules of Hindu law as administered in our Courts. For the reasons already given I am of opinion that we are not so bound and I, therefore, think the second appeal must be allowed and the appeal suit remanded for findings.