1. Late Kalianna Gounder, who was murdered on 10-9-1956, was a member of a joint Hindu family, of which the other members were his father, Karuppanna Gounder, the first defendant, and his brother, Chinnaswami, the second defendant. The plaintiffs are the widow and the daughter of the late Kalianna Gounder and they sued for partition of the joint family properties specified in Schedule A and for allotment of an one-third share therein. In respect of the B Schedule properties, they claimed that this item belonged exclusivelyto late Kalianna and his brother, the 2nd defendant, to that they were entitled to a half share therein. Recovery of certain moveables set out in Schedule C was also prayed for. Late Kalianna had insured his life for Rs. 3000 with the fourth defendant insurance Corporation. The first plaintiff claimed to be the nominee under the policy of insurance and sought to recover the entirety of this amount.
2. Defendants 1 and 2 contended that the first plaintiff was responsible for getting Kalianna murdered so that she is disqualified from succeeding to Kalianna. In respect of the B Schedule properties, it was claimed that they also belonged to the joint family and were not the separate properties of Kalianna and the second defendant. It was denied by them that any of the properties mentioned in Schedule C was with them. With regard to the insurance amount, the contention was that the premia for the insurance were paid from out of the joint family funds so that that item of property should also be regarded as joint family property. It was further alleged there were no outstandings due to the family as claimed by the plaintiff. On the other hand, there were debts binding upon the joint family to the extent of Rs. 10800.
3. One of the reliefs sought by the plaintiffs in the suit was that a deed of gift executed by the first defendant in favour of His daughter, the third defendant, is a sham and nominal document and that it should be disregarded for the purpose of ascertaining the share due to the plaintiffs at the partition. In so far as this was concerned, it was contended by defendants 1 to 3 that the gift was a valid transaction, having been made in favour of the daughter in the exercise of the powers of the father and manager of a joint Hindu family and that it was not liable to be attacked in any manner whatsoever.
4. The fifth defendant is the mother-in-law of the first plaintiff. She claimed that she is also entitled to share equally with the plaintiffs and that even if the plaintiffs are entitled to succeed to late Kalianna's interests in the properties, she herself is entitled to a one-third of such interest.
5. Upon the issues, the learned Additional Subordinate Judge, Erode, upheld the right of the plaintiffs to succeed to the interest of Kalianna in the family properties. As it was conceded by the plaintiffs themselves, the fifth defendant, mother of Kalianna, was also entitled to a share in such interest. He found however that the B Schedule properties were not the separate acquisitions of Kalianna and the second defendant but that they were the joint family properties. In respect of outstandings, the learned Subordinate Judge was of the view that two amounts of Rs. 3000 and Rs. 1000 were available for division. He declined to accept the contention of the defendants that the family was indebted to any extent. He also took the view that the insurance amount represented the separate property of Kalianna and that the plaintiffs and the fifth defendant were jointly entitled to that amount. He accepted the contention of the plaintiffs that since the gift in favour of the third defendant daughter was made long after her marriage and the gift was also not of a reasonable portion of the property, it was not binding on the plaintiffs.
6. Defendants 1 to 3 appeal in so far as the learned Subordinate Judge held against their contention as to the validity of the gift deed in favour of the third defendant and the alleged debts of the family and the outstandings in respect of which the claim of the plaintiffs was allowed. They also contended that the insurance policy amount was wrongly held to be the separate property of the late Kalianna Gounder and that it really represents joint family property.The plaintiffs have also filed a memorandum of cross-objections objecting to the finding of the Trial Court that the first plaintiff was not proved to be the nominee under the policy so that she was not exclusively entitled to the amount. Objection has also been taken to the disallowance by the Trial Court of mesne profits from the date of the suit and to the disallowance of costs.
7. The questions that fall for determination in the present appeal are : 1. Whether the gift deed in favour of the third defendant is a transaction which can be supported under the Hindu law? 2. What are the outstandings and debts of the family? 3. Whether the view taken by the learned Subordinate Judge with regard to the insurance policy amount and his conclusion that it represents a property which is divisible between the plaintiffs and the fifth defendant is, in the circumstances of the case, correct? and lastly, 4. Whether the disallowance of mesne profits and costs is justified?
It is not denied that the deed of gift was executed on 12-5-1957. Under this document, the first defendant purported to make over to his daughter the whole of item 1 of the Schedule A, an extent of 2 acres 14 cents of punja lands, and 1 acre, 84 1/2 cents out of item 3, also punja lands, making a total of roughly 4 acres. The learned Subordinate Judge has observed in this connection:
'According to Mitakshara law, no coparcener can dispose of his undivided interest in coparcenary property by gift. A father however can make a gift of a small portion of ancestral immovable property to his daughter or her husband for the benefit of both on the occasion of the marriage of his daughter. A gift of a small extent of land on the occasion of marriage is valid. Even after marriage, a gift can be made to a daughter by way of a marriage portion by her father. In this case, the gift has been made long after the marriage and the gift is not of a reasonable portion of property. Therefore, I find that the gift deed dated 12-5-1957 is not binding on the plaintiffs.'
The learned Subordinate Judge does not seem to have noticed that the family is possessed of considerable extent of landed property and that this extent of four acres forms an Insignificant portion of the, family properties. That tact was not disputed in the course of the argument before us. It is indisputable that the father is competent to make a gift of a reasonable portion of the family property to his daughter as her marriage portion. In fact, the plaint schedule gives the total extent of the family property as much as 70 acres. It is at least certain that the family possesses 40 acres in extent and we are unable to hold upon the material that the gift of 4 acres represents such a considerable part of the family properties that on that ground alone the gift should be held to be not binding. There was evidence let in to establish that there had been some ill-will between the family and the parents-in-law of the third defendant for the reason that the daughter had not been properly provided for a circumstance certainly justifying the gift of a portion of the property in favour of the daughter. In Sundararamayya v. Sitamma, ILR 35 Mad 628, it was emphasised that there is a moral obligation on a Hindu father to make a gift to his daughter on the occasion of her marriage and that the Hindu law texts fully support the proposition that it is competent to a father to make gift of jewels or other ancestral immovable property to his daughter on her marriage. The learned Judges referred to a decision of the Calcutta High Court in Churaman Sahu v. Gopi Sahu, ILR 37 Cal 1, which laid down that even a widow could make a valid gift of a reasonable portion of the immovable property of her husband to net daughter on the occasion of the performance of certain ceremonies or when the daughter leaves her parental home forthat of her husband. In that decision, the gift was not made at the time of the marriage but subsequent thereto. The learned Judges observe :
'But it is difficult to see why the moral obligation does not sustain the gift because it was not made to the daughter at the time of the marriage but only sometime later.'
Accordingly, such a gift was upheld. In a decision of the Supreme Court in Kamla Devi v. Bachulal Gupta, : 1SCR452 , a gift of immovable property to the daughter made two years after the marriage by her mother, who was a Hindu widow, came to be considered. Their Lordships laid down that the right of a Hindu widow to make a gift is governed by the Hindu Law and it is open to her to make an effective gift in favour of her daughter subsequent to the marriage if the conditions laid down by the Hindu law are fulfilled. It is unnecessary to extract any portion from the judgment of the Supreme Court, as the principle that the father is competent to make a gift of a reasonable portion even of immovable property of the family at or even subsequent to the marriage of his daughter is well settled by this and other decisions.
8. On the facts it is abundantly clear that the extent of the property so gifted to the daughter was not so incommensurate with the extent of the properties of the family that on that ground it can be said to be unreasonable. Nor do we find the circumstance that the gift was made long after the marriage as vitiating the validity of the gift. The evidence disclosed that both at the time of the marriage and subsequently thereto customary gifts were not made to the daughter and that this gave rise to ill-will between the parties. It was for this reason, a reason which can be fully understood in the light of both conventional and moral obligations attendant upon such occasions, that the father felt the need to make the gift. We are accordingly satisfied that the validity of the gift cannot be questioned. We deal later with the question what effect the gift, even if valid, will have on the shares to which the plaintiffs are entitled.
9. The next contention urged by the appellants is that the learned Subordinate Judge erred in granting a decree in respect of two outstandings, that is, sums of Rs. 3000 and Rs. 1000. The evidence in this regard consisted of that of the first defendant himself. He admitted that he had lent a sum of Rs. 3000 on a mortgage and another sum of Rs. 1000 which sums were recovered three years ago. In fact, in respect of the mortgage, he obtained a decree. The first defendant was not able to state when the sum of Rs. 1000 was recovered by him. When it was established that these sums were amounts which had been utilised by the family in advancing the loans and they had been recovered, unless the first defendant could establish that these sums had been utilised for purpose of the family and were no longer available, the plaintiffs are entitled to demand a share therein. We are unable to see how the trial court can be said to be in error in this regard.
The ground taken by the appellants in this regard is that the terms of the lower court's decree are not in conformity with the plaint claim for the reason that the plaintiffs have not claimed any decree debt of Rs. 3000 and further that the two amounts mentioned having been recovered by the joint family some three years ago, they cannot be regarded as assets available at present. We are really unable to follow the precise nature of the objection. In the plaint, as item 5, in Schedule A, were set out certain money dealings. The first defendant, as D. W. 1, admitted the mortgage transaction of Rs. 3000 and the loan of Rs. 1000 advanced to one Marappan. In the course of the evidence, he stated that this mortgage loan hart ripened into a decree.
That was the reason why the learned Subordinate Judgedecreed the 2/9th share of this Rs. 4000 found 10 be assetsbelonging to the joint family in the hands of the first defendant. As far as we are able to see, the decree is fullyin conformity both with the claim made in the plaint andthe facts established during the course of the trial. It isof interest to note that in the written statement of defendants 1 and 2, beyond stating that the money dealings, mentioned in Schedule A, are incorrect, no further details were furnished. We see no reason to disturb the finding of the lowerCourt on this head.
10. The next point taken by the appellants is thatthe learned Subordinate Judge erred in not accepting the evidence with regard to the debts of the family which thedefendants claimed amounted to Rs. 10,800. In the writtenstatement, in contradiction to the outstandings, the defendants gave details of those debts. Certain documents wereproduced in evidence to establish that these debts werereally incurred by the family. At a late stage, in the courseof his examination, the first defendant stated that thesedebts had been incurred by him for the purpose of buyinglands. He produced certain sale deeds, Exs. B-5 to B-9,between 1952 and 1956, which he claimed were purchases oflands effected by him with the amounts borrowed from others.Four witnesses, Dws. 2 to 5, were examined to prove theborrowals alleged. D.W. 2 claimed to have lent a sum ofRs. 1500 under Ex. B-l. It was with this amount that thefirst defendant claimed to have purchased the property setout in Schedule B. The learned Subordinate Judge rejected thetestimony of D.W. 2 as being, that of an interested witness,and as he was of the view that in the absence of theexamination of other persons, connected with the executionof Ex. B-l, it was unsafe to accept the testimony of D.W. 2.D.W. 3 purported to have lent a sum of Rs. 2000 on thepromissory note, Ex. B-3. According to him, the money wasborrowed for the purpose of purchasing a motor and pump-set.
In the course of his examination, however, the firstdefendant admitted that the income from the properties wasutilised for installing a pump-set. It was undoubtedly established that the family was in possession of adequate incomefor meeting its normal needs, inclusive of the purchase ofpump-sets etc. and that there was hardly any occasion forborrowing moneys for such purposes. The learned Subordinate Judge noticed that D.W. 3 is related to the first defendant's father-in-law and that his evidence could not be accepted. He noticed further that these documents were produced at a very late stage and there was no guaranteethat they were not fabrications, for the purpose of establishing the debts payable by the family. The evidence of D.Ws.4 and 5 was rejected for like reasons. The Trial Courtwas wholly dissatisfied that any consideration passed underany of these promissory notes. The written statement did,no doubt, mention these promissory notes. But the claimthat the family found it necessary to make these heavyborrowals hardly fitted in with the accepted position thatthe family was in receipt of considerable income from itsagricultural and garden lands. It was also in conflict Withthe position that the first defendant found it possible tolend money out at interest. The learned Subordinate Judgehad the advantage of hearing the witnesses and we are notsatisfied that having regard to the surrounding circumstances,the conclusion reached by the learned Subordinate Judgethat these debts were not established is in any way erroneous.
11. The last item relates to the insurance policy amount. In this regard, while the defendants contend that the amount due under the policy should be treated as jointfamily property, as the insurance premia were paid out of the joint family funds, the first plaintiff in the memorandum of cross-objections claims to be solely entitled to this amount by virtue of a nomination effected by the deceased Katianna in her favour. Two questions are accordingly involved, firstly, whether this amount represents a joint family asset for the reasons advanced by the defendants and secondly, whether, by virtue of the alleged nomination, the first plaintiff is exclusively entitled to the amount, the Trial Court having taken the view that the fifth defendant, mother of Katianna, is also entitled to a third share therein.
12. Apart from the allegations that the joint family funds were utilised for the payment of premia, an interested statement proceeding from the first defendant, there is no evidence in support of the appellants' claim. If the joint family thought it fit to insure one of its junior members, one may very well ask why a similar policy was not taken on the life of the second defendant or the first defendant. It is true that there cannot be a presumption either way. In a decision of this Court in Venkatasubba Rao v. Lakshminarasamma, : AIR1954Mad222 , it was laid down that having regard to the modern social conditions and the growth of individual consciousness in marked contrast to the more corporate outlook of the earlier days, the general presumption must be that the amount of the policy belongs to the assured as his separate property and does not become a joint family asset. In a case where each of several members of the family has taken out a policy in his name, the presumption becomes stronger, that the policies were not part of the joint family assets. No doubt, if there is a clear indication that the member did not intend to treat it as a separate asset, the position would be different. The learned Judges, however, pointed cut that if it was shown that the assured had funds available from private as well as from joint family sources, the presumption would arise that the premia for a policy on his life could have been paid from his own money and would for that reason be a separate asset of his. In a decision of the Supreme Court in Parbati Kuer v. Sarangdhar Sinha, : AIR1960SC403 , their Lordships of the Supreme Court observed :
'There is no proposition of law by which the insurance policy must be regarded as the separate property of the coparceners on whose lives the insurance is effected by a coparcenary.'
This decision only dealt with the position where it was established that the coparcenery effected the insurance on the life of a member, that is to say, paid premia due upon the policy from out of the coparcenary funds. In such an event, it would no doubt be very proper to conclude that the policy does not represent the separate property of the coparcener. But where a coparcener has effected insurance upon his own life, though he might have received the premia from out of the funds which he might have received from the joint family, it does not follow that the joint family insured the life of the member or paid the premia in relation thereto. It is undeniable that a member of a coparcenary may with the moneys which he might receive from the coparcenary effect an insurance upon his own life for the benefit of the members of his immediate family. His intention to do so and to keep the property as his separate property would be manifested if he makes a nomination in favour of his wife or children, as the case may be. It would therefore appear that no general proposition can be advanced in the matter of the insurance policy of a member of a coparcenary and that each case must be dealt with in accordance with the circumstances surrounding it.
13. In the present case, it seems to us that the insurance amount cannot be regarded as a joint family asset. The plaintiffs urged in the plaint that Katianna Gounder nominated the first plaintiff as the person entitled to receive the said amount. The first plaintiff was unable to produce the policy, it being her contention that she was driven out of her husband's house and was unable to recover this amount. In the written statement of the defendants, while the defendants took the stand that the joint family provided funds for the payment of the premia, it was not denied that the firs: plaintiff was the nominee. It was stated,
'The mere mention as nominee will not entitle the first plaintiff to receive the insurance amount.'
It seems clear therefore that the defendants did not deny that the first plaintiff was the nominee under the policy. Beyond the assertion that the first defendant paid the insurance premia, no proof was forthcoming. The fourth defendant, the Insurance Corporation itself, in whose records the nomination should have been entered, does not purport to deny that the first plaintiff was the nominee. There is no doubt therefore that the first plaintiff was in fact nominated by the assured to receive the policy amount in me event of his death and in the light of all the surrounding circumstances, we are of the view that this insurance amount must be regarded as the separate property of the assured and in virtue of the nomination, the fifth defendant, the mother of Katianna, is not entitled to any portion of this amount.
14. The finding of the learned Subordinate Judge that the gift was not valid resulted in his ignoring the gift in decreeing the share which the plaintiffs were entitled to. The defendants appealed against this finding; and as regards the validity of a gift made by a Hindu father is concerned, we have held that it has to be sustained. Nevertheless, it has yet to be examined whether the gift would operate so as to reduce the family properties available for partition. The gift was made after the death of Katianna, the contention of the plaintiffs is that in so far as the interest of Katianna, to whose share they are entitled to succeed, Is concerned, the quantum of that interest became ascertained on the date of his death and no subsequent alienation by the father can effect that interest. Learned counsel for defendants would however urge that the death of Katianna did not put an end to the joint family or the character of the properties it owned; if that is so, a valid gift by the father should be effective against a coparcener or any one claiming under him.
15. Reliance in this regard has been placed upon certain decisions to one of which alone we need refer. This is Manicka Goundar v. Arunachala Goundar, 1961 2 MLJ 483 : AIR 1952 Mad 103, decided by one of us, wherein the nature of the interest taken by a widow under the Hindu Women's Rights to Property Act, XVII of 1937, came in for examination, it was pointed out therein that Section 3(2) of the Act had the effect of conferring upon the widow the same interest as the deceased coparcener had; and that the continued existence of the deceased coparcener as a legal persona in the body of his wife was fictionally postulated. The interest of the coparcener being a fluctuating one, no higher right was conferred on the widow; and her right to a share had to be determined as on the date of her suit to partition and not on the date of the death of her husband. Inferentially, it followed, that the joint family continued to exist despite the death of the coparcener and the right of the widow was subject to the increase or decrease, in the same manner as if she were a member of the coparcenary. On behalf of the defendants, it is urged that the principleshould govern the present case and that the plaintiffs can only ask for a share in the properties remaining after the gift. We are unable to accept this contention in view of the special provisions of the Hindu Succession Act. Explanation 1 to section 6 of this Act provides that the interest of a Hindu Mitakshara coparcener (which shall devolve by intestate succession to a female relative specified in Class 1 of the Schedule).
'shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.'
16. The intendment of this provision is very clear. It is that persons entitled to succeed to the interest of a deceased coparcener under this Act, shall not be subject to the hazard of the fluctuating fortunes of the family. The Act, in so far as female heirs are concerned, enlarged the rights conferred by the Hindu Women's Right to Property Act. The Act itself determines what the share of the heir shall be and it specifies it clearly to be that share on partition, if partition had been effected immediately, before the coparcener's death. Though factually no partition may have taken place, the quantum of the share of the female heir is effectively determined by this provision and no curtailment of that share is permissible on foot of the existence of the joint family or of the valid exercise of the power of the father to make a gift.
17. It follows that the plaintiffs' share will have to be determined without reference to the gift.
18. We can see no justification for the disallowance of mesne profits and costs, even on the ground that the plaintiffs have put forward a 'bloated' claim. The plaintiffs will be entitled to proportionate costs here, in the memorandum of cross objections, and in the court below, and also to mesne profits from the date of suit.
19. The appeal is dismissed, but there will be no order as to costs therein.