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Palaniammal Vs. Kothandarama Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1944Mad91; (1943)2MLJ432
AppellantPalaniammal
RespondentKothandarama Goundan and anr.
Cases ReferredRamaswami Aiyar v. Vengiduswami Aiyar
Excerpt:
- .....ammal, who had been married in 1906. this appeal arises from a suit by the plaintiff to cancel the gift deed. the suit has been decreed by the learned subordinate judge of coimbatore and the donee, the first defendant, has appealed.2. the case of the appellant as disclosed in the pleadings was that when she was married in 1906, the property which is the subject matter of the gift deed amounting to four acres of wet land was actually given to her by her father peria sennimalai. however, no formal deed of conveyance was executed. subsequently, peria sennimalai died and in the period between 1916 and 1929, all her three brothers successively died. the last brother who survived was the father of the plaintiff, kuttia, who died on the 17th april, 1929, just four days before the gift deed was.....
Judgment:

King, J.

1. The subject-matter of this appeal is a deed of gift executed in April, 1929. The donor is the plaintiff who was then a minor represented by his mother Lakshmi. The donee is the aunt of the plaintiff, Palani Ammal, who had been married in 1906. This appeal arises from a suit by the plaintiff to cancel the gift deed. The suit has been decreed by the learned Subordinate Judge of Coimbatore and the donee, the first defendant, has appealed.

2. The case of the appellant as disclosed in the pleadings was that when she was married in 1906, the property which is the subject matter of the gift deed amounting to four acres of wet land was actually given to her by her father Peria Sennimalai. However, no formal deed of conveyance was executed. Subsequently, Peria Sennimalai died and in the period between 1916 and 1929, all her three brothers successively died. The last brother who survived was the father of the plaintiff, Kuttia, who died on the 17th April, 1929, just four days before the gift deed was executed by his widow. It was the case therefore of the first defendant that the execution of this deed by Lakshmi in 1929 was the carrying out of a purpose which had been suspended for all the 23 years which had elapsed since the appellant had been married.

3. Evidence was let in to prove the connection between the gift and the marriage in two ways. It was first contended that the first defendant had been put in actual possession of the property in 1906 and had remained in possession ever since. It was conceded by the learned Advocate-General, who appeared for her in this appeal that he could not rely upon this evidence, which was rejected by the learned Subordinate judge. Secondly, it was urged that in 1923 a document was taken by the appellant from her two surviving brothers, the plaintiff's father and Marappa, - in which they promised to execute a deed of conveyance in respect of this property to her. That letter recites the fact that there had been an actual gift at the time of the marriage and that it had been their intention to execute the conveyance ever since. This Ex. I contains admittedly the signatures of the two brothers and this point is very strongly stressed for the appellant. For the respondent, it is urged that the appellant or her advisers must have somehow got hold of a blank sheet of paper which had been previously signed by her two brotheis. This is no doubt a stereotyped explanation, when signatures are discovered by parties in inconvenient places, but the learned Subordinate Judge has discussed the recitals of Ex. I and compared them with the recitals of the conveyance itself and the proposed conveyance Ex. II which was, according to the appellant, intended to have been executed by plaintiff's father himself but which he was unable to execute because death supervened.

4. It is significant that in Ex. III and also in Ex. II nothing said about any gut having been made at the time of marriage The reason for gift is simply put as follows, that the appellant's father had expressed his wishes to his son Kuttia that the property should be given to the appellant. Kuttia, therefore, in Ex. II is represented as desirous of carrying out his father's wishes and II could not be completed, it is stated in Ex. III that his widow Laks out the wishes both of her husband and her father-in-law in this. There is no reference in either of these two documents to the actual gift of the property and its actual possession by the appellant, which makes the nececity for a conveyance deed merely the confirmation of a transaction already carried out in all other respects. There is no reference in either Ex. II or Ex. III to the existence of Ex. I. This fact perhaps may not be of very great importance, but it seems to us certain that if the present case of the defendant which is outlined in Ex. I is true, in taking Ex. III it would have been recited that a gift had been made at the time of the marriage and that she had been in possession of the property ever since then. We cannot believe that Ex. III would have been so carelessly drafted in the circumstances of the case as to omit to mention facts which are so prominently in favour of its validity. We accordingly agree with the learned Subordinate Judge that Ex. I must have been a document which has been brought into existence at seme subsequent time in order to strengthen any claim made under Ex. III.

5. Now that the evidence with regard to the possession cannot be relied upon, and Ex. I has been discredited, Ex. III must be considered merely as a gift made by the minor plaintiff's mother in 1929 and all connection between that gift and' anything done at the time of the marriage or subsequently has disappeared. It is next argued for the appellant that the appellant's father was under the moral duty of making some provision by way of gift for his daughter at the marriage in 1906, that he neglected to do so, and that this omission has been rectified by the only person capable of making the gift in April, 1929. It is certainly true that the provision of a small portion of family property to a daughter at the time of her marriage by the manager of the family is a provision recognised by the Hindu Law and it has been held in Kudatamma v. Narasimhacharyulu (1907)17 M.L.J. 528. that such a gift need not necessarily be made at the actual time of marriage and can be made at a later period if it ought to have been made when the marriage took place. We have also been referred to another authority reported in Ramaswami Aiyar v. Vengiduswami Iyer : (1898)8MLJ170 , in which it has been held that the power of making such a gift is not confined to the manager of the family property but can be exercised by a widow who has succeeded to the family property and that her action may in certain circumstances bind the reversioners.

6. It is now argued that what can be done by the manager of a family and what can be done by a widow in possession of the family properties can be done also by a window as guardian of her infant son who is the owner of the properties No authority has been cited which bears directly on this point. The learned Advocate-General has relied strongly upon Ramaswami Aiyar v. Vengiduswami Aiyar : (1898)8MLJ170 . A widow has full power to deal with the estate subject of course to the ordinary restrictions of a widow's right to alienate, but here the owner of the estate is not the widow at all but the plaintiff. We see no reason why we should hold in the interests of a donee that a marriage gift which can be made by the manager of a joint family can also be made by the guardian of the only person now constituting the family. Such a gift can be validated only if it is made for purposes binding upon the minor. It is not contended there that the minor, had he been a major, would have been compelled to make the gift. He could have pleased himself whether he made the gift or not.

7. It is not seriously contended that there was any necessity in any sense of the word to make this gift in favour of the appellant in 1929, 23 years after she was married. The whole of the pleadings, of course, proceed upon the assumption that the gift had already been made, and therefore there are no facts in the case which can support the theory that in 1929, special circumstances existed which would have made the gift one which the minor himself ought to have made. In these circumstances, we are of the opinion, that the rulings cited by the learned Advocate-General for the appellant are of no assistance to him in this appeal. Both on the facts and on the law, we agree with the learned Subordinate Judge that the first defendant can have no valid claim to this property under Ex. III.

8. The appeal, accordingly, fails and is dismissed with the costs of the first respondent.


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