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Kandammal and ors. Vs. Kandiah thevar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1977)1MLJ121
AppellantKandammal and ors.
RespondentKandiah thevar and anr.
Cases ReferredRottala Runganatham Chetty v. Pulicat Ramaswami Chetti I.L.R.
Excerpt:
.....who failed in the trial court and succeeded in part in the lower appellate court is the appellant. 1,000. the appellant alleged that after she purchased under exhibit a-3, she bad leased the properties to avudaikannu thevar, p. 1,500 in favour of the donor's relative made on account of love and affection and services rendered by the donee to the donor has been held to be void, but, a gift of a family property to the daughter has been held to be valid. the contention of the donee-appellant that the gift in her favour by her husband, of ancestral immovable property made out of affection should be upheld must, therefore, fail, for no such gift is permitted under hindu law in so far as immovable ancestral property is concerned. 10,000 and if the property conveyed had been the sole and..........and services rendered by the donee to the donor has been held to be void, but, a gift of a family property to the daughter has been held to be valid. the learned judges observed in that decision at page 519:the father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter regard being had to the financial and other relevant circumstances of the family. by custom or by convenience, such gifts, are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. it is 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 can be discharged at any time, either.....
Judgment:

A. Varadarajan, J

1. The plaintiff who failed in the trial Court and succeeded in part in the lower appellate Court is the appellant. She filed the suit for declaration of her title to two items of house properties and for recovery of possession of the same. The appellant is the elder sister of the respondents. They are all the children of Ganapathi Sundara Thevar who is stated to have died in or about 1940 and Valavanthammal who was examined as D.W.2. According to the appellant, item 1 belonged to her father Ganapathi Sundara Thevar and was gifted by him to his wife D.W.2 under Exhibit A-1 dated 28th October, 1931 and D.W.2 got item 2 in exchange under Exhibit A-2 dated 28th October, 1963 and she sold both items 1 and 2 to her under Exhibit A-3 dated 11th December, 1964 for a consideration of Rs. 1,000. The appellant alleged that after she purchased under Exhibit A-3, she bad leased the properties to Avudaikannu Thevar, P.W.2 on a rent of Rs. 25 per mensem, that he was in possession for 6 months and that thereafter she leased the properties to the first respondent orally on a rent of Rs. 30 per mensem from August September, 1966 but that the first respondent did not pay the rent and when demanded, he sent the notice Exhibit A-6, dated 29th February, 1968 saying that the appellant had no title and that after his father's death, both the respondents were in possession and enjoyment of the properties.

2., The second respondent allowed the suit to proceed ex parte. The first respondent alone contested the suit. But he did not claim any interest in item 2. Regarding item 1, the first respondent's defence was that it was ancestral property in the hands of his father and could not have been gifted by him to his wife D.W.2 under Exhibit A-1 when the first respondent had been born, that Exhibit A-1 was not acted upon and that both the respondents have perfected title to item 1 by adverse possession. The first respondent further contended that the sale of item 1 under Exhibit A-3 was fraudulent and that there was no lease in favour of P.W.2 or himself.

3. The trial Court found that item 1 was ancestral property in the hands of the appellant's father Ganapathi Sundara Thevar, that Exhibit A-1 was executed when the first respondent was in the womb and was void and that it did not come into force. The birth register extract Exhibit B-4 shows that the first respondent was born on 27th March, 1932, and he must have been in the womb of D.W.2 on the date of the execution of the gift deed Exhibit A-1, namely 28th October, 1931. The trial Court further found that the first respondent has been in possession of item 1 from 1942-1943 and had acquired title by prescription and that the sale in favour of the appellant under Exhibit A-3 was fraudulent. On these findings, the trial Court dismissed the suit regarding both the items. On appeal, the learned District Judge agreed with the trial Court regarding the voidable nature of Exhibit A-1 relying upon the decision in Ravakkal v. Subbanna I.L.R.(1893) Mad. 84. and Sivagnana Thevar v. U. Thevar : AIR1961Mad356 . and found that it was invalid; but differed from the trial Court regarding the nature of Exhibit A-3 and found that it was not a fraudulent sale. He, therefore, granted a decree only for suit item 2 with damages. He did not consider the question whether Exhibit A-1 was not acted upon and whether the first respondent had acquired title to item 1 by prescription.

4. Originally, the suit was decreed by the trial Court regarding both the items, but without damages,. The first respondent filed an appeal in respect of item 1 alone and the appellant did rot file any memorandum of cross-objections regarding damages. The appellants claim for damages thus become concluded, and, therefore, it is conceded by the learned Counsel for the appellant that the learned District Judge erred in granting a decree for damages regarding item 2 of the suit properties. It would, therefore, follow that the memorandum of cross-objections preferred by the first respondent regarding damages awarded by the learned District Judge in respect of item 2 has to be allowed.

5. The learned Counsel for the appellant did not dispute that item 1 was ancestral property in the hands of appellant's father Ganapathi Sundara Thevar and that the first respondent was in the womb of his mother D.W.2 on the date of execution of the gift deed Exhibit A-1 by his father in favour of D.W.2. But, he contended that the gift under Exhibit A-1 is only voidable and not void ab initio, that as the first respondent has not got it avoided either within 3 years after attaining majority or at least within the extended period of 12 years under Article 109 of the Limitation Act, his rights have become extinguished in view of Section 27 of the Limitation Act, and that the appellant's suit should have been decreed even in respect of item 1.

6. The learned Counsel for the appellant relied upon the decision of the Supreme Court in Guramma v. Mallappa : [1964]4SCR497 . where a gift of joint family immovable property valued at Rs. 1,500 in favour of the donor's relative made on account of love and affection and services rendered by the donee to the donor has been held to be void, but, a gift of a family property to the daughter has been held to be valid. The learned Judges observed in that decision at page 519:

The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts, are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is 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 can be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast Rule , prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by courts, regard being had to the over-all picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said 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 plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made; if once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift anytheless a valid one.

Applying the aforesaid principles we have no doubt that in the present case, the gift made by the father was within his right and certainly reasonable. The family had excessive properties. The father gave the daughter only a life-estate in a small extent of lard in addition to what had already been given for her maintenance. It has not been stated that the gift made by the 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 on the 8th defendant.

7. This decision is not applicable to the facts of the present case where the gift has been made by the respondents' father in favour of his own wife D.W.2.

8. The learned Counsel for the appellant next invited my attention to the decision in Tirupurasundara v. Kalyanaraman : AIR1973Mad99 . rendered by Ramanujam, J., where the father of the plaintiff the second defendant had effected a settlement deed dated 21st December, 1959 in respect of the proper-ties involved in that suit and it was contended that it was executed nominally in view of land ceiling legislation and it was not intended to be acted upon and as he was born on 2nd May, 1960, he was entitled to avoid the settlement deed executed by the father and even otherwise, the father had no power to execute a settlement deed in favour of the first defendant in respect of the coparcenary properties and the first defendant cannot claim any title on the basis of the settlement deed. The learned Judge in paragraph 10 of the judgment extracted the observations of the Supreme Court in Guramma Ghanbasappa v. Mallappa : [1964]4SCR497 . It was a case of alienation of joint family properties for consideration. The learned Judge observed in paragraph 15 of his judgment that--

From the above decisions it is seen that it is only gifts made by the managing member in favour of the daughters as a marriage provision either at the time of the marriage or later in pursuance of an earlier promise that have been held to be valid if the properties gifted are found to be reasonable having regard to the extent of. the properties of the joint family.

The learned Judge has, therefore, held:

That the settlement deed in favour of the first defendant is invalid in law and that it cannot be upheld even as regards the share of the second defendant.

9. The learned Counsel for the appellant next invited my attention to the following passage at page 453 of N.R. Raghavachariar 'Hindu Law' Sixth Edition,--

Though a father of an undivided Mitakshara family has full power of disposition over his self-acquired pro perty, be has no such power in respect of the joint family property. But, he can make within reasonable limits, gifts of immovable or movable property of the joint family for pious purposes or to a daughter but not to a daughter's daughter or daughter's son or to a stranger or even to his wife or mother except as a reasonable provision for her maintenance. In other respects, so far as his right to make a gift or will is concerned he is in the same position as an ordinary coparcener.

The learned Counsel for the appellant fairly invited my attention to the unreported decision of a Bench of this Court in A.S. No. 207 of 1957 where the gift of joint family immovable property in favour of the second wife of the manager has been held to be void as a gift pure and simple. That decision has been confirmed by the Supreme Court in Perumalakkal v. Kumaraesan Balakrishnan : [1967]1SCR353 . where in paragraph 9 it has been observed : .

But we have not been referred to a single case where a gift by a husband to his wife of immovable ancestral property, if made, has been upheld. We see no reason to extend the scope of the words 'pious purposes' beyond what has already been done in the two decisions of this Court to which reference has been made. The contention of the donee-appellant that the gift in her favour by her husband, of ancestral immovable property made out of affection should be upheld must, therefore, fail, for no such gift is permitted under Hindu Law in so far as immovable ancestral property is concerned.

10. The learned Counsel for the first respondent invited my attention to an old decision of a Bench of this Court in Rottala Runganatham Chetty v. Pulicat Ramaswami Chetti I.L.R. (1904) Mad. 162. That was a case of a conveyance of joint family immovable property, the estimated value whereof was Rs. 11,000 but the consideration recited in the sale deed Exhibit 6 was only Rs. 1,000. The learned Judge observed:

Exhibit 6 is in effect a conveyance for value to the extent of Rs. 1,000 and a conveyance by way of gift to the extent of Rs. 10,000 and if the property conveyed had been the sole and separate property of Ramaswami Chetti, the conveyance would be perfectly valid and operative in its entirety. But as the property conveyed was the joint property of himself and his two sons, effect cannot be given to the conveyance as if Ramaswami Chetti was the sole owner of the whole property or of even a third part thereof. It has now been definitely settled by judicial decisions that it is imcompetent to an undivided member of a Hindu family, to alineate, by way of gift his undivided share or any portion thereof and that such alienation is void in tota, and this principle cannot be evaded by the undivided member professing to make an alienation for value, when such value is manifestly inadequate and inequitable. In such a case, the transaction can be upheld against the family, in respect of the alienor's interest in the joint family property, only to the extent of the value received.

A Full Bench of this Court has held in Paramanayakam Pillai v. Sivaraman : AIR1952Mad419 . that though it is the undoubted right of a coparcener under Hindu Law to alienate for consideration his interest in the property, it is not open to him to make a gift of it. The very foundation of the alienees's equity, is the payment of consideration. The aforesaid decision Rottala Runganatham Chetty v. Pulicat Ramaswami Chetti I.L.R.(1904) Mad. 162. has been approved in this Full Bench decision. Having regard to the various decisions referred to above, it is not possible to agree with the learned Counsel for the appellant that the gift under Exhibit A-1 is only voidable and not void and that the respondents must be held to have lost their right to the property in view of Section 27 of the Limitation Act, having regard to the fact that they have not taken steps to get the gift under Exhibit A-1 avoided within the period prescribed by law. The Courts below have found against the appellant's case regarding the lease of item 1. The possession of the respondents is therefore in their own right. The appellant is therefore not entitled to any relief regarding item 1 of the suit properties.

11. In the result, the second appeal is dismissed and the memorandum of cross-objection is allowed. There will be no order as to costs in either.


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