1. The first defendant is the appellant and the appeal is directed against the concurrent judgments of the courts below. For the sake of convenience, the parties will be referred to in the order of their array in the suit.
2. The plaintiff is the son of the second defendant while the first defendant is the daughter of one Ellammal, a deceased sister of the second defendant Ellammal lost her husband at an young age and had come over to the second defendant's house with her daughter the first defendant who was then a minor. Taking into consideration the widowhood of his sister and her obligation to bring up her minor daughter, the second defendant settled 60 cents of land on her on 29-3-1954, under a registered settlement deed, a registration copy of which has been marked as Ex. A. 4. About two years thereafter, Ellammal died and the first defendant was brought up by the second defendant and given in marriage to one Venkatachala Naidu. The said extent of 60 cents forms part of S. No. 41/1 of an extent of 1.09 acres in Mazhanipakkam village. The plaintiff filed the suit, from out of which this second appeal has arisen, for declaration of his title to the 60 cents of land referred to above and for recovery of possession together with means profits. The case of the plaintiff was that the suit property was joint family property and therefore, the second defendant was not competent to settle the property on Ellammal by means of a gift deed. He also contended that, in any event, the settlement had not been acted upon. His further case was that the suit property was always in the possession of the joint family, but in September 1971, the first defendant had trespassed upon the property and secured possession unlawfully.
3. The second defendant did not contest the suit and allowed himself to beset ex parte. The first defendant alone contested the suit, and contended that the suit property had been validly gifted by the second defendant and the gift had been acted upon by, Ellammal assuming possession of the property and retaining control over it till her death. The, further contention was that after her mother's death she had been is possession of the property and it was false to say that she had trespassed upon the property in September 1971, and wrested possession of the property from the members of the joint family.
4. The District Munsif-cum-Sub Divisional Judicial Magistrate of Cheyyar, Who tried the suit, accepted the case of the plaintiff and held that the second defendant was not competent to make a gift of joint family property and furthermore, the gift had also not been acted upon and, accordingly, decreed the suit. On the first defendant filing an appeal to the Subordinate Judge, Vellore, the learned appellate Judge has held that the second defendant was competent to make a gift of the suit property to his sister because it formed only a small portion of the entire properties of the joint family. However, as regards the other finding, viz., that the gift had not been acted upon, the Subordinate Judge has concurred with the trial Munsif and on that score, he dismissed the appeal. Hence the present second appeal by the first defendant.
5. Mr. P. C. Varadarajan, learned counsel for the appellant, urged that the trial court had wrongly cast the onus of proof on the first defendant and the Subordinate Judge too has committed the same mistake though he had formulated the second question for determination in the proper form. The two questions that have been formulated by the Subordinate Judge, for consideration in the appeal are as follows
1. Whether the second defendant was competent to make a gift of the suit property to his sister, the mother of the appellant?
2. Whether, In any event, the gift has not been acted upon and hence is not binding on the plaintiff ?
On the other hand, Mr. Krishnan, learned counsel for the plaintiff, argued that the finding of the Subordinate Judge that the second defendant was competent to make a gift of the suit property is not In accordance with law and as such, the plaintiff, though a respondent in the appeal, is entitled to canvass the correct nm of that finding in the appeal preferred by the first. Defendant. His further on tension was that in any event, since both the courts below have concurrently bed that the gift deed has not been acted upon, this court should accept those findings and dismiss the appeal without going into the merits of the contentions of the first defendant. Having regard to the contentions of the parties, the two questions that arise for consideration in the second appeal are as follows:
"1. Whether the gift of 60 cents of land belonging to the joint family by the second defendant to his sister, Ellammal, can be accepted in law as a valid gift and binding on the plaintiff?
2. Whether the gift had not been acted upon and, on that score, the first defendant is not entitled to rely on the settlement deed?"
Taking up the first question for consideration, the trial court has framed the issue wrongly and has cast the burden of proof on the first defendant. Be that as it may, the trial court has taken the view that since the gift of property was not In favour of a daughter but in favour of a sister and, furthermore, it had not been proved that the property gifted formed only a small portion of the, total extent of property owned by the joint family, the second defendant did not have competence to execute the settlement deed. On the other hand, the Subordinate Judge has relied on Deshmukh v. Mallappa , and Rathinasabapathy v. Saraswathi Animal, and held that a gift of joint family property can be validly made in favour of not only a daughter, but also a sister and the only matter which required consideration for determining the validity of the gift was whether the extent of property gifted was a small portion of the joint family property or a large portion. Applying this test, the Subordinate Judge has held that the extent of 60 cents that was gifted to Ellammal was only a small portion of the joint family property and therefore, the gift was not vitiated in law.
6. Mr. Krishnan, learned counsel for the plaintiff, strenuously argued that the view taken by the Subordinate Judge is not a correct one. According to him, a Hindu father can make a gift of a small extent of joint family property only if the donee was a daughter and not a sister as in the present case. In connection with this argument, the learned counsel referred to the following passage occurring in Deshmukh v. Mallappa, .
"The legal position may be summarised thus: The Hindu Law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallised into a moral obligation. 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 gift 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".
7. Learned counsel also referred to a Bench decision of this court in Commr. of Income-tax, Madras v. Shanmugha- sundaram. 1978 TNLJ 447: (1979 Tax LR 94) (TC No. 189/73, D/- 18-10-1977), where the ratio laid down in Deshmukh V. Mallappa, has been followed.
According to Mr. Krishnan these decisions would show that though the Hindu Law texts had conferred a right upon a daughter or a sister to have a share in the family property at the time of partition, such right had been lost by efflux of time and now, the making of gift is only in the realm of moral obligation, and such moral obligation has been recognised only in the case of gifts made in favour of daughters and not sisters. As a further argument, Mr. Krishnan stated that the restriction placed on a Hindu father by law from gifting away ancestral or Joint family property has to be strictly construed, except, to the limited extent where a small portion of the property is gifted to a daughter, and cited in this behalf, Rathnasabapathi v., Saraswathi, . The passage relied on occurs it page 461 of the
report and it reads as follows
"It is now well established that a Hindu father has no power to gift away ancestral and joint family property in part -or in whole except for the special purposes laid down in the text, which are limited and circumscribed and that too, of small portions of moveable and immoveable properties, mostly to discharge a necessary moral, obligation cast on a Hindu father or manager of the family.
Lastly, Mr. Krishnan cited Pugalia Vettorammal v. Vettor Goundan, 1912 Mad WN 89 to argue that the extreme limit to which courts have gone is to recognise the validity of a gift, made to a brother's daughter, of joint family. Property, but courts have never gone so far as to uphold the validity of a gift in favour of a sister. The counsel relied upon Koksingh v. Deokabai, , to
contend that even though the Subordinate Judge has found against the plaintiff on the question of the validity of the gift, the plaintiff is entitled to canvass the correctness of that finding in this appeal.
8. In view of the several contentions put forth by the plaintiff's counsel, it is necessary to find. Out whether the gift made by the second defendant in favour of Ellammal is opposed to the Hindu Law texts or to pronouncements made by courts on the matter. As pointed out by the Supreme Court in Deohrnukh v Mallapa, , the
original texts recognised the right of a daughter as well as a sister to have a share in the family property at the time of partition. By efflux of time, the right has been lost. However, the legal, obligation of the coparceners to give a share in the property, to the daughter has now become transformed to a moral obligation. If that be so, can it be said that the moral obligation would extend only to the case of a daughter and not a sister? I think not. No rational Or logical Or acceptable reason can be found for drawing a hard line between the case of a daughter and that of a sister for holding that only the daughter is entitled to get a small share of the joint family property as gift from her father, but a sister is not entitled to get such a benefit from her undivided brother. In the instant case, we find that at the time the gift was made, Ellanitnal had become a widow and she was also burdened with the duty of maintaining the first defendant who was perhaps a babe in arms at that time. The gift has admittedly been made for the maintenance of Ellammal. In such circumstances, it is beyond my comprehension how any court can say that the second defendants moral obligation to make a gift of a small portion of the Property would have extended only to a daughter of his own and not a sister. As a matter of fact, the following sentence occurring in Deshmukh v. Mallappa will clearly go to show that the moral obligation
would extend not only to the making of reasonable Provision for maintenance to a daughter, but also to a sister. The relevant sentence in the judgment reads as follows-
"But the obligation can be discharged at any time, either during the lifetime of. The father or thereafter". The Statement that the obligation can be discharged even after the lifetime of the father can only apply to a case where Provision for maintenance is made by. One or more brothers in favour of a sister. In the instant case, the second defendant, in the absence of his father, was the head of the joint family and the gift that he made to Ellammal can well be treated as discharging the moral obligation of his father after the father's lifetime. In this connection, even Pugalia Vettorammnal v. Vettor Goundan, 1912 Mad WN 89 cited by Mr. Krishnan, will in my opinion, afford greater support to the first defendant's case rather than the plaintiff's. When the moral obligation to make provision for maintenance for a daughter can be extended to the case of a niece, i.e., brother's daughter, I see no reason why the obligation cannot cover the case of a helpless sister as well. I am therefore of opinion that the view, taken by the Subordinate Judge on this aspect of the matter is clearly sustain able. Learned counsel for the plaintiffs does not dispute the statement of the Subordinate Judge that the 60 cents of land that was gifted formed only a, small portion of the joint family properties and therefore, the gift passed the test, of reasonableness. Hence the plaintiff's contention that the gift of joint family property was opposed to law cannot be sustained.
9. The further question that requires consideration is whether the settlement deed had not been acted upon. Since it was the plaintiff who contended that the gift had not been acted upon, the onus of proof was on him to establish the contention. As already stated, the trial court had wrongly cast the onus of proof on the first defendant, while the Subordinate Judge had framed the question properly, but nevertheless, committed the same error as done by the trial court. The Subordinate Judge has stated that if the gift had been acted upon during the period of two years Ellammal was alive after the settlement deed was executed, there will be records to prove her taking over possession etc. He has further held that though, during her minority, the first defendant would not have exercised acts of possession, she would have certainly asserted her rights and obtained possession of the land after she was given in marriage; but, she has not taken effective steps to assert her rights of ownership over the land. It has then been pointed out that even according to the first defendant, she took possession of the land only in 1971 and therefore, it can be presumed that the gift deed had not been acted upon all along.
Neither the reasoning of the Subordinate Judge, nor the conclusion reached by him can be accepted because, as already pointed out, the burden of proof is on the plaintiff, and not for the first defendant to prove contra, to show that the settlement deed had not been acted upon. Moreover, if the Subordinate Judge had kept in his mind the circumstances under which the settlement deed had been executed and the helpless situation in which Ellamnial was then placed, he would have realised that a mechanical application of the rule of acceptance of gift would be wholly unjust. The settlement deed had been executed by the second defendant after Ellammal had become a widow and came over to his house with a girl child of tender years. Obviously, the second defendant must have deemed it his duty to settle some property on his widowed sister in order to provide for her maintenance. It may be that the second defendant felt that his wife would not treat Ellammal properly and therefore, a firm provision for maintenance should be made for his sister, or it may be that the second defendant felt that Ellammal's grief could be assuaged to some extent by settling some property on her and making her feel that she had not become a destitute on account of her husband's death. Some such compelling reason must have impelled the second defendant to execute the settlement deed and, having executed the deed, it is inconceivable the second defendant would not have acted upon the terms of the deed. Merely because the 60 cents of land had not been subdivided and a separate patta obtained in the name of Ellammal, or because the patta for the whole land had not been obtained jointly in the names of the second defendant and Ellammal it can never be said that the settlement deed had not been acted upon. After all, the deed of conveyance was not between strangers or third parties, but was between close relations and that too, between a brother and his widowed sister who had come over to her brother's house for solace and maintenance after her husband's death, If, indeed, the settlement deed had not been acted upon, the best person to speak about it is the second defendant,
Significantly enough, the second defendant has not joined the plaintiff in filing the suit, nor has he entered the witness box to disclose the circumstances under which the settlement deed came to be executed and whether it was not acted upon. The plaintiff has not explained why his father, viz., the second defendant, would not come to court and support his case that the settlement deed had not been acted upon. It is thus seen that the plaintiff has failed to examine the most competent person to prove his case. The plaintiff himself is not competent to speak about the gift not being acted upon, because he must have been just a child when the settlement deed was executed and could not therefore have known whether the gift was acted upon or not. As regards the first defendant not taking any steps to get possession of the property soon after her marriage, it must be remembered that she had been brought up by the second defendant and given in marriage and was virtually in the position of his own daughter. She cannot therefore be accused of having failed to ask for subdivision of the land or for delivery of separate possession of the lands soon after her marriage. That would not, however, mean that the second defendant would not have given the proportionate income from the land to Ellammal during her lifetime or to the first defendant after her marriage. If the entire income from the land was being appropriated by the joint family and not shared with Ellammal and, after her lifetime, with the first defendant, it is a matter, which the plaintiff has to prove. As already stated, the plaintiff has not examined his father to speak about these things. In such circumstances, it can never be said that the evidence in the case warrants the inference that the settlement deed had not been acted upon and therefore, the plaintiff is entitled to ignore the document and seek the relief of declaration. Admittedly, the first defendant and her husband have taken possession of the property in the year 1971. If the first defendant had not considered herself to be the owner of the land, all along after her mother's death, it is inconceivable she would have asserted her title to the land all on a sudden in 1971. The error that has been committed by the Courts below is that they have cast the onus of proof on the first defendant for proving that the settlement deed had been acted upon. This error of law vitiates the findings of the courts below on this aspect of the matter, though the findings are concurrent. Therefore, the second question also has to be answered in favour of the first defendant.
10. In the Light of the discussion contained above, it follows that the second appeal has to succeed. Consequently, the appeal will stand allowed and the judgments and decrees of the courts below will stand set aside. The plaintiff's suit will stand dismissed. The parties are, however, directed to bear their own respective costs throughout.
11. Appeal allowed.