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P.B. Krishnamachariar and ors. Vs. G.N. Ramabadran and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberAppeal No. 521 of 1947
Judge
Reported inAIR1952Mad706; (1952)IMLJ665
ActsHindu Law
AppellantP.B. Krishnamachariar and ors.
RespondentG.N. Ramabadran and ors.
Appellant AdvocateR. Gopalaswami Iyengar and ;K.R. Krishnaswami Ayyar, Advs.
Respondent AdvocateK.V. Ramachandra Iyer, Adv. for ;T.L. Venkatarama Iyer and ;G.N. Rangaswami Iyengar, Advs.
DispositionAppeal allowed
Cases ReferredShrinivasa Rao v. Seshacharlu
Excerpt:
hindu law--limited owner--alienation to meet marriage expenses of a daughter or daughter's daughter--binding on reversioners; a hindu widow inheriting a husband's estate or a daughter inheriting the father's estate may alienate the property purely for secular purposes or for religious or charitable purposes. to support the alienation for secular purposes the necessity for such an alienation or the benefit to the estate conferred by it must be established. the alienations however for spiritual necessity can be justified only either if they were made for meeting the indispensable acts or duties which must be performed, such as the shraddah ceremonies or the marriage of the daughter and the like, or, even if they were made for securing the merit or spiritual bliss to the deceased in.....1. this appeal raises the question of the binding nature of an alienation on the reversioners to the estate of one srinivasa raghavachari. the applicants, defendants 3 to 6, who are the representatives of the alienee, substantially failed, though the findings of the learned judge are mostly in their favour and hence this appeal.2. in the suit, the plaintiffs impeached also another alienation in favour of the 7th defendant they succeeded in the trial court but there is no appeal by the unsuccessful defendants.3. notwithstanding the extraordinary precautions taken by the alienee and the assurances given at the time of the alienation by the plaintiff's father who is a graduate and their maternal grand-uncles, who are advocates, the alienee could not but face a litigation, unrighteously, as.....
Judgment:
1. This appeal raises the question of the binding nature of an alienation on the reversioners to the estate of one Srinivasa Raghavachari. The applicants, defendants 3 to 6, who are the representatives of the alienee, substantially failed, though the findings of the learned Judge are mostly in their favour and hence this appeal.

2. In the suit, the plaintiffs impeached also another alienation in favour of the 7th defendant They succeeded in the trial court but there is no appeal by the unsuccessful defendants.

3. Notwithstanding the extraordinary precautions taken by the alienee and the assurances given at the time of the alienation by the plaintiff's father who is a graduate and their maternal grand-uncles, who are advocates, the alienee could not but face a litigation, unrighteously, as it seems to us, instigated and conducted by the plaintiff's father who was responsible largely for bringing about the alienation for his own benefit. This Court, however, not being a court of morals, is not entitled to decide the case on these considerations and we have to mete out justice according to well-established principles of Hindu law. Srinivasaraghavachari, the last male owner, died in 1898 and left behind him the first defendant then a young widow aged 17 years and a daughter, the second defendant. The estate then consisted of 35 acres of wet land and 35 acres of Punja in Devanathan village and 250 acres roughly in Paruthipattu village near Avadi. These 250 acres consisted of wet and dry lands. There were also two houses, one in Big Street, Kumbakonam and the other in Sannadhi Street, Conjeevaram besides some shops in Conjeevaram. He left also debts to the tune of Rs. 4000 to 5000 and cash in G. P. Notes of Rs. 12000 and jewels worth about Rs. 4000 to 5000. There was also the mother of Srinivasaraghavachari who survived him and the G. P. notes of the value of Rs. 12000 were utilised in settling her maintenance claim. In or about 1910, the marriage and nuptials of the 2nd defendant were performed at a cost of nearly Rs. 18000 for which purpose the lauds of the extent of 250 acres in Paruthipattu near Avadi were sold. The estate which the first defendant inherited from her husband was looked after and managed by her father till 1905 when he became a 'sanyasi'. The father also was a rich man owning properties worth two lakhs. After the death of the father, the first defendant managed her estate and perhaps after the marriage of the 2nd defendant, the son-in-law also assisted her in the management. It is in evidence that the estate was not fetching sufficient income to meet the requirements of the family. There were also litigations pertaining to the estate which involved the estate in heavy expenditure. The first defendant's son-in-law, the 2nd defendant's husband, started in 1920 a cinema business which resulted in loss and the mother-in-law purchased the lands of the son-in-law in Kannivakkam and discharged his debts to the extent of about Rs. 20000.

As the result of the property of the son-in-law having been lost, his family became entirely dependant upon the first deft & the estate of Srinivasaraghavachari. The 2nd defendant has a number of children, three boys and five girls leaving out a child which died. The maintenance and education of the children and the medical expenses of the 2nd defendant who was constantly ill was(?) as well as her husband Sundaravaradachari had to be met by the first defendant from estate. In 1928, the eldest of the daughters of the 2nd defendant, Komalavalli, had to be married and expenses had to be incurred for that marriage and later for her nuptials in 1930. The first, defendant has got five brothers, the maternal uncles of the 2nd defendant. Of these Mr. C. V. Rajagopalachari, D. W. 2 is an Advocate at Madras and C. V. Jagannathachari is a leading member of the Bar at Kumbakonam. As there were pressing debts to be paid, the pltffs' father and their maternal grand-uncle Mr. Rajagopala-chari, D. W. 2, approached in 1932, D. W. 1, Sri-nivasachariar, an Advocate, practising at Conjeevaram who was also a Government Pleader for over 20 years. As Sundaravaradachari and D. W. 2 wished to sell the house and shops at Conjeevaram they hoped that D. W. 1's client and the head of a Mutt, P. B. Ananthacharyaswami would buy the property. This Ananthacharyaswami had a number of 'sishyas' and was the head of a Tenkalai Mutt at Conjeevaram. He is the father of the 3rd defendant and defendants 4 to 6 are the sons of the 3rd defendant. The attempts of the two advocates and Sundaravaradachari were successful and a sale deed for Rs. 7500 was executed on the 30th September 1932, Ex. D. 1(a), by defendants 1 and 2 and Sundaravaradachari as guardian of his minor sons, the plaintiffs. This document is attested by the maternal uncle of the 2nd defendant, D. W. 2 and D. W. 1 the pleader of Conjeevaram and two others. A security of immovable property was also given for this sale securing the properties which the 1st defendant purchased from the son-in-law, Sundaravaradachari.

The Swamiji was at that time on tour and he apparently wanted to be satisfied about the 'bona fides' of the sale and it was after his return that the consideration was paid in full discharge of two of the seven items of debts agreed to be discharged in part under the terms of the sale deed. The two debts which were fully discharged are the debts due to C. S. Narayanaswami Iyer of Kumbakonam which is item 2 in the sale deed and which is stated, according to the recitals, to have been incurred in 1928 for the marriage of Komalavalli, the principal amount of which was Rs. 3000. The second debt that was fully discharged was the debt due to the Kumbakonam bank. On the 4th November 1932, the Kumbakonam bank wrote to D. W. 2 stating that there was no written representation by the borrowers at the time the loan was advanced, but one V. Krishnaswami Aiyangar told the Bank about the purpose of the loan. The bank enclosed with that letter Ex. D. 3, addressed to the vendee Anantachariar in which it is mentioned that the loan of Rs. 3000 was taken from the bank by Lakshmi Ammal, the 1st defendant and Sundaravaradachariar and that it was understood that the said loan was taken for the purpose of the marriage and nuptials of the daughter of Sundaravaradachariar. The letter gave also particulars regarding the balance of the principal and interest due in respect of that loan. On 25-4-1934, after the Swami returned from his tour, defendants 1 and 2 and Sundaravaradachariar as father and guardian of the plaintiffs gave a letter to the vendee authorising the vendee to discharge the two debts, i.e., the debt due to the Kumbakonam Bank and the debt due to Narayanaswami Iyer of Kumbakonam which were incurred for the expenses of the marriage and nuptials of the grand-daughter of the 1st defendant, i.e., Komalavalli. This is intended to vary the stipulation in the sale deed that these and other debts should be discharged in part from the consideration for the sale payable by Ananthachariar to the vendors. The amount was thereafter paid and C. S. Narayanaswami Iyer gave a letter to Ananthachariar on 1st May 1934, Ex. D. 7, acknowledging receipt of the full payment of the debt which had by then riped into a decree in O. S. No. 9 of 1934, Sub-Court, Kumbakonam. Narayanaswami Iyer undertook in that letter to enter up full satisfaction of the decree after the Court reopened after summer recess. The letter also added that the loan of Rs. 3000 was taken from him by Sundaravaradachari and C. V. Rajagopalachari, D. W. 2 on 16th July 1938 on the representation made to him that it was required for meeting the bills of expenses incurred in connection with the marriage of Komalavalli, the daughter of the 2nd defendant. This letter is attested by Mr. S. Panchapakesa Sastri, advocate (now a Judge of this court). The amount due to the Kumbakonam Bank was also paid and the debt discharged and there is no dispute regarding that.

4. The plaintiffs instituted this suit on the 21st October 1944 and it is in evidence, which is not contradicted on the plaintiffs' side, that at the time of the institution of the suit and even subsequently, the plaintiffs and defendants 1 and 2 and Sundaravaradachariar were living as members of one family. In this, the validity of the sale is challenged on the ground that it is beyond the power of the first defendant to sell property and that there was no valid and binding necessity to support the sale. The plaintiffs also went to the length of impeaching the sale on the ground that it was not supported by consideration. What they claim in the suit is a declaration that the sale deed dated 30th September 1932 was not valid and binding upon the reversionary interests of the plaintiffs beyond the lifetime of defendants 1 and 2. The vendee Ananthachariar Swami died and the 3rd defendant, his son and father of defendants 4 to 6 filed a written statement setting out in detail the circumstances under which the sale deed came to be executed and the consideration was paid and also maintained that the sale is binding on the reversion. The plaintiffs beyond filing some documents, did not adduce any rebutting evidence. On the defendant's side, a number of documents including the letters Ex. D. 14 series have been filed and D. Ws. 1 and 2, the two attestors to the document who along with the plaintiff's father took the principal part in arranging the sale, have been examined.

5. The learned Subordinate Judge found that the entire consideration for the sale was paid and that the two debts which were discharged by the vendee were debts incurred for the marriage and nuptials of Komalavalli and that the sale, in view of certain decisions of this court, is binding on the reversioners. He, however, found, taking every circumstances into consideration including the status of the parties, that the widow was not justified in spending such a large amount for the marriage and nuptials and that a sum of Rs. 1000 for the marriage and Rs. 500 for the nuptials would be just and proper and that out of the consideration of Rs. 7500 this amount of Rs. 1500 alone is binding on the plaintiffs as reversioners. He therefore held that the sale does not bind the plaintiffs but that the reversioners whoever they may be at the time the reversion opens, will be entitled to recover possession of the property on payment of Rs. 1500 to the alienee before recovering possession.

6. The appeal is by the defendants 3 to 6, the representatives of the alienee and there is also a memorandum of cross objections filed by the plaintiffs disputing the findings of the learned Subordinate Judge that Rs. 1500 out of the consideration is binding on the reversion.

7. The question that falls to be determined is therefore the binding nature of the alienation under Ex. D. 1(a) on the reversion. As regards the payments of consideration and the discharge of the debts and the purpose for which the debts were incurred, the findings of the learned Subordinate Judge are in favour of the appellants. These findings are, in our opinion, fully justified by the evidence on record. There are the undoubted representations made to the alienee evidenced by the letters which the creditors gave, Ex. D, D. 3, D. 4 and D. 7 and by the recitals in the sale deed Ex. D. 1(a) which sets out the history of the family from the time of the death of Srinivasaraghavachari to the date of the deed. In the sale deed there is a recital that Komalavalli, the eldest daughter of the 2nd defendant, was married in 1928 and her nuptials and marriage was performed in 1930 and that in connection with these two ceremonies, debts had to be incurred. With reference to the debt due to Narayanaswami Iyer, there is also an express recital that that debt was borrowed for the marriage of Komalavalli. No such recital, however, is expressly made with reference to the debt borrowed from the Kumbakonam bank.

The point that was stressed during the course of the arguments on behalf of the plaintiffs was that the borrowing from Narayanaswami Iyer was not a debt incurred on behalf of the estate as the promissory note was executed, as admitted by D. W. 2, by himself and Sundaravaradachari. The widow, it is said, was therefore not justified in alienating property for discharging the debt due from these two people to C. S. Narayanaswami Iyer. The subsequent suit by Narayanaswami Iyer was also against the executants of the promissory note, D. W. 2 and Sundaravaradachariar. D. W. 2 explains in his evidence that he had secured the loan from Narayanaswami Iyer and that at the outset Narayanaswami Iyer was willing to take a letter from the first defendant but he had subsequently changed his mind and wanted a promissory note executed by him and the son-in-law, Sundaravaradachari. He obtained the money and paid it into the hands of Sundaravaradachari who applied it for discharging the various pressing debts incurred for the marriage such as piper, the pandalman and so on. The letter which he took from his sister to Narayanaswami Iyer was, as the evidence shows, handed over to Narayanaswami Iyer but that letter is not now forthcoming nor is the promissory note but there is no reason to disbelieve the evidence of this witness D. W. 2 and it was accepted by the trial Judge.

The debt due to the Kumbakonam Bank arose out of a loan obtained by the first defendant and Sundaravaradachari and that was for the nuptials of Komalavalli. D. W. 2 was a surety for the bank on behalf of his sister. D. W. 1, the Conjeevaram Pleader, who arranged the transaction expressly states in his evidence that representations were made by the defendants 1 and 2 and by Sun-daravaradachariar and Rajagopalachari and that he had believed those representations as he had no reason to doubt them. He acted as the agent of the vendee and when he was satisfied that the amount was needed for the purposes indicated in the sale deed, he advised the vendee to pay the amount to discharge the debts. The vendee took the precaution of including the plaintiff's father also as the guardian of the minor plaintiffs in executing the sale deed and there were the attestations of D. Ws. 1 and 2 besides the letters from the Kumbakonam bank and Narayanaswami Iyer. The fact that in the sale deed the debt borrowed from the Kumbakonam bank was not expressly stated to be in connection with the expenses of the nuptials of Komalavalli does not, in our opinion, entitle us to disbelieve the evidence of D. W. 2 particularly as there is a clear recital in the sale deed that debts were incurred for the marriage and nuptials of Komalavalli. Though the debt borrowed from Narayanaswami Iyer was advanced on the personal credit of D. W. 2 and Sundaravaradachari, it is obvious that they borrowed this amount for the benefit of the first defendant and for the purpose of the marriage. D. W. 2 did not get the benefit of the loan and undoubtedly Sundaravaradachari and the 1st and 2nd defendants it was that had the full benefit of that loan. It therefore comes with ill-grace from the plaintiffs to argue that this loan was a personal debt of D. W. 2. It therefore follows that the sums aggregating to Rs. 6000 were borrowed for the marriage and nuptials of Komalavalli which were performed in 1928 and 1930 respectively.

This leads us to the question whether the debt was justified under Hindu law, and whether the alienation can be upheld. At the time the debts were incurred Sundaravaradachari's family was undoubtedly in indigent circumstances having practically no property of its own and all were living as members of the family of the first defendant & were entirely dependant upon her and the estate which she inherited from her husband. All the persons connected with this transaction were educated people and two of them are lawyers. The plaintiff's father himself is a graduate and though he was conducting the suit on behalf of the plain-tiffs along with an old clerk of his father as stated by the learned Subordinate Judge, he did not venture to go into the witness box though he could have given very valuable evidence on some of the important points that arise in the case. It must therefore be assumed that except the estate in-herited by the first defendant, Sundaravaradachari had no other means of performing the marriage and nuptials of Komalavalli and of maintaining himself and his large family.

8. The power of a limited owner like the widow inheriting her husband's estate or a daughter inheriting the father's estate to make an alienation of the properties comprised in the estate has been the subject-matter of several decisions of the P. C. and the High Courts. She may alienate the property purely for secular purposes or for religious or charitable purposes. To support the alienation for secular purposes, the necessity for such an alienation or the benefit to the estate conferred by it must be established. The religious and charitable purposes are divided into two categories, the 'nityakarma' or obligatory acts and 'kamyakarma' or optional acts. The obligatory religious duties are the obsequies and the periodical ceremonies such as the annual ceremonies of the last male-holder, the performance of which cannot be dispensed with. In respect of such acts, if the income from the estate is inadequate to meet the expenditure, the limited owner is entitled to sell the whole of the property if necessary as the duties must be performed. As regards non-obligatory or non-essential acts, it is not incumbent on the limited owner to perform them. They are not indispensable acts or duties but the performance of such acts if commended as they would confer punya or spiritual benefit and are conducive to the bliss of the soul of the deceased. In respect of such acts, however, the power of the limited owner is not as large as an the case of indispensable acts. In such case, the sale or other alienation cannot be upheld un-less it is reasonable in the circumstances of the family and the properties sold bear only a small proportion to the property inherited from the last owner. The obligations which the last owner would have been only morally bound to discharge may become legal obligations in the hands of the limited owner who inherits the estate. The terms, necessity and benefit, must therefore be confined to alienations made by a limited owner for what are termed secular or worldly purposes. The alienations however for spiritual necessity can be justified only either if they were made for meeting the indispensable acts or duties which must be performed such as the 'shraddah' ceremonies or the marriage of the daughter and the like or even if they were made for securing the merit or spiritual bliss to the deceased in the other world, it must be shown that the extent alienated was a reasonable portion of the property inherited. The reasonableness, of course, must be decided according to the circumstances of the family. These principles are deducible from the decisions of the Privy Council in the 'Collector of Masulipatam v. Cavaly Vencatanarraina', 8 Moo. Ind. App. 529 at 550 and 551 and 'Sardar Singh v. Kunj Biharilal', 44 All 503 and the Full Bench decision of this court in 'Ambu Bai v. Sonibai', I. L. R. (1941) Mad 13.

9. The acquisition of spiritual merit or 'punya' as the object of life in this world has been emphasised by the 'Smriti' writers. Manu says in Chapter IV, para 238:

/keZa 'ku% lafpuq;k}Yehdfeo iqfdk% A

ijyksdlgk;kFkZe~ loZHkwrkU;ihM;u~ AA

(Giving no pain to any creature, let him slowly accumulate spiritual merit, for the sake (of acquiring) a companion to the next world, just as the white ant (gradually raises its) hill.

239 ukeq=fg lgk;kFkZe~ firk ekrk p fr"Br% A

u iq= nkjk u Kkfr% /keZfLr"Bfr dsoye~ AA

(For, in the next world neither father, nor mother, nor wife, nor sons, nor relations stay to be his companions; spiritual merit alone remains (with him).

240 ,d% iztk;rs tUrqjsd ,o izyh;rs A

,dksuqFkqM+~qead ,o p nqRe~ AA

(Single is each being born; single it dies; single it enjoys (the reward of its) virtue; single it suffers (the punishment of its) sin.)

241 e`ra 'kjhjeqRl`T; dk"Byk"Ble f{krkS A

foeq[kk ckU/kok ;kfUr /keZLreuqxPNfr AA

(Leaving the dead body on the ground like a log of wood, or a clod of earth the relatives depart with averted faces; but spiritual merit follows the (soul).

242 rLek)eZ lgk;kFkZ fuR;a lafpuq;kPNuS% A

/kesZ.k fg lgk;su reLrjfr nqLrje~ AA

(Let him therefore always slowly accumulate spiritual merit, in order (that it may be his) companion (after death); that with merit as his companion he will traverse a gloom difficult to traverse).

243 /keZiz/kkua iq:"ka irlk grkdfYc"ke~ A

ijyksd u;R;k'kq ;kLoUra Lo'kjhfj.ka AA

((That companion) speedily conducts the man who is devoted to duty and effaces his sins by austerities, to the next world, radiant, clothed with an ethereal body).

10. It is for this reason that the Shastras en-joined the various modes by which a person can acquire spiritual merit or 'punya'. The dedication of a small extent of property to God to perpetuate the name of the husband and to have 'archana' performed in a temple in the name of the deceased, gifts to Brahmans on occasions like the 'push-karams' of various rivers, not to speak of such gifts at the 'sraddah' ceremonies, feeding of 'athithi' and 'abyagathi', maintaining dependants and various other deeds have been praised. The limited owner, therefore, even in respect of non-obligatory duties is not required to keep herself inactive and is not prevented from making any attempt to contribute for the spiritual welfare of the deceased if the estate permits. According to Manu "the father, the mother, the guru (elderly relation, worthy of respect), a wife, an offspring, poor dependant and guest and a religious mendicant are declared to be the group of persons who are to be maintained", and Brihaspathi says

"the widow inheriting her husband's estate should honour with food and presents for their benefit the husband's paternal uncle and the like venerable elderly relation, daughter's son, sister's son and maternal uncle, the aged and helpless persons, guests and females of the family".

These two texts undoubtedly indicate that poor dependants and the female members of the family should be maintained and should be honoured with food and presents. No doubt, the obligations so enumerated in the texts cannot be treated as obligatory but they are certainly acts which conduce to the spiritual welfare and contribute to the acquisition of spiritual merit in the other world. The persons who are dependants upon the last owner as members of the family and who are poor and were being maintained by the last owner who was under a moral obligation acquire a legal obligation when the estate devolved upon the limited owner. All the matters enumerated in the two texts may not be enforceable in the present day. It is for that reason, I think, that the decisions have established that if the daughter's family is indigent, the widow is bound to maintain her and also to perform the marriage of the daughter's daughter and the marriage and upanayanam of the daughter's sons and for these purposes would be entitled to alienate a reasonable portion of the property. On the same analogy, the daughter who inherits the father's estate is also empowered by decisions to incur debts and alienate property for the purpose of performing the marriage and upanayanam of her own sons and of the marriage of her daughter and even of her grand-daughter. The performance of the marriages of the female members of the family when the limited owner is not under an obligation to get married is considered to be conducive to the spiritual welfare of the last male owner as 'kanyadanam' is considered, according to Hindu Shastras, as a meritorious act from a religious point of view. In the case of a destitute 'kanya' who though not so closely related to the family to claim a legal obligation against the estate to meet the expenses of her marriage if however, the limited owner spends money and performs the marriage of such a maiden provided the amount spent is reasonable in the circumstances, the debt incurred for such a purpose would be binding on the estate and an alienation to discharge such debts would equally be binding. The texts bearing on this question have been subjected to an elaborate and critical examination by Venkataramana Rao J. in 'Srinivasarao v. Seshacharlu', I. L. R. (1942) Mad 42 a case relating to an alienation of the whole of the estate by a daughter who inherited her father's estate to defray the marriage expenses of her daughter's daughter, her grand-daughter when the parents of the girl were indigent. The alienation to the extent to which it was reasonable was upheld.

Besides the texts referred to by Venkataramana Rao J., there are also other texts of Smriti writers such as Manu, Marichi, Samvarta, Brihaspati and Vasishta in which the gift of a 'kanya' is stated to confer merit upon the giver. The texts are:

vfXugks=kfnf=;ZRL;kkr czkL; p A

rRdU;ka fof/kck Qyekizksfr ekuo% AA

(Manu cited in Viramitrodaya Chowkhamba Edn. p. 831) (A man giving a maiden in marriage according to precept will get the fruit that a Brahmin engaged in Diksha will get through the performance of Agnihotra and other rites).

ukfXufpUujda ;kfr u dU;knks u rRlqr% A

fofHkrks ;K% dU;knkua egkQye~ AA

(Marichi cited in Smritichandrika, Mysore Edn. Vol. 43 p. 214, (One who does Agnichayana, the giver of a maiden in marriage, and his son, these three never go to hell. The gift of a maiden yields enormous fruits. It is an Yajna equal to the Visvajit sacrifice).

T;ksfr"Vksekfrjk=k.kka 'kr 'krxq.khdwre~ A

izkizksfr dU;dke~ nRok gkseeU=SLke~ AA

(Samvarta cited in Smritichandrika, Mysore Edn. Vol. 43 page 214) (One who gives a virgin sanctified with the mantras of homa gets hundredfold the fruit of a hundred Jyotishtoma and Atiratra saccrifices).

lgerk /ksuqjuM~oku~ n'k /ksuo% A

n'kkugqRlea ;kua n'k;ku leks g;% A

n'k okftlaek dU;k Hkwfenku p r rRlee~ AA

(Brihaspati cited in Smritichandrika, Mysore Edn. Vol. 43, page 214) (The gift of a cow is equal to that of a thousand (gold coins), the gift of a bull to that of ten cows; the gift of a vehicle to that of ten bulls; and that gift of a 'kanya' to that of tea horses and the gift of land stands on a par).

losZ"kkeso nkukukesda tUekuqx Qya A

gkVd f{kfrxkSjh.kka lIrtUekuqxaQya AA

(Vasishta cited in Hemadri (Asiatic Society of Bengal Edn.) Danakanda, page 679) (The benefits accruing from all other gifts last for a single birth. The fruit of gifting gold, land and a maiden lasts for seven births).

vya ;rq ;% dU;ka Hkw"k.kkPNknu fnfHk% A

nRok LoxZeokizksfr iwT;rs oklokfnfHk% AA

dwin/kh p izk.knkrk ;;s"kq p A

lea ;kfUr jFkk ,"kka =;ks oS uk= la'k;% AA

(Samvarta cited in Viramitrodaya, page 832) (One who gives a 'kanya' providing her with jewels clothing etc. attains Heaven and is worshipped by Indra and others. A koopada i.e., one who gifts a maiden decked with jewels, the performer of the Asvamedha Sacrifice and one who saves another's life in danger -- these three march together on parallel cars (to Indra's abode).

vkReh;lqo.ksZu ijdh;ka r dU;dke~ A

/kE;sZ.k fof/kuk nkrqelxks=ksfi ;qT;rs AA

(Skanda Purana cited in Hamadri's Danakhanda page 680) (It is proper even for a man belonging to a different Gotra to make one's own another's

daughter by the gift of gold and give her in marriage according to the Sastraic injunctions).

11. We do not propose in this judgment to subject the decisions once more to a critical examination as the texts and the law have been more than once examined by this court and a recent instance of such an examination is the decision in 'Parisa Mudaliar v. Nataraja Udayar', 1950-1 Mad LJ 90. The earliest of the decisions which related to the marriage of the daughter's daughter is that of the Allahabad High Court in 'Rustam Singh v. Moti Singh', 18 All 474. The family being poor and the father of the girl being unable to meet the expenses of the marriage, it was held that the daughter inheriting the father's estate was entitled to alienate the property for the marriage of her daughter. This was followed by this Court in 'Chudammal v. Nadamudi Naidu', 3 Ind Cas 77 (Mad) and the Lahore High Court followed these two decisions in 'Jairam v. Bhagat Ram', AIR 1935 Lah 440. Devadoss J. thought that the daughter was not justified in alienating the property inherited by her from her father for performing the marriage of her son but his decision & the subsequent decision of Ananthakrishna Aiyar J. in 'Anandarao v. Venkatasubbarao', 58 Mad LJ 127 which related to the upanayanam of the daughter's son were dissented from and disapproved by Venkatasubba Rao J. in 'Mallayya v. Bapireddi', 62 Mad LJ 39 which was a case of a marriage of a daughter's son. The learned Judge examined the legal position and principles and observed in the course of the judgment that the marriage of a daughter's daughter is an 'a fortiori' case. The learned Judge referred to the decision of the Privy Council in 'Sardar Singh v. Kunj Behari Lal', 44 All 503 and the distinction pointed out in that judgment between obligatory religious duties and non-obligatory duties. The learned Judge rested his decision on the principles that the daughter's son occupies a peculiar position under Hindu law, and that he confers spiritual benefit on the maternal ancestors and therefore the upanayanam and the marriage which qualify the daughter's son to perform & take part in the religious ceremonies were considered essential. He however confined his decision to the case of the family of daughter's son being in indigent circumstances. When the decision of Ananthakrishna Aiyar J. in 'L. Anandrao v. Y. Venkatasubba Rao', 58 Mad LJ 127 was taken in Letters Patent Appeal, the learned Judges reversed that decision in 'Venkatasubba Rao v. Anandarao', 57 Mad 772 and upheld the alienation made for the purpose of performing the upanayanam of the daughter's son even though the family was not in indigent circumstances. This is undoubtedly based on the peculiar position which the daughter's son occupies. It must be remembered that the position which the daughter's son occupies in the order of inheritance is due to Vignaneswara as he interpreted the particle ,oa in Yagnavalkya's text as including the daughter's son after the daughter and for this he relied on the texts of Vishnu and Manu who treat the daughter's son as equivalent to a son's son. The case in 'Parisa Mudaliar v. Nataraja Udayar', 1950-1 Mad LJ 90 is a case of a marriage of daughter's son, the family being in indigent circumstances. The Full Bench in 'Ambubai Ammal v. Sonibai Ammal', ILR (1941) Mad 13 upheld the right of a widowed indigent daughter for maintenance against the father's estate following the principle of the Full Bench decision in 'Janki v. Nandram', 11 All 194 that the moral obligation in the hands of the father became a legal obligation by his death and consequently a liability on the estate of the widow.

12. There are therefore two lines of cases. One line of cases relating to daughter's son whether it is marriage or upanayanam and the obligation, when the family is indigent or even if it is not indigent, based upon the spiritual benefit which the daughter's son confers upon the maternal ancestors. In case of marriages of the daughter's daughter or the daughter's grand-daughter, however the alienations are supported on the ground that the gift of a destituted 'kanya' in marriage is conducive to the spiritual welfare and confers spiritual merit on the last male owner as his funds are utilised for the performance of the marriage. It may possibly be rested on the footing that here these girls, whether it is the daughter's daughter or the daughter's grand-daughter, are practically members of the father's family when they are indigent and poor as in the present case, a moral obligation ripens into a legal obligation for, if the last male holder had been alive he would certainly have felt it his duty to dispose of his own daughter's daughter or his own daughter's grand-daughter in marriage where the families of these girls were not in affluent circumstances to perform the marriage. I do not however rest the decision on this ground and express no final opinion without a fuller examination of the point. The authority therefore is overwhelming and the object of the alienation in the present case for the performance of the marriage and nuptial ceremonies of Komalavalli is perfectly justified.

13. The learned Subordinate Judge does not differ from this view but he set aside the alienation on the ground that the widow was not justified in spending as much as Rs. 6000 for the two ceremonies. It is not disputed that the amount was in fact spent for these purposes. The decisions which we have adverted to including the latest decision of Venkataramana Rao J. in 'Srinivasarao v. Seshacharlu', ILR (1942) Mad 42 have held that the expenditure incurred must bear a reasonable proportion to the estate and have regard to the circumstances of the family and Hindu notions regarding the propriety of the expenditure. In the decision in Srinivasarao v. Seshacharlu, I. L. R. 1942 Mad 42 the widow alienated the entire property which she had inherited. We have ourselves examined the printed records in that case and we are unable to find anything to justify the alienation of the entire estate inherited by the widow. No doubt, under these circumstances the alienation of the entity of the estate may not be justifiable. In the present case, the plaintiffs' father assumed a wholly unhelpful attitude and did not place any material before the Court regarding the necessity for the expenditure. The point itself was not taken in the pleadings nor was there any suggestion in the cross examination of the witnesses who have been examined on the defendants' side, D. Ws. 1 & 2. They are respectable members of the Bar and they are themselves relations; at least one of them is a relation of the family and belongs to the same community as the alienee. We have no material on which to decide the status and the circumstances of the family and the reasonable amount which could have been spent for the marriage and nuptials of Komalavalli. The learned Judge if he thought that the alienation could not be justified to the extent of Rs. 6000, the principal, he should have given an opportunity to the parties to enlighten the Court as regards the propriety of the expenditure. But this course was not adopted and the defendants were not in a position to adduce evidence and were at a disadvantage as the point was not taken. Though Sundaravaradachari had lost all his property and was mainly dependent up on the family of the first defendant it cannot be said that the status of the first defendant's family was such as to lead to the inference that the expenditure was extravagant. It is common knowledge that in middle class families the expenditure for marriage and nuptials is very high. It is unfortunately due to various circumstances including the amount of 'katnam' and presents extracted by the sons-in-law from the unwilling parents-in-law; but it cannot be avoided as the parents of the girl would be anxious to place the girl in a family which is comparatively in affluent circumstances. In 1928 and 1930, the family of the 1st and 2nd defendants had good property though the income was not sufficient to meet its expenses. Having regard to the circumstances that the 2nd defendant's marriage and nuptials were performed at a large expense of Rs. 18000 in 1910, it cannot be said that one third of the amount spent for the marriage and nuptials of Komalavalli was extravagant and does not bear a reasonable proportion to the estate which the 1st defendant inherited from her husband. All the members of the family, D. W. 2, and his brother and D. W. 1 considered that the expenditure was not such as to lead to the inference that it was extravagant. In these circumstances, we think that we would not be justified in setting aside the alienation on the ground that the expenditure was extravagant and the property alienated was unreasonably large having regard to the facts set out above. We disagree therefore with the finding of the learned Subordinate Judge and uphold the alienation in favour of the appellants in its entirety.

14. The result is that the appeal is allowed with costs, the decree of the Subordinate Judge is set aside and the suit as against these appellants is dismissed with costs. In this view it is unnecessary to consider the memorandum of cross-objections which is dismissed but without costs.

Raghava Rao, J.

15. I agree in the conclusion of my learned brother, but wish to add a few words on the legal aspect of the question for determination.

16. Learned counsel for the respondents did not dispute the power of the 1st defendant to make an alienation of her husband's estate within the limits allowed by the Hindu law for meeting the expenses incurred in connection with the marriage of her daughter's (i.e., 2nd defendant's) daughter. Nor did he dispute the legitimacy of any expenditure for the 'garbhadhana' ceremony as such, i.e., as apart from the expenditure for the 'vivaha' ceremony which preceded it by some years. His argument was firstly, that the expenses for the 'garbhadhana samskara' not being recited in the sale deed could not be accepted as true and secondly that the expenses for that samskara and the 'vivaha samskara' even if incurred in the aggregate sum of Rs. 6000 could not be treated as reasonable in measure in the eye of law so as to justify the alienation under challenge, but must be regarded as too extravagant to support it.

17. The existence in law of a power of the kind exercised by the 1st defendant in the present case could not indeed be disputed because of the long settled law and the subject which has been examined by my learned brother in his judgment from its very foundation in the smritis in so far as they not only enjoin on an individual 'punyasanchayana' in general, but also acclaim the virtue of 'kanyadana' in particular as a highly meritorious act. I need only add that 'kanyadana' like 'godana' is an important part of the vedic obsequial ritual observed on the 12th day of the death as one of the 'shedasamahadanas' to be made by the Karta after 'sapindikarana'. To incur expenditure in connection with any 'kanyadana' as an act of piety calculated to promote the spiritual bliss of her husband is undoubtedly within the competency of a Hindu widow and a fortiori so where the 'kanya' is that of an indigent family. The relationship of the 'kanya' to the female holder of the estate as her daughter or daughter's daughter docs not certainly take away from but if at all only add to the spiritual bliss of the father or husband as the case may be; nor does the fact of indigence or affluence of the parents of the girl matter, except perhaps on a question of the relative measure of the meritoriousness which can never be precisely assessed or estimated and need not be enquired into, and certainly on a question of the measure of the expenditure to be incurred which must, of course, vary according to the status of the parents of the girl to be married.

18. The question of indigence or affluence has been held immaterial by the learned Chief Justice and Krishnaswami Nayudu J. in 'Parisa Mudaliar v. Natarajah Udayar', 1950-1 Mad L J 90 which related to the marriage of a daughter's son of the last male holder, and there is no reason why it should be held material in the case of the marriage of a daughter's daughter of the last male holder except as I think either case to the extent and in the sense indicated just now by me. The learned Judges in that decision rightly observe:

"We do not think there is any real justification in making a distinction between the alienations for marriage expenses of a daughter's daughter and (for marriage expenses of) a daughter's son."

In both the cases, it is only a measure of expenditure which the court can consider reasonable that can support the alienation and support it pro tanto.

19. The test of this reasonableness has been propounded in the cases in terms of a quantitative ratio by no means certain or definite, which the court has to apply to the facts of each case as best as it can. In 'Sardar Singh v. Kunj Biharilal', 44 All 503 P. C., which related to an alienation by the widow of which the avowed object was to offer food to an idol, Mr. Ameer Ali in delivering the judgment of their Lordships of the Board of the Judicial Committee of the Privy Council first calls attention to the 'locus classicus' in 'Collector of Masulipatam v. Cavali Venkatanaray Anappa', 8 Moo Ind App 529 at pp. 550, 551 where the Master of the Rolls in delivering the judgment in the latter case said as follows:

"It is admitted on all hands that if there be collateral heirs of the husband the widow cannot of her own will alienate the property except for special purposes. For religious or charitable purposes or those which are supposed to conduce to the spiritual welfare of her husband she has a larger power of disposition than that which she possesses for purely worldly purposes. To support an alienation for the last she must show necessity."

Mr. Ameer Ali proceeds to refer afterwards to 'Ramkamal Singh v. Ram Kishore Das', 22 Cal 506 where the alienation was not for the maintenance of an idol which had been established by the husband of the widow and the dedication was held prima facie to be for the widow's own spiritual welfare and not for the husband. His Lordship then enunciates the distinction between the two kinds of spiritual acts for which the Hindu female can make alienations of the inherited estate --compulsory and optional acts -- in that in the case of the former, if the income of the property or the property itself is not sufficient to cover the expenses she is entitled to sell the whole of it, while in the case of the latter she can alienate a small portion of the estate inherited for the pious or charitable purposes contemplated by her. His Lordship then quotes with approval the following passage from Tatayya v. Ramakrishnamma', 34 Mad 288 at p. 291:

"We think we are warranted in holding that if the property sold or gifted bears a small proportion (which it is impossible to define more exactly) to the estate inherited and the occasion of the (disposition or) expenditure is reasonable & proper according to the common notions of the Hindus it is justifiable and cannot be impeached by the reversioner."

20. Referring to the quantitative ratio herein suggested this is what Jackson J., in delivering the judgment of the Bench consisting of himself and Butler J. observes in 'Venkatasubbarao v. Anandarao', 57 Mad 772 at p. 775: "The quantitative ratio approved in this judgment is not at first sight easy to understand. If a small gift to an idol is conducive to the husband's spiritual bliss would not a larger gift be still more conducive? Presumably human nature being what it is, courts are not prepared to sanction transactions which offend ordinary commonsense and good husbandry. If a widow devotes the whole of an estate to the idol there will be suspicion of fraud or undue influence. In our present case there is no suggestion of undue extravagance and it must be remembered that the quantitative ratio works in both directions. Her pious duty for her husband's satisfaction is to honour her daughter's son and some meagre gift for the ceremonies which would only make him ridiculous in the eyes of the neighbours would not fulfil this obligation."

21. At page 774 of the Report, earlier, there is another observation of the Court also worth noting in this connection:

"Where the piety of purpose about the alienation by the female holder is impeached in any given case on the ground of the absence of sincere religious feeling in the mind of the alienor, asks Mr. Justice Jackson "Who is to distinguish between sincere religious feeling and idle sentiment?"

The learned Judge then proceeds thus: "All that can be safely said is that where the point is doubtful and where there is not the slightest suspicion of ulterior motive or fraud the benefit of the doubt should be given to religious feeling. It is not for a court of law to disparage the pious acts of devout people." (22) It may be interesting to observe, pausing here, rather parenthetically that judicial conception of Hindu piety has gone indeed so far as to sanction within the limits of the operation of this quantitative ratio test an alienation by a Hindu family manager by way of a gift to a Roman Catholic Church. It has been held in this court by Chandrasekhara Aiyar J. in 'Kolandai v. Gnanavaram', 1943-2 Mad LJ 664 that where the family owned considerable properties and the land gifted by the manager to a Roman Catholic Church is a very small fraction measuring 1 acre, 20 cents worth Rs. 50 and remaining uncultivated, the other coparceners would be bound. Says the learned Judge at page 157, 1st column of the report:

"The Hindu religion has been the most tolerant religion of the world and the very idea that pious and charitable purposes should refer to and mean objects that can be said to promote a particular faith, creed or degree is foreign to its ideals. True piety transcends castes and creeds and whatever is done to advance belief in God and His rule over the Universe can be said to be an act of broad-minded piety."

The piety of 'kanyadana' with which we are concerned in this case is undoubted and there is no question of any distinction here between an act of piety conducive to the spiritual bliss of the husband and an act of piety conducive to the spiritual bliss of the widow as such as in 'Ramkamal Singh v. Ramkishore Das', 22 Cal 506. The only point for consideration therefore is whether the first defendant in making the alienation complained of in the present case exceeded the limits allowed to her by the law according to the quantitative ratio test laid down by the decisions. My learned brother has given reasons with which I agree for holding that she did not. It is significant that the daughter and the son-in-law, the mother and father respectively of the plaintiffs joined in the transaction and that neither of them, and in particular the latter, has gone into the box. No "ulterior motive or fraud" and no "undue extravagance of expenditure" within the meaning of the decisions has been pleaded, much less proved.

23. It seems to me too that a bona fide alienee like the father of the third defendant need have gone no further than to satisfy himself that there were outstanding debts in fact and indeed incurred by the first defendant as for the marriage and for the later allied ceremony of garbadhana of her daughter's daughter. To call upon him to go further and satisfy himself that the expenditure incurred was one which a court of law would hold reasonable, should the transaction of sale be later challenged, is to impose on him an onerous and undue responsibility not easily feasible of discharge in a matter on which if there were more courts than one dealing with the question they may not for aught one knows find themselves agreeing in the same conclusion. To say that such an alienee must either take the risk of the court deciding adversely to him on the question of the reasonableness of the expenditure or refrain from going in for the property altogether does not appeal to me in the slightest as a canon of practical justice and equity which this court should endorse. Except in a case of proved fraud on the power in the sense of its exercise for a sinister or ulterior purpose or in a case of proved collusion between the alienor and the alienee in order to defeat the reversion, the court ought not, in my opinion, to be astute or anxious to invalidate the transaction. The alienee must, I am inclined to think, stand protected so long as the 'causa causans' inspiring the transaction is an indebtedness for a lawful and binding purpose. The principle of equity recognised from as early as the Privy Council decision in 'HUNOOMAN PERSAUD'S CASE', 6 Moo Ind App 393 (PC) in favour of a bona fide alienee or creditor acting on the representation of a lawful purpose by the limited estate holder is not merely that he stands absolved from the obligation to prove the real existence of an alleged and reasonably credited necessity as a condition precedent to the validity of the transaction, but also that such alienee or creditor is not affected by the precedent mismanagement of the estate. This latter aspect of the principle has been expressed by the Privy Council in 'Kiladiri Senu v. Chaturbujdas' 6 Pat. 139 which related to an alienation by the head of a mutt in the terms that only the immediate and not the remote cause, the 'causa causans' of the borrowing is the thing to be considered. This aspect of the doctrine is, in my opinion, equally applicable to an alienation by a widow holding a limited estate. That in such cases the anterior mismanagement does not affect the bona fide alienee or creditor is an integral part and parcel of the equitable doctrine expounded by K. T. Brace, L. J., in HANOOMAN PERSAUD'S case, 6 M.I.A. 393 and, in my opinion, the sale impeached in the present case must in this view also stand. We are now concerned with the rights of an alienee under a sale effected for the discharge of a debt already incurred for a lawful and binding purpose by the holder of the limited estate, not with the rights of a creditor simple or secured for the first time advancing a loan for such a purpose.

24. As regards the principle discussed before the court below as well as before us that a moral obligation on the part of an ancestor becomes a legal obligation of the descent of his estate, on his heir, I must own to some amount of doubt in regard to its applicability to the present case. Although the doctrine has become too well settled in Hindu law to be disputed at this time of day I am inclined to think that it can only apply to cases where the obligation even as a moral one did arise during the original owner's lifetime. To fasten on the estate in the hands of the heir a liability not in 'esse' but only in 'posse' during the lifetime of the original owner is, I am afraid, to go further than is warranted by the decisions on the subject on the ratio thereof. The principle is, no doubt, one peculiar to Hindu Jurisprudence which insists that not merely legal but also moral obligations to the propositus must be fulfilled by the taker of the estate after his death in the interests of his spiritual benefit and welfare. The principle is certainly not one of which the courts ought to fight shy because there is, in my opinion, a high liberality of spiritual outlook underlying the doctrine which no Hindu ought by any means to feel abashed about. I am not prepared to extend the principle, however, to any merely moral obligation which did not concretely exist during the lifetime of the original owner because the person claiming enforcement of such obligation against the later taker of the estate was not in existence at all during the lifetime of the original owner. Moreover, I entertain some doubt how far the liability to meet the expenses of marriage and 'garbhadhanam' of a daughter's daughter is to be regarded as within the ambit of a person's moral obligation according to the texts to maintain her during his lifetime. The principle, as observed in 'Kaminee Dassee v. Chandra Pade Mondle', 17 Cal 373 is one which is or is not to be applied to a particular case according to the view that the court takes on its own merits. It will have to be determined in each case whether having regard to the relationship, the means and various circumstances of the party claiming maintenance the late proprietor was according to the principles of the Hindu law and to the usage and practice of the Hindu people morally bound to maintain that party. Even assuming a person's liability to meet marriage expenses of his daughter's daughter may be treated as on the same footing as an obligation to merely maintain her, there is, as I have already indicated, no inexorable logic about the situation such as compels me to say as at present advised that although the daughter's daughter came into being only after the death of the person, his heir or heiress would be bound by the obligation as a legal obligation into which a moral obligation of the person might well become converted on the devolution of his estate on his heir or heiress. The extension of the doctrine in the manner suggested is calculated to introduce sometimes a complication into the situation by reason of too many burdens for the estate to bear coming into existence over an undefined period of time after the death of the original owner against the estate in the hands of the later taker. Far from operating as a rule of spiritual benefit to the original owner, I cannot help feeling that the extension may work; sometimes too much to the prejudice of the later taker to leave him any inducement to minister even to the fundamental spiritual needs of the deceased.

25. Lastly I agree with my learned brother in his view of 'Shrinivasa Rao v. Seshacharlu', ILR. (1942) Mad 42 that the alienation in that case which was of the whole property inherited by the widow could not be upheld in its entirety consistently with the quantitative ratio test discussed in the foregoing.


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