1. The question of law raised in this second appeal is whether a deed of gift executed by the plaintiff's father in favour of the 1st defendant, the daughter of the donor's deceased undivided brother, is valid and binding as against the plaintiff, the donor's son, according to the Hindu Law. The facts found are that after the death of the 1st defendant's father she and her mother the 2nd defendant were under the protection of the plaintiff's father, who by survivorship became possessed of the whole of the property which formerly belonged to him and the 1st defendant's father. He maintained the 1st defendant and gave her in marriage, and some years afterwards executed the disputed deed of gift, Exhibit I, in 1897. The plaintiff was and still is a minor. The total extent of the family property in the hands of the plaintiff's father and the value of the property comprised in Exhibit I are in dispute. The finding of the lower Courts is that the land given under Exhibit I is worth Rs. 400 and that the aggregate of the family property at the time of the gift was worth Rs. 2,400, so that the gift to the 1st defendant was of one-sixth of the property in the hands of the donor. We must accept that finding. The lower Courts held that Exhibit I was invalid as' against the plaintiff, being of opinion that the gift not having been made at the time of the marriage of the 1st defendant, the plaintiff's father had no right to make it under the Hindu Law.
2. Two contentions have been urged before us at the hearing of this second appeal preferred by the 1st and 3rd defendants:
(i) that the judgments of the lower Courts are not in accordance with the latest exposition of the law by this Court regarding gift made to a daughter of an undivided member of a family; and
(ii) that the proportion of the family property given to the 1st defendant is not excessive.
3. Mr. T.R. Ramachandra Aiyar, the learned Vakil for the 1st respondent, while admitting that the recent decisions of this Court have upheld gifts of family property made to girls born in a Hindu family, contends that there has been no instance where the Court has maintained a gift made by any one other than the father, mother and brother of the donee, and contends that such a gift, if made by an uncle, is invalid. He relies on the text of Yajnavalkya, sloka 113, referred to by Vijnaneshvara in dealing with the separate properly of a woman, 'What was given to a woman by the father, the mother, the husband or a brother...is denominated a woman's property' and Vijnaneshvara's commentary on the sloka [see Chapter I, Section 11, placitum 2 of Colebrooke's Translation of the Mitakshara]; he also contends that even if a gift to the donor's brother's daughter could be valid, the plaintiff's father had no right to give so large a proportion as one-sixth of the total property belonging to himself and his son. Mr. Devadoss, Counsel for the appellants, strongly relies on a note of Krishna-swami Aiyar, J., which that learned Judge had prepared as his judgment in Second Appeal No. 572 of 1909 before he ceased to be a Judge of this Court, The judgment, in that case, of Munro and Sankaran Nair, JJ., is reportsd in Anivilla Sundararamayya y. Cherla Sitamma 2 M.W.N. 422 : 10 Ind. Cas. 56 : 9 M.L.T. 469 : 31 M.L.J. 695, and Krishnaswami Aiyar, J.'s note is appended to the report of the judgment. Mr. Devadoss contends, that according to the opinion of that learned Judge, any gift by the manager in favour of a girl born in the family would be valid as against the donor's son provided it is made so as not to reduce the donor's family to want by giving away everything belonging to the family, and that the gift made in this case cannot be regarded as excessive. We do not think that the authority of Krishnaswami Aiyer, J.'s note will carry the appellants' case so far. As a matter of fact, the question what portion of the family property may be validly given away to a girl did not arise for decision in the case. It was not contended that the proportion was excessive in that case, and the only question was whether the father cotild make a gift at all of ancestral lands in favour of his daughter. Krishnaswami Aiyar, J.'s conclusion was merely that there is abundant textual authority for the view that gifts of property, moveable or immoveable and common to the father and the son, to the daughter are treated as obligatory and if they do not exceed a small portion, having regard to the provisions that the gift should not cause detriment to the family, such gifts would be valid and must be upheld. No doubt the learned Judge, referring to certain passages of the Mitakshara, does observe, These passages, which have remained untranslated, are a strong indication that, so far as the son is concerned, it is only when a father makes a gift of everything belonging to the family that a son (being himself, awarding to the archaic law, the property of the father) has a right of interdiction.' And again, The general rule as to what is common not being capable of gift does not appear to me to prohibit a gift by the father as against the son when the gift is made without detriment to the family * * * * * * The statement in the Mitakshara, Chapter I, Section 5, placita 9 and 10, that the son has the right of interdiction against the father's donation must be reconciled with the statement of the Mitakshara in the commentary on sloka 175 of Yajnavalkya already referred to in the light of the explanation suggested by the Subodhini that is probably intended to prevent dissipation of the property by the father.' Mr. Devadoss, apart from relying on the authority of Krishnaswami Aiyer, J., contends the text of Yajnavalkya referred to by the learned Judge, sloka, 175, is strong authority in favour of his client that a gift even of a considerable portion of a family property by a father is valid as against his son provided it does not seriously prejudice the son by depriving him of the means of comfortable living.
4. It must be admitted that some portions of the language need by the learned Judge support this argument. And his view does appear to be that sloka 175 of Yajnavalkya authorizes a father to dispose of ancestral property in favour of a daughter, provided he does so without detriment to the family. Mr. T.R. Ramachandra Aiyar strongly urges that the sloka does not support the view that a father can make any gift of ancestral immoveable property, but lays down the very contrary as, according to it, he can dispose of only his own separate or self-acquired property. As the appellants strongly rely on the text in support of their contention that the gift even of a large fraction of ancestral property must be upheld, we have to consider whether that sloka really supports the appellants' contention, especially as there is no decided case of this Court, so far as we are aware, laying down any rule as to the proportion of family property that the father may make a gift of to female members of the family. After the best consideration we are able to give to the true meaning of the sloka, we have been constrained to conclude with all deference to Krishnaswami Aiyar, J., that it does not support the appellants' contention at all. As the skka has not been translated in Colebrooke's Mitakshara it may be desirable to set out the necessary portion with a translation in English. (Svam Kutumbavirodhena deyam). Svam may be given without detriment to the family. Now what is the meaning of the expression 'Svam' Vijnaneshvara says, it means atmeeyam i.e., one's own. The word svam according to Amaru has two meanings, dhanam or property and (2) atmeeyam or one's own. Vijnaneshvara adopts for the context not the first meaning of 'property' but the second meaning of one's own. The word atmeeyam means svakeeyam or one's own. See Sabdakalpadruma of Radhakontdeb. His commentary on the sloka seems to make this perfectly clear because he says commenting on Kutumbavirodhena or without detriment to the family that by that expression Yajnavalkya points out one kind of what may not be given and he then seta out the other kind of what may not be given as denoted by the word syam namely, Anavahitavachitakadhisadh-arnanikshepanam panchanamapyadeyatyam, that is, what is deposited to be passed on to another, obtained as a present, a pledge, sadharana (that is common property) and a deposit, these five which are not siam should not be given. The author, therefore, clearly states that sadharana or common property should not be given. The word sadharana is stated in the Sabdakalpadruma to be synonymous with samanya and to mean according to Amara anekasambandhi eka vastu one property belonging to more than one, and the author of the work quotes a sloka from the Bayabhaga as an illustration. Vijnaneshvara in his commentary on the sloka proceeds to quote Narada, who says there are eight kinds of things which are not subjects of gift, viz., the five enumerated by the author already, and son, wife and what has been promised to another. The author then points out that the reason why son, wife and what has been promised to another cannot be given, is not that they are not svam. A difference is thus made in the reasons for five kinds of property not being givable [namely, that they are not svam] and three other kinds also that are not givable, sadharahna or common property being one of the five kinds. The Mitakshara also says, quoting Yajnavalkya, that the whole property should not be given though it is svam, because it has been said, 'One should beget sons and daughters, perform their samskaras and create a living for them.' It also quotes, in commenting on the expression without detriment to the family, a text from Manu to the effect that 'aged father and mother and an infant son should be maintained even by doing hundred acts which ought not to be done.' It seems to be perfectly clear from the above that, according to Vijnaneshvara, what is common property should not be given, but only one's own, and that it is an additional restriction on the power of giving that it should be without detriment to the family, and that the author does not mean that common properly may be given without detriment to the family. Colebrooke in his Translation of the text of Narada renders the expression sadharana' as 'joint property.' See Oolebrooke's Digest, 4th Edition, Vol, I, page 401. At page 402, it is stated that joint property' is explained in the Batnakara and Chintamani as what belongs to more than one owner. And, again, at page 405, 'joint property is wealth belonging to more than one owner. Misra says, 'the gift is invalid because a man has not full dominion over joint property, a wife or a son and the want of dominion in the other instance is deduced from the same reasoning which proves it in the cases of joint property.' Misra says, in regard to a son or wife, that the gift is void for want of full dominion.' See page 406. Apararka in his commentary on Yajnavalkya Smrithi also takes the same view of the meaning of the sloka, namely, that joint property cannot be given. He interprets svam as meaning svakeeyam which evidently means one's own, He quotes a text of Brihaspati that (samanya) which, as already pointed out, is the same as sadharana should not be given. And Apararka explains samanya as meaning having several owners. He also says that property descended from grandfather, &c;, should not be given while there are sons. Apararka also cites Narada's text already referred to. It may be noted that Apararka confines the injunction against giving away the whole during the existence of progeny' as preventing such giving only before partition of the inheritance, and says that 'when the sons have divided the inheritance, a gift of the entire property is not forbidden.' A text from Daksha is also cited in Colebrooke's Digest forbidding the gift of joint property, see page 406, Vol. 1. We must, for the reasons mentioned above, hold that sloka 175 of Yajnavalkya does not support the appellant's contention and cannot be relied on to throw any light on the question as to what proportion of the property may be given by a father to a girl of the family. We have, however, no doubt that a gift made by a father to his own daughter or the daughter of an undivided brother, provided it be of a reasonable amount, is valid as against his son and that the question is really covered by authority. We cannot accept Mr. T.R. Ramachandra Aiyar's argument that only a gift by the father, mother, or brother of the donee is valid. Property given by other relations is clearly recognized as stridhanam property though sloka 118 of Yajnavalkya expressly refers only to gifts made by the relations specified above: 'That which has been given to her by her kindred: as well as her fee or gratuity or anything bestowed after marriage.' See Mitakshara, Chapter II, Section 11, placitum 6. In a divided family the manager is in the position of parent and guardian to the daughters of all the deceased members. It is his duty to give them in marriage as much as it is to give his own daughters in marriage. Section 7 of Chapter I of the Mitakshara, providing for portions to sisters when a partition is made between brothers after the death of the father is only illustrative and does not exclude the-rights, of the daughters of the deceased co-parceners. All girls born to any of the oo-parceners stand on the same footing. The allotment of a share to the daughters in the family is regarded as obligatory by Vijnaneshvara. In Chapter I, Section 7, placita 10 and 11, he says, 'The allotment of such a share appears to be indispensably requisite since the refusal of it is pronounced to be sin.' And he cites the text of Mauui 'they, who refuse to give it, shall be degraded'--Manu, Chapter JX, Section 118. The author repeats in placitum 11 that withholding of a portion is pronounced to be a sin. In the Madhaviya, pages 41 and 42, (Burnell's Translation), a text of Katyayana is cited authorizing the gift of immoveable property by a father to his daughters besides a gift of moveables up to the amount of 2,000 pannas a year. The commentator says, 'Bat, this (that is, 2,000 pannas a year) is not a rule of limitation in the case of a payment made once for all on account of subsistence for several years; nor is there a prohibition regarding immoveable property (in that case).' Sea also Vyavahara Mayuhha, page 93 (Mandlik's Translation). A text of Brihaspati is also cited by the author of the Madhaviya to the same effect: 'Let him give adequate wealth and a share of land also if he desires.' See page 344, Part I, Hindu Law Books on Inheritance, Messrs. V. Kalyanarama Iyer & Co.'s Edition, Devala says--'To maidens should be given a nuptial portion of the father's estate'--Colebrooke's Digest, Volume I, page 185. Manu's well-known text may also be referred to--'To the unmarried daughters by the same mother let their brothers give portions out of their allotments respectively according to the class of their several mothers. Let each give one-fourth part of his own distinct share and those who refuse to give it shall be degraded.'
5. It has been pointed out in Ramasami Ayyar v. Vengidusami Ayynr 22 M.P 113 and Churaman Sahu v. Gopi Sahu 37 C.P 1 : 13 C.W.N. 994 : 10 C.L.J. 545 : 1 Ind. Cas. 945 that the interpretation accepted by the principal writers of the Mitakshara School of the text relating to portions to daughters rejects the view propounded by some authors that the text aufchorizas only the defraying of the marriage expenses of the daughters. Besides, as pointed out by Vijnaneshvara, 'what has been given out of affection to daughters should not be taken back'--see commentator on verse 173. Mitakshara, Chapter I, Section 1, verse 29, also lays down that while the sons and grandsons are minors, a person may make gifts for necessary and lawful purpose. The placitum has been explained by Krishnaswami Aiyar, J., in Devalapallia Karneswara Sastry v. Viracharlu (1910) 1 M.W.N. 649 : 8 Ind. Cas. 195 : 20 M.L.J. 855 : 9 M.L.T. 26 : 84 M.P 422, to justify gifts for lawful purposes ordained in accordance with dharma. See also Bhattachariya'a Tagore Law Lectures, Joint Hindu Family,
6. It is also important to bear in mind, as pointed out in Ramasami Ayyar v. Vengidusami Ayyar 22 M.P 113 the usage obtaining in the community which by itself would be sufficient to justify such gifts. Nothing is more common than gifts of a small portion of the family property in favour of daughters, and they are generally acquiesced in by the members of the family, though of late there has been a disposition to question them in consequence of the decisions of the Courts. No doubt a daughter CM no longer claim as of right a share of the property belonging to her father, but the moral obligation to provide for her wherever possible is fully recognized by the Hindu community and will support in law any disposition for the purpose made by the father.
7. Turning now to the decided cases on the subject, the Judicial Committee of the Privy Council held in Bachoo v. Mankorebai 31 B.m 373 : 11 C.W.N. 769 : 6 C.L.J. 1 : 9 Bom. L.R. 646 : 17 M.L.J.343 : 2 M.L.T. 295, that a gift by a father, possessing large property, of a sum of Rs. 20,000 to his daughter was valid. Their Lordships confirmed the decision of the Bombay High Court in Bachoo v. Mankorebai 29 B. 51 in which Jenkins, C.J., and Russell, J., reversing the judgment of Tyabji, J., upheld the gift. The learned Judges relied on placitam 27, Section 1, Chapter I of the Mitakshara authorizing the father to dispose of moveables at his pleasure even where they are ancestral. They also referred to a text in the Viramitrodaya, Chapter VII, Section 5, 'Gifts by the parents out of favour or affection should be guided by propriety, but not by caprice,' as well as a text in the Mayukha, Chapter IV, Section 7, placita 11 to 13, referring to gifts through affection made by a father. The plaintiff in the suit who objected to the gift was not the son of the donor but the adopted son of his brother, but the learned Judges held that the texts were applicable to such a case. In Ramasami Ayyar v. Vengidusami Ayyar 22 M.P 113 the mother of a deceased infant proprietor succeeding to his property as heir made a gift of lands to her daughter at marriage. Subramania Ayyar and Moore, JJ., upheld the gift both on the authority of the text of the Mitakshara relating to the right of girls to marriage portions and on custom. In Kudutamma v. Narasimha Charyulu 17 M.L.J. 528 Wallis and Miller, JJ., maintained a gift by a brother, the managing member of the family, though it was not made at the time of the marriage, following the judgment in Ramasami Ayyar v. Vengidusami Ayyar 22 M.P 113. Wallis, J. regards the power to give as residing in every managing member of the family with respect to a girl belonging to the family. Munro and Sankaran Nair, JJ., in the case already mentioned, Anivillah Sundararamaya v. Cherla Seethammah 2 M.W.N. 422 : 10 Ind. Cas. 56 : 9 M.L.T. 469 : 31 M.L.J. 695 supported a gift by the father made to the daughter long after the marriage; the learned Judges overruled the contention that the Hindu Law texts support only gifts to the daughter's husband as bridegroom and not to the daughter herself. They also pointed out that no distinction could be drawn in the present day between gifts of moveable and of immoveable property.
8. We are of opinion that no distinction can be drawn between a gift made to the daughter of the donor and one made by him as managing member to the daughter of any of his co-parceners. In Churaman Sahu v. Gopi Sahu 37 C.P 1 : 13 C.W.N. 994 : 10 C.L.J. 545 : 1 Ind. Cas. 945 Mookerjee and Carnduff, JJ., maintained the validity of a gift by a Hindu widow to her daughter on the occasion of her dwiragaman ceremony, that is, the occasion of the second entrance of the bride into the house of her husband from that of her father after the celebration of the marriage. The texts of Manu, Devala and Tajnavalkya already referred to are cited by the learned Judges, and the prior decisions of this Court are approved and followed. In Hanmantapa v. Jivabai 24 B.P 547 a gift of moveables by a father to his daughter-in-law was held binding as against his sons. The decision was partly based on the father's special right over moveable property but reliance is also placed on the text of the Mitakshara permitting gifts out of affection and pious and charitable gifts and on the decision in Raghunath Prasad v. Gobind Prasad 8 A.P 76 which upheld a provision made out of joint ancestral property by the father for a family idol.
9. We are, for the reasons mentioned above, of opinion that the plaintiff's father was competent to make a gift of ancestral property to the first defendant, his brother's daughter.
10. The question whether the gift should be set aside on the ground of its being excessive, presents a more practical difficulty. The text to Yajnavalkya in Chapter I, Section 7, placitum 5, of the Mitakshara as interpreted by Vijnaneshvara defines the share of a daughter as one-fourth of what she would be entitled to if she were a son. The Smrithi Chandrika in Chapter IV cites a text of Katyayana which says, 'For the unmarried daughters a quarter is allowed and three parts for the sons but where the property is small, the portion is considered to be equal.' The author of the Smrithi Chandrika says (placitum 25), 'The meaning of the fourth or last portion of the above text (para. 26) is that where the estate is small, the share of each sister is considered by Vishnu and others as being equal to that of a son.' Reference has already been made to the observation of Vijnaneshvara in his commentary on slokas 175 and 176 of Yajnavalkya that it is the duty of a father to provide for his daughters as well as for his sons. The text of Yajnavalkya defining the share of the daughters is no longer legally in force though it would afford a guide in determining whether any particular gift which is impeached is reasonable or not. As observed in the Viramitrodaya, in the text cited in Bachoo v. Mankorebai 29 B.P 51 the gift should be guided by propriety not by caprice. It would be hardly right to lay down the hard and fast rule that nothing more than a fourth share of what the daughter would get if she were a son can be given in any case as apparently attempted to be done in Damoodur Missar v. Senabutty Misrain 8 C.P 537. The social condition existing at the time of the gift would be a proper matter to be taken into account; and where the property is very small and the expenses of marriage heavy in the community of the parties, it may not be improper to allot a share equal to that of the son for the expenses of marriage and for dowry together. At the same time, where the property is very large, worth, say, several lakhs of rupees, the Courts may not be prepared to uphold a gift of the share permissible according to the text of Yajnavalkya. The right of the daughter not being confined as pointed out in Ramasami Ayyar v. Vengidusami Ayyar 22 M.P 113; Churaman Sahu v. Gopi Sahu 37 C.P 1 : 13 C.W.N. 994 : 10 C.L.J. 545 : 1 Ind. Cas. 945 to have the expenses of her marriage defrayed, it might be reasonable to allot something more than such expenses even where they are comparatively heavy. At the same time, it would not be fair to the sons that the father, after spending a large amount on the marriage of his daughter, should make a gift of any considerable property to her. It must also be borne in mind that it should be unfair to the daughter that she would be told that her claim has been absorbed by excessive expenditure on marriage contracted by the members of the family not for her benefit bat to enable the co-parceners to maintain their social prestige. In Churaman Sahu v. Gopi Sahu 37 C.P 1 : 13 C.W.N. 994 : 10 C.L.J. 545 : 1 Ind. Cas. 945 the Calcutta High Court upheld the gift of one-third of the family property on the occasion of the dwirgaman ceremony. The learned Judges observe that the question must be determined with regard to the circumstances of each particular disposition. They refer to a case reported in 2 Morley's Digest, 198, and cite the observation of Lord Gifford in that case that it was absolutely impossible to define the extent and limit of her power of disposing it, because it must depend upon the circumstances of the disposition whenever such disposition shall be made and must be consistent with the law regulating such dispositions. In Anivillah Sundaramaya v. Cherla Seethamma 2 M.W.N. 422 : 10 Ind. Cas. 56 : 9 M.L.T. 469 : 31 M.L.J. 695 another principle is indicated. The learned Judges say, 'Here, if the father had enforced a partition he would have admittedly got not less than one hundred acres and it is impossible to -t say that a gift of eight acres is unreasonable.' We are unwilling to adopt this text based upon the father's right to dispose of what he gets for his own share on partition for deciding the question what disposition he might make while remaining a member of an undivided family. We think it must be left to the Court in each case to decide whether the gift is reasonable in all the circumstances under which it is made, In this case, the donor at the time of the gift had only one son, and he was an infant. The share given to the 1st defendant was one-sixth of the whole. It was apparently considered by the donor that the property still left to the family would have time to increase before his son would have to support a family. He died undivided from his son, and apparently never wished to be divided from him. One-eighth share of the property would be a suitable portion for the 1st defendant under such circumstances according to Yajnavalkya's text. What was given was one-sixth, or one-twenty-fourth more, worth Rs. 100. We are not prepared to say that an excessive portion of the property was given.
11. The result is that we must reverse the decrees of the Courts below and dismiss the suit, but. in the circumstances, the parties will bear their own costs throughout.