G. Ramanujam, J.
1. The first defendant is the appellant. She unsuccessfully resisted the suit filed by the first respondent herein as plaintiff for possession of the suit properties together with past and future mesne profits. The plaintiff's case was that his father, the second defendant, effected a settlement deed Exhibit A-2 dated 21st December, 1959, in respect of the suit properties in favour of the first defendant nominally in View of the land ceiling legislation, that the said settlement deed was not intended to be acted upon, that as he was born on 2nd May, 1960, shortly after the settlement deed, he is entitled to avoid the said settlement deed executed by the father, that even otherwise the second defendant had no power to execute a settlement deed in favour of the first defendant in respect of the coparcenary properties, and that the first defendant cannot claim any title on the basis of the said settlement deed. It was also his case that the alienation made by the first defendant of some properties in favour of the third defendant cannot also be Valid as the first defendant had herself no title to the suit properties, that the first defendant, notwithstanding the fact that she had no legal title to the suit properties, chose to take forcible possession of the properties in or about 1963 and that, therefore, he was constrained to file the present suit for possession.
2. The appellant, first defendant, had contended inter alia that the settlement deed Exhibit A-2 came to be executed by the second defendant of his own free will and accord, that the settlement deed was real and in fact acted upon, that she took possession of the properties immediately after the settlement deed, that the plaintiff was not born on 2nd May, 1960 and that the plaintiff cannot challenge the settlement deed on any ground whatever. The first defendant also contended that she had effected improvements to the suit properties to the extent of Rs. 15,000 to the knowledge of the plaintiff.
3. The second defendant filed a written statement supporting the case of his son, the plaintiff.
4. The third defendant contended that he is an unnecessary party to the suit as he was not interested in any of the suit properties. In view of this stand taken by him he was struck off from the array of parties.
5. On these pleadings the trial Court posed the following three substantial issues for consideration : (1) whether the settlement deed Exhibit A-2 executed by the second defendant in favour of the first defendant is a nominal document not Intended to be given effect to; (2) whether the plaintiff had been conceived on the date of the settlement deed executed by his father and if so whether the settlement deed is valid and binding on him; and (3) whether the first defendant had improved the suit properties as contended by her.
6. The trial Court held that the settlement deed came to be executed nominally in favour of the first defendant for some ulterior purpose, that it was not intended to be and has not in fact been acted upon and that the plaintiff having been conceived even on the date of the settlement deed, the settlement deed by his father in favour of the first defendant covering coparcenary property cannot be Valid in law. On the question of improvements the trial Court held that the first defendant had not adduced reliable and decisive material to establish her case that she had in fact effected improvements to the suit properties. The trial Court, therefore, decreed the suit for possession with past and future mesne profits.
7. On appeal, the lower appellate Court also substantially agreed with the trial Court on all the issues and confirmed the decision of the trial Court. In this second appeal the appellant seeks to canvass the correctness of the decision of the Courts below on all the points.
8. Before dealing with the factual and legal contentions put forward on behalf of the appellant, it is necessary to set out a few facts for the purpose of appreciating those contentions. The first defendant is the mother of the second defendant, whose son is the plaintiff. There was a partition between the second defendant, his father Sabapathy and grandfather Kalyanasundaram under a partition deed Exhibit A-1 dated 21st April, 1955. The properties allotted to the second defendant were set out in the C schedule therein, and those properties consisted of 21 acres of wet land, 41 acres of dry land, 2 houses and a half share in another house in Tanjore, three shop buildings in Tanjore and a half share in a Rice Mill. At the time of partition the second defendant was only 21 years old. In or about June, 1959 the second defendant got married. The settlement deed Exhibit A-2, dated 21st December, 1959, has been executed by the second defendent whereunder all the 41 acres of dry lands allotted to him at the family partition have been gifted to the settlee, his mother. Though there was some controversy as to the date of birth of the plaintiff and as to whether he had been conceived on the date of the settlement deed, in view of the findings of fact given by the Courts below that the plaintiff was born on 2nd May, 1960 it has to be taken that the plaintiff has been conceived long before the date of the settlement deed. Sabapathy, the husband of the first defendant and the father of the second defendant died on 5th February, 1962. It is not in dispute that till Sabapathy's death the plaintiff, his mother and defendants 1 and 2 all lived together and there were no disputes between them. It is only after the death of Sabapathy disputes arose between the parties when the first defendant asserted her title to the suit properties on the basis of the settlement deed Exhibit A-2. Exhibit A-2 recites that it came to be executed by the second defendant in favour of the first defendant out of love and affection. On the date of the settlement deed the first defendant was living with her husband, Sabapathy who had been allotted a similar share as that given to the second defendant tfnder the partition deed Exhibit A-1 and she was not therefore in need of any help from her son the second defendant. The second defendant therefore had no legal or moral obligation to make a provision for the first defendant either by way of maintenance or otherwise. It is in these circumstances the question as to whether the settlement deed Exhibit A-2 was Valid and acted upon has to be considered.
9. As it is the first defendant who has taken a gift of the suit properties from a coparcener and seeks to set up title against the plaintiff, the non-alienating co-parcener, the onus is on her to prove that the gift is true Valid and binding on him. As already stated, the settlement deed merely indicates that it has been executed out of love and affection and no purpose has been mentioned in the document. The plaintiff had alleged that the second defendant executed the settlement deed only with a view to reduce his holding in view of the impending land ceiling legislation, that, therefore, the settlement deed was not really intended to benefit the first defendant and that it is only nominal and has not beer acted upon. The Courts below have considered the various circumstances for taking the view that the settlement deed had not been acted upon and that it was intended for some ulterior purpose. The fact that the second defendant with his wife was living with his father and mother till his father's death, and the first defendant's assertion of her title to the suit properties based on. the settlement deed was only after the death of her husband, has been construed by the Courts below as indicating that the first defendant did not accept the gift and take possession of the properties on the date of the settlement deed. They have also referred to the fact that all the kist receipts and other evidence produced by the first defendant to establish her possession was only after 1963, subsequent to the death of her husband, Sabapathy and that she is not shown to have taken possession immediately on execution of Exhibit A-2. The first defendant's attempt to sustain the settlement deed on the ground that the same came to be executed to discharge a liability of Rs. 10,000 due by the second defendant in favour of his father or her alternate case that it should be treated as a provision for the marriage expenses of the second defendant's two unmarried sisters has failed in both the Courts below in view of the fact that no such specific defence had been taken up either in the reply notice Exhibit A-4 or in the written statement filed by her. The question whether a particular transaction is real and has been acted upon is one of fact and both the Courts below having specifically found on a consideration of the evidence in the case that the settlement deed Exhibit A-2 has been executed nominally for some oblique purpose and that it was not intended to be acted, upon, it is not possible for this Court sitting in second appeal to reappraise the evidence with reference to that question. I have to, therefore, accept the finding of fact arrived at by the Courts below that the settlement deed was nominal and has not been acted upon. Even otherwise, I am inclined to agree with the finding of fact as it is supported by the evidence on record which has already been touched upon by me briefly. The first defendant has been found to have asserted her title and taken possession only in the year 1963, after the death of her husband Sabapathy. There is no acceptable material to show that she took possession of the properties settled on her immediately on the execution of Exhibit A-2. The second defendant when he executed the settlement deed was only aged 25 and he cannot be presumed to have given away such large extent of properties in favour of his mother who was not in needy circumstances. According to her own statement, she was well maintained by her husband, Sabapathy who had large income from his lands and buildings till his death. The findings of the Courts below that the settlement deed is nominal and has not been acted upon has therefore to be accepted. Though this finding is sufficient for the disposal of the second appeal, as the Counsel on either side have argued at length the legal question relating to this validity of the gift made by the 2nd defendant in favour of his mother of coparcenary property, I propose to deal with the legal question as well.
10. At the time when the second defendant executed the settlement deed in favour of the first defendant, the plaintiff has been conceived and was in the womb of his mother. In view of the existence of the plaintiff as a coparcener. The power of the second defendant who is the manager of the joint family is limited and his alienation of coparcenary property would be voidable at the instance of the plaintiff. The Supreme Court in Guramma Bhratar v. Mallappa : 4SCR497 , treated the following principles as well established:
A coparcener, whether he is natural born or adopted into the family, acquires an interest by birth or adoption, as the case may be, in the ancestral property of the family. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenary has an absolute power to alienate the family property, as at the time of alienation there is no other member who has joint interest in the family. If another member was in existence or in the womb of his mother at the time of the alienation, the power of the manager was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member or the member who was in the womb but was subsequently born, as the case may be, unless it was made for purposes binding on the members of the family or the existing member consented to it or the subsequently born member ratified it after he attained majority. If another member was conceived in the family or inducted therein by adoption before such consent or ratification, his right to avoid the alienation will not be affected.
In the same decision, their Lordships of the Supreme Court considered the various Hindu Law texts as well as decided cases relating to the power of the managing member of a joint family to make a gift of the coparcenary property so as to bind the other coparceners and summarise the legal position thus:
The Hindu law texts conferred aright 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 crystallized 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 gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a normal obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by Courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances.
In that case there were gifts made by the managing member in favour of his three wives, a daughter and a stranger, and the gift in favour of the daughter alone was upheld as being within the power of the managing member. The gifts in favour of the wives and the stranger were held to be invalid in law. Of course two of the gifts made in favour of a wife were upheld on the ground that they came to be executed at a time when he was the sole surviving coparcener. The gift in favour of the daughter was upheld on the ground that the father had a moral and normal obligation to perform the marriage of his daughter and to offer gifts to her at the time of the marriage or sometime thereafter and that the gift was within reasonable limits having regard to the extent of the coparcenary property.
11. In an earlier decision of the Supreme Court in Kamala Devi v. Rachulal Gupta : 1SCR452 , the Supreme Court had to consider the father's duty towards his daughter and pointed out that it. is the imperative religious duty and a moral obligation of a father, mother or other guardian to give a girl in marriage to a suitable husband and that it is a duty which must be fulfilled to prevent degradation, and that direct spiritual benefit is conferred upon the father by such a marriage. In that case the mother who was in charge of the estate of her husband gave certain properties to her daughter two years after her marriage and the properties so gifted were found to be a reasonable portion of the estate. The Supreme Court upheld that gift on the ground that a Hindu widow in possession of the estate of her deceased husband can make an alienation of a reasonable portion of the estate for religious acts which are not strictly essential or obligatory but are still pious observances which conduce to the bliss of the deceased husband's soul. In cases of essential or obligatory acts, it was held that 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 the estate and that if a promise is made of such a gift by a father at the time of the marriage it is obligatory on his part to fulfil the promise afterwards and it is not essential to make a gift at the time of the marriage itself. On this question even earlier the Privy Council has observed in Ramalinga Annayi v. Narayana Annayi (1922) 49 I.A. 168 : I.L.R. 45 Mad. 489 : M.L.J. 428 A.I.R. 1922 P.C. 201, that:
The father has undoubtedly the power under the Hindu law of making, Within reasonable limits, gifts of movable property to a daughter. In one case the Board upheld the gift of a small share of immovable property on the ground that it was not shown to be unreasonable.
In Ammathayee v. Kumaresan : 1SCR353 , there was a gift by the husband of certain ancestral properties in favour of his wife said to have been made in fulfilment of his father's wishes. The Supreme Court held that such a gift cannot be considered as one made for pious purposes. In that case the Supreme Court considered the ambit of the words 'pious purposes' and expressed that so far as movable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed that in the case of movable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for 'pious purposes'. Though what is generally understood by 'pious purposes' is gift for charitable and religious purposes the Court have extended the meaning of 'pious purposes' to cover cases where a Hindu father makes a gift to his daughter in fulfilment of an ante-nuptial promise made on the occasion of the settlement of the terms of her marriage and such gifts can also be made by the mother in case the father is dead. Their Lordships of the Supreme Court in that case saw no reason to extend the scope of the words 'pious purposes' beyond that has already been done in their decisions in Kamala Devi v. Bachulal Gupta : 1SCR452 , and Guramma v. Mallappa : 4SCR497 . In that case it was contended that carrying out the wishes of the father by the son is a pious purpose and as such the gift made to the wife in pursuance of a wish expressed by the donor's father should be upheld. But the Court negatived the plea and held that such a thing cannot be brought in within the ambit of 'pious purposes' as generally understood in the various decisions. In D. Nagaratnamba v. Kunuku Ramayya : 1SCR43 , there was a gift of certain coparcenary property in favour of the donor's concubine and the gift was sought to be supported on the ground that it came to be executed as a consideration for her past services. The Court held that though the gift was motivated by a desire to compensate the concubine for her past services, it cannot be held to be legally valid.
12. The decisions of the Supreme Court referred to above clearly indicate the limits of the power of the managing member to make dispositions by way of gifts. They have recognised as valid only those gifts which have been made by such managing member in favour of daughters, either at the time of the marriage or thereafter, in fulfilment of an earlier promise and they are not prepared to recognise any power in the managing member to make gifts of ancestral properties in favour of any other person or for any other purpose.
13. In Srinivasa Rao v. Seshacharlu : AIR1942Mad106 , Venkataramana Rao, J., upheld an alienation of a reasonable portion of the property by the daughter of a propositus to defray the marriage expenses of her daughter's daughter whose parents were indigent on the ground that the purpose is a pious and meritorious one according to Hindu system and that the expenses incurred therefor must be deemed to be expenses incurred for charitable or religious purposes, following the rule laid down by the Privy Council in the Collector of Masulipatnam v. Cavaly Vencata Narainapah (1859) 8 M.I.A. 529, that:
for religious or charitable purposes or those which are supposed to-conduce to the spiritual welfare of heir husband, she (the widow) has a-larger power of disposition than that which she possesses for purely wordly purposes.
In that case the question was in relation, to the power of a Hindu widow to dispose of her husband's property for meeting the expenses of the marriage of her daughter's daughter so as to bind the ultimate reversioners and the ratio of that case cannot be said to apply to the facts of the case on hand which relates to the power of the managing member to make a gift of the coparcenary property. The learned Counsel, however, relies on the fact that the performance of a marriage of a daughter's daughter has been treated as a pious and meritorious-act and contends that the settlement deed Exhibit A-3 executed by the second defendant in favour of his mother should be treated as a pious and meritorious act so as to bind the plaintiff who is a non-alienating coparcener. I cannot accept this contention, for the settlement deed in question, on the facts and circumstances of this case, cannot be treated! either as a pious act or a meritorious act. In the decisions referred to above, the Supreme Court has clearly stated that the words 'pious purposes' cannot be extended any further and therefore the appellant's attempt to bring a maritorious act within its ambit cannot be encouraged. In this case the mother, first defendant, as already stated, has been living with her husband who was in affluent circumstances, and she was not in need of any help or any provision from the second defendant. One of the reasons given by the first defendant as the motive for executing the settlement deed is that there was no provision made for her in the partition deed Exhibit A-1. First of all it is not normal or customary to make, a separate provision for the wife of a coparcener in a joint family partition, Even otherwise, if the first defendant, is aggrieved against the absence of a separate provision for her in the partition deed, she would have normally approached her husband, Sabapathy, for a suitable provision being made. The second defendant had no moral or legal obligation to make any provision for her so long as Sabapathy was alive. The first defendant has clearly admitted in her evidence that she is enjoyment of the income from the properties allotted to her husband even after his death. In these circumstances, the settlement deed executed by the second defendant cannot be said to be either pious or meritorious. It can-not be said to be a pious or meritorious act merely because the settlee is the mother of the settlor. To make it pious or meritorious the settlee must be shown to be in indigent circumstances. But on the contrary the mother, first defendant is shown to have been as affluent as the second defendant himself. I therefore feel that the learned Counsel cannot seek any support from the decision in Srinivasa Rao v. Seshacharlu : AIR1942Mad106 .
14. In Palwanna Nadar v. Annamalai Ammal (1957) 1 M.L.J. 338, a Division Bench of this Court while dealing with the limits of the powers of a Hindu father to make a gift of joint immovable property observed:
Though a father in an undivided Hindu Mitakshara family has full powers of disposition over his self-acquired properties, he has no such power in respect of joint family properties; but he can make within reasonable limits, by custom in the Madras Presidency, gifts, of immovable property of the joint family to his daughter on the occasion of her marriage and when she is departing from her parental home. This customary obligation may be fulfilled later, if not fulfilled at the time of marriage, without point of time, not only by the father, but also by his widow or son taking over the estate from the father. These limits cannot be exceeded and the father has no power to make a gift of immovable property to his daughter by purporting to make a settlement for the fulfilment of an obligation which has not arisen and which obligation might not at all arise to be fulfilled.
In the course of the decision the learned Judges have also stated:
We need not point out that a document purporting to settle even a portion of joint family properties on a second wife byway of gift as marriage portion is not valid. The special powers of a father do not extend beyond purposes warranted by the special texts. It is settled law that a father has special powers over the moveable properties for indispensable acts of duty and over immovable properties for pious purposes. Since indispensable acts of duty mean and include pious purposes, a father has no larger power over moveable properties than over immovable properties except in the matter of gifts through affection, in spite of the difference in the terminology used by the texts. A gift to a daughter or any other relation is not for pious purposes.
The said decision has been followed by Veeraswami, J., (as he then was), in Sivagnana Thevar v. U. Thevar : AIR1961Mad356 , wherein, a gift by the manager of even a reasonable portion of immovable property belonging to the joint family to a second wife as marriage gift or in anticipation of marriage has been held to be invalid.
15. From the above decisions, it is seen1 that it is only gifts made by the managing member in favour of the daughters as a marriage provision either at the time of the marriage or later in pursuance of an earlier promise have been held to be valid if the properties gifted are found to be reasonable having regard to the extent of the properties of the joint family. But I have not been referred to any case in which a gift by the managing member of the family in favour of any other person has been held to be Valid on the ground of religious, pious or meritorious purpose. I therefore hold that the settlement deed in favour of the first defendant is invalid, in law and that it cannot be upheld, even as regards the share of the second, defendant.
16. On the question of improvements both the Courts below held the first defendant has not adduced any reliable evidence to substantiate her claim for improvements. Though the first defendant asserted that she had accounts for the expenses on improvements incurred by her and had produced the same in Court, the accounts were not in fact produced before the Court. She has produced merely certain receipts for payment of various sums for the hiring of tractors and for planting survey and boundary stones. But the first defendant herself has admitted that the receipts have been procured only after the notice Exhibit A-3 has been issued by the plaintiff demanding possession of the suit properties on the ground that the settlement deed Exhibit A-2 is either nominal or invalid. Even if the receipts are admitted to be true, they do not indicate that the hiring of tractors was in relation to the suit lands. The Courts below have, therefore, rightly held that the documents relied on by the first defendant are not sufficient to establish her claim for the improvements.
17. The result is the decrees and judgments of the Courts below are upheld and the second appeal is dismissed with costs. No leave.