1. In Ramasami Ayyar v. Vengidusami Ayyar 22 M.p 113 a sonless widow was held entitled to make a gift to her daughter's husband of a reasonable proportion of the estate (which the widow had inherited as qualified owner) on the occasion of the daughter's marriage, because such a gift of land ' is believed to enhance the merit of the primary act viz., the giving of a virgin in marriage,' and 'a qualified owner' (like a Hindu widow who has inherited her husband's or son's estate) has the power to do all acts proper and incidental to the marriage of a female ' of the family to which her husband belonged. In Anavilla Sundararamayya v. Cherla Sitamma 10 Ind. Gas. 56 : 21 M.L.T. 695 : 9 M.L.T. 469 (1911) 1 M.W.K. 422 : 35 M.P 628 a Hindu father was held entitled to make a gift of a fair proportion of his lands to his daughter even after her marriage and the gift was held binding on the son of the donor. In Pugalia Vettor Animal v. Vettor Goundan 13 Ind. Cas. 475 : 22 M.L.J. 321 : (1912) M.W.N. 89 : 11 M.L.T. 103. a gift by a Hindu male owner to his deceased co-parcener's daughter of a reasonable portion of the family estate was held binding on the undivided son of the donor.
2. In the present case, the gifts were made by a Hindu widow (a qualified owner) to the daughter of her husband's undivided predeceased brother and to the son of another daughter of the said deceased brother. The gift to the niece was after the niece's marriage. (The District Judge's assumption that the brother of the donor's husband was a divided member is clearly erroneous in the face of the plaintiff's own admission in her evidence, there being, as we take it, nothing on the record to support the finding of division).
3. The only question, therefore, in this appeal is whether the principle of the cases above quoted is to be still further extended by allowing a qualified owner like a Hindu widow to exercise the privilege of making gifts of reasonable fractions of her husband's estate to her husband's married niece and to the son of another niece long after the niece's marriages. So far as the gift to the husband's niece's son is concerned, it clearly cannot be upheld as he never was a member of the widow's husband's family, though his mother was a member till her marriage.
4. The question of the validity of the gift to the niece is not so easy to decide. But there are three difficulties in the way of upholding even that gift:
5. (a) The donor was a Hindu widow who (as we are constrained by precedents to hold) was only a qualified owner.
6. (b) The gift was made in pursuance of an alleged authority given by the donor's husband and that alleged authority has been found to be false, and it is very doubtful whether it is permissible to the donee to fall back on the alleged power of the donor herself to make such a gift even in the absence of a direction by her husband.
7. (c) The gift was made long after the marriage, and not on or about the time of the marriage or the consummation ceremony.
8. There is no case in which it has been held that a qualified owner like a Hindu widow has the right to make such a gift even to her own daughter after the consummation of the marriage of such daughter, much less to a lady born in her husband's family after the consummation of the lady's marriage.
9. We, therefore, agree with the lower Appellate Court that the gifts in question in this case are invalid.
10. But we think that the District Munsif ought to have raised issues on the questions whether the 1st defendant has made improvements on the property gifted to his father and what the value of those improvements is (having regard to the 8th paragraph of the 1st defendant's written statement). If the 1st defendant has made such improvements (as the District Munsif finds in the 11th paragraph of his judgment), we have no doubt that he made the improvements believing in good faith that he was absolutely entitled to the site on which he built the house which forms the improvement.
11. The learned District Judge's finding on the question of improvements is so indefinite that we are unable to accept it and we request him to give distinct findings on the two issues above mentioned on the evidence on record and on any further evidence which the parties may adduce. The findings should be submitted within two months from receipt of records and ten days will be allowed for filing' objections.
12. In compliance with the above order the District Judge of Kistna at Masufipatam submitted the following.
14. 5. Issue (1). I find that the 1st defendant built a tiled house on the property gifted to his father and that it replaced two old wooden buildings which though destroyed by fire, would not have been likely to last long and were only worth Rs. 100.
15. 6. Issue (2). The value of the house at the persent day may, I think, be taken as Rs. 500.
16. This second appeal coming on for final hearing after the return of the findings of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following.
17. Judgment.--We accept the finding. We shall modify the decree in the plaintiff's favour by adding that the plaintiff shall take possession of the house and the materials on the house standing on the plaint house site, only on depositing its value (Rs. 500) into Court to be paid to the 1st defendant and his assigns and representatives. If the plaintiff has taken possession of the house and its materials, she should pay Rs. 500 to the 1st defendant and his assigns with interest at 6 per cent, from the date of her taking possession. The parties will pay and receive proportionate costs in all Courts.