Case Summary
| Citation | Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa(1964) 4 SCR 497, AIR 1964 SC 510 |
| Keywords | alienation of property, karta, coparcener |
| Facts | It was said that ‘A’s youngest wife was pregnant at the time of his death and that she gave birth to a boy kid on October 4, 1944. The senior-most widow adopted her sister’s son on January 30, 1944.‘A’ completed two deeds of maintenance in favor of his two wives (defendants 1 and 2), as well as gift deeds in favor of a widowed daughter, a son of an illegitimate son, and a relative, just days before his death.He also completed two documents, one a deed of maintenance and the other a deed of gift, in favor of Nagamma, the senior-most widow (the plaintiff). The two widows (Gramma and Venkamma) were named as defendants 1 and 2 in this claim, together with the putative adoptive son, defendant 3, the supposed posthumous son, defendant 4, and the alienees, defendants 5 to 8. |
| Issues | Does the presence of a son in the embryo render the adoption of a son in a joint Hindu family invalid? Is the adopted son entitled to the same portion of the Hindu family property as the natural-born son? Whether a present of this sort made out of love and compassion to a relative qualifies as a gift for “pious intentions” as defined by Hindu law? Whether the Karta’s gift of immovable property belonging to the joint family to his daughters after marriage was lawful, and does the Karta have the ability to make such a gift, on the facts and in the circumstances of the case? |
| Contentions | Plaintiff’s contention The petitioner’s attorney argued that defendant 3’s adoption was unlawful since defendant 4 was conceived at the time of the adoption. This is something that Dattaka Chandrika and Dattaka Mimansa think about. Defendant’s contention The existence of a boy in the womb, according to the Respondent, does not invalidate the first widow’s adoption. There are no writings in Hindu law that stipulate that the wife, son’s widow, or grandson’s widow must not be pregnant in order to exercise a person’s authority to adopt. |
| Law Points | ➢ Before 1964, the view was that the father cannot give any portion of immovable property in gift. In 1964, the Supreme Court said that the father can make a gift out of love and affection to a daughter of a small portion of immovable property, either at the time of marriage or subsequently, as gift to daughter is a modern version of a share in the joint family property to which she was entitled in the ancient law. ➢ It is an established rule of Hindu law that the karta of the joint family, whether father or someone else, has the power to make a gift of ancestral immovable as well as movable property within the reasonable limits in discharge of his religious duties or for pious purposes. Such a gift can be made inter vivos, but not by will. In the hands of the donee, the property will be his separate property. ➢ A gift of immovable property to the daughter by the father after her marriage was held valid. ➢ 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. ➢ 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 the 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. ➢ Any coparcener in existence at the time of the alienation, or was conceived and subsequently born alive, can set it aside with the help of the court. |
| Judgement | It was maintained that in Western India, the authority of Vyavahara Mayukha is obeyed and that the adopted son’s entitlement to a fifth portion of the father’s inheritance was limited to a fifth share in contrast to a legal son born after the adoption. |
| Ratio Decidendi & Case Authority |
Full Case Details
K. SUBBA RAO, J. – These two appeals by certificate arise out of Special Civil Suit No. 47 of
1946 filed by Nagamma, wife of Chanbasappa, for partition and possession of one-sixth share in
the plaint scheduled properties with mesne profits. Chanbasappa died possessed of a large extent
of immovable property on January 8, 1944. He left behind him three wives, Nagamma, Guramma
and Venkamma and two widowed daughters, Sivalingamma and Neelamma, children of his predeceased wife. It is alleged that at the time of his death Venkamma was pregnant and that she
gave birth to a male child on October 4, 1944. It is also alleged that on January 30, 1944,
Nagamma, the senior most widow, took her sister’s son, Malappa, in adoption. A few days before
his death, Chanbasappa executed gift and maintenance deeds in favour of his wives, widowed
daughter, a son of an illegitimate son, and a relative. Long before his death, he also executed two
deeds – one a deed of maintenance and another a gift deed of some property in favour of
Nagamma. We shall deal with these alienations in detail in appropriate places.
12. The next question is whether the two gifts were binding on the family. We shall now take
the two gift deeds Ex. Section 370 and 371 executed by Chanbasappa the former in favour of the
7th defendant and the latter in favour of the 8th defendant. The High Court, agreeing with the
learned Civil Judge, set aside the gifts on the ground that the donor had no power to make a gift
of the family property. Learned counsel for the legal representatives of the said defendants seeks
to sustain the validity of the said two gifts. We shall consider the validity of the two gift deeds
separately.
13. Ex. 370 dated January 4, 1944, is a gift deed executed by Chanbasappa in favour of
Channappa, the 7th defendant, in respect of immovable property valued atRs 1500. The donee
was described as the donor’s relative. The gift was made in token of love for the services
rendered by the donee to the donor during the latter’s lifetime. The gift was made, as it was
narrated in the document, out of love and affection for the donee. It is contended that the said gift
was for pious purposes and, therefore, valid in law. Can it be said that a gift of this nature to a
relative out of love and affection is a gift for “pious purposes” within the meaning of that
expression in Hindu law? In Mitakshara [Chapter l, Section 1, v. 28], it is stated:
“Even a single individual may conclude a donation, mortgage, or sale of immovable
property, during a season of distress, for the sake of the family and especially for pious
purposes.”
In support of his contention that pious purposes include a charitable purpose, learned counsel
relies upon certain passages in Mukherjea’sHindu Law of Religious and Charitable Trust 2nd
Edn. The learned author says at p. 12:
“In the Hindu system there is no line of demarcation between religion and charity.
On the other hand charity is regarded as part of religion…. All the Hindu sages concur in
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holding that charitable gifts are pious acts par excellence, which bring appropriate
regards to the donor.”
The learned author proceeds to state, at p. 58:
“Religious and charitable purposes have nowhere been defined by Hindu lawyers. It
was said by Sir Subramanya Ayer, J. in ParthaSarathi Pillai v.Tiruvengade[(1907) ILR
30 Mad 340] that the expression ‘dharma’ when applied to gifts means and includes,
according to Hindu text writers, what are known as Istha and Purtta works. As I have
said already in the first lecture, no exhaustive list of such works has been drawn up by
the Hindu lawgivers, and they include all acts of piety and benevolence whether
sanctioned by Vedas or by the popular religion, the nature of the acts differing at
different periods of Hindu religious history.”
The learned author defines the words Istha and Purtta briefly thus, atp. 10:
“By Istha is meant Vedic sacrifices, and rites and gifts in connection with the same;
Purttaon the other hand means and signifies other pious and charitable acts which are
unconnected with any Srouta or Vedic sacrifice.”
It may, therefore, be conceded that the expression “pious purposes” is wide enough, under certain
circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere
been precisely drawn. But what we are concerned with in this case is the power of a manager to
make a gift to an outsider of a joint family property. The scope of the limitations on that power
has been fairly well settled by the decisions interpreting the relevant texts of Hindu law. The
decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a
small extent of property for pious purposes. But no authority went so far, and none has been
placed before us, to sustain such a gift to a stranger however much the donor was beholden to him
on the ground that it was made out of charity. It must be remembered that the manager has no
absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so
only within strict limits. We cannot extend the scope of the power on the basis of the wide
interpretation give to the words “pious purposes” in Hindu law in a different context. In the
circumstances, we hold that a gift to a stranger of a joint family property by the manager of the
family is void.
14. The second document is. Ex. 371, dated July 4, 1941. Under that document, Chanbasappa
created a life-interest in a property of the value of about Rs 5000 in favour of his widowed
daughter, the 8th defendant. In the document it is recited thus:
“You are my own daughter and your husband is dead. After his death you have been
living in my house only. For your well being and maintenance during your life time I
have already given some property to you. As the income from the said property is not
sufficient for your maintenance, you have asked me to give some more property for your
maintenance. I have therefore gladly agreed (to the same) and passed a deed of
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maintenance in your favour regarding the below mentioned property and delivered it to
your possession to-day only.”
Under the said deed the daughter should enjoy the property during her lifetime and thereafter
it sould go to the 5th defendant. The gift-over would inevitably be invalid. But the question is
whether the provision for the daughter’s maintenance during her lifetime would also be invalid.
The correctness of the recitals are not questioned before us. It is in evidence that the family
possesses a large extent of property, worth lakhs. The short question is whether the father could
have validly conferred a life-interest in a small bit of property on his widowed daughter in
indigent circumstances for her maintenance. It is said that the Hindu law does not permit such a
gift. In JinnappaMahadevappa v. Chimmava [(1935) ILR 59] Bom 459, 465, the Bombay High
Court accepted that legal position. Rangnekar, J. held that under the Mitakshara school of Hindu
law, a father has no right to make a gift even of a small portion of joint family immovable
property in favour of his daughter, although it is made on the ground that she looked after him in
his old age. The learned Judge distinguished all the cases cited before him on the ground that they
were based upon long standing custom; and ended his judgment with the following observations:
“Undoubtedly, the gift is a small portion of the whole of the property; but, if one
were to ignore the elementary principles of Hindu law out of one’s sympathy with gifts
of this nature, it would be difficult to say where the line could be drawn, and it might
give rise to difficulties which no attempt could overcome.”
We agree with the learned Judge that sympathy is out of place in laying down the law. If the
Hindu law texts clearly and expressly prohibit the making of such a gift of the family property by
the father to the widowed daughter in indigent circumstances, it is no doubt the duty of the Court
to accept the law, leaving it to the legislature to change the law. We shall, therefore, consider the
relevant Hindu law texts bearing on the subject.
15. At the outset it would be convenient to clear the ground. Verses 27, 28 and 29 in Chapter
I, Mitakshara, describe the limitations placed on a father in making gifts of ancestral estate. They
do not expressly deal with the right of a father to make provision for his daughter by giving her
some family property at the time of her marriage or subsequently. The right is defined separately
by Hindu law texts and evolved by long catena of decisions, based on the said texts. The relevant
texts have been collected and extracted in Vettorammalv.Poochammal[(1912) 22 MLJ 321].
Section 7 of Chapter I, Mitakshara, deals with provision for widows, unmarried daughters etc.
Placitum 10 and 11 provide for portions to sisters when a partition is made between the brothers
after the death of the father. The allotment of a share to daughters in the family is regarded as
obligatory by Vignaneswara. In Chapter I Section 7, pp. 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 a sin.”
He relies on the text of Manu to the effect that they who refuse, to give it shall be degraded:
Manu Chapter IX, Section 118. In Placitum11, [Chapter I], withholding of such a portion is
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pronounced to be a sin. In Madhaviya, [pp. 41 and 42], a text of Katyayana is cited authorizing
the gift of immovable property by a father to his daughters besides a gift of movables up to the
amount of 2000 phanams a year. In VyavaharaMayukha, p. 93, the following 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.”
Devala says:
“To maidens should be given a nuptial portion of the father’s estate” — Colebrooke’s
Digest, Vol. 1, p. 185.
Manu says
“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.”
These and similar other texts indicate that Hindu law texts not only sanction the giving of
property to daughters at the time of partition or at the time of their marriage, as the case may be,
but also condemn the dereliction of the said duty in unequivocal terms. It is true that these Hindu
law texts have become obsolete. The daughter has lost her right to a share in the family property
at the time of its partition. But though the right has been crystallized into a moral obligation on
the part of the father to provide for the daughter either by way of marriage provision or
subsequently. Courts even recognised, making of such a provision not only by the father but also
after his death by the accredited representative of the family and even by the widow. The decision
in Kudutamma v. Narasimhacharyalu [(1897) 17 MLJ 528] is rather instructive. There, it was
held that a Hindu father was entitled to make gifts by way of marriage portions to his daughters
out of the family property to a reasonable extent. The firstdefendant was the half-brother of the
plaintiffs and the father of the2nd defendant. After the death of his father and after the birth of the
2nd defendant he for himself and as guardian of the 2nd defendant executed a deed of gift to the
plaintiffs jointly, of certain portions of the joint family property. The question was whether that
gift was good. It will be seen from the facts that the gift was made by the brother to his halfsisters not at the time of their marriage but subsequently. Even so, the gift was upheld. Wallis, J.
in his judgment pointed out that unmarried daughters were formerly entitled to share on partition
and that right fell into desutude, a gift made to a daughter was sustained by courts as a provision
for the married couple. The learned Judge summarised the position thus, at p. 532:
“… although the joint family and its representative, the father or other managing
member, may no longer be legally bound to providean endowment for the bride on the
occasion of her marriage, they are still morallybound to do so, atany rate when the
circumstances of the case make itreasonably necessary.”
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If such a provision was not made at the time of marriage, the learned Judge indicated that
such moral obligation could be discharged subsequently by a representative of the family. To
quote his observations – “Mere neglect on the part of the joint family to fulfil a moral obligation
at the time of the marriage cannot, in my opinion, be regarded as putting an end to it, and I think
it continued until it was discharged by the deed of gift now sued on and executed after the father’s
death by his son, the 1st defendant, who succeeded him as managing member of the joint family.”
Another Division Bench of the Madras High Court considered the question in Sundaramya v.
Seethamma [(1911) 21 MLJ 695, 699] and declared the validity of a gift of 8 acres of ancestral
land by a Hindu father to his daughter after marriage when the family was possessed of 200 acres
of land. The marriage took place about forty years before the gift. There was no evidence that the
father then had any intention to give any property to the daughter. The legal position was thus
expounded by the learned Judges. Munro and Sankran Nair, JJ:
“The father or the widow is not bound to give any property. There may be no legal
but only a moral obligation. It is also true that in the case before us the father did not
make any gift and discharge that moral obligation at the time of the marriage. But it is
difficult to see why the moral obligation does not sustain a gift because it was not made
to the daughter at the time of marriage but only some time later. The moral obligation of
the plaintiff’s father continued in force till it was discharged by the gift in 1899.”
Another Division Bench of the Madras High Court in Ramaswamy Aiyer v.
VengudusamiIyer [(1899) 21 MLJ 695, 699], held that a gift of land made by a widow, on the
occasion of her daughter’s marriage, to the bridegroom was valid. SundaraAiyer and Spencer, JJ.
held in Vettorammal v. Poochammalthat a gift made by a father to his own daughter or by a
managing member to the daughter of any of his coparceners, provided it be of a reasonable
amount, is valid as against the donor’s son. After elaborately considering the relevant texts on the
subject and the case law bearing thereon, the learned Judges came to the conclusion that the
plaintiff’s father was competent to make a gift of ancestral property to the 1st defendant, his
brother’s daughter. The learned Judges also held that the validity of the gift would depend upon
its reasonableness. The legal basis for sustaining such a gift was formulated by the learned Judges
at p. 329 thus:
“No doubt a daughter can 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 recognised by the Hindu community and will support in law any disposition for the
purpose made by the father.”
In Bachoo v. Mankorebai[(1907) ILR 31 Bom 373], the Judicial Committee held that a gift
by a father, possessed of considerable ancestral property, of a sum of Rs 20,000 to his daughter
was valid. No doubt this was not a gift of immovable property, but there is no difference in the.
application of the principles to a gift of immovable property as illustrated by the decision of the
Judicial Committee in Ramalinga Annavi v. Narayana Annavi[(1922) 49 IA 168, 173]. There,
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both the Subordinate Judge and the High Court held that the assignments by a member of a joint
Hindu family to his daughters of a sum of money and of a usufructuary mortgage were valid as
they were reasonable in the circumstances in which they were made. The Privy Council
confirmed the finding of the High Court. In considering the relevant point, Mr Ameer Ali
observed at p. 173 thus:
“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.”
Venkataramana Rao, J. in Sithamahalakshmamma v. Kotayya [(1936) 71 MLJ 259] had to
deal with the question of validity of a gift made by a Hindu father of a reasonable portion of
ancestral immovable property to his daughter without reference to his son. Therein, the learned
Judge observed at p. 262:
“There can be no doubt that the father is under a moral obligation to make a gift of a
reasonable portion of the family property as a marriage portion to his daughters on the
occasion of their marriages It has also been held that it is a continuing obligation till it is
discharged by fulfilment thereof.It is on this principle a gift of a small portion of
immovable property by a father has been held to be binding on the members of the joint
family.”
Adverting to the question of the extent of property he can gift, the learned Judge proceeded to
State:
“The question whether a particular gift is reasonable or not will have to be judged
according to the State of the family at the time of the gift, the extent of the family
immovable property, the indebtedness of the family, and the paramount charges which
the family was under an obligation to provide for, and after having regard to these
circumstances if the gift can be held to be reasonable, such a gift will be binding on the
joint family members irrespective of the consent of the members of the family.”
The legal position may be summarized thus: the Hindu law texts conferred a right upon a
daughter or a sister, as the case may be, to have a share in the family property at the time of
partition. That right was lost by efflux of time. But, it became, 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 moral 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
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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. If the father is within his rights to make a gift of a
reasonable extent of the family property for the maintenance of a daughter, it cannot be said that
the said gift must be made only by one document or only at a single point of time. The validity or
the reasonableness of a gift does not depend upon the plurality of documents but on the power of
the father to make a gift and the reasonableness of the gift so made. If once the power is granted
and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed
instead of one, cannot make the gift anytheless a valid one.
17. Applying the aforesaid principles, we have no doubt that in the present case, the gift made
by the father was within his right and certainly reasonable. The family had extensive properties.
The father gave the daughter only a life-estate in a small extent of land in addition to what had
already been given for her maintenance. It has not been stated that the gift made by the father was
unreasonable in the circumstances of the case. We, therefore, hold that the said document is valid
to the extent of the right conferred on the 8th defendant.
21. In the result, Civil Appeal No.335 of 1960 filed by the plaintiff and Defendant 3 is
dismissed and Civil Appeal No. 334 of 1960 filed by Defendants 1, 2, 4, 5, the legal
representatives of Defendant 7 and Defendant 8 except to the extent of the 8th defendant’s rightto
maintenance under Ex. 371, is dismissed. So far as the 8th defendantis concerned, the appeal filed
by her is allowed.
