TMI Blog2003 (12) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit property by the appellants perpetually. - - - - - Dated:- 10-12-2003 - Judge(s) : R. C. LAHOTI., ASHOK BHAN JUDGMENT The judgment of the court was delivered by ASHOK BHAN J.--Aggrieved by the judgment and decree passed by the courts below in dismissing the suit filed by the plaintiff-appellants (hereinafter referred to as the" appellants"), the appellants have come up in this appeal. Shortly stated the facts are: The appellants are the daughters of the defendant-respondent (hereinafter referred to as the "respondent"). By a registered settlement deed, exhibit A-1 dated August 29, 1985, the respondent hereinabove settled an extent of 12 cents of land comprised in S.No. 113/2, Thathagapatti Village, Salem District, in favour of the appellants. As per recitals in the settlement deed, the settlement was made by the respondent out of natural love and affection for the appellants and possession of the property was handed over to them on the day the settlement deed was executed. The schedule of settlement deed shows that the total extent of the property owned by the family was 3.16 acres. The gift was made of 12 cents along with Mangalore tiled house standing on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the respondent was in the habit of drinking liquor. The respondent in order to prove his case stepped in the witness box as DW-1. He stated that the property was a joint Hindu family property as the same had been purchased with the sale proceeds of the ancestral property. That his son-in-law who was working in TVS had purchased some property and he was taken by his son-in-law to sign as a witness. He denied having executed the settlement deed in favour of the appellants. He denied that he knew PW-2. It was stated that the possession of the appellants was permissive as they were allowed to reside in the house to enable them to send their children to the school. He denied his signatures on the settlement deed, on the "vakalatnama" given by him to his counsel as well as on the summons sent to him by the court. It was denied that he knew English. It was also stated by him that his signatures were obtained fraudulently on the pretext of signing as a witness on the document by which his son-in-law had purchased a house site. That the total extent of the family holding was 3.16 acres of land. He admitted that his son was residing separately for the last three to four years but denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of immovable property out of the joint Hindu family property is valid. The trial court believed the evidence of the respondent and dismissed the suit. For arriving at this conclusion the trial court held that if the respondent had the intention of executing a deed of settlement in respect of the suit property in favour of the appellants, then at least he would have taken his son, Ramasamy, for affixing his signatures as a witness to the deed. Since it was not done the document exhibit A-1 could not be relied on. The statement of PW-2 was construed to mean as if he had stated that the respondent was taken for affixing his signatures as a witness on the date when the settlement deed, exhibit A-1 was executed. We have carefully perused the statements made by PW-2 as well as DW-1 and in our view the trial court misread and misconstrued the testimony of PW-2. In the course of cross-examination PW-2 had stated as follows: "Only the defendant invited me for signing as witness. On the way Govindasamy was also invited while he was found standing there...While going towards the Sub-Registrar's office, the defendant saw and invited me to sign as witness." The trial court in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the house for five years after the execution of the settlement deed. In his statement he does not say that he did not know about the execution of the settlement deed. The plea taken by him that he was taken to the Sub-Registrar's office to be a witness to a sale deed by his son-in-law cannot be accepted as it has not been proved on record that the respondent's son-in-law had in fact purchased any house site. Findings recorded by the trial court and upheld by the first appellate court and the High Court based on misreading of evidence are liable to be set aside. The findings recorded on misreading of evidence being perverse cannot be sustained in law. Coming to the second point, the trial court held that since the property was ancestral in nature, the respondent had no authority/power to make a gift of a portion of the ancestral property in favour of his daughters. In appeal the first appellate court accepted that the father could give away a small portion of the ancestral property to his daughters out of the total holding of the family property but since in this case the total extent of property owned by the family had not been proved it could not be held that the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raghunath Sahu, AIR 1963 Orissa 50 have also taken the same view. The powers of the father or the managing member of the joint Hindu family vis-a-vis coparcenary property have been summarised in paragraphs 225,226 and 258 of the Mulla's Hindu Law which read: "225. Although sons acquire by birth rights equal to those of a father in ancestral property both movable and immovable, the father has the power of making within reasonable limits gifts of ancestral movable property without the consent of his sons for the purpose of performing 'indispensable acts of duty, and for purposes prescribed by texts of law, as gifts through affection, support of the family, relief from distress and so forth'. 226. A Hindu father or other managing member has power to make a gift within reasonable limits of ancestral immovable property for 'pious purposes'. However, the alienation must be by an act inter vivos and not by will. A member of a joint family cannot dispose of by will any portion of the property even for charitable purposes and even if the portion bears a small proportion to the entire estate. However, now see section 30 of the Hindu Succession Act, 1956. 258. (1) According to Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 daughte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular gift is within reasonable limits or not has to be judged according to the status of the family at the time of making a gift, the extent of the immovable property owned by the family and the extent of property gifted. No hard and fast rule prescribing quantitative limits of such a gift can be laid down. The answer to such a question would vary from family to family. This apart, the question of reasonableness or otherwise of the gift made has to be assessed vis-a-vis the total value of the property held by the family. Simply because the gifted property is a house, it cannot be held that the gift made was not within the reasonable limits. As stated earlier, it would depend upon a number of factors such as the status of the family, the total value of the property held by the family and the value of the gifted property and so on. It is basically a question of fact. However, on facts, if it is found that the gift was not within reasonable limits, such a gift would not be upheld. It was for the respondent to plead and prove that the gift made by the father was excessive or unreasonable, keeping in view, the total holding of the family. In the absence of any pleadings or proof o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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