TMI Blog1963 (8) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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. The plaintiff, one of the three surviving widows of Chanbasappa, filed the aforesaid suit for recovery of her share after setting aside the alienations made by her husband on. January 4 and 5, 1944. To that suit, Guramma and Venkamma, the other two widows of Chanbasappa, were made defendants 1 and 2; the alleged adopted son, defendant 3; the alleged posthumous son, defendant 4; and the alienees, defendants 5 to 8. Defendant 3 naturally supported the plaintiff, and the other defendants contested the suit. The. contesting defendants denied the factum and validity of the adoption of defendant s by the plaintiffs and they asserted that defendant 4 was the posthumous son of Chanbasappa by Ven- kamma, the second defendant. The alienees sought to sustam. the validity of the alienations in their favour. As many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this Court against the decree of the High Court insofar as it went against them. At the outset it would be convenient to clear the ground and focus our attention on the outstanding points of difference between the parties. The factum of adoption of defendant 3 by the plaintiff is accepted, but its legality is questioned. The fact that the 4th defendant is the posthumous son of Chanbasappa by the 2nd defendant is also not disputed. In the result the following questions only remain to be answered in the present appeals: (1) Whether the adoption of defendant 3 by the plaintiff was void as it was made at a time when defendant 4 had already been conceived. (2) Whether the alienations in favour of defendants 2, 5, 6, 7 and 8 are binding on the members of the family. And (3) What is the share of an adopted soil of a sudra in competition with the natural born son? Mr. Viswanatha Sastri, appearing for defendants 1 and 4 (Appellants 1 and 3 in Civil Appeal No. 334 of 1960) contends that the adoption of defendant 3 was void inasmuch as at the time of the adoption defendant 4 had been conceived. He presses on us to extend the legal position, by analogy, of the right of a son in the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a son includes a son s son and a grandson of the son, the pregnancy of a son s widow or a grandson s widow, on the parity of the said reasoning, will invalidate an adoption. We cannot introduce such a degree of uncertainty in the law of adoption unless Hindu law texts or authoritative decisions compel us to do so. There are no texts of Hindu law imposing a condition of non-pregnancy of the wife or son s widow or a grandson s widow for the exercise of a person s power to adopt. The decisions of the High Courts on the subject discountenance the acceptance of any such condition. But there is a decision of Sudr Adalut in Narayana Reddi v. Vardachala Reddi(1), wherein it was observed that it was of the essence of the power to adopt that the party adopting should be hopeless of having issue. Mr. Mayne S.A. No. 223 of 1859, M.S.D. 1859, p. 97. commenting upon the said observation drew a distinction between a husband taking a boy in adoption knowing that his wife was pregnant and doing so without the said knowledge and stated: If a wife, known to be pregnant at the time of adoption, afterwards brought forth a son it might fairly be held he was then in existence to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence of a son in embryo does not invalidate an adoption. The next contention of Mr. Viswanatha Sastri is that the High Court, having set aside the alienations made by Chanbasappa, should have brought into hotchpot the property covered by the said alienations for the purpose of partition. The particulars of the alienations may be noticed at this stage. This argument is based upon a misapprehension.- The High Court, having set aside the alienations, including those in favour of defendants 1 and 2 directed the said property to be divided in accordance with the shares declared by it. This position is also conceded on behalf of the plaintiff and defendant 3. We need not, therefore, pursue this matter. Mr. K. R. Chaudhri, following Mr. Viswanatha Sastri, further contends that the High Court went wrong in making a distinction between the documents executed in favour of the plaintiff in that while it confirmed the documents Exs. 346 and 347 executed in favour of the plaintiff, it set aside the deeds executed in favour of defendants 1 and 2. There are no merits in this contention. The documents executed in favour of the plaintiff are Exs. 346 dated January 30, 1937 and 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 member 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: See Avdesh Kumar v. Zakaul Hassain(I.L.R. [1944] All-612.) Chandramani v. Jambeswara(A.I.R. 1931 Mad. 550.) ; and Bhagwat Prasad Bahidar v. Debichand Bogra((1941) I.L.R. 20 Pat. 727.). In the instant case the impugned alienations were made at a time when the 4th defendant was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charitable gifts are pious acts par excellence, which bring appropriate rewards 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 Subrahmanya Ayyar J. in Partha Sarathi Pillai v. Tiruvengada( (1907) I.L.R. 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, at p. 10: By Istha is meant Vedic sacrifices, and rites and gifts in connection with the same; Purtta on 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, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The short question is whether the father could have validly conferred a lifeinterest 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 Jinnappa Mahadevappa v. Chimmava((1935) I.L.R. 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 customs 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lost, it 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 recognized 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( (1907) 17 M.L.J. 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 first defendant was the half-brother of the plaintiffs and the father of the 2nd defendant. After the death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ayyer v. Vengidusami Ayyer((1898) I.L.R. 22 Mad. 113) held that a gift of land made by a widow, on the occasion of her daughter s marriage, to the bridegroom was valid. Sundara Aiyer and Spencer JJ. held in Vettorammal v. Poochammal((1912) 22M. L.J. 321) that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. This decision was followed by Chandra Reddy J. of the, Madras High Court in Annamalai v. Sundarathammal((1952) 11 M.L.J. 782, 784.).. A division Bench of the Calcutta High Court in Churaman Sahn v. Gopi Sahu(1) held that it was competent to a Hindu widow governed by the Mitakshara law to make a valid gift of a reasonable portion of immovable property of her husband to her daughter on the occasion of the daughter s gowna ceremony. The learned Judges have followed some of the aforesaid decisions of the Madras High Court. It is, therefore, manifest that except the decision of a single Judge of the Bombay High Court in Jinnappa Mahadeva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, 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 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. Mr. Chatterjee, learned counsel for the respondents in Civil Appeal No. 334 of 1960 and appellants in Civil Appeal No. 335 of 1960, contended on behalf of the adopted son that in a competition between an adopted son and a subsequent born natural son among Sudras, each takes an equal share in the family property. A controversy was raised before us on the question whether the Lingayats, to which community the parties belong are Sudras or dwijas. The Bombay High Court in Tirkangauda Mallanagauda v. Shivappa Patil( I.L.R. [1943] Bom. 706.), after considering the relevant authorities on the question, held as follows, at p. 742: Whether the Lingayats are Hindus or not, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as entitled to only a fifth share of what a natural born son gets. But in the case of Arumilli Perrazu(1) the above decision has been overruled and it has been finally settled by the Privy Council that an adopted son shares equally on partition with an after-born son of a Sudra. In Bengal where Dattaka Chandrika is given same importance as in the Madras Presidency, the same rule has been followed in the matter of partition between an adopted son and an after-born natural son among Sudras: see Asita v. Nirode( (1916) 20 C.W.N. 901.). It is not necessary to pursue that matter. It may be accepted that in Bengal and Madras the said rule governs the shares between them. But in Bombay, Dattaka Chandrika is not given the place of honour as in Madras and Calcutta. As early as 18_2, a division Bench of the Bombay High Court in Giriapa v. Hingappa((1892) I.L.R. 17 Bom. 100.) had to consider the question of shares inter se between an adopted son and an after-born aurasa son. It held that in Western India, both in the districts governed by the Mitakshara and those specially under the authority of Vyavahara Mayukha, the right of the adopted son, where there was a legitimate son born afte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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