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TMI Blog1957 (1) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... was void and inoperative beyond the lifetime of Sumitra Devi and was not binding on the reversion. The following genealogical table shows the relation inter se between the parties: Ram Kishori Lal Ram Kishori Lal 4th wife 5th wifeSumitra Devi (Deft. 1) Kalicharan (Plff. 3) died during pendency of the suit Mst. Ram Sakhi (Plff. 3 gha) Rambandhu (Plff. 4) Bachu Lal (Plff. 1) Heman Lal (Plff. 2) Satyanarain(Plff. 3 Ka) Harilal (Plff. 3 Kha) Gopal (Plff. 3 Ga) Lachmi Narain (died on 1-1-36) Kamala Devi(Deft. 2) 3. On his death, Ram Kishori Lal had left extensive properties worth several lakhs, including some houses in Asansol, two businesses at Howrah and Asanasol, and large amounts of money deposited in Banks or invested in loans etc. Shortly after his death Sumitra Devi, for herself and as guardian of her two children, Lachmi Narain and Kamala, brought a suit against her stepsons for partition of the properties left by her husband. This suit was registered as Title Suit No. 664 of 1927 in the Court of the Subordinate Judge of Asansol. A preliminary decree was passed in the suit on July 22, 1933, and a final decree on June 29, 1936. This decree provided for payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout ₹ 5,000 were to be given to Kamala Devi, a sum of ₹ 800 was to be paid as travelling expenses of the bridegroom's party, and gifts of some moveable properties were to be made out of the balance of the sum of ₹ 10,000 which was set apart for the marriage expenses of Kamala Devi. The plaintiffs-respondents denied that there was any ante-nuptial promise of a gift of four houses as marriage dowry or that there was any "sankalpa", at the time of marriage or any confirmation of the gift at the Dwiragaman ceremony. They alleged that Sumitra Devi, under the evil advice of her father and son-in-law and to deprive the plaintiffs-respondents of their right, made a gift of the four houses at Asansol in favour of Kamala Devi on the 10th March, 1940, a gift which she was not competent under the law to make. It was alleged that the gift was collusive, fraudulent and without consideration; and in any event, it could not be operative beyond the lifetime of Sumitra Devi and was not binding on the reversion, as she had only a life interest in the corpus of the property and there was no justifying legal necessity for the alienation made by her. It was alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court formulated five questions of fact, four of which are important for our purpose, and on a fresh consideration of the evidence on the record, came to the following findings thereon : (1) a final settlement of the terms of marriage was made at Deoghar and the terms which were settled between the parties were : (a) that Sumitra Devi would arrange for the gift of ornaments worth about ₹ 5,000, (b) a sum of ₹ 800 would be paid for meeting the expenses of travelling of the bridegroom's party from Patna to Asansol, (c) a sum of ₹ 51 would be paid for the Tilak ceremony and (d) a gift of four houses at Asansol, worth about ₹ 20,000, would be made in favour of Kamala Devi, though the evidence led on behalf of the appellants did not make it absolutely clear or specific that the promise related to the four particular houses which were the subject-matter of the subsequent gift; (2) the plaintiffs-respondents had nothing to do either with the settlement of the terms of marriage or with any control or management of the marriage ceremony; (3) there was no reliable evidence that Sumitra Devi had made a "sankalpa" of the gift of the houses when the bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable portion of her husband's properties, the learned Judges observed : "In the present case, the value of the houses gifted was just above ₹ 18,000 which was about a fourth of the value of each share allotted (viz., above ₹ 73,000). Even if the provision of ₹ 10,000 made in the partition decree for meeting the marriage expenses be taken into account, we cannot say that the value of the gifted houses was disproportionate or unreasonable." In the result, the High Court affirmed the decision of the learned Subordinate Judge and dismissed the appeal preferred by the defendants who are the appellants here. 9. It is necessary to state now the contentions which have been urged before us on behalf of the appellants, and they may be put in two main categories - (a) contentions with regard to the findings of fact, and (b) contentions of law. Learned counsel for the appellants has impeached the concurrent finding of the Courts below that there was no "sankalpa" or promise of a gift of the four houses in question at the time of the marriage ceremony which, it was alleged, was followed by a confirmation of the gift at the Gowna ceremony. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. In dealing with the oral evidence on this question, the learned Judges have said : "If we leave out of account for the present the evidence of Sumitra Devi and Bijoy as also of Kamal, who has been contradicted on a very material point by the other witnesses and also Nand Lal, father of Bijoy, we are left with Parasuram and Rash Behary. Parasuram, a tenant, happens to be present at the psychological moment only for a few minutes when the Sankalpa is being made." The High Court clearly made a mistake in dealing with the evidence of Parasuram Sharma and confused Parasuram Sharam (witness No. 16) with Pashupati Sarkar (witness No. 10). Pashupathi Sarkar was a tenant of Sumitra Devi and it was his evidence that he went to the place of marriage at about 12 midnight or 1 a.m. and stayed there for two minutes only and then came away. Parasuram Sharma (witness No. 16) was not a tenant of Sumitra Devi. He was the Head Master of the Indian H.E. School at Patna, a school where Bijoy, husband of Kamala, was a pupil for two years. This Head Master said that he attended the marriage as a member of the bridegroom's party and was present when from behind the purdah Sumitra Devi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s witness supported the evidence of Sumitra Devi with regard to the promise made regarding the gift of four Asansol houses at the time of the settlement of marriage negotiations at Deoghar. There can be no doubt that Rai Saheb Jogendra Nath Roy was a very respectable witness and had no reasons to tell lies. Though he supported that part of the evidence of Sumitra Devi which related to the promise of a gift of four houses at Asansol at the time of the marriage negotiations at Deoghar, he made no statement about a verbal gift having been made at the time of the marriage itself. The witness said that he went to Sumitra Devi's house on the evening of the marriage and stayed for fifteen to twenty-five minutes only. He further said that he was not present at the time of the marriage ceremony. It may, therefore, be that Rai Saheb Jogendra Nath Roy was not present at the time when the verbal gift was alleged to have been made. 11. By far and large, the learned Judges of the High Court did examine with care the oral evidence with regard to the alleged verbal gift at the time of the marriage and but for the unfortunate confusion between Parasuram Sharma and Pashupati Sarkar, we do not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of Rai Saheb Jogendra Nath Roy was considered in the context of contemporaneous Court proceedings for the withdrawal of ₹ 10,000 and the learned Judges of the High Court accepted the explanation which Rai Saheb Jogendra Nath Roy gave for not mentioning the promise of a gift of four houses in Asansol in the application which Sumitra Devi made for the withdrawal of the said sum of ₹ 10,000. In our opinion, the finding of the High Court as to an ante-nuptial agreement for the gift of four houses at Asansol, worth about ₹ 20,000, is not vitiated by any error of fact or law. That finding must, therefore, be accepted as a correct finding, even though the learned Subordinate Judge came to a contrary conclusion with regard to it. 13. Having disposed of the contentions of fact urged before us, we proceed now to a consideration of the contentions of law. It may be convenient to dispose of, first, the argument somewhat faintly advanced on behalf of the appellants that even prior to the enactment of the Hindu Succession Act, 1956, Sumitra Devi had an absolute right of disposal in the share allotted to her on partition in 1933-36 under Mitakshara law. The question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cession Act, 1956. The argument of learned counsel for the appellants was that Sumitra Devi was competent to make such a gift under the Hindu law, even as it stood prior to the enactment of the Hindu Succession Act, 1956. We shall, therefore, deal with this point, irrespective of the provisions of s. 14 of the Hindu Succession Act, 1956. 15. It may be stated at the very outset that the concurrent finding of the Courts below was that the gift of four houses at Asansol, of a value of about ₹ 19,000, was not disproportionate or unreasonable if one had regard to the large extent of properties left by Ram Kishori Lal Sao on his death; this was so even taking into consideration the sum of ₹ 10,000 which was set apart for the marriage expenses of Kamala Devi and which was withdrawn by Sumitra Devi. In our opinion, that finding is correct and must be accepted as such. Therefore, the narrow question is if Sumitra Devi was competent to make the gift of four houses at Asansol as marriage dowry to her daughter, some two years after the marriage, in pursuance and fulfilment of the ante-nuptial agreement made at Deoghar. 16. There are a number of decisions bearing on the question, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred upon him by such a marriage. Marriage, according to the Sastras, is a religious act; a Sanskara for a man or woman. According to Manu, Chapter II, verse 67, the sacrament of marriage is to a female what initiation with the thread is to a male. The Mitakshara also recognises marriage as a religious obligation for both male and female (Sundrabai Javji Dagdu Pardeshi v. Shivnarayana Ridkarna [1907] I.L.R. 32 Bom. 81. The texts also recognise that gifts can be made at the time of or on the occasion of the marriage or any ceremonies connected therewith, and may also be made in fulfilment of a promise made in connection with the marriage; some decisions have gone to the extent of laying down that the moral obligation continues till it is discharged or fulfilled and such fulfillment may be subsequent to the marriage : see Mitakshara, Chapter I, section VII, Placitum 5 to 14. In Placitum 9 is quoted Manu's text : "To the maiden sisters, let their brothers give portions out of their own allotments respectively; to each the fourth part of the appropriate share; and they, refuse to give it shall be degraded." In Placitum 11, it is stated. "If it be alleged, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the lands inherited by her from her husband to her son-in-law, and the question was if the widow Thaiyyu Ammal, who was a Hindu qualified owner, had authority to make such a gift. 17. In Kudutamma v. Narasimha Charyulu (1997) 17 M.L.J. 528, the brother, as managing member of the joint family, made a gift of a reasonable portion of the joint family properties to his sisters. The sisters were married in the father's lifetime but were left for some reason or other without a marriage portion. The gift was made after the father's death and subsequent to the marriage. It was held that the brother had authority to make the gift. Miller J. observed : "If then a brother, finding that his sister, though married in his father's lifetime, has been for any reason left without a marriage portion which she ought to have received, it is difficult to see how he can be held to have exceeded his powers if he makes good the deficiency out of the family property. We are not required to hold that he is bound to do so; we are not required to hold that his father was bound in law to give his daughter anything at her marriage; it is only necessary for us to hold that the gift is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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 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." The learned Judges referred with approval to the earlier decision in Kudutamma v. Narasimha Charyulu (1907) 17 M.L.J. 528. The decision in Bhagwati Shukul v. Ram Jatan Tewari A.I.R. 1922 All. 381 is somewhat out of the ordinary in the sense that a widow transferred the entire property inherited by her from her husband to a blind and crippled daughter in order to get her married and supply her with a handsome dowry. It was observed that no hard and fast rule could be laid down to define the extent and limit of the widow's power of disposing of the property inherited by her for the marriage of her daughter. The decision of the same case when it went up in Letters Patent appeal is reported as Bhagwati Shukul v. Ram Jatan Tewari (1922) I.L.R. 45 All. 297. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made afterwards, upon the ground that the gift when made fulfils the moral and religious obligation of giving a portion of the property for the benefit of the daughter and the son-in-law. The only limitation placed upon this power of making a gift is that it should bear a reasonable proportion to the entire property of the deceased father and that it should be justifiable in the circumstances of the case in terms of the principle laid down in Cossi Naut Bysack v. Hurroosoondry Dossee [2 Morley's Digest 198]". In Sithamahalakshmamma v. Kotayya A.I.R. 1936 Mad. 825, Mr. Justice Venkataramana Rao summarised the case law in the following words : "Thus it will be seen that it is competent to a Hindu father to make a gift of a reasonable portion of the ancestral Immovable property to his daughters without reference to the son;.......... It is a power vested in the father under the Hindu law, which he can exercise subject to the restriction of limitations imposed on him by the said law. The decided cases have held that the gift must be a reasonable one. The question whether a particular gift of a reasonable or not will have to be judged according to the state of the fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cestral property of his family, in favour of the defendant Ganga Bisheshar, the father-in-law of his daughter, on April 25, 1872, about two years after the marriage of the daughter. Mr. Justice Spankie observed as follows : "I understand the finding of both the lower Courts to be that the transfer was not made for any necessary purpose allowed by the Hindu law. The deed of gift appears to have been made by the father in performance of a promise to give a dowry to his daughter. But I am not aware that the performance of such a promise can be regarded as a lawful purpose justifying alienation under the Hindu law. It was not necessary for the support of the daughter, it was not for any religious or pious work, nor was it a pressing necessity. Daughters must be maintained until their marriage and the expenses of their marriage must be paid. But in this case the gift was not made at the time of the marriage. It was not executed until two years after the marriage." There is no consideration, nor any discussion, of the texts bearing on the question, and the learned Judge did not consider the alienation from the point of view that the marriage of the daughter was a religious d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that promise as a religious act which conferred spiritual benefit upon her deceased husband, irrespective of the consideration whether she made a "sankalpa" at the time of the marriage or not. We have already stated that we concur in the finding of the Courts below that the gift was neither disproportionate nor unreasonable in extent. 24. The learned Judges of the High Court referred to s. 123 of the Transfer of Property Act which lays down that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. In one part of their judgment, they said that but for the aforesaid provisions it might have been possible to consider the gift as having been made on the occasion of the marriage, the implementation of which was subsequent. In our opinion, the learned Judges of the High Court were in error with regard to the scope and effect of s. 123 of the Transfer of Property Act. It is true that a gift becomes legally effective only when a registered instrument is executed in the manner laid down in that section. Section 123 does not deal with nor does it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 14 Kamala Devi is a full owner of the houses; the plaintiffs-respondents cannot therefore get the declaration which they have asked for. Alternatively, he has contended that if Sumitra Devi is still in possession of the houses, she also becomes a full owner and in that event also the plaintiffs-respondents are not entitled to the reliefs claimed. Learned counsel for the respondents has relied on sub-section (2) of s. 14 which says that nothing in sub-s. (1) shall apply to any property acquired by way of gift, etc., where the terms of the instrument or decree, etc., prescribe a restricted estate in such property. It is argued that Sumitra Devi got a restricted estate by the partition decree and sub-s. (1) has no application to that estate. It is further argued that Kamala Devi as done could not get a larger estate than what the donor had in the property, if the view of Hindu law, as contended for by learned counsel for the respondents, is accepted as correct; therefore, Kamala Devi is also not entitled to the benefit of sub-s. (1) of s. 14. 28. We do not think that it is necessary to decide this case on the rival contentions presented to us with regard to s. 14 of the Hindu Succe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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