Devabhaktuni Sithamahalakshmamma vs Pamulapati Kotayya and Others

Venkataramana Rao, J.—The question raised in these second appeals is as regards the power of a father to make a gift of a portion of joint

family Immovable property in favour of his daughter or daughter''s daughter. The plaintiffs in O.S. Nos. 1185, 1187 and 1188 of 1926, out of

which second appeals 217, 220 and 218 respectively arise, are the sisters of the second defendant, and the plaintiff in O.S. No. 1186 of 1926 is

the daughter of another sister of the second defendant. The second defendant is the son of one Gavani Ramaswami. The said Ramaswami and his

son Gopala Rao and the second defendant were members of an undivided Hindu family. On the 26th August, 1925, the said Ramaswami executed

4 deeds of gift in favour of the plaintiffs in the said suits giving them each about 2 acres of wet land and put them in possession of the same. The

first defendant is a creditor who obtained a decree against the second defendant in O.S. No. 373 of 1925 on the file of the Additional District

Munsif''s Court, Tenali. He filed the said suit on the 18th of June, 1925, and applied for an order of attachment before judgment of the second

defendant''s share in the joint family property. But the attachment was not effected till 19th September, 1925. In the meanwhile the said gift deeds

were executed and subsequently a deed of partition was also executed on the 1st of September, 1925. The plaintiffs preferred their claims on the

strength of the said gift deeds, but the said claims were disallowed, and thereupon the present suits were filed for a declaration of their rights under

the said gift deeds. Both the lower Courts have declared that the gift deeds in question are not binding in so far as the second defendant''s share is

concerned. It may be mentioned that the second defendant was also adjudicated insolvent on the 5th December, 1925. The lower Courts also

found that both on the date of the gift deeds and or the date of partition the second defendant was heavily indebted and his share of the Joint family

property would not be enough to liquidate all his debts in full. It was also found that subsequent to the partition the father obtained a sale of a

portion of the property allotted to the second defendant''s share in consideration of discharge of the second defendant''s share of the family debts.

It was also found that the joint family was possessed of 40 acres of wet lands and 20 acres of dry lands besides house property. The learned

District Judge was of opinion that the gifts made by the father of 8 acres of wet lands were not out of proportion to the total extent of the family

property, and the gift deeds were not nominal transactions. But nevertheless he held that having regard to the fact of indebtedness of the son and

the knowledge of the father of such indebtedness and that the transactions were brought about in view of the impending insolvency of the son, the

gifts must be held to offend against the provisions of Section 53 of the Transfer of Property Act as the necessary result of such gifts would be to

reduce a portion of the poperty from the son''s share and prevent it from being available to his creditors.

It is contended by Mr. Lakshmanna that the view of the learned District Judge in applying Section 53 of the Transfer of Property Act is not

sound. I am inclined to agree with his contention. Section 53 of the Transfer of property Act has no application to the facts of this case. There is no

transfer by the 2nd defendant. The gift deeds were by the father of the 2nd defendant as the father and manager of the joint family. Therefore the

validity of the said gifts has to be judged according to the principles of Hindu Law. 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. By virtue of the fact that it has been held to be a

continuing moral obligation a gift even after the date of the marriage has been held to be valid, and a gift made even after the death of the father by

the managing member who succeeded him has been held to be in fulfilment of the obligation imposed on the father under the Hindu Law. In

Kudutamma v. Narasimhacharyulu (1907) 17 M.L.J. 528 Wallis, J., observes:

Mere neglect on the part of the joint family to fulfil a moral obligation at the time of the marriages 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. The gift was in the circumstances of the case an eminently proper and

reasonable one....

Thus it will be seen that it is competent to a Hindu father to make a gift of reasonable portion of the ancestral Immovable property to his

daughters without reference to the son; and such a gift cannot be said to have been made, as is observed by the learned District Judge in this case,

on behalf of his son. It is a power vested in the father under the Hindu Law, which he can exercise subject to the restrictions or 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 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. In the present case there can be no question that the gift was reasonable. But it is contended that having regard to the known indebtedness

of the son, and the result which would follow by giving effect to such a gift in reducing a portion of the property from being available to his

creditors, the gift is not a reasonable one made in the valid exercise of the power of the father. If under the law it is a moral obligation on the family

to make a provision as and by way of a marriage portion and such obligation continues until it is fulfilled by a reasonable provision being made

therefor, the fact that one of the sons has become indebted cannot take away the power of the father to make such a gift or to put an end to the

continuing obligation which the family was under. The learned District Judge though he held the gift to be a reasonable one having regard to the

extent of the joint family property and the circumstances of the family, came to the conclusion that the gift could not have been bona fide in view of

the known circumstances relating to the financial embarrassment of the 2nd defendant. In many cases the financial embarrassment of a member of

the family is often a ground for effecting a partition among the members of the family, and of making due provisions for the obligations which the

family has to discharge. It is not possible to understand how the indebtedness of one of the members of the family should prevent the father or the

managing member from exercising the legitimate right which the Hindu Law gives him.

Mr. Rama Rao contended that it must be shown that the gift was made bona fide, that is, the dominant intention must be to make due provision

for the daughters and not to defraud the creditors of the 2nd defendant and that the latter was the dominant intention in this case. I cannot follow

this argument. If it was an obligation which the joint family had to fulfil and the gift was made in fulfilment of that obligation and it could be upheld as

a valid gift otherwise, want of bona fides cannot be inferred from the mere fact that the creditors of the 2nd defendant would be affected by it.

They have no lien on the joint family property. As has already been stated there has been no seizure of the interest of the son by the attachment as

it was not effected till long after the gift deeds were executed and if before actual seizure a portion of the joint family property was utilised or

alienated for legitimate family purposes, a creditor of the son cannot complain as his right is only to work out the interest of the son as is available

on the date of seizure. The gifts in favour of the daughters must therefore be held to be reasonable and binding even on the 2nd defendant''s interest

in the family property. But the gift in favour of the daughter''s daughter stands on a different footing. There is no obligation on a father to provide for

the daughter''s daughter. Such a gift cannot be upheld as a gift, made out of affection, because it is not competent to a Hindu father to make a gift

of Immovable property of the joint family in favour of the daughter''s daughter out of affection. The gift must be such as the Hindu Law will allow.

Therefore so far as the gift in favour of the daughter''s daughter is concerned it cannot be held to be binding on the 2nd defendant''s interests. In the

result I allow Second Appeals Nos. 217, 218 and 220 of 1932 and reverse the decrees of the lower Courts, and give a decree in favour of the

plaintiffs in Original Suits 1185, 1187 and 1188 of 1926 respectively and dismiss Second Appeal No. 219 of 1932 with costs. So far as the other

appeals are concerned, the appellants will get cost from the Respondents but only one Vakil''s fee in all the three cases throughout.