Dharmaraya Reddiar vs Poongavanammal and another

Ramaswami, J.—The point for determination is, was a Hindu brother, managing member of a joint family, who gave away a reasonable

portion of the joint family property to his sister as a marriage portion subsequent to her second marriage acting in excess of his powers? The point

is concluded by authority. In Kudutamma v. Narasimhac haryulu (1907) 17 MLJ 528, a Division Bench of this Court held as follows!

A Hindu brother, managing member of a joint family will not be acting in excess of his powers as such, in giving away a reasonable portion of the

joint family property to his sisters, who though married in their father''s lifetime, were left, for some reason or other, without a marriage portion.

Held also, that in the circumstances of the case, and having regard to the state of the family, that the father of the plaintiffs not only might properly

have made the gift in question to the daughters, the plaintiffs, but that he ought to have made it.

In another Bench decision of this Court, Palwanna Nadar and Others Vs. Annamalai Ammal, it was held:

Though a father in an undivided Hindu Mitakshara family has full powers of disposition over his self-acquired properties, he has no such power in

respect of joint family properties; but he can make within reasonable limits, by custom in the Madras Presidency, gifts of immovable property of

the joint family to his daughter on the occasion of her marriage and when she is departing from her parental home. This customary obligation may

be fulfilled later, if not fulfilled at the time of marriage, without point of time, not only by the father but also by his widow or son taking over the

estate from the father.

That this customary obligation can be fulfilled without reference to any point of time is laid down in Chairman Sabu''s Case (1910) 37 Cal. 1,

Sundararama Iyer v. Sitamma (1911) M.W.N. 422, (forty years after), Pugalia Vettorammal and Another Vs. Vettor Goundan, minor by his next

Friend and mother Poochammal and Another, Devabhaktuni Sithamahalakshmamma Vs. Pamulapati Kotayya and Others, .

The entire case-law on the subject has been reviewed in a recent decision of the Supreme Court in Srimati Kamala Devi v. Bachulal Gupta

(1957) 2 M.L.J. 66 S.C.. The present transaction is covered by these decisions.

The only point of substance urged is that this was a second marriage for the sister and that a second marriage is not an obligatory Samskara for

a male and a fortiori for a female. But even this contention that a second marriage is not an obligatory Samskara was elaborately examined in a

Bench decision of this Court to which I was a party. Palaniappa Chettiar v. Arunachalam Chettiar (A.S. 323 of 1952), and in which judgment was

delivered by Govinda Menon, J. on 10th August 1956. Govinda Menon, J., after setting out that a marriage is an obligatory Samskara, so far as a

Hindu is concerned, is clear from Kameswara Sastri v. Veeracharlu (1910) M.W.N. 649; 34 Mad. 422, Sundri Bai v. Shivanarayana (1907) 32

Bom. 81, Onkar v. Kissan Singh (1930) AIR Nag. 282, Gopalakrishnan v. Venkatanarasa (1914) 37 Mad. 323 and Venkatasubba Rao v.

Ananda Rao (1934) 57 Mad. 772=39 L.W. 690, has proceeded to point out that though the authorities of the Madras High Court are the other

way, viz., Patell Thimma Reddi v. Lakkireddigari Chinna Renga Reddi 59 L.W. 506, Nataraja Dikshithar v. Mahaganapathi Dikshithar 55 L.W.

313 and Appalaswami v. Suryanarayanamurthi ILR Mad. 440=60 L.W. 412 (P.C.) the other High Courts have taken a different view like

Bhagirathiv. Joku Ram Upadhia (1910) 32 All. 575 wherein it was held that even in the case of second marriage the joint family can be made

liable, and examined relevant texts and came to the conclusion that under certain circumstances a second marriage is necessary and would be an

obligatory Samskara. It is unnecessary for the purpose of this case to delve into this question which is not free from obscurity, though on account

of the passage of time and under present-day circumstances our notions of what is an obligatory Samskara have got to be revised and brought into

line with modern conditions. Precedents after all, as has been well said, should not be halting places but only milestones in the march of law.

In regard to gifting of a reasonable extent of the joint family property for a marriage portion and which seems to be the relic of the earlier

practice of the daughter getting a share of the property, and which has now been restored to the daughter, the validity of these transactions so far

as this State is concerned has been rested not upon an obligatory Samskara but upon custom. Therefore, there is nothing opposed to custom in a

marriage portion being given once to a daughter albeit on the occasion of her second marriage and which was not done before and when she had

the misfortune to lose her husband in her teens and which would make the giving of the marriage portion all the more a sheer necessity binding on

the family [Bhagwati Shukul''s case (1922) AIR All. 381].

This transaction has been upheld on other grounds by both the Courts below. They need not be reset as I am also of the same opinion as the

Courts below and they were not impeached before me and they are also findings of facts by which I am bound. Therefore, looked at from any

point of view the concurrent decisions of both the Courts below cannot be interfered with. This second appeal is dismissed and in the

circumstances without costs. No leave.