Thulasiammal vs Marappa Gounder and Others

K. Govindarajan, J.—The unsuccessful plaintiff before the lower appellate Court has filed these Second Appeals.

The Plaintiff is the daughter of first defendant/Rangappa Gounder, who died pending suit. The 2nd defendant is the son of the 1st defendant. The

3rd defendant is the wife of Velappa Gounder, the another son. The 4th defendant is the mother of the plaintiff and wife of 1st defendant. 5th

defendant is the grandson of the 1st defendant. On the basis that the 1st defendant had executed a settlement deed Ex.A1 dated 18.7.1980 with

respect to the suit properties and from the date of the settlement deed, the plaintiff claims that she has been in possession of the suit properties, by

accepting the same. On the basis that under the said settlement deed, she got 1/3rd share of the entire properties, the plaintiff filed the said suit, for

partition.

While defending the said suit, the 1st defendant came forward with the plea that the said document Ex.A1 had been revoked under Ex.A2,

dated 16.1.1981. The plaintiff filed another suit in O.S.No. 1636 of 1984 seeking declaration of her title and for injunction with respect to the suit

properties. In the said suit, she came forward with the plea that the 1st defendant has no right to revoke the said settlement deed as it has been

acted upon. The said suits were defended on the basis that the 1st defendant had no right to execute the settlement deed and the same was

obtained by fraud. The plaintiff did not get any possession pursuant to the said settlement deed. After coming to know of the fraud, the 1st

defendant had revoked the settlement deed.

On the basis of the above said pleadings, the trial Court passed a preliminary decree for partition in O.S.No. 198 of 1981 and decreed the suit

in O.S.No. 1636 of 1984. So aggrieved the defendants in the respective suits filed Appeals in A.S.Nos.114 and 115 of 1990 on the file of the

Sub-Court Coimbatore. The learned Sub-Judge reversed the judgment and decree of the trial Court and allowed the Appeals by dismissing the

suits. Hence these Second Appeals.

The substantial question of law arises out of the judgment of the lower appellate Court is:-

Whether the 1st defendant was having any right to execute the settlement deed Ex.A1 with reference to the joint family properties in favour of the

plaintiff?

The plaintiff has come forward with the suit only on the basis of the settlement deed Ex.A1. Even according to the plaintiff, the 1st defendant is

entitled to 2/3rd share in the suit properties. It is the specific case of the plaintiff that the said settlement deed was acted upon.

The respondents have come forward with the specific plea that the 1st defendant had no right to execute the said document, and as a matter of

fact, he has not executed such a document. Moreover, the same was cancelled under Ex.A2, and even the said document was not given effect to

and acted upon.

The trial Court has held that the suit properties are also the joint family properties, that Ex.A1 was executed by the 1st defendant and it is a true

document, that the 1st defendant has no right to cancel the settlement deed Ex.A1 and so Ex.A2 rectification deed is not valid and that the father,

the 1st defendant had gifted the properties to her daughter, the plaintiff, while discharging her moral obligation.

Though the lower appellate Court also found that the suit properties are the joint family properties, the lower appellate Court reversed the

judgment of the trial Court holding that the settlement deed Ex.A1 was not acted upon by accepting the gift deed and the 1st defendant has no right

to gift the properties even to her daughter, the plaintiff.

I am not able to accept the reasonings given by the lower Court regarding the 1st defendant''s right in making gift of an ancestral estate. Hindu

law texts approved the giving of the 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 become obsolete. The daughter has lost her

fight to a share in the family property at the time of its partition. But though the right has been crystallized into a moral obligation on the part of the

father to provide the daughter either by way of marriage provision or subsequently. Courts even recognised 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.

In the decision in Kulambichudi Kudutamma and Anr. v. Narasimha Charyulu, 17 M.L.J. 528, it is held that a Hindu father was entitled to

make gift by way of marriage portions to his daughters out of the family property to a reasonable extent.

In the decision in Sundararamayya v. Silamma, 21 M.L.J. 695 , the Division Bench of this Court had upheld the validity of a gift of ancestral

land by a Hindu father to his daughter 40 years after her marriage and found as follows:-

The father or the widow is not bound to give any property. There may be no legal but only a moral obligation. 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 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.

Even in the decision in Vettor Ammal v. Pooch Ammal, 22 M.L.J. 321, another Division Bench of this Court held that a gift made by a father

to his daughter is valid against donor''s son, provided it be of a reasonable amount. It also held that no doubt a daughter can no longer claim as of

right a share of the property belonging to her father, but the moral obligation to provide for her wherever possible is fully recognised by the Hindu

community and will support in law any disposition for the purpose made by the father.

In the decision in Sithamahalakshmamma v. Kotayya, 71 M.L.J. 259, the learned Judge of this Court observed as follows:-

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.

It is also held regarding the extent of the property he can gift, which is as follows :-

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.

While dealing with the rights of the father to make gift the ancestral property, the Apex Court in the decision in Guramma Bhratar

Chanbasappa Deshmukh and Another Vs. Malappa, , has held as follows:-

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, 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 (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.

Regarding the quantitative limits of a Court, the Hon''ble Judges of the Apex Court, in the said decision, have held thus:-

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 daughters to be

provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of

the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single

point of time. The validity or the reasonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a

gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift

deeds were executed instead of one, cannot make the gift any the less a valid one"".

Even in the decision in P.N. Easwara Iyer Vs. P.N. Venkatasubramania Iyer and Others, , the Apex Court approved such a gift by the father

to the daughters.

Even in the recent judgment of the Apex Court in Thimmaiah and Others Vs. Ningamma and Another, , it is held that the kartha is competent

or has power to dispose of the copacenary property only if (a) the disposition is of a reasonable portion of the coparcenary property and (b) the

disposition is for a recognised ""pious purpose"".

The expression ""pious purposes"" is wide enough under certain circumstances to take in charitable purpose though the scope of latter purpose

has nowhere been precisely drawn. But the said wide interpretation given to the words ""pious purposes"" in Hindu law is in a different context. The

scope of limitations on that power has been fairly well settled by the decisions interpreting the relevant texts of Hindu law.

While considering the scope of such words ""pious purposes"", the Apex Court in the decision in Ammathayee Ammal and Another Vs.

Kumaresan and Others, , has held as follows:-

(8) Hindu Law on the question of gifts of ancestral property is well settled. So far as moveable ancestral property is concerned, a gift out of

affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or

almost the whole of the ancestral moveable property cannot be upheld as a gift through affection;(see Mulla''s Hindu Law, 13th Edn., p. 252, para

225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of movable ancestral

property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for

pious purposes""; (see Mulla''s Hindu law, 13th Edn., para 226, p. 253). Now what is generally understood by ""pious purposes"" is gift for

charitable and/or religious purposes. But this Court has extended the meaning of ""pious purposes"" to cases where a Hindu father makes a gift

within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the

settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead; (see Kamala Devi Vs. Bachu Lal

Gupta,

(9).... .........

But we have not been referred to a single case where a gift by a husband to his wife of immovable ancestral property, if made, has been upheld.

We see no reason to extend the scope of the words ""pious purposes"" beyond what has already been done in the two decisions of this Court to

which reference has been made. The contention of the donee-appellant that the gift in her favour by her husband of ancestral immovable property

made out of affection should be upheld must, therefore, fail, for no such gift is permitted under Hindu law insofar as immovable ancestral property

is concerned"" .

On the basis of the above settled law, now it has to be decided in the present case, in terms of Ex.A1, which reads as follows:-

From the above said recitals, it is clear that the properties had been given to the 1st defendant''s daughter mainly on the ground that the she had

been looking after her parents. From a reading of the entire recitals in the said document, it cannot be said that the properties had been given to the

plaintiff for pious purpose. Even the 1st defendant had come forward with the specific plea that they have been under the care and custody of the

2nd defendant and not under the plaintiff. So, appreciating the entire circumstances, it cannot be said that the settlement deed Ex.A1 has been

made in favour of the plaintiff for discharging pious purpose and so the said document cannot be said as it has been made within the limits and

powers of the 1st defendant as settled in various decisions. Moreover, under Ex.A1, 1/3rd of the family properties had been given and so it cannot

be said that it is a reasonable settlement so as to enable the plaintiff, to sustain Ex.A1, in law. The plaintiff, by way of the settlement deed Ex.A1 is

getting more share than other sharers. Hence, the lower appellate Court is correct in holding that the settlement deed made under Ex.A1 by the 1st

defendant is not valid and cannot be enforced by the plaintiff and so the plaintiff cannot claim any right in the properties. In view of the above

discussion, I am not dealing with the issue regarding genuineness of Ex.A1.

But the plaintiff is entitled to a share in the properties as the daughter of the 1st defendant. The 1st defendant had two sons and two daughters

apart from his wife, the 4th defendant. One daughter Ponnammal predeceased, and another son Velappan also pre-deceased leaving his wife

Ponnammal, the 3rd defendant. The 2nd defendant is another son. The plaintiff as a daughter is entitled to a share in the properties of the 1st

defendant. Now, the 1st defendant died and so it has to be taken that there was a disruption in the family in question on the death of the 1st

defendant as for the purpose of determining the interest inherited by the plaintiff, and it was necessary to assume that notional partition had taken

place immediately after the death of the 1st defendant, and it was carried to its logical end.

Even in the decision in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and Others, , the Apex Court has held as follows:-

In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of thing, and as the very first

step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant''s

share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener ""shall

be deemed to be"" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before

his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners

immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose

of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs

without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire

process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose

of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one''s

imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the

heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place

during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other

conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an

actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the

deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have

received in the notional partition.

The Apex Court, following the above said judgment, in the decision in State of Maharashtra Vs. Narayan Rao Sham Rao Deshmukh and

Others, , has held as follows:-

We have carefully considered the above decision and we feel that this ease has to be treated as an authority for the position that when a female

member who inherits an interest in the joint family property u/s 6 of the Act files a suit for partition expressing her willingness to go out of the family

she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her, as stated in

Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of

a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal

fiction should no doubt ordinarily be carried to its logical end to carryout the purposes for which it is enacted but it cannot be carried beyond that.

It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member u/s 6

of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results

which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such

female heirs.

The same view has been takes by the Apex Court in the decision in Thimmaiah and Others Vs. Ningamma and Another, , that where a Hindu

coparcener dies without actual partition taking place, the Court will have to assume that a partition had in fact taken place immediately prior to the

death of coparcenar concerned and grant shares on the basis of such notional partition.

Though the plaintiff is not entitled to enforce Ex.A.1 settlement deed, she is entitled to get a share from her father''s property, viz., 1/4th of

1/3rd share, and so there will be a preliminary decree for partition of her 1/12th share in the suit properties. To that extent, the judgment and

decree of the lower appellate Court is modified, and S.A.No. 1370 of 1992 is accordingly allowed partly. S.A.No. 1406 of 1992 is dismissed.

No costs. C.M.P.No. 13475 of 1992 is also dismissed.