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PETITIONER: AMMATHAYEE AMMAL & ANR.

       Vs.

RESPONDENT: KUMARESAN & OTHERS

DATE OF JUDGMENT: 15/09/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SHELAT, J.M. MITTER, G.K.

CITATION:  1967 AIR  569            1967 SCR  (1) 353  CITATOR INFO :  R          1971 SC2352  (14)  F          1987 SC1775  (19)

ACT: Hindu  Law-Immovable  property belonging  to  joint  family- Husband whether can gift such property to his  wife-Doctrine of ’pious obligation’ applicability. Indian Evidence Act, 1872, s. 112-Presumption of  legitimacy under.

HEADNOTE: R  was  a  man of considerable property.   He  married  four times.   The third wife bore him a son.  When R made a  gift of  some joint family property to his second wife the  third wife  gave a notice that the gift was not valid.  R, in  his reply  to the notice alleged, that she had deserted him  and that  the  son born of her was not his.   These  allegations were denied by the third wife.  After the death of R a  suit was instituted by the said son claiming a half share of  the property left by R. The two living step mothers, namely, the second  and  fourth  wives of R  contested  the  suit.   The questions  were whether the plaintiff was the son of  R  and whether  the gift deed was valid.  The trial court  held  on both  points in favour of the plaintiff and the  High  Court also  decided  against the two  step-mothers  who  thereupon appealed  to this Court.  The appellants contended that  (1) the  courts below had wrongly held the Plaintiff  respondent to  be  the legitimate son of R (2) R,s  gift  of  ancestral immovable  property  was  valid because it was  a  gift  for ’pious purposes. HELD:     (i) Section 112 of the Evidence Act raises,  inter alia, a conclusive presumption that a child born during  the continuance  of a valid marriage between his mother and  any man  is the legitimate son of the man, and  this  conclusive presumption  can  only be rebutted if it is shown  that  the parties  to the marriage had no access to each other at  any time  when he could have been begotten.  The appellants  had completely failed to prove the non-access of R to his  third wife  at any time when the plaintiff-respondent  could  have been  begotten.  In these circumstances there was no  reason to interfere with the concurrent finding of the courts below

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that  the plaintiff-respondent was the legitimate son of  R. [357 E-F] (ii) 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 fail because  no such gift is permitted under Hindu Law insofar as  immovable ancestral   property  is  concerned.   The  scope   of   the expression  ’pious purposes’ cannot be extended  to  include such gifts. [359 D] Kamala  Devi  v.  Bachu Lai Gupta,  [1957]  S.C.R.  452  and Guramma Bharatar Chanbassappa Deshmukh v. Malappa, [1964]  4 S.C.R. 497, referred to. (iii)     Nor can the proposition be accepted that a father- in-law  can make a gift of ancestral immovable  property  in favour  of his daughter-in-law at the time of her  marriage. The  case of a daughter-in-law who would become entitled  to property  in  the father-in-law’s family in  her  own  right stands on a very different footing from the case of daughter who  is  being  married and to whom  a  reasonable  gift  of ancestral immovable property can be made. [360 A-B] The rule of Hindu law that gifts made in token of love by  a fatherin-law to his daughter-in-law are permitted and become the stridhan pro- 354 perty must be taken to refer to gifts of movable  properties and  such  immovable  properties as  are  not  joint  family properties. [360 C-E] Ws  gift of immovable ancestral property to his second  wife could not therefore be considered to be valid even if it was in purported compliance with the wishes of his father at the time of her marriage. [360 G-H]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 618 of 1964. Appeal from the judgment and decree dated November 29,  1960 of the Madras High Court in Appeal Suit No. 207 of 1957. Sarjoo Prasad and M. S. Narasimhan, for the appellants. S.   V. Gupte, Solicit6r-General and A. G. Ratnaparkhi,  for respondents Nos.  1 and 2. R. Ganapathy Iyer, for respondent No. 3. The Judgment of the Court was delivered by Wanchoo,  J. This is an appeal on a certificate  granted  by the   Madras  High  Court  and  arises  in   the   following circumstances.   One  Rangaswami  Chettiar  was  a  man   of considerable property and used to live in Poolathur village. He first married one Bappini and had a son by her.  But both the son and Bappani died.  He therefore married  Ammathayee, who  was defendant No. 2 in the suit and is appellant No.  I before  us.   He had a son and two daughters  by  her.   But unfortunately  all  the  three  children  died.   Thereafter Rangaswami  Chettiar married Lakshmiammal in 1943.  She  was the  first defendant in the suit.  It appears that no  child was born to Lakshmiammal for about three years and therefore Rangaswami Chettiar married a fourth time.  His fourth  wife was  the  sister of his second wife named  Supputhayee.   In February  1949 Lakshmiammal gave birth to a son.   There  is dispute as to the question whether Lakshmiammal had left her husband  about  1945  or so  because  of  frequent  quarrels between  the  two.   Anyhow  the fourth  wife  had  also  no children.   In June 1953 Rangaswami Chettiar fell  ill.   He was  first treated as an out-patient in Batlagundu  hospital and  later admitted as an in-patient.  On June 16,  1953  he executed  a registered deed of gift in favour of his  second

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wife Ammathayee of certain immovable joint family  property. Lakshmiammal when she came to know of this gift published  a notice in a newspaper accusing the second and fourth wife of trying  to deprive her and her minor son of their due  share in  the  joint  family  property by  having  the  gift  deed executed  and claimed that the gift deed was not valid.   On September  4,  1953, Rangaswami Chettiar sent  a  notice  in reply  to  the notice published by Lakshmiammal.   Ili  that notice  Rangaswami Chettiar accused Lakshmiammal  of  having left  Wm  a  year  and  a  half  after  the  marriage  after quarrelling with him.  He also accused her of living a  life of promiscuity thereafter.  Finally                             355 he  said in the notice that the son born to Lakshmiammal  in Feb-ruary  1949 was not his son.  Lakshmiammal gave a  reply to this notice of Rangasmami Chettiar on September 15, 1953, in  which  she  maintained that  the  child  was  Rangaswami Chettiar’s.   She  also claimed that  Rangaswami  Chettiar’s mind  had been poisoned against her by his two other  wives. She  denied that she had any connection with any  other  man besides  Rangaswami Chettiar.  In, December 1963  Rangaswami Chettiar died. The  present suit was filed a year later on January 3,  1955 on  behalf of the minor son.  He claimed half share  in  the joint  family  properties left by Rangaswami  Chettiar.   To this suit the three widows who between them have half  share were defendants Nos. 1, 2 and 3. Three other defendants were made  parties  to the suit to whom we shall refer  later  as they are not concerned with the main controversy between the plaintiff and the two step-mothers (i.  e. second and  third defendants). The main defence of the two step-mothers, who are now appel- lants  before  us, was that the, plaintiff  though  born  to Lakshmiammal was not the son of Rangaswami Chettiar and  was therefore  not  entitled  to any share  in  his  properties. Further Ammathayee pleaded that the gift deed in her  favour was  valid  and that even if the plaintiff was  the  son  of Rangaswami  Chettiar he would be entitled to half  share  of the properties other than those gifted to her by R angaswami Chettiar  before his death.  There were other issues in  the suit,  but  we are not concerned with them  in  the  present appeal. On  the main question, namely whether the plaintiff was  the son  of  Rangaswami Chettiar, the trial court found  in  his favour.   Further on the question whether the gift  deed  in favour  of  Ammathayee  was valid, the trial  court  was  of opinion that it was not competent for Rangaswami Chettiar to make a gift of immovable joint family property to his  wife. The  trial court therefore held the gift to be  invalid  and gave  the plaintiff a decree for his half share in the  pro- perty left by Rangaswami Chettiar, including the  properties gifted to Ammathayee before his death. Thereupon the two step-mothers went in appeal along with two other  defendants  and contested the finding  of  the  trial court  on both these issues.  The High Court however  upheld both the findings.  On a consideration of the evidence,  the High  Court  came. to the conclusion that the  heavy  burden that  lay  on  those  who  disputed  the  paternity  of  the plaintiff-respondent  in  view  of  s.  112  of  the  Indian Evidence Act, No. 1 of 1872, had not been discharged in this case and it had not been proved that Rangaswami Chettiar had no  access  to Lakshmiammal on or about the  time  when  the plaintiff-respondent  could  have been  conceived.   On  the question  of the gift deed, the High Court held  that  Hindu law did not permit a husband to gift joint family  immovable

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property to his wife in 3 56 the  circumstances in which the gift was made in this  case. The High Court therefore dismissed the appeal so far as  the stepmothers of the plaintiff-respondent were concerned.  The High  Court however allowed the appeal of defendants Nos.  4 and  5 who were the brothers of the two step-mothers of  the plaintiffrespondent  and set aside the decree of  the  trial court  with  respect  to  them  by  which  they  were   made accountable.   There  was also a crossobjection  before  the High Court with respect to certain properties which were  in the possession of the sixth defendant.  That  crossobjection was  dismissed on the ground that  the  plaintiff-respondent had failed to prove that those properties were joint  family properties left by Rangaswami Chettiar.  Thereafter the  two widows  who  are the appellants before us  applied  for  and obtained a certificate to appeal to this Court as the decree of the High Court was that of variance, and that is how  the matter has come before us. The two main questions which have been argued before us are-               (i)   whether the plaintiff-respondent was the               son of Rangaswami Chettiar, and               (ii)  whether the deed of gift was valid. So  far  as  the first question is  concerned,  there  is  a concurrent finding of the trial court as well as of the High Court that the plaintiffrespondent is the son of  Rangaswami Chettiar.    Ordinarily  therefore  this  Court  would   not interfere  with this concurrent finding of fact.  But it  is urged  that  the High Court did not accept the  evidence  on this  point in the same measure as the trial court did,  and that there are circumstances which should have led the  High Court (when it did not accept the evidence in full) to  hold that  the plaintiffrespondent was not the son of  Rangaswami Chettiar.  It is also urged that the High Court was in error in  holding on the basis of s. 112 of the Evidence Act  that the paternity of the plaintiff-respon,dent had been  proved. We are of opinion that there is no force in this contention. The  main evidence on behalf of the plaintiffrespondent  was that  of  his mother, Lakshmiammal.  On the other  hand  the appellants relied on the notice sent by Rangaswami  Chattiar to  Lakshmiammal  denying the paternity  of  the  plaintiff- respondent,  and it is urged that a notice of this  kind  is very  strong  evidence rebutting the  presumption  that  the plaintiff-respondent is the son of Rangaswami Chettiar,  and this  is  particularly  so  in  the  present  case   because Rangaswami  Chettiar  was  keen on having  a  -son  and  had married four times for that purpose.  He would not have thus denied  the paternity of the son ]born to his third wife  in the circumstances if that was true.  The High Court was  not oblivious  of  the force of these  circumstances.   But  the evidence of Lakshmiammal was that she never quarrelled  with her  husband and that her husband married again because  she did not give birth to a 357 child  for  about three years, and the  fourth  marriage  of Rangaswami  Chettiar took place with her consent.  She  also said that she had not left the house of Rangaswami  Chettiar and  that the plaintiffrespondent was Rangaswami  Chettiar’s son.   She  further said that her  co-wives  became  jealous after  the birth of the plaintiffrespondent to her and  that is  why  they influenced Rangaswami  Chettiar  against  her. This  evidence  was relied upon by the trial court  and  the High  Court has not disbelieved it.  It is also in  evidence that  Lakshmiammal was living in her father’s house  in  the same  village as Rangaswami Chettiar, even according to  the

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appellants’ witnesses and that Lakshmiammal’s father’s house was  only a furlong away from Rangaswami  Chettiar’s  house. It  was  in these circumstances that the High Court  had  to consider the question whether the heavy burden which lies on a  person  denying  the paternity of  a  child  born  during wedlock  had  been discharged.  It is true  that  Rangaswami Chettiar  had given the notice to Lakshmiammal in  which  he denied  the paternity of the plaintiff-respondent; but  that notice stands in no better position than would have been the statement  of Rangaswami Chettiar even if he was alive  when this suit was fought out in the trial court.  Section 112 is in these terms-               "The fact that any person was born during  the               continuance  of a valid marriage  between  his               mother and any man, or within two hundred  and               eighty days after its dissolution, the  mother               remaining unmarried, shall be conclusive proof               that  he  is the legitimate son of  that  man,               unless it can be shown that the parties to the               marriage  had no access to each other  at  any               time when he could have been begotten." It  raises inter alia a conclusive presumption that a  child born during the continuance of a valid marriage between  his mother  and any man is the legitimate son of that  man,  and this  conclusive presumption can only be rebutted if  it  is shown that the parties to the marriage had no access to each other  at  any time when he could have been  begotten.   The appellants  therefore had to prove, as  Rangaswami  Chettiar would  have had to prove even if he was alive when the  suit was fought out in the trial court, that he had no access  to Lakshmiammal at any time when the plaintiff-respondent could have been begotten.  We have already said that even  accord- ing  to  the  appellants Lakshmiammal was  only  living  one furlong  away  in her father’s house from  where  Rangaswami Chettiar  was living.  In these circumstances  the  evidence produced in the present suit falls far short of proving that Rangaswami  Chettiar  had no access to Lakshmiammal  at  any time when the plaintiff-respondent could have been begotten. We  have therefore no hesitation in agreeing with  the  High Court,  particularly  taking into account  the  evidence  of Lakshmiammal  which  has not been disbelieved  by  the  High Court,  that the appellants had completely failed  to  prove non- 358 access  of Rangaswami Chettiar to Lakshmiammal at  any  time when the plaintiff-respondent could have been begotten.   In these  circumstances there is no reason for us to  interfere with  the concurrent finding of fact as to the paternity  of the  plaintiff-respondent  and  we  hold  that  he  is   the legitimate son of Rangaswami Chettiar. This  brings us to the question of the validity of the  gift deed  ill favour of Ammathayee.  The gift deed  begins  with the following recital:               "As  you happened to be my second wife and  in               accordance with the promise made to you by  my               father, K. K. Ramasami Chettiar at the time of               my  marriage  with you, and according  to  the               directions  given  to  me also  to  execute  a               document  in  your favour and also  in  consi-               deration  of the affection you are having  for               me, and your obedient nature" and  then  follow  the  words making  the  gift  of  certain immovable properties in her favour.  According to the donee- appellant,  the value of this immovable property  was  about one-tenth   of  the  entire  property  left  by   Rangaswami

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Chettiar.  The argument on behalf of the donee-appellant  is that the gift was valid as it was of a reasonable portion of the  immovable  property, firstly because it was made  by  a husband  in favour of a wife out of love and affection,  and secondly because it was made by her husband to carry out the pious obligation that lay on him to fulfil the wishes of his father  to  make some provision for  Ammathayee,  which  his father had indicated at the time of her marriage. Hindu law on the question of gifts of ancestral property  is well-settled.   So  far  as movable  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 movable 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. 252).  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 359 marriage,  and  the same can also be done by the  mother  in case  the  father  is dead: [see Kamala Devi  v.  Bachu  Lal Gupta. (1)] In  Guramma Bhratar Chanbassappa Deshmukh v. Malappa,(2)  it was  observed  by  this  Court that  "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.  The 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  of the family.  By custom or by  convenience, 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 ........ Marriage  is only  a customary occasion for such a gift.  But  the  moral obligation can be discharged at any time, either during  the life time of the father or thereafter." 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. As  to  the contention that Rangaswami Chettiar  was  merely carrying  out his father’s wishes when he made this gift  in favour of his wife and that act of his was a matter of pious obligation laid on him by his father, we are of opinion that no gift of ancestral immovable property can be made on  such a ground.  Even the father-in-law, if he had desired to make

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a  gift at the time of the marriage of his  daughter-in-law, would  not  be  competent  to do  so  insofar  as  immovable ancestral property is concerned.  No case in support of  the proposition  that  a  father-in-law  can  make  a  gift   of ancestral  immovable property in favour of his  daughter-in- law at the time of her marriage has been cited.  There is in our  opinion no authority to support such a  proposition  in Hindu law.  As already observed, a Hindu father or any other managing  member has power to make a gift within  reasonable limits  of ancestral immovable property for pious  purposes, and  we  cannot see how a gift by the father-in-law  to  the daughter-in-law  at the time of marriage can by any  stretch of reasoning be called a pious purpose, whatever may be  the position of a gift by the father or his representative to  a daughter  at the time of her marriage.  One  can  understand such a gift being made to a daughter when she is leaving the (1) [1957] S.C.R. 452. (2) (1964) 4 S.C.R. 497. 360 family  of her father.  As it is the duty of the  father  or his representative to marry the daughter, such a gift may be and  has been held by this Court to be for a pious  purpose. But we see no pious purpose for such a gift by a  father-in- law  in  favour  of  his  daughter-in-law  at  the  time  of marriage.  As a matter of fact the daughterin-law becomes  a member of the family of her father-in-law after marriage and she would be entitled after marriage in her own right to the ancestral  immovable property in certain circumstances,  and clearly  therefore  her  case stands  on  a  very  different footing from the case of a daughter who is being married and to  whom a reasonable gift of ancestral  immovable  property can be made as held by this Court. Learned  counsel for the donee-appellant further  refers  to the fact that gifts made in token of love by her  father-in- law  to  a  daughter-in-law are  permitted  and  become  her stridhan property.  That is so.  But that does not mean that a  father-in-law  is entitled to make a  gift  of  ancestral immovable  property to a daughter-inlaw so as to convert  it into  her  stridhan.  Generally such gifts  are  of  movable property.   But even if gifts of immovable property in  such circumstances  are possible,the two provisions must be  read harmoniously.   If  therefore Hindu law does  not  permit  a father-inlaw to make a gift of ancestral immovable  property to  his  daughterin-law,  he cannot make  such  a  gift  for purposes of stridhan.  Further if gifts by the father-in-law to  the daughter-in-law which become stridhan include  gifts of immovable property, they can only refer to such immovable property as is not ancestral immovable property, for that is the only way in which the two provisions can be  reconciled. We have therefore no difficulty in holding that there is  no warrant  in Hindu law in support of the proposition  that  a father-in4aw can make a gift of ancestral immovable property to  a daughter-in-law at the time of her marriage.  If  that is  so,  we cannot see how what  the  father-in-law  himself could  not do could be made into a pious obligation  on  the son as is claimed in this case, for that would be permitting indirectly  what is not permitted under Hindu law  directly. Further  in any case gifts of ancestral  immovable  property can  only  be  for  pious purposes,  and  we  doubt  whether carrying out the directions of the father-in-law and  making a  gift in consequence can be said to be a gift for a  pious purpose,  specially when the fatherin-law himself could  not make  such  a gift.  We are therefore of opinion  that  this gift cannot be upheld on the ground that Rangaswami Chettiar had merely carried out the wishes of his father indicated on

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the occasion of the marriage of Ammathayee. The  appeal  therefore fails and is  hereby  dismissed  with costs to to the plaintiff-respondent. Before  we  part with this appeal, we should like  to  refer briefly to the case of Natarajan Chettiar who was  defendant No. 6 in the 361 trial court and is respondent No. 3 before us.  He was  made a party with respect to certain properties in schedule D  to the plaint.  His case was that the properties in schedule  D were  not liable to be partitioned.  This contention of  his was upheld by the trial court.  That is why the decree  does not provide for partition of D schedule properties.  It  was therefore unnecessary for the appellants to make him a party to  the  present appeal unless the appellants  claimed  some relief against him.  Learned counsel for the appellants  has stated  that  no relief is being claimed  against  Natarajan Chettiar respondent No. 3. The appeal therefore must fail as against  Natarajan Chettiar who will get his costs from  the appellants but no hearing fee. Further  among  the properties to be divided  where  a  gold chain (item 6) and certain promissory notes (items Nos. 2 to 4)  of  schedule B. The trial court held that there  was  no proof that these items existed.  In the decree however  this has not been made quite clear.  We therefore direct that the trial  court will correct the decree to bring it  into  line with its finding on these items. G. C.                                          Appeal dismissed. 362