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PETITIONER: KAMALA DEVI

       Vs.

RESPONDENT: BACHU LAL GUPTA

DATE OF JUDGMENT: 29/01/1957

BENCH: DAS, S.K. BENCH: DAS, S.K. DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.

CITATION:  1957 AIR  434            1957 SCR  452

ACT: Hindu  Law--Gift of immoveable Property by  widow-Daughter’s marriage   dowry-Ante-nuptial  Promise-Deed   executed   and registered   after  marriage-Validity-If  binding   on   the reversioners- Transfer of Property Act.(IV of 1882), S. 123- Hindus Succession Act, 1956 (XXX of 1956), s. 14.

HEADNOTE: In  fulfilment  of  an  ante-nuptial  promise  made  on  the occasion  of the settlement of the terms of marriage of  her daughter,  a Hindu widow, governed by the Benares School  of Hindu Law, executed a registered deed of gift in respect  Of 4  houses  allotted to her share by a partition  decree,  in favour of her daughter as her marriage dowry about two years after the marriage.  The partition decree gave her a,  right to  the income, but no right to part with the corpus of  the property  to the prejudice of the reversioners.   Her  step- sons brought a suit for a declaration that the deed of  gift was  void and inoperative beyond her lifetime and could  not bind  the  reversioners.  The trial -court  found  that  the gifted  properties constituted a reasonable portion  of  the estate, but that the gift not having been made at 453 the  time  of the marriage or on the occasion of  the  Gowna (Dwiragaman)  ceremony in accordance with the provisions  of s. I 23 Of the Transfer of Property Act, was not binding  on the  reversioners  beyond  the lifetime  of  the  widow  and decreed  the suit.  The High Court found that the widow  had made the ante-nuptial promise, but that the gift having been made  about  two  years  after the  marriage  or  the  Gowna ceremony,  the  provisions of the Transfer of  Property  Act relating  to gifts stood in the way of considering the  same as  having  been made on the occasion of  the  marriage  but implemented  later, and affirmed the decision of  the  trial court, although the gifted houses were found to constitute a reasonable portion of her husband’s estate.  The contentions in  appeal on behalf of the widow and the daughter were  (1) that  the  widow  had the power in Hindu Law,  as  it  stood before  the enactment of the Hindu Succession Act, 1956,  to execute  the deed of gift in question and (2) that s. 14  Of the  said Act bad the effect of making them full  owners  of

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the property in suit. Held,  that the deed of gift in favour of the  daughter  was valid in law and binding on the reversioners and the  appeal must succeed. Under the Benares School of Hindu Law, as it stood prior  to the  enactment  of the Hindu Succession Act, 1956,  as  also under  the partition decree, the properties allotted to  the widow  constituted her widow’s estate as on inheritance  and she had no absolute right of disposal over them. Bhugwandeen  Doobey  v. Myna Baee, (1868) II M. 1.  A,  487, referred to. Debi Mangal Prasad Singh v. Mahadeo Prasad Singh, (1912)  L. R. 39 1. A. 121, followed. In  Hindu Law the marriage of a daughter is a pious act  and confers  direct spiritual benefit on the father and a  widow has the power to make a gift of a reasonable portion of  her husband’s  estate  as marriage dowry to the  daughter,  even after  the  marriage,  in  fulfilment  of  an   ante-nuptial promise,  whether she makes the I sankalpa ’ at the time  of the marriage or not. Ganga  Bisheshar v. Pirthi Pal, (1880) 1. L. R. 2 All.  635, disapproved. Case-law reviewed. This power of the widow is one conferred on her by Hindu Law and  is  not  affected by the provisions of s.  123  of  the Transfer  of  Property Act, though the gift  to  be  legally effective  must  be made in the manner  prescribed  by  that section. Although  there is no doubt that sub-s. (1) Of s. 14 Of  the Hindu Succession Act, 1956, gives a retrospective  operation to  the provisions of that section so as to make  a  fermale Hindu a      454 full  owner  of  immoveable property acquired  either  at  a partition  or  by way of gift, it is not  necessary  in  the present  case to examine the true nature and scope of s.  14 Of the Act.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 158 of 1953. Appeal  by special leave from the judgment and decree  dated April  6,  1950, of the Calcutta High Court in  appeal  from original  decree No. 166 of 1944 arising out of  the  decree dated June 30, 1943, of the Court of the Subordinate  Judge, Asansol, in Title Suit No. 2 of 1942. Ramanugrah Prasad and Mohan Beharilal, for the appellants. H.   J.  Umrigar and S. P.  Varma, for respondents  Nos.   I and 2. 1957.  January 29.  The Judgment of the Court was  delivered by S.   K.  DAS J.-This is an appeal by special leave from  the judgment  and  decree of the High Court of  Calcutta,  dated April  6,  1950, by which the said High Court  affirmed  the judgment  and  decree of the Subordinate  Judge  of  Asansol dated June 30, 1943, in Title Suit No. 2 of 1942.  The  suit was instituted by the four sons of one Ram Kishori Lal  Sao, a resident of Asansol in Bengal, who died in September 1927. One of the plaintiffs, Kalicharan, died during the  pendency of  the  suit and his heirs were brought on  the  record  as plaintiffs in his stead.  The defendants were Sumitra  Devi, widow  of  the late Ram Kishori Lal, (defendant No.  1)  and Kamala Devi, daughter of the late Ram Kishori Lal (defendant -No.  2).  The said defendants, I and 2, are the  appellants

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before us. The  suit  was instituted for a declaration that a  deed  of gift  dated  March  10, 1940, executed by  Sumitra  Devi  in favour of her daughter Kamala Devi, 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:                             455 Ram Kishori Lal 3rd wife                  4th wife              5th wife                                       Sumitra Devi (Deft. 1) Kalicharan(Plff.3) Rambandhu BachuLal     Heman Lal died during pen:    (plff. 4) (Plff. 1)(Plff. 2) dency of the suit- Mst. Ram Sakhi           (Plff. 3 gha) Satyanarain    HiralalGopal Lachmi Narain Kamala Devi (Plff.  3 Ka) (Plff. 3 Kha) (Plff- 3 Ga) (died on  I  -I-36) (Deft. 2) On his death, Ram Kishori Lal had left extensive  properties worth  several lakhs, including some houses in Asansol,  two businesses at Howrah and Asansol, 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 step. sons 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 Rs. 10,000 as  expenses  for the marriage of the minor daughter Kamala, in addition to  a maintenance  allowance of Rs. 50 per month to her until  she was  married.   Lachmi Narain, it should be noted,  died  on January  1,  1936.  By the final decree’ each  of  the  sons obtained  one-sixth share of the estate of Ram Kishori  Lal. By  reason  of the death of Lachmi Narain before  the  final decree, Sumitra Devi got one-third share of the estate, one- sixth  in her capacity as widow and one-sixth as the  mother of her pre-deceased son.  The allotment in favour of Sumitra Devi  consisted  mostly of house properties,  and  the  four houses  of  her share with which we are  concerned  in  this litigation  were described in a schedule to the  plaint  and stood on Municipal Holding Nos. 116, 17, 26 and 27 of Circle 4  of  the Asansol Municipality.  The value  of  these  four houses  was  found  by  the  Commissioner  at  the  time  of partition to be in the neighbourhood of Rs. 19,000 only. 59 456 The marriage of Kamala Devi was settled with one Bijoy Kumar Sao, son of Nand Lal Sao, a retired Deputy Postmaster, Patna General  Post Office.  The case of the appellants  was  that the marriage was settled at Deoghar on Shivratri day in 1938 and  the plaintiffs, respondents before us, had  no  concern with the negotiation ; it was alleged that the terms of  the marriage settlement included a promise by Sumitra Devi of  a gift  of four houses at Asansol, worth about Rs.  20,000  as marriage  dowry  for  Kamala.   The  further  case  of   the appellants  was  that at the time of  the  marriage  itself, which  was  performed on May 10, 1938, Sumitra Devi  made  a "sankalpa" of the gift of four houses at Asansol, which  was accepted  by Nand Lal Sao on behalf of Kamala, and the  gift was  later  confirmed  on the  occasion  of  the  Dwiragaman (Gowna)  ceremony  which took place in December,  1938,  and possession  of the houses was also given to her; soon  after

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the marriage, however, Sumitra Devi feel ill and the deed of gift was actually executed and registered on March 10, 1940, some  two  years after the marriage.  This was the  deed  of gift which was impugned by the plaintiffs-respondents. The case of the plaintiffs-respondents was that the marriage negotiations  took place at Asansol and did not contain  any promise  of the gift of four houses as marriage dowry.   The plaintiffs-respondents  alleged that the  arrangements  were that  ornaments  worth about Rs. 5,000 were to be  given  to Kamala  Devi, a sum of Rs. 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 Rs. 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 457 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 wag also alleged that Sumitra Devi was  not legally  competent to make a gift, as marriage dowry of  her daughter,  of  such a big and unreasonable  portion  of  the estate left by her husband. On  the  aforesaid pleadings of the parties,  the  principal issues were Issues Nos. 2 and 3 which were in these terms: "2. Is the defendant No. I competent to make any gift of the properties  mentioned in the plaint beyond her  lifetime  to defendant  No.  2 ? Is it void and inoperative  against  the plaintiffs beyond the lifetime of defendant No. I ? 3.   Is  the  deed of gift executed by defendant  No.  I  in favour  of  defendant No. 2 with the alleged  collusive  and fraudulent  allegations  binding on the  plaintiffs  on  her death ?" It is necessary now to summarise the findings of the  Courts below on these issues.  On the questions of fact involved in the  two issues, the learned Subordinate Judge came  to  the following  findings  : (1) the marriage of Kamala  Devi  was settled at Deoghar as claimed by Mst.  Sumitra Devi and  not At  Asansol; (2) there was, however, no promise of any  gift by  her of four houses at Asansol either at the time of  the settlement  of the marriage terms at Deoghar or  during  the marriage  ceremony;  (3)  the  story  of  the  delivery   of possession of the houses to Kamala Devi was not supported by reliable  evidence.   Basing his decision on  the  aforesaid findings  of fact, the learned Subordinate Judge’ held  that the interest created in favour of Sumitra Devi in respect of the  properties  allotted  to her on partition  was  in  the nature of an ordinary maintenance grant and she had no right to alienate the same in favour of her daughter.  Even if she had the limited right of 458 disposal,  as  in  the case of a Hindu widow,  she  was  not competent to execute any deed of gift, except with regard to a  reasonable  portion of the estate of her husband  at  the time  of the marriage of Kamala Devi or on the  occasion  of

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the  Gowna ceremony.  Though the learned  Subordinate  Judge found that the properties given to Kamala Devi constituted a reasonable portion of the estate, he held that the gift  not having  been  made  at the time of the marriage  or  on  the occasion of the Gowna ceremony in accordance with the provi- sions  of s. 123, Transfer of Property Act, was not  binding on  the plaintiffs-respondents and could not operate  beyond the  lifetime of Sumitra Devi.  He accordingly  decreed  the suit. The  learned  Judges  of  the  High  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 Rs. 5,000, (b) a sum of Rs. 800 would  be  paid for  meeting the expenses of travelling of the  bridegroom’s party  from Patna to Asansol, (e) a sum of Rs. 51  would  be paid for the Tilak ceremony and (d) a gift of four houses at Asansol, worth about Rs. 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   subjectmatter   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  bride  was  given  in marriage  and the question of confirming such a gift at  the Gowna  ceremony  did  not therefore arise; (4)  it  was  not proved  by  reliable  evidence that the  possession  of  the houses in question, was made over to Kamala Devi before  the actual execution of 459 the  deed of gift.  Relying on the decision in  Debi  Mangal Prasad Singh v. Mahadeo Prasad Singh (1), the learned Judges of the High Court pointed out that even in cases governed by the  Mitakshara  (the parties in this  case  are  admittedly governed by the Benares school of Mitakshara law) the  share allotted  to Sumitra Devi on partition was not her  stridhan but  stood on the same footing as property inherited by  her from  her husband and that on her death the  property  would pass not to her stridhan heirs but to the sons or grandsons. The learned Judges then referred to the decision in Churaman Sahu  v.  Go  pi Sahu(2) and observed  that  though  it  was competent for a Hindu widow, governed by the Mitakshara,  to make a valid gift of a reasonable portion of the  immoveable property  of her husband to her daughter subsequent  to  the marriage ceremony, the gift in Churaman Sahu’s case was made at  the  time of the Dwiragaman (Gowna) ceremony  which  was really  a part of the marriage ceremony, while the -gift  in the present case was made some two years after the marriage. They then said: "In the case now before us the marriage  and the  Gowna ceremony took place in 1938 and the document  was executed in March 1940, the lapse of time between the two is too  great  to describe the gift to have been  made  on  the occasion  of either the marriage or the Gowna ceremony.   No authority  had been placed before us supporting a gift by  a widow to a daughter except at the time or on the occasion of marriage  ceremony.   The  ante-nuptial  promise  cannot  be regarded  as a gift having been made on the occasion of  the marriage.   Had it not been for the provisions contained  in the  Transfer of Property Act governing the Law of Gifts  it

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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 view of the strict provisions  of the  Transfer of Property Act we can only consider the  gift to have been made at the time when the deed was executed and registered."  On the question whether the gift in favour  of Kamala Devi by Sumitra Devi (I) (1912) L.R. 39 I.A. 121. (2) [1909] I.L.R. 37 Cal. 1. 460 was of a reasonable portion of her husband’s properties, the learned Judges observed: " In the present case, the value of the houses gifted was just above Rs. 18,000 which was  about a  fourth of the value of each share allotted  (viz.,  above Rs.  73,000).  Even if the provision of Rs. 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. 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 finding has been impeached on the ground of a serious  error of record said to have been committed by  the High  Court  and  on  the  ground  of  non-consideration  of relevant  evidence.  It has been argued before us  that  the proper  finding  should have been that Sumitra Devi  made  a "sankalpa " of the gift of the four houses in question after the  Sampradan ceremony on the occasion of the  marriage  of Kamala  Devi and that the gift was accepted by Nand  Lal  on behalf of his minor daughter-in-law and that such a gift was again confirmed at the Gowna ceremony.  The main contentions of  law are three in number: firstly, it has been  contended that even accepting the findings of the final Court of  fact as  correct, the gift being of a reasonable portion  of  the estate  of  Ram  Kishori  Lal  Sao  and  in  pursuance   and fulfilment of an ante-nuptial agreement made by Sumitra Devi at  the  time  of  the  final  settlement  of  the  marriage negotiations at Deoghar, was for the spiritual 461 benefit of Ram Kishori Lal and valid in Hindu law; any  such lapse of time as occurred in the execution and  registration of the deed of gift was immaterial, if the deed of gift  was in fulfilment of the moral obligation flowing from the ante- nuptial  agreement; secondly, it was suggested that  Sumitra Devi got an absolute right in the properties given to her as her  share  on partition; thirdly, a reference was  made  to section 14 of the Hindu Succession Act, 1956 and it has been argued  that in view of the said provisions the  plaintiffs- respondents  were  not entitled to the  reliefs  which  they claimed.   It may be stated here that arguments in the  case had  concluded  before  the  Court  closed  for  the  annual vacation   in  1956  and  during  the  vacation  the   Hindu Succession Act, 1956, came into force on June 17, 1956.   On an application filed by the appellants, fresh arguments were heard  with regard to the provisions of s. 14 of  the  Hindu Succession Act, 1956.

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We proceed now to deal with the contentions in the order  in which   we  have  stated  them.   First,  we  take  up   the contentions with regard to the findings of fact referred  to above.   It  has  been pointed out to us  that  the  learned Judges  of the High Court made a serious error of record  in dealing with the oral evidence as to the verbal gift said to have  been made at the time of the marriage of  Kamala  Devi and  the acceptance of ,such a gift by Nand Lal,  father-in- law  of Kamala Devi.  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 Sharma (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 462 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 made a "sankalpa" of the gift of four houses; this was  con- veyed  by  Ganapati  Sastri who recited  "mantras"  and  was accepted by Nand Lal.  It is unfortunate that the High Court confused  Parasuram Sharma (witness No. 16)  with  Pashupati Sarkar  (witness  No. 10), with the  result  that  Parasuram Sharma’s  evidence was not properly considered by  the  High Court.  This defect in the consideration of the evidence  by the  High  Court  is  undoubtedly  there.   The  point   for consideration  is  if  this  is  a  Sufficient  ground   for departure  from  the ordinary rule of this Court not  to  go behind the findings of fact arrived at by the Courts  below. Though the mistake made is unfortunate, we do not think that it is sufficient to disturb the finding of the Courts  below or even to re-open the finding at this stage.  It is  worthy of  note that the learned Subordinate Judge made no  mistake about  Pashupati  and Parasuram.  He pointed  out  that  the witnesses  examined on behalf of the appellants with  regard to  the  verbal  gift at the time of the  marriage  and  its acceptance by Nand Lal, were mostly interested witnesses and none  of  them  were  really  independent.   Even  Parasuram Sharma, whose evidence has been placed before us by  learned counsel for the appellants, cannot be said to be  completely independent.   He  was invited to attend the marriage  as  a member  of  the  bridegroom’s  party and  he  said  that  he Overheard  Sumitra  Devi  saying  that  she  was  making   a "sankalpa"  of the gift of four houses as promised  evidence which is not of a very satisfactory nature.  There were many other  criticisms of the evidence regarding the verbal  gift at the time of the marriage; the learned Judges of the  High Court  have referred to these criticisms and  they  accepted some of them, One                             463 of  the  criticisms which greatly weighed with  the  learned Subordinate  Judge was the absence of any reference  to  the gift  of  four houses in contemporaneous  Court  proceedings

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with regard to the withdrawal of Rs. 10,000 by Sumitra Devi, the sum which was set apart by the partition decree for  the marriage  expenses of Kamala Devi.  This criticism was  not, however,  fully accepted by the learned Judges of  the  High Court  who  placed greater reliance on the evidence  of  Rai Saheb  Jogendra Nath Roy (witness No. 14) who was  the  most respectable  and reliable witness examined on behalf of  the appellants.   The  evidence of this- 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. 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 think that the considerstion  of the  oral  evidence by the High Court is open to  any  other serious criticism.  The learned Judges rightly pointed out a serious  discrepancy which existed between the  evidence  of Kamal  Narayan Pandey (witness No. 8), who is said  to  have acted  as the priest for the marriage, and the  evidence  of other witnesses with regard to the "lagan" or time 6o 60 464 of  marriage.   Taking  all these  circumstances  into  con- sideration,  we do not think that we shall be  justified  in going  behind the finding of the Courts below that  )la  the appellants had failed to prove by satisfactory evidence that Mst.  Sumitra Devi made a verbal gift of the four houses  in question at the time of the marriage of her daughter  Kamala Devi and that such a gift was accepted by Nand Lal on behalf of  his minor daughterin-law.  In view of this finding,  the question  as to whether the gift was again confirmed at  the time of the Gowna ceremony does not really arise.  There can be  no  confirmation  of an act which did  not  itself  take place. As  the appellants have impeached the finding of the  Courts below with regard to the verbal gift said to have been  made at  the  time  of the marriage, the  respondents  have  also impeached  before us the finding of the High Court about  an ante-nuptial  agreement said to have been made  at  Deoghar. It has been contended by learned counsel for the respondents that  there were no compelling reasons for the  High  Court, which   was  the  appellate  Court,  to  differ   from   the appreciation of the oral evidence by the learned Subordinate Judge,  who had the advantage of seeing the witnesses,  with regard to the question of the ante-nuptial agreement said to have  been  made at Deoghar.  It is true  that  the  learned Subordinate  Judge  did  not  accept  the  evidence  of  the witnesses  who testified to the terms of settlement  of  the marriage negotiations at Deoghar.  What tipped the scale  in favour  of the finding arrived at by the High Court on  this

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point  was  the  evidence of Rai  Sahib  Jogendra  Nath  Roy (witness  No.  14).   The  learned  Subordinate  Judge  gave certain  reasons  for  not accepting the  evidence  of  this witness.   The learned Judges of the High  Court  considered those  reasons very carefully and rightly pointed  out  that there  were  no  good grounds for thinking  that  Rai  Saheb Jogendra Nath Roy had fallen a victim to lapse of memory  or for holding that he was an interested witness.  The evidence of Rai Sabeb Jogendra Nath Roy was considered in the context of  contemporaneous Court proceedings for the withdrawal  of Rs. 10,000 and the learned Judges                             465 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  Rs. 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 Rs. 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. 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 whether the share allotted  to a  mother on partition is stridhan or not, according to  the Benares  school,  was left open by their  Lordships  of  the Privy  Council  in Bhugwandeen Doobey v. Myna  Baee(1),  the very  case in which they held that property inherited  by  a woman was not stridhan according to the Mitakshara.  In Debi Mangal  Prasad  Singh  v.  Mahadeo  Prasad  Singh  (2),  the Allahabad High Court, after a review of all the  authorities on  the subject, held that it was stridhan ; but  the  Privy Council  held that it stood on the same footing as  property inherited  by  a woman and that it was  not  stridhan.   The actual  point decided in Debi Mangal Prasad’s case was  that there  was no substantial difference in principle between  a woman’s  property acquired by inheritance and that  acquired by  partition.   It  is worthy of note  that  the  partition decree  proceeded on the footing that Sumitra Devi would  be entitled  to the income from the properties allotted to  her but   should  not  be  in  a  position  to   prejudice   the reversioners  by  destroying the  corpus.   The  preliminary decree  for partition stated: "The Commissioner  is  further directed to allot as little liquid (1) [1863] M.I.A.487,514. (2) (1912) L.  R. 39 I.A. 121. 466 cash  to  the  share of plaintiff No. 2  (Sumitra  Devi)  as possible  on  partition  and as a  rule  should  allot  such properties  to  her share of which she  may  receive  income without  trouble, but may not prejudice the reversioners  by destroying  the corpus ". It follows, therefore, that  under the Mitakshara law and also under the partition decree, Mst. Sumitra  Devi did not have an absolute right or interest  in the share allotted to her on partition.  Under the  decision in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh (1), the property  allotted to Mst.  Sumitra Devi on partition  stood on  the same footing as property inherited by her  from  her

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husband.   She  had  no absolute right of  disposal  of  the property. This  brings  us to a consideration of the  principal  point argued  before  us  on behalf  of  the  appellants,  namely, whether  Sumitra  Devi  was competent to make a  gift  of  a reasonable  portion  of  the estate of her  husband  to  her daughter  Kamala, Devi as a marriage dowry in pursuance  and fulfilment  of  an ante-nuptial agreement, even  though  the gift  was made some two years after the  marriage  ceremony. This  point was urged before us, as we have already  stated, prior  to  and irrespective of the enactment  of  the  Hindu Succession  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. 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  Rs.  19,000,  was  not disproportionate  or unreasonable if one had regard  to  the large extent of properties left by ’Rain Kishori Lal Sao  on his  death; this was so even taking into  consideration  the sum  of  Rs.  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 (1)  (1912) L.R. 39 I.A. 121. 467 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.  There are a number of decisions bearing on the question, to which  our attention has been drawn by learned  counsel  for the parties, and we propose now to examine some of them.  In Sardar Singh v. Kunj Behari Lal (1) it was observed:  "There can  be  no doubt upon a review of the Hindu law,  taken  in conjunction  with the decided cases, that the  Hindu  system recognises two sets of religious acts.  One is in connection with   the  actual  obsequies  of  the  deceased,  and   the periodical performance of the obsequial rites prescribed  in the  Hindu religious law, which are considered as  essential for  the salvation of the soul of the deceased.   The  other relates to acts which although not essential or  obligatory, are  still pious observances which conduce to the  bliss  of the  deceased’s soul.  In the later cases  this  distinction runs   clearly   through   the   views   of   the    learned judges..................  With reference to the first  class of  acts,  the  powers of the Hindu  female  who  holds  the property  are  wider than in respect of the acts  which  are simply pious and if performed are meritorious so far as they conduce  to the spiritual benefit of the deceased.   In  one case, if the income of the property, or the property itself, is not sufficient to cover the expenses, she is entitled  to sell the whole of it.  In the other case, she can alienate a small  portion of the property for the pious  or  charitable purpose  she  may have in view." In a very  early  decision, Cossi  Naut Bysack v. Hurroo Soondry Dossee (2), which  war, heard  by the Supreme Court at Calcutta in 1819 and  by  the Judicial  Committee -in 1826 and quoted in Churaman Sahu  v. Gopi  Sahu (3), it was stated by Lord Gifford that  a  Hindu widow  had  "  for certain purposes  a  clear  authority  to dispose  of  her  husband’s property and  might  do  it  for

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religious  purposes, including dowry to a  daughter."  There are  several texts which lay down that it is the  imperative religious duty and a moral obligation of a father, mother or other guardian to give a girl ’in marriage (1)  (1922) L. R. 49 I.A. 383, 391. (2)  2 Morley’s Digest 198. (3) (1909) I.L.R. 37 Cal. 1, 7. 468 before  she attains puberty.  Some of these texts have  been quoted  in Churaman Sahu’s case(1) and Ram Sumran Prasad  v. Gobind Das (2).  According to these texts, the marriage of a girl by her father is enjoined as a religious duty in  order to  prevent him from being degraded and visited with  sin  ; there is also direct spiritual benefit conferred 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 11, 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 (3)).   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 fulfilment   may   be  subsequent  to  the   marriage:   see Mitakshara,  Chapter  1, 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, who refuse to give it shall be  degraded." In  Placitum  I 1, it if; stated: "If it be  alleged,  that, here also the mention of a quarter is indeterminate, and the allotment  of property sufficient to defray the expenses  of the  nuptials  is all which is meant to  be  expressed:  the answer is no; for there is not any proof, that the allotment of a quarter of a share is indefinite in both codes; and the withholding  of it is pronounced to be a sin."  In  Ramasami Ayyar v.Vengidusami Ayyar    (4),   it  was  observed   with reference  to the aforesaid passages in the Mitakshara,  and also to certain passagein the Smriti Chandrika, wherein  the texts  of Manu Yajnavalkya and other Smriti writers  dealing with the question of (1)  (1909) I.L.R. 37 Cal. 1, 7, (2)  [1926] I.L.R. 5 Pat. 646, 681. (3)  [1907] I.L.R. 32 Bom. 81. (4)  (1898) I.L.R. 22 Mad.113, 114. 469 allotment to be made by brothers to their maiden sisters  at the time of partition, were commented upon, that with regard to  the  true  meaning  of  those  texts  commentators  were divided:  some of them held that all that the texts mean  is that  funds required for the marriage of sisters  should  be provided   out   of   their  father’s   estate   but   other commentators,  Vijnaneswara  among  them,  laid  down   that inclusive  of their marriage expenses sisters were  entitled to  a  provision not exceeding a fourth of what  they  would have  got  had  they been males.  It  was  further  observed therein that it was not necessary to decide which of the two views  was  to be taken as law.  Subramania  Ayyar  J.  then said: "Assuming that, as argued for the appellant, the  view advocated by Vijnaneswara and his followers is not law,  the fact  that  so  high  an authority  as  the  author  of  the

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Mitakshara  propounds  a  rule  thus  favourable  to  maiden daughters ought to make one hesitate to accept as sound  the exceedingly  limited construction which was insisted  on  on behalf of the appellant and which can scarcely be said to be in  itself very reasonable, viz., that the texts  justify  a disbursement  out of the estate of only the price of  things required in connection with the celebration of the marriage. In my opinion, the better and sounder view is, as  contended for   the  respondents,  that  the  authorities  should   be Understood  to empower a qualified owner like Thaiyyu  Ammal to  do all acts proper and incidental to the marriage  of  a female according to the general practice of the community to which she belongs." It should be noted that the observations aforesaid  were  made  in  a case where  a  widow  gave  her daughter in marriage and at the time of the marriage made  a gift  of  a portion 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. In  Kudutamma  v. Narasimha Charyulu (1),  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 (1)  (1907) 17 M.L.J. 528, 531, 532. 470 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  not  in excess of the powers of the brother  and  cannot therefore be recalled by him or avoided by his son." Wallis, J. who concurred in the judgment, observed: "In such a  case there  was, I think, a strong moral obligation on the  joint family over the father as managing member to make a gift out of  the  joint  family  property  on  the  occasion  of  the marriages  either  to  the  girls  themselves  or  to  their husbands  as  a provision for them, and the  fact  that  the father maintained both the daughters and their husbands  out of the joint family property until his death may be regarded as a continuing recognition of such moral obligation.   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." In Churaman Sahu’s case (1), the gift was no  doubt made  on the  occasion  of the daughter’s gowna ceremony  which  took place  some two years after, the marriage, and it  was  held that  the  gowns  ceremony was  a  ceremony  of  importance, closely  connected  with the marriage, though it was  not  a ceremony  necessary to complete the marriage.  The gift  was upheld on that footing.  What is worthy of note, however, is (1)  [1909] I.L.R. 37 Cal.  I. 7. 471

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that  in Churaman Sahu’s case(1), the decision in  Kudutamma v.  Narasimha  Charyulu  (2) was approved, and  that  was  a decision  in  which  the gift was  made  subsequent  to  the marriage and not on the occasion of any particular ceremony. Sundararamayya  v. Sitamma (3) is another decision  of  some importance.  There the marriage took place about forty years before  the gift and there was no evidence that  the  father had  any intention to give any property at the time  of  the marriage.   The question was if in those  circumstances  the gift was valid.  After referring to the decision in Churaman Sahu  v.  Gopi Sahu (1) and Ramasami  Ayyar  v.  Vengidusami Ayyar (4), it was observed: "We see no reason to differ from these  two decisions.  The father or the widow is not  bound to  giver  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 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 (2).  The decision in Bhagwati Shukul v. Ram  Jatan Tewari(5) 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 (6).  The decision of the single  judge was upheld on the (1) (1909) I.L.R. 37 Cal.  1. 7.  (4) (1898) I.L.R. 22  Mad. 113, 113. (2)  (1907) 17 M.L.J. 528, 531, 532.  (5) A.I.R.  1922  All, 381. (3) (1911) I.L.R. 35 Mad. 628, 629 (6) (1922) I.L.R. 45 All. 297. 61 472 ground  that  in order to get the girl married, it was  "  a sheer  necessity " for the widow, to provide a dowry of  Rs. 500  or  its  equivalent by the gift of  the  property.  The property was very small in value, being in the neighbourhood of  Rs.  500  only, and where under  the  circumstances  the marriage of the girl into a suitable Brahmin family,  having regard  to  her blindness and  infirmity,  necessitated  the spending  of the equivalent in value of that property,  then the alienation was a " sheer legal necessity." It should  be observed  here that this decision is on its peculiar  facts, and  other  decisions  do  not  support  the  view  that  an alienation  of the entire property is permissible;  most  of the  decisions lay down that an alienation of  a  reasonable portion  of  the  property is  only  permissible.   What  is reasonable  must  depend on the facts and  circumstances  of each case. In  Vettor Ammal v. Pooch Ammal (1), the gift was made  some years after the marriage.  The gift was upheld and was  held to  be  reasonable  being  about  one-sixth  of  the   whole property.   In Sailabala v. Baikuntha Nath (2), a gift  made by a widow of twelve annas share of her husband’s estate  on the  occasion of the marriage of her daughter was  supported

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on  the ground that it was impossible to define  the  extent and  limit  of the widow’s power of  disposing  of  property inherited   by   her  because  it  must  depend   upon   the circumstances  of the disposition whenever such  disposition was made.  In Ram Sumran Prasad v. Gobind Das (3), the  gift was made on the 28th July, 1901, but the marriage took place in 1899, two years earlier.  The gift was made in  pursuance of  an earlier promise and a verbal declaration made at  the time of the Gantha Pakrai (catching hold of the skirt of the mother-in-law)   performed  during  the  marriage.   On   an exhaustive  review  of  the  decisions,  the  case  law  was summarised  -as  follows:  ’The  case  law  on  the  subject summarised above fully indicates the inclination of all  the High  Courts to uphold a gift by a widow of landed  property to her daughter or son-in-law (1)  (1911) 22 M.L.J. 321. (2)  A.I.R. 1926 Cal. 486, (3) [1926] T.L.R. 5 Pat. 646, 681. 473 on the occasion of the marriage or any ceremonies  connected with the marriage and that the promise made may be fulfilled afterwards;  and it is not essential to make a gift  at  the time  of  the marriage but that it may be  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  (1)  ". In Sithamahalakshmamma v. kotayya  (2),  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 imoveable 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  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  immoveable 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 those 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  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....In Pratap Kunwar    v.     Raj Bahadur Singh       (3)the marriage took (1) 2 Morley’s Digest 198.      (3) A.I.R. 1943 Oudh 316. (2)  A.L.R. 1936 Mad. 825, 827, 474 place.  in 1923 and the gift was made in 1926.   After  held that  examining  the evidence the learned Judges  Mst.   Raj Ruer, the widow in question, did not make any "sankalpa"  of the gift of fifteen villages at the on behalf of the time of her daughter’s marriage.  On behalf of the plaintiff it  was argued  before them that a Hindu widow could make a gift  of

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her   husband’s  immoveable property v at the  time  of  her marriage.  The  learned Judges repelled this contention  and held that the gift made by  Mst.  Raj Kuer in favour of  her daughter and son-in-law was valid, even though she did not make  a " sankalpa v. at the time of marriage.  In  Abhesang Tirabhai  v. Raisang(1) , it was held that gifts by a  Hindu widow  on the occasion of her daughter’s marriage are  valid as  they  are  understood in Hindu law  to  conduce  to  the spiritual  benefit  of  the widow’s  husband.  In  Ramalinga annavi v. Narayana Annavi(2), a father a made a gift to  his daughter of a sum of Rs. 5,000 and a usufructuary mortgage. As  against  the very large number of decisions  refered  to above,  the  only  decision which can be said  to  strike  a dissentient  note  is  the decision in  ganga  Bisheshar  v. Pirthi  Pal(3).  That was a case in which  one  Debi  Prasad executed  a  deed of gift of a certain share  in  a  certain village,  being  the ancestral 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 a  dowry  to  his daughter.  But I am  not  aware  that  the performace of such a promise be regarded as a lawful purpose justifying alienation alienation (1)  (1912) I4 Bom. L. R. 602. (2)  A.I.R. 1922 P. C. 201. (3) (1880) I. L. R. 2 All. 635, 638. 475 tinder 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  duty  and  the  promise to make  a  gift  to  the daughter  as  her  marriage  portion  created  a  moral   or religious obligation in fulfilment of which it was competent for  the father to execute a deed of gift in favour  of  the daughter of a reasonable portion of the estate. On  an examination of the decisions referred to  above,  the following   principles  clearly  emerge:  (1)  It   is   the imperative,  religious  duty  and a moral  obligation  of  a father, mother or other guardian to give a girl in  marriage to a suitable husband; it is a duty which must be  fulfilled to  prevent  degradation, and direct  spiritual  benefit  is conferred  upon the father by such a marriage. (2)  A  Hindu widow  in, possession of the estate of her deceased  husband can  make  an alienation for religious acts  which  are  not essential  or  obligatory but are  still  pious  observances which  conduce to the bliss of the deceased husband’s  soul. (3)  In  the case of essential or obligatory  acts,  if  the income  of  the  property  or the  property  itself  is  not sufficient  to cover the expenses, she is entitled  to  sell the  whole  of it; but for acts which are  pious  and  which conduce to the bliss of the deceased husband’s soul, she can alienate a reasonable portion of the property. (4) Gifts ’by a widow of landed property to her daughter or son-in-law  on the  occasion  of the marriage or any  ceremonies  connected

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with the marriage, are well recognised in Hindu law. (5)  If a  promise is made of such a gift for or at the time of  the marriage, that promise may be fulfilled afterwards and it is not essential to make a gift at the time of the marriage but it, may be made afterwards in fulfilment of the promise. (6) Some decisions 476 go  to  the  length  of holding that there  is  a  moral  or religious obligation of giving a portion of the joint family property for the benefit of the daughter and the son-in-law, and  a  gift made long after the marriage may  be  supported upon  the ground that the gift when made fulfils that  moral or religious obligation. In the case before us, it is not even necessary to go to the extent  to  which  the decisions covered by  the  last  item stated  above (item 6) have gone.  The finding of the  final Court of fact is that there was an antenuptial agreement  by Sumitra Devi that she would give four houses at Asansol,  of the value of Rs. 20,000, to her daughter as marriage  dowry. It  was  open to Sumitra Devi to fulfil 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.  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  immoveable  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 affect the power  of  a Hindu widow to make an alienation of a reasonable portion of her  husband’s estate in favour of the daughter as  marriage dowry.   That right is governed by Hindu law and it is  open to  a  widow  to make an effective gift  in  favour  of  her daughter                             477 subsequent to the marriage, if the conditions laid down  ,by Hindu law are fulfilled. For  the  reasons given above, we hold that  the  alienation made by Mst.  Sumitra Devi in favour of her daughter  Kamala Devi  on  March  10, ’1940, was valid  and  binding  on  the reversioners.   The  decision  of  the  High  Court  to  the contrary was erroneous in law. We  now turn to the Hindu Succession Act, 1956,  which  came into  force on June 17, 1956.  Section 14, on which  learned counsel for the appellants has relied, is in these terms: "  (1)  Any property possessed by a  female  Hindu,  whether acquired before or after the commencement of this Act, shall be  held by her as full owner thereof and not as  a  limited owner. Explanation.-In this sub-section, I property’ includes  both moveable and immoveable property acquired by a female  Hindu by  inheritance or devise, or at a partition, or in lieu  of maintenance  or arrears of maintenance, or by gift from  any

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person,  whether a relative or not, before, at or after  her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any  such  property  held by her  as  stridhana  immediately before the commencement of this Act. (2)  Nothing contained in sub-section (1) shall apply to any property  acquired  by way of gift or under a  will  or  any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument  or  the  decree,  order  or  award  prescribe  a restricted estate in such property- " There  is  no  doubt  that  by reason  of  the  use  of  the expression   "   whether  acquired  before  or   after   the commencement  of this Act " the section is retrospective  in effect.  The Explanation to the section shows that "property " includes immoveable property acquired by a female Hindu at a  partition or by gift from any person, whether a  relative or  not, before, at or after her marriage.  The argument  of learned  counsel  for the appellants is  two-fold.   He  has contended 478 ’that the four houses in question are now in the  possession of  Kamala Devi and under s. 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 B. 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 donee could not get a larger estate than what the donlor had in the property, if the view of Hindu law, as contended  for  by learned counsel for the  respondents,  is accepted  as correct; therefore, Kamal Devi is not  entitled to the benefit of sub-s. (1) of s. 14. We do not think that it is necessary to decide this case  on the  rival contentions presented to us with regard to a.  14 of  the -Hindu Succession Act, 1956.  We have  already  held that under Hindu law Mat.  Sumitra Devi could make a gift in favour of her daughter as marriage. dowry, two" years  after the marriage, in fulfilment of the ante-nuptial promise made by her and that. such a gift is binding on the reversioners. That being the position, it is unnecessary to decide in this case the true scope and effect of s.    14   of  the   Hindu Succession Act, 1956. For  the  reasons given above, we allow the appeal  and  set aside the judgment and decree of the Courts below.  The suit of  the  plaintiffs-respondents must be  dismissed  and  the appellants will be entitled to their costs throughout. Appeal allowed. 479