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CASE NO.: Appeal (civil)  16757 of 1996

PETITIONER: R. Kuppayee & Anr.                                               

RESPONDENT: Raja Gounder                                             

DATE OF JUDGMENT: 10/12/2003

BENCH: R.C. Lahoti & Ashok Bhan.

JUDGMENT: J U D G M E N T

BHAN, J.

               Aggrieved by the judgment and decree passed by the courts  below in dismissing the suit filed by the plaintiff-appellants (hereinafter  referred to as the "appellants"), the appellants have come up in this appeal.

               Shortly stated the facts are:

               The appellants are the daughters of the defendant-respondent  (hereinafter referred to as the "respondent").  By a registered settlement  deed, Exhibit A-1 dated 29th of August, 1985, the respondent hereinabove  settled an extent of 12 cents of land comprised in S.No.113/2, Thathagapatti  Village, Salem District in favour of the appellants. As per recitals in the  settlement deed, the settlement was made by the respondent out of natural  love and affection for the appellants and the possession of the property was  handed over to them on the day the settlement deed was executed.  The  schedule of settlement deed shows that the total extent of the property  owned by the family was 3.16 acres.  The gift was made of 12 cents along  with Mangalore tiled house standing on the gifted land.  It was also stated in  the settlement deed that in future neither the respondent nor any other male  or female heirs would have a right over the settled property.

               After nearly 5 years, on 22nd April, 1990, respondent and his  associates asked the appellants to vacate the property and tried to trespass  into the property.  Because of the attempt made by the respondent to trespass  into the property, the appellants filed the Original Suit No.451 of 1990 in the  Court of District Munsif, Salem seeking relief of restraining the respondent  and his associates from interfering with the appellant’s peaceful possession  and enjoyment of the suit property in any way by way of a permanent  injunction, or, for grant of relief deemed fit in the circumstances of the case.   Respondent resisted the suit and in the written statement filed by him, he  took the stand that he had not executed any settlement deed. That his son-in- law i.e., husband of appellant No.1 had purchased a house site and the  respondent was taken to the Registrar’s office to witness the sale deed. That  he was used to taking liquor and taking advantage of his addiction to liquor  the appellants and their respective husbands fraudulently by  misrepresentation instead got the sale deed executed from him. The property  in dispute being Joint Hindu Family property consisting of himself and his  son could not be gifted under any circumstances.                   In support of their respective pleas, the parties led their  evidences.  The appellant No.1 stepped into the witness box as PW-1.  She  admitted that the property was ancestral.  That her father had settled the  property on her and her sister of his own will out of nature love and affection

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for them.  PW-2, the attesting witness to Exhibit A-1 stated that he knew the  respondent.  While he was standing on the road and talking to some persons,  he was called by the respondent to witness the document.  He went to Sub- Registrar’s office along with the respondent.  Respondent put his signatures  on Exhibit A-1 after reading the same.  That he (himself) and Govindawamy  signed Exhibit A-1 as witnesses. Govindawamy has died. In the cross- examination he stated that he did not know the contents of the document,  Exhibit A-1.  He showed his ignorance as to when, where or in whose name  the stamp papers were purchased.  He denied having knowledge of the fact  as to whether the respondent was in the habit of drinking liquor.  Respondent  in order to prove his case stepped in the witness box as DW-1. He stated that  the property was a Joint Hindu Family property as the same had been  purchased with the sale proceeds of the ancestral property.  That his son-in- law who was working in TVS had purchased some property and he was  taken by his son-in-law to sign as a witness.  He denied having executed the  settlement deed in favour of the appellants.  He denied that he knew PW-2.   It was stated that the possession of the appellants was permissive as they  were allowed to reside in the house to enable them to send their children to  the school. He denied his signatures on the settlement deed, on the  ’vakalatnama’ given by him to his counsel as well as on the summons sent to  him by the court.  It was denied that he knew English. It was also stated by  him that his signatures were obtained fraudulently on the pretext of signing  as a witness on the document by which his son-in-law had purchased a house  site.  That the total extent of the family holding was 3.16 acres of land. He  admitted that his son was residing separately for the last 3 to 4 years but  denied that he was retracting from the settlement deed on the advise of his  son.  That he was in the habit of drinking.

No other evidence was led by any of the parties.

               The trial court believed the evidence of the respondent.  It was  held that the respondent was taken to the Sub-Registrar’s office to witness a  document whereas a deed of settlement was got executed from him.   Testimony of PW-2, the attesting witness was discarded.  It was held that the  deposition of PW-2 in fact supported the case put forth by the respondent to  the effect that the respondent was taken to the Sub-Registrar’s office to sign  as a witness.  The trial court further held that since the property in dispute  was ancestral in nature, the respondent had no power/authority to make a gift  of a part of the ancestral property in favour of his daughters. The suit was  dismissed. The order of the trial court was affirmed by the First Appellate  Court as well as by the High Court, aggrieved against which the present  appeal has been filed.

               It is submitted by the counsel for the appellant that the findings  recorded by the courts below are wrong on facts as well as in law.  Finding  of fact regarding due execution of Exhibit A-1 is vitiated due to misreading  of the statement of the attesting witness, PW-2.  That the father being the  Karta had the authority to make a gift of ancestral immovable property to a  reasonable extent out of the Joint Hindu Family property in favour of his  daughters.  That such authority of the father is recognised in old Hindu Text  Books as well as by the courts in recent times.   Counsel appearing for the  respondent has controverted the submissions made by the counsel for the  appellants.   It was argued that there was no misreading of evidence and that  the finding recorded by the courts below on facts could not be interfered  with by this Court at this stage of the proceedings. The respondent had no  authority to make a gift of part of the ancestral immovable property and in  any case he could not have gifted the only residential house possessed by the  family.   

               The two points which arise for consideration in this appeal are:  (i)     whether the judgment of the courts below are vitiated because  of the misreading of the evidence of PW-2, the attesting witness  to the settlement deed;  (ii)    whether the gift/settlement made by the father in favour of his  married daughters of a reasonable extent of immovable property

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out of the Joint Hindu Family property is valid.

               The trial court believed the evidence of the respondent and  dismissed the suit.  For arriving at this conclusion the trial court held that if  the respondent had the intention of executing a deed of settlement in respect  of the suit property in favour of the appellants, then at least he would have  taken his son Ramasamy for affixing his signatures as a witness to the deed.   Since it was not done the document Exhibit A-1 could not be relied on.  The  statement of PW-2 was construed to mean as if he had stated that the  respondent was taken for affixing his signatures as a witness on the date  when the settlement deed, Exhibit A-1 was executed.  We have carefully  perused the statements made by PW-2 as well as DW-1 and in our view the  trial court misread and misconstrued the testimony of PW-2.  In the course  of cross-examination PW-2 had stated as follows:-

"Only the defendant invited me for signing as witness.   On the way Govindasamy was also invited while he was  found standing there\005\005\005.. While going towards the  Sub-Registrar’s office, the Defendant saw and invited me  to sign as witness."  

               The trial court in his judgment has misconstrued the above  statement and recorded the following finding:-

"PW-2 had given evidence that the Defendant was taken  for affixing signature as witness on the date when the  deed of settlement exhibit A1 was executed."

               The trial court also held that:- "If only the Defendant had executed the deed of  settlement in respect of the suit property in favour of his  daughters i.e. the Plaintiffs, he would have atleast taken  his son Ramasamy for affixing his signature as witness.   This factor is also not in consonance with the true nature  and bona fides of exhibit A1."

               Finding recorded by the trial court clearly shows that the court  misread and misconstrued the testimony of PW-2.  PW-2 in his deposition  has clearly stated that he was invited by the respondent to be a witness.  He  has no where stated that defendant (respondent herein) was taken for  affixing signatures as a witness.  If respondent was to be a witness then there  was no need to ask PW-2 and Govindasamy to accompany the respondent or  for them to sign the document.  He also deposed that respondent affixed his  signatures on Exhibit A1 after reading the same.  That he (himself) has  signed Exhibit A1 as a witness. That he knew the respondent.  Suggestion  put to him that signatures of the respondent on Exhibit A1 were obtained by  threat was denied. The trial court did not refer to this part of testimony of  PW-2 at all. The question put to him in the cross- examination which has  been reproduced above wherein PW-2 has stated that the respondent had  invited him for signing as a witness has been read to him as if PW-2 had  stated that the respondent was taken for affixing signatures as a witness to  some documents on the date when the deed of settlement Exhibit A-1 was  executed.  This is a clear misreading of the testimony of PW-2.  The trial  court also failed to note that the evidence of respondent as DW-1 lacked  total credibility especially in the light of his conduct in denying his signature  on the settlement deed, vakalatnama as well as on the summons served on  him.  Projection made by the respondent in his testimony that the appellants  taking advantage of the fact that he was a drunkard got the settlement deed,  Exhibit A-1 signed fraudulently cannot be accepted. Respondent took no  steps to get the settlement deed cancelled though, the appellants had been  living in the house for five years after the execution of the settlement deed.   In his statement he does not say that he did not know about the execution of

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the settlement deed.  Plea taken by him that he was taken to the Sub- Registrar’s office to be a witness to a sale deed by his son-in-law cannot be  accepted as it has not been proved on record that the respondent’s son-in-law  had in fact purchased any house site.  Findings recorded by the trial court  and upheld by the First Appellate Court and the High Court based on  misreading of evidence are liable to be set aside. The findings recorded on  misreading of evidence being perverse cannot be sustained in law.

               Coming to the second point, the trial court held that since the  property was ancestral in nature, the respondent had no authority/power to  make a gift of a portion of the ancestral property in favour of his daughters.   In appeal the First Appellate Court accepted that the father could give away  a small portion of the ancestral property to his daughters out of the total  holding of the family property but since in this case the total extent of  property owned by the family had not been proved it could not be held that  the property gifted by the father was of a reasonable portion of the total  holding of the family.  The High Court affirmed the finding recorded by the  First Appellate Court.  

               The High Court of Madras in a series of judgments has taken  the view that father could make a gift within reasonable limits of ancestral  immovable property to his daughter as a part of his moral obligation at the  time of her marriage or even thereafter.

               In Anivillah Sundararamaya vs. Cherla Seethamma and  others  [1911 (21) MLJ 695], it was held that a small portion of the  ancestral immovable property could be given to the daughter at the time of  her marriage or thereafter and such a gift would be a valid gift.  In this case  8 acres of ancestral immovable property out of 200 acres of land possessed  by the family were given in gift by the father to his daughter after her  marriage.  Upholding the gift it was observed:-

"P. Narayana Murthi for 1st respondent:- The present case is  stronger than Kudutumma v. Narasimhacharyulu, as it is the  father that has given the property and not the brothers.  A gift  made to the son-in-law belongs also to the daughter \026 vide  Ghose’s Hindu Law, 2nd Edn., p.313, Footnote.  There is a text  of Vyasa to that effect.  Se Ghose, p.389, for translation; vide  p.360 also vice versa.  A gift to the daughter would belong to  the son-in-law.  If it is proper to make gifts at the time of  marriage it would be equally proper if made afterwards.   Though the texts do not require gifts to be made to daughters at  the time of marriage, if made they are not invalid.  Churamon  Sahu v. Gopi Sahu referred to, where Mookerji J. approves of  Kudutamma v. Narasimhacharyulu; Bachoo v. Mankuvarhai.

               The same view was taken by the Madras High Court in Pugalia  Vettorammal and another vs. Vettor Goundan, [1912 (22) MLJ 321].  In  this case it was held that a father could make gift to a reasonable extent of  the ancestral immovable property to his daughter. Gift made of 1/6th of the  total holding of the ancestral property was held to be a valid.  The same view  has later been taken by the Madras High Court in Devalaktuni  Sithamahalakshmamma and others vs. Pamulpati Kotayya and others  [AIR 1936 (Madras) 825] and Karuppa Gounder and others vs.  Palaniammal and others [1963 (1) MLJ 86].  A Full Bench of Punjab &  Haryana High Court in The Commissioner of Gift Tax vs. Tej Nath [1972  PLR (74) 1] and the High Court of Orissa in Tara Sabuani vs. Raghunath  [AIR 1963 Ori. 59] have also taken the same view.   

The powers of the father or the managing member of the joint Hindu  family vis-‘-vis coparcenary property have been summarised in paragraphs  225, 226 and 258  of Mulla’s Hindu Law which reads:- "225. Although sons acquire by birth rights equal to those of a  father in ancestral property both movable and immovable, the

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father has the power of making within reasonable limits gifts of  ancestral movable property without the consent of his sons for  the purpose of performing ’indispensable acts of duty, and for  purposes prescribed by texts of law, as gifts through affection,  support of the family, relief from distress and so forth’.

226.  A Hindu father or other managing member has power to  make a gift within reasonable limits of ancestral immovable  property for ’pious purposes’. However, the alienation must be  by an act inter vivos and not by will.  A member of a joint  family cannot dispose of by will a portion of the property even  for charitable purposes and even if the portion bears a small  proportion to the entire estate. However, now see section 30 of  the Hindu Succession Act, 1956.

258. (1) According to Mitakshara law as applied in all the  States, no coparcener can dispose of his undivided interest in  coparcenary property by gift.  Such transaction being void  altogether, there is no estoppel or other kind of personal bar  which precludes the donor from asserting his right to recover  the transferred property.  He may, however, make a gift of his  interest with the consent of the other coparceners.

(2)  As to disposition by will after the coming into operation of  the Hindu Succession Act, 1956, see section 30 of the Act."

               Combined reading of these paragraphs shows that the position  in Hindu law is that whereas the father has the power to gift ancestral  movables within reasonable limits, he has no such power with regard to the  ancestral immovable property or coparcenary property.  He can, however  make a gift within reasonable limits of ancestral immovable property for  "pious purposes".  However, the alienation must be by an act inter vivos,  and not by will.   This Court has extended the rule in paragraph 226 and held  that the father was competent to make a gift of immovable property to a  daughter, if the gift is of reasonable extent having regard to the properties  held by the family.

               This Court considered the question of extended meaning given  in numerous decisions for "pious purposes" in Kamla Devi vs. Bachulal  Gupta [ 1957 SCR 452].  In the said case a Hindu widow in fulfilment of an  ante-nuptial promise made on the occasion of the settlement of the terms of  marriage of her daughter, executed a registered deed of gift in respect of 4  houses allotted to her share in a partition decree, in favour of her daughter as  her marriage dowry, after two years of her marriage.  The partition decree  had given her the right to the income from property but she had no right to  part with the corpus of the property to the prejudice of the reversioners.  Her  step sons brought a suit for declaration that the deed of gift was void and  inoperative and could not bind the reversioners.  The trial court and the High  Court dismissed the suit holding that the gift was not valid.  This Court  accepted the appeal and held that the gift made in favour of the daughter was  valid in law and binding on the reversioners.  

               This point was again examined in depth by this Court in  Guramma Bhratar Chanbasappa Deshmukh and another vs. Malappa  1964 (4) SCR 497 and it was held:- "The legal position may be summarized thus: 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 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

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make such a gift is not confined to the marriage occasion.  It is  a 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.  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  anytheless a valid one."  (Emphasis supplied)

               Extended meaning given to the words "pious purposes"  enabling the father to make a gift of ancestral immovable property  within reasonable limits to a daughter has not been extended to the  gifts made in favour of other female members of the family. Rather it  has been held that husband could not make any such gift of ancestral  property to his wife out of affection on the principle of "pious  purposes".   Reference may be made to Ammathayee Ammal &  Another vs. Kumaresan & Others [1967 (1) SCR 353].  It was  observed ’we see no reason to extend the scope of words "pious  purposes" beyond what has already been done in the two decisions of  this Court’ and rejected the contention that a husband could make any  such gift of ancestral property to his wife out of affection on the  principle of pious purposes.

               On the authority of the judgements referred to above it can  safely be held that a father can make a gift of ancestral immovable property  within reasonable limits, keeping in view, the total extent of the property  held by the family in favour of his daughter at the time of her marriage or  even long after her marriage.   

 The only other point, which remains for consideration, is as to  whether a gift made in favour of the appellants was within the reasonable  limits, keeping in view, the total holding of the family.  The total property  held by the family was 3.16 acres. 12 cents would be approximately 1/26th  share of the total holding.  The share of each daughter would come to 1/52nd  or 1/26th share of the total holding of the family which cannot be held to be  either unreasonable or excessive under any circumstances.  Question as to  whether a particular gift is within reasonable limits or not has to be judged  according to the status of the family at the time of making a gift, the extent  of the immovable property owned by the family and the extent of property  gifted.   No hard and fast rule prescribing quantitative limits of such a gift  can be laid down.  The answer to such a question would vary from family to  family.   

This apart, the question of reasonableness or otherwise of the gift  made has to be assessed vis-‘-vis the total value of the property held by the  family.  Simply because the gifted property is a house, it cannot be held that  the gift made was not within the reasonable limits.  As stated earlier, it  would depend upon a number of factors such as the status of the family, the  total value of the property held by the family and the value of the gifted  property and so on.  It is basically a question of fact.  However, on facts, if it  is found that the gift was not within reasonable limits, such a gift would not

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be upheld. It was for the respondent to plead and prove that the gift made by  the father was excessive or unreasonable, keeping in view, the total holding  of the family.  In the absence of any pleadings or proof on these points, it  cannot be held that the gift made in this case was not within the reasonable  limits of the property held by the family.  The respondent has failed to plead  and prove that the gift made was to unreasonable extent, keeping in view,  the total holding of the family.  The first appellate court and the High Court,  thus, erred in non-suiting the appellants on this account.  

               For the reasons stated above we accept the appeal, set aside the  judgments and the decrees passed by the courts below.  It is held that the  respondent had the capacity to make a gift to a reasonable extent of ancestral  immovable property in favour of his daughters. The gift was not vitiated by  fraud or misrepresentation.  The appellants are held to be the absolute  owners of the suit property and the respondent is injuncted from interfering  with the peaceful possession and enjoyment of the suit property by the  appellant perpetually.  Parties shall bear their own costs.