Dhondiram and Another vs Bhagubai and Another

This is an appeal on behalf of the Plaintiffs and it is directed against the judgment and decree of the Additional District Judge Mominabad, reversing on appeal the decision of the Munsiff of the same place, who decreed the suit for possession.

The Appellants with their father Babu Rao, the second Respondent, formed a Hindu joint family and were possessed of are agricultural plots mouza Radi, Mominabad Taluqa, one of them being Survey No. 103 admeasuring 13 acres and 34 guntas. Respondent No. 2 by a registered instrument dated 7th Aban 1354F., conveyed Survey No. 103 by way of affectionate gift to his daughter Bhagubai, herein the first Respondent.

The donee on the strength of the deed of gift brought a suit against the donor for possession of the property gifted and obtained possession in execution. The Appellants, who were the step-bro- thers of the donee did not acquiesce iu the gift made by their father and sued the donor and the donee for restoration of the acquest to the joint family on the plea of incompetency on the part of the father to make the impugned disposition. The Respondents resisted the suit.

They, in the first instance, urged that the validity of the gift could not be challenged since it had been made with the consent of the Appellants. Secondly, they contended that there was nothing in law to prevent the donor from making the gift in his capacity as the father of the joint family.

The trial Judge, on the evidence adduced did not feel satisfied that the Respondents had succeeded in establishing the alleged consent on the part of the Appellants. As regards the competency of the donor to make the impugned gift, he found against the Respondents on the authority of the rule enunciated in Sections 225 & 226 Mulla''s Hindu Law.

In the appeal preferred by the Respondents, the lower appellate Court held that the suit was not maintainable without a prayer for cancellation of the decree obtained by the first Respondent against the donor, and mainly on that ground, the suit was dismissed. In arriving at that conclusion, reliance was placed on the case of Rangnath v. Vithoba 20 D LR 528 (A).

The learned advocate for the Appellants Shri Prabhakar Rao contended that the case relied on by the lower appellate Court was no authority for the facts obtaining in this case. In our view, the learned advocate is right in his contention. In the case relied upon by the lower appellate Court, the father had alienated some immovable property as the manager of the family.

The alienee obtained a decree for possession and got himself declared as entitled to the mutation of the patta in his name. The sons brought a suit for possession simpliciter alleging dispossession and challenging the sale on the ground that it was effected for immoral purposes. The lower appellate Court differing from the trial Judge passed a decree for possession to the extent of the sons'' share.

On third appeal to the High Court which according to the procedure then extant could lie, it was held that as long as the sale was not set aside as being against the Shastric rules and a relief for cancellation of the sale-deed was sought, the relief for possession could not be granted.

This decision brings us directly to the consideration of the provisions of Section 34, Hyderabad Specific Relief Act corresponding to Section 39 of the Indian Act on the same subject. That section provided:

Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

On a plain reading of the section, it would be obvious, as has been observed by Kemp J., in the Full Bench case of Narsagauda Savantgauda Patil Vs. Chawagauda Adgauda Patil, , that Section 39 of the Specific Relief Act is permissive and not obligatory. There is no obligation to sue under that section, and if he does not need to sue under that section, it cannot be said by not suing he loses the right which he in common with every other person possesses to the period of limitation for a suit for land.

We may with advantage refer to the case of Pethepermal Chetty v. Muniandy Sarvai 35 Cal 551 (PC) (C). There the suit was for possession of the land and it transpired that the predecessor in-title of the Plaintiff had, six years prior to the institution of the suit, executed a benami deed of sale of the land collusively and in order to defeat the claim of a prior equitable mortgagee.

It was contended on behalf of the Defendant that before the Plaintiff could recover possession, lie must first set aside the conveyance. Lord Atkinson, who delivered the judgment of the Board, repelled the contention in the words:

Their Lordships are of opinion that the conveyance ... being an inoperative instrument, as, in effect it has been found to be, does not bar the Plaintiff''s right to recover possession of his land, and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims.

The same conclusion is suggested in Beni Pershad Koeri v. Dudh Nath Roy 26 Ind App 216 (D) and Bijoy Gopal v. Krishna Mahishi Debi 34 Ind App 87 (PC) (E).

In this view of the law, it seems difficult to concur with the rule laid down in 20 D LR 528 (A) and we hold that the suit filed by the Appellants was maintainable despite the fact that he had not asked for cancellation of the decree'' or the deed of gift.

The next point to be determined is whether the suit was bad because of the alleged consent to the disputed gift on the part of the Appellants. In that respect, we find ourselves in complete agreement with the trial Judge that no such consent could be held to have been satisfactorily established.

If it were a fact, the names of the Appellants would have appeared in the array of donors or at least as attesting witnesses. The latter contingency would have lent corroboration to the statements; of the witnesses, who spoke of the controverted assent.

The assent of the Appellants to the impugned gift being out of question, the only question that remains to be considered is whether Respondent No. 2 could validly convey the disputed plot by way of gift to Respondent No. 1.

The learned advocate for the Appellants relies on Jinnappa Mahadevappa Kudachi and Others Vs. Chimmava Krishnappa Kochari, for the proposition that gift even of a small portion of immovable property to a daughter is not within the right of the father. On the other hand, reference is made to Ramlinga v. Narayana AIR 1922 PC 201 V 9 (G) for the contrary rule.

In that case their Lordships of the Privy Council in the course of their judgment said that the father has undoubtedly the power under the Hindu Law of making, within reasonable limits, gift of movable property to a daughter and added that "in one case the Board upheld the gift of a small share of immovable property on the ground that it was not shown to be unreasonable."

Unfortunately no reference was given to the case referred to by their Lordships. Raghavachariar in his Hindu Law, Edn. 1942, page 438 states the law to be that the father can make, within reasonable limits, gifts of movable or immovable property of the Joint family for pious purposes or to a daughter.

Golapchandra Sarkar Shastri in his eighth edition of the Hindu Law at page 323 has under the heading "affectionate gift", to say that the father of the joint family is competent to make a gift of the small portion of the property out of affection in favour of a male or female member of the family and this has been held allowable in favour of a daughter.

For the purposes of this appeal, we do not propose to enter into the controversy whether a gift of a portion of immovable property lies within the competence of the father. We assume that the father of the family possesses such power.

Then the question would be whether the gift of the suit survey number was within reasonable limits. According to the Respondents, the family possessed five survey numbers. The suit plot admeasures 13 acres and 34 guntas and the area of the other 4 plots appears to be approximately 48 acres.

In order to find out toe reasonableness of the gift let us ask what would fall to the share of the donor and his two sons. Obviously it would be a little less than sixteen acres each. It needs no argument to postulate that the impugned gift does not fall within the bounds of reasonable limits, especially where it Is in evidence that there is an encumbrance on those plots.

For these reasons, we allow the appeal and restore the judgment and decree of the trial Judge. Having regard to the near relations existing between the parties, we make no order as to costs of this Court or of the Courts below.