Muthu Bhattar vs Shanbagakannu and Another

K. Veeraswami, C.J.—This appeal comes before us on a remit order by the Supreme Court in Civil Appeal No. 2561 of 1966, Kailasam J.

had in second Appeal relied on Sri Mahant Prayag Doss Jee Varu and Others Vs. Archakam Bokkasam Govindacharlu and Others, and held that

the transfer in favour of the transferor''s maternal aunt''s son could not be said to be invalid, in Sri Mahant Prayag Doss Jee Varu and Others Vs.

Archakam Bokkasam Govindacharlu and Others, we find that Varadachariar and Burn, JJ., after a consideration of all the earlier decided cases,

held that a gift in favour of a sister''s son of the last male holder was good, though a nearer heir was available. When the present matter came up

before a Division Bench under the Letters Patent, the appellant was allowed to take a new point, to wit, that the transfer amounted to a

conveyance for consideration and therefore it was invalid. The subject-matter of the transfer in this case was 1-7/8 days'' archaka right with about

2 acres of land attached thereto. The Division Bench held that the transfer being for consideration, namely, it was subject to discharge of certain

debts, it was a conveyance and therefore the transaction was invalid. The Supreme Court set aside this order of the Division Bench and held that it

was not justified in allowing a new point to be taken which involved investigation into facts. The question as to the nature of the transfer turned on

the interpretation of the language employed in the document The document directed that a gift of a fractional share of the arehaka right with

property attached thereto was made in favour of the donee, subject to the latter discharging certain debts. But we are bound by the Orders of the

Supreme Court and it is not open to the appellant to contend that the deed was a conveyance. We have only to proceed on the basis that it was a

gift.

The contention before us is that a gift of arehaka right with properties attached thereto could lawfully be made only in favour of the sole

immediate heir and not to any one else. Though there is some basis for this contention in Narayana v. Ranga, ILR (1892) Mad 183; in Sri Mahant

Prayag Doss Jee Varu and Others Vs. Archakam Bokkasam Govindacharlu and Others, which was a case of a gift of such archakaship in favour

of a sister''s son of the transferor, its validity was upheld by Varadachariar and Bum JJ. In doing so. ILR (1892) Mad 183 was also reviewed by

the Court. After having done that, the learned Judges observed:--

This does not seem to require or justify our refusing to follow the decision in Mancharam v. Pranshankar, ILR (1882) Bom 298 even when the

alienation is to one in the line of heirs, is not for consideration, and is not in any way opposed to or inconsistent with the interests of the institution.

The point was therefore specifically decided by Sri Mahant Prayag Doss Jee Varu and Others Vs. Archakam Bokkasam Govindacharlu and

Others, . It is true, as contended for the appellant, a plea of custom to establish the transfer was found, and the learned Judges also pointed out

that the instances brought to their notice in that case might reasonably be held sufficient to establish the custom in support of such transfers. Even

so, we are of the view that the decision itself rested not merely on custom but also on the state of the law as in force in this State.

On our own consideration of the case law on the subject, it seems to us that a transfer of the kind is inhibited as invalid only if it is in favour of a

stranger or for consideration or is under circumstances which make it opposed to public policy. We can discover no legitimate basis for the view

that in order that a transfer of this type is valid, it should only be to the next immediate heir. The reason for inhibition of such transfer is not

neutralised or in any way affected so long as the transfer is in favour of one in the line of heirs. On that view, the appeal fails and is dismissed. No

costs.