Tara Sahuani and Others vs Raghunath Sahu and Another

R.K. Das, J.—This is a defendants'' appeal against a decision dated 16-7-60 of Sri C. Mahapatra. Additional District Judge of Berhampur,

reversing a decision dated 22-8-58 of Sri S. Naik, Munsif of Berhampur in Title Suit No. 124/56.

The appeal arises under the following circumstances; One Adikanda Sahu had four daughters, Tara (defdt. I), Surekha, (defdt. 2), Rajamani

(defendant 3), Chandra (who is riot a defdt. here) and the only son Raghunath the present plaintiff. Defendants 4 and 5 are the husbands of

defendants 1 and 3 respectively, and defendants 6 to 14 are tenants in possession of the suit land. On 20th April, 1941, Adikanda by a registered

deed of settlement (Ext. A) settled the suit-property comprising 7.31 acres situate in Mouza Pra-tapkrishna Chandrapur in the district of Ganjam,

in favour of his wife Mukta and daughters, defendants 1 to 3, stipulating Mukta to have life-interest and after her death the property was to goto

her daughters defendants 1 to 3.

In accordance with the aforesaid Ext. A, mutation was made in favour of Mukta and defendant 1 to 3 in 1947 (Ext. B). Adikanda died in March

1953 and his widow Mukta in December 1953. Thereafter the defendants 1 to 3 wanted the tenants to execute a Muchalika in their favour and to

deliver them the usufruct"" of the suit-lands. Then some controversy arose in respect of the title and possession of the suit lands, and the present suit

was filed by the plaintiff Raghunath on 22-6-56 claiming a declaration that the father had no right to give away the ancestral property as per the

settlement deed (Ext. A) which is a void transaction, and is not binding on him. He also prayed for a permanent injunction against the defendants

obviously on the assumption that he still continued in possession of the property.

The case of defendants 1 to 4 is that the father has every right to give away the property, the suit land which represents only a small fraction of

the entire property which was gifted to the defendants with full knowledge of the plaintiff who was a consenting party to the transaction even

though he was not a formal party to the document (Ext. A). They also raised the plea of acquiescence, estoppel and limitation. The case of the

tenants-defendants was that they were the bhag-chasis under the plaintiff''s father, and after him under Mukta who possessed the property by

reason of the aforesaid deed of settlement, and after Mukta they are continuing as Bhagchasis under the daughter-defendants.

The trial court found that the family had sufficient property and the father was perfectly within his rights to gift away a small fraction of the same

in favour of his daughters. The plaintiff knew of this document since 1941, and therefore the suit was barred by limitation and the plaintiff was never

in possession since 1941, and he thus dismissed the plaintiff''s suit.

The appellate court, however, negatived the plea of limitation, estoppel and held the suit to be in time and maintainable. He also held that the

family having only about forty acres of land, a gift of about eight acres represented almost 175th of the whole estate, cannot be construed to be a

reasonable portion of the family property which the father was competent to give away to his daughters. He also found that the plaintiff has been

dispossessed from the suit property in the year 1955. Against this decision of the appellate Court, the present second appeal has been filed.

At the hearing of this appeal an application was filed on behalf of the plaintiff-respondent under"" Order 41, Rule 27, C. P. C. to take by way of

additional, evidence some documents filed before this Court. These documents wherefrom it appears that the plaintiff and his father made some

other gifts of some other properties to the contesting defendants between the year 1949-53, were produced obviously with the object that the

original settlement (Ext. A) was not in fact acted upon and assuming it was acted upon, that taken with the subsequent gifts of the year 1949-53

would represent a large portion of the family property, a gift of which is not permissible in law, ft may also be noted that the respondent also

moved the lower appellate court for admitting these documents as additional evidence, but that prayer was rejected on the ground that it will give

an opportunity to the plaintiff to make out a new case resulting in prejudice to the defendants.

In this Court, however, with the consent of parties, the following documents were admitted as additional evidence (i) A sale-deed dated 18-5-49

executed by Adikanda, and the plaintiff in favour of Surekha (defendant 2) and Rajmani (defendant 3) in respect of A Order 12 decimals in

Berhampur town, (marked Ext. 1) in this Court; (2) A deed of settlement made by Adikanda and the plaintiff in favour of defendant 2 in respect of

a house (marked Ext. 8) in the Berhampur Town; (3) A deed of settlement of the same date executed by Adikanda and the plaintiff in favour of

Rajmoni (defendant 3) in respect of a house in Berhampur town (Ext. 9), and a deed of settlement executed on 3-6-52 by Adikanda and the

plaintiff along with his son Ramsankar in favour of defendant 2 in respect of a house situated in Berhampur town (Ext. 10).

The questions of limitation, acquiescence and estoppel were not seriously challenged in this Court and the only point that was seriously con

tested before me is whethes, Adikanda was competent to make a gift of that extent of ancestral property which he did in favour of defendants 1 to

3.

From paragraph 3 of the plaint itself it appears that

the defendants 1 to 3 were married in poor families, and were dependent on the plaintiff and his late father. So the plaintiff and his late father

settled some properties to defendants 1 to 3 and also purchased some properties in their names with the money of the plaintiff and his father.

Further from Ext. A the deed of settlement, it appears that the daughters in whose favour the gift was made were dependent on the father and in

consideration of that position the father made a gift in favour of his daughters, and there are recitals also in that document that the donor was the

exclusive owner of the property; but since that point was not taken in the courts below and both the Courts acted upon the assumption that it was

the ancestral property and not the exclusive property of Adikanda, it is unnecessary for me to examine that point in this appeal. It may be noted in

this connection that even in Exts. 8 and 9 referred to above there are clear recitals to show that the defendants were dependents on the plaintiff''s

family. From Ext. B it also appears that Mukta and defendants 1 to 3 were mutated in respect of the suit property. Obviously therefore, the deed

of settlement (Ext. A), was acted upon which is also supported by the Muchalika executed by the various tenants in favour of Mukta and

defendants 1 to 3. In view of this position, the contention of the respondent that the deed of settlement was not acted upon cannot prevail. It

cannot also be disputed under the circumstances that the acceptance of the gift by the mother, one of the donees, is sufficient to constitute

acceptance by all the donees, particularly when they got their names mutated in 1947 in pursuance of the deed of settlement (Ext. A) which comes

from the custody of the donees.

Coming to the main controversy, however, two contentions are raised by the appellants before me; (1) The gift is reasonable in consideration of

the total property held. by the donor as the date of the gift; and (2) the father was competent to gift away the suit-land to his daughters, defendants

1 to 3, who admittedly are poor and dependent on the father.

That a reasonable portion of the ancestral property can be given away by the father to his daughters in consideration of the marriage can not be

disputed in view of a number of decisions on this point, Sailabala Deb and Others Vs. Baikuntha Nath Ghose and Others, ,

Sithamahalakshmamma v. Kotayya AIR 1936 Mad 825. But in the present case nothing specific appears that the gift was made by the father in

consideration of marriage of defendants 1 to 3. Therefore the only question that has to be considered is whether the donor was competent to make

a gift unconnected with the marriage and whether the property so gifted was a reasonable proportion of the entire estate in the hands of the donor

on the date of the gift. In the present case, the appellate court on the assessment of evidence before it found :

Therefore, it is evident that the family was substantially rich inasmuch as, they had already 40 acres of land and 95 Bharans or 19 acres have been

purchased from out of the gold belonging to the family not to speak of certain houses and other lands which admittedly had been gifted to the

daughters after 1941. Therefore, the family must be said to have had sufficient nucleus as to be possessed of about 60 acres of land. There has

also been some admission on the side of the plaintiff that his father had gifted 80 Bharanams of land to a deity, meaning about 16 acres. Of course,

it is not known whether these 80 Bharanams appertain to these forty acres.

Thus, in view of the appellate Court''s finding, Adikanda had at least forty acres of land when he made the settlement of about 8 acres'' in favour of

his daughters, defendants 1 to 3. In a case reported in Pugalia Vettromal v. Vettor Goundan 1912 MWN 89, a gift of 1/6th share of the family

property to an undivided brother''s daughter was held to be valid. Even assuming that the plaintiff''s father had only forty acres -- though according

to the finding of the appellate Court he had more -- a gift of about 8 acres to three of his daughters representing only 1/5th of the estate cannot be

said to be an unreasonable proportion when specially the eight acres is further divided between the three donees, it ultimately comes to about 21/2

acres, that is, about 1/16th of the total estate held by the donor. The gift therefore in my opinion cannot be considered as unreasonable. (ii) The

next question is whether apart from the reasonableness of the gift, the father at all had any power to make the gift unconnected with the marriage,

which appears to be a crucial question in this appeal. In this connection the case of Sundar Ramayya v. Sitamma, reported in ILR Mad 628 was

cited on behalf of the appellants. In that case the gift was made forty years after the marriage, and there was no evidence that the father had any

intention to give any property at the time of marriage and the question was whether an such circumstances the gift was valid. Their Lordships held :

The father or the widow is not bound to give any property. There may be no legal, but moral obligation. It was also true that in the case before us

the father did not make any gift in discharge of the moral obligation at the time of the marriage, but it is difficult to say why the moral obligation

cannot sustain a gift because -it was not made to the daughter at the time of the marriage, but only sometime later.

Therefore the moral obligation of the plaintiff''s father in the above case continued in force till it was discharged by the gift.

In another case more or less on the same point reported in AIR 1943 316 (Oudh) , their Lordships held that the gift by the mother in favour of her

daughter and son-in-law was valid even though she did not make any ''Sankalpa'' at the time of the marriage. In a case reported in AIR 1922 PC

201, Ramalinga Annavi v. Narayana Annavi, their Lordships of the Privy Council while dealing with a case of gift made by the father to his

daughter which appeared to be a case unconnected with the marriage held :

The father has undoubtedly the power under the Hindu Law of making within reasonable limits a gift of Immovable property to a daughter. 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.

In a recent decision of the Supreme Court reported in Kamala Devi Vs. Bachu Lal Gupta, , their Lordships after reviewing the previous decisions

on the point including the aforesaid Privy Council decision observed as follows :

Some decisions 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, end a gift made long after the marriage may be supported upon the ground that the gift when made fulfils that

moral or religious obligation.

But as the case before their Lordships was a case of gift relating to an antenuptial agreement, their Lordship''s did not think it necessary to apply

the aforesaid principles to this case. Therefore, it cannot be doubted that apart from marriage considerations, it is open to the father to give a

reasonable extent of ancestral property by way of gift to the daughter particularly when she is in distress. I have held already that the property

covered under Ext. A represents only a small portion of the total property in the hands of Adikanda. Thus he was quite competent to gift it to his

daughters. The fact that some small houses or house-sites have also been given to two of his daughters both by Adikanda and the present plaintiff

does not in any way affect the reasonable character of the gift made previously by Adikanda. Admittedly the plaintiff''s family has a good number

of houses other than their residential house, and it is just possible that in order to give separate accommodation to the daughters, the plaintiff and

his father also agreed to settle some house and house-sites in their favour.

In view of this position, the deed of gift (Ext. A) is a valid transaction and is binding on the plaintiff. Accordingly, the appeal is allow ed, the

plaintiff''s suit is dismissed, but each party will bear his own costs throughout.