Court affirmed the judgment and decree of the Subor v. Ba&hu Lal Gupta

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 Subor dinate Judge of Asansol dated June 30, 1943, in Title Suit No. 2 of 1942. The suit was four sons of one Ram Kishori Lal Sao, a resident in Bengal, who died in September 1927. of Asansol the plaintiffs, Kalicharan, died during the One of pendency of the suit and his heirs were brought on the record as plaintiffs in his stead. The defendants were late Ram Kishori Lal, Sumitra Devi, widow of daughter (defendant No. 1) late Ram Kishori Lal (defendant No. 2). The of the said defendants, 1 and 2, are the appellants before us. and Kamala Devi, instituted by 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 lifetime of Sumitra void and inoperative beyond reversion. The Devi and was not binding on following genealogical table shows the relation inter se between the parties : S.C.R. SUPREME COURT REPORTS 455 Ram Kishori Lal l I 3rd wife J ____ _ 4th wife I _l _____ I I . 5th wife Sumitra Devi (Deft. 1) 1957 !r1J111ala Devi v. Ba&hu Lal Gupta S.K. Das J. Ra~bandhu (Plff. 4) Bachu Lal Heman Lal (Plff. 1) (Plff. 2) K lichaJan (Pl ff. 3) died during pen- dency of the suit- Mst. Ram Sakhi (Plff. 3 gha) I Satyanarain (Plff. 3 Ka) Hiralal (Plff. Kha) I Gopal (Plff. 3 Ga) I Lachmi Narain (died on I-I-36) I Kama Jal : (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 the marriage of the minor daughter Kamala, in addi tion 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 in her capacity as third share of 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 litigation were described in a schedule to the plaint and stood on Municipal Holding Nos. 16, 17, 26 and 27 of Circle 4 of the Asansol Municipality. The value of houses was found by the Commissioner at the time of partition to be the neighbourhood of Rs. 19,000 only. the estate, one-sixth 1957 Kamala Devi v. Bac/w Lal Gupta S. K. Das]. 45'6 SUPREME COURT REPORTS [1957} The marriage of Kamala Devi was settled with one Bijoy Kumar Sao, son of Nand Lal Sao, a retired Depµty 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 negotia tion ; 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 that at the time of the marriage the appellants was itself, which was performed on May 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 confirmed on the occasion of the Dwiragaman (Gowna) ceremony which in December, 1938, and possession of the houses was also given to her ; soon after 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 plaintiffs-respondents. the gift was took place 10, the arrangements were 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. alleged ·that ornaments worth about Rs. 5,000 were to Kamala Devi, to be given 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 marri age expenses of Kamala Devi. The plaintiffs-respond ents 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 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 the gift at S.C.R. SUPREME COURT REPORTS 457 in any event, 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 consider it could not be operative ation; and the lifetime of Sumitra Devi and was not beyond the reversion, as she had only a life interest binding on the property and there was no justify in the corpus of It ing legal necessity for the alienation made by her. that Sumitra Devi was not was also alleged legally to make a gift, as marriage dowry of her competent daughter, of such a big and unreasonable portion of the estate left by her husband. 1957 Kamala Devi v. Bachu Lal Gupta S. K. Das J. On the aforesaid pleadings of issues were Issues Nos. 2 and 3 which were in the parties, principle these terms : "2. Is the defendant No. 1 competent to make any the plaint beyond it void and the plaintiffs beyond the lifetime gift of the properties mentioned in lifetime inoperative against of defendant No. l ? to defendant No. 2 ? Is

#3. Is the deed of gift executed by defendant No. 1 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 th~ Courts below on these issues. On the questions of fact involved learned Subordinate issues, 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 terms at Deoghar or during the marriage 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 learned Subordinate Judge held findings of fact, that the interest created in favour of Sumitra Devi in respect of 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 limited right of her daughter. Even if she had the time of the settlement of the properties allotted 1957 ... Kamala Devi Badw Lal Gupta S. Ir. Das J. 458 SUPREME COURT REPORTS [1957} to a reasonable portion of time of disposal, as in the case of a Hindu widow, she was not to execute any deed of gift, except with competent the estate of her regard husband at the the marriage of Kamala Devi the occasion of the Gowna ceremony. Though the or on learned Subordinate Judge that the properties given to Kamala Devi constituted a reasonable portion that the gift not having been of the estate, he held 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 bind ing on plaintiffs-respondents and could not ope rate beyond the lifetime of Sumitra Devi. He accord ingly decreed the suit. (a) record, came the following the parties were : 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 evid ence on the findings thereon : ( 1) a final settlement of the terms of marriage terms which were was made at Deoghar and settled between that Sumitra Devi wou.\d arrange for the gift of ornaments worth about Rs. 5,000, (b) a sum of Rs. 800 would be p~id for meeting the expenses the bride travelling of groom's party from Patna to Asansol, ( c) 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 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 subject the plaintiffs-res matter of the subsequent gift ; (2) pondents had nothing to do either with the settlement terms of marriage or with any control or· management of the marriage ceremony; (3) there was 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) the possession of the houses in question was made to Kamala Devi before the actual execution of it was not proved by reliable evidence in favour of Kamala Devi, though 1957 /( amaill Devi v. Bachu Lal Gupta S. K. Das]. S.C.R. SUPREME COURT REPORTS 459 Judges the gift the decision The learned learned Judges of in cases governed by the marriage ceremony, sons or grandsons. the decision in Debi the deed of gift. Relying on Mangat Prasad Singh v. Mahodeo Prasad Singh( 1 ), the High Court pointed out that even the Mitakshara (the parties in this case are admittedly governed by 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 referred in Churaman Sahu v. Gopi Sahu( i) and observed that though it was competent for a Hindu wid'.:>w, governed by the Mitakshara, to make a valid gift of a reasonable portion of the immoveable property of her husband to her daughter subsequent in Churaman Sahu's case was made at the time of the Dwiragaman (Gowna) ceremony which was really a part of 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 lapse of time between the two is too great to describe the gift to have 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 might have been possible to consi der the gift as having been made on the occasion of implementation of which was the marriage, subsequent. the strict provisions of Transfer of Property Act we can only consider to have been made at the time when the deed was executed and the question whether favour of Kamala Devi by Sumitra Devi the gift the occasion of either in March 1940, registered." On been made on In view of (1) (1912) L.R. 39 I.A. 121. (2) [19og] I.L.R. 37 Cal. 1. 1957 Kamala Devi v, Bachu Lal Gupta ~- K. Das J. 460 SUPREME COURT REPORTS [1957] learned Judges observed: "In the was of a reasonable portion of her husband's proper ties, 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 provmon of Rs. 10,000 made in the partition decree the marriage expenses be taken for meeting into account, we cannot say gifted houses was disproportionate or unreasonable." the High Court affirmed the decision of In Judge and dismissed appeal preferred by the defendants who are the appel lants here. learned Subordinate the value of the result, regard impeached finding of the gift at the concurrent finding has been It is necessary to state now the marriage ceremony which, the contentions which have been urged before us on behalf of the appellants, and they may be put in two main categories-(a) con tentions with fact, and findings of law. Learned counsel for the appel (b) contentions of lants has that there was no "sankalpa" oi: pro Courts below mise of a gift of the four houses in. question at the it was alleged, time of was .followed by· a confirmation of impeached Gowna ceremony. The on the ground of a serious error of record said to have been committed by the High Court and on the ground It has non-consideration that the proper finding should been argued before us that Sumitra Devi made a "sankalpa" of have been the gift of in question after Sampradan ceremony on the occasion of the marriage of Kamala Devi and that the gift was accepted bv 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 : that even final Court of fact as accepting correct, the gift being of a reasonable portion of estate of Ram Kishori Lal Sao and in pursuance and ante-nuptial agreement made by fulfilment of time of the final settlement of the Sumitra Devi at marriage negotiations at Deoghar, was for the spiritual it has been contended relevant evidence. four houses firstly, findings of 1957 Kamala Devi v. Bachu Lal Gupta S. K. Das J. S.C.R. SUPREME COURT REPORTS 461 flowing it was suggested 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 obli the ante-nuptial agreement : gation that Sumitra Devi got an secondly, absolute in the properties given to her as her share on partition ; thirdly, a reference was made to the Hindu Succession Act, 1956 and it section 14 of the said provisions has been argued that It may be stated here that reliefs which they claimed. the Court arguments closed for the annual vacation in 1956 and during the Hindu Succession Act, 1956, came vacation force on June 17, 1956. On an application filed by the appellants, fresh arguments were heard with regard to the provisions of s. 14 the Hindu Succession Act, 1956. plaintiffs-respondents were not entitled in the case had concluded before in view of 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 It has been pointed out to us that referred to above. the High Court made a serious the learned Judges of in dealing with the oral evidence as to error of record 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 ev.idence on this ques tion, 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 Para suram and Rash Behary. P:i.rasuram, 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 Parasu ram 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 462 SUPREME COURT REPORTS [1957] • 1957 Kamala Dtv v. Bachu Lal Gupta S. K. Dat J. the evidence by the High Court It is unfortunate that there. The point for consideration 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 the bridegroom's party and was present member of 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. High Court confused Parasuram Sharma (witness No. 16) with Pashupati Sarkar (witness No. 10), with the result that Parasuram Shanna's evidence was not pro perly considered by the High Court. This defect in the consideration of is if undoubtedly this is a sufficient ground for departure from the ordi nary rule of this Court not to go behinrl the findings of fact arrived at by the Courts below. Though the mis take made in unfortunate, we do not it is sufficient to disturb the finding of the Courts below or even to re-open the finding at this stage. It is worthy the learned Subordinate Judge made no of note mistake about Pashupati and Parasuram. He pointed out that the witnesses examined on behalf of the appel lants 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 Even Parasuram Sharma, whose evid inrlependent. ence has been placed before us by the appellants, cannot be said pendent. He was the marriage as a invited to attend member of the bridegroom's party and he said that he overheard Sumitra Devi saying that she was making a four houses as promised "sankalpa" of the gift of evidence which is not of a very satisfactory nature. There were many other criticisms of the evidence regarding the time of the marriage ; Judges of the High Court have referred to these criticisms and they accepted some of them. One the . verbal gift at to be completely learned counsel learned t957 Kamala Dai v. B111;h:1 Lal Gup:a S. A. Das]. S.C.R. SUPREME COURT REPORTS 463 regard of the criticisms which g1eatly weighed with the learn ed Subordinate Judge was the absence of any reference contemporaneous Court to the gift of four houses in proceedings with the withdrawal of Rs. 10,000 by Surnitra Devi, the sum which was set apart by the partition decree for the marriage expen ses of Kamala Devi. This criticism was not, however, fully accepted by the learned Judges of the High Court the evidence of Rai reliance on who placed greater 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 e?idence of Sumitra Devi with regard to the promise made regarding the gift of four Asansol houses at the time of the settlement of marriage nego that Rai tiations at Deoghar. There can be no doubt respectable Saheb Jogendra Nath Roy was a very lies. Though he witness and had no reasons supported that part of the evidence of Sumitra Devi the promise of a gift of four houses at which relateLl the marriage negotiations at time of Asansol 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 twenty-five minutes only. He further said that he was not present at the time of the marriage ceremony. It may, that Rai Saheb Jogendra Nath Roy was not present at the time when the verbal gift was alleged to have been made. therefore, be to tell By far and large, the learned Judge~ 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 the oral evidence by the High Court is open to any other serious criticism. The learned Judges rightly pointed out a serious dis crepancy 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 the consideration of Aamala Devi v. 13!Uhu I at G"pta S. K. Das J. SL'PREME COURT REPORTS [1957] appellants had failed that we shall be these circumstances into con of m~rnage. faking all sideration, we do not justified in going behi::.d the finding of the Courts below that 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 Nancl Lal on behalf of him minor daughter In view of in-law. the question as to whether the gift was again confirmed at the time of the Gowna cereinony does not really arise. There can be no confirmation of an act which did not itself place. this finding, 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 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 appellate Court, to differ from the appreciation of oral evidence by the learned Subordinate' Judge, who had the advantage of seeing the witnesses, with regard the ante-nuptial agreement said to to the question of It is true that the learned have been made at Deoghar. Subordinate Judge did not accept the evidence of the witnesses who testified the terms of settlement of tipped the marriage negotiations at Deoghar. What the scale in favour of the finding arrived at by the High Court on this point was the evidence of Rai Sahib (witness No. 14). The learned Jogendra Nath Roy Subordinate Judge gave certain reasons for not accept ing the evidence of this witness. The learned Judge~ of the High Court considered those reasons very care fully and rightly pointed out that there were no good that Rai Saheb Jogendra Nath grounds for Roy had fallen a victim to lapse of memory or for holding that he was an interested witness. The evidence of Rai Saheb )ogendra Nath Roy. was considered in fo1 the context of contemporaneous Court proceedings Judges the withdrawal of Rs. 10,000 and thinking learned 1957 Kamala Devi v. B.xhu Lal Gupla S. K. Das]. S.C.R. SUPREME COURT REPORTS 465 though in Asansol of the High Court accepted the explanatio~ which Rai Saheb Jogendra Nath Roy gave for not mentioning the in the promise of a gift of four houses application which Sumitra Devi made for the with In our opinion, drawal of the said sum of Rs. 10,000. 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 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 It may be convenient contentions of law. to dispose the argument somewhat faintly advanced on of, first, behalf of the appellants that even prior to the enact ment 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. to a mother The question whether the share allotted partition 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 inheri ted by a woman was not stridhan according to the In Debi Mangal Prasad Singh v. Mahadeo Mitakshara. Prasad Singh (2), the Allahabad High Court, after a review of all the authorities on the subject, held that it was that it stridhan ; but the Privy Council held 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 difference in principle between a was no substantial woman's property acquired by inheritance and that acq~i;ed by partition. part1t10n decree proceeded on the footing that Sumitra Devi would be entitled the proper ties allotted to her but should not be in a position to prejudice the corpus. The preliminary decree for partition stated : "The Commissioner is further directed to allot as little liquid is stridhan or not, according reversioners by destroying It is worthy of note to the income from (r) [1868] 11 M.l.A. 487, 5q. (2) (1912) L.R.39 I.A 121. 1957 K~mala Dtl'i v. Bochu Loi G.pto S. K. Das]. SUPREME COURT REPORTS (1957] .:ash 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 reversioners without trouble, but may not prejudice the by destroying therefore, that the corpus". 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 parti the decision in Debi Mangat Prasad Singh tion. Under v. Mahadeo Prasad Singh( 1 Mst. Suinitra Devi on partition stood on the footing as property inherited by her from her husband. She had no absolute right' of disposal of the property. ), the property allotted It follows, 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 reasonable portion of the estate · of her a gift of a husband to her daughter Kamala : Devi . as a marriage in pursuance. and fullihnent of an · ante-nuptial agreement, evea .. though the gift :was. made some .ceremony: . This· point was years after the .marriage urged before us, ;is we have already· stated, prior to and irrespective of the enactment· of the fiindu Succes sion Act, 1956. The argument of ·learned counsel for that Sumitra Devi ·was competent the appellants was to make such ·a ·gift under the Hindu law, even as it stood prior to the enac.tment of the Hindu Succession Act, 1956. . We shall; therefore, deal with this point, irrespective of the provisions of . s. 14 of the Hindu Sucession Act, 1956. It may be stated at the very outset t!).ar the con current 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 Ram Kishori Lal Sao on his death ; this was so even taking into consideration the sum of Rs. 10,000 which was set the marriage expenses of Kamala Devi and apart for which was · withdrawn by Sumitra Devi. In our opi nion, that finding is correct and must be accepted as if Sumitra such. Therefore, Devi was competent to n.ake the gift of four houses at the narrow question is (1) (1912) L.R. 39 I.A. '"' 1957 Kamala Der; v. 8acku Lal G., •s S. K. D1JJJ. S.C.R. SUPREME COURT REPORTS 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. learned the obsequial performance of judges. . . . . . . . . . . . . . the first class of acb, them. it was observed : 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 In Sardar Singh v. K11ni examine Behari Lal (1) "There can be no doubt upon· a review of the Hindu law, taken in con junction with the decided cases, that the Hindu system recognises two sets of religious acts. One is in connec the actual obsequies of the deci::ased, and tion with periodical religious law, which are the Hindu prescribed the salvation of the soul of considered as essential for the Jeceased. The other relates to acts which although ;:ssential or obligatory, are still pious obenances which conduce to the bliss of the urceased's soul. In through later case~ this distinction runs dearly the views of \Vitl1 the powers of the reference Hindu female who holds the property are wider than the acts which are :;iniply pious and if in r..:spect of performed are meritorious In one case, if the ~piritual benefit of the c\ecea~ed. the income of the property, or the property itself, not sufficient she is entitled to t<, cover the expense>, seli the whole of it. In the other case, ·fle ca1~ alienate the piom or a In a very charitable purpose early decisi011, Cossi Naut Bysack v. Ht1rroo S•ondry Dossee (2).. which was heard by the Supreme Court at Calcutta, in 1819 an.! by tl e Juclicial Committee in 1826 and quo«~d in Chura11;,,·1 S1<h:t v. Gopi Salm (s), it was · stat~d by Lord Gifford tfrit a Hindu widow had "for certain purposes a clear authority to dispose of her hmband's property and might do it for religiou~ purposes, including dnwry to a daughter." There are several text~ 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 so far as they ..:onduce small portion of the · propc:rt~· for she may hav• in view. ' (1) (1922) L.R. 49 I.A. 383, 391, (2) M'>rley's Diges~ 198. (3) (19<':J) I.1.R. 37 Cal. t, 7. 1957 Kamala Devi v. Baclw Lal Gupta S. K. Das :J. 468 SUPREME COURT REPORTS [195i] ) benefit according conferred upon him by texts have before she attains puberty. Some of in Churaman Sahu'.< case ( 1 been quoted and Ram Sumran Prasad v. Govind Das ("). 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 is also direct degraded and visited with sin ; a spiritual the Sastras, is a marriage. Marriage, a Sanskara for a man or woman. religious act ; to Manu, Chapter IT, verse 67, the sacra According ment of' marriage is to a female what initiation with the thread is to a male. The Mitakshara also religious obligation for both male nises marriage as a ( Sundrabai /avji Dagdu Pardeshi v. Shiv female narayana Ridkarana ( 3 ) ). The texts also recognise that gifts can be made at the time of or on the occasion of tbe 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 obligatio11 continues till it is discharged or fulfilled and such fulfilment may be subsequent to the marriage : see Mitakshara, Chapter I, section VII, Placitum 5 to In Placitum 9 is quoted Manu's text: "To the 14. their brothers give portions out of maiden sisters, to each the fourth their own allotments respectively ; part of the appropriate share ; and they, who refuse to stated: "If it be alleged, that, here also the mention of a quarter the allotment of indeterminate, and property sufficient to defray the expenses of the nup is meant to be expressed : the answer is all which is not any proof, that the allo~ment of is no ; for there in both codes ; and a quarter of a share In the withholding of it is pronounced to be a sin." it was Ramasami Ayyar v. Vengidusami Ayyar (' ), observed with reference to the aforesaid passages in the to certain passages in the Smriti Mitakshara, and also Chandrika, wherein the texts of Manu, Yajnavalkya and other Smriti writers dealing with the question of it shall· be degraded." In Placitum 11, indefinite l') ('909) I.L.R. 37 Cal. '• 7, (2) ('926) I.L.R !'at. 646, 681. (3) ['9n7] f.L.R. 32 Bom. s,. (1) [1898] I.L.R. 221\.-:fad. 113, 114. 1957 Kamala De11i v. Bachu Lal Gupta S. 1'. Das]. S.C.R. SUPREME COURT REPORTS 469 It was taken as is not law, further observed sisters were entitled allotment to be made by brothers to· their maiden sist the time of partition, were commented upon, ers at the true meaning of those texts that with regard commentators were divided : some of them held the texts mean is that funds required for the all that marriage of sisters should be provided out of father's estate but other commentators, Vijnaneswara among them, laid down that inclusive of their marriage expenses to a provision not they would have got had exceeding a fourth of what they been males. therein it was not necessary to decide which of the two law. Subramania Ayyar /. views was to be then said : "Assuming that, as argued the appel the view advocated by Vijnaneswara and his lant, followers that so high an authority the fact as the author of the Mitakshara propounds a rule favourable to maiden daughters ought to make one hesitate limited exceeding! y construction which was insisted on on behalf of the appellant and which can scarcely be said to be· in itself the texts justify a disburse ment 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 contend 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 por tion of the lands inherited by her from her husband to the widow Thaiyyu Ammal, who was a Hindu qualified owner, had authority to make such a gift. son-in-law, and the question was if reasonable, viz., that to accept as sound In Kudutamma v. Narasimla Charyulu('), the brother, as managing member of joint family, made a gift of a reasonable portion of the joint .fami~y properties to his sisters. The sisters were married m (1) (19-07) 17 M.L.J. 528, 531, 532. B-77 S C India/59 1957 Kamala Devi v. Bachu Lal Guµa S. 1'. Das]. 470 SUPREME COURT REPORTS (1957] though married in his father's 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 authori\y to make the f. observed : "If then a brother, finding gift. Miller that his sister lifetime, has been for any reason left without a marriage portion which she ought to have receiYed, it is difficult to how he can be held to have exceeded his powers if he makes goo;:J 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 there recalled by him or avoided by his son." fore be Wallis the judgment, observed : "In such a case there was, I think, a strong moral the father as obligation on family over to make a gift out of managing member family property on the occasion of the marriages either to the girls themselves or to their husbands as a provi sion 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 it, and I opinion, be regarded as putting an end to it continued until it was discharged by the deed the father's of gift now sued on and executed after death by his son, succeeded him as managing member of the joint family." the !st defenrlant, who f. who concurred in took place some In Churaman Sa!ut's case('), the gift was no doubt made on the occasion of the daughter's gouma cere mony which it was held that the gowna ceremonv marriage, and 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, two years after however, (1) (1909) I.L.R. 37 Cal. r,7. S.C.R. SUPREME COURT REPORTS 471 the decision in Churaman Sahu's case( 1 ), ) was approved, Kudutamma v. Narasimha Charyttlu( 2 and that was a decision in which the gift was made subsequent to the marriage and not on the occasion of any particular ceremony. 1957 Kamala Devi v. Badia Lal Gupta S. K. DasJ. It is also is difficult the decision that moral obligation at Sundararamayya v. Sitamma(3) is another decision of some importance. There the marriage took place the gift and there was no about forty years before evider1ce 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 in Churaman Sahu v. Gopi referring to Sahu(1) and Ramasami Ayyar v. Vengidusami Ayyar('), it was observed: "We see no reason to differ from these two decisions. The father or the widow is not bound to give any property. There may be no but only a moral obligation. true .that in the case before us the father did not make any gift and discharge time of marriage. But to see why the moral obligation does not sustain a gift because it was not the time of marriage but made to only some The moral obligation of the plaintiff's father continued in force till it was discharg ed by the gift in 1899." The learned Judges referred with approval in Kudutamma v. Narasimha Charyulu("). The decision in Bhagwati Shukul v. Ram /atan Tewari(") 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 It was ob~erved that no hard and fast rule could be laid down to define the extent and limit of the widow's power of disposing of marriage of her daughter. The decision of the same in Letters Patent appeal is case when reported as Bliagu1ati Shukul v. Ram /atan Tewari( 8 ). The decision of supply her with a handsome judge was upheld on the the earlier decision inherited by her the daughter at the property it went up the single dowry. later. (r) (1909) l.L.R. 37 Cal. 1,7. '.2) (1907) r7 M.L.J. 528,531,532. (3) (19u) I.L.R. 35 Mad. 6~8,629. (4( (1898) I.L.R. 22 Mad. 113, 114. (5; A.I.R. 1922 All. 381. (6) (r922) I.L.R. 45 All. 297. 1957 KtJmala Devi v. Bll&hu Lal Gup10 S.. K. Das], 472 SUPREME COURT REPORTS [1957] necessity" The property was the girl married, it was ground that in order to get to provide a "a the widow dowry of Rs. 500 or its equivalent by the gift of the property. value, being the neighbourhood of Rs. 500 only, the marriage of the circumstances and where under the girl into a suitable Brahmin family, having regard to her blindness and infirmity, necessitated the spend- ing of the equivalent in value of that property, then alienation was It legal necessity." a "sheer should be observed here that this decision is on its peculiar facts, and other decisions do not support the > lay down that an permissible ; most of alienation of a reasonable portion of the property only permissible. What is reasonable must depend on the facts and circumstances of each case. that an alienation of the entire property the decisions ' the whole property. In Vettor Ammal v. Pooch Ammal( 1 ), the gift was made some years after the marriage. The gift was reasonable being about upheld and was held to be one-sixth of In Sailabala v. Bai kuntha Nath('), 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 on ground that it was impossible to define the extent and the widow's power of disposing of property limit of inherited by her because it must depend upon the disposition when ever such dispo circumstances of sition was made. In Ram Sumran Prasad v. Gobind Das( 1 the 28th July, 1901, but two years earlier. the marriage The gift was made in pursuance of an earlier promise time of the and a verbal declaration made at the skirt of Gantha Pakrai the marriage. On mother-in-law) performed during an exhaustive review of the case was summarised follows : "The case law on subject the High Courts to uphold a gift by a nation of all landed property to her daughter or son-in-law widow of ), the gift was made on (catching hold of summarised above the decisions, took place indicates in 1899, (1) (1911) 22 M.L.J. 321. (2) A.I.R. 1926 Gal. f86. (3) [1926) l.L.R. ~' Pat.646, 681. 1957 Kamala Det:i v. Bachu Lal Gupta S. K. Das). S.C.R. SUPREME COURT REPORTS 473 )". justifiable in the deceased the marriage the occasiun of reasonable proportion father and the circumstances of the marriage or any ceremonies connected with the promise made may be fuifillcd afterwards ; and it is not essen tial to make a gift at the time of the marriage but that it may be made afterwards, upon ground that the gift whu1 made fulfils the moral and religious obligation of giving a portion of the property for the the son-inclaw. The only benefit of the daughter and limitation placed upon this power of making a gift is that it should bear a entire property of ,that the case should be laid down m Gossi Naut in terms of the principle Bysack v. H11rroosoo11dfy Dossee( 1 In Sit/zamaha laf(S!imamma v. Kotayya(' ), Mr. fustice Venkataramana the following words : Rao summarised the case law in "Thus it will be seen that it is competent to a Hindu father to make a gift of a reasonable portion of the ancestral immoveable property to his daughters with- the son ; , ......... It is a power vest- out reference ed in the father unde( the Hindu law, which he can exercise subject the restriction of limitations impos the said bw. The decided cases have ed on him by held that the gift must he a The question whether a particular gift is reasonable or not will have judged according to the state of the family at the time of the gift, the extent of the family immoveable propcrty, indebtedness of the family, 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 ,,·ill be binding on family members irrespective of members of the family ..... , .. li under a moral obligation 0;1 the family to make a prov1s10n as :.nd by w:.1y of a marriage portion and such obliga fulfilled by a reasonable pro tion continues until vi; ion being made that one of the the fact , sons lm become iudebtcd cannot take away the power In Pratap of the father to make such a gift ...... ". Kum11ur v. Raj Bahadur Si11gi1( 3 ) the: paramourrt charges which consent of reasonable one. therefor, to be .it the marriage (3) A.LR. 1943 Oudh 316. ; t) 'Morley's Digest 198. (2l A.I.R. 1936 Mad. 825,82;. 1957 Kamala Devi v. Bachu Lal Gupta S. K. Das]. 474 SUPREME COURT REPORTS [1957] the gift of fifteen villages at place in 1923 and the gift was made in 1926. After examining the evidence learned Judges held that Mst. Raj Kuer, the widow in question, did not make any "sankalpa" of time of her daughter's marriage. On behalf of the plaintiffs it was argued before them that a Hindu widow could make a gift of her husband's immoveable property to her daughter only 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 daught er and son-in-law was valid, even though she did not In make a "sankalpa"' at it was held that v. Raisang(' ), Abhesang Tirabhai 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 ), a father made a gift to his daughter of a sum Annavi( 2 of Rs. 5,000 and a usufructuary mortgage. It was held that the father had undoubtedly the power under the Hindu law of making within reasonable limits gifts of immoveable property to a daughter ; similarly, gifts of sums of money, if reasonable, would be upheld. time of marriage. favour of the decision As against the very large number of decisions refer red to above, the only decision which can be said to strike a dissenticnt note in Ganga Bisheslwr v. Firth; Pal('). 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 the defendant Ganga Bisheshar, family, in father-in-law of his daughter, on April 25, 1872, abont two years after the daughter. Mr. Justice Spankie observed as follows : "I under stand the finding of both the lower Conrts 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 tbc father in performance of a promise to give a dowry to his daughter. But I am not aware that the performance of such a promise can alienation be regarded as a bwful purpose (:1) (1380) I.L.R. 2 ;\ll. fi:Jj,638. the marriage of justifying r1; (1012) IJ Bon1. L.H .. , u~J'l, (2) .\ I.R '9" P.C. 201. • f )'--_, 1957 Kamala Devi v. Bachu I.al Gupta S. K. Das]. S.C.R. SUPREME COURT REPORTS 475 their marriage and It was not necessary under the Hindu law. support of the daughter, it was not for any religious or pious work, nor was it a pressing necessity. Daughters must be maintained until 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 texts bearing on the question, and 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. to prevent degradation, to a suitable husband ; it On an examination of the decisions referred to above, the following principles clearly emerge: (1) It is imperative religious duty and a moral obligation of a father, mother or other guardian to give a girl in is a duty which marriage and direct must be fulfilled spiritual benefit is conferred upon the father by such a (2) A Hindu widow in possession of the marriage. 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, property or the property itself is not sufficient to cover the expenses, she is entitled to sell the whole Qf it; but for acts which are .. pious and which conduce to 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 the marriage or any ceremonies the· marriage, are well recognised in connected with (5) If a promise is made of such a gift for Hindu law. or at the time of the marriage, that promise may be fullilled afterwards and it is not essential to make a gift the time of the marriage but it may be made after wards in fulfilment of the promise. (6) Some decisions the rn;:casion of income of 476 SUPREME COURT REPORTS [1957] 1957 Kamala Devi v. Bachu Lal Gupta S. K. Da> ]. obligation the length of holding that there is a moral or go to religious of gi1·ing a portion of the joint family property for the benefit of the daug:1ter and the son-in-hw, and a gift made the marriage mav be supported upon the ground that the gift when made fulfils that moral or religious obligation. long after In the case before us, It is not even necessary to go the decisions covered . by the to the extent to which bst item stated above (item o) have gone. The finding of the foul Court of fact that there was an ante nuptial agreement by Sumitra Devi she would give four houses at Asansol, of the value of Rs. 20,000, to her daughter as n1arriage dowry. tlnt promise as a religious act Sumitrc, Devi deceased which conferred the consideration whether she husband, irrespective of the marriage or made a "sankalpa" at \Ve have already stated that we concur not. finding of the Courts below that the gift was neither disproportionate nor unreasonable spiritml benefit uron her in extent. ~ras open to fulfit time of It to consider implementation of which was subsequent. T~1e 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 In one part of their attested by at least two witnesses. the aforesaid provi that but for judgment, they said the gift sions it mi~ht have been possible as having been made on the occasion of the marriage, In our opinion, the learned fudges of the High Court were in error with regard to the scope and effect of s. 123 of the Transfer of Property Act. true that a gift becomes le:~ally effective onlv when a registered instru section. S~ction 123 doe not deal with nor does it affect the power of a Hindu widow to make an aliena tion 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 in favour of her daughter make an effective gift the manner laid down is executed in It is S.C.R. SUP3.EM:t, COURT REPORTS 477 rnbscquent to th,. marriage, if the conditions laid down by Hindu law are fulfilled. For the reasons given above, we hold that the alie nation 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 : Kamala Devi v. Backu Lal Gupt.1 S. K. Das]. sub-section, both moveable Explanation.-In "(1) Any property possessed by a female Hit1du, 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. 'property' includes 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 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 such property held by her as stridhana also any immediately before the commencement of this Act. (1) 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." (2) Nothing contained sub-section before acquired or after "whether this Act" the section is There is no doubt that by reason of the use of the expression commencement of retrospec tive in effect. The Explanation to 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 coun two-fold. He has contended sel for the appellants immoveable "property" includes section 1 957 KamtJla Devi v. Ba;;hu Lal Gupta S. K. Das J. 478 SUPREME COURT REPORTS [1957] is still for. Alternativelv, that the four houses in question are now in the posses- sion of Kamala Devi and under s. 14 Kamala Devi is a full owner of the houses ; the plaintiffs-respondents therefore get the declaration which they have cannct has contended i1; possession of the houses, she Sumitra Devi also becomes a full owner and in that event also the reliefs jJbintiffs-respondents are not entitled claimed. the respondents has Learned counsel (2) of s. 14 which says that noth relied on sub-section ing 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 that Sumitra Devi got a property. restricted estate by the partition decree and sub-s. ( l) It is further argued to the estate. has no appli.cation that Kamala Devi as donee could not get a larger estate 1 ban what the donor had in the property, if the learned coun view of Hindu law, as contended for by sel for is accepted as correct ; is also not entitled to the benefit of fore, Kamala Devi sub-s. ( l) of s. 14. the respondents, restricted estate argued It We do not think that it the rival to s. 14 of alreadv is necessary to decide this to us with contentions presented case on the Hindu Succession Act, 1956. regard We Mst. Sumitra Devi could make a gift in favour of her <laughter as marriage promise in fulfilment of marriage, is binding on the made by her and that such a gift revcrsioncrs. That being the position, it is unneces sary to decide in thi:; case the trne scope and effect of s. 14 of the Hindu Succession Act, 1956. two years after ante-nuptial dowry, under Hindu For the reasons given above, we allow t11e appeal judgment and decree of the Courts and set aside the below. The of~ the plaintiffs-respondents must be dismissed and the appellants will be entitled to their costs throughout. Appeal allowed. GIPN-S5-77 S. C Tnd..ia/59-17-6-6'.?-1.000.