Guramma Bhratar Chanbasappa Deshmukh and Another vs Malappa

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 334 and 335 of 1960

Decision Date: 19 August 1963

Coram: Raghubar Dayal, J.R. Mudholkar, Subba Rao

In the case titled Guramma Bhratar Chanbasappa Deshmukh … vs Malappa decided on 19 August 1963, the Supreme Court of India, bench consisting of Justices Raghubar Dayal and J R Mudholkar, heard the petition filed by Guramma Bhratar Chanbasappa Deshmukh and another against the respondent Malappa. The judgment was delivered on 19 August 1963 by a bench that also included Justice Subbarao K, Justice Dayal, Justice Raghubar Mudholkar and Justice J R. The citation of the decision appears in 1964 All India Report 510 and 1964 Supreme Court Reporter (4) 497, with later citations including 1966 Supreme Court Reports 984 and 1967 Supreme Court Reports 569. The matters addressed in the case related to Hindu law concerning the powers of a joint‑family manager, the validity of gifts of property to strangers and to a daughter after marriage, the effect of adoption, the question whether the existence of a son in the womb at the time of adoption defeats the adoption, issues of partition, and the share of an adopted son compared with a natural‑born son among the Sudra communities of the Bombay Presidency.

The factual background recorded that a person referred to as “A” died on 8 January 1944 leaving behind three wives and two widowed daughters who were children of his earlier deceased wife. The eldest widow instituted a civil suit seeking partition of the family property and claiming possession of one‑sixth share, contending that the alienations made by her husband on 4 and 5 January 1944 should be set aside. It was alleged that at the time of “A’s” death his youngest wife was pregnant and subsequently gave birth to a male child on 4 October 1944. On 30 January 1944 the senior widow had adopted her sister’s son. A few days before his death, “A” executed two deeds of maintenance in favour of his two wives, who were designated as defendants 1 and 2 in the suit, and also executed deeds of gift in favour of the widowed daughter, a son of an illegitimate son and a relative. Earlier, “A” had executed a deed of maintenance and a deed of gift in favour of the senior widow, who was the plaintiff in the present suit. In the suit the two wives were named as defendants 1 and 2, the adopted son as defendant 3, the post‑humous son as defendant 4, and the persons who had received the alienated property as defendants 5 to 8. The two appeals that are the subject of the present judgment arise from a certificate that the High Court had granted.

The Court held three principal points. First, it held that the existence of a son in the womb does not invalidate an adoption and it referred to the decision in Narayana Reddi v. Varadachala Reddi and other earlier authorities such as Nagabhushanam v. Seshammagaru, Shamvahoo v. Dwarakadas Vasanji and Daulat Ram v. Ram Lal. Second, the Court held that the High Court was correct in affirming the alienations made in favour of the plaintiff and in setting aside the alienations made in favour of defendants 1 and 2. The Court explained that the former documents had been executed by “A” in 1937 and 1939 when he was the sole surviving coparcener, whereas the latter documents had been executed after a male child – the fourth defendant – had already been conceived, at which point “A” no longer possessed the power to alienate as a manager. Third, the Court held that a managing member of a joint Hindu family has the authority to alienate family property for value either for the necessity of the family or for the benefit of the estate, subject to the limitation that once another member is conceived or adopted, the manager’s power becomes circumscribed.

The Court observed that the sole surviving member of a coparcenary possessed an absolute power to alienate the family property because at the moment of alienation no other member held a joint interest in the family; however, if a further member was later conceived or admitted by adoption, the manager’s power became restricted as previously described, and any alienations made by the manager or father for a purpose not binding on the estate could be set aside at the instance of the subsequently born son or adopted son. The Court referred to Avdesh Kumar v. Zakaul Hassain, I.L.R. [1944] All 612, Chandramani v. Jambreswara, A.I.R. 1931 Mad. 550 and Bhagwat Prasad Bahidar v. Debichand Bogra, (1941) I.L.R. 20 Pat. 727 in support of this principle. The Court further held that a gift of joint family property to a stranger by the manager of the family was void, because the manager did not possess an absolute power of disposal over joint Hindu family property, citing Partha Sarathi Pillai v. Tiruvengada, (1907) I.L.R. 30 Mad. 340. The Court then explained that Hindu law texts afforded a daughter or a sister a right to a share in the family property at the time of partition; although that right was lost by the passage of time, it transformed into a moral obligation. Accordingly, the father or his representative could make a valid gift as reasonable provision for the maintenance of the daughter, taking into account the family’s financial and other relevant circumstances. By custom such gifts were often made at the time of marriage, but the right to make the gift was not limited to that occasion; it remained a continuing moral duty that could be discharged at any time, either during the father’s lifetime or thereafter. Applying these principles, the Court concluded that the deed of gift executed by the father in favor of the daughter, who was the eighth defendant in the present case, was within his lawful right and was certainly reasonable. The Court disapproved the view in Jinnappa Mahadevappa v. Chimmava, (1935) I.L.R. 59 Bom. 459 and approved the decisions in Vettorammal v. Poochammal, (1912) 22 M.L.J. 321; Kudutamma v. Narasimhacharyalu, (1907) 17 M.L.J. 528; Sundaramaya v. Seethamma, (1911) 21 M.L.J. 695; Ramaswamy Aiyyar v. Vengidsami Iyer, (1898) I.L.R. 22 Mad. 113; Bachoo v. Mankorebai, (1907) I.L.R. 31 Bom. 373; Ramalinga Annavi v. Narayana Annavi, (1922) 49 I.A. 168; Sithamahalakshmamma v. Kotayya, (1936) 71 M.L.J. 259; Annamalai v. Sundarathammal, (1952) 2 M.L.J. 782; and Churaman Sahu v. Gopi Sahu, (1910) I.L.R. 37 Cal. 1. The Court also held that the Hindu law applicable to Sudras extended to Lingayats as well. Finally, the Court noted that in the Bombay Presidency the rule accepted in Dattaka Chandrika had never been followed, and that the share of an adopted son competing with a natural‑born son among Sudras was always one‑fifth of the family property, that is, one‑fourth of the natural‑born son’s share.

The Court explained that under the rule recorded in Dattaka Chandrika, members of the Sudra community were required to divide the family property equally between an adopted son and a later‑born natural son; this rule was applied in the Madras and Bengal provinces. The Court cited several authorities that discussed the rule, including Tirkangauda Mallangauda v. Shivappa Patil, I.L.R. 1943 Bom 706; Gopal Narhar Safray v. Hanumant Ganesh Safray, (1879) I.L.R. 3 Bom 273; Gopalan v. Venkataraghavulu, (1915) I.L.R. 40 Mad 632; and Asita v. Nirode, (1916) 20 C.W.N. 901. It noted that the case Arumilli Perrazu v. Arumilli Subbarayadu, (1921) 48 I.A. 280 was distinguished, while the decisions Giriapa v. Ningapa, (1892) I.L.R. 17 Bom 100 and Tukaram Mahadu v. Ramachandra Mahadu, (1925) I.L.R. 49 Bom 672 were approved. The judgment proceeded to set out the civil appellate jurisdiction concerning Civil Appeals Nos. 334 and 335 of 1960, which were appeals from the Bombay High Court judgment and decree dated 16 and 17 August 1955 in First Appeal No. 341 of 1950. The record listed the counsel appearing for the various parties: A. F. Viswanatha Sastri, M. Rajagopalan and K. R. Chaudhri for appellants Nos. 1 and 3 in C.A. No. 334/60 and for respondents Nos. 1 and 3 in C.A. No. 335/60; R. Gopalkrishnan for appellants Nos. 4, 5 and 13 in C.A. No. 334/60 and for respondents Nos. 4, 5 and 13 in C.A. Nos. 335/60; Naunit Lal for appellants Nos. 6, 9 to 11 and 12 in C.A. No. 334/60 and for respondents Nos. 6, 9 to 11 and 12 in C.A. No. 335/60; and N. C. Chatterjee, S. Venkatakrishnan and A. G. Ratnaparkhi for the respondents in C.A. No. 334/60 and for the appellants in C.A. No. 335/60. The judgment was delivered on 19 August 1963 by Justice Subba Rao. The two appeals, taken by certificate, arose out of Special Civil Suit No. 47 of 1946 that had been filed by Nagamma, the wife of Chanbasappa, seeking partition and possession of a one‑sixth share in the scheduled properties along with mesne profits. The factual background recorded that Chanbasappa died possessing a large extent of immovable property on 8 January 1944, leaving three wives—Nagamma, Guramma and Venkamma—and two widowed daughters, Sivalingamma and Neelamma, who were children of his pre‑deceased wife. It was alleged that Venkamma was pregnant at the time of death and gave birth to a male child on 4 October 1944. Further, it was alleged that on 30 January 1944 Nagamma, the senior widow, adopted her sister’s son Malappa. A few days before his death Chanbasappa executed gift and maintenance deeds in favour of his wives, the widowed daughters, a son of an illegitimate child, and a relative. Earlier, he had also executed a deed of maintenance and a separate gift deed of certain property in favour of Nagamma. The Court noted that these alienations would be examined in detail at the appropriate stage. Nagamma, as one of the three surviving widows, had filed the suit to recover her share after setting aside the alienations made by her husband on 4 and 5 January 1944. In that suit Guramma and Venkamma, the other two widows, were made defendants 1 and 2, and the alleged adopted son was named as defendant 3.

In this proceeding the parties were identified as follows: the son described as defendant 3, the alleged post‑humous son described as defendant 4, and the individuals who had received alienated property described as defendants 5, 6, 7 and 8. Defendant 3 aligned himself with the plaintiff and supported her claim, while the remaining defendants opposed the suit. The defendants who contested the action denied both the fact and the legal validity of the adoption of defendant 3 by the plaintiff and asserted that defendant 4 was indeed the post‑humous son of the deceased Chanbasappa by his second wife, Venkamma, who was designated as defendant 2. The alienees, defendants 5 through 8, sought to uphold the legality of the alienations that had been made in their favour. The court framed a total of twelve distinct issues for determination. The learned Civil Judge held that the adoption of defendant 3 by the plaintiff, which had been effected on 30 January 1944, was not valid under law; that defendant 4 was a child born to defendant 2 by the deceased; that the plaintiff had not succeeded in proving that the deeds executed by Chanbasappa on 4 January 1944 in favour of defendants 2, 5, 6, 7 and 8 were tainted by fraud; and that the plaintiff was entitled to a one‑sixth share in the suit property together with a decree for its partition and recovery. Accordingly, the Civil Judge ordered a partition and directed that the plaintiff receive her one‑sixth share. He further held that each of defendants 1 and 2 would likewise be entitled to one‑sixth of the property, while defendant 4 would receive three‑sixths. The judge declared that all deeds executed by the deceased, whether in favour of the plaintiff or the other defendants, were binding on the parties to the suit, and he directed that an enquiry be conducted to determine future mesne profits from the date of the suit. The plaintiff and defendant 3 appealed this decree to the High Court under First Appeal No 341 of 1950, challenging the portions of the decree that were adverse to them. The High Court affirmed the Civil Judge’s finding that defendant 4 was the post‑humous son of the deceased by defendant 2, and it accepted the fact of adoption, but it held that the adoption was valid under law. The High Court further declared that the deeds executed by the deceased on 4 and 5 January 1944 in favour of defendants 6, 7 and 8 were invalid, as also the gift deed in favour of defendant 5. It ruled that because defendants 1 and 2 were already receiving a share in the property, they could not claim separate maintenance under the deed executed by their husband, and it ordered that the property held under those deeds be brought into the hotchpot and divided among all parties. The High Court apportioned the suit property as follows: the plaintiff and each of defendants 1 and 2 would receive a share of four‑twenty‑sevenths; defendant 3 would receive one‑ninth; and defendant 4 would receive four‑ninths. The court also issued further directions concerning the manner of partition, the allocation of costs, and the assessment of mesne profits. Subsequently, the plaintiff and defendant 3 filed Civil Appeal No 335 of 1960, while defendants 1, 2, 4 and 5, represented by their legal counsel, also pursued appeals before this Court.

Defendants 7 and 8 filed Civil Appeal No. 334 of 1960 before this Court, contesting the decree of the High Court to the extent that it was adverse to them. At the beginning, the Court found it useful to clarify the material points of dispute between the parties. The adoption of defendant 3 by the plaintiff was admitted as a fact, but the legality of that adoption was placed in question. It was also undisputed that defendant 4 was the posthumous son of Chanbasappa by the second defendant. Consequently, only the following questions remained for determination in the present appeals: first, whether the adoption of defendant 3 by the plaintiff was void because it was effected after defendant 4 had already been conceived; second, whether the alienations made in favour of defendants 2, 5, 6, 7 and 8 were binding upon the members of the family; and third, what share an adopted son of a Sudra is entitled to when competing with a natural born son.

Counsel for the appellants, defendants 1 and 4, argued that the adoption of defendant 3 was void since defendant 4 had been conceived at the time of the adoption. He urged the Court to extend, by analogy, the legal position that protects the right of a son in the womb when his father alienates family property, to the situation of an adopted son in comparable circumstances. The Court observed that the Hindu law treatises provide limited guidance on this issue. The treatises Dattaka Chandrika and Dattaka Mimamsa, which are dedicated to the law of adoption, were referred to. Nanda Pandita, in Dattaka Mimamsa, quoted passages from Atri and Cankha: “By a man destitute of son only must a substitute for the same be adopted” (Atri) and “One to whom no son has been born, or whose son has died having fasted, etc.” (Cankha). In section 13, Nanda Pandita interpreted the phrase “destitute of a son” to include a son’s son and a grandson.

Further, Dattaka Chandrika presented the relevant excerpts from Cankha as follows: “One destitute of a son” (see section I, 4) and “One having no male issue” (see section II, 1). The Court noted that, on their face, these passages do not equate a living son with a son in the womb. If the authors of these treatises had intended such an equivalence, they would have expressed it clearly, because extending the doctrine in that manner would introduce uncertainty into the law of adoption and could defeat, in certain cases, the religious purpose that underlies adoption. The Court also affirmed the settled principle that the primary purpose of adoption is to secure spiritual benefit for the adopter, while the secondary purpose is to provide an heir to perpetuate the adopter’s name. Accordingly, the validity of an adoption must be assessed in light of these objectives.

The Court explained that the validity of an adoption should not be linked to uncertain future events that may or may not occur. It rejected the suggestion that an adoption could be made only when there was absolute certainty that the adopter would not have a son, and that the existence of a pregnancy in the adopter’s wife would automatically render the adoption void. The authorities cited by the opposite argument did not support such a proposition, and accepting it would create absurd results. For instance, the Court considered a scenario where a husband, seriously ill and unaware of his wife’s pregnancy, proceeded to adopt a child; under the proposed rule the mere fact of an undisclosed pregnancy would invalidate the adoption, regardless of whether the pregnancy ultimately resulted in a live birth. If the husband knew about the pregnancy, the rule would prevent him from adopting, even though the pregnancy might later end in an abortion, a stillbirth, or result in a daughter, none of which would affect the need for a son. Moreover, established law treats a son’s son and a grandson as part of the definition of “son,” and by the same logic the Court warned that the pregnancy of a son’s widow or a grandson’s widow could also be argued to invalidate an adoption, introducing unacceptable uncertainty. The Court emphasized that such a condition of non‑pregnancy could not be imposed unless Hindu legal texts or binding judicial decisions required it, and it found no Hindu law source that made non‑pregnancy a prerequisite for exercising the power to adopt. High Court judgments on the matter, the Court noted, uniformly rejected the acceptance of any such condition. However, a decision of the Sudr Adalut in Narayana Reddi v. Vardachala Reddi observed that the essence of the power to adopt was that the adopter must be hopeless of having issue. Commenting on this view, Mayne distinguished a husband adopting while knowing his wife was pregnant from one who adopted without such knowledge, stating that if a wife known to be pregnant at the time of adoption later gave birth to a son, that son might be deemed to preclude the adoption. A division bench of the Madras High Court in Nagabhushanam v. Seshammagaru criticized both the pandits’ opinion and Mayne’s observation, concluding that an adoption by a Hindu who knew of his wife’s pregnancy was not invalid. The Bombay High Court in Shamavahoo v. Dwarkadas Vasanji adopted the same view, and a division bench of the Allahabad High Court in Daulat Ram v. Ram Lal followed the Madras and Bombay decisions. No other authority was found that took a contrary position or doubted this approach. All the standard textbooks, including those authored by Mayne, Mulla, and Sarkar Sastri, accepted the correctness of this interpretation.

Mr. Viswanatha Sastri argued that, under Hindu law, a child who is conceived and therefore lying in his mother’s womb enjoys many of the same rights as a child who is already born. He said that such a child is treated as equal to a living son concerning inheritance, partition, survivorship and the right to set aside any alienation made by his father. Accordingly, Sastri contended that the same principle should apply to adoption, because if a child in utero can contest an alienation, then a father could not validly adopt a child after conception, for the child would be deemed to exist from the moment of conception. The counsel then drew a distinction between the secular rights involved in contesting an alienation, partition or inheritance and the spiritual purpose of adoption. He explained that a son’s right to challenge an alienation rests on his secular entitlement to a share in the joint family property, a right that arises by birth, and that transactions made by the father beyond his authority while the child was still an embryo are voidable, as reflected in the earlier authorities (1978‑81) I.L.R. 3 Mad. 180; (1888) I.L.R. 12 Bom. 202; (1907) I.L.R. 29 AU. 310. By contrast, the power to adopt is granted primarily to secure a spiritual benefit for the father and to fulfil a religious duty. Accordingly, the doctrine that evolved for secular purposes should not be extended to adoption, because doing so would create many anomalies and could frustrate the very purpose of conferring the power of adoption. The Court therefore held that the mere existence of a son in the womb does not render an adoption invalid.

The next point raised by Mr. Viswanatha Sastri was that, having set aside the alienations made by Chanbasappa, the High Court ought to have brought those properties into the hotchpot for the purpose of partition. The counsel listed the particulars of the alienations at this stage. The exhibits included documents such as Deed 3624‑1‑44 D‑1 in favour of Guramma (a maintenance deed of the Pit. School A), Deed 3725‑1‑44 D‑2 in favour of Venkamma (a maintenance deed of the Pit. School A together with a gift‑over to D‑5), Deed 3694‑1‑44 D‑6 in favour of Imam Sahib (a gift deed of the Pit. School A), Deed 3704‑1‑44 D‑7 in favour of Channappa (a deed of the Plant School A‑3), Deed 3714‑1‑44 D‑8 in favour of Neelamma (a maintenance deed of the Plant School A‑3), as well as Deeds 346 dated 30‑1‑37 and 347 dated 14‑2‑39 executed by Nagamma (maintenance and gift deeds respectively). The Court observed that this argument rested on a misapprehension. It noted that, after setting aside the alienations—including those benefiting defendants 1 and 2—the High Court directed that the property be divided according to the shares it had declared. This position was also conceded by the parties, and consequently the Court did not pursue the matter further.

The Court noted that the position regarding the shares declared by it was also conceded on behalf of both the plaintiff and defendant three. Consequently, the Court found that there was no necessity to continue examination of that issue, and therefore it was not pursued further. Mr K R Chaudhri, following the submissions of Mr Viswanatha Sastri, argued that High Court erred by distinguishing documents executed in favor of the plaintiff from those executed in favor of defendants one and two. He observed that while the High Court confirmed exhibits 346 and 347 in favor of the plaintiff, it set aside the deeds benefiting defendants one and two. The Court rejected this contention, holding that it lacked any substantive merit in law and could not be sustained. The documents in favor of the plaintiff are exhibit 346 dated 30 January 1937 and exhibit 347 dated 14 February 1939. Both exhibits were executed by Chanbasappa when he was the sole surviving coparcener of the joint family at that time. In contrast, the deeds favoring defendants one and two were executed after the fourth defendant had been conceived. The former deeds were executed while Chanbasappa possessed absolute power of disposal, whereas the latter were executed after he had lost that absolute power. Based on this factual distinction, the High Court correctly set aside the alienations made in favor of defendants one and two.

Mr Naunit Lal, appearing for representatives of defendant seven, who are parties in Civil Appeals No. 334 and 335 of 1960, argued that the gift deeds executed by Chanbasappa were binding on all family members. He further asserted that these deeds specifically favoring defendants seven and eight imposed obligations upon the entire family. The High Court, however, held that Chanbasappa could not validly make those gifts of joint‑family immovable property after the conception of the fourth defendant, and therefore declared them void. Mr Naunit Lal further contended that the alienations effected by Chanbasappa were voidable only at the instance of the fourth defendant, who was in utero at the time of the alienations. He added that because the fourth defendant later adopted the property, the third defendant, who was adopted after the alienations, could not question their validity. Before addressing the legal aspects, the Court stated unequivocally that the question of consent of the fourth defendant could not arise. This was because he was unborn when the alienations were made and was a minor at the time the suit was filed. Accordingly, the Court proceeded on the premise that the alienations were performed by a joint‑family member without the consent of the other coparceners. Consequently, at the time of those alienations Chanbasappa did not possess absolute power to alienate family property but only a limited power to do so for necessity or for the benefit of the estate. The Court observed that the relevant principles are well settled, noting that a coparcener, whether natural‑born or adopted, acquires an interest in the ancestral property by birth or adoption.

In the law governing joint family property, every coparcener acquires an interest either by birth or by adoption. A member who is designated as the managing person of the family may alienate the joint family property for value, but only when the alienation is intended for the necessity of the family or for the benefit of the estate. The managing member may also alienate property if he obtains the consent of all the coparceners. When a single coparcener remains alive, that sole survivor possesses full authority to alienate the family property because there is no other person holding a joint interest at that time. However, if another member existed at the time of the alienation, or if a member was in the womb of his mother, the managing member’s authority is limited as previously described. In such circumstances the alienation becomes voidable at the instance of the existing member or the member who was in the womb and later born, unless the alienation was made for a purpose that binds the family member, the existing member gave consent, or the subsequently born member ratified the alienation after reaching majority. The right of a member who was conceived in the family or admitted by adoption before any consent or ratification to challenge the alienation is not impaired. Authoritative decisions such as Avdesh Kumar v. Zakaul Hassain, Chandramani v. Jambeswara and Bhagwat Prasad Bahidar v. Debichand Bogra illustrate these principles. In the present matter the alienations that are being challenged were effected when the fourth defendant was still in the womb, which means that the managing member, Chanabasappa, possessed only a limited power of disposal over the joint family property at that moment. Because the fourth defendant could not give consent nor ratify the alienations before the adoption of the third defendant, any alienation made for a purpose not binding on the estate would be voidable at the option of either the third or the fourth defendant.

The subsequent issue before the Court concerned whether two specific gifts made by Chanabasappa were binding on the family estate. The gifts are documented in Exhibit numbers 370 and 371; the former was made to the seventh defendant and the latter to the eighth defendant. The High Court, following the reasoning of the learned Civil Judge, set aside both gifts on the ground that the donor lacked the authority to dispose of family property by gift. Counsel representing the legal heirs of the defendants sought to uphold the validity of the two gifts, urging the Court to examine each deed separately. Exhibit 370, dated 4 January 1944, is a deed in which Chanabasappa purportedly gifted immovable property worth one thousand five hundred rupees to Channappa, the seventh defendant. The deed describes the donee as a relative of the donor and states that the gift was made as a token of love for services rendered by the donee. The Court will now consider whether this gift, and the analogous gift in Exhibit 371, were made for purposes that bind the family or whether they fall within the limited authority of the managing member, thereby rendering them voidable.

In this case the gift was described in the deed as having been made out of love and affection for the donee during the donor’s lifetime. The donor’s counsel argued that the gift was created for “pious purposes” and therefore should be regarded as valid under law. The Court considered whether a gift of this character, given to a relative out of love and affection, could be classified as a gift for “pious purposes” within Hindu law. The Mitakshara, Chapter I, Section 1, Verse 28, was quoted: “Even a single individual may conclude a donation, mortgage, or sale of immovable property, during a season of distress, for the sake of the family and especially for pious purposes.” To support the proposition that pious purposes include charitable purposes, counsel relied on passages from Mukherjea’s Hindu Law of Religious and Charitable Trust, second edition. The author, at page 12, observed: “In the Hindu system there is no line of demarcation between religion and charity. On the other hand charity is regarded as part of religion… All the Hindu sages concur in holding that charitable gifts are pious acts par excellence, which bring appropriate rewards to the donor…” Further, at page 58, the author noted: “Religious and charitable purposes have nowhere been defined by Hindu lawyers. It was said by Sir Subrahmanya Ayyar J. in Partha Sarathi Pillai v. Tiruvengada that the expression ‘dharma’ when applied to gifts means and includes according to Hindu text writers, what are known as Istha and Purtta works. As I have said already in the first lecture, no exhaustive list of such works has been drawn up by the Hindu lawgivers, and they include all acts of piety and benevolence whether sanctioned by Vedas or by the popular religion, the nature of the acts differing at different periods of Hindu religious history.” The author defined the terms at page 10: “By Istha is meant Vedic sacrifices, and rites and gifts in connection with the same; Purtta on the other hand means and signifies other pious and charitable acts which are unconnected with any Srouta or Vedic sacrifice.” Consequently, the Court acknowledged that the expression “pious purposes” is sufficiently wide to encompass charitable purposes in certain circumstances, even though the precise limits of charitable purposes have not been exhaustively defined.

Turning to the matter before the Court, the central issue was the authority of a manager of a joint Hindu family to make a gift of family property to an outsider. The Court observed that the limitations on a manager’s power have been clearly delineated by earlier decisions interpreting the pertinent passages of Hindu law. While jurisprudence has permitted a manager to transfer a modest portion of joint family property to a stranger when the transfer is made for pious purposes, the Court found that no precedent authorizes such a gift to a stranger without restriction, regardless of the donor’s personal feelings toward the donee. Moreover, no authority was cited that would sustain a gift of this nature to an outsider even if the donor claimed a charitable motive. Accordingly, the Court held that the power of a manager does not extend to making a gift of joint family property to a stranger, and such a gift must be considered void.

In this case the Court observed that a manager of a joint Hindu family does not possess absolute authority to dispose of the family’s property and referred to the decision in (1) (1907) I.L.R. 30 Mad. 340, which confirms that Hindu law limits the manager’s power to strict boundaries; the Court therefore rejected the argument that the manager’s power could be expanded on the basis of the wide interpretation given to the words “pious purposes” in a different context and, accordingly, held that a gift of joint family property to an outsider made by the manager is void. The second document, Exhibit 371 dated 4 July 1944, records that Chanbasappa created a life‑interest in property valued at about Rs 5,000 in favour of his widowed daughter, the eighth defendant, stating that “you are my own daughter and your husband is dead; after his death you have been living in my house only; for your well being and maintenance during your lifetime I have already given some property to you; as the income from the said property is not sufficient for your maintenance, you have asked me to give some more property for your maintenance; I have therefore gladly agreed and passed a deed of maintenance in your favour regarding the below‑mentioned property and delivered it to your possession today only.” Under that deed the daughter was to enjoy the property during her lifetime and thereafter the interest would pass to the fifth defendant, making the gift‑over void; however the Court examined whether the provision for the daughter’s maintenance during her lifetime would also be invalid. The Court did not dispute the factual recitals and accepted evidence that the family owned extensive property worth lakhs, and identified the short question as whether a father could validly confer a life‑interest in a small portion of family property on his indigent widowed daughter for her maintenance. The Court referred to Jinnappa Mahadevappa v. Chimmava (1) (1935) I.L.R. 59 Bom. 459, 465, where Justice Rangnekar of the Bombay High Court held that under the Mitakshara school a father has no right to make even a small gift of joint family immovable property to his daughter, even when the gift is founded on gratitude for her care in his old age; Justice Rangnekar distinguished earlier cases on the ground that they were based on long‑standing customs and warned that ignoring the elementary principles of Hindu law out of sympathy would make it impossible to draw a clear line.

In the earlier judgment the learned judge had warned that allowing sympathy to guide legal principles could create difficulties that no amount of effort could resolve. The Court agreed that sympathy must not influence the formulation of law. Consequently, if the Hindu law scriptures plainly and expressly forbid a father from granting a portion of the family estate to his widowed daughter who is living in poverty, the Court recognised that its role was to apply the law as it stood, leaving any amendment to the legislature. The Court therefore set out to examine the pertinent Hindu legal texts that dealt with this question. It first observed that verses 27, 28 and 29 of Chapter I of the Mitakshara treat the restrictions on a father’s power to alienate ancestral property. Those verses, however, do not speak directly about a father’s right to provide for his daughter by conveying a share of the family lands either at the time of her marriage or at a later stage. That particular right, the Court noted, was articulated in separate passages of Hindu jurisprudence and had been developed over a long series of judicial decisions that interpreted those passages. The Court referred to the compilation of those passages in the case of Vettorammal v. Poochammal. Section 7 of Chapter I of the Mitakshara addresses provisions for widows, unmarried daughters and similar parties. Placitum 10 and Placitum 11, on the other hand, prescribe portions for sisters when the brothers partition the estate after the father’s death. The commentator Vignaneswara regarded the allocation of a share to daughters as a compulsory duty. In his commentary on Chapter I, sections 7, paragraphs 10 and 11, he wrote that “the allotment of such a share appears to be indispensably requisite, since the refusal of it is pronounced to be a sin.” He supported this view by citing Manu’s text, which declares that those who refuse to give the share are to be degraded, specifically pointing to Manu Chapter I, section 118. Likewise, Placitum 11 in Chapter 1 characterises the withholding of the portion as a sin. The Madhaviya, on pages 41 and 42, quotes a passage from Katyayana that authorises a father to bequeath immovable property to his daughters, in addition to movable gifts not exceeding two thousand phanams per year. A further citation from Brihaspati appears in Vyavahara Mayukha, page 93, stating, “Let him give adequate wealth and a share of land also if he desires.” Devala likewise observes that a nuptial portion of the father’s estate should be given to maidens, as recorded in Colebrooke’s Digest, volume 1, page 185. Manu further directs that unmarried daughters born of the same mother should receive portions from their brothers equal to one‑fourth of each brother’s distinct share, and that refusal to comply results in degradation. Taken together, these passages and analogous texts demonstrate that Hindu law not only permits fathers to grant property to daughters at the time of partition or marriage, but also condemns the failure to fulfil that duty in unequivocal terms.

In the passages cited, the Hindu law texts not only authorize a father to give property to his daughters but also condemn the failure to perform that duty in unequivocal terms. Although these texts have become obsolete, the legal right of a daughter to a share in family property at the time of partition has been lost. Nevertheless, the loss of a legal right has been transformed into a moral obligation on the part of the father to provide for the daughter, either as a marriage portion or at a later date. The courts have recognized that such a provision may be made not only by the father while he is alive but also after his death by an authorized family representative or even by the widow of the father.

The decision in Kudutamma v. Nara‑simhacharyalu (1907) 17 M.L.J. 528 illustrates this principle. In that case the Court held that a Hindu father was entitled to make gifts to his daughters, out of family property, as marriage portions to a reasonable extent. The first defendant, who was the half‑brother of the plaintiffs and the father of the second defendant, after the death of his own father and the birth of the second defendant, acted as guardian for the latter and executed a deed of gift transferring certain portions of the joint family property to the plaintiffs jointly. The issue before the Court was whether that gift was valid. The facts showed that the gift was made by the brother to his half‑sisters not at the time of their marriage but subsequently. Despite the lapse of time, the Court upheld the gift.

Justice Wallis, delivering the judgment, observed that historically unmarried daughters were entitled to a share on partition and that, after marriage, they were entitled to an endowment. Although that right has fallen into desuetude, the Court has continued to sustain a gift made to a daughter as a provision for the married couple. He summarized the position at page 532, stating that although the joint family and its representative—whether the father or another managing member—may no longer be legally bound to provide an endowment at the occasion of marriage, they remain morally bound to do so whenever the circumstances of the case make it reasonably necessary. The Court further explained that if such a provision was not made at the time of marriage, the moral obligation could be discharged later by a family representative. He quoted his own observation that mere neglect by the joint family at the time of marriage does not terminate the moral duty; the duty continues until it is fulfilled by a deed of gift executed after the father’s death by his son, the first defendant, who had succeeded him as the managing member of the joint family.

Another division Bench of the Madras High Court considered a similar issue in Sundararamaya v. Seethamma (1911) 21 M.L.J. 695, 699. That Bench upheld the validity of a gift of eight acres of ancestral land made by a Hindu father to his daughter after her marriage, when the family owned two hundred acres. The marriage had occurred about forty years before the gift, and there was no evidence that the father had intended any property transfer at the time of the marriage. The learned judges, Munro and Sankaran Nair JJ, explained that the father or the widow is not legally bound to give any property, but a moral obligation may exist. They observed that although the father had not made any gift at the time of the marriage, the moral obligation persisted and was fulfilled by the later gift made in 1899. Thus, the Court affirmed that the moral duty to provide for a daughter can survive the failure to act at marriage and may be satisfied by a subsequent gift executed by a competent family representative.

In the case discussed, the Court examined earlier judgments that addressed the question of whether a Hindu father could lawfully transfer ancestral land to his daughter after her marriage, even when the family owned a substantial amount of land. One cited case involved a gift of eight acres of ancestral land made by a father to his daughter; the marriage had taken place approximately forty years before the gift was executed. The evidence showed that at the time of the marriage the father had no intention of conveying any property to the daughter. The learned judges, Munro and Sankaran Nair JJ, elucidated the legal position by stating that neither the father nor the widow was legally bound to give any property to a daughter, although a moral obligation might exist. They observed that, in the present matter, the father had neither made a gift nor discharged any moral obligation at the time of the marriage. Nevertheless, the Court found it difficult to deny that a moral obligation could give rise to a later gift, even though the transfer was not made at the time of the marriage but some years thereafter. The judges concluded that the moral obligation of the plaintiff’s father persisted until it was satisfied by the gift conveyed in 1899.

The Court then referred to another division bench decision of the Madras High Court in Ramaswamy Ayyer v. Vengidusami Ayyer, which held that a gift of land made by a widow on the occasion of her daughter’s marriage, given to the bridegroom, was valid. Further, the judgments of Sundara Aiyer and Spencer JJ in Vettorammal v. Poochammal were cited, wherein the Court declared that a gift made by a father to his own daughter, or by a managing member of a joint family to the daughter of any coparcener, would be valid against the donor’s son provided the gift was of a reasonable amount. After an extensive analysis of the relevant legal texts and case law, the learned judges arrived at the conclusion that the plaintiff’s father possessed the competence to make a gift of ancestral property to the first defendant, who was the daughter of the plaintiff’s brother. The judges also emphasized that the validity of such a gift depended upon its reasonableness.

To support this conclusion, the Court quoted the legal reasoning articulated at page three hundred twenty‑nine of the judgment, stating that although a daughter could no longer claim a legal right to a share of her father’s property, the Hindu community fully recognized the moral duty to provide for her whenever possible. This moral duty, the Court held, could underpin a lawful disposition made by the father for that purpose. The Court further referenced the decision in Bachoo v. Mankorebai, where the Judicial Committee upheld a gift of twenty thousand rupees made by a father possessing considerable ancestral property to his daughter. Although that case involved a gift of movable property rather than immovable land, the Court observed that the same principles applied to gifts of immovable property, as illustrated by the Judicial Committee’s earlier decision in Ramalinga Annavi v. Narayana Annavi. In that precedent, both the subordinate judge and the High Court had held that assignments by a member of a joint Hindu family to his daughters of a sum of money and a usufructuary mortgage were valid because they were reasonable in the circumstances in which they were made. The Privy Council affirmed the High Court’s finding, reinforcing the view that a father, under Hindu law, may make gifts of movable property to a daughter within reasonable limits, and that a modest gift of immovable property may also be upheld if it is not shown to be unreasonable.

The Court noted that a sum of money and a usufructuary mortgage had been declared valid because they were reasonable under the circumstances in which they were created, and that the Privy Council had affirmed the High Court’s finding. While examining the point, Mr Ameer Ali quoted the observation on page 173 that “the father has undoubtedly the power under the Hindu law of making, within reasonable limits, gifts of movable property to a daughter,” and added that in one case a Board had upheld a gift of a small share of immovable property on the ground that it was not shown to be unreasonable. The judgment of Venkataramana Rao J. in Sithamahalakshmamma v. Kotayya (1) addressed the validity of a gift made by a Hindu father of a reasonable portion of ancestral immovable property to his daughter, without reference to any son. In that decision, the learned judge observed on page 262 that there can be no doubt that a father bears a moral duty to provide a reasonable portion of family property as a marriage portion to his daughters at the time of their marriages, that this duty continues until it is fulfilled, and that a gift of a small portion of immovable property by a father is therefore binding on the members of the joint family. Turning to the question of how far a father may dispense family property, the judge explained that the reasonableness of any particular gift must be judged by considering the family’s condition at the time of the gift, including the extent of immovable property, the family’s indebtedness, and the paramount obligations it must meet; if, after taking these circumstances into account, the gift is found reasonable, it will bind all joint‑family members regardless of their consent. This approach was subsequently followed by Chandra Reddy J. of the Madras High Court in Annamalai v. Sundarathammal (2) (1936) 71 M.L.J. 259; (1952) 11 M.L.J. 782, 784. A division bench of the Calcutta High Court in Churaman Sahn v. Gopi Sahu (1) held that a Hindu widow governed by Mitakshara law could validly give a reasonable portion of her husband’s immovable property to her daughter on the occasion of the daughter’s Gouna ceremony. The learned judges have consistently applied several of the aforesaid Madras High Court decisions. Consequently, apart from a solitary judgment of a Bombay High Court judge in Jinnappa Mahadevappa v. Chimmava (2), all authorities on the subject recognize the validity of a gift of a reasonable extent of joint‑family property to a daughter under varied circumstances. The earlier observations of Rangnekar J. that Hindu law does not sanction such a gift and that the decisions relied only on long‑standing custom were therefore deemed inaccurate.

The Court observed that the suggestion that the validity of such a gift was based only on long‑standing custom was not correct, because both Hindu law texts and decided cases support the possibility of making a gift of family property to a daughter. The Court summarized the legal position as follows. Hindu law texts originally gave a daughter or a sister a right to a share in the family property at the time of partition. That statutory right ceased to exist as time passed, but the principle evolved into a moral obligation on the part of the father or his representative to provide a reasonable provision for the daughter’s maintenance, taking into account the family’s financial and other relevant circumstances. Customarily, such gifts are made at the time of marriage, yet the Court clarified that the right to make the gift is not limited to the marriage occasion. The obligation persists until it is satisfied, and marriage is merely a customary occasion for the gift. The Court further explained that the obligation may be fulfilled at any time, either during the father’s lifetime or thereafter, and that no rigid rule can prescribe the exact quantitative limit of the gift because each case must be assessed on its own facts. The Court stated that the appropriate authority to decide the quantum is the Court, which must consider the overall extent of the family estate, the number of daughters to be provided for, any paramount charges, and similar circumstances. The Court noted that if the father is within his rights to make a reasonable gift of family property for the maintenance of a daughter, the gift need not be executed in a single document or at a single point in time. The validity and reasonableness of a gift depend on the father’s power to make the gift and the reasonableness of the gift itself, not on the number of deeds executed. Accordingly, once the father’s power is established and the reasonableness of the gift is not contested, the execution of two gift deeds rather than one does not render the gift invalid. Applying these principles, the Court found no doubt that, in the present case, the father’s gift was within his right and was reasonable. The family owned extensive property, and the father had given the daughter only a life‑estate in a small parcel of land in addition to the maintenance already provided. No allegation was made that the gift was unreasonable in the circumstances. Consequently, the Court held that the document was valid to the extent of the right conferred on the eighth defendant.

The petitioners, who were the appellants in Civil Appeal No. 334 of 1960 and also in Civil Appeal No. 335 of 1960, pleaded that, when an adopted son and a later‑born natural son are members of a Sudra family, each is entitled to an equal portion of the family’s property. A dispute arose before the Court as to whether the parties, who belong to the Lingayat community, should be classified as Sudras or as dwijas. The Bombay High Court, in the case of Tirkangauda Mallanagauda v. Shivappa Patil (1), examined the relevant authorities and observed at page 742 that, irrespective of whether Lingayats are Hindus, the applicable law governing them must be identified, and that, following the decision in Gopal Narhar Safray v. Hanumant Ganesh Safray (2), they have been subject to Hindu law as applied to Shudras. In the present proceedings, the Court did not deem it necessary to pronounce a definitive view on the status of Lingayats; instead, it proceeded on the assumption that the community either falls within the Sudra category or, at the very least, that the Hindu law governing Sudras is applicable to them. The relevant citations are (1) I.L.R. [1943] Bom. 706 and (2) (1879) I.L.R. 3 Bom. 273.

The Court then turned to the precedent set in Arumilli Perrazu v. Arumilli Subbrayadu (1), where the Judicial Committee held that, among Sudras in the Madras Presidency, an adopted son is entitled to share equally in the partition of family property with any son born to the adoptive father after the adoption. This conclusion was principally based on the rule found in the Dattaka Chandrika, which had been recognized and applied for more than a century in the Madras Presidency, governing Sudra families until it was disturbed by the Madras High Court decision in Gopalam v. Venkataraghavulu (2) in 1915. The decision therefore rested on the authority of the Dattaka Chandrika as the accepted legal source, confirming that an adopted son and a later‑born natural son receive equal shares. Commenting on this rule, Sarkar Sastri, in his eighth edition of the book on Hindu Law (page 211), noted that the Dattaka Chandrika introduced a novel principle that an adopted Sudra son should share equally with his own begotten son, reasoning that a Sudra’s illegitimate son may, at the father’s discretion, receive the same share as legitimate sons, an argument the Court found difficult to follow. Nevertheless, the rule has been upheld by both the Calcutta and Madras High Courts, and the book is considered an authoritative reference in Bengal and Madras. The citation for the Arumilli case is (1) (1921) 48 I.A. 280; for Gopalam v. Venkataraghavulu, (2) (1915) I.L.R. 40 Mad. 632.

The Court examined the authorities on the subject and, following an earlier decision of the same Court, concluded that an adopted son of a Sudra was entitled to only one‑fifth of the share that a natural‑born son received. However, the decision in Arumilli Perrazu (1) (1921) 48 I.A. 280; (2) (1915) I.L.R. 40 Mad. 632 was subsequently overruled, and the Privy Council finally settled that an adopted son must share equally on partition with an after‑born son of a Sudra. In Bengal, where the Dattaka Chandrika enjoys the same authority as in the Madras Presidency, the same rule has been applied to the partition between an adopted son and an after‑born natural son among Sudras, as reflected in Asita v. Nirode (2). It is unnecessary to pursue that line further; it may be accepted that in both Bengal and Madras the rule of equal sharing governs the respective shares.

In contrast, the situation in Bombay differs because the Dattaka Chandrika is not accorded the same pre‑eminence as it is in Madras and Calcutta. As early as 18_2, a division bench of the Bombay High Court in Giriapa v. Hingappa (3) was called upon to consider the inter‑se shares of an adopted son versus an after‑born aurasa son. The bench held that in Western India, both in districts governed by the Mitakshara school and those specifically under the Vyavahara Mayukha authority, the right of an adopted son—where a legitimate son was born after the adoption—extended only to a one‑fifth share of the father's estate. The specific issue was whether the adopted son should receive one‑fourth of the entire estate or one‑fourth of the natural‑born son’s share. After reviewing all relevant texts, the division bench concluded that the adopted son is entitled to one‑fourth of the natural‑born son's share.

Subsequent to the Judicial Committee’s decision in Perrazu v. Subbarayadu (1), another division bench of the Bombay High Court in Tukaram Mahadu v. Ramachandra Mahadu (4) revisited the question and arrived at the same conclusion. Referring to the Privy Council decision, the learned judges observed that Perrazu v. Subbarayudu (1) is a clear authority establishing that, in Madras and Bengal, the rule among Sudras is the one advocated by the appellant’s counsel. The judges then posed the question: “Assuming that the parties here are Sudras, ought we (1) (1921) 48 I.A. 280; (2) (1916) 20 C.W.N. 901; (3) (1892) I.L.R. 17 Bom. 100; (4) (1925) I.L.R. 49 Bom. 672, 679, 680, 684 to apply to this Presidency the rule which their Lordships of the Privy Council have laid down as prevailing in the Madras and Bengal Presidencies?” After citing the pertinent extracts from the Judicial Committee’s decision, the judges answered that in this Presidency the rule of the Dattaka Chandrika on the question at issue has never been followed, and that no judicial or other pronouncement supporting that rule exists.

The Court considered whether the rule set out in the Dattaka Chandrika could be adopted solely on the authority of that text, noting that the leading case was contrary to such an approach. The Court expressed the view that to accept the rule only because of the Dattaka Chandrika would be erroneous. It was observed that the authority of the Dattaka Chandrika has never been accorded the same weight in Western India as it has been in Bengal and Madras, and that the case required adherence to the principle of stare decisis. Justice Coyajee expressed a similar opinion, stating that there was no reason to believe that the rule articulated in paragraphs 29 and 32 of section V of the Dattaka Chandrika had been accepted or acted upon in this Presidency. Consequently, there was no justification for holding that the decision in Giriappa’s case (1) was inapplicable to the parties to the suit even if they were Sudras. The Court referred to Steele’s book on Hindu Law and Customs, compiled in 1868, which offered no basis for excepting Sudras from the general rule. From this, the Court concluded that in the Bombay Presidency the rule contained in the Dattaka Chandrika had never been followed, and that the share of an adopted son competing with a natural‑born son among Sudras had consistently been one‑fifth of the family property, which amounted to one‑fourth of the natural‑born son’s share. No material was placed before the Court that would compel it to depart from the long‑standing rule prevailing in Bombay State, and therefore the argument advanced by Mr. Chatterjee could not be accepted. As a result, Civil Appeal No. 335 of 1960 filed by the plaintiff and defendant 3 was dismissed with costs. Civil Appeal No. 334 of 1960 filed by defendants 1, 2, 4, the legal representatives of defendant 7 and defendant 8 was dismissed with costs, except to the extent of the eighth defendant’s right to maintenance under Exhibit 371. Regarding the eighth defendant, her appeal was allowed with costs proportionate to her interest in the property. Thus, Appeal No. 335 was dismissed, and Appeal No. 334 was partly allowed.