This second appeal raises a question relating to validity of a gift of a reasonable portion of the joint family property by a father in favour of his daughter a few years before her marriage. The gift in question was made by the father of the plaintiff, one Mahalinga Nadar, under Ex. P.1 dated 3-2-1921. Under that document the donor gave a life estate to the first defendant, his wife, and a vested remainder to the plaintiff in 3 acres and 17 cents of dry land and a house. The first defendant was married by the said Mahalinga Nadar, as his first wife who was no other than the first defendant's sister was sickly. As the two wives of Mahalinga Nadar could not pull on together, the first defendant began to live separately with her daughter, the plaintiff herein, and in 1921 as stated above, Mahalinga made a gift of the property in the manner mentioned above. Sometime after the death of the donor, the first defendant executed a release deed in respect of the said property in favour of defendants 3 and 4, the sons of Mahalinga Nadar by the first wife under D.3 dated 15 11-1929. This led the plaintiff to institute the suit for a declaration of her title to the suit property. The suit was resisted inter alia on the ground that it was not competant for the father to make a gift of any portion of joint family property in favour of the daughter.

While finding that the property gifted under Ex. P. 1 to the first defendant was a reasonable portion of the property, the Courts below held that it was beyond the powers of a father to gift away a portion of the joint family property to the daughter, though it would have been within the powers of a father to make such a gift on the occasion of the marriage of the daughter. In the result they dismissed the suit.

The aggrieved plaintiff has filed this second appeal challenging the correctness of the finding of the Courts below. On this question there does not seem to be any direct case. The case is therefore one of first impressions and I have to decide it in the light of observations contained in some of the decided cases.

It is now well settled that a father can make a marriage provision to his daughter out of joint family properties even long after the marriage. In Kudutamma v. Narasimhacharyulu(1) a gift by a Hindu brother who was the managing member of the joint family of a reasonable portion of the joint family property to his sister who was married during the lifetime of their father but to whom no marriage provision was made at that time was held to be a valid one. In Sundaramayya v. Sitamma(2), a gift of a reasonable portion of the joint family property by the father to the daughter nearly 40 years after the marriage was upheld by a Bench of this Court. Dealing with the validity of such a gift the learned Judges observed that there was a strong moral obligation on the father to make a gift of a portion of the joint family properties at the time of the marriage either to the daughter or the son in-law. It was also pointed out by the learned Judges “that these gifts are intended as a provision for the married couple and are made by the father probably in lieu of her share of the family property.” In that case reliance was placed on a decision of the Calcutta High Court in Churman Sahu v. Gopi Sahu(3) where that Court held that it was competent to a managing member to make a valid gift of immoveable property to a daughter born in the family on the occasion of her Gowna ceremony if it was only of a reasonable portion. In Seethamahalakshmi Amma v. Kottiah, it was observed by Venkataramana Rao, J. that it was a continuing moral obligation on the part of the father to make a marriage provision to the daughter. In the last case also the gift was long after the marriage and the learned Judge upheld it on the ground that the moral obligation continued till it was discharged. What emerges from these decisions is that the obligation to make a marriage provision to the daughter being a moral and continuing one and probably in lieu of a share a gift of a reasonable portion of the property could be validly made for that purpose, even long after the marriage and if the father died without making any such provision the managing member of the family could do it. According to the decisions, the purpose of the gift is to enable the bridal couple to live in comfort.

If the obligation is moral and continuing one and could be made long after the marriage, could it be said that it is not within the competence of a father to make such a gift before the marriage? In my opinion, there is not much difference in principle between a gift after the marriage, and a gift before the marriage, the object of such a gift being to make a future provision for the bridal couple.

This leads me to the next question whether the circumstance that a gift is not described as a marriage provision under the document renders it an invalid one? To my mind, it appears it does not affect the validity of the gift. When a father makes a gift of a reasonable portion of the property to an unmarried daughter it may be assumed that it was meant to be a marriage provision. It is to be observed in this case that under Ex. P. 1 the plaintiff was given only a vested remainder and the gift in her favour would take effect only alter the lifetime of the first defendant.

In this context I may usefully refer to the decision of the Judicial Committee of the Privy Council in Ramalinga Annavi v. Narayana Annavi. There, in a partition suit the validity of a gift of a sum of about Rs. 8500 by assigning a promissory note for Rs. 5000 and a usufructuary mortgage for Rs. 3500 by the father in favour of his daughter was attacked by the other coparceners. Their Lordships upheld the gift. In the opinion of their Lordships the father has undoubtedly a power under the Hindu Law to make gifts of moveable property within reasonable limits. While dealing with the question of the validity of such a gift it was observed by their Lordships that

“in one case the Board upheld the gift of a small share of immoveable property on the ground that it was not shown to be unreasonable”.

It may be noted that this gift does not seem to have been made on the occasion of the marriage of the daughter nor does it appear to have any reference to a marriage provision. In spite of it, their Lordships held that it was within the competence of the father to make a gift of moveable property within reasonable limits. It looks as if their Lordships did not make any difference between the gift of a moveable property and that of immoveable property having regard to their observations that in some cases the Board upheld the gift of immoveable property. No doubt we have not been able to get the reference to the decision referred to by their Lordships. But, it may be assumed that there is such a decision in view of the observations made by their Lordships. On the reasoning of that case, I think it could be reasonably held that gift of moveable or immoveable property whether on the occasion of a marriage or before or after the marriage can be made by a father within reasonable limits to a daughter.

On behalf of the respondents, reliance was placed by Mr. Meenakshisundaram, Counsel for the respondents on a decision of a single Judge of the Bombay High Court in Jinnappar Mahadevappa Kundachi v. Chimmaya . In that case it was held by the learned Judge that it was not competent for a father to gift away a small portion of the joint family property to the daughter who was looking after him in his old age. Referring to the decisions of this Court, the learned Judge observed that the validity of such gifts in Madras Presidency was grounded upon a longstanding custom and that apart from the ground of custom he was unable to agree with respect with the view taken by the Madras High Court. With great respect to the learned Judge, I am not able to subscribe to the view taken by him in that decision especially in view of the authority in Ramalinga Annavi v. Narayana Annavi. This case is dealt with thus in Mayne in Hindu Law and Usage, 11th edn. page 473:

“This would be right if it merely rested on the view that a gift of affection (prasadana) which is mentioned in the Mitakshara 1, 1, 27, could only be made of ancestral moveable property and not of ancestral immoveable property. But where the gift is in discharge of the mural obligation to provide a marriage portion as in the Madras cases it could come under the Mitaksbara 1, 1, 29, as a gift in discharge of an indispensable duty. In Ramalinga Annavi v. Narayana Annavi the Judicial Committee evidently regarded the gift of a small share of immoveable property to a daughter as within the authority of a Karta.”

Mr. Meenakshisundaram next cited to me a decision of the Bench of this Court in Kamakshi Ammal v. Chakrapani chettiar in which it was decided that an undivided member of a Hindu family could not alienate a considerable portion of immoveable property belonging to the family by way of a gift to a female member of the family. The ground of decision in that case was that the property gifted to the female member consisted of a considerable portion of the family property. In view of the concurrent finding in this case that the property given under Ex. P. 1 was only a very reasonable portion of the property the present case cannot be governed by the principle laid down in Kamakshi Ammal v. Chakrapani Chettiar.

On this discussion it follows that a gift of immoveable property by a Hindu father to his daughter, if within reasonable limits, is valid and cannot be questioned by the sons even though such a gift was made before the marriage. Consequently I must hold that the view of the Courts below that it was not competent to the father to make a gift of immoveable property under Ex. P. 1 is not correct. In the result, the second appeal is allowed and the judgments and decrees of the Courts below are set aside.

Appellant will be entitled to the costs of this appeal. Leave granted.

V.C.S