1. This appeal is directed against the decree and Judgment of Chandra Reddi,- J., in S. A. No. 835 of 1948 (reported as Annamalai Ammal v. Sundara-thammal, , reversing the decree and Judgment of the learned Subordinate Judge, Tirunelveli, in A. S. No. 89 of . 1947, affirming the dismissal of O. S. No. 1 of 1946, on the file of the District Munsif's Court, Tenkasi.
2. The suit properties, namely, three and odd acres of dry land and a house belonged to the joint family of Mahalinga Nadar and his sons. This Mahaiinga Nadar had married twice, namely, the first defendant's sister as his first wife and the first defendant as his second wife. On account of disputes between the wives the first defendant was living separately. The first defendant had born to Mahalinga Nadar the present plaintiff.
3. On 3-2-1921 when the plaintiff was six years old Mahalinga Nadar executed a settlement deed, Ex, P. 1, the relevant portion of Which runs as follows:
"You are my second wife. You have up till now a female child by name Annamalai Ammal aged six years. As regarding to my promise given at the time of your marriage in the presence of mediators that I should give you immovable pioljerlies. I have by this deed given you the properties shown in schedule hereto valued at Rs. 600 and now itself placed you in possession of the same.
From this day onwards, you may enter into possession of the property and enjoy the same for your life time the aforesaid: property will go to your daughter the
"aforesaid Annamalai Ammal and she shall take it with absolute right to deal with the said property; It is assured that there are no other encumbrances over the schedule properties."
4. The items conveyed in the settlement deed are portion of S. No. 696 and a portion of S. No. 693 and a house in Kuthukkalavalasi and 16 cents in S. No. 28. On 13-6-1924 Mahalinga Nadar brought about a partition deed. Ex. D. 14 in which he mentioned that he had got two sons, defendants 3 and 4 and also Ganapathi by his second wife, the first defendant.
Under this document he says that he and his second wife the first defendant and her son Ganapathi should take the first schedule property. The second schedule of properties is given to Sankaralinga and the third schedule of properties was to be taken by Palvanna Nadar, the 4th defendant and the fourth schedule of properties by his mother Avadiammal. In'this partition the 4th item, the tope and the house the 3rd item settled upon his second wife are not included. But the other two items are dealt with.
5. The contention raised by the defendants was that Ex. P. 1 was not acted upon by Mahalinga Nadar himself but as pointed out by the Courts below, Mahalinga Nadar having settled the properties upon his second wife could not go back upon it but this point would have been of a material importance if subsequently the first defendant had not released all her rights in favour of defendants 3 and 4 under Ex, D. S dated 15-11-1929 and the only point now to be considered is whether the remainder" given to the daughter of a portion of the joint family property as gift is valid as per Hindu Law notwithstanding the fact that the gift has been held to be a reasonable portion of the coparcenary Property consisting of four houses, four vacaiit sites and 30 acres of land.
6. It is in these circumstances that the plaintiff has filed the suit for a declaration that the release deed referred to above has been brought about fraudulently and cannot affect her rights and that the alienations which have been sought to be made of these properties by the second defendant, wife of Mahalinga and her step brothers, Sankaraliriga, (D-3) and Palvanna Nadar (D. 4) and the wife of the third defendant, Punnavanatbarnmal would not be binding on her. The principal contention of the defendant was that the settlement of a portion of the joint family properties by Mahalinga Nadar in favour of the first defendant is not valid and binding on the joint family.
7. Both the Courts below upheld the contention of the defendants and dismissed the suit.
8. In appeal Chandra Reddi, J., came to the conclusion that it was competent for an undivided Hindu father governed by the Mitakshara system of law to make a valid gift of a reasonable portion of Joint family property as a future marriage provision of a daughter. On this finding he allowed the second appeal:
9.This reversal of the decree and Judgment of the lower Court is attacked before us on two grounds, namely, that the document by itself does not purport to be a future marriage provision for the plaintiff and secondly even if it is assumed that the father has made such a future provision it is not permissible under the Mitakshara law and is beyond the powers of an undivided Hindu father governed by the Mitakshara system in regard to joint family properties.
10. From the contents of the settlement deed which have been reproduced it is impossible to deduce that the remainder given to the daughter was by way of a future provision for her marriage. The plaintiff was then only six years old and the father could not legitimately have thought of making a provision for her marriage when his second wife was only 25 years of age and Mahalinga Nadar himself died 18 years before the filing of the suit.
In fact if Mahalinga Nadar had wanted to make such a future provision for his daughter he could have said so in the settlement deed. The document shows that the settlor has only chosen not to give an absolute estate to his wife and has given the remainder Jo the daughter born to her. We need not point out that a document purporting to settle even a portion of joint family properties on a second wife by way of gift as marriage provision is not valid. The special powers of a father do not extend beyond purposes warranted by special texts.
It is settled law that a father has special powers over the movable properties for indispensable acts of duty and over immovable properties for pious purposes. Since indispensable acts of duty mean and include pious purposes, a father has no longer power over movable properties than over immovable properties except in the matter of gifts through affection in spite of the difference in the terminology used by the texts. (See Mayne 10th Edn. p. 464). Baba v. Timma, ILR 7 Mad 357 (FB) (A).
A gift to a daughter or any other relation is not for pious purposes; and though a gift through affection may be made of movable property, a gift of immovable property cannot be supported as one made through affection. But it has been held by this Court that a father can make a gift of a small portion of his immovable property to his daughter at or after marriage, such gift being customary in this presidency. Therefore looked at as a gift of immovable property in favour of the second wife and as marriage provision for her daughter, the set-dement is invalid.
11. Turning to the settlement of the properties being construed as a gift of the joint family properties as a marriage provision decided cases go to the extent of such provision being made either at the time of the marriage or subsequent to the marriage on the principle that the moral obligation of the father to make such a provision continues till it is discharged by fulfilment and that this can be fulfilled not only by the father at any point of time subsequent to the marriage but also by his widow or son who takes over the estate from him and who is affected with this moral obligation. These propositions are concluded by authority and a compendious summary of the same is made in Mayne on Hindu Law and Usage, (11th Edn.) in S. 370 at p. 472 as follows:
"Gifts to brides on occasions of marriages are very common and various Hindu texts impose a moral obligation on the father or other relatives to make them (Manu IX, 194, Narada XIII, 8, Yajur, II, 143, 144, Vishnu XVII, 18; Mit. II, XI, 4, 5).
These gifts usually take the form of jewels or other movable property. It has bee n held that a gift, by a father to his daughter or to her husband for the benefit of both on the occasion of her marriage of a small portion of ancestral immovable property is valid:
(Ramaswami Ayyar v. VengidusanrJ Ayyar, ILR 22 Mad 113 (B); Kudutamma v. Narasimha, 17 Mad LJ 528 (C); Sundararamayya v. Sitamma, ILR 35 Mad 628: 21 Mad LJ 695 CD); for the Judgment of Krish-naswami Aiyar,J, in that case, see p. 701; Subba Naicker, in re, 2 Mad LW 754: (AIR 1916 Mad 699) (1) (E); Sitamahalakshmamma v. Kotayya, 71 Mad LJ 259; (AIR 1936 Mad 825) (F) (see also Ramalinga Annavi v. Narayana Annavi, 43 Mad LJ 428; ILR 45 Mad 489: (AIR 1922 PC 201) (G); Ramakrishna V.' Parameswara, 1931 Mad WN 215 (H); Palaniam-mal v. Kothandarama Gounden, 1943-2 Mad LJ 432: ILR 1944 Mad 41S (I).
But this power cannot be exercised by a mother acting as guardian of her infant son who alone constituted the family and who is the 'owner of the properties at the time, ILK 1944 Mad 418: (AIR 1944 Mad 91) (I). As Subramania Aiyar, J., says, a gift of small extent of land (bhudanam) on such an occasion is a customary-indispensable duty where the family can afford it, ILR 22 Mad 113 (B), supra, Vettor Ammal v. Vettor Goundan, 22 Mad LJ 321(J).
Even after marriage a gift can be made to a dmighter by way of marriage portion either by her father or after him by her brother, 22 Mad LJ 321 (J)." (But such a gift of an unreasonable portion of the joint family property would be invalid: Karnakshi Ammal v. Chakrapani Chettiar, ILR 30 Mad 452 (K). In Churaman Sahu v. Gopi Sahu, ILR 37 Gal 1 (L), the Calcutta High Court held that it would be competent to a managing member as it is to a widow, to make a valid gift of a reasonable portion of im-movable property of the family to a daughter born in the family on the occasion of her Gowna ceremony.
The Rombay High Court has held that a father cannot make a gift even of a small portion of Joint family immovable property to his daughter though she was looking after him in his old age {Jinnappa Mahadevappa v. Chimmava Krishnappa, ILR 59 Rom 459: (AIR 1935 Bom 324) (M). This would be right if it merely rested on the view that A gift of affection (prasadadana) which is mentioned in the Mitakshara I, i. 27 could only be made of ancestral movable property and not of ancestral immovable property. But where the gift is in discharge of the moral obligation to provide a marriage portion as in the Madras cases it would come under the Mitakshara I, i. 29 as a gift in discharge of an indispensable duty.
In 49 Ind App 168 at p. -173: ILR 45 Mad 489: (AIR 1922 PC 201 at pp. 208-209) (G), the Judicial Committee evidently regarded the gift of a small share of immovable property to a daughter as within the authority of a karta.
12. To sum up though a father of an undivided Mitakshara joint family has full power of dispositions over his self-acquired properties he has no such power in respect of the joint family properties but he can make within reasonable limits by custom in this presidency gifts of immovable properties of the joint family to his daughter on the occasion of her marriage and when she is departing from her parental home; and this customary obligation can be fulfilled later if not fulfilled at the time of the marriage without point of time not only by the father but also by his widow or son taking over the estate from the father.
These limits cannot be exceeded by purporting to make settlements for the fulfilment of an obligation which had not arisen" and which obligation might not even arise to be fulfilled since the daughter may the unmarried or remain a spinster as it is probable that while a vast majority of women prefer a married life some of them either by choice or by necessity may lead a life of celibacy.
In fact as pointed out in the "Evolution of Hindu Moral Ideals" by Sir P. S. Sivaswami Iyer (Kamala lectures) such spinsters have always existed in our society and those old spinsters were called We are unable to agree with the first impressions of Chandra Reddi, J., and we, therefore, set aside his decree and Judgment and restore the decree and Judgments of the courts below but in the circum stances without costs throughout.