1. The plaintiff who failed in both the courts below has appealed to this court. He brought the suit for recovery of possession of the plaint first schedule properties from the defendant with future mesne profits. The properties originally belonged to one Pooli Sivasubramania Thevar of Nelkattumsevel. On 8-9-1923, he executed a deed of settlement whereby he gave a life interest in the suit properties to Sivagnanathammal whom he proposed at the time and later on married as his second wife, the remainder to his sons, if any, to be born to her, failing which to his son by his first wife by name Pooli Sivagnanapandiam and his heirs. Sivagnanathammal died in 1950 issueless and her husband Pooli Sivasubramania Thevar had predeceased her. The plaintiff purchased the property under a sale deed dated 2-5-1952 from Vellathurai Pandian the son of Pooli Sivagnanapandian. The plaintiff's case was that after the termination of the life estate on the death of Sivagnanathammal, Vellathurai's father and after him, Vellathurai, became entitled to the suit properties absolutely and that he was entitled to recover possession thereof from the defendant.

2. The defendant's case on the other hand was that he got an othi of the plaint second schedule property forming part of the first schedule properties executed by Pooli Sivasubramania Thevar on 9-7-1925, that at the execution of a rent decree obtained against Pooli Sivasubramania in respect of the suit properties, the defendant purchased them under a sale certificate dated 20-10-1934, that right from 1925 he has been in continuous possession of the second schedule and from 1934 the entire suit properties, that the settlement deed relied on by the plaintiff was invalid because it was gift of joint family properties in the hands of Pooli Sivasubramania Thevar in favour of a stranger and was in any case not acted upon by the settlor and his son and that the defendant also had acquired title to the suit properties by adverse possession. Both the courts below found that the settlement deed was not given effect to and was not acted upon and that the properties conveyed thereunder belonged to the joint family of Pooli Sivasubramania Thevar. The lower appellate court differing from the trial court also found that the gift of the joint family properties under the settlement deed in favour of a stranger namely the settlor's second wife in anticipation of her marriage was invalid. The lower courts concurrently upheld the validity of the rent sale rejecting the plea of the plaintiff that it was invalid for want of notice to Pooli Sivasubamania Thevar. They also readied the conclusion that in any case the plaintiff was not in possession of the suit properties within 12 years of the plaint and that the defendant had also acquired title by adverse possession over the statutory period.

3. Before me, Sri S.V Venugopalachari, the learned counsel for the appellant, contended (1) that the finding of the lower courts that the properties covered by the settlement were coparcenery properties, was not supported by any evidence, (2) that even if the properties covered by the settlement deed were joint family properties, the gift thereof by Pooli Sivasubramania Thevar being of a reasonable portion of the joint family properties to his second wife in anticipation of her marriage, was valid under the Hindu law and (3) that the plaintiff himself could recover possession of the suit properties only after 1950 when the life estate in favour of Sivagnanathammal came to an end.

4. On the first point of the learned counsel for the appellant, I have been taken through the entire evidence and I think the learned counsel is not well founded in his contention. D.W 1 clearly stated that Pooli Sivasubramania Thevar got the suit lands with the income from his ancestral lands of 6 or 7 kottah of Virapadu. No doubt in his cross-examination he admitted that he did not know if Sivasubramania Thevar and his son were living together or separately.

5. But P.W 4 in his evidence admitted that till death Pooli Sivasubramania and his son Pooli Sivagnana Pandian lived as joint family members and that there was no partition though they resided separately after Sivasubramania's marriage. Nevertheless this witness would say that the suit properties were Sivasubamania's self acquired properties. Referring to the evidence adverted to above, the learned Additional District Judge observed that as the evidence on the appellant's side clearly indicated that the settlor and his son were living as members of a joint family and as the settlor had admittedly got some properties from his father who was then a zamindar, the first schedule properties dealt with under Ex. A 1 also must be taken to be the joint family properties since there was no evidence at all on the appellant's side showing that the settlor had acquired some properties with his own funds without the aid of the joint family property, especially when the evidence on record showed that the settlor had sufficient joint family nucleus.

6. The learned counsel for the appellant pointed out — and perhaps with some force — that although Sivasubramania Thevar got certain properties from his zamindar father, the evidence did not establish that the suit properties were among them and that merely because Sivasubramania and his son lived as members of a joint family, it did not necessarily follow that the suit properties must be taken to be joint family properties. On the other hand, Sri M. Natesan, the learned counsel for the respondent contended that once it was found that the family was joint possessed of joint family properties providing as sufficient nucleus, it should be presumed, unless the Contrary was established, that the suit properties belonged to the joint family. In this connection the learned counsel invited my attention to the following passage in Mullah's Hindu law, 12thi Edn. page 342:

“Where it is established or admitted that the family possessed some joint family property which from its nature and relative value may have formed the nucleus from which the property in question may have beam acquired, the presumption arises that it was joint family property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the uncleus must be such that with its help the property claimed to be joint could have been acquired.”

7. There is no evidence in this case to show that the suit properties were acquired by Sivasubramania Thevar. The question whether the suit properties were joint family properties is one of fact to be decided on the basis of the evidence in the case. There is, in my opinion, no presumption that a property is joint because the family is joint and has a nucleus from which the property in question may well have been acquired. The character of the property, in the absence of direct evidence, is a matter of inference to be drawn from proved circumstances, without reference to presumption one way or the other. But in this case there is oral testimony which supported the finding of both the lower courts that the suit properties were joint family properties. The learned counsel was, therefore, not right in his contention that there was no evidence to support the finding.

8. On the second point the contention of the learned counsel is that the gift being of a reasonable portion of immoveable property belonging to a joint family to a second wife it is valid under the Hindu law. I am unable to agree. The gift in this case was in favour of Sivagnanathammal in anticipation of her marriage with the settlor. At the time of the settlement she was only a stranger. But actually this circumstance makes no difference, as in my opinion, even a gift of a reasonable portion of immoveable property belonging to the joint family to a second wife is invalid.

9. As pointed out by Mulla in his “Principles on Hindu Law”, 12th Edn. at page 331, “A Hindu father or other managing member has power to make a gift within reasonable limits of ancestral immoveable property for “pious purposes”. This is based on Mitakshara, Ch. I, s. 1 V. 28-29. “Even a single individual way conclude a donation, mortgage, or sale of immoveable property, during a season of distress, for the sake of the family, and especially for pious purposes.”

10. In Rayakkal v. Subbanna, ILR 16 Mad 84, it was held by this court that a father had no power to make a gift of ancestral immoveable property to his wife to the prejudice of his minor son. In Sundararamayya v. Sitamma, ILR 35 Mad 628, a gift of 8 out of 200 acres of land by a Hindu father to his daughter at the time of her marriage was held to be valid but the decision was based on the ground that such a gift of a small portion of ancestral immoveable property to his daughter at or after her marriage was customary in the state of Madras. In Palwanna Nadar v. Annamalai Ammal, 1957-1 Mad LJ 238 : ((S) AIR 1957 Mad 330), the material portion of the settlement deed executed by one Mahalinga Nadar read thus:

“You are my second wife. You have up till now a female child by name Annamalai Ammal aged six years. As according to my promise at the time of your marriage in the presence of mediators that I should give you immoveable properties, I have by this deed given you the properties shown in the 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 lifetime without making any alienation. After your lifetime 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.”

11. The second wife released her interest in favour of the sons of Mahalinga Nadar by his first wife. So the only question that remained for the decision of the Court was the validity of the gift of the vested remainder in favour of the daughter, Annamalai Ammal who was only six years old at the time of execution of the settlement deed. Reversing the judgment of Chandra Reddi J. a Division Bench of this court held that the gift in favour of Annamalai Ammal was invalid, Dealing with the limits of the powers of a Hindu father to make a gift of joint immovable property, the learned Judges observed:

“Though a father in an undivided Hindu Mitakshara family has full powers of disposition over his self acquired properties, he has no such power in respect of joint family properties; but he can make within reasonable limits, by custom in the Madras Presidency, gift of immoveable property of the joint family to his daughter on the occasion of her marriage and when she is departing from her parental home. This customary obligation may be fulfilled later, if not fulfilled at the time of 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, and the father has no power to make a gift of immoveable property to his daughter by purporting to make a settlement for the fulfilment of an obligation which has not arisen and which obligation might not at all arise to be fulfilled.”

12. In the course of the judgment, the learned judge also said:

“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 portion is not valid. The special powers of a father do not extend beyond purposes warranted by special texts.”

13. Though this observation is obiter, I am in respectful agreement with it. It follows, therefore, that, in my opinion, the gift of a life estate in the suit properties to Sivagnanaihammal was invalid.

14. It may also be noted that according to the findings of both the lower courts, the settlement deed was in fact not acted upon and not given effect to. These findings were based upon the fact: that on 9-7-1925, which was subsequent to the date of this settlement deed, the settlor executed an othi of the plaint second schedule property forming part of the first schedule in favour of the defendant and that subsequently on 23-5-1927 both the settlor and his son Sivagnanapandian executed a mortgage in respect of the suit properties in favour of the mother of D.W 2. There was also a sale of the suit properties on 20-12-1933 by Sivagnanapandian and his sons to one Shunmugha Thewar.

15. There was a decree obtained by Sivagnana Nachiar against the settlor in S.C.S No. 751 of 1932 on the file of the court of the Subordinate Judge, Tirunelveli, and the first schedule properties were brought to sale in execution of that decree. The evidence of D.W 2 was that his mother purchased the property in court sale as per the sale certificate, Ex. B. 24.

16. The learned counsel for the appellant however, urged that Sivagnanathamal, the second wife of the settlor being a deaf and dumb woman, it was but natural that her husband and his son by the first wife would have dealt with the suit properties on her behalf. But this was not really so, as none of the above transactions was in fact on behalf of Sivagnanathamal.

17. So on the findings of the courts below that the settlement deed was not acted upon and not given effect to the conclusion should follow that the defendant's possession subsequent to his purchase of the suit properties in execution of the rent decree on 1934, was clearly adverse to Vellathurai as well as his father and grandfather. Some point was made that the rent sale in 1934 was invalid because no notice of the sale was given to Sivasubramania Thevar. But both the lower courts found that Sivasubramania Thevar died before the rent sale and no notice, therefore, could be given to him.

18. The second appeal fails and is dismissed with costs.

CE/C.

19. Appeal dismissed.