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Case Number

Second Appeal No. 391 of 1958, against decree of Dist. Court, Tirunelveli, in A.S No. 114 of 1957

Advocates

For the Appellant: S.V. Venugopalachari, S. Venkatesan, Advocates.
For the Respondent: M. Natesan, Advocate.

Judges

Veeraswami, J.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff appealed to this court after losing in both the trial court and the lower appellate court. He sought recovery of possession of the first-schedule properties (as described in the plaint) and future mesne profits.

History of title/events (as stated in the opinion):

The properties originally belonged to Pooli Sivasubramania Thevar of Nelkattumsevel.
On 8-9-1923 the settlor executed a deed of settlement (Ex. A1) granting a life interest in the suit properties to Sivagnanathammal (his proposed and later second wife), with the remainder to any sons born of that marriage, and failing that to his son by his first wife, Pooli Sivagnanapandiam, and his heirs.
Sivagnanathammal died in 1950 without issue; the settlor had predeceased her.
The plaintiff purchased the property under a sale deed dated 2-5-1952 from Vellathurai Pandian, son of Pooli Sivagnanapandian.
The defendant asserted that he acquired an othi in part of the properties on 9-7-1925, and that he purchased the properties under a sale certificate dated 20-10-1934 in execution of a rent decree; he also claimed continuous possession since 1925 (as to part) and since 1934 (as to the whole).
The defendant further contended that the 1923 settlement deed was invalid because it purported to gift joint family property to a stranger and because it was not acted upon; he also pleaded acquisition by adverse possession.

Both lower courts found that the settlement deed was not given effect to and that the suit properties belonged to the joint family. The lower appellate court additionally held that a gift of joint family property to a stranger (the settlor's second wife) in anticipation of marriage was invalid. The lower courts also upheld the validity of the rent sale and concluded that the plaintiff had not been in possession within twelve years of the plaint and that the defendant had acquired title by adverse possession.

On this second appeal the present court considered the evidence and legal arguments and dismissed the appeal with costs.

Legal Issues Presented

Whether the first-schedule properties were coparcenary / joint family properties (i.e., whether the lower courts' finding that the properties were joint family property was supported by evidence).
Whether the settlement deed (a gift of a life interest to the settlor's second wife made in anticipation of marriage) was valid under Hindu law — specifically, whether a managing member could validly gift a reasonable portion of joint family immovable property to a second wife in anticipation of marriage.
Whether the defendant's acquisition (including the validity of the rent sale/execution sale and the claim of adverse possession) defeated the plaintiff's claim to possession.
Whether the plaintiff could claim possession only after the life estate ended (i.e., after 1950), and related limitation/possession consequences.

Arguments of the Parties

Appellant's Arguments (as presented to this Court)

The lower courts' finding that the properties were coparcenary/joint family properties was not supported by the evidence.
Even if the properties were joint family properties, a gift (settlement) of a reasonable portion of joint family immovable property to the settlor's second wife in anticipation of marriage was valid under Hindu law.
The plaintiff could not seek possession until the life estate (in favour of Sivagnanathammal) terminated in 1950.

Respondent's Arguments (as recorded in the opinion)

The defendant relied on an othi dated 9-7-1925 and a purchase under a sale certificate dated 20-10-1934 (in execution of a rent decree) and asserted long continued possession (from 1925 in respect of part, and from 1934 in respect of the whole).
The settlement deed was invalid because it purported to gift joint family property to a stranger (the settlor's second wife) and, in any event, the settlor had not acted upon the settlement.
The defendant contended that the plaintiff had not been in possession within the twelve-year statutory period and that the defendant had acquired title by adverse possession.
On the evidentiary point, the respondent's counsel invited the court to apply the presumption (where there is a joint family nucleus) that the property may be joint family property unless self-acquisition is established by the party alleging it.

Table of Precedents Cited

Precedent / Authority	Rule or Principle Cited For	Application by the Court
Rayakkal v. Subbanna, ILR 16 Mad 84	Held that a father had no power to make a gift of ancestral immovable property to his wife to the prejudice of his minor son (limit on father's power over ancestral/joint family property).	The court cited this decision to support the proposition that a managing member's power to dispose of joint family immovable property is limited and does not extend to gifts prejudicial to coparceners/children; it formed part of the authority for concluding limits on the settlor's power to make the settlement.
Sundararamayya v. Sitamma, ILR 35 Mad 628	Recognized that a gift of a small portion of ancestral immovable property to a daughter at or after marriage may be valid when customary in the Madras Presidency (exception based on established local custom).	The court relied on this authority to distinguish customary, limited gifts to daughters at marriage from broader settlements; it used the case to show that validity may turn on customary limits, and thus such exceptions are fact- and custom-specific.
Palwanna Nadar v. Annamalai Ammal, 1957-1 Mad LJ 238; AIR 1957 Mad 330	Considered limits of a Hindu father's power to make gifts of joint immovable property; held a gift of a vested remainder in favour of a daughter (by way of settlement) invalid where not warranted by existing obligation or custom; contained the observation that a settlement of joint family property on a second wife by way of marriage portion is not valid.	The court relied on the decision (and the quoted observations, including what it treated as obiter) to conclude that the gift of a life estate in the suit properties to a second wife was invalid. The court expressly stated respectful agreement with the observation that a settlement of joint family property on a second wife is not valid.
Mulla, The Hindu Law (12th Edn.) — cited passages	Two principles cited: (a) where a family possessed joint family property that could have formed the nucleus for acquisition, a presumption may arise that a property is joint unless self-acquisition is established; (b) a managing member has power to make gifts within reasonable limits of ancestral immovable property for pious purposes (Mitakshara basis).	The court considered the Mulla passages in addressing evidentiary presumptions and the scope of a managing member's powers. The court rejected a broad presumption in the absence of evidence and held that character of property is a question of fact; it also treated Mulla's exposition of limited powers as part of the legal context in deciding the validity of the settlement.

Court's Reasoning and Analysis

The court proceeded by addressing each main contention in turn, grounding its conclusions in the evidence and the cited authorities.

On whether the properties were joint family properties:
The court examined the evidence (including testimony of D.W.1 and P.W.4). D.W.1 said the settlor obtained the suit lands along with income from ancestral lands; P.W.4 admitted that the settlor and his son lived as joint family members until the settlor's death (no formal partition), though P.W.4 also called the suit properties self-acquired. The lower appellate court had relied on the absence of evidence that the settlor acquired the property with his own separate funds and on the existence of a family nucleus.

The present court observed that the question of character (joint or self-acquired) is one of fact to be decided on the evidence. It rejected a rule that property must be presumed joint simply because a family had a nucleus; rather, the court said the character is a matter of inference from proved circumstances. Nevertheless, because there was oral testimony supporting the lower courts' finding, the court held the lower courts were justified in treating the suit properties as joint family property.
On validity of the settlement / gift to the second wife:
The appellant argued that a gift of a reasonable portion of joint family property to a second wife in anticipation of marriage was valid. The court disagreed. It noted that at the time of the settlement the second wife was a stranger and that, in the court's view, even a gift of a reasonable portion of joint family immovable property to a second wife is invalid.

The court relied on authority (Mulla and the decisions cited) that restrict a managing member's powers in respect of joint family immoveable property, and on decisions that allow limited exceptions (for example, customary gifts to daughters on marriage). Applying these authorities, the court concluded the life estate granted to Sivagnanathammal under the settlement deed was invalid.
On whether the settlement was acted upon and on subsequent transactions:
Both lower courts had found the settlement deed was not acted upon. The court reviewed material facts relied upon for that finding: in 1925 the settlor executed an othi in favour of the defendant over part of the property; in 1927 the settlor and his son executed a mortgage over the suit properties; in 1933 a sale of the suit properties was made by Sivagnanapandian and his sons; and there was an execution sale (under decree S.C.S. No. 751 of 1932) resulting in purchase by the defendant's mother (sale certificate Ex. B.24).

The court rejected the appellant's suggestion that these transactions were on behalf of the deaf-and-dumb second wife, holding instead that none of the transactions was shown to have been conducted for her benefit.
On the rent sale and adverse possession:
Given the finding that the settlement was not acted upon and was not given effect to, the court concluded that the defendant's possession after the 1934 sale in execution was adverse to Vellathurai and his predecessors. The appellant had argued the 1934 rent sale was invalid for want of notice to the settlor, but both lower courts had found that the settlor had died before the rent sale, so no notice could have been given to him. The court accepted the findings of the lower courts on these points.

Having resolved the factual questions against the appellant and applied the legal principles limiting gifts of joint family immovable property, the court found no merit in the appeal.

Holding and Implications

APPEAL DISMISSED.

Direct consequences for the parties:

The second appeal fails and is dismissed with costs; the dismissal upholds the conclusions of the lower courts.
The settlement deed (granting a life estate to the settlor's second wife) was held invalid and, in any event, was not acted upon or given effect to according to the findings of the lower courts.
The rent sale/execution sale in 1934 (and the defendant's subsequent possession) was treated as valid and adverse to the plaintiff's predecessors, supporting the defendant's title by adverse possession.
The plaintiff's claim for recovery of possession was unsuccessful; the defendant's title and possession as determined below are sustained.

Broader implications: The court reiterated established limitations on a managing member's power to dispose of joint family immovable property and expressed agreement with observations (from cited decisions) that settlements of joint family property on a second wife as marriage portion are not valid. The opinion did not purport to establish a novel precedent beyond applying and endorsing the cited authorities to the facts of this case.

Final line from the opinion: "Appeal dismissed."

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Sivagnana Thevar v. Udayar Thevar .

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.

Sivagnana Thevar v. Udayar Thevar .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as presented to this Court)

Respondent's Arguments (as recorded in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sivagnana Thevar v. Udayar Thevar .

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