1. This is a defendants' appeal against a decision dated 16-7-60 of Sri C. Mahapatra. Additional District Judge of Berhampur, reversing a decision dated 22-8-58 of Sri S. Naik, Munsif of Berhampur in Title Suit No. 124/56. The appeal arises under the following circumstances; One Adikanda Sahu had four daughters, Tara (defdt. I), Surekha, (defdt. 2), Rajamani (defendant 3), Chandra (who is not a defdt. here) and the only son Raghunath the present plaintiff. Defendants 4 and 5 are the husbands of defendants 1 and 3 respectively, and defendants 6 to 14 are tenants in possession of the suit land. On 20th April, 1941, Adikanda by a registered deed of settlement (Ext. A) settled the suit-property comprising 7.31 acres situate in Mouza Pratapkrishna Chandrapur in the district of Ganjam, in favour of his wife Mukta and daughters, defendants 1 to 3, stipulating Mukta to have life-interest and after her death the property was to go to her daughters defendants 1 to 3.

2. In accordance with the aforesaid Ext. A, mutation was made in favour of Mukta and defendants 1 to 3 in 1947 (Ext. B). Adikanda died in March 1953 and his widow Mukta in December 1953. Thereafter the defendants 1 to 3 wanted the tenants to execute a Muchalika in their favour and to deliver them the usufruct of the suit-lands. Then some controversy arose in respect of the title and possession of the suit lands, and the present suit was filed by the plaintiff Raghunath on 22-6-56 claiming a declaration that the father had no right to give away the ancestral property as per the settlement deed (Ext. A) which is a void transaction, and is not binding on him. He also prayed for a permanent injunction against the defendants obviously on the assumption that he still continued in possession of the property.

3. The case of defendants 1 to 4 is that the father has every right to give away the property, the suit land which represents only a small fraction of the entire property which was gifted to the defendants with full knowledge of the plaintiff who was a consenting party to the transaction even though he was not a formal party to the document (Ext. A). They also raised the plea of acquiescence, estoppel and limitation. The case of the tenants-defendants was that they were the bhagchasis under the plaintiff's father, and after him, under Mukta who possessed the property by reason of the aforesaid deed of settlement, and after Mukta they are continuing as Bhagchasis under the daughter-defendants.

4. The trial court found that the family had sufficient property and the father was perfectly within his rights to gift away a small fraction of the same in favour of his daughters. The plaintiff knew of this document since 1941, and therefore the suit was barred by limitation and the plaintiff was never in possession since 1941, and he thus dismissed the plaintiff's suit.

5. The appellate court, however, negatived the plea of limitation, estoppel and held the suit to be in time and maintainable. He also held that the family having only about forty acres of land, a gift of about eight acres represented almost 1/5th of the whole estate, cannot be construed to be a reasonable portion of the family property which the father was competent to give away to his daughters. He also found that the plaintiff has been dispossessed from the suit property in the year 1955. Against this decision of the appellate Court, the present second appeal has been filed.

6. At the hearing of this appeal an application was filed on behalf of the plaintiff-respondent under O. 41, R. 27 of the CPC to take by way of additional evidence some documents filed before this Court. These documents wherefrom it appears that the plaintiff and his father made some other gifts of some other properties to the contesting defendants between the year 1949-53, were produced obviously with the object that the original settlement (Ext. A) was not in fact acted upon and assuming it was acted upon, that taken with the subsequent gifts of the year 1949-53 would represent a large portion of the family property, a gift of which is not permissible in law. It may also be noted that the respondent also moved the lower appellate court for admitting these documents as additional evidence, but that prayer was rejected on the ground that it will give an opportunity to the plaintiff to make out a new case resulting in prejudice to the defendants.

7. In this Court, however, with the consent of parties, the following documents were admitted as additional evidence (1) A sale-deed dated 18-5-49 executed by Adikanda, and the plaintiff in favour of Surekha (defendant 2) and Rajmani (defendant 3) in respect of A.O 12 decimals in Berhampur town, (marked Ext. I) in this Court; (2) A deed of settlement made by Adikanda and the plaintiff in favour of defendant 2 in respect of a house (marked Ext. 8) in the Berhampur Town; (3) A feed of settlement of the same date executed by Adikanda and the plaintiff in favour of Kajmoni defendant 3) in respect of a house in Berhampur own (Ext. 9), and a deed of settlement executed on 3-6-52 by Adikanda and the plaintiff along with his son Ramsankar in favour of defendant 2 ??? respect of a house situated in Berhampur town Ext. 10).

8. The questions of limitation, acquiescence and estoppel were not seriously challenged in this Court and the only point that was seriously contested before me is whether Adikanda was competent to make a gift of that extent of ancestral property which he did in favour of defendants 1 ??? 3.

9. From paragraph 3 of the plaint itself it ??? that

“the defendants 1 to 3 were married in poor milies, and were dependent on the plaintiff and ??? late father. So the plaintiff and his late ??? settled some properties to defendants 1 to and also purchased some properties in their ??? with the money of the plaintiff and his ???.”

10. Further from Ext. A the deed of settlement, appears that the daughters in whose favour the it was made were dependent on the father and consideration of that position the father made gift in favour of his daughters, and there are ??? also in that document that the donor was; exclusive owner of the property: but since that ??? was not taken in the courts below and both the Courts acted upon the assumption that it was the ancestral property and not the exclusive property of Adikanda, it is unnecessary for me to examine that point in this appeal. It may be noted in this connection that even in Exts. 8 and 9 referred to above there are clear recitals to show that the defendants were dependents on the plaintiff's family. From Ext. B it also appears that Mukta and defendants 1 to 3 were mutated in respect of the suit property. Obviously therefore, the deed of settlement (Ext. A) was acted upon which is also supported by the Muchalika executed by the various tenants in favour of Mukta and defendants 1 to 3. In view of this position, the contention of the respondent that the deed of settlement was not acted upon cannot prevail. It cannot also be disputed under the circumstances that the acceptance of the gift by the mother, one of the done, is sufficient to constitute acceptance by all the donees, particularly when they got their, names mutated in 1947 in pursuance of the deed of settlement (Ext. A) which comes from the custody of the donees.

11. Coming to the main controversy, however, two contentions are raised by the appellants before me; (1) The gift is reasonable in consideration of the total property held by the donor on the date of the gift; and (2) the father was competent to gift away the suit-land to his daughters, defendants 1 to 3, who admittedly are poor and dependent on the father.

12. That a reasonable portion of the ancestral property can be given away by the father to his daughters in consideration of the marriage cannot be disputed in view of a number of decisions on this point, Sailabala Deb v. Baikuntha Nath Ghose, AIR 1926 Cal 486, Devabhaktuni Sithamahalakshmamma v. Pamulpati Kotayya, AIR 1936 Mad 825. But in the present case nothing specific appears that the gift was made by the father in consideration of marriage of defendants 1 to 3. Therefore the only question that has to be considered is whether the donor was competent to make a gift unconnected with the marriage and whether the property so gifted was a reasonable proportion of the entire estate in the hands of the donor on the date of the gift. In the present case, the appellate court on the assessment of evidence before it found;

“Therefore, it is evident that the family was substantially rich inasmuch as, they had already 40 acres of land and 95 Bharans or 19 acres have been purchased from out of the gold belonging to the family not to speak of certain houses and other lands which admittedly had been gifted to the daughters after 1941. Therefore, the family must be said to have had sufficient nucleus as to be possessed of about 60 acres of land. There has also been some admission on the side of the plaintiff that his father had gifted 80 Bharanams of land to a deity, meaning about 16 acres. Of course, it is not known whether these 80 Bharanams appertain to these forty acres.”

13. Thus, in view of the appellate Court's finding, Adikanda had at least forty acres of land when he made the settlement of about 8 acres in favour of his daughters, defendants 1 to 3. In a case reported in Pugalia Vettromal v. Vettor Gonedan, 1912 Mad WN 89, a gift of 1/6th share of the family property to an undivided brother's daughter was held to be valid. Even assuming that the plaintiffs father had only forty acres — though according to the finding of the appellate Court he had more — a gift of about 8 acres to three of his daughters representing only 1/5th of the estate, cannot be said to be an unreasonable proportion when specially the eight acres is further divided between the three donees, it ultimately comes to about 2½ acres, that is, about 1/16th of the total estate held by the donor. The gift therefore in my opinion cannot be considered as unreasonable.

14. The next question is whether apart from the reasonableness of the gift, the father at all had any power to make the gift unconnected with the marriage, which appears to be a crucial question in this appeal. In this connection the case of Sundar Ramayya v. Sitamma, reported in ILR 35 Mad 628 was cited on behalf of the appellants. In that case the gift was made forty years after the marriage, and there was no evidence that the father had any intention to give any property at the time of marriage and the question was whether in such circumstances the gift was valid. Their Lordships held:

“The father or the widow is not bound to give any property. There may be no legal, but moral obligation. It was also true that in the case before us the father did not make any gift in discharge of the moral obligation at the time of the marriage, but it is difficult to say why the moral obligation cannot sustain a gift because it was not made to the daughter at the time of the marriage, but only sometime later.”

15. Therefore the moral obligation of the plaintiff's father in the above case continued in force till it was discharged by the gift.

16. In another case more or less on the same point reported in AIR 1943 Oudh 316, Pratap v. Raj Bahadur Singh, their Lordships held that the gift by the mother in favour of her daughter and son-in-law was valid even though she did not make any ‘Sankalpa’ at the time of the marriage. In a case reported in AIR 1922 PC 201, Ramalinga Annavi v. Narayana Annavi, their Lordships of the Privy Council while dealing with a case of gift made by the father to his daughter which appeared to be a case unconnected with the marriage held:

“The father has undoubtedly the power under the Hindu Law of making within reasonable limits a gift of immoveable property to a daughter. 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.”

17. In a recent decision of the Supreme Court reported in (S) AIR 1957 SC 434, Kamala Devi v. Bachulal Gupta, their Lordships after reviewing the previous decisions on the point including the aforesaid Privy Council decision observed as follows:

“Some decisions go to the length of holding that there is a moral or religious obligation of giving a portion of the joint family property for the benefit of the daughter and the son-in-law, and a gift made long after the marriage may be supported upon the ground that the gift when made fulfils that moral or religious obligation.”

18. But as the case before their Lordships was a case of gift relating to an ante nuptial agreement, their Lordships did not think it necessary to apply the aforesaid principles to this case. Therefore, it cannot be doubted that apart from marriage considerations, it is open to the father to give a reasonable extent of ancestral property by way of gift to the daughter particularly when she is in distress. I have held already that the property covered under Ext. A represents only a small portion of the total property in the hands of Adikanda. Thus he was quite competent to gift it to his daughters. The fact that some small houses or house-sites have also been given to two of his daughters both by Adikanda and the present plaintiff does not in any way affect the reasonable character of the gift made previously by Adikanda Admittedly the plaintiff's family has a good number of houses other than their residential house, and it is just possible that in order to give separate accommodation to the daughters, the plaintiff and his father also agreed to settle some house and house-sites in their favour. In view of this position, the deed of gift (Ext. A) is a valid transaction and is binding on the plaintiff. Accordingly, the appeal is allowed, the plaintiff's suit is dismissed, but each party will bear his own costs throughout.

FF/M/K.S.B

19. Appeal allowed.