1. Permanand and Krishna nand were two brothers separate in estate. Krishnanand died long ago leaving him surviving a widow, Mussammat Mchna and a daughter Musammat Oreha who was married to Ram Jatan Tewari, defendant No. 1. It was said by the defence that they had a son Ram Man Tewari, who was defendant No. 2; but both the courts have found that Ram Man was not the son of Musammat Oreha, so he can be disregarded. The plaintiff is the grandson of Permanand. The property is suit belonged to Krishnanand. On his death his widow Musammat Mohna became the heir. She made a deed of gift or Shankalapnama, dated the 23rd of August 1904, in favour of Ram Jatan by which she transferred to him the entire property which she inherited from her husband with full proprietary rights. Musammat Mohna died in September 1908 This suit was brought by Bhagwati Shukul in 1918 to recover possession of the whole of this property on the ground that the gift by Musammat Mohna to her son-in-law was invalid after her life.
2. Various defences Avere raised but the only one that need be considered for the purposes of this appeal was that the gift under the circumstances was not justified.
3. The trial court found that Musammat Oreha was blind and a cripple and that in order to get her married it was necessary to supply her with a handsome dowry.
4. It held therefore that there was legal necessity for the gift but only to the extent of one-third of the value of the property. It therefore decreed the plaintiff's suit to that extent. Both parties appealed. The lower appellate court has allowed the appeal of the defendants and has dismissed the suit altogether. The plaintiff comes here in second appeal.
5. Three points are taken. First, that the gift to the daughter on the occasion of her marriage is justified provided that it is reasonable in amount and does exceed at the most one-quarter of the property; but that there is no justification for a gift to the bride-groom. Secondly, that, under the terms of the deed itself, it must be held that a portion, at any rate, was reserved for the use of Musammat Mohna herself and that the entire estate was not therefore really given away and thirdly, that if the mother brought about an unsuitable match of her blind and crippled daughter, that would be practically equivalent to selling the daughter in marriage and as such would be opposed to public policy. On this last point I see no indication that this line was taken in either of the courts below and certainly there are no findings arrived at on which it can be supported. It is found that Musammat Oreha was blind and a cripple. It is also found that her husband had already been married to another wife but the crucial finding of the court below, it seems time, is, that it being the duty of the mother to provide a husband for her daughter the alienation was made for “a sheer legal necessity.” Stress was laid on the case of Churaman Sahu v. Gopi Sahu (1) That was a case of a gift by a widow of a portion of immoveable property of her husband to her daughter on the occasion of her Gauna ceremony. This and some other cases that have been quoted all refer to gifts made to the daughter. In the case of Ramasami Ayyar v. Fengidusami Ayyar, (2) it was held that a gift made to a son-in-law under similar circumstances, of a portion of the property, was binding on the reversioners. In the case of Churaman Sahu v. Gopi Sahu, reference is made to an old case decided by their Lordships of the Privy Council, (vide page 7). There it is stated that Lord Clifford laid down “that a Hindu widow” had, ‘for certain purposes a clear authority to dispose of her husband's property, and might do it for religious purposes, including dowry to a daughter”, but that it was impossible to define the extent and limit of her power of disposing it but “it must depend upon the circumstances of the disposition whenever such disposition shall be made and must be consistent with the law regulating such disposition.” Now although the general rule sees to be that a gift to the daughter shall not exceed one quarter, some commentators have held (see bottom of page 5 and top of page 6 of the Calcutta decision) ‘that the word” ‘quarter’ is here used, not in its plain sense, but simply, to enjoin the allowance of as much as will suffice for the marriage of the sisters.”
6. It seems to me that no hard and fast rule can be laid down. If the property is of large value probably the alienation of more than a quarter would not be upheld. But where the property is very small in value (here it is valued at Rs. 500 only) and where under the circumstances the marriage of the girl into a suitable Brahman family, having regard to her blindness and infirmity, necessitated the spending of the equivalent in value of that property, then in the words of the lower court the alienation was “a sheer legal necessity.”
7. The second point is based on some words in the deed of gift generally to the effect that the donee will look after and support the widow in her life time and perform her funeral ceremonies on her death. The property is given out and out to the son-in-law without any sort of reservation and there is no charge on it for her support. The learned Judge of the lower appellate court who is certainly better able to appreciate the meaning of this document than I am, has come to the conclusion that the words in the deed which the learned Munsif read as a provision for maintenance in favour of Musammat Mohna were incapable of being interpreted in that way. It is perhaps significant to note that although the widow died as long ago as 1908, the suit to set aside the gift was not brought till 10 years afterwards. In my opinion the finding of fact arrived at, namely that in order to get the girl married, it was “a sheer necessity” for Musammat Mohna to provide a dowry of Rs. 500-or its equivalent by the gift of the property, concludes this appeal. I therefore dismiss it with costs including in this Court fees on the higher scale.