MUTHU BHATTAR Vs. SHANBAGAKANNU

JUDGEMENT

(1.) THIS appeal comes before us on a remit order by the Supreme Court in Civil Appeal No. 2561 of 1966.Kailasam J. had in second Appeal relied on Prayag Doss Jee v. Govindacharlu 68 Mad LJ 295 : (AIR 1935 Mad 220) and held that the transfer in favour of the transferor's maternal aunt's son could not be said to be invalid. In 68 Mad LJ 295 : (AIR 1935 Mad 220) we find that Varadachariar and Burn, JJ., after a consideration of all the earlier decided cases, held that a gift in favour of a sister's son of the last male holder was good, though a nearer heir was available. When the present matter came up before a Division Bench under the Letters Patent, the appellant was allowed to take a new point, to wit, that the transfer amounted to a conveyance for consideration and therefore it was invalid. The subject -matter of the transfer in this case was 1 -7/8 days' archaka right with about 2 acres of land attached thereto. The Division Bench held that the transfer being for consideration, namely, it was subject to discharge of certain debts, it was a conveyance and therefore the transaction was invalid. The Supreme Court set aside this order of the Division Bench and held that it was not justified in allowing a new point to be taken which involved investigation into facts. The question as to the nature of the transfer turned on the interpretation of the language employed in the document. The document directed that a gift of a fractional share of the archaka right with property attached thereto was made in favour of the donee, subject to the latter discharging certain debts. But we are bound by the Orders of the Supreme Court and it is not open to the appellant to contend that the deed was a conveyance. We have only to proceed on the basis that it was a gift.

(2.) THE contention before us is that a gift of archaka right with properties attached thereto could lawfully be made only in favour of the sole immediate heir and not to any one else. Though there is some basis for this contention in Narayana v. Ranga, (1892) ILR 15 Mad 183; in Prayag Doss Jee v. Govindacharlu, 66 Mad LJ 295 : (AIR 1935 Mad 220) which was a case of a gift of such archakaship in favour of a sister's son of the transferor, its validity was upheld by Varadachariar and Burn JJ. In doing so. (1892) ILR 15 Mad 183 was also reviewed toy the Court. After having done that, the learned Judges observed : -