NAGAMMAL Vs. SUBBALAKSHMI AMMAL AND ORS.

JUDGEMENT

(1.) THE first defendant is the appellant in the second appeal and two questions arise for consideration. The first is whether, in the absence of any proof that Ponnammal, the step -mother of Srinivasan, who was the last maleholder of the estate, was allotted the lands absolutely or only for her life, the District Judge of South Arcot was right in decreeing the plaintiffs' claim on the basis that after Ponnammal's death, which took place in 1941, the lands reverted to the family of Srinivasan.

(2.) MR . M.S. Venkatarama Aiyar, the learned advocate for the appellant, was right in his contention that the rule enunciated by the Privy Council in Mahomed Shumsool v. that in the case of grants to a woman, there is a presumption (based on the notions prevalent in the community to which the grantor and the grantee belong) that the estate conferred upon her is only the limited estate of a Hindu widow or a Hindu daughter and not an absolute estate, has been abrogated by later decisions. According to the law as understood at present, there is no presumption one way or the other, and there is no difference between a gift to a male and a gift to a female. The fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male. But this position is quite different from what a Court may, and has to, presume from the surrounding circumstances and probabilities as regards the nature of any property which is allotted to a person for maintenance. A maintenance grant is prima facie an allotment of a personal nature to the grantee. It can be said that a Court is justified in presuming that a personal grant of the kind enures only for the lifetime of the grantee until the contrary is established. The presumption here is not based upon the sex of the grantee but depends upon the object, motive, or purpose of the grant. It was this view that was taken by Varadachariar, J., in Dorayya v. : AIR1936Mad130 and confirmed on appeal Mangamma v. : AIR1937Mad100 . That a maintenance grant carries with it such a presumption is implicit in the decision in Nandlal v. Sundarlal, I.L.R. (1943) All. 892 following the ruling of the Privy Council in Rameshar Baksh Singh v. Arjun Singh, (1900) L.R. 28 IndAp 1 :, I.L.R. 23 All. 194 P.C. In the case before us, Ponnammal was allotted the suit property for her maintenance after the death of her husband, Venkatarama Aiyar. At that time Srinivasan who was her husband's son by a predeceased wife was a minor. He was under an obligation to support the stepmother during her lifetime ; and she had a right to be maintained during her lifetime. If then it is stated that, in lieu of her rights to maintenance in the property, the lands in question were allotted to her absolutely, the burden is upon those who assert it. An absolute allotment of a small portion of the property in lieu of maintenance is not unknown to Hindu Law, and though not very common in early days, the idea that a maintenance grant may be in absolute form is recognised in Ramchandra Naicker v. : (1908)18MLJ347 . But it is the exception rather than the rule. We have also to remember in this case that the allotment, if any, was made prior to 1883, at a time when the notions prevalent in Hindu society as regards such provisions for maintenance were those indicated by the Privy Council in Mahomed Shumsool v. Shewakram, (1874) L.R. 2 IndAp 7 (P.C.). There is nothing in this case to indicate what exactly was the nature of the grant in Ponnammal's favour except that she took the lands as and for her maintenance.

(3.) WHAT remains is the point as to adverse possession. Ponnammal died only in 1941. An allegation on the side of the defendants that she orally sold the properties to the first defendant has been disbelieved. Though the patta was transferred in favour of the first defendant's husband ten years before the date of the alleged sale, it has been found by the District Judge as a fact that possession of the first defendant's husband and by the first defendant after his death was possession, not in their own right as vendees from Ponnammal or in any other capacity, but as persons in enjoyment on behalf of Ponnammal who was staying with them after her husband's death. It is stated that she admitted in the notice, Ex. D.2, that the possession held by the first defendant's husband was on his own behalf. But it is surely open to the Court to hold that notwithstanding such an admission by Ponnammal, the possession held by them was on her behalf and not adversely to her and, therefore, to the estate of Srinivasan.