KOTHURI LAKSHMAIAH Vs. ARAVAPALLI LAKSHMAIAH

JUDGEMENT

(1.) The petitioner (plaintiff) instituted a suit against the three defendants on the foot of Exhibit A-1, dated 24th April, 1961, for recovery of Rs. 1,900 and odd. This promissory note was executed by the adoptive mother of the 1st defendant. She died before the suit. The 1st defendant was made party as legal representative of the deceased adoptive mother. The 2nd and 3rd defendants were impleaded and liability was sought to be fastened on them on the ground that they are universal donees under Exhibit B-4. Under Exhibit B-4, the adoptive mother had settled one house in favour of the 2nd and 3rd defendants, retaining life-interest for herself. The 1st defendant remained ex parte. The 2nd and 3rd defendants in their written statement denied their liability. They urged that Exhibit B-4 does not make them universal donees, as the adoptive mother had other properties also. Exhibit B-4 was executed on 5th May, 1961, The lower Court dismissed the suit against defendants 2 and 3, but decreed it against the 1st defendant. Defendant 1 has not come in revision. Therefore, the decree against him remains. It is the plaintiff who filed this Revision Petition, contending that the suit ought to have been decreed even against defendants 2 and 3, since they are the universal donees under Exhibit B-4. Reliance was placed in this connection on section 128 of the Transfer of Property Act. It reads as follows : " Subject to the provisions of section 127, where a gift consists of the donor's whole property, the donee is personally liable for all the debts-due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein."

(2.) It is not in dispute that on the day when the promissory note was executed, the adoptive mother had two houses. In one house she had life-interest under the settlement-deed executed by her husband. The other house was her " Streedhana" property which she had settled under Exhibit B-4 in favour of the 2nd and 3nd deferrendants, routing With hersach a lnto intrest. Thus she had lite-interest in both the houses. What was setiha under Exhibit B-4 was only one house. It would in, therefore, be. correct to argue that the whole property was settled under Exibit B-4. What was argued before me was that since she had only a life-interest in the other property set the. in her favour by her husband'., it can not.be raid that she had any other property within the meaning of section 128. It is difficult to accept that contention,. In tact in both the houses she had only a life-intest. Now section 128 would apply only where the gift is of the donor's "whole property". If any portion of the doners pioperty is excluded from the gift that section will not apply, no matter what the value of the property excluded is. The word Property' appearing in secticn 128 is not qualified by any expression such as transferable property ' or ' movable ' or ' immovable.' Even in a case where the doner has seme movable or immovable property left after the gift is made, section 128 will not be attracted. It is thus plain that in order to constitute a donee as an universal donee, sum total of donor's rights and liabilities in his entire property is (sic) transferred to the donee.

(3.) It is admitted that in any case the donor had life-interest in the house settled in her favour by her husband. When property is given to a female by a deed, the question may arise as to whether the settlement or the gift passes an estate of inherirance, i.e., an absolute estate, or merely a limited estate. Broadly speaking if the gift passes an absolute estate she can dispose of the property at her pleasure by act inter vivos or by will, but if the gift passes a limited estate, she can enjoy the usufruct of the property during her life-time, but she will not be able to dispose of the property. Whether a gift passes an absolute or a limited estate depends on the terms of the deed. Whatever may have been the position before in re gard to the construction of any such grant, after the Hindu Succession Act, 1956, came into force in construing such a gift the Court may assume that women now take absolute estate of inheritance. It is now firmly settled that to convey an absolute estate to a Hindu female no particular or express powers of alienat on need be given in the deed; it is enough if the words are of such amplitude as would convey full rights of ownership. The position however, as it now stands is that there is no presumption one way or the other and there is no difference between the case of a gift made in favour of a male or in favour of a female. And the fact that the donee is a woman does not make the gift any the less absolute where the words of the deed are sufficient to convey an absolute estate. In any case, as stated earlier, whether the life-interest which Sayamma had in the said house was transferable or not, it can hardly be doubted that it was ' property' which she had even after the gift made by her of another house. It is enough for the purpose of sect on 128 if the gift excludes from its scope any property of the donor. It is irrelevant for the purpose of section 128 whether such a property is transferable or not. In any event, the usufruct of the houpe in which Sayamma had life-interest was always available for the realisation of debt.