JINNAPPA MAHADEVAPPA KUDACHI Vs. CHIMMAVA KRISHNAPPA KOCHARI

JUDGEMENT

(1.) I regret the judgment, "which I am about to deliver in this case; and I wish I could decide the case in favour of the respondents. The question raised is not directly covered by any decision of this Court; but, it is one which can be answered only in one way on principles of Hindu law. The question is whether a portion of a joins family immovable property can be gifted by a Hindu father to his daughter, for her maintenance, who had looked after him in his old age and for whom ho had great love and affection. The question is answered in the affirmative by both the Courts, but on different grounds. The trial Court considers that a Hindu father has the power to make a gift of a reasonable portion of immovable property to his daughter, and relies, in support of its judgment, on Sundararamayya V/s. Sitamma (1911) 35 Mad. 628. The learned appellate Judge proceeds on the ground that the gift was not of immovable property but was of the income of lands which were given to her, and that, as gifts of immovable property in such cases are allowed, this gift was valid and could be maintained.

(2.) The facts are not in dispute. One Tammanna, a very old man, was a member of a joint and undivided Hindu family, along with one deaf and dumb son and the plaintiffs, his grandsons by a predeceased son. Apparently, Tammanna was a well- to-do man, possessed of a considerable number of lands; and had something like thirty-eight lands. Of these, he made the present gift by a writing registered. The writing shows that he gave the property to his daughter for her life, as she had nursed, him in his illness and he had great affection for her. There is no doubt that the daughter has been in possession of the property since then. The short question therefore is whether such a gift is valid under the Hindu law. In my opinion, the principles are too clear for any doubt to arise. A Hindu father has, under certain circumstances, just as the manager of a joint Hindu family has, power to alienate property which is both movable and immovable; but the gift of immovable property is not one which comes within the exception. The ordinary principle is that each coparcener takes an interest by birth in the joint family property. Under the Mitakshara law no individual coparcener, whilst the family remains undivided, can even predicate of the coparceners property that he, that particular, has a definite share, much less either alienate it or gift it away or any part thereof, except under certain circumstances and subject to certain limitations. According to the texts, originally this prohibition applied even to the father as against his sons, but the restrictions on the father's power to alienate have been gradually removed, and it is clear that a Hindu father has a special power of disposal of ancestral property for certain purposes. Thus, the father may within reasonable limits gift away ancestral moveables without the consent of his sons for the purpose of performing indispensable acts of duty and for purposes prescribed by the texts as gifts through affection support of the family, relief from distress and so forth.

(3.) But even as to this, a gift of the whole of the ancestral moveable property to one son to the exclusion of another is not upheld by the Courts. Then, the Hindu father or a manager of a joint family may gift away, again within reasonable limits, ancestral immovable property for "pious purposes." But even here the gift must be made inter vivos and not by will. The third exception is that a Hindu father may sell or mortgage the joint family property to discharge an antecedent debt contracted by him for his own personal benefit and such an alienation would bind the sons, provided that the debt was not incurred for an immoral or unlawful purpose. I am not now referring to the power of a Hindu father, who is the manager of the joint family, to alienate the joint family property for a legal necessity or for any other similar justifying purpose. It is clear upon those well- established principles that the gift in the present case cannot be upheld.