# '957 L. J. Leach and Company Ltd v. Jardine Skinne1' and Co. Venkatarama

- **Citation:** [1957] 1 S.C.R. 452
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Case number:** Civil Appeal No. 158 of 1953
- **Bench:** S. R. DAs C. J, Bhagwati, S. K. DAs
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/957-l-j-leach-and-company-ltd-v-jardine-skinne1-and-co-venkatarama-1351
- **Pages:** 27

## Headnote

Hindu Law-Gift of immoveable property by widow-Daughter's marriage dotvry-Ante-nuptial pro1nise-Deed
executed and
registered after marriage-Validity-If binding on the reversionersTrnnsfer of Property Act (IV of 1882), s. 123-Hindu Succession
Act, 1956 (XXX of 1956), s. 14.
In
fulfilment
of
an
ante-nuptial
promise
made
on
the
occasion of the settlement of the terms
of
marriage
of
her
daughter, a
Hindu
widow,
governed by the Benares School of
Hindu Law, executed a registered deed of gift in respect of 4
houses
allotted
to her share
by a partition decree, in favour of
her daughter as her marriage dowry about two years after the
marriage.
The partition decree gave her a right to the income,
but no right to part with the corpus of the property to the
prejudice of the reversioners.
Her s.tep-sons brought a suit for a
declaration that the deed r.f gift was void and inoperative beyond
her lifetime and could
not
bind
the
reversioners.
The
trial
court found that the gifted properties constituted a
reasonable
portion of the estate, but that the gift not having been made at
S.C.R.
SUPREME COURT REPORTS
453
the
time of the marriage or on the occasion of the Gowna
'i957
(Dwiragaman) ceremony in accordance with the provisions of s.
Kamala Deui
123 of the Transfer of Property Act, was not binding on the reverv.
sioners beyond the lifetime of the widow and decreed the suit.
Bathu Lal G.pta
The High Court found that the widow had made the ante-nuptial
promise, but that the gift having been made about two years
after the marriage or the Gowna ceremony, the provisions of the
Transfer of Property Act relating to gifts stood in the way of
considering the same as having been made on the occasion of the
marriage but implemented later, and affirmed the decision of the
trial court, although the gifted houses were found to constitute a
reasonable portion of her husband's estate.
The contentions in
appeal on behalf of the widow and the daughter were (I) that
the widow had the power in Hindu Law, as it stood before the
enactment of the Hindu Succession Act, 1956, to execute the
deed of gift in question and (2) that s. 14 of the said Act had the
effect of making them full owners of the property in suit.
Held, that the deed of gift in favour of the daughter was
valid in law and binding on the reversioners and the appeal must
succeed.
Under the Benares School of Hindu Law, as it stood prior to
the enactment of the Hindu Succession Act, 1956, as also
under
the partition decree, the . properties allotted to the widow constituted her widow's estate as on inheritance and she. had no
absolute right of disposal over them.
Bhugwandeen Doobey v. Myna Baee, (1868) 11 M. I. A. 487,
referred to.
Debi Mangat Prasad Singh v. Mahadeo Prasad 'Singh, (1912)
L. R. 39 I. A. 121, followed.
In Hindu Law the marriage of a daughter is a pious act and
confers direct spiritual benefit on the father and a widow has the
power to make a gift of a reasonable portion of her husband's
estate
as
marriage
dowry
to
the
daughter,
even after the
marriage, in fulfilment of an ante-nuptial promise, whether she
makes the 'sankalpa' at the time of the marriage or not.
Ganga Bisheshar v. Pirthi Pal, (1880) I. L. R. 2 All. 635, disapproved.
Case-law reviewed.
This power of the widow is one conferred on her by Hindu
Law and is not affected by the provisions of s. 123 of the Transfer of Property Act, though the gift to be legally effective must
be made in the manner prescribed by that section.
Although there is no doubt that sub-s. (1) of &. 14 of the
Hindu Succession Act, 1956, gives a retrospective
operation
to
the provisions of that section so as to make a female Hindu a
7-77 s. a. India/59
1957
Kamala D1;;i
v.
Bachu Lal Gupta
454
SUPREME COURT REPORTS
(1957]
full owner of immoveable property acquired either at a partition
or by
way
of gift, it is not necessary in the present case to
examine the true nature and scope of s. 14 of the Act.
C1v1L
APPELLATE
JuRISDICTION : Civil Appeal No.
158 of 1953

## Text

_Characters 0–38,050 of 60,497. This is a partial read: ask again with offset=38050 for what follows._

'957
L. J. Leach and
Company Ltd.
v.
Jardine Skinne1'
and Co.
Venkatarama
Ayyar J.
January, 29.
452
SUPREME COURT REPORTS
[1957]
rehearing to the trial court. The defendants will file
their written statement to the amended claim and the
suit will be tried and disposed of in accordance with
law.
There remains the question of costs.
As the plaintiffs are getting an indulgence, they must pay the costs
of the defendants both in the suit and in the appeal to
the Bombay High Court.
So far as costs of this appeal
are
concerned,
as the defendants persisted in their
contention that the plaintiffs were only acting as their
agents,
a contention which, if upheld, would have
furnished a conclusive answer to the amended claim as
well, we direct the parties to bear their own costs m
this Court.
KAMALA DEVI
v.
Appeal allowed.
Case remanded.
BACHO LAL GUPTA
[S. R. DAs C. J., BHAGWATI and S. K. DAs JJ.]
Hindu Law-Gift of immoveable property by widow-Daughter's marriage dotvry-Ante-nuptial pro1nise-Deed
executed and
registered after marriage-Validity-If binding on the reversionersTrnnsfer of Property Act (IV of 1882), s. 123-Hindu Succession
Act, 1956 (XXX of 1956), s. 14.
In
fulfilment
of
an
ante-nuptial
promise
made
on
the
occasion of the settlement of the terms
of
marriage
of
her
daughter, a
Hindu
widow,
governed by the Benares School of
Hindu Law, executed a registered deed of gift in respect of 4
houses
allotted
to her share
by a partition decree, in favour of
her daughter as her marriage dowry about two years after the
marriage.
The partition decree gave her a right to the income,
but no right to part with the corpus of the property to the
prejudice of the reversioners.
Her s.tep-sons brought a suit for a
declaration that the deed r.f gift was void and inoperative beyond
her lifetime and could
not
bind
the
reversioners.
The
trial
court found that the gifted properties constituted a
reasonable
portion of the estate, but that the gift not having been made at
S.C.R.
SUPREME COURT REPORTS
453
the
time of the marriage or on the occasion of the Gowna
'i957
(Dwiragaman) ceremony in accordance with the provisions of s.
Kamala Deui
123 of the Transfer of Property Act, was not binding on the reverv.
sioners beyond the lifetime of the widow and decreed the suit.
Bathu Lal G.pta
The High Court found that the widow had made the ante-nuptial
promise, but that the gift having been made about two years
after the marriage or the Gowna ceremony, the provisions of the
Transfer of Property Act relating to gifts stood in the way of
considering the same as having been made on the occasion of the
marriage but implemented later, and affirmed the decision of the
trial court, although the gifted houses were found to constitute a
reasonable portion of her husband's estate.
The contentions in
appeal on behalf of the widow and the daughter were (I) that
the widow had the power in Hindu Law, as it stood before the
enactment of the Hindu Succession Act, 1956, to execute the
deed of gift in question and (2) that s. 14 of the said Act had the
effect of making them full owners of the property in suit.
Held, that the deed of gift in favour of the daughter was
valid in law and binding on the reversioners and the appeal must
succeed.
Under the Benares School of Hindu Law, as it stood prior to
the enactment of the Hindu Succession Act, 1956, as also
under
the partition decree, the . properties allotted to the widow constituted her widow's estate as on inheritance and she. had no
absolute right of disposal over them.
Bhugwandeen Doobey v. Myna Baee, (1868) 11 M. I. A. 487,
referred to.
Debi Mangat Prasad Singh v. Mahadeo Prasad 'Singh, (1912)
L. R. 39 I. A. 121, followed.
In Hindu Law the marriage of a daughter is a pious act and
confers direct spiritual benefit on the father and a widow has the
power to make a gift of a reasonable portion of her husband's
estate
as
marriage
dowry
to
the
daughter,
even after the
marriage, in fulfilment of an ante-nuptial promise, whether she
makes the 'sankalpa' at the time of the marriage or not.
Ganga Bisheshar v. Pirthi Pal, (1880) I. L. R. 2 All. 635, disapproved.
Case-law reviewed.
This power of the widow is one conferred on her by Hindu
Law and is not affected by the provisions of s. 123 of the Transfer of Property Act, though the gift to be legally effective must
be made in the manner prescribed by that section.
Although there is no doubt that sub-s. (1) of &. 14 of the
Hindu Succession Act, 1956, gives a retrospective
operation
to
the provisions of that section so as to make a female Hindu a
7-77 s. a. India/59
1957
Kamala D1;;i
v.
Bachu Lal Gupta
454
SUPREME COURT REPORTS
(1957]
full owner of immoveable property acquired either at a partition
or by
way
of gift, it is not necessary in the present case to
examine the true nature and scope of s. 14 of the Act.
C1v1L
APPELLATE
JuRISDICTION : Civil Appeal No.
158 of 1953.
Appeal by special leave from the judgment and
decree dated April 6, 1950, of the Calcutta High Court
in appeal from original decree No. 166 of 1944 arising
out of the decree dated June 30, 1943, of the Court
of the Subordinate Judge, Asansol, in Title Suit No. 2
of 1942.
Ramanugrah Prasad and Mohan Beharilal, for the
appellants.
H. /. Umrigar and S. P. Varma, for respondents
Nos. 1 and 2.
1957. January 29. The Judgment of the Court was
delivered by
S. K. DAs J.-This is an appeal by special leave
from the judgment and decree of the High Court of
Calcutta, dated April 6, 1950, by which the said High
Court affirmed the judgment and decree of the Subordinate Judge of Asansol dated June 30, 1943, in Title
Suit No. 2 of 1942.
The suit was instituted by the
four sons of one Ram Kishori Lal Sao, a resident
of Asansol in Bengal, who died in September 1927.
One of
the plaintiffs,
Kalicharan, died during the
pendency of the suit and his heirs were brought on the
record as plaintiffs in his stead. The defendants were
Sumitra Devi, widow of the late Ram Kishori Lal,
(defendant
No.
1)
and
Kamala Devi,
daughter
of the late Ram Kishori Lal (defendant No. 2). The
said defendants, 1 and 2, are the appellants before us.
The suit was instituted for a declaration that a deed
of
gift dated March 10, 1940, executed by Sumitra
Devi in favour of her daughter Kamala Devi, was
void and inoperative beyond the lifetime of Sumitra
Devi and was not binding on the reversion. The
following genealogical table shows the relation inter se
between the parties :
S.C.R.
SUPREME COURT REPORTS
Ram Kishori Lal
l
4th wife
I
_l _____ I
Bachu Lal Heman Lal
I
3rd wife
J ____ _
K lichaJan (Pl ff. 3)
Ra~bandhu
died during pen-
(Plff. 4)
(Plff. 1)
(Plff. 2)
dency of the suitMst. Ram Sakhi
(Plff. 3 gha)
455
I .
5th wife
Sumitra Devi
(Deft. 1)
I
I
I
I
Satyanarain
Hiralal
Gopal
Lachmi Narain
Kama Jal :
(Plff. 3 Ka)
(Plff. Kha)
(Plff. 3 Ga)
(died on I-I-36)
(Deft. 2)
On his death, Ram Kishori Lal had left extensive
properties worth several lakhs, including some houses
in Asansol, two businesses at Howrah and Asansol, and
large amounts of money deposited in Banks or invested
in loans etc. Shortly after his death Sumitra Devi, for
herself and as guardian of her two children, Lachmi
Narain and Kamala, brought a suit against her stepsons for partition of the properties left by her husband.
This suit was registered as Title Suit No. 664 of
1927
in the Court of the Subordinate Judge of Asansol.
A
preliminary decree was passed in the suit on July 22,
1933, and 'a final decree on June 29, 1936. This decree
provided for payment of Rs. 10,000 as expenses for
the marriage of the minor daughter Kamala, in addition to a maintenance allowance of Rs. 50 per month
to her until she was married. Lachmi Narain, it should
be noted, died on January 1, 1936. By the final decree,
each of the sons obtained one-sixth share of the estate
of Ram Kishori Lal. By reason of the death of Lachmi
Narain before the final decree, Sumitra Devi got onethird share of the estate, one-sixth in her capacity as
widow and one-sixth as the mother of her pre-deceased
son. The allotment in favour of Sumitra Devi consisted
mostly of house properties, and the four houses of her
share with which we are concerned in this
litigation
were described in a schedule to the plaint and stood on
Municipal Holding Nos. 16, 17, 26 and 27 of Circle 4 of
the Asansol Municipality.
The value of these four
houses was found by the Commissioner at the time of
partition to be in the neighbourhood of Rs. 19,000
only.
1957
!r1J111ala Devi
v.
Ba&hu Lal Gupta
S.K. Das J.
1957
Kamala Devi
v.
Bac/w Lal Gupta
S. K. Das].
45'6
SUPREME COURT REPORTS
[1957}
The marriage of Kamala Devi was settled with one
Bijoy
Kumar Sao,
son
of Nand Lal Sao, a retired
Depμty Postmaster, Patna General Post
Office.
The
case of the appellants was that the marriage was settled
at Deoghar on Shivratri day in 1938 and the plaintiffs,
respondents before us, had no concern with the negotiation ; it
was
alleged that the terms of the marriage
settlement included a promise by Sumitra Devi of a
gift of four houses at Asansol, worth about Rs. 20,000
as marriage dowry for Kamala. The further case of
the appellants was that at the time of the marriage
itself,
which
was
performed
on
May
10,
1938,
Sumitra Devi made
a "sankalpa" of the gift of four
houses at Asansol, which was accepted by Nand Lal
Sao on behalf of Kamala, and the gift was later
confirmed on the occasion of the Dwiragaman (Gowna)
ceremony which took place in December, 1938, and
possession of the houses was also given to her ; soon
after the marriage, however, Sumitra Devi feel ill and
the deed of gift was actually executed and registered
on· March 10, 1940, some two years after the marriage.
This was the deed of gift which was impugned by the
plaintiffs-respondents.
The case of the plaintiffs-respondents was that the
marriage
negotiations took place at Asansol and did
not contain any promise of the gift of four houses as
marriage
dowry.
The
plaintiffs-respondents
alleged
that the arrangements were ·that ornaments worth
about Rs. 5,000 were to be given to Kamala Devi,
a sum of Rs. 800 was to be paid as travelling expenses
of the
bridegroom's party, and gifts of some moveable
properties were to be made out of the balance of the
sum of Rs. 10,000 which was set apart for the marriage expenses of Kamala Devi.
The plaintiffs-respondents denied that there was any ante-nuptial promise
of a gift of four houses as marriage dowry or that
there was any "sankalpa," at the time of marriage or
any
confirmation of
the gift at the Dwiragaman
ceremony.
They alleged that Sumitra Devi, under the
evil advice of her father and son-in-law and to deprive
the plaintiffs-respondents of their right, made a gift of
the· four houses at Asansol in favour of Kamala Devi
S.C.R.
SUPREME COURT REPORTS
457
on the 10th March, 1940, a gift which she was not
competent under the law to make. It was alleged that
the gift was collusive, fraudulent and without consideration; and in any event, it could not be operative
beyond the lifetime of Sumitra Devi and was not
binding on the reversion, as she had only a life interest
in the corpus of the property and there was no justifying legal necessity for the alienation made by her.
It
was also alleged
that Sumitra Devi was not legally
competent to make a gift, as marriage dowry of her
daughter, of such a big and unreasonable portion of
the estate left by her husband.
On the
aforesaid pleadings of the parties, the
principle issues were Issues Nos. 2 and 3 which were in
these terms :
"2. Is the defendant No. 1 competent to make any
gift of the properties mentioned in the plaint beyond
her lifetime to defendant No. 2 ? Is it void and
inoperative against the plaintiffs
beyond the lifetime
of defendant No. l ?
3. Is the deed of gift executed by defendant No. 1
in favour of defendant No. 2 with the alleged collusive
and fraudulent allegations binding on the plaintiffs on
her death ?"
It is necessary now to summarise the findings of th~
Courts below on these issues.
On the questions of fact
involved in the two issues, the learned Subordinate
Judge came to the following findings : (1) the marriage
of Kamala Devi was settled at Deoghar as claimed by
Mst. Sumitra Devi and not at Asansol ; (2) there was,
however, no promise of any gift by her of four houses
at Asansol either at the time of the settlement of the
marriage
terms
at Deoghar or during the marriage
ceremony ; (3) the story of the delivery of possession
of the houses to Kamala Devi was not supported by
reliable evidence.
Basing his decision on the aforesaid
findings of fact,
the learned Subordinate Judge held
that the interest created in favour of Sumitra Devi in
respect of the properties allotted to her on partition
was in the nature of an ordinary maintenance grant
and she had no right to alienate the same in favour of
her daughter.
Even if she had the limited right of
1957
Kamala Devi
v.
Bachu Lal Gupta
S. K. Das J.
1957
Kamala Devi
...
Badw Lal Gupta
S. Ir. Das J.
458
SUPREME COURT REPORTS
[1957}
disposal, as in the case of a Hindu widow, she was not
competent to execute any deed of gift, except with
regard to a reasonable portion of the estate of her
husband at the time of the marriage of Kamala Devi
or on the occasion of the Gowna ceremony. Though the
learned
Subordinate Judge found that the properties
given to Kamala Devi constituted a reasonable portion
of the estate, he held that the gift not having been
made at the time of the marriage or on the occasion
of the Gowna ceremony in accordance with the provisions of s. 123, Transfer of Property Act, was not binding on the
plaintiffs-respondents and could not operate beyond the lifetime of Sumitra Devi.
He accordingly decreed the suit.
The learned Judges of the High Court formulated
five questions of fact, four of which are important for
our purpose, and on a fresh consideration of the evidence on the record, came to the following findings
thereon : ( 1) a final settlement of the terms of marriage
was made at Deoghar and the terms which were
settled between the parties were : (a) that Sumitra
Devi wou.\d arrange for the gift of ornaments worth
about Rs. 5,000,
(b) a sum of Rs. 800 would be p~id
for meeting the expenses
of travelling of the bridegroom's party from Patna to Asansol, ( c) a sum of
Rs. 51 would be paid for the Tilak ceremony and (d) a
gift of four houses at Asansol, worth about Rs. 20,000,
would be made in favour of Kamala Devi, though the
evidence led on behalf of the appellants did not make
it absolutely clear or specific that the promise related
to the four particular houses which were the subjectmatter
of the subsequent gift ; (2) the plaintiffs-respondents had nothing to do either with the settlement
of the
terms of marriage or with any control or·
management of the marriage ceremony; (3) there was
no reliable
evidence that Sumitra Devi had made a
"sankalpa" of the gift of the houses when the bride
was given in marriage and the question of confirming
such a gift at the Gowna ceremony did not therefore
arise ; ( 4) it was not proved by reliable evidence that
the possession
of the houses
in question was made
over to Kamala Devi
before the actual execution of
S.C.R.
SUPREME COURT REPORTS
459
the deed of gift. Relying on the decision in Debi
Mangat Prasad
Singh v. Mahodeo
Prasad Singh( 1 ),
the learned Judges of the High Court pointed out
that even in cases governed by the Mitakshara (the
parties in this case are admittedly governed by
the
Benares school of Mitakshara law) the share allotted
to
Sumitra Devi on partition was not her stridhan
but stood on the same footing as property inherited
by her from her husband and that on her death the
property would pass not to her stridhan heirs but to
the
sons
or grandsons.
The learned Judges then
referred to the decision in Churaman Sahu v. Gopi
Sahu( i) and observed that though it was competent for
a Hindu wid'.:>w, governed by the Mitakshara, to make
a valid gift of a reasonable portion of the immoveable
property of her husband to her daughter subsequent
to the
marriage
ceremony,
the
gift in
Churaman
Sahu's case was made at the time of the Dwiragaman
(Gowna)
ceremony which was really a part of the
marriage ceremony, while the gift in the present case
was
made some two years after the marriage. They
then said : "In the case now before us the marriage
and the Gowna ceremony took place in 1938 and the
document was executed in March 1940, the lapse of
time between the two is too great to describe the gift
to have
been made on the occasion of either the
marriage or the Gowna ceremony.
No authority had
been placed before us supporting a gift by a widow to
a daughter except at the time or on the occasion of
marriage ceremony.
The ante-nuptial promise cannot
be regarded as a gift having been made on the occasion
of the marriage.
Had it not been for the provisions
contained in the Transfer of Property Act governing
the Law of Gifts it might have been possible to consider the gift as having been made on the occasion of
the
marriage,
the
implementation
of
which
was
subsequent.
In view of the strict provisions of the
Transfer of Property Act we can only consider the
gift to have been made at the time when the deed was
executed
and registered." On the question whether
the gift in favour of Kamala Devi by Sumitra Devi
(1) (1912) L.R. 39 I.A. 121.
(2) [19og] I.L.R. 37 Cal. 1.
1957
/( amaill Devi
v.
Bachu Lal Gupta
S. K. Das].
1957
Kamala Devi
v,
Bachu Lal Gupta
~- K. Das J.
460
SUPREME COURT REPORTS
[1957]
was of a reasonable portion of her husband's properties, the
learned Judges observed: "In the
present
case, the value of the houses gifted was just above
Rs. 18,000 which was about a fourth of the value of
each share allotted ( viz., above Rs. 73,000).
Even if
the
provmon
of
Rs. 10,000 made in the
partition
decree for meeting the marriage expenses be taken
into account, we cannot say
that the value of the
gifted houses was disproportionate or unreasonable."
In the result, the High Court affirmed the decision of
the
learned
Subordinate
Judge and dismissed the
appeal preferred by the defendants who are the appellants here.
It is necessary to state now the contentions which
have been urged before us on behalf of the appellants,
and they may be put in two main categories-(a) contentions with
regard to the findings of fact, and
(b) contentions of law. Learned counsel for the appellants has impeached the concurrent finding of the
Courts below that there was no "sankalpa" oi: promise of a gift of the four houses in. question at the
time of the marriage ceremony which, it was alleged,
was .followed by· a confirmation of the gift at the
Gowna ceremony. The finding has been impeached
on the ground of a serious error of record said to have
been committed by the High Court and on the ground
of
non-consideration
of relevant evidence.
It has
been argued before us that the proper finding should
have been
that Sumitra Devi made a "sankalpa" of
the gift of the four
houses in question after the
Sampradan ceremony
on
the occasion of the marriage
of Kamala Devi and that the gift was accepted bv
Nand Lal on behalf of his minor daughter-in-law and
that such a gift was again confirmed at the Gowna
ceremony. The main contentions of law are three in
number : firstly,
it
has
been contended that even
accepting the findings of the final Court of fact as
correct, the gift being of a reasonable portion of the
estate of Ram Kishori Lal Sao and in pursuance and
fulfilment of
an
ante-nuptial agreement made by
Sumitra Devi at the time of the final settlement of the
marriage negotiations at Deoghar, was for the spiritual
S.C.R.
SUPREME COURT REPORTS
461
benefit of Ram Kishori Lal and valid in Hindu law ;
any such lapse of time as occurred in the. execution
and registration of the deed of gift was immaterial, if
the deed of gift
was in fulfilment of the
moral obligation
flowing
from
the
ante-nuptial
agreement :
secondly, it was suggested that Sumitra Devi got an
absolute right in the properties given to her as her
share on partition ; thirdly, a reference was made to
section 14 of the Hindu Succession Act, 1956 and it
has been argued that in view of the said provisions
the
plaintiffs-respondents
were not entitled to the
reliefs which they claimed. It may be stated here that
arguments in the case had concluded before the Court
closed for the annual vacation in 1956 and during the
vacation the
Hindu Succession Act, 1956, came into
force on June 17, 1956.
On an application filed by the
appellants, fresh arguments were heard with regard to
the provisions of s. 14
of
the
Hindu
Succession
Act, 1956.
We proceed now to deal with the contentions in the
order in which we have stated them. First, we take up
the
contentions
with regard to the findings of fact
referred to above.
It has been pointed out to us that
the learned Judges of the High Court made a serious
error of record in dealing with the oral evidence as to
the verbal gift said to have been made at the time of
the marriage of Kamala Devi and the acceptance of
such a gift by Nand Lal, father-in-law of Kamala
Devi. In dealing with the oral ev.idence on
this question, the learned Judges have said : "If we leave out of
account . for the present the evidence of Sumitra Devi
and Bijoy as also of Kamal, who has been contradicted
on a very
material point by the other witnesses and
also Nand Lal, father of Bijoy, we are left with Parasuram and Rash Behary. P:i.rasuram, a tenant, happens
to be present at the psychological moment only for a
few minutes when the Sankalpa is being made."
The
High Court clearly made a mistake in dealing with the
evidence of Parasuram Sharma
and confused
Parasuram Sharma (witness No. 16)- with Pashupati Sarkar
(witness No. 10).
Pashupathi Sarkar was a tenant of
Sumitra Devi and it was his evidence that he went to
1957
Kamala Devi
v.
Bachu Lal Gupta
S. K. Das J.
1957
Kamala Dtv
v.
Bachu Lal Gupta
S. K. Dat J.
462
SUPREME COURT REPORTS
[1957]
the place of marriage at about 12 midnight or 1 a.m.
and stayed there for two minutes only and then came
away. Parasuram Sharma (witness No. 16) was not a
tenant of Sumitra Devi.
He was the Head Master of
the Indian H.E. School at Patna, a school where Bijoy,
husband of Kamala, was a pupil for
two years. This
Head Master said that he attended the marriage as a
member of the bridegroom's party and was present
when from behind the purdah Sumitra Devi made a
"sankalpa" of the gift of four houses ; this was conveyed by Ganapati Sastri who recited "mantras" and
was accepted by Nand Lal. It is unfortunate that the
High Court confused Parasuram Sharma (witness No.
16) with Pashupati Sarkar (witness No. 10), with the
result that Parasuram Shanna's evidence was not properly considered by the High Court. This defect in the
consideration of the evidence by the High Court is
undoubtedly there.
The point for consideration is if
this is a sufficient ground for departure from the ordinary rule of this Court not to go behinrl the findings of
fact arrived at by the Courts below.
Though the mistake made in unfortunate, we do not think that it is
sufficient to disturb the finding of the Courts below or
even to re-open the finding at this stage.
It is worthy
of note that the learned Subordinate Judge made no
mistake about Pashupati and Parasuram.
He pointed
out that the witnesses examined on behalf of the appellants with regard to the verbal gift at the time of the
marriage and its acceptance by Nand Lal, were mostly
interested
witnesses
and none
of them
were
really
inrlependent.
Even
Parasuram
Sharma, whose evidence has been placed before us by learned counsel for
the appellants, cannot be said
to be completely independent. He was invited to attend the marriage as a
member of the bridegroom's party and he said that he
overheard Sumitra Devi saying that she was making a
"sankalpa" of the gift of four houses as promisedevidence which is not of a very satisfactory nature.
There were
many
other criticisms
of the
evidence
regarding the . verbal gift at the time of the marriage ;
the learned
Judges of the High Court have referred to
these criticisms and they accepted some of them.
One
•
S.C.R.
SUPREME COURT REPORTS
463
of the criticisms which g1eatly weighed with the learned Subordinate Judge was the absence of any reference
to the gift of four houses in
contemporaneous Court
proceedings
with
regard
to
the
withdrawal of
Rs.
10,000
by Surnitra Devi, the sum which was set
apart by the partition decree for the marriage expenses of Kamala Devi.
This criticism was not, however,
fully accepted by the learned Judges of the High Court
who placed
greater reliance on the evidence of Rai
Saheb Jogendra Nath Roy (witness No. 14) who was
the most respectable and reliable witness examined on
behalf of the appellants.
The evidence of this witness
supported the e?idence of Sumitra Devi with regard to
the promise made regarding the gift of four Asansol
houses at the time of the settlement of marriage negotiations at Deoghar. There can be no doubt that Rai
Saheb Jogendra
Nath Roy was a very
respectable
witness and had no reasons to tell lies. Though he
supported that part of the evidence of Sumitra Devi
which relateLl to the promise of a gift of four houses at
Asansol at the time of the marriage negotiations at
Deoghar, he made no statement about a verbal gift
having been made at the time of the marriage itself.
The witness said that he went to Sumitra Devi's house
on the evening of the marriage and stayed for fifteen
to twenty-five minutes only. He further said that he
was not present at the time of the marriage ceremony.
It
may, therefore, be that Rai Saheb Jogendra Nath
Roy was not present at the time when the verbal gift
was alleged to have been made.
By far and large, the learned Judge~ of the High
Court did examine with care the oral , evidence
with
regard to the alleged verbal gift at the time of the
marriage and but for the unfortunate confusion between
Parasuram Sharma and Pashupati Sarkar, we do not
think that the consideration of the oral evidence by
the High Court is open to any other serious criticism.
The learned Judges rightly pointed out a serious discrepancy which existed between the evidence of Kamal
Narayan Pandey (witness No. 8), who is said to have
acted as the priest for the marriage, and the evidence
of other witnesses with regard to the "lagan" or time
t957
Kamala Dai
v.
B111;h:1 Lal Gup:a
S. A. Das].
Aamala Devi
v.
13!Uhu I at G"pta
S. K. Das J.
SL'PREME COURT REPORTS
[1957]
of m~rnage. faking all
these circumstances into consideration, we do not think that we shall be justified
in going behi::.d the finding of the Courts below that
the
appellants
had failed to
prove
by satisfactory
evidence that Mst. Sumitra Devi made a verbal gift of
the four houses in question at the time of the marriage
of her daughter Kamala Devi and that such a gift was
accepted by Nancl Lal on behalf of him minor daughterin-law.
In view of this finding, the question as to
whether the gift was again confirmed at the time of
the Gowna cereinony does not really arise. There can
be no confirmation of an act which did not itself take
place.
As the appellants have impeached the finding of the
Courts below with regard to the verbal gift said to have
been made at the time of the marriage, the respondents
have also impeached before us the finding of the High
Court about an ante-nuptial agreement
said
to have
been made at Deoghar.
It has been contended by
learned counsel for the respondents that there were no
compelling reasons for the High Court, which was the
appellate Court, to differ from the appreciation of the
oral evidence by the learned Subordinate' Judge,
who
had the advantage of seeing the witnesses, with regard
to the question of the ante-nuptial agreement said to
have been made at Deoghar. It is true that the learned
Subordinate Judge did not accept the evidence of the
witnesses who testified to the terms of settlement of
the marriage negotiations at Deoghar.
What tipped
the scale in favour of the finding arrived at by the
High Court on this point was the evidence of Rai Sahib
Jogendra Nath Roy (witness No. 14).
The learned
Subordinate Judge gave certain reasons for not accepting the evidence of this witness. The learned
Judge~
of the High Court considered those reasons
very carefully and rightly pointed out that there were no good
grounds for thinking that Rai Saheb Jogendra Nath
Roy had fallen a victim to lapse of memory or for
holding that he was an interested witness. The evidence
of Rai Saheb )ogendra Nath Roy. was considered in
the context of contemporaneous Court proceedings fo1
the withdrawal of Rs. 10,000 and
the learned
Judges
S.C.R.
SUPREME COURT REPORTS
465
of the High Court accepted the explanatio~ which Rai
Saheb Jogendra Nath Roy gave for not mentioning the
promise of a gift of four houses in Asansol in the
application
which Sumitra Devi made for the withdrawal of the said sum of Rs. 10,000. In our opinion,
the finding of the High Court as
to an ante-nuptial
agreement for the gift of four houses at Asansol, worth
about Rs. 20,000, is not vitiated by any error of fact
or law.
That finding must, therefore, be accepted as a
correct finding, even
though the learned Subordinate
Judge came to a contrary conclusion with regard to it.
Having disposed of the · contentions of fact urged
before us, we proceed now to a consideration of the
contentions of law. It may be convenient to dispose
of, first, the argument somewhat faintly advanced on
behalf of the appellants that even prior to the enactment of the Hindu Succession Act, 1956, Sumitra Devi
had an absolute right of disposal in the share allotted
to her on partition- in 1933-36 under Mitakshara law.
The question whether the share allotted to a mother
on
partition is stridhan or not, according to
the
Benares school, was left open by their Lordships of the
Privy Council in Bhugwandeen Doobey v. Myna Baee (1),
the very case in which they held that property
inherited by a woman was not stridhan according to the
Mitakshara.
In Debi Mangal Prasad Singh v. Mahadeo
Prasad Singh (2), the Allahabad High Court, after a
review of all the authorities on the subject, held that
it was
stridhan ; but the Privy Council held
that it
stood on the same footing as property inherited by a
woman and that it was not stridhan. The actual point
decided in Debi Mangal Prasad's case was that there
was no substantial
difference in principle between a
woman's property acquired
by
inheritance and that
acq~i;ed by partition. It is worthy of note that the
part1t10n decree proceeded on the footing that Sumitra
Devi would be entitled to the income from the properties allotted to her but should not be in a position to
prejudice
the
reversioners by destroying the corpus.
The preliminary
decree for partition stated : "The
Commissioner is further directed to allot as little liquid
(r) [1868] 11 M.l.A. 487, 5q.
(2) (1912) L.R.39 I.A 121.
1957
Kamala Devi
v.
B.xhu Lal Gupla
S. K. Das].
1957
K~mala Dtl'i
v.
Bochu Loi G.pto
S. K. Das].
SUPREME COURT REPORTS
(1957]
.:ash to the share of plaintiff No. 2 (Sumitra Devi) as
possible on partition and as a rule should allot such
properties to her share of which she may receive income
without trouble, but may not prejudice the reversioners
by destroying the corpus".
It follows, therefore, that
under the Mitakshara law and also under the partition
decree, Mst. Sumitra Devi did not have an absolute
right or interest in the share allotted to. her on partition. Under the decision in Debi Mangat Prasad Singh
v. Mahadeo Prasad Singh( 1 ), the property allotted
to
Mst. Suinitra Devi on partition stood on the same
footing as property inherited by her from her husband.
She had no absolute right' of disposal of the property.
This brings us to a consideration · · of the principal
point argued before us on. behalf of -the appellants,
namely, whether Sumitra. Devi was competent to make
a gift of a reasonable portion of the estate · of her
husband to her daughter Kamala : Devi . as a marriage
dowry in pursuance. and fullihnent of an · ante-nuptial
agreement, evea .. though the gift :was. made some
two
years after the .marriage .ceremony: . This· point was
urged before us, ;is we have already· stated, prior to
and irrespective of the enactment· of the fiindu Succession Act, 1956.
The argument of ·learned counsel for
the appellants was that Sumitra Devi ·was competent
to make such ·a ·gift under the Hindu law, even as it
stood prior to the enac.tment of the Hindu Succession
Act, 1956. . We shall; therefore, deal with this point,
irrespective of the provisions of . s. 14 of the Hindu
Sucession Act, 1956.
It may be stated at the very outset t!).ar the concurrent finding of the Courts below was that the gift of
four houses at Asansol, of a value of about Rs. 19,000,
was not disproportionate or unreasonable if one
had
regard to the .. · large extent of properties left by Ram
Kishori Lal Sao on his death ; this was so even taking
into consideration the sum of Rs. 10,000 which was set
apart for the marriage expenses of Kamala Devi and
which was · withdrawn by Sumitra Devi. In our opinion, that finding is correct and must be accepted as
such.
Therefore, the narrow question is
if Sumitra
Devi was competent to n.ake the gift of four houses at
(1) (1912) L.R. 39 I.A. '"'
S.C.R.
SUPREME COURT REPORTS
467
Asansol as marriage dowry to her daughter, some two
years after the
marriage, in pursuance and fulfilment
of the ante-nuptial agreement made at Deoghar.
There are a number of decisions bearing on the
question, to which our attention has been drawn by
learned counsel for the parties, and we propose now to
examine
some
of
them.
In Sardar Singh v. K11ni
Behari Lal (1)
it was observed :
"There can be no
doubt upon· a review of the Hindu law, taken in conjunction with the decided cases, that the Hindu system
recognises two sets of religious acts. One is in connection with the actual
obsequies of the deci::ased, and
the
periodical
performance
of
the
obsequial
rites
prescribed
in
the
Hindu religious
law,
which are
considered as essential for the salvation of the soul of
the Jeceased. The other relates to acts which although
not ;:ssential or obligatory, are still pious obenances
which conduce to the bliss of the urceased's soul.
In
the
later
case~ this distinction runs dearly
through
the views of the learned judges. . . . . . . . . . . . . . \Vitl1
reference to the first class of acb, the powers of the
Hindu female who holds the property are wider than
in r..:spect of the acts which are :;iniply pious and if
performed are meritorious so far as they ..:onduce to
the
~piritual benefit of the c\ecea~ed. In one case, if
the income of the property, or the property itself, is
not sufficient
t<, cover the expense>,
she is entitled to
seli the whole of it.
In the other case, ·fle ca1~ alienate
a small portion of
the · propc:rt~· for the piom or
charitable purpose she may hav• in view. ' In a very
early
decisi011,
Cossi Naut Bysack v. Ht1rroo S•ondry
Dossee (2).. which was heard by the Supreme Court at
Calcutta, in 1819
an.! by tl e Juclicial Committee in
1826 and quo«~d in Chura11;,,·1 S1<h:t v. Gopi Salm (s),
it was · stat~d by Lord Gifford tfrit a Hindu widow had
"for certain
purposes a
clear
authority to dispose of
her hmband's property and might do it for
religiou~
purposes, including dnwry to a daughter."
There are
several
text~ which lay down that it is the imperative
religious duty and a moral obligation of a father,
mother .or other guardian to give a girl in marriage
(1) (1922) L.R. 49 I.A. 383, 391,
(3) (19<':J) I.1.R. 37 Cal. t, 7.
(2) M'>rley's Diges~ 198.
1957
Kamala Der;
v.
8acku Lal G., •s
S. K. D1JJJ.
1957
Kamala Devi
v.
Baclw Lal Gupta
S. K. Das :J.
468
SUPREME COURT REPORTS
[195i]
before she attains puberty.
Some of
these texts have
been quoted in Churaman Sahu'.< case ( 1 )
and Ram
Sumran Prasad v. Govind Das (").
According to these
texts, the marriage of a girl by her father is enjoined
as a religious duty in order to prevent him from being
degraded
and visited with sin ; there is also direct
spiritual
benefit
conferred
upon him by
such
a
marriage.
Marriage,
according
to
the Sastras, is a
religious act ;
a Sanskara for a man or woman.
According to
Manu, Chapter IT, verse 67, the sacrament of' marriage is to a female
what initiation with
the thread is to a male. The Mitakshara also recognises marriage as a religious obligation for both male
and female
( Sundrabai /avji Dagdu Pardeshi v.
Shivnarayana Ridkarana ( 3 ) ). The texts also recognise that
gifts can be made at the time of or on the occasion of
tbe marriage or any ceremonies connected therewith,
and may also be made
in fulfilment of a promise
made in connection with the marriage ; some decisions
have gone to the extent of laying down that the moral
obligatio11 continues till it is discharged or fulfilled and
such fulfilment may be subsequent to the marriage :
see Mitakshara, Chapter I, section VII, Placitum 5 to
14.
In Placitum 9 is quoted Manu's text: "To the
maiden sisters, let their brothers give portions out of
their own allotments respectively ; to each the fourth
part of the appropriate share ; and they, who refuse to
give it shall· be degraded."
In Placitum 11, it is
stated: "If it be alleged, that, here also the mention
of a quarter is indeterminate, and the allotment of
property sufficient to defray the expenses of the nuptials is all which is meant to be expressed : the answer
is no ; for there is not any proof, that the allo~ment of
a quarter of a share is indefinite in both codes ; and
the withholding of it is pronounced to be a sin."
In
Ramasami Ayyar v.
Vengidusami Ayyar (' ), it was
observed with reference to the aforesaid passages in the
Mitakshara, and also to certain passages in the Smriti
Chandrika, wherein the texts
of Manu, Yajnavalkya
and other Smriti writers dealing with the question of
l') ('909) I.L.R. 37 Cal. '• 7,
(2) ('926) I.L.R !'at. 646, 681.
(3) ['9n7] f.L.R. 32 Bom. s,.
(1) [1898] I.L.R. 221\.-:fad.