# State of l:tt.:r Pradc:1i v. ShiS:,·h1<'1·a Singh and OtlicrJ. August 19 - **Citation:** [1964] 4 S.C.R. 497 - **Court:** Supreme Court of India - **Decided:** 1963-08-19 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-l-tt-r-pradc-1i-v-shis-h1-1-a-singh-and-otlicrj-august-19-3170 - **Pages:** 25 ## Headnote • ' - 4 S.C.R. SUPREM:E COURT REPORTS 497 evidence being given. This case turned on wholly different facts and is of no assistance. We may also refer to, In re N atesan (1 ) where it was observed that the decision in Nazir Ahmed's ca.,-- -~ 4 S.C.R. SUPREME COURT REPORTS 501 kamma, the second defendant. The alinees sought to sustain the validitv of the alienations in their favour. As many ~s 12 issues were framed in the case. The learned Civil Judge found that defendant 3 was taken in adoption by the plaintiff on January 30, 1\144, but it was invalid in law; that defendant 4 was born to defendant 2 by the deceased; that the plaintiff had failed to prove that the deeds executed by Chanbasappa .on January 4, 1944 in favour of defendants 2, 5, 6, 7 and 8 were vitiated by fraud; and that the plaintiff was entitled to one-sixth share in the suit property and for partition and recovery of the same. In the result he passed a decree for partition and delivery of the plaintiff's' one-sixth share in the property. He also held that defendants I and 2 would each be entitled to one-sixth share and that defendant 4 would be entitled to three-sixths share therein. He declared that the deeds executed by the deceased in favour ot the plaintiff as well as in favour of the defendants were binding on the parties to the suit. He directed an enquiry as to the future mesne profits from the date of the suir. The plaintiff and defendant 3 preferred an appeal to the High Court, being First Appeal No. 341 of the 1950 against the decree of the Civil Judge insofar as it went against them. The High Court agreed with the learned Civil Judge that defendant A was the posthumous son of the deceased by the second defendant; it accepted the finding of the learned Civil Judge that the adoption took place; but it also held that it was valid in law. It declared that the deeds executed by the deceased on January 4 and 5, 1944 in favour of defendants 6, 7 and 8 were invalid a! also the gift over in favour of defendant 5. It held that, as defendants 1 and 2 were getting a share in the property, they were not entitled to separate maintenance given to them under the deed executed by their husband and directed that that property also should be brought into the hotchpot and divided between the parties. It declared that the olaintiff and defendants 1 and 2 were each entitled to 4j27 share in the suit property, that defendant 3 was entitled to 1/9 share therein, and defendant 4 was entitled to 4/9 share therein. It also gave further directions in the matter of partition, costs and mesne profits . Pl:iintiff and defendant 3 preferred Civil Appeal No. 1963 Deshmukh v. Ma/appa Subba Rao /. 1963 · /Jt.•shmukh Malappa Subba Rao /. 502 SUPREME COURT REPORTS [1964] 335 of 1960, and defendants 1, 2, 4 and 5, the legal representatives of defendant 7 and defendant 8 preferred Civil Appeal No. 334 of 1960 to this Court against the decree of the High Court insofar as it went against them. At the outset it would be convenient to clear the ground and focus our attention on the outstanding points of difference between the parties. The factum of adoption of defendant 3 by the plaintiff is accepted, but its legality is questioned. The fact that the 4th defendant is the posthumous son of Chanbasappa by the 2nd defendant is also not disputed. In the result the following questions only remain to be answered in the present appeals: ( 1) Whether the adoption of defendant 3 by the plaintiff was void as it was made at a time when defendant 4 had already been conceived. (2) Whether the alienations in favour of defendants 2, 5, 6, 7 and 8 are binding on the members of the family. And (3) What is the share of an adopted sen of a sudra in competition with the natural born son? Mr. Viswanatha Sastri, appearing for defendants 1 and 4 (Appellants 1 and 3 in Civil Appeal No. 334 of 1960) contends that the adoption of defendant 3 was void inas·· much as at the time of the adoption defendant 4 had been conceived. He presses on us to extend the legal position, by analogy, of the right of a son in the womb a.t the time his father made an alienation of a family property to set aside that alienation, to that of an adopted son in similar circumstances. The Hindu law texts do not throw much light on the subject. Dattaka Chandrika and Dattaka Mimamsa are the treatises specially composed on the subject of adoption. Nanda Pandita cites the following texts of Atri and Cankha in Dattaka Mimasa : "By a man destitute of son only must a substitute for the same be adopted". (Atri). "One to whom no son has been born, or whose son has died having fasted, etc." ( Cankha). In section 13, Nanda Pandita explains that the term "destitute of a son" must be understood to include a son's son and grandson. In Dattaka Chandrika the relevant part of the text of Cankha is stated thus: "One destitute of a son"-see s. I, 4. "One having no male issue" -see s. II. 1. • • • - 4 S.C.R. SUPREME COURT REPORTS 503 These texts ex facie do not equate a son in existence with a son in the womb. If the authors of the said treatises intended to equate the one with the other, they would not have left it in doubt, for such an extension of the doctrine would introduce an element of uncertainty in the matter of adoption and defeat, in some cases, the religious object underlying adoption. It is now well settled that the main object of adoption is to secure spiritual benefit to the adopter, though its secondary object is to secure an heir to perpetuate the adopter's name. Such being the significance of adoption, its validity shall not be made to depend upon the contingencies that may or may not happen. It is suggested that an adoption cannot be made unless there is certainty of not getting a son and tha_t if the wife is pregnant, there is a likelihood of the adopter begetting a son and, therefore, the adoption made is void. The texts cited do not support the said proposition. Its acceptance will lead to anomalies. Suppose a husband who is seriously ii! and who had no knowledge of the pre;;nancy of his wife, makes an adoption; in such an event, the existence of a pregnancy, of which he has no knowledge, invalidates the adoption, whether the pregnancy turns out to be fruitful or not. If he has knowledge of the pregnancy, he will not be in a position to take a boy in adoption, though ultimately the wife may have an abortion, or deliver a stillborn child or the child born may turn out to be a girl. Further, as it is well settled law that a son includes a son's son and a grandson of the son, the pregnancy of a son's widow or a grandson's widow, on the parity of the said reasoning, will invalidate an adoption. We cannot introduce such a degree of uncertainty in the bw of adoption unless Hindu law texts or authoritative decisions compel ns to do so. There are no texts of Hindu law imposing a condition of non-pregnancy of the wife or son's widow or a grandson's widow for the exercise of a person's power to adopt. The decisions of the High Courts on the subject discountenance the acceptance of any such condition. But there is a decision of Sudr Adalut in N arayana Red di v. Vamdachala Reddi('), wherein it was observed that it was of the essence of the power to adopt that the party adopting should be hopeless of having issue. Mr. Mayne (1) S.A. No. 223 of 1859, M.S.D. 1859, p. 97. 1963 Deshmukh v. Malappa Subba Rao /. 1963 v,.,/,mukh v. }falappa Subba Rao /. 504 SUPREME COURT REPORTS (1964] commenting upon the said observation drew a distinction between a husband taking a boy in adoption knowing that his wife was pregnant and doing so without the said knowiedge and stated: "If a wife, known to be pregnant at the time of adoption, afterwards brought forth a son, it might fairly be held he was then in existence to the extent of precluding an adoption .... ". A division Bench of the Madras High Court in Nagabhushanam v. Seshammagaru( 1 ) criticized the opinion of the pandits as well as the observation of Mr. Mayne, and came to the conclusion that an adoption by a Hindu with knowledge of his wife's pregnancy was not invalid. The Bombay High Court in Shamava/zoo v. Dwarkadas Vasanii(2) accepted the said view. A division Bench of the Allahabad High Court in Daulat Ram v. Ram La/( 3 ) followed the Madras and Bombay decisions. No other decision has been brought to our notice either taking a different view or throwing a doubt thereon. All textbooks-Mayne, Mulla, Sarkar Sastri-accepted the correctness of the said view without anv comment. Mr. Vi;wanatha Sastri contends that under the Hindu law a son conceived or in his mother's womb is equal in many respects to a son actually in existence in the matter of inheritance, partition, survivorship and the right to impeach an alienation made by his father and that, therefore, logically the same equation must hold good in the case of adoption. When a son in his mother's womb is equated with a son in existence vis-a-vis his right to set aside an alienation or to reopen a partition, the argument proceeds, the father cannot validly adopt, as from the date of conception the son must be deemed to be in existence. But there is an essential distinction between an alienation, partition and inheritance on the one hand and adoption on the other: his right to set aside an alienation hinges on his •ecular right to secure his share in the property belonging to the family, as he has a right by birth in the joint family property and transactions effected by the father in excess of his power when he was in embryo are voidable at ( 1) (1878-81) I.L.R. 3 Mad. 180. (2) (1888) I.L.R. 12 Born. 202. (') (1907) I.L.R. 29 All. 310. • - > - } • ' 4 S.C.R. SUPREME COURT REPORTS 505 his instance: but, in the case of adoption, it secures mainly spiritual benefit to the father and the power to adopt is conferred on him to achieve that object. The doctrine evolved wholly for a secular purpose would be inappropriate to a case of adoption. We should be very reluctant to extend it to adoption, as it would lead to many anomalies and in some events defeat the object of the conferment of the power itself. The scope of the power must be reasonably construed so as to enable the donee of the power to discharge his religious duty. We, therefore, hold that the existence of a son in embryo does not invalidate an adoption. The next contention of Mr. Viswanatha Sastri is that the High Court, having set aside the alienations made by Chanbasappa, should have brought into hotchpot the property covered by the said alienations for the purpose of partition. The particulars of the alienations may be noticed at this stage. Exhibit Nature of Properties S. No. No. Date In favour of document comprised of ------- -------- ---- --- ---· ]. 362 4-1-44 D-1 Guramma Deed of Plt. Sch. A. main tena nee 2. 372 5-1-44 D-2 Venkamma Deed of Plt. Sch. A. main tena nee & giftover to D-5 3. 369 4-1-44 D-6 Imam Sahib Deed of Pit. Sch. A. Gift. 4. 370 4-1-44 D-7 Channa ppa Deed of Plt.Sch.A-3. ii!· 371 4-1-44 D-8 Neelamma Deed of Plt.Sch.A-3. main!- enance 346 30-1-37 Plff. Nagamma Deed of maintenance 347 14-2-39 Plff. Nagamma Deed of Gift. 33-~ S. C. lndh/64 1963 Deshmukh v. Malappa Subba Rao /. 1963 Deshmukh ·V, Malappa Subba Rao /. 506 SUPREME COURT REPORTS [1%4] This argument is based upon a misapprehension. The High Court, having set aside the alienations, including those in favour of defendants 1 and 2 directed the said property to be divided in accordance with the shares ddclared by it. This position is also conceded on behalf of the plaintiff and defendant 3. We need not, therefore, pursue this matter. Mr. K. R. Chaudhri, following Mr. Viswanatha Sastri, further contends that the High Court went wrong in making a distinction between the documents executed in favour of the plaintiff in that while it confirmed the documents Exs. 346 and 347 executed in favour of the plaintiff, it set aside the deeds executed in favour of defendants 1 and 2. There are no merits in this contention. The documents executed in favour of the plaintiff are Exs. 346 dateci January 30, 1937 and 347 dated February 14, 1939. These two documents were executed by Chanbasappa at a rime when he was the sole surviving coparcener, whereas he executed the documents in favour of defendants 1 and 2 after the 4th defendant was conceived. The former were executed when he had absolute power of disposal, whereas the latter were executed when he had ceased to have the said power. On the basis of this distinction the High Court rightly set aside the alienations made in favour of defendants 1 and 2. Mr. Naunit Lal, appearing for some of the legai representatives of defendant 7 who are appellants 6, 9 to 11 and 12 in Civil Appeal No. 334 of 1960 and respondents 6, 9 to 11 and 12 in Civil Appeal No. 335 of 1960, con- . tepds that the gift deeds executed by Chanbasappa in favour of defendants 7 and 8 were binding on the members or the family. The High Court held that Chanbasappa could · not have validly made these gifts of immovable property . oLthe joint family after the 4th defendant was conceived and, therefore, they were void. Mr. Naunit Lal broadly contends that the alienations effected by Chanbasappa were voidable only at the instance of the 4th defendant, who was in the womb on the date of the alienations and that as he has chosen to adopt them, the third defendant, who was adopted subsequent to the alienations, rnuld not question their validity. Before we advert to the legal aspects of the argument, it may be stated at once that no question < - - • } - • • 4 S.C.R. SUPREME COURT REPORTS 507 of consent of the 4th defendant can possibly arise in this case, as he was not born when the alienations were made and he was a minor at the time the suit was filed. We must, therefore, proceed on the basis that the alienations were made by one of the members of the joint family without the consent of the other members of the family. If so, at the time the alienations were made Chanbasappa had not the absolute power to alienate the family property, but only a limited one to do so for the purpose of necessity or benefit of the estate. The relevant principles are well settled. A coparcener, whether he is natural born or adopted into the family, acquires an interest by birth or adoption, as the case may be, in the ancestral property of the family. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenary has an absolute power to alienate the family property, as at the time of alienation there is no other member who has joint interest in the family. If another member was in existence or in the womb of his mother at the time of the alienation, the power of the manager. was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member or the memb(;f who was in the womb but was subsequently born, as the case may be, unless it was made for purposes binding on the member of the family or the existing member consented to it or the subsequently born member ratified it after he attained majority. If another member was conceived in the family or inducted therein by adoption before such consent or ratification, his right to avoid the alienation will not be affected: See Avdesh Kumar v. Zakaul Hassain(') Chandramani v. fambesw'ara(2) ; and Bhagwat Prasad Bahidar v. Debichand Bogra('). In the instant case the impugned alienations were made at a time when the 4th defendant was in the womb i.e., at a time when Chanabasappa had only a limited right of disposal over the joint (')LL:R. [l944] AIC 612. (') A.LR. 1931 Mad. 550. ( 3 ) (1941) l.L.R. 20 Pat. 727. 1963 Deshmukh v. Malappa Subba Rao/. 1963 Deshmukh v. Malappa Subba Rao}. 508 SUPREME COURT REPORTS [1964] family property. The 4th defendant being in the womb, he could not obviously give his consent, nor ratify the alienations before the adoption of the 3rd defendant took place and he was inducted into the family. If the alienations were made by the father for a purpose not binding on the estate, they would be voidable at the instance of the 3rd or 4th defendant. The next question is whether the two gifts were binding on the family. We shall now take the two gift t\eeds Exs. 370 and 371 executed by Chanbasappa-the former in favour of the 7th defendant and the latter in favour of the 8th defendant. The High Court, agreeing with the learned Civil Judge, set aside the gifts on the ground that the donor had no power to make a gift of the family property. Learned counsel for the legal representatives of the said defendants seeks to sustain the validity of the said two gifts. We shall consider the validity of the two gift deeds separatelv. Ex. 370 dated January 4, 1944, is a gift deed executed by Chanbasappa in favour of Channappa, the 7th defeadant, in respect of immovable property valued at Rs. 1,500/-. The donee was described as the donor's relative. The gift was made in token of love for the services rendered by the donee to the donor during the latter's lifetime. The gift was made, as it was narrated in the document,-out of love and affection for the donee. It is contended that the said gift was for pious purposes and, therefore, valid in law. Can it be said that a gift of this nature to a relative out of love and affection is a gift for "pious purposes" within the meaning of that expression in Hindu law? In Mitakshara, Ch. I, s. 1, v. 28, it is stated: "Even a single individual may conclude a donation, . mortgage, or sale of immovable property, during a season of distress, for the sake of the family and especially for pious purposes." In support of his contention that pious purposes include a charitable purpose, learned counsel relies upon certain passages in Mukherjea's "Hindu Law of Religious and Charitable Trust'', 2nd Edn. The learned author says at p. 12: • - - "In the Hindu system there is no line of demarcation ~ .• between religion and charity. On the other hand 4 S.C.R. SUPRE:'v!E COURT REPORTS 509 charity is regarded as part of religion.. . . . . . All the Hindu sages concur in holding that charitable gifts are pious acts par excellence, which bring appropriate rewards to the donor ............ ''. The learned author proceeds to state, at p. 58 : "Religious and charitable purposes have nowhere been defined by Hindu lawyers. It was said by Sir Subrahmanya Ayyar f. in Partha Sarathi Pillai v. Tiruvengada(1) that the expression "dhanna" when applied to gifts means and includes, according to Hindu text writers, what are known as lstha and Purtta works. As I have said already in the first lecture, no exhaustive list of such works has been drawn up by the Hindu lawgivers, and they include all acts of piety and benevolence whether sanctioned by Vedas or by the popular religion, the nature of the acts differing at different periods of Hindu religious history." The learned author defines the words lstha and Purtta briefly thus, at p. 10: "By lstha is meant Vedic sacrifices, and rites and gifts in connection with the same; Punta on the other hand means and signifies other pious and charitable acts which are unconnected with anv Srouta or Vedic sacrifice." . It may, therefore, be conceded that the expression "pious purposes" is wide enough, under certain circumstances, to take in charitable purposes though the scope of the latter purposes has nowhere been precisely drawn. But what we are concerned with in this case is the power of a manager to make a gift to an outsider of a joint family property. The scope of the limitations on that power has been fairly well settled by the decisions interpreting the relevant texts of Hindu law. The decisions of Hindu law sanctioned gifts to strangers by a manager of a joint Hindu family of a small extent of property for pious purposes. But no authority went so far, and none has been placed before us, to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. It must be remembered that the manager has no absolute power of disposal over joint Hindu family -·-( 1)-(1907) 1.1..R~.30 Mad. 340. 1963 Deshmukh v. Malappa Subba Rao/. 1963 Deshmuk.h v. Malappa Subba Rao J. 510 SUPREME COURT REPORTS [1964] property. The Hindu law permits him to do so only within strict limits. We cannot extend the scope of the power on the basis of the wide interpretation given to the words "pious purposes" in Hindu law in a different context. In the circumstances, we hold that a gift to a stranger of a joint family property by the manager of the family is void. The second document is Ex. 371, dated July 4, 1944. Under that document, Chanbasappa created a life-interest in a property of the value of about Rs. 5,000/- in favour of his widowed daughter, the 8th defendant. In the docu· ment it is recited thus: "You are my own daughter and your husband is de2d. After his death you have been living in my house only. For your well being and maintenance during your life time I have already given some property to you. As the income from the said property is not sufficient for your maintenance, you have asked me to give some more property for your maintenance. I have therefore gladly agreed (to the same) and passed a deed of maintenance in your favour regarding the below mentioned property and delivered it to your possession to-day only." Under the said deed the daughter should enjoy the property during her lifetime and thereafter it should go to the 5th defendant. The gift-over would inevitably be invalid. But the question . is whether the provision for the daughter's maintenance during her lifetime would also be invalid. The correctness of the recitals are not questioned before us. It is in evidence that the family possesses a large extent of property, worth lakhs. The short question is whether the father could have validly conferred a lifeinterest in a small bit of property on his widowed daughter in indigent circumstances for her maintenance. It is said that the Hindu law does not permit such a gift. In Jinnappa Mahadevappa v. Chimmava('), the Bombay High Court accepted that legal position. Rangnekar J. held that under the Mitakshara school of Hindu law, a father has no right to make a gift even of a small portion of joint family immovable property in favour of his daughter, although it is made on the ground that she looked after him in his ( 1) (1935) I.L.R. 59 Born. 459, 465. ' .. - - - ' 4 S.C.R. SUPREME COURT REPORTS 511 old age. The learned Judge distinguished all the cases cited before him on the ground that they were based upon long standing customs and ended his judgment with the following observations : "Undoubtedly, the gift is a small portion of the whole of the property; but, if one were to ignore the elementary principles of Hindu law out of one's sympathy with gifts of this nature, it would be difficult to say where the line could be drawn, an ) . ' 4 S.C.R. SUPREME COURT REPORTS 513 family property. The question was whether that gift was good. It will be seen from the facts that the gift was made by the brother to his half-sisters not at the time of their marriage but subsequently. Even so, the gift was upheld. Wallis J. in his judgment pointed out that unmarried daughters were formerly entitled to share on partition and that after marriage they were entitled to an endowment and that though that right fell into desuetude, a gift made to a daughter was sustained by Courts as a provision for the married couple. The learned Judge summarized the position thus, at p. 532: " ...... although the joint family and its representative, the father or other managing member, may no longer be legally bound to provide an endowment for the bride on the occasion of her marriage, they are still morally bound to do so, at any rate when the circumstances of the case make it reasonably necessary." If such a provision was not made at the time of marriage, the learned Judge indicated that such moral obligation could be discharged subsequently by a representative of the family. To quote his observations-"Mere neglect on the part of the joint family to fulfil a moral obligation at the time of the marriage, cannot, in my opinion, be regarded as putting an end to it, and I think it continued until it was discharged by the deed of gift now sued on and executed after the father's death by his son, the !st defendant who succeeded him as managing member of the joint family". Another division Bench of the Madras High Court considered the question in Sundararamaya v. Seethamma(') and declared the validity of a gift of 8 acres of ancestral land by a Hindu father to his daughter after marriage when the family was possessed of 200 acres of land. The marriage took place about forty years before the gift. There was no evidence that the father then had any intention to give any property to the daughter. The legal position was thus expounded by the learned Judges, Munro and Sankaran Nair TJ. "The father or the widow is not bound to give anv property. There may he no legal but only a moral obligation. It is also true that in the case before us the father did not make any gift and discharge that ---(')(!911)21M.L..095, 699. 1963 Deshmukh v. Malappa Subba Rao/. 1963 Deshmukh v. Malappa Subba Rao/. 514 SUPREME COURT REPORTS [1964] moral obligation at tbe time of the marriage. But it is difficult to see why the moral obligation does not sustain a gift because it was not made to the daughter at the time of marriage, but only some time later. The moral obligation of the plaintiff's father continued in force till it was discharged by the gift in 1899." Another division Bench of the Madras High Court in Ramaswamy Ayyer v. Vengidusami Ayyer(') held that a gift of land made by a widow, on the occasion of her daughter's marriage, to the bridegroom was valid. Sundara Aiyer and Spencer JJ. held in Vettorammal v. Poochammal (') that a gift made by a father to his own daughter or by a managing member to the daughter of any of his coparceners, provided it be of a reasonable amount, is valid as against the donor's son.