Case Study: Guramma Bhratar Chanbasappa Deshmukh and Another v. Malappa

By Rituraj Swami 17 Minutes Read

Citations: 1964 AIR 510, 1964 SCR (4) 497

Date of Judgement: 19th August, 1963

Bench: K. Subbarao, K. Dayal, Raghubar Mudholkar

Facts:

‘A’ The husband, died on January 8, 1944. He left behind him three wives and two widowed daughters, children of his predeceased wife. The senior-most widow filed a civil suit for partition and possession of 1/6^th share after setting aside the alienations made by her husband on January 4 and 5, 1944. It was alleged that at the time of the death of ‘A’ his youngest wife was pregnant and that she gave birth to a male child on October 4, 1944. On January 30, 1944, the senior-most widow took her sister’s son in adoption. A few days before his death ‘A’ executed two deeds of maintenance in favour of his two wives (defendant 1 and 2) and also executed deeds of gift in favour of widowed daughter, a son of an illegitimate son and a relative. Long before his death, he also executed two deeds i.e., one a deed of maintenance and a deed of gift in favour of the senior-most widow Nagamma (the plaintiff). To this suit the two widows were made defendants 1 and 2(Guramma & Venkamma); the alleged adopted son defendant 3; the alleged posthumous son, defendant 4; and the alienee’s defendants 5 to 8.

Lower Court Decision:

The learned civil judge passed a decree for partition & delivery of 1/6^th share to the plaintiff and also the same share to defendants 1&2 and defendant 4 with 3/6^th share. Feeling aggrieved by the decision, the plaintiff and defendant 3 preferred an appeal to the High court.

High Court Decision:

The High court after examining the matters contented by the parties, rendered that plaintiff and defendant 1&2 were each entitled to 4/27 share, defendant 3 of 1/9^th share, and defendant 4 of 4/9 share. Feeling aggrieved by the decision, an appeal was presented to the Supreme court.

Issues:

1. Whether a son in the embryo invalidate the adoption of a son in a joint Hindu family?
2. Whether the adopted son has equal share as the natural-born son has in the joint Hindu family property?
3. Whether a gift of this nature to a relative out of love and affection is a gift for “pious purposes” by the Karta, is within the meaning of Hindu law?
4. Whether, on the facts and in the circumstances of the case, the gift of immovable property belonging to the joint family made by its Karta to his daughters after marriage was valid, and does the Karta have the power to make such a gift?

Key law points established in the case:

• Whether a son in the embryo invalidate the adoption of a son in a joint Hindu family?

The Hon’ble court relied upon Nagabhushanam v. Seshammagaru[1], wherein it was concluded that an adoption by a Hindu with knowledge of his wife’s pregnancy was not invalid. The same view was taken in the case of Daulat Ram v. Ram Laal[2]. The validity was foreseen in this case as it dealt with adoption and not inheritance, partition. The main object of the power conferred upon the father is for spiritual benefit.

• Whether the adopted son has equal share as the natural-born son has in the joint Hindu family?

The Court took reference of various Hindu texts like Dattaka Chandrika, Vyavahara Mayukha, etc. It stressed that in the presidency of Bombay the texts of Dattaka Chandrika have never been accepted at large. It follows the Vyavahara Mayukha texts instead. The court cited the view held in Giriapa v. Ningappa[3], that the share of an adopted son in- competition with a natural-born son among Sudras has always been 1/5th in the family property, i.e., 1/4th of the natural-born son’s share. So, nothing was placed before the court to compel them to depart from the long-established rule prevalent in the Bombay State.

• Whether a gift can be executed in favor of a relative (defendant 7) out of love for pious purposes?

The court held that a gift to a stranger of joint family property by the manager of the family is void as he has no absolute power of disposal over the joint Hindu family property as held in Partha Sarathi Pillai v. Tiruvengada[4].

• Whether the Karta of the joint Hindu family has the power to make a gift to the daughter after the marriage?

The Hon’ble court took a view of the long-standing cases in this regard and cited references of Hindu texts. Verses 27, 28, and 29 in Ch. I, Mitakshara, describe the limitations placed on a father in making gifts of the ancestral estate. Section 7 of the Ch. I, Mitakshara, deals with provision for widows, unmarried daughters, etc. It has been developed by a long catena of decisions. The case of Vettoramaal vs Poochamaal[5] observed that the texts of Vignaneswara Chap 1 Pg 10 say “The allotment of such a share appears to be indispensably requisite since the refusal of it is pronounced to be a sin.” The views on the text of Manu to the effect that “they who refuse to give it shall be degraded” Manu Ch 1 Pg 118 was also cited. In Vyavahara Mayukha p 93, the following text of Brihaspati is also cited by the author of the Madhaviya “Let him give adequate wealth and a share of land also if he desires.”

Arguments:

Petitioner: The counsel for the petitioner put forth the contentions that the adoption of defendant 3 was void as at the time of adoption defendant 4 was conceived. Dattaka Chandrika & Dattaka Mimansa does reflect upon this issue. The counsel relied upon the Nanda Pandita texts Atri & Cankha of Mimansa. The texts said, “By a man destitute of a son only must a substitute for the same be adopted.” i.e., an adoption cannot be made unless there is a certainty of not getting a son.

Nanda Pandita explains that the term “destitute of a son”must be understood to include a son’s sort and grandson. The main object of adoption is to secure the spiritual benefit to the adopter, though its secondary objective is to secure an heir to perpetuate the adopter’s name. It also contended that the Bombay presidency follows Vyavahara Mayukha and not Dattaka Chandrika for the determination of share b/w the adopted and natural-born son.

Respondent: The Respondent argued that the existence of the son in the embryo does not invalidate the adoption done by the first widow wife. 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 respondent further contended that the share of the adopted son to be same as of the share of the natural-born son, of the ancestral property, as it relied upon Perrazu v. Subbarayadu[6] and Tukaram Mahadu v. Ramachandra Mahadu[7], wherein it was held that, an adopted son on the partition of the family property would share equally with a son or sons born to the adoptive father after the adoption. This view was taken based on the texts of Dattaka Chandrika.

Also, the validity of the gift to the daughter of maintenance during her lifetime would also be invalid, as the father had no obligation to do so merely on the basis that the daughter has served him during indigent circumstances and in old age. The ruling in Jinnappa v. Chimmava[8] held that under Mitakshara school of Hindu law the father does not has the power to gift even a small portion of joint family property to daughter on ground that she looked after him.

JUDGEMENT:

The court held that the existence of a son in the embryo does not invalidate the adoption. A division bench of Madras court took the same view in Shamavahoo vs Dwarakadas Vasanji[9], that an adoption by a Hindu with knowledge of his wife’s pregnancy was not invalid. The question of shares between an adopted son and an after- born son was referred to the case of Giriapa v. Hingappa[10]. It held that in Western India, that the authority of Vyavahara Mayukha is followed where the right of the adopted son, in comparison to a legitimate son born after, the adoption, extended only to a fifth share of the father’s estate. The question therein was whether the adopted son takes one- fourth of the estate or one-fourth of the natural-born son’s share in the property. After considering all the relevant texts it concluded that he takes one-fourth of- a natural-born son’s share.

The court also upheld the validity of gift executed in favor of the widowed daughter. The court referred to Bombay High Court judgment in Ramalinga Annavi v. Narayana Annavi[11], in which court upheld the gift of a small share of immovable property on the ground that it was not shown to be unreasonable. Under Hindu law, the father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family, and by custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion and it is a moral obligation which continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift but the obligation can be discharged at any time either during the lifetime of the father or thereafter. The right of the father or his representative to make such a gift is not confined to the marriage occasion and that there was no reason why a father should not have the power to make a gift of a reasonable portion of the joint family property to his minor unmarried daughters who might get married or continue to remain spinsters and lead a life of celibacy. If reasonableness of the gift is not disputed then it’s a valid gift irrespective that two different gift deeds were executed instead of one.

The court also laid that expression “pious purposes ” is wide enough to interpret and the power of Karta is strictly limited. There has been no authority who went so far 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 was well settled in the case of Partha Sarathi Pillai v. Tiruvengada[12], where the court held that the Karta has no absolute power to gift a property to a stranger. The power is limited and is used strictly within its limits. Therefore, the court held the gift of a joint family to a stranger void.

Conclusion:

The court has full-fledged relied upon the fundamental essence of the customs followed in the different regions of India. Like for instance, the pious Hindu textbooks like Dattaka Chandrika and Dattaka Mimansa has never been placed so high in Western India as in Bengal and Madras. That’s the reason why the cases cited in Bengal & Madras presidency, where Dattaka Chandrika is widely accepted, were not elicited for overall acceptance. If that had been the scenario then the adopted son & natural-born son would have a different share of the property. This case has also construed the provisions of the law reasonably or else there would have been many anomalies in the long run. The long-standing customs of India dealing with the conferment of property to daughters has been well settled by a catena of cases. Thus, in this case, the court took an overall view of the contentions presented by the parties and discussed all conflicting interests with proper emphasis on the laws, customs, and various Hindu textbooks.

[1] (1878-1881) I.L.R 3 Mad 180.
[2] (1907) I.L.R. 29 AU. 310.
[3] (1892) I.L.R. 17 Bom 100.
[4] (1907) I.L.R. 30 Mad.
[5] (1912) 22 M.L.J. 321.
[6] (1921) 48 I.A. 280.
[7] (1924) I.L.R. 49 Bom 672.
[8] (1935) I.LR. 59 Bom 459.
[9] (1888) I.L.R. 12 Born. 202.
[10] (1892) I.L.R. 17 BOM 100.
[11] (1922) 24 BOMLR 1209.
[12] (1907) I.L.R. 30 Mad. 340.

Rituraj Swami