Case: Guramma Bhratar Chanbasappa Deshmukh &amp; Others Vs. Mallappa Chanbasappa &amp; Others

Judicial Committee based its conclusion mainly on the following ground :"...... the rule of the Dattaka Chandrika that on a partition of the joint family property of a Sudra family an adopted son is entitled to share equally with the legitimate son born to the adoptive father subsequently to the adoption had been accepted and acted upon for at least more than a century in the Presidency of Madras, as the law applicable in such cases to Sudras until the law on that subject was disturbed in 1915 by the decision of the High Court at Madras in Gopalam v. Venkataraghavulu ((1915) I.L.R. 40 Mad. 632)." It will be seen that the decision rested on the fact that Dattaka Chandrika was the recognized authority in the Madras Presidency and that the rule that an adopted son and an afterborn natural son take in equal shares the family property had been followed for over a century. On this decision Sarkar Sastri commented in his valuable book on Hindu Law, 8th Edn., at p. 211, thus :"Another novel rule enunciated for the first time by the Dattaka Chandrika is that a Sudras adopted son should share equally with his begotten son, on the ground that a Sudras illegitimate son may by the fathers choice get an equal share with his legitimate sons. It is difficult to understand the cogency of his argument. This rule, however, has been followed by the Calcutta and Madras High Court, for this book is said to be of special authority in Bengal and Madras. But the Madras High Court, after consideration of the authorities on the subject, came to the conclusion, following an earlier decision of the same Court, that an adopted son of a Sudra was entitled to only a fifth share of what a natural born son gets. But in the case of Arumilli Perrazu ((1921) 48 I.A. 280) the above decision has been overruled and it has been finally settled by the Privy Council that an adopted son shares equally on partition with an after-born son of a Sudra." In Bengal where Dattaka Chandrika is given same importance as in the Madras Presidency, the same rule has been followed in the matter of partition between an adopted son and an after-born natural son among Sudras : see Asita v. Nirode ((1916) 20 C.W.N. 901). It is not necessary to pursue that matter. It may be adopted that in Bengal and Madras the said rule governs the shares between them. But in Bombay, Dattaka Chandrika is not given the place of honour as in Madras and Calcutta. As early as 1892, a division Bench of the Bombay High Court in Giriapa v. Hingappa ((1892) I.L.R. 17 Bom. 100) had to consider the question of shares inter se between an adopted son and an after-born aurasa son. It held that in Western India, both in the districts governed by the Mitakshara and those specially under the authority of Vyavahara Mayukha, the right of the adopted son, where there was a legitimate son born after the adoption, extended only to a fifth share of the fathers estate. The question therein was whether the adopted son takes one-fourth of the estate or one-fourth of the natural born sons share in the property. After considering all the relevant texts the division bench came to the conclusion that he takes one-fourth of a natural born sons share. After the decision of the Judicial Committee in Perrazu v. Subbrayadu ((1921) 48 I.A. 280) another division Bench of the Bombay High Court, in Tukaram Mahadu v. Ramachandra Mahadu ((1925) I.L.R. 49 Bom. 672, 679, 680, 684) reviewed the law and came to the same conclusion. Adverting to the Privy Council decision, the learned Judges of the Bombay High Court observed :"No doubt this case Perrazu v. Subbarayudu ((1921) 48 I.A. 280) is an authority for holding that in Madras and in Bengal among Sudras the rule is that for which the appellants counsel contends." Then the learned Judges posed the following question :"Assuming that the parties here are Sudras ought we to apply to this Presidency the rule which their Lordships of the Privy Council have laid down as prevailing in the Madras and Bengal Presidencies ?" After citing the relevant extracts from the decision of the Judicial Committee, the learned Judges proceeded to answer thus :"In this Presidency where the rule of Dattaka Chandrika upon the question at issue has have been followed, for no case, and no kind to judicial or other pronouncement is forthcoming, (and as I have said the leading case is against it), ought we to accept the rule upon the authority of the Dattaka Chandrika alone ? In my opinion we should err if we did so. The authority of the Dattaka Chandrika has never been placed so high in Western India as in Bengal and Madras ....... The case is one where the principle of stare decisis should be maintained." 27. Coyajee J., said much to the same effect :"We have no reason to believe that the rule propounded in paras. 29 and 32 of sections V of the Dattaka Chandrika has been so accepted and acted upon in this Presidency; and there is therefore no justification for holding that the decision in Giriappas case ((1892) I.L.R. 17 Bom. 100) is not applicable to the parties to this suit even if they were Sudras." 28. Steele in his valuable book on Hindu Law and Customs compiled as far back as 1868, did not find any justification for excepting the Sudras from the general rule. It is, therefore, manifest that in Bombay Presidency the rule accepted in Dattaka Chandrika has never been followed and 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 sons share. Nothing has been placed before us to compel us to depart from the long established rule prevalent in the Bombay State.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.we advert to the legal aspects of the argument, it may be stated at once that no question 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 member who was in the womb but was subsequently born, as the case may be, unless it was made for purpose 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 (I.L.R. [1944] All. 612); Chandramani v. Jambeswara (A.I.R. 1931 Mad. 550  .); and Bhagwat Prasad Bahidar v. Debichand Bogra ((1941) I.L.R. 20 Pat. 727). In the instant case the impugned alienation were made at a time when the 4th defendant was in the womb i.e., at a time when Chanbasappa had only a limited right of disposal over the joint 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 deeds 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 separatelyBut what we are concerned with in this case is the power of a manager to make a gift to an outside 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 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 defendantWe agree with the learned Judge that sympathy is out of place in laying down the law. If the Hindu law texts clearly and expressly prohibit the making of such a gift of the family property by the father to the widowed daughter in indigent circumstances, it is no doubt the duty of the Court to accept the law, leaving it to the Legislature to change the law. We shall, therefore, consider the relevant Hindu law texts bearing on the subjectThe legal position may be summarized thus : The Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallized into a moral obligation. 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. 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. It is a moral obligation and it 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. It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by Court, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity or the reasonableness of a gift does not depend upon the plurality of document but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift anytheless a valid one.Applying the aforesaid principles, we have no doubt that in the present case, the gift made by the father was within his right and certainly reasonable. The family had extensive properties. The father gave the daughter only a life-estate in a small extent of land in addition to what had already been given for her maintenance. It has not been stated that the gift made by the father was unreasonable in the circumstances of the case. We, therefore, hold that the said document is valid to the extent of the right conferred on the 8th defendantIn this case it is not necessary to express our opinion on the question whether Lingayats are Sudras or not, for we proceed on the assumption that they are, or at any rate that the Hindu law applicable to Sudras applies to themIn Arumilli Perrazu v. Arumilli Subbrayadu ((1921) 48 I.A. 280) it was held by the Judicial Committee that among Sudras in the Madras Presidency an adopted son on partition of the family property would share equally with a son or sons born to the adoptive father after the adoption. The Judicial Committee based its conclusion mainly on the following ground. the rule of the Dattaka Chandrika that on a partition of the joint family property of a Sudra family an adopted son is entitled to share equally with the legitimate son born to the adoptive father subsequently to the adoption had been accepted and acted upon for at least more than a century in the Presidency of Madras, as the law applicable in such cases to Sudras until the law on that subject was disturbed in 1915 by the decision of the High Court at Madras in Gopalam v. Venkataraghavulu ((1915) I.L.R. 40 Mad. 632)."It will be seen that the decision rested on the fact that Dattaka Chandrika was the recognized authority in the Madras Presidency and that the rule that an adopted son and an afterborn natural son take in equal shares the family property had been followed for over a century. On this decision Sarkar Sastri commented in his valuable book on Hindu Law, 8th Edn., at p. 211, thus :"Another novel rule enunciated for the first time by the Dattaka Chandrika is that a Sudras adopted son should share equally with his begotten son, on the ground that a Sudras illegitimate son may by the fathers choice get an equal share with his legitimate sons. It is difficult to understand the cogency of his argument. This rule, however, has been followed by the Calcutta and Madras High Court, for this book is said to be of special authority in Bengal and Madras. But the Madras High Court, after consideration of the authorities on the subject, came to the conclusion, following an earlier decision of the same Court, that an adopted son of a Sudra was entitled to only a fifth share of what a natural born son gets. But in the case of Arumilli Perrazu ((1921) 48 I.A. 280) the above decision has been overruled and it has been finally settled by the Privy Council that an adopted son shares equally on partition with an after-born son of an Bengal where Dattaka Chandrika is given same importance as in the Madras Presidency, the same rule has been followed in the matter of partition between an adopted son and an after-born natural son among Sudras : see Asita v. Nirode ((1916) 20 C.W.N. 901). It is not necessary to pursue that matter. It may be adopted that in Bengal and Madras the said rule governs the shares between them. But in Bombay, Dattaka Chandrika is not given the place of honour as in Madras and Calcutta. As early as 1892, a division Bench of the Bombay High Court in Giriapa v. Hingappa ((1892) I.L.R. 17 Bom. 100) had to consider the question of shares inter se between an adopted son and an after-born aurasa son. It held that in Western India, both in the districts governed by the Mitakshara and those specially under the authority of Vyavahara Mayukha, the right of the adopted son, where there was a legitimate son born after the adoption, extended only to a fifth share of the fathers estate. The question therein was whether the adopted son takes one-fourth of the estate or one-fourth of the natural born sons share in the property. After considering all the relevant texts the division bench came to the conclusion that he takes one-fourth of a natural born sons share. After the decision of the Judicial Committee in Perrazu v. Subbrayadu ((1921) 48 I.A. 280) another division Bench of the Bombay High Court, in Tukaram Mahadu v. Ramachandra Mahadu ((1925) I.L.R. 49 Bom. 672, 679, 680, 684) reviewed the law and came to the same conclusion. Adverting to the Privy Council decision, the learned Judges of the Bombay High Court observed :"No doubt this case Perrazu v. Subbarayudu ((1921) 48 I.A. 280) is an authority for holding that in Madras and in Bengal among Sudras the rule is that for which the appellants counseln the learned Judges posed the following question :"Assuming that the parties here are Sudras ought we to apply to this Presidency the rule which their Lordships of the Privy Council have laid down as prevailing in the Madras and Bengal Presidencies ?"After citing the relevant extracts from the decision of the Judicial Committee, the learned Judges proceeded to answer thus :"In this Presidency where the rule of Dattaka Chandrika upon the question at issue has have been followed, for no case, and no kind to judicial or other pronouncement is forthcoming, (and as I have said the leading case is against it), ought we to accept the rule upon the authority of the Dattaka Chandrika alone ? In my opinion we should err if we did so. The authority of the Dattaka Chandrika has never been placed so high in Western India as in Bengal and Madras ....... The case is one where the principle of stare decisis should be maintained."Coyajee J., said much to the same effect :"We have no reason to believe that the rule propounded in paras. 29 and 32 of sections V of the Dattaka Chandrika has been so accepted and acted upon in this Presidency; and there is therefore no justification for holding that the decision in Giriappas case ((1892) I.L.R. 17 Bom. 100) is not applicable to the parties to this suit even if they were Sudras."Steele in his valuable book on Hindu Law and Customs compiled as far back as 1868, did not find any justification for excepting the Sudras from the general rule. It is, therefore, manifest that in Bombay Presidency the rule accepted in Dattaka Chandrika has never been followed and 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 sons share. Nothing has been placed before us to compel us to depart from the long established rule prevalent in the Bombay Stat