Case: Kamala Devi Vs. Bachu Lal Gupta

1. This is an appeal by special leave from the judgment and decree of the High Court of Calcutta, dated, 6th April 1950, by which the said High Court affirmed the judgment and decree of the Subordinate Judge of Asansol dated 30th June 1948 in Title Suit No. 2 ofThe suit was instituted by the four sons of one Sri 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 Mst. Sumitra Devi, widow of the late Ram Kishori Lal, (defendant No.1), and Smt. Kamala Devi, daughter of the late Ram Kishori Lal (defendant No. 2). The said defendants, 1are the appellants before us.The suit was instituted for a declaration that a deed of gift dated 10th March 1940, executed by Mst. Sumitra Devi in favour of her daughter Smt. Kamala Devi, was void and inoperative beyond the lifetime of Mst. Sumitra Devi and was not binding on the reversion. The following genealogical table shows the relation inter se between the parties: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 22nd July 1933, and a final decree on 29th June 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 1st January 1936. By the final decree, each of the sons obtained one-sixth share of the estate of Ram Kishore Lal. By reason of the death of Lachmi Narain before the final decree, Sumitra Devi got one-third share of the estate, one-sixth in her capacity as widow and one-sixth as the mother of her predeceased 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 neighborhood of Rs. 19,000 only.The marriage of Kamala Devi was settled with one Bijoy Kumar Sao, son of Nand Lal Sao, retired Deputy Postmaster, Patna General, Post Office. The case of the appellant was that the marriage was settled at Deoghar on Shivratriday in 1938 and the plaintiffs, respondents before us, 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 informed on 10th May 1938, Sumitra Devi made a "sankalpa" of the gift of the houses at Asansol, which was accepted by Nand Lal Sao on behalf of Kamala, and the gift was later confirmed on the occasion If 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 fell ill and the deed of gift was actually executed and registered on 10th March 1940, some two years after the marriage. This was the deed of gift which was impugned by the plaintiffs respondents.4. 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 bride-grooms 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 antenuptial 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 on March 10, 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 lift 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.5. On the aforesaid pleadings of the parties, the principal issues were Issues Nos. 2 and 3 which were in theseIs 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.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 heris necessary now to summarise the findings of the 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 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 t he 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.6. 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 would arrange for the gift of ornaments worth about Rs. 5,000 (b) a sum of Rs. 800 would be paid for meeting the expenses of travelling of the bridegrooms party from Patna to Asansol. (c) A sum 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 subject-matter 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 the deed of gift. Relying on the decision in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh, 39 Ind. App. 121 (P.C.) (A), 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.L.R. 37 Cal. 1   (B), and observed that thought it was competent for a Hindu widow, 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 Sahus 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 thenthe case now before us the marriage and the Gowna ceremony took place n 1938and 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 andthe question whether the gift in favour of Kamala Devi by Sumitra Devi was of a reasonable portion of her husbands properties, the learned Judgesthe 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 provision 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 orthe 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.

Reasoning: Taking all these circumstances into consideration, we do not think that we shall be justified in going behind 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 Nand Lal on behalf of his minor daughter-in-law. In view of this finding, the question as to whether the gift was again confirmed at the time of the Gowna ceremony does not really arise. There can be no confirmation of an act which did not itself takeis no consideration, nor any discussion, of the texts bearing on the question, and the learned Judge did not consider the alienation from the point of view that the marriage of the daughter was a religious duty and the promise to make a gift to the daughter as her marriage portion created a moral or religious obligation in fulfillment of which it was competent for the father to execute a deed of gift in favour of the daughter of a reasonable portion of theis no doubt that by reason of the expression "whether acquired before or after the commencement of this Act" the section is retrospective in effect. The Explanation to the section shows that "property" includes immovable property acquired by a female Hindu at a partition or by gift from any person, whether a relative or not, before, at or after her marriage. The argument of learned counsel for the appellants is two-fold. He has contended that the four houses in question are now in the possession of Kamala Devi and under S. 14 Kamala Devi is a full owner of the houses; the plaintiffs-respondents cannot therefore get the declaration which they have asked for. Alternatively, he has contended that if Sumitra Devi is still in possession of the houses, she also becomes a full owner and in that event also the plaintiffs respondents are not entitled to the reliefs claimed. Learned counsel for the respondents has relied on sub-section (2) of S. 14 which says that nothing in sub-s (1) shall apply to any property acquired by way of gift, etc., where the terms of the instrument or decree, etc., prescribe a restricted estate in such property. It is argued that Sumitra Devi got a restricted estate by the partition decree and sub-s (1) has no application to that estate. It is further argued that Kamala Devi as done could not get a larger estate than what the donor had in the property, if the view of Hindu law, as contended for by learned counsel for the respondents, is accepted as correct; therefore, Kamala Devi is also not entitled to the benefit of(1) of S. 14.25. We do not think that it is necessary to decide this case on the rival contentions presented to us with regard to S. 14 of the Hindu Succession Act. 1956. We have already held that under Hindu law Mst. Sumitra Devi could make a gift in favour of her daughter as marriage dowry, two years after the marriage, in fulfillment of the antenuptial promise made by her and that such a gift is binding on the reversioners.That being the position, it is unnecessary to decide in this case the true scope and effect of S. 14 of the Hindu Succession Act,v. Sitamma, ILR 35 Mad 628 (J)