Case: Ammathayee Ammal &amp; Anr Vs. Kumaresan &amp; Others

1. This is an appeal on a certificate granted by the Madras High Court and arises in the following circumstances. One Rangaswami Chettiar was a man of considerable property and used to live in Poolathur village. He first married one Bappini and had a son by her. But both the sons and Bappini died. He therefore married Ammathayee who was defendant No 2 in the suit and is appellant No. l before us. He had a son and two daughters by her. But unfortunately all the three children died. Thereafter Rangaswami Chettiar married Lakshmiammal in 1943. She was 1 he first defendant in the suit. It appears that no child was born to Lakshmiammal for about three years and therefore Rangaswami Chettiar married a fourth time. His fourth wife was the sister of his second wife named Supputhayee. In February 1949 Lakshmiammal gave birth to a son. There is dispute as to the question whether Lakshmiammal had left her husband about 1945 or so because of frequent quarrels between the two. Anyhow the fourth wife had also no children. In June 1953 Rangaswami Chettiar fell ill. He was first treated as an in-patient in Batlagundu hospital and later admitted as all in-patient. On June 16, 1933 he executed a registered deed of gift in favour of his second wife Ammathayee of certain immovable joint family property. Lakshmiammal when she came to know of this gift published a notice in a newspaper accusing the second and fourth wife of trying to deprive her and her minor son of their due share in the joint family property by having the gift deed executed and claimed that the gift deed was not valid. On September 4, 1953 Rangaswami Chettiar sent a notice in reply to the notice published by Lakshmiammal In that notice Rangaswami Chettiar accused Lakshmiammal of having left him a year and a half after the marriage after quarrelling with him. He also accused her of living a life of promiscuity thereafter. Finally he said in the notice that the son born to Lakshmiammal in February 1949 was not his son. Lakshmiammal gave reply to this notice of Rangaswami Chettiar on September 15, 1953, in which she maintained that the child was Rangaswami Chettiars. She also claimed that Rangaswami Chettiars mind had been poisoned against her by his two other wives. She denied that she had any connection with any other man besides Rangaswami Chettiar. In December 1953 Rangaswami Chettiar died.2. The present suit was filed a year later on January 3 1955 on behalf of the minor son. He claimed half share in the joint family properties left by Rangaswami Chettiar. To this suit the three widows who between them have half share were defendants Nos. 1, 2 and 3. Three other defendants were made parties to the suit to whom we shall refer later as they are not concerned with the main controversy between the plaintiff and the two step-mothers (i. e. second and third defendants).3. The main defence of the two stepmothers who are now appellants before us, was that the plaintiff though born to Lakshimiammal was not the son of Rangaswami Chettiar and was therefore not entitled to any share in his properties. Further Ammathayee pleaded that the gift deed in her favour was valid and that even if the plaintiff was the son of Rangaswami Chettiar he would be entitled to half share of the properties other than those gifted to her by Rangaswami Chettiar before his death. There were other issues in the suit, but we are not concerned with them in the present appeal.4. On the main question, namely, whether the plaintiff was the son of Rangaswami Chettiar, the trial court found in his favour. Further on the question whether the gift deed in favour of Ammathayee was valid, the trial court was of opinion that it was not competent for Rangaswami Chettiar to make a gift of immovable joint family property to his wife. The trial court therefore held the gift to be invalid and gave the plaintiff a decree for his half share in the property left by Rangaswami Chettiar, including the properties gifted to Ammathayee before his death.5. Thereupon the two step-mothers went in appeal along with two other defendants and contested the finding of the trial court on both these issues. The High Court however upheld both the findings. On a consideration of the evidence, the High Court came to the conclusion that the heavy burden that lay on those who disputed the paternity of the plaintiff-respondent in view of S. 112 of the Indian Evidence Act, No. 1 of 1872, had not been discharged in this case and it had not been proved that Rangaswami Chettiar had no access to Lakshmiammal or about the time when the plaintiff-respondent could have been conceived. On the question of the gift deed, the High Court held that Hindu law did not permit a husband to gift joint family immovable property to his wife in the circumstances in which the gift was made in this case. The High Court therefore dismissed the appeal so far as the step-mothers of the plaintiff-respondent were concerned. The High Court however allowed the appeal of defendents Nos. 4 and 5 who were the brothers of the two step-mothers of the plaintiff-respondents and set aside the decree of the trial court with respect to them by which they were made accountable. There was also a cross-objection before the High Court with respect to certain properties which were in the possession of the sixth defendant. That cross-objection was dismissed on the ground that the plaintiff-respondent had failed to prove that those properties were joint family properties left by Rangaswami Chettiar. Thereafter the two widows who are the appellants before us applied for and obtained a certificate to appeal to this Court as the decree of the High Court was that of variance and that is how the matter has come before us.

Reasoning: On the other hand the appellants relied on the notice sent by Rangaswami Chettiar to Lakshmiammal denying the paternity of the plaintiff-respondent, and it is urged that a notice of this kind is very strong evidence rebutting the presumption that the plaintiff-respondent is the son of Rangaswami Chettiar, was keen on having a son and had married four times for that purpose. He would not have denied the paternity of the son born to his third wife in the circumstance if that was true. The High Court was not oblivious of the force of these circumstances. But the evidence of Lakshmiammal was that she never quarrelled with her husband and that her husband married again because she did not give birth to a child for about three years, and the fourth marriage of Rangaswami Chettiar took place with her consent. She also said that she had not left the house of Rangaswami Chettiar and that the plaintiff-respondent was Rangaswami Chettiars son. She further said that her co-wives became jealous after the birth of the plaintiff-respondent to her and that is why they influenced Rangaswami Chettiar against her. This evidence was relied upon by the trial Court and the High Court has not disbelieved it. It is also in evidence that Lakshmiammal was living in her fathers house in the same village as Rangaswami Chettiar, even according to the appellants witnesses and that Lakshmiammals fathers house was only a furlong away from Rangaswami Chettiars house. It was in these circumstances that the High Court had to consider the question whether the heavy burden which lies on a person denying the paternity of a child born during wedlock had been discharged. It is true that Rangaswami Chettiar had given the notice to Lakshmiammal in which he denied the paternity of the plaintiff-respondent; but that notice stands in no better position than would have been the statement of Rangaswami Chettiar even if he was alive when this suit was fought out in the trialhave, therefore, no hesitation in agreeing with the High Court, particularly taking into account the evidence of Lakshmiammal which has not been disbelieved by the High Court, that the appellants had completely failed to prove non-access of Rangaswami Chettiar to Lakshmiammal at any time when the plaintiff-respondent could have been begotten. In these circumstances there is no reason for us to interfere with the concurrent finding of fact as to the paternity of the plaintiff-respondent and we hold that he is the legitimate son of Rangaswamihave, therefore, no difficulty in holding that there is no warrant in Hindu law in support of the proposition that a father-in-law can make a gift of ancestral immovable property to a daughter in-law at the time of her marriage. If that is so, we cannot see how what the father-in-law himself could not do could be made into a pious obligation on the son as is claimed in this case, for that would be permitting indirectly what is not permitted under Hindu law directly. Further in any case gifts of ancestral immovable property can only be for pious purposes, and we doubt whether carrying out the directions of the father-in-law and making a gift in consequence can be said to be a gift for a pious purpose, specially when the father-in-law himself could not make such a gift. We are, therefore, of opinion that this gift can not be upheld on the ground that Rangaswami Chettiar had merely carried out the wishes of his father indicated on the occasion of the marriage offar as the first question is concerned, there is a concurrent finding of the trial court as well as of the High Court that theis the son of Rangaswami Chettiar. Ordinarily therefore this Court would not interfere with this concurrent finding ofare of opinion that there is no force in this contention. The main evidence on behalf of thewas that of his mother,raises inter alia a conclusive presumption that a child born during the continuance of a valid marriage between his mother and any man is the legitimate son of that man, and this conclusive presumption can only be rebutted if it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The appellants, therefore, had to prove, as Rangaswami Chettiar would have had to prove even if he was alive when the suit was fought out in the trial Court, that he had no access to Lakshmiammal at any time when thecould have been begotten. We have already said that even according to the appellants Lakshmiammal was only living one furlong away in her fathers house from where Rangaswami Chettiar was living. In these circumstances the evidence produced in the present suit falls far short of proving that Rangaswami Chettiar had no access to Lakshmiammal at any time when thecould have been begotten. Wehave, therefore, no hesitation in agreeing with the High Court, particularly taking into account the evidence of Lakshmiammal which has not been disbelieved by the High Court, that the appellants had completely failed to proveof Rangaswami Chettiar to Lakshmiammal at any time when thecould have been begotten. In these circumstances there is no reason for us to interfere with the concurrent finding of fact as to the paternity of theHindu law on the question of gifts of ancestral property is well settled. So far as moveable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection: (see Mullas Hindu Law, 13th Edn., p. 252, para. 225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of moveable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for "pious purposes"; (see Mullas Hindu Law, 13th Edn., para. 226, p. 252). Now what is generally understood by "pious purpose" is gift for charitable and/or religious purposes. But this Court has extended the meaning of "pious purposes" to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead : (see Kamala Devi v. Bachu Lal Gupta, 1957 SCR 452 :, (AIR 1957 SCwe have not been referred to a single case where a gift by a husband to his wife of immovable ancestral property, if made, has been upheld. We see no reason to extend the scope of the words "pious purposes" beyond what has already been done in the two decisions of this court to which reference has been made. The contention of thethat the gift in her favour by her husband of ancestral immovable property made out of affection should be upheld must, therefore, fail for no such gift is permitted under Hindu law insofar as immovable ancestral property is concerned.10. As to the contention that Rangaswami Chettiar was merely carrying out his fathers wishes when he made this gift in favour of his wife and that act of his was a matter of pious obligation laid on him by his father, we are of opinion that no gift of ancestral immovable property can be made on such a ground. Event theif he had desired to make gift at the time of the marriage of hiswould not be competent to do so insofar as immovable ancestral property is concerned. No case in support of the proposition that amake a gift of ancestral immovable property in favour of hisat the time of her marriage has been cited. There is in our opinion no authority to support such a proposition in Hindu law.As already observed, a Hindu father or any other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes and we cannot see how a gift by thelaw at the time of marriage can by any stretch of reasoning be called a pious purpose, whatever may be the position of a gift by the father or his representative to a daughter at the time of her marriage. One can understand such a gift being made to a daughter when she is leaving the family of her father. As it is the duty of the father or his representative to marry the daughter, such a gift may be and has been held by this Court to be for a pious purpose. But we see no pious purpose for such a gift by ain favour of hisat the time of marriage. As a matter of tact thebecomes a member of the family of herafter marriage and she, would be entitled after marriage in her own right to the ancestral immovable property in certain circumstances, and clearly, therefore, her case stands on a very different footing from the case of a daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made as held by thisis so. But that does not mean that ais entitled to make a gift of ancestral immovable property to aso as to convert it into her stridhan. Generally such gifts are of moveable property. But even if gifts of immovable property in such circumstances are possible, the two provisions must be read harmoniously. If, therefore, Hindu law does not permit ato make a gift of ancestral immovable property to hishe cannot make such a gift for purposes of stridhan. Further if gifts by thelaw which become stridhan include gifts of immovable property, they can only refer to such immovable property as is not ancestral immovable property, for that is the only way in which the two provisions can be reconciled. Wehave, therefore, no difficulty in holding that there is no warrant in Hindu law in support of the proposition that acan make a gift of ancestral immovable property to a daughterat the time of her marriage. If that is so, we cannot see how what thehimself could not do could be made into a pious obligation on the son as is claimed in this case, for that would be permitting indirectly what is not permitted under Hindu law directly. Further in any case gifts of ancestral immovable property can only be for pious purposes, and we doubt whether carrying out the directions of theand making a gift in consequence can be said to be a gift for a pious purpose, specially when thehimself could not make such a gift. We are, therefore, of opinion that this gift can not be upheld on the ground that Rangaswami Chettiar had merely carried out the wishes of his father indicated on the occasion of the marriage of