Om Prakash Gup1a ...

State of U, P.

Gooinia Menon :J.

January, 22.

SUPREME COURT REPORTS [1957]

(a) The State v. Pandurang Baburao (supra),

(b) Bhup Narain Saxena v. State (supra), and

(c) State v. Guiab Singh(').

We are in agreement with the view expressed by Hari Shankar and Randhir ingh JJ. that no sanction is necessary and the view expressed by Mul!a J. to the contrary is not correct.

Criminal Appeal No. 3 of 1955 will accordingly be dismissed.

Criminal Appeals -Nos. 42 of 1954 and 97 of 1955 will be heard on merits.

L. J. LEACH AND COMPANY LTD.

tJ.

JARDINE SKINNER AND CO.

(BHAGWATI,

VENKATARAMA

AYYAR,

B. P.

SINHA and S. K. DAs JJ.)

Amendment of plaint-Addition of alternative ground for claim -Necessary allegations present in plaint-Fresh suit on amended clat'm barred by limitation-Whether amendment should he allowed- Action in trover-W hen maintainable.

The appellants filed a suit for damages for conversion against the respondents on the allegations that the respondents were the agents of the appellants, that the appellants had placed orders for certain goods with the respondents, and that the respondents had actually imported ...t:he goods but refused to deliver them to the appellants.

The suit was dismissed on the findings that the parties stood in the relationship of seller and purchaser, and not agent and principal arid that the title in the goods could only pass to the appellants when the respondents appropriated them to the appellants' contracts.

In appeal before the Supreipe Court, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nonw <lelivery of the goods.

All the allegations necessary for sustaining a claim for damages for breach of contract were already present in the plaint and the only allegation lacking was that the appellants were, in the alternative, entitled to claim damages for breach of contract by the non-delivery of the goods.

But a fresh suit on the amended claim was barred by limitation oh the date of the application.

Held, that this was a fit case in which the amendment should be allowed. The fact that a fresh suit on the amended claim was

(1) A.l.R. ['954] Raj. 2H.

barred by limitation is a factor to be taken into consideration in the exercise of the discretion as to whether the amendment should be ordered or not, and does not affect the power of the court to order it, if that is required in the interests of justice.

Charan Das v. Amir Khan, L.R. 47 I.A. 225 and Kisan Das

v. Rachappa, (1909) I.L.R. 33 Bombay 644, followed.

To maintain an action in trover the plaintiffs must establish that they had title to the goods in question and that further they were entitled to possession thereof when they called upon the defendants to deliver them.

If the parties stood in the relation of sellers and purchasers with reference to the transactions, then the plaintiffs must show that the property in the goods, which initially was with the defendants, had passed to them in accordance with the provisions of the Sale of Goods Act.

If, however, the defendants imported the goods as agents of the plaintiffs, then the title to them would undoubtedly be with the latter, and the only question then would be whether the former were entitled to retain possession, as they would be if they had paid the price on behalf of the principals, and had not been reimbursed that amount.

CIVIL

APPELLATE JuRISDICTION: Civil Appeal No. 219 of 1953.

Appeal from the judgment and decree dated June 26, 1952, of the Bombay High Court in Appeal No. 20 of 1952 arising out of the judgment and decree dated December 17, 1951, of the said High Court in its ordinary Original Civil Jurisdiction in Suit No. 1623 of 1948.

C. K. Daphtary, Solicitor-General of India, M. N.

Gharekhan and M. S. K. Sastri, for the appellants.

H. D. Banaji, D. P. Madan, S.

N. Andley, Rameshwar Nath and /. B.

Dadachanji, for the respondents.

1957. January 22. The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-This appeal arises out of a suit instituted by the appellants in the High Court of Bombay for damages for conversion estimated at Rs. 4,71,670-15-0.

The suit was decreed by Shah J. sitting on the Original Side, but his judgment was reversed on appeal by Chagla C.J. and Gajendragadkar J. Against this judgment, the plaintiffs have

L. ]. utU:h and

Company Ltd. v. ]ardim Skinmr

and ea.

195r

L. J. uach amt

Compan,.y Ltd.

Jardine Skinner

and Cu.

Venkatarama

Ay.1ar J.

preferred the present appeal on a certificate under Art. 133( 1) (a) of the Constitution.

Messrs. Maitland Craig Lubricants Ltd. is an American Company engaged in the manufacture and sale of lubricants. It carried on business in India with its head office at Calcutta and a branch office at Bombay.

The second plaintiff, H. J. Leach, was employed during the years 1933 to 1935 in the Bombay branch of the said Company.

Subsequent thereto, the Company closed its Bombay branch, and eventually wound up its Calcutta ollice as well, and thereafter its business was taken over fintly by Ewing and Company and then by the defendants. After he left the service of Maitland Craig Lubricants Ltd., Mr.

Leach started business as seller of lubricants on his own account and was importing them through the defendants.

On June 6, 1941, they entered into an agreement, Ex. A, under which Mr. Leach was given an exclusive right to sell lubricants of the make of Maitland Craig Lubricants Ltd., within the limits of Bombay Presidency, Central Provinces, Rajputana and such parts of Central India and Hyderabad as might be determined by the defendants. The agreement was to continue for a period of five years "unless sooner determined in the manner hereunder provided." Clause 14 of the agreement runs as follows :

"Notwithstanding anything hereinbefore contained this agreement shall be terminable by either of the parties hereto upon giving to the other three calendar months previous notice in writing expiring at any time but without prejudice to the rights and liabilities of the parties respectively which shall have accrued prior to such termination." Clause 16 provides that the agreement was personal to the selling agent, and that he was not to assign or attempt to assign his rights thereunder without the consent of the defendants in writing first obtained.

It is common ground that the dealings between the parties continued on the basis of this agreement during the relevant period.

On March 18, 1944, the first plaintiff, which is a Joint Stock Company, was incorporated under the provisions

of the Indian Companies Act, and on March 30, 1944, the second plaintiff assigned his business to it.

On June 13, 1945, the defendants wrote to the second plaintiff that they were cancelling the agency constituted under the agreement dated June 6, 1941, as he had assigned the same to the first plaintiff without obtaining their consent in writing as provided therein.

Before that date, however, the defendants had placed orders for import from America of certain goods which the plaintiffs had required, but these goods were actually received by them after the cancellation of the contract.

The plaintiffs called upon them to deliver those goods to them, but they refused to do so. Thereupon, the plaintiffs instituted the present suit for damages for conversion alleging that the goods in question were due to them under Government quotas comprised in Nos. P. L. 1004 to 1007, and that the defendants who had ordered them on their behalf had themselves no title to them. The plaintiffs also averred that in importing those goods the defendants were acting as their agents.

The defendants repudiated this claim.

They contended that far from they being the agents of the plaintiffs, it was the second plaintiff who was their agent, and that the property in the goods was with the defendants and that the action for damages for conversion was not maintainable.

The suit was tried by Shah J. who held that the plaintiffs vvere not the agents of the defendants, that the goods in question had been imported by the latter on behalf of the former, and that in refusing to deliver the same to them, the defendants were guilty of conyersion.

He accordingly passed a decree referring the suit to the Commissioner for ascertaining the damages.

On appeal, Chagla C.J. and Gajendragadkar J. held that on the terms of the agreement dated June 6, 1941, on which. the suit was based, the title to the goods imported hy the defendants vested in them, and that it would pass to the plaintiffs only when the defendants endorsed the shipping document in their favour, and that as that had not been done, the claim for damages on the basis of conversion was misconceived. They accordingly allowed the appeal, and dismissed the suit.

L. J. Ltach a1Ul

Company Ltd v.

Jardi~ Skinner

and Co.

Venkatarama

Ayyar J.

1957,

L.J. Lead and

Company Ltef.

Jardine Ski,.,,,,

and Co.

VenkatMama

"'""' J.

Now, the contention of the appellants before us is that on the facts proved, they were entitled to damages on the basis of conversion.

There is no dispute as to the position in law.

Before the plaintiffs can maintain an action in trover, they must establish that they had title to the goods in question and that further they were entitled to possession thereof when they called upon the defendants to deliver them.

If the parties stood in the relation of sellers and purchasers with reference to the transactions, then the plaintiffs must show that the property in the goods, which initially was with the defendants, passed to them in accordance with the provisions of the Sale of Goods Act.

If, however, the defendants imported the goods as agents of the plaintiffs, then the title to them would undoubtedly be with the latter, and the only question then would be whether the former were entitled to retain possession, as they would be if they had paid the price of the goods on behalf of the principal, and had not been reimbursed that amount. This question, however, would not arise on the facts of this case, as the defendants denied the title of the plaintiffs to the goods, and there was no refusal by the latter to pay the price.

The main question that arises for determination, therefore, is as to the relationship in which the parties stood with reference to the suit transactions.

It is conceded that to start with, it is the agreement, Ex. A, that governs the rights of the parties. It is therefore necessary to examine its terms to ascertain the true relationship of the parties thereunder. It has been already mentioned that under this agreement Mr. Leach was constituted the selling agent of the defendants in certain areas specified therein.

Under Ex. A, the second plaintiff was not to sell the goods below a certain price, and they were also to be sold with the mark, Maitland Craig Lubricants Ltd.

The course of business was. that the second plaintiff used to intimate to the defendants his requirements.

They would then import those goods in their own names from America under c.i.f. contracts.

After importing them, they would fix their own price for those goods and

endorse the shipping documents in favour of the second plaintiff, who would be entitled to clear them at the harbour on payment of 80 per cent. of the price, the balance of 20 per cent. being payable on the delivery of the goods by him to his purchasers. The sales to be effected by the second plaintiff within the area to his own customers were matters which concerned only him and his purchasers.

The defendants had nothing to do with them. Under cl. 6, the second plaintiff had to "keep the value of his stocks at all times fully insured against fire risk:" Clause 13 is as follows : "The relationship between parties hereto shall be that of principal and principal only and the selling agent shall have no authority whatsoever except such as may be conferred upon him in writing by the firm to transact any business in the name of the firm or to bind the firm by any contract, agreement or undertaking with or to any third party."

In contrast with these terms, there is cl. 4, which provides that the defendants would themselves supply to the Indian Stores Department all their requirements of lubricants within the territory allotted to the second plaintiff, who was to act as their agent in clearing the goods and delivering them to the authorities.

And for this, the second plaintiff was to be paid a commission.

It is clear that the agreement read as a whole is a composite one consisting of two distinct matters. So far as cl. 4 is concerned, the second plaintiff was merely an agent of the defendants.

As regards the other clauses, the true relationship is, as stated in cl. 13, that the second plaintiff was purchaser of the goods from the defendants, and the conditions relating to the minimum price at which they could be sold and the marking of the goods with the name of Maitland Craig Lubricants Ltd. were only intended to protect their trade interests but that once the shipping documents were endorsed by the defendants to the second plaintiff, he became the owner of those goods. The object of the insurance clause was obviously to safeguard the interests of the defendants with reference to the balance price payable by the second plaintiff. In this case, we

1957 I

L. J. Leach and

Company Ltd.

Jordi~ Skinneiand Co. -

V enkatarama

Ayyor ].

L. J. Ua<h and

Company Ltd. v. .Jardine Skinner

and Co.

V enkataram a

A_vyar J.

are not concerned with any goods consigned by the defendants for supply to the Government under cl. 4 but with goods which were imported by them for meet ing the requirements of the plaintiffs. The relationship of the parties with reference to those goods, if it is governed by this agreement, is undoubtedly that neither party is agent of the other, and that the defend ants are the sellers and the plaintiffs are the pur chasers.

If so, the title to the goods would pass to the plaintiffs only when the defendants appropriated them to the contract, as for example, by endorsing the shipping documents, and as that had not been done, the claim for damages on the ground of conversion would be misconceived.

The learned' Solicitor-General who appeared for the appellants, did not dispute that this was the pos1t10n under Ex. A.

But he contended that the relationship of seller and purchaser created by the agreement became modified when the Gcvernment introduced the licence system.

That was introduced in August- September, 1941, while the war was on, with a view to regulate and control imports.

The system adopted was that every importer was required to give a statement as to the extent of his import business during the preceding years, and on the basis of that statement. a licence was given to him to import up to a limit. On September 26, 1941, the second plaintiff applied to the Controller for a licence to import lubricants stating that he had been doing that business for seven years and giving particulars as to the yo]urnc of his business.

Sometime in November, a licence was gr8nted to him by the Government.

The defendants also applied for a licence to import lubricants based on the volume of their business and obtained it.

That licence did not include the quantity which they sold to the second plaintiff, and thus the two licences were mutually exclusive.

Mr. Leach would have been himself entitled under the licence to import goods directly from America, but he chose to import them through the defendants as before, because under the terms of the agreement, Ex. A, he would have to pay only 80 per cent. of the price when clearing the goods; There was,

however, this change in the character of the transaction, that whereas before the licence system the defendants were the purchasers from American Companies under c.i.f. contracts and they then sold the goods to the second plaintiff on a price-'fixed by them, under the licence system the price payable to them was only what they themselves had to pay to the American sellers with an addition by way of commission on the transattion.

Now, the argument of .the appellants is that as they were the persons entitled to import the goods under the

licern:r: granted to them, in importing them on their requisition the defendants must be held to have acted for them, and that the relationship belween them was no longer one of seller and purchaser under Ex. A but of agent and principal.

To this, the answer of Mr.

Banaji, learned .. counsel for the respondents, was twofold.

He .contended firstly that in applying for and obtaininfT the licence in his own name, the second plaintif{:, vas merely .acting as the agent of the defendants, and secondly that the present contention was not raised in the plaint and was, therefore; not open to the appellants. On the first contention he referred us to the correspondence which passed between the parties at the relevat1t period.

On September 5, 1941, th'.'. defendants wrote to the second plaintiff to send particulars of certain shipments consigned to him so that they could include them in their application for licence, and on September 11, 1941, they further wrote to him that those Poods were not to be included in his application for )i~nce.

But the second plaintiff was obviously. not agreeable to it, and actually included those Yery shipments in his application for licence dated

Sertember 26, 1941.

The defendants did not .pursue the matter further, and wrote to the second plaintiff on December 10, 1941,, to intimate to them the number and date of his import licence and continued to import goods for him on the basis of that licence. Counsel for respondents relied on a letter dated December 11, 1941, in which the defendants advised the second plaintiff to join a group of oil merchants, which was to be formed at Bombay, but that was obviously by way of advice

L. J. Leach and Company Ltd. v.

Jardine Skinner

and Co.

Venkatarama Ayyar J.

L. J. Leach and

Company Ltd. v.

Jardint Skinntr

and Co.

Y enkatarama

..lyyar J.

to him as a customer. This evidence is too inconclusive and too slender to support the contention that the second plaintiff obtained the licence as the agent of the defendants.

On the other hand, if the true position of the second plaintiff under Ex. A was that he was a purchaser of goods, then the sales by him of those goods were as owner and the licence issued to him on the basis of those sales must have been given to him in his own right and not as agent of the defendants.

This was the finding of Shah J. and that has not been reversed on appeal, and we are in agreement with it.

It is next contended that the entire plaint is framed on the footing that the rights of the parties arc governed by Ex. A, that there is no averment therein that that agreement had been cancelled or modified, and that a new agreement had been substituted after the licence system was introduced, that the evidence of Mr. Leach in the box was also that Ex. A was in force throughout the period, and that therefore it was not open to the appellants now to contend that the relationship of seller and purchaser under Ex. A had been altered into one of agent and principal. It is true that the plaint proceeds on the basis that Ex. A is in force, and there is no allegation that it had been modified.

But Ex. A had not been wholly abandoned. It was still in force governing the relationship of the parties in respect of various matters such as delivery of goods on payment of EO per cent. of the price.

The plaint does refer to the introduction of the licence system, and the defendants clearly knew as much of the true position thereunder as the plaintiffs, and there could be no question of surprise. Under the circumstances, if the rights of the parties had to be determined on the basis of the licence system, we would have hesitated to non-suit the appellants merely on the ground that the effect of that system had not been expressly stated in the plaint.

But then, the licence system itself came to an end in March-April, 1942, and was replaced by what is known as "Lease and Lend" scheme.

It was under this scheme that the goods which form the subjectmatter of this litigation were imported, and we have therefore to examine what the rights of the parties

are with reference to the incidents of that scheme taken along with Ex. A, which is admitted by the appellants to have been in force.

This scheme was introduced by the Government of India as a war measure to facilitate the import of certain essential goods and to conserve them for the effective prosecution of the war.

Oil and lubricants were among the goods which were controlled under this scheme.

Ul!der it; the Government prohibited the direct import of oil and lubricants from America through private agencies, whether individuals, firms or companies and took upon itself to import the required quantity.

An association of jmporters and dealers in Calcutta called the Central Lubricants Advisory Committee (C.L.A.C.) was formed, and importers were to write to the Committee what quantity they required to be imported on their behalf.

This Committee was a private body, and served as a liaison between the importers and the Government.

A similar Committee was formed at Bombay called the Bombay Lubricants Advisory Committee (B.L.A.C.).

The procedure adopted in the import of goods was this : the importers were to state their requirements to the Committee which sent the same to the Government. Then on mt1mation given by the Government authorities, the dealers would have to make deposits on account of the price to be paid for the goods.

The Government had a purchasing agent in America and he would be required by them to purchase the requisite goods and to arrange to get them transhipped to the destinations in India mentioned by the several dealers.

The shipping documents would be taken in the name of the Government and on payment of the bills endorsed over to the importer for clearance at the harbour.

The features of the system to be noticed are that it was the Government who was the importer of the goods and the dealers became entitled to the goods only on the shipping documents being endorsed to them by the Government.

Now, so far as the plaintiffs are concerned, the facts are that they made no deposits with the Government,

L. J. Ltach and

Company Ltd. v.

Jardine Skin"'1'

and Co.

Ven katarama Ayyar ].

L. J. Lea.ch and Company Ltd. v.

Jardine Skinner

and Co.

Venkatarama

Ayyar ],

and their names were not in the list of traders for whom the Government imported the goods.

They h:id direct dealings only with the defendants and sent their requirements to them.

The defend:ints would in their application to the Government include what the plaintiffs required as well as what they themselves required :ind make the necessary deposits for all the goods.

But all that would stand only in their name.

Though it would be possible to ascertain by reference to the correspondence between the parties which of tbe orders placed by the defendants with the Government relatecl to the requirements of the plaintiffs, so far as the Government itself was concerned it knew only of the defendants as importers, and it was in their name that it would endorse the shipping documents, and it was only when the defendants in their turn endorsed the same to them that the plaintiffs would get title to the goods, ond the evidence of Mr. Le:ich makes it clear that this had not been done, os regards the shipments with which the suit is concerned. This is what he says in his deposition.-

"The goods were shipped all to the order of the Government of India .... Separate documents were drawn up in respect of the consignments which were to be supplied to each of the trader according to his rcquiremrnt submitted to Government.

The traders who submitted their requirements cleared the goods by paying the amount of the bills .... The Government did not make anv allocation to me.

I depended on the defendants fer obtaining my requirements from the Government.

I did not make any cash deposit as required of the dealer. I made no deposit with the Government in respect of the quantity which I wanted.

The entire deposit was made with the Government by the defendants even in respect of my requirements....

The defendants endorsed over the documents in my favour for goods which were meant for me. . . . Excepting for the admitted portions the documents for remaining part of PL. 1004 to 1007 were not handed over to me or endorsed in my favour, except .to the extent to which the goods were delivcreU."

The evidence of Sir John Burder for the defendants was "the shipping documents were received in the name of the defendants".

It is thus clearly established that with reference to the goods comprised in P.L. 1004 to 1007, which formed the subject-matter of the suit, the shipping documents had not been made out in the name of the plaintiffs, nor had the defendants in whose names they were taken, endorsed the same to them. That being so, unless the plaintiffs established that the defendants were importing the goods as their agents, they would not have title to them, and the claim for damages on the basis of conversion mmt fail.

We should mention that the appellants relied on some of the letters written by the defendants as showing that they recognised the plaintiffs as having the title to the goods.

Thus, on August 12, 1944, the defendants wrote to the plaintiffs "We confirm that the consignment is for you", and on Mar.ch 24, 1945, they wrote, "We enclose herewith a statement show ing quantities and grades that have been ordered by Government on your account against order

P.L. 1006/10".

But these statements are quite consistent with the position of the defendants as sellers who had ordered the goods on the requisition of the plaintiffs, and do not import that title thereto had passed to them, which could be only after the goods came into existence and were appropriated.

That did not happen in this case, and the shipping documents continued in the name of the defendants. We therefore agree with the learned Judges that on the pleadings and on the evidence the claim for damages on the footing of conversion must fail.

That would entail the dismissal of this appeal, but the plaintiffs have applied to this Court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nondelivery of the goods.

The respondents resist the application.

They contend that the amendment introduces a new cause of action, that a suit on that cause of action would now be barred by limitation, that the plaintiffs had ample opportunity to amend

L. J. Leach and

Company i.td.

Jardine Skinner

and Co.

Venkatarama

Ay_yar J.

L. J. Leach and

Company Ltd. v. ]ardim Skinner

and Co.

Venkatarama Ayya' J.

their plaint but that they failed to do so, and that owing to lapse of time the defendants would be seriously prejudiced if this new claim were allowed to be raised.

There is considerable force in the objections.

But after giving due weight to them, we are of opinion that this is a fit case in which the amendment ought to be allowed.

The plaintiffs do not claim any damages for wrongful termination of the agreement, Ex. A, by the notice dated June 13, 1945.

What they claim is only damages for non-delivery of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice.

Clause 14 of the agreement expressly reserves that right to the plaintiffs.

The suit being founded on Ex. A, a claim based on cl. 14 thereof cannot be said to be foreign to the scope of the suit.

Schedule E to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods, and the damages claimed are also stated therein. The plaintiffs seek by their amendment only to claim damages , in respect of those consignments. The prayer in the plaint is itself general and merely claims damages.

Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods.

It is no doubt true that courts would, as a rule, dedine to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.

In Chrtran Das

v. Amir Khan(') the Privy Council observed:

"That there was full power to make the amendment cannot be disputed, and hough such a power

(1) [1920] 47 I.A. 255.

should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case." Vide also Kisan Das v. Rachappa(').

In the present case, apart from the contents of the plaint already set out, there is the fact that the defendants cancelled the contract without strictly complying with the terms of cl. 14.

The ground on which they repudiated the contract was that the second plaintiff had assigned his interests to the first plaintiff ; but the record shows that subsequent to the assignment the defendants had business transactions with both the plaintiffs and therefore the ground for cancellation appears to have been a mere device to deprive the plaintiffs of the benefits of the orders which they had placed. We are of opinion that the justice of the case requires that the amendment should be granted.

The plaintiffs will accordingly be allowed to amend t.'1e plaint as follows :

"12(a) In the alternative and without prejudice to the claim on the footing of conversion, the plaintiffs say that by reason of the facts aforesaid, there was a contract between the parties whereby the defendants undertook to supply and deliver to the plaintiffs (or either of them) the goods ordered out by Government on their (the plaintiffs') account and included in the quotas PL. 1004-PL. 1007. The said goods arrived in Bombay, but the defendants failed and neglected to deliver the same though demanded, and in fact repudiated their obligation to deliver.

The plaintiffs say that they were always ready and willing to pay for and take delivery of the same.

The defendants at all material times well knew that the plaintiffs had purchased the same for resale and for fulfilment of contracts of sale and supply. The plaintiffs claim damages as per particulars."

This appeal must accordingly be allowed, the decree under appeal set aside, and the suit remanded for

(r) [1909] I.L.R. 33 Bombay 644.

L. ]. Leach and

Company Ltd.

Jardine Skinntr

and Co.

V enkatorama

Ayyar J

'957

L. J. Leach and

Company Ltd. v.

Jardine Skinne1'

and Co.

Venkatarama Ayyar J.

January, 29.

rehearing to the trial court. The defendants will file their written statement to the amended claim and the suit will be tried and disposed of in accordance with law.

There remains the question of costs.

As the plaintiffs are getting an indulgence, they must pay the costs of the defendants both in the suit and in the appeal to the Bombay High Court.

So far as costs of this appeal are concerned, as the defendants persisted in their contention that the plaintiffs were only acting as their agents, a contention which, if upheld, would have furnished a conclusive answer to the amended claim as well, we direct the parties to bear their own costs m this Court.

KAMALA DEVI

Appeal allowed.

Case remanded.

BACHO LAL GUPTA

[S. R. DAs C. J., BHAGWATI and S. K. DAs JJ.]

Hindu Law-Gift of immoveable property by widow-Daughter's marriage dotvry-Ante-nuptial pro1nise-Deed executed and registered after marriage-Validity-If binding on the reversioners-

Trnnsfer of Property Act (IV of 1882), s. 123-Hindu Succession Act, 1956 (XXX of 1956), s. 14.

In fulfilment of an ante-nuptial promise made on the occasion of the settlement of the terms of marriage of her daughter, a Hindu widow, governed by the Benares School of Hindu Law, executed a registered deed of gift in respect of 4 houses allotted to her share by a partition decree, in favour of her daughter as her marriage dowry about two years after the marriage.

The partition decree gave her a right to the income, but no right to part with the corpus of the property to the prejudice of the reversioners.

Her s.tep-sons brought a suit for a declaration that the deed r.f gift was void and inoperative beyond her lifetime and could not bind the reversioners.

The trial court found that the gifted properties constituted a reasonable portion of the estate, but that the gift not having been made at

Om Prakash Gup1a

L. J. LEACH AND COMPANY LTD

JARDINE SKINNER AND CO

BHAGWATI

SINHA

S. K. DAs JJ.

Supreipe Court

L.R. 47 I.A. 225

Sale of Goods Act

C. K. Daphtary

M. N.

Gharekhan

M. S. K. Sastri

H. D. Banaji

D. P. Madan

S.

N. Andley

Rameshwar Nath

B.

Dadachanji

VENKATARAMA AYYAR

High Court of Bombay

Shah

Chagla C.J.

Gajendragadkar

ardim Skinmr

Art. 133( 1)

Maitland Craig Lubricants Ltd.

India

Calcutta

Bombay

H. J. Leach

Ewing and Company

Maitland Craig Lubricants Ltd.

Leach

June 6, 1941

Bombay Presidency

Rajputana

Central India

Hyderabad

Clause 14

Clause 16

March 18, 1944

Companies Act

March 30, 1944

June 13, 1945

America

Sale of Goods Act

cl. 6

Clause 13

cl. 4

cl. 4

cl. 13

L. J. Leach

cl. 4

September 26, 1941

Banaji

September 5, 1941

September 11, 1941

Sertember 26, 1941

December 10, 1941

December 11, 1941

lyyar

Government of India

Le

John Burder

August 12, 1944

Mar.ch 24, 1945

L. J. Leach

Ayya

Clause 14

cl. 14

cl. 14

Venkatarama Ayyar

Bombay High Court

KAMALA DEVI

BACHO LAL GUPTA

S. R. DAs

Trnnsfer of Property Act

s. 123

Hindu Succession Act, 1956

s. 14


'957

L. J. Leach and

Company Ltd. v.

Jardine Skinne1'

and Co.

Venkatarama Ayyar J.

January, 29.

SUPREME COURT REPORTS [1957]

rehearing to the trial court. The defendants will file their written statement to the amended claim and the suit will be tried and disposed of in accordance with law.

There remains the question of costs.

As the plaintiffs are getting an indulgence, they must pay the costs of the defendants both in the suit and in the appeal to the Bombay High Court.

So far as costs of this appeal are concerned, as the defendants persisted in their contention that the plaintiffs were only acting as their agents, a contention which, if upheld, would have furnished a conclusive answer to the amended claim as well, we direct the parties to bear their own costs m this Court.

KAMALA DEVI

Appeal allowed.

Case remanded.

BACHO LAL GUPTA

[S. R. DAs C. J., BHAGWATI and S. K. DAs JJ.]

Hindu Law-Gift of immoveable property by widow-Daughter's marriage dotvry-Ante-nuptial pro1nise-Deed executed and registered after marriage-Validity-If binding on the reversioners-

Trnnsfer of Property Act (IV of 1882), s. 123-Hindu Succession Act, 1956 (XXX of 1956), s. 14.

In fulfilment of an ante-nuptial promise made on the occasion of the settlement of the terms of marriage of her daughter, a Hindu widow, governed by the Benares School of Hindu Law, executed a registered deed of gift in respect of 4 houses allotted to her share by a partition decree, in favour of her daughter as her marriage dowry about two years after the marriage.

The partition decree gave her a right to the income, but no right to part with the corpus of the property to the prejudice of the reversioners.

Her s.tep-sons brought a suit for a declaration that the deed r.f gift was void and inoperative beyond her lifetime and could not bind the reversioners.

The trial court found that the gifted properties constituted a reasonable portion of the estate, but that the gift not having been made at

the time of the marriage or on the occasion of the Gowna 'i957 (Dwiragaman) ceremony in accordance with the provisions of s.

Kamala Deui 123 of the Transfer of Property Act, was not binding on the reverv. sioners beyond the lifetime of the widow and decreed the suit.

Bathu Lal G.pta The High Court found that the widow had made the ante-nuptial promise, but that the gift having been made about two years after the marriage or the Gowna ceremony, the provisions of the Transfer of Property Act relating to gifts stood in the way of considering the same as having been made on the occasion of the marriage but implemented later, and affirmed the decision of the trial court, although the gifted houses were found to constitute a reasonable portion of her husband's estate.

The contentions in appeal on behalf of the widow and the daughter were (I) that the widow had the power in Hindu Law, as it stood before the enactment of the Hindu Succession Act, 1956, to execute the deed of gift in question and (2) that s. 14 of the said Act had the effect of making them full owners of the property in suit.

Held, that the deed of gift in favour of the daughter was valid in law and binding on the reversioners and the appeal must succeed.

Under the Benares School of Hindu Law, as it stood prior to the enactment of the Hindu Succession Act, 1956, as also under the partition decree, the . properties allotted to the widow constituted her widow's estate as on inheritance and she. had no absolute right of disposal over them.

Bhugwandeen Doobey v. Myna Baee, (1868) 11 M. I. A. 487, referred to.

Debi Mangat Prasad Singh v. Mahadeo Prasad 'Singh, (1912) L. R. 39 I. A. 121, followed.

In Hindu Law the marriage of a daughter is a pious act and confers direct spiritual benefit on the father and a widow has the power to make a gift of a reasonable portion of her husband's estate as marriage dowry to the daughter, even after the marriage, in fulfilment of an ante-nuptial promise, whether she makes the 'sankalpa' at the time of the marriage or not.

Ganga Bisheshar v. Pirthi Pal, (1880) I. L. R. 2 All. 635, disapproved.

Case-law reviewed.

This power of the widow is one conferred on her by Hindu Law and is not affected by the provisions of s. 123 of the Transfer of Property Act, though the gift to be legally effective must be made in the manner prescribed by that section.

Although there is no doubt that sub-s. (1) of &. 14 of the Hindu Succession Act, 1956, gives a retrospective operation to the provisions of that section so as to make a female Hindu a

7-77 s. a. India/59

Kamala D1;; i

Bachu Lal Gupta

full owner of immoveable property acquired either at a partition or by way of gift, it is not necessary in the present case to examine the true nature and scope of s. 14 of the Act.

C1v1L

APPELLATE JuRISDICTION : Civil Appeal No. 158 of 1953.

Appeal by special leave from the judgment and decree dated April 6, 1950, of the Calcutta High Court in appeal from original decree No. 166 of 1944 arising out of the decree dated June 30, 1943, of the Court of the Subordinate Judge, Asansol, in Title Suit No. 2 of 1942.

Ramanugrah Prasad and Mohan Beharilal, for the appellants.

H. /. Umrigar and S. P. Varma, for respondents Nos. 1 and 2.

1957. January 29. The Judgment of the Court was delivered by

S. K. DAs J.-This is an appeal by special leave from the judgment and decree of the High Court of Calcutta, dated April 6, 1950, by which the said High Court affirmed the judgment and decree of the Subordinate Judge of Asansol dated June 30, 1943, in Title Suit No. 2 of 1942.

The suit was instituted by the four sons of one 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 Sumitra Devi, widow of the late Ram Kishori Lal, (defendant No. 1) and Kamala Devi, daughter of the late Ram Kishori Lal (defendant No. 2). The said defendants, 1 and 2, are the appellants before us.

The suit was instituted for a declaration that a deed of gift dated March 10, 1940, executed by Sumitra Devi in favour of her daughter Kamala Devi, was void and inoperative beyond the lifetime of Sumitra Devi and was not binding on the reversion. The following genealogical table shows the relation inter se between the parties :

Ram Kishori Lal l

4th wife

I _l _____ I

Bachu Lal Heman Lal

I 3rd wife

J ____ _

K lichaJan (Pl ff. 3) Rabandhu died during pen- (Plff. 4) (Plff. 1) (Plff. 2) dency of the suit- Mst. Ram Sakhi

(Plff. 3 gha)

I . 5th wife Sumitra Devi (Deft. 1)

I I I I Satyanarain Hiralal Gopal Lachmi Narain Kama Jal : (Plff. 3 Ka) (Plff. Kha) (Plff. 3 Ga) (died on I-I-36) (Deft. 2) 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 July 22, 1933, and 'a final decree on June 29, 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 January 1, 1936. By the final decree, each of the sons obtained one-sixth share of the estate of Ram Kishori Lal. By reason of the death of Lachmi Narain before the final decree, Sumitra Devi got onethird share of the estate, one-sixth in her capacity as widow and one-sixth as the mother of her pre-deceased 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 neighbourhood of Rs. 19,000 only.

!r1J111ala Devi

Ba&hu Lal Gupta

S.K. Das J.

Kamala Devi

Bac/w Lal Gupta

S. K. Das].

The marriage of Kamala Devi was settled with one Bijoy Kumar Sao, son of Nand Lal Sao, a retired Depµty Postmaster, Patna General Post Office.

The case of the appellants was that the marriage was settled at Deoghar on Shivratri day in 1938 and the plaintiffs, respondents 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 performed on May 10, 1938, Sumitra Devi made a "sankalpa" of the gift of four houses at Asansol, which was accepted by Nand Lal Sao on behalf of Kamala, and the gift was later confirmed on the occasion of 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 feel ill and the deed of gift was actually executed and registered on March 10, 1940, some two years after the marriage.

This was the deed of gift which was impugned by the plaintiffs-respondents.

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 bridegroom's 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 ante-nuptial 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 the 10th March, 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 life 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.

On the aforesaid pleadings of the parties, the principle issues were Issues Nos. 2 and 3 which were in these terms :

"2. Is 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. l ?

3. 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 her death ?"

It is necessary now to summarise the findings of th~ 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

Kamala Devi

Bachu Lal Gupta

S. K. Das J.

Kamala Devi ...

Badw Lal Gupta

S. Ir. Das J.

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 the 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.

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 wou.\d arrange for the gift of ornaments worth about Rs. 5,000,

(b) a sum of Rs. 800 would be pid for meeting the expenses of travelling of the bridegroom's party from Patna to Asansol, ( c) a sum of 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 subjectmatter 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 Mangat Prasad Singh v. Mahodeo Prasad Singh( 1 ), 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) and observed that though it was competent for a Hindu wid'.:>w, 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 Sahu's 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 then said : "In the case now before us the marriage and the Gowna ceremony took place in 1938 and 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 and registered." On the question whether the gift in favour of Kamala Devi by Sumitra Devi

(1) (1912) L.R. 39 I.A. 121.

(2) [19og] I.L.R. 37 Cal. 1.

/( amaill Devi v.

Bachu Lal Gupta

S. K. Das].

Kamala Devi

v, Bachu Lal Gupta

~- K. Das J.

was of a reasonable portion of her husband's properties, the learned Judges observed: "In the 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 provmon 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 or unreasonable." In the 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.

It is necessary to state now the contentions which have been urged before us on behalf of the appellants, and they may be put in two main categories-(a) contentions with regard to the findings of fact, and

(b) contentions of law. Learned counsel for the appellants has impeached the concurrent finding of the Courts below that there was no "sankalpa" oi: promise of a gift of the four houses in. question at the time of the marriage ceremony which, it was alleged, was .followed by a confirmation of the gift at the Gowna ceremony. The finding has been impeached on the ground of a serious error of record said to have been committed by the High Court and on the ground of non-consideration of relevant evidence.

It has been argued before us that the proper finding should have been that Sumitra Devi made a "sankalpa" of the gift of the four houses in question after the Sampradan ceremony on the occasion of the marriage of Kamala Devi and that the gift was accepted bv Nand Lal on behalf of his minor daughter-in-law and that such a gift was again confirmed at the Gowna ceremony. The main contentions of law are three in number : firstly, it has been contended that even accepting the findings of the final Court of fact as correct, the gift being of a reasonable portion of the estate of Ram Kishori Lal Sao and in pursuance and fulfilment of an ante-nuptial agreement made by Sumitra Devi at the time of the final settlement of the marriage negotiations at Deoghar, was for the spiritual

benefit of Ram Kishori Lal and valid in Hindu law ; any such lapse of time as occurred in the. execution and registration of the deed of gift was immaterial, if the deed of gift was in fulfilment of the moral obligation flowing from the ante-nuptial agreement : secondly, it was suggested that Sumitra Devi got an absolute right in the properties given to her as her share on partition ; thirdly, a reference was made to section 14 of the Hindu Succession Act, 1956 and it has been argued that in view of the said provisions the plaintiffs-respondents were not entitled to the reliefs which they claimed. It may be stated here that arguments in the case had concluded before the Court closed for the annual vacation in 1956 and during the vacation the Hindu Succession Act, 1956, came into force on June 17, 1956.

On an application filed by the appellants, fresh arguments were heard with regard to the provisions of s. 14 of the Hindu Succession Act, 1956.

We proceed now to deal with the contentions in the order in which we have stated them. First, we take up the contentions with regard to the findings of fact referred to above.

It has been pointed out to us that the learned Judges of the High Court made a serious error of record in dealing with the oral evidence as to the verbal gift said to have been made at the time of the marriage of Kamala Devi and the acceptance of such a gift by Nand Lal, father-in-law of Kamala Devi. In dealing with the oral ev.idence on this question, the learned Judges have said : "If we leave out of account . for the present the evidence of Sumitra Devi and Bijoy as also of Kamal, who has been contradicted on a very material point by the other witnesses and also Nand Lal, father of Bijoy, we are left with Parasuram and Rash Behary. P:i.rasuram, a tenant, happens to be present at the psychological moment only for a few minutes when the Sankalpa is being made." The High Court clearly made a mistake in dealing with the evidence of Parasuram Sharma and confused Parasuram Sharma (witness No. 16)- with Pashupati Sarkar (witness No. 10).

Pashupathi Sarkar was a tenant of Sumitra Devi and it was his evidence that he went to

Kamala Devi v.

Bachu Lal Gupta

S. K. Das J.

Kamala Dtv

Bachu Lal Gupta

S. K. Dat J.

the place of marriage at about 12 midnight or 1 a.m. and stayed there for two minutes only and then came away. Parasuram Sharma (witness No. 16) was not a tenant of Sumitra Devi.

He was the Head Master of the Indian H.E. School at Patna, a school where Bijoy, husband of Kamala, was a pupil for two years. This Head Master said that he attended the marriage as a member of the bridegroom's party and was present when from behind the purdah Sumitra Devi made a "sankalpa" of the gift of four houses ; this was conveyed by Ganapati Sastri who recited "mantras" and was accepted by Nand Lal. It is unfortunate that the High Court confused Parasuram Sharma (witness No.

16) with Pashupati Sarkar (witness No. 10), with the result that Parasuram Shanna's evidence was not properly considered by the High Court. This defect in the consideration of the evidence by the High Court is undoubtedly there.

The point for consideration is if this is a sufficient ground for departure from the ordinary rule of this Court not to go behinrl the findings of fact arrived at by the Courts below.

Though the mistake made in unfortunate, we do not think that it is sufficient to disturb the finding of the Courts below or even to re-open the finding at this stage.

It is worthy of note that the learned Subordinate Judge made no mistake about Pashupati and Parasuram.

He pointed out that the witnesses examined on behalf of the appellants with regard to the verbal gift at the time of the marriage and its acceptance by Nand Lal, were mostly interested witnesses and none of them were really inrlependent.

Even Parasuram Sharma, whose evidence has been placed before us by learned counsel for the appellants, cannot be said to be completely independent. He was invited to attend the marriage as a member of the bridegroom's party and he said that he overheard Sumitra Devi saying that she was making a "sankalpa" of the gift of four houses as promisedevidence which is not of a very satisfactory nature.

There were many other criticisms of the evidence regarding the . verbal gift at the time of the marriage ; the learned Judges of the High Court have referred to these criticisms and they accepted some of them.

One

of the criticisms which g1eatly weighed with the learned Subordinate Judge was the absence of any reference to the gift of four houses in contemporaneous Court proceedings with regard to the withdrawal of Rs. 10,000 by Surnitra Devi, the sum which was set apart by the partition decree for the marriage expenses of Kamala Devi.

This criticism was not, however, fully accepted by the learned Judges of the High Court who placed greater reliance on the evidence of Rai Saheb Jogendra Nath Roy (witness No. 14) who was the most respectable and reliable witness examined on behalf of the appellants.

The evidence of this witness supported the e?idence of Sumitra Devi with regard to the promise made regarding the gift of four Asansol houses at the time of the settlement of marriage negotiations at Deoghar. There can be no doubt that Rai Saheb Jogendra Nath Roy was a very respectable witness and had no reasons to tell lies. Though he supported that part of the evidence of Sumitra Devi which relateLl to the promise of a gift of four houses at Asansol at the time of the marriage negotiations at Deoghar, he made no statement about a verbal gift having been made at the time of the marriage itself.

The witness said that he went to Sumitra Devi's house on the evening of the marriage and stayed for fifteen to twenty-five minutes only. He further said that he was not present at the time of the marriage ceremony.

It may, therefore, be that Rai Saheb Jogendra Nath Roy was not present at the time when the verbal gift was alleged to have been made.

By far and large, the learned Judge~ of the High Court did examine with care the oral , evidence with regard to the alleged verbal gift at the time of the marriage and but for the unfortunate confusion between Parasuram Sharma and Pashupati Sarkar, we do not think that the consideration of the oral evidence by the High Court is open to any other serious criticism.

The learned Judges rightly pointed out a serious discrepancy which existed between the evidence of Kamal Narayan Pandey (witness No. 8), who is said to have acted as the priest for the marriage, and the evidence of other witnesses with regard to the "lagan" or time

t957

Kamala Dai

B111; h:1 Lal Gup:a

S. A. Das].

Aamala Devi

v. 13!Uhu I at G"pta

S. K. Das J.

SL'PREME COURT REPORTS [1957]

of mrnage. faking all these circumstances into consideration, we do not think that we shall be justified in going behi::.d 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 Nancl Lal on behalf of him minor daughterin-law.

In view of this finding, the question as to whether the gift was again confirmed at the time of the Gowna cereinony does not really arise. There can be no confirmation of an act which did not itself take place.

As the appellants have impeached the finding of the Courts below with regard to the verbal gift said to have been made at the time of the marriage, the respondents have also impeached before us the finding of the High Court about an ante-nuptial agreement said to have been made at Deoghar.

It has been contended by learned counsel for the respondents that there were no compelling reasons for the High Court, which was the appellate Court, to differ from the appreciation of the oral evidence by the learned Subordinate' Judge, who had the advantage of seeing the witnesses, with regard to the question of the ante-nuptial agreement said to have been made at Deoghar. It is true that the learned Subordinate Judge did not accept the evidence of the witnesses who testified to the terms of settlement of the marriage negotiations at Deoghar.

What tipped the scale in favour of the finding arrived at by the High Court on this point was the evidence of Rai Sahib Jogendra Nath Roy (witness No. 14).

The learned Subordinate Judge gave certain reasons for not accepting the evidence of this witness. The learned Judge~ of the High Court considered those reasons very carefully and rightly pointed out that there were no good grounds for thinking that Rai Saheb Jogendra Nath Roy had fallen a victim to lapse of memory or for holding that he was an interested witness. The evidence of Rai Saheb )ogendra Nath Roy. was considered in the context of contemporaneous Court proceedings fo1 the withdrawal of Rs. 10,000 and the learned Judges

of the High Court accepted the explanatio~ which Rai Saheb Jogendra Nath Roy gave for not mentioning the promise of a gift of four houses in Asansol in the application which Sumitra Devi made for the withdrawal of the said sum of Rs. 10,000. In our opinion, the finding of the High Court as to an ante-nuptial agreement for the gift of four houses at Asansol, worth about Rs. 20,000, is not vitiated by any error of fact or law.

That finding must, therefore, be accepted as a correct finding, even though the learned Subordinate Judge came to a contrary conclusion with regard to it.

Having disposed of the contentions of fact urged before us, we proceed now to a consideration of the contentions of law. It may be convenient to dispose of, first, the argument somewhat faintly advanced on behalf of the appellants that even prior to the enactment of the Hindu Succession Act, 1956, Sumitra Devi had an absolute right of disposal in the share allotted to her on partitionin 1933-36 under Mitakshara law.

The question whether the share allotted to a mother on partition is stridhan or not, according to the Benares school, was left open by their Lordships of the Privy Council in Bhugwandeen Doobey v. Myna Baee (1),

the very case in which they held that property inherited by a woman was not stridhan according to the Mitakshara.

In Debi Mangal Prasad Singh v. Mahadeo Prasad Singh (2), the Allahabad High Court, after a review of all the authorities on the subject, held that it was stridhan ; but the Privy Council held that it stood on the same footing as property inherited by a woman and that it was not stridhan. The actual point decided in Debi Mangal Prasad's case was that there was no substantial difference in principle between a woman's property acquired by inheritance and that

acqi; ed by partition. It is worthy of note that the part1t10n decree proceeded on the footing that Sumitra Devi would be entitled to the income from the properties allotted to her but should not be in a position to prejudice the reversioners by destroying the corpus.

The preliminary decree for partition stated : "The Commissioner is further directed to allot as little liquid

(r) [1868] 11 M.l.A. 487, 5q.

(2) (1912) L.R.39 I.A 121.

Kamala Devi

B.xhu Lal Gupla

S. K. Das].

Kmala Dtl'i

Bochu Loi G.pto

S. K. Das].

.:ash to the share of plaintiff No. 2 (Sumitra Devi) as possible on partition and as a rule should allot such properties to her share of which she may receive income without trouble, but may not prejudice the reversioners by destroying the corpus".

It follows, therefore, that under the Mitakshara law and also under the partition decree, Mst. Sumitra Devi did not have an absolute right or interest in the share allotted to. her on partition. Under the decision in Debi Mangat Prasad Singh

v. Mahadeo Prasad Singh( 1 ), the property allotted to Mst. Suinitra Devi on partition stood on the same footing as property inherited by her from her husband.

She had no absolute right' of disposal of the property.

This brings us to a consideration · of the principal point argued before us on. behalf of -the appellants, namely, whether Sumitra. Devi was competent to make a gift of a reasonable portion of the estate of her husband to her daughter Kamala : Devi . as a marriage dowry in pursuance. and fullihnent of an ante-nuptial agreement, evea .. though the gift :was. made some two years after the .marriage .ceremony: . This point was urged before us, ; is we have already stated, prior to and irrespective of the enactment of the fiindu Succession Act, 1956.

The argument of learned counsel for the appellants was that Sumitra Devi was competent to make such a gift under the Hindu law, even as it stood prior to the enac.tment of the Hindu Succession Act, 1956. . We shall; therefore, deal with this point, irrespective of the provisions of . s. 14 of the Hindu Sucession Act, 1956.

It may be stated at the very outset t!).ar the concurrent finding of the Courts below was that the gift of four houses at Asansol, of a value of about Rs. 19,000, was not disproportionate or unreasonable if one had regard to the .. large extent of properties left by Ram Kishori Lal Sao on his death ; this was so even taking into consideration the sum of Rs. 10,000 which was set apart for the marriage expenses of Kamala Devi and which was withdrawn by Sumitra Devi. In our opinion, that finding is correct and must be accepted as such.

Therefore, the narrow question is if Sumitra Devi was competent to n.ake the gift of four houses at

(1) (1912) L.R. 39 I.A. '"'

Asansol as marriage dowry to her daughter, some two years after the marriage, in pursuance and fulfilment of the ante-nuptial agreement made at Deoghar.

There are a number of decisions bearing on the question, to which our attention has been drawn by learned counsel for the parties, and we propose now to examine some of them.

In Sardar Singh v. K11ni Behari Lal (1) it was observed : "There can be no doubt upon a review of the Hindu law, taken in conjunction with the decided cases, that the Hindu system recognises two sets of religious acts. One is in connection with the actual obsequies of the deci::ased, and the periodical performance of the obsequial rites prescribed in the Hindu religious law, which are considered as essential for the salvation of the soul of the Jeceased. The other relates to acts which although not ;:ssential or obligatory, are still pious obenances which conduce to the bliss of the urceased's soul.

In the later case~ this distinction runs dearly through the views of the learned judges. . . . . . . . . . . . . . \Vitl1 reference to the first class of acb, the powers of the Hindu female who holds the property are wider than in r..:spect of the acts which are :; iniply pious and if performed are meritorious so far as they ..:onduce to the piritual benefit of the c\eceaed. In one case, if the income of the property, or the property itself, is not sufficient t<, cover the expense>, she is entitled to seli the whole of it.

In the other case, fle ca1~ alienate a small portion of the propc:rt~· for the piom or charitable purpose she may hav• in view. ' In a very early decisi011, Cossi Naut Bysack v. Ht1rroo S•ondry Dossee (2).. which was heard by the Supreme Court at Calcutta, in 1819 an.! by tl e Juclicial Committee in 1826 and quo"d in Chura11;,,1 S1<h:t v. Gopi Salm (s), it was statd by Lord Gifford tfrit a Hindu widow had "for certain purposes a clear authority to dispose of her hmband's property and might do it for religiou~ purposes, including dnwry to a daughter." There are several text~ which lay down that it is the imperative religious duty and a moral obligation of a father, mother .or other guardian to give a girl in marriage

(1) (1922) L.R. 49 I.A. 383, 391,

(3) (19<':J) I.1.R. 37 Cal. t, 7.

(2) M'>rley's Diges~ 198.

Kamala Der;

v. 8acku Lal G., •s

S. K. D1JJJ.

Kamala Devi

Baclw Lal Gupta

S. K. Das :J.

before she attains puberty.

Some of these texts have been quoted in Churaman Sahu'.< case ( 1 ) and Ram Sumran Prasad v. Govind Das (").

According to these texts, the marriage of a girl by her father is enjoined as a religious duty in order to prevent him from being degraded and visited with sin ; there is also direct spiritual benefit conferred upon him by such a marriage.

Marriage, according to the Sastras, is a religious act ; a Sanskara for a man or woman.

According to Manu, Chapter IT, verse 67, the sacrament of' marriage is to a female what initiation with the thread is to a male. The Mitakshara also recognises marriage as a religious obligation for both male and female ( Sundrabai /avji Dagdu Pardeshi v.

Shivnarayana Ridkarana ( 3 ) ). The texts also recognise that gifts can be made at the time of or on the occasion of tbe marriage or any ceremonies connected therewith, and may also be made in fulfilment of a promise made in connection with the marriage ; some decisions have gone to the extent of laying down that the moral obligatio11 continues till it is discharged or fulfilled and such fulfilment may be subsequent to the marriage : see Mitakshara, Chapter I, section VII, Placitum 5 to 14.

In Placitum 9 is quoted Manu's text: "To the maiden sisters, let their brothers give portions out of their own allotments respectively ; to each the fourth part of the appropriate share ; and they, who refuse to give it shall be degraded." In Placitum 11, it is stated: "If it be alleged, that, here also the mention of a quarter is indeterminate, and the allotment of property sufficient to defray the expenses of the nuptials is all which is meant to be expressed : the answer is no ; for there is not any proof, that the alloment of a quarter of a share is indefinite in both codes ; and the withholding of it is pronounced to be a sin." In Ramasami Ayyar v.

Vengidusami Ayyar (' ), it was observed with reference to the aforesaid passages in the Mitakshara, and also to certain passages in the Smriti Chandrika, wherein the texts of Manu, Yajnavalkya and other Smriti writers dealing with the question of

l') ('909) I.L.R. 37 Cal. '• 7,

(2) ('926) I.L.R !'at. 646, 681.

(3) ['9n7] f.L.R. 32 Bom. s,.

(1) [1898] I.L.R. 221\.-:fad. 113, 114.

allotment to be made by brothers to their maiden sisters at the time of partition, were commented upon, that with regard to the true meaning of those texts commentators were divided : some of them held that all that the texts mean is that funds required for the marriage of sisters should be provided out of their father's estate but other commentators, Vijnaneswara among them, laid down that inclusive of their marriage expenses sisters were entitled to a provision not exceeding a fourth of what they would have got had they been males.

It was further observed therein that it was not necessary to decide which of the two views was to be taken as law.

Subramania Ayyar /. then said : "Assuming that, as argued for the appellant, the view advocated by Vijnaneswara and his followers is not law, the fact that so high an authority as the author of the Mitakshara propounds a rule thus favourable to maiden daughters ought to make one hesitate to accept as sound the exceeding! y limited construction which was insisted on on behalf of the appellant and which can scarcely be said to be in itself very reasonable, viz., that the texts justify a disbursement out of the estate of only the price of things required in connection with the celebration of the marriage.

In my opinion, the better and sounder view is, as contended for the respondents, that the authorities should be understood to empower a qualified owner like Thaiyyu Ammal to do all acts proper and incidental to the marriage of a female according to the general practice of the community to which she belongs." It should be noted that the observations aforesaid were made in a case where a widow gave her daughter in marriage and at the time of the marriage made a gift of a portion of the lands inherited by her from her husband to her son-in-law, and the question was if the widow Thaiyyu Ammal, who was a Hindu qualified owner, had authority to make such a gift.

In Kudutamma v.

Narasimla Charyulu('), the brother, as managing member of the joint family, made a gift of a reasonable portion of the joint .famiy

properties to his sisters.

The sisters were married m

(1) (19-07) 17 M.L.J. 528, 531, 532.

B-77 S C India/59

Kamala De11i

Bachu Lal Gupta

S. 1'. Das].

Kamala Devi

Bachu Lal Guµa

S. 1'. Das].

the father's lifetime but were left for some reason or other without a marriage portion.

The gift was made after the father's death and subsequent to the marriage.

It was held that the brother had authori\y to make the gift.

Miller f. observed : "If then a brother, finding that his sister though married in his father's lifetime, has been for any reason left without a marriage portion which she ought to have receiYed, it is difficult to see how he can be held to have exceeded his powers if he makes goo;:J the deficiency out of the family property.

We are not required to hold that he is bound to do so ; we are not required to hold that his father was bound in law to give his daughter anything at her marriage ; it is only necessary for us to hold that the gift is not in excess of the powers of the brother and cannot therefore be recalled by him or avoided by his son." Wallis f. who concurred in the judgment, observed : "In such a case there was, I think, a strong moral obligation on the joint family over the father as managing member to make a gift out of the joint family property on the occasion of the marriages either to the girls themselves or to their husbands as a provision for them, and the fact that the father maintained both the daughters and their husbands out of the joint family property until his death may be regarded as a continuing recognition of such moral obligation.

Mere neglect on the part of the joint family to fulfil a moral obligation at the time of the marriages 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 defenrlant, who succeeded him as managing member of the joint family."

In Churaman Sa!ut's case('), the gift was no doubt made on the occasion of the daughter's gouma ceremony which took place some two years after the marriage, and it was held that the gowna ceremonv was a ceremony of importance, closely connected with the marriage, though it was not a ceremony necessary to complete the marriage.

The gift was upheld on that footing.

What is worthy of note, however, is

(1) (1909) I.L.R. 37 Cal. r,7.

that in Churaman Sahu's case( 1 ), the decision in Kudutamma v. Narasimha Charyttlu( 2 ) was approved, and that was a decision in which the gift was made subsequent to the marriage and not on the occasion of any particular ceremony.

Sundararamayya v. Sitamma(3) is another decision of some importance.

There the marriage took place about forty years before the gift and there was no evider1ce that the father had any intention to give any property at the time of the marriage.

The question was if in those circumstances the gift was valid. After referring to the decision in Churaman Sahu v. Gopi Sahu(1) and Ramasami Ayyar v. Vengidusami Ayyar('), it was observed: "We see no reason to differ from these two decisions.

The father or the widow is not bound to give any property. There may be 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 moral obligation at the time of 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." The learned Judges referred with approval to the earlier decision in Kudutamma

v. Narasimha Charyulu(").

The decision in Bhagwati Shukul v.

Ram /atan Tewari(") is somewhat out of the ordinary in the sense that a widow transferred the entire property inherited by her from her husband to a blind and crippled daughter in order to get her married and supply her with a handsome dowry.

It was

oberved that no hard and fast rule could be laid down to define the extent and limit of the widow's power of disposing of the property inherited by her for the marriage of her daughter.

The decision of the same case when it went up in Letters Patent appeal is reported as Bliagu1ati Shukul v. Ram /atan Tewari( 8 ).

The decision of the single judge was upheld on the

(r) (1909) l.L.R. 37 Cal. 1,7.

'.2) (1907) r7 M.L.J. 528,531,532.

(3) (19u) I.L.R. 35 Mad. 6~8,629.

(4( (1898) I.L.R. 22 Mad. 113, 114. (5; A.I.R. 1922 All. 381.

(6) (r922) I.L.R. 45 All. 297.

Kamala Devi

Badia Lal Gupta

S. K. DasJ.

KtJmala Devi

Bll&hu Lal Gup10

S.. K. Das],

ground that in order to get the girl married, it was "a sheer necessity" for the widow to provide a dowry of Rs. 500 or its equivalent by the gift of the property.

The property was very small in value, being in the neighbourhood of Rs. 500 only, and where under the circumstances the marriage of the girl into a suitable Brahmin family, having regard to her blindness and infirmity, necessitated the spending of the equivalent in value of that property, then the alienation was a "sheer legal necessity." It should be observed here that this decision is on its peculiar facts, and other decisions do not support the >- view that an alienation of the entire property is permissible ; most of the decisions lay down that an alienation of a reasonable portion of the property is only permissible.

What is reasonable must depend on the facts and circumstances of each case.

In Vettor Ammal v. Pooch Ammal( 1 ), the gift was made some years after the marriage.

The gift was upheld and was held to be reasonable being about one-sixth of the whole property.

In Sailabala v. Baikuntha Nath('), a gift made by a widow of twelve annas share of her husband's estate on the occasion of the marriage of her daughter was supported on the ground that it was impossible to define the extent and limit of the widow's power of disposing of property inherited by her because it must depend upon the circumstances of the disposition when ever such disposition was made.

In Ram Sumran Prasad v. Gobind Das(1 ), the gift was made on the 28th July, 1901, but the marriage took place in 1899, two years earlier.

The gift was made in pursuance of an earlier promise and a verbal declaration made at the time of the Gantha Pakrai (catching hold of the skirt of the mother-in-law) performed during the marriage.

On an exhaustive review of the decisions, the case law was summarised as follows : "The case law on the subject summarised above fully indicates the inclination of all the High Courts to uphold a gift by a widow of landed property to her daughter or son-in-law

(1) (1911) 22 M.L.J. 321.

(3) [1926) l.L.R. ~' Pat.646, 681.

(2) A.I.R. 1926 Gal. f86.

on the occasiun of the marriage or any ceremonies connected with the marriage and that the promise made may be fuifillcd afterwards ; and it is not essential to make a gift at the time of the marriage but that it may be made afterwards, upon the ground that the gift whu1 made fulfils the moral and religious obligation of giving a portion of the property for the

benefit of the daughter and the son-inclaw.

The only limitation placed upon this power of making a gift is that it should bear a reasonable proportion to the entire property of the deceased father and , that it should be justifiable in the circumstances of the case in terms of the principle laid down m Gossi Naut Bysack v.

H11rroosoo11dfy Dossee(1 )". In Sit/zamahalaf(S!imamma v. Kotayya(' ), Mr. fustice Venkataramana

Rao summarised the case law in the following words : "Thus it will be seen that it is competent to a Hindu father to make a gift of a reasonable portion of the ancestral immoveable property to his daughters without reference to the son ; , ......... It is a power vested in the father unde( the Hindu law, which he can exercise subject to the restriction of limitations imposed on him by the said bw. The decided cases have held that the gift must he a reasonable one.

The question whether a particular gift is reasonable or not will have to be judged according to the state of the family at the time of the gift, the extent of the family immoveable propcrty, the indebtedness of the family, and the: paramourrt charges which the family was under an obligation to provide for ; and after having regard to those circumstances if the gift can be held to be reasonable such a gift ,, ill be binding on the joint

family members irrespective of the consent of the members of the family ..... , .. li under the law .it is a moral obligation 0;1 the family to make a prov1s10n as :.nd by w:.1y of a marriage portion and such obligation continues until it is fulfilled by a reasonable provi; ion being made therefor, the fact that one of the , sons lm become iudebtcd cannot take away the power of the father to make such a gift ...... ". In Pratap Kum11ur v. Raj Bahadur Si11gi1( 3 ) the marriage took

; t) 'Morley's Digest 198.

(3) A.LR. 1943 Oudh 316. (2l A.I.R. 1936 Mad. 825,82;.

Kamala Det:i v.

Bachu Lal Gupta

S. K. Das).

Kamala Devi

Bachu Lal Gupta

S. K. Das].

place in 1923 and the gift was made in 1926.

After examining the evidence the learned Judges held that Mst. Raj Kuer, the widow in question, did not make any "sankalpa" of the gift of fifteen villages at the time of her daughter's marriage.

On behalf of the plaintiffs it was argued before them that a Hindu widow could make a gift of her husband's immoveable property to her daughter only at the time of her marriage. The learned Judges repelled this contention and held that the gift made by Mst. Raj Kuer in favour of her daughter and son-in-law was valid, even though she did not make a "sankalpa"' at the time of marriage. In Abhesang Tirabhai v.

Raisang(' ), it was held that gifts by a Hindu widow on the occasion of her daughter's marriage are valid as they are understood in Hindu law to conduce to the spiritual benefit of the widow's husband.

In Ramalinga Annavi v. Narayana Annavi( 2 ), a father made a gift to his daughter of a sum of Rs. 5,000 and a usufructuary mortgage.

It was held that the father had undoubtedly the power under the Hindu law of making within reasonable limits gifts of immoveable property to a daughter ; similarly, gifts of sums of money, if reasonable, would be upheld.

As against the very large number of decisions referred to above, the only decision which can be said to strike a dissenticnt note is the decision in Ganga Bisheslwr v. Firth; Pal('). That was a case in which one Debi Prasad executed a deed of gift of a certain share in a certain village, being the ancestral property of his family, in favour of the defendant Ganga Bisheshar, the father-in-law of his daughter, on April 25, 1872, abont two years after the marriage of the daughter.

Mr. Justice Spankie observed as follows : "I understand the finding of both the lower Conrts to be that the transfer was not made for any necessary purpose allowed by the Hindu law.

The deed of gift appears to have been made by tbc father in performance of a promise to give a dowry to his daughter.

But I am not aware that the performance of such a promise can be regarded as a bwful purpose justifying alienation

r1; (1012) IJ Bon1. L.H .. , u~J'l, (:1) (1380) I.L.R. 2 ;\ll. fi:Jj,638.

(2) .\ I.R '9" P.C. 201.

)'--_,

under the Hindu law.

It was not necessary for the support of the daughter, it was not for any religious or pious work, nor was it a pressing necessity. Daughters must be maintained until their marriage and the expenses of their marriage must be paid.

But in this case the gift was not made at the time of the marriage.

It was not executed until two years after the marriage." There is 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 fulfilment of which it was competent for the father to execute a deed of gift in favour of the daughter of a reasonable portion of the estate.

On an examination of the decisions referred to above, the following principles clearly emerge: (1) It is the imperative religious duty and a moral obligation of a father, mother or other guardian to give a girl in marriage to a suitable husband ; it is a duty which must be fulfilled to prevent degradation, and direct spiritual benefit is conferred upon the father by such a marriage.

(2) A Hindu widow in possession of the estate of her deceased husband can make an alienation for religious acts which are not essential or obligatory but are still pious observances which conduce to the bliss of the deceased husband's soul.

(3) In the .case of essential or obligatory acts, if the income of the property or the property itself is not sufficient to cover the expenses, she is entitled to sell the whole Qf it; but for acts which are .. pious and which conduce to the bliss of the deceased husband's soul, she can alienate a reasonable portion of the property. ( 4) Gifts by a widow of landed property to her daughter or son-in-law on the rn;:casion of the marriage or any ceremonies connected with the marriage, are well recognised in Hindu law. (5) If a promise is made of such a gift for or at the time of the marriage, that promise may be fullilled afterwards and it is not essential to make a gift at the time of the marriage but it may be made afterwards in fulfilment of the promise. (6) Some decisions

Kamala Devi v.

Bachu I.al Gupta

S. K. Das].

Kamala Devi v.

Bachu Lal Gupta

S. K. Da> ].

go to the length of holding that there is a moral or religious obligation of gi1ing a portion of the joint family property for the benefit of the daug:1ter and the son-in-hw, and a gift made long after the marriage mav be supported upon the ground that the gift when made fulfils that moral or religious obligation.

In the case before us, It is not even necessary to go to the extent to which the decisions covered . by the bst item stated above (item o) have gone. The finding of the foul Court of fact is that there was an antenuptial agreement by Sumitra Devi that she would give four houses at Asansol, of the value of Rs. 20,000, to her daughter as n1arriage dowry.

It ras open to Sumitrc, Devi to fulfit tlnt promise as a religious act which conferred spiritml benefit uron her deceased husband, irrespective of the consideration whether she made a "sankalpa" at the time of the marriage or not. \Ve have already stated that we concur in the finding of the Courts below that the gift was neither disproportionate nor unreasonable in extent.

T~1e learned Judges of the High Court referred to s. 123 of the Transfer of Property Act which lays down that for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

In one part of their judgment, they said that but for the aforesaid provisions it miht have been possible to consider the gift as having been made on the occasion of the marriage, the implementation of which was subsequent.

In our opinion, the learned fudges of the High Court were in error with regard to the scope and effect of s. 123 of the Transfer of Property Act. It is true that a gift becomes le:ally effective onlv when a registered instrument is executed in the manner laid down in that section.

Sction 123 doe not deal with nor does it affect the power of a Hindu widow to make an alienation of a reasonable portion of her husband's estate in favour of the daughter as marriage dowry. That right is governed by Hindu law and it is open to a widow to make an effective gift in favour of her daughter

S.C.R.

SUP3.EM:t, COURT REPORTS 477

rnbscquent to th,. marriage, if the conditions laid down by Hindu law are fulfilled.

For the reasons given above, we hold that the alienation made by Mst. Sumitra Devi in favour of her daughter Kamala Devi on March 10, 1940, was valid and binding on the reversioners.

The decision of the High Court to the contrary was erroneous in law.

We now turn to the Hindu Succession Act, 1956, which came into force on June 17, 1956.

Section 14, on which learned counsel for the appellants has relied, is in these terms :

"(1) Any property possessed by a female Hit1du, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this sub-section, 'property' includes both moveable and immoveable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

There is no doubt that by reason of the use 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 immoveable 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

Kamala Devi

Backu Lal Gupt.1

S. K. Das].

KamtJla Devi v.

Ba;; hu Lal Gupta

S. K. Das J.

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 cannct therefore get the declaration which they have asked for.

Alternativelv, he has contended that if Sumitra Devi is still i1; possession of the houses, she also becomes a full owner and in that event also the jJbintiffs-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. ( l) has no appli.cation to the estate.

It is further argued that Kamala Devi as donee could not get a larger estate 1 ban 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 sub-s. ( l) of s. 14.

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 alreadv held that under Hindu law Mst. Sumitra Devi could make a gift in favour of her <laughter as marriage dowry, two years after the marriage, in fulfilment of the ante-nuptial promise made by her and that such a gift is binding on the revcrsioncrs.

That being the position, it is unnecessary to decide in thi:; case the trne scope and effect of s. 14 of the Hindu Succession Act, 1956.

For the reasons given above, we allow t11e appeal and set aside the judgment and decree of the Courts below.

The suit of~ the plaintiffs-respondents must be dismissed and the appellants will be entitled to their costs throughout.

Appeal allowed.

GIPN-S5-77 S. C Tnd..ia/59-17-6-6'.?-1.000.

Bombay High Court

KAMALA DEVI

BACHO LAL GUPTA

S. R. DAs

BHAGWATI

Trnnsfer of Property Act

s. 123

Hindu Succession Act, 1956

s. 14

Transfer of Property Act

Bathu Lal G.pta

Transfer of Property Act

Hindu Succession Act, 1956

s. 14

Hindu Succession Act, 1956

(1912) L. R. 39 I. A. 121

s. 123

Transfer of Property Act

Hindu Succession Act, 1956

Kamala D1

Bachu Lal Gupta

s. 14

Ramanugrah Prasad

Ramanugrah Prasad and Mohan Beharilal, for the appellants.

Mohan Beharilal

H. /. Umrigar

H. /. Umrigar and S. P. Varma, for respondents Nos.

S. P. Varma

High Court of Calcutta

Ram Kishori Lal Sao

Asansol

Bengal

Kalicharan

Sumitra Devi

Ram Kishori Lal

Kamala Devi

1) and Kamala Devi, daughter of the late Ram Kishori Lal (defendant No.

March 10, 1940

Sumitra Devi

Kamala Devi

Ram Kishori Lal

The following genealogical table shows the relation inter se between the parties :

Ram Kishori Lal l

4th wife

I l  I

Bachu Lal Heman Lal

I 3rd wife

J  _

K lichaJan (Pl ff.

Rabandhu

Howrah

Lachmi Narain

Kamala

Subordinate Judge of Asansol

664 of 1927 in the Court of the Subordinate Judge of Asansol.

July 22, 1933

June 29, 1936

January 1, 1936

Lachmi Narain, it should be noted, died on January 1, 1936.

Asansol Municipality

16, 17, 26 and 27 of Circle 4 of the Asansol Municipality.

Ba&hu Lal Gupta

S.K. Das

S. K. Das

Kamala Devi

Bijoy Kumar Sao

Nand Lal Sao

Deoghar

May 10, 1938

10th March, 1940

Basing

Bachu Lal Gupta

S. K. Das

Badw Lal Gupta

S. Ir. Das

s. 123

Transfer of Property Act

Patna

Churaman Sahu

Transfer of Property Act

(1912) L.R. 39 I.A. 121

Bachu Lal Gupta

K. Das

Nand Lal

section 14

Hindu Succession Act, 1956

Hindu Succession Act, 1956

June 17, 1956

s. 14

Hindu Succession Act, 1956

Bijoy

Kamal

Nand Lal

Parasuram

Rash Behary

Parasuram Sharma

Pashupati Sarkar

Pashupathi Sarkar

S. K. Dat

Ganapati Sastri

Parasuram Shanna

Pashupati

Surnitra Devi

Rai Saheb Jogendra Nath Roy

Rai Saheb Jogendra Nath Roy

Parasuram Sharma

Pashupati Sarkar

Kamal Narayan Pandey

Kamala Dai

S. A. Das

Aamala Devi

13!Uhu I at G"pta

Nancl Lal

Rai Sahib Jogendra Nath Roy

Rai Saheb )ogendra Nath Roy

The evidence of Rai Saheb )ogendra Nath Roy.

Hindu Succession Act, 1956

Allahabad High Court

Debi Mangal Prasad

S. K. Das

Kamala Devi

B.xhu Lal Gupla

S. K. Das].

Sumitra Devi

Suinitra Devi

Sumitra. Devi

behalf of -the appellants, namely, whether Sumitra.

Kamala : Devi

Succession Act, 1956

Hindu Succession Act, 1956

s. 14

Hindu Sucession Act, 1956

Supreme Court at Calcutta

Gifford

(1922) L.R. 49 I.A. 383

Kamala Der

Kamala Der;

v. 8acku Lal G., •s

S. K. D1JJJ.

8acku Lal G.

S. K. D1JJJ

Kamala Devi

Kamala Devi

Baclw Lal Gupta

S. K. Das :J.

before she attains puberty.

Baclw Lal Gupta

Manu

Yajnavalkya

Vijnaneswara

Subramania Ayyar

Vijnaneswara

Thaiyyu Ammal

S. 1

S. 1

Miller

Wallis

Churaman Sa!ut

Badia Lal Gupta

S. K. DasJ.

28th July, 1901

Gantha Pakrai

fustice Venkataramana

Rao

S. K. Das

Kamala Devi

Bachu Lal Gupta

S. K. Das].

Raj Kuer

Debi Prasad

Ganga Bisheshar

April 25, 1872

Spankie

Kamala Devi v.

Bachu Lal Gupta

S. K. Da> ].

Sumitrc, Devi

s. 123

Transfer of Property Act

s. 123

Transfer of Property Act

now turn to the Hindu Succession Act, 1956

Section 14

We now turn to the Hindu Succession Act, 1956

We now turn to the Hindu Succession Act, 1956

Backu Lal Gupt.1

He has contended

Kamala Devi

Backu Lal Gupt.1

S. K. Das].

s. 14

s. 14

s. 14

s. 14

Hindu Succession Act, 1956

s. 14

Hindu Succession Act, 1956