Decided on July 01,1946


Referred Judgements :-



Dixit, J. - (1.)THIS second appeal raises an interesting question of Hindu law, and the facts giving rise to the suit out of which the appeal arises are these.
(2.)BHIMAPPA and Ramchandrappa, two brothers, were members of a joint Hindu family. The family owned considerable property. When BHIMAPPA died, his son Takappa (plaintiff) was but a child. Ramchandrappa died in 1932 leaving Yellappa (defendant No.1 ). In 1921, there was a partition between Ramchandrappa and the minor plaintiff with his mother as guardian when the suit property was kept joint. In the partition the eastern half of the property was specified as of the plaintiff's share. Prior to this, on July 18, 1919, during the minority of the plaintiff, Ramchandrappa executed in fervor of one Jinasena Bhattaraka of Kolhapur a deed of gift of the property mentioned in paragraph 1 (6) of the plaint. On October 21, 1940, defendant No.1's natural father sold the property to Lilawati-bai (defendant No.2 ).
On December 9, 1940, plaintiff Takappa commenced the present suit against thew defendants sacking to recover possession of his share by partition in the landsmentioned in paragraph 1 (a) of the plaint and for separate possession of the property mentioned in paragraph 1 (b), alleging that the gift in favour of Jinasena Bhattaraka was invalid and that the alienation in favour of defendant No.2 by defendant No.1 was not binding upon his share. The defendants contended that the gift was valid. There were other defenses to the suit, but they are not material for the purpose of this appeal The learned trial Judge held that the gift in question was invalid and accordingly he made an order declaring that the plaintiff was entitled to a half share in each of the properties described in paragraph 1 of the plaint. Upon this declaration he made consequential orders which it is not necessary to mention in this place. On appeal by defendant No, 2 the learned First Class Subordinate Judge with appellate powers confirmed the trial Court's decree, holding that the gift deed was not valid in law. Defendant No.2 appeals.

Now, the gift deed recites that the property had been gifted "for the meritorious action as the Swami had decided to build a Jain Boarding House at Dharwar for the convenience of the study of Digamber Jain Students. " The document went on to say that the Swami was to use it "for (the) work desired by him". So the object of the gift was to build a Jain Boarding House in order to help the cause of education of Digamber Jain Students. It is common ground that the Swami never made vahiwat of it personally and made no use of it also. It is argued for defendant No.2 that the lower Courts were wrong in holding that the gift was invalid. It is pointed out that the property covered by the gift deed represents half anna out of a rupee being the value of the whole of the property, and it is contended that as it is only a small portion of the family property, Ramchandrappa was competent to make a gift and it would be binding upon the plaintiff.

(3.)IN the present case the gift was by a managing member, and the question is whether the gift comes within the expression "for pious purposes. " IN Mulla's Principles of Hindu Law, 10th ed. , p. 250, Section 226, the statement of the law is as follows : A Hindu father or other managing member has power to make a gift within reasonable limits of ancestral immovable property for 'pious purposes'. But the alienation must be by an act inter vivos, and not by will. . . . Even a single individual may conclude a donation, mortgage, or sale of immovable property, during a season of distress, for the sake of the family, and especially for pious purposes : Mitakshara, Ch. I, Section I, vv. 28-29.
Similarly in Mayne on Hindu Law and Usage, 10th ed. , p. 482, Section 369, the law is stated as follows : The third ground upon which the authority of the managing member, whether a father or other coparcener, to make an alienation of family property rests, is where indispensable duties such as the obsequies of the father and the like require it. The Mitakshara indeed confines it to cases where indispensable duties make the alienation unavoidable. The phrase 'and the like' in the Mitakshara I, i, 29 refers to annual sraddhas, the ceremony of upanayanam, the marriage of coparceners and of girls born in the family and all other religious ceremonies. Alienations for the purpose of meeting the expenses of or discharging the debts contracted for these ceremonies would be justified on the ground of family necessity. In addition, it has been held that gifts for pious purposes are, within reasonable limits, valid when made by the father or other manager. The head of the family, it has been held, is competent to alienate a small portion of the joint property, by way of provision for a permanent shrine for a family idol, or to an idol in a public temple.


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