Decided on November 23,1955



- (1.)This Second Appeal arises out of O. S. No. 52 of 1947, a suit filed by the respondent for establishing her title to the plaint schedule property and for recovery of possession.
(2.)The facts are simple and may be stated. One Bapanamma had been in possession and enjoyment of the plaint schedule property. She died in the year 1936. On 11-12-1929, she executed a gift deed giving the said property to the plaintiff, who is the wife of Bapanamma's brother. In the document it is stated that the said property was gifted to the donor by her parental family, that she was in possession and enjoyment of the said property and that she was conveying the same to the plaintiff with absolute rights. It was attested by a nephew of the defendant, and subsequent to the gift, the item was entered in the revenue accounts in the name of the donee. The donee was put in possession under the gift deed and she continued to enjoy the property in her own right, paying the cist. The defendant, who is the vendee from the step-son of the plaintiff, claiming to have acquired the said property under a sale deed trespassed upon the land. The suit was filed for the aforesaid reliefs. Both the courts found that Bapanamma had an absolute interest in the suit item, and therefore she had the right to make an absolute gift of the same to the plaintiff. The defendant preferred the above appeal. Mr. Ramachandra Reddi broadly contends that in the case of a gift of property to a female member of the family, the presumption is that only the life interest in the said item was granted. He further argues that having regard to the circumstances of the case, it should be held that the gift must have been only of the life estate in the suit item. Reliance is placed-upon the judgment of the Judicial Committee in Mahomed Shumsool v. Shewukram in support of the contention that there is a presumption that in the case of a gift to a female member, the gift is only of the life estate. In that case, the Judicial Committee held on the construction of the document before them that the grant was only of a life estate. At page 14, their Lordships observed :
"In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled, to alienate. Having reference to these considerations together with the whole of the will, all the expressions of which must be taken together without any one being insisted upon to the exclusion of others, their Lordships are of opinion that the two courts in India, who both substantially agree upon this point, "are right in construing the intention of the testator to have been that the widow of his son should not take an absolute estate which she should have power to dispose of absolutely, but that she took an estate subject to her daughter succeeding her in that estate."
It is seen from the aforesaid passage that though the Judicial Committee relied upon the notions prevailing in the Hindu Society at the time the decision was given, they emphasized the fact that the document should be construed having regard to all the recitals found therein. A Division Bench of the Madras High Court consisting of Pandrang Row and K. S. Menon JJ. in Mangamma v. Dorayya, held on the facts before them that the property allotted at the partition to a widowed daughter conveyed to her only a life estate in the property. At page 338, the learned Judges lay down the following proposition:
"The rule itself is based on the general principle that, where the terms of a grant are ambiguous or where there is no grant in writing, it is permissible, in order to find out the intention of the grantor, to look to the surrounding circumstances of the transaction; and the notions and ideas of the grantor would be one of such circumstances to be taken into consideration."
It is not necessary to express our view whether the conclusion arrived at by the learned Judges on the facts is correct or not. But the proposition so stated in unexceptionable. Chandrasekhara Aiyar J. in Nagammal v. Subbalakshmi Ammal5 restated the law on the subject at page 65 as follows :
"According to the law as understood at present, there is no presumption one way or the other, and there is no difference between a gift to a male and a gift to a female. The fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male. But this position is quite different from what a court may, and has to, presume from the surrounding circumstances and probabilities as regards the nature of any property which is allotted to a person for maintenance."

(3.)The same learned Judge as Judge of the Supreme Court in Ram Gopal v. Nand Lal '. stated that the rule of interpretation laid down in Makamtd Shumsool v. Shewukram . has come to be regarded as unsound. The law on the subject has been considered and authoritatively restated by the Supreme Court of India in Natho Lal v. Durga Prasad . at page 561 as follows:
"We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to convey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring an absolute interest. It is true that this was the principle once deduced from the Privy Council decision in Mahamed Shumsool v. Shewuk Ram, wherein it was held that a bequest to a daughter-in-law passed a limited estate. The proposition laid down in Mahamed Shamsool's Case, was construed by the High Courts in India to mean that a gift of immoveable property to a woman could not be deemed to confer upon her an absolute estate of inheritance which she could alienate at her pleasure unless the deed or will give her in express terms a heritable estate or power of alienation. Later decisions of the Judicial Committee made it clear that if words were used conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred by express and additional terms. Shumsool's Case. has been examined in recent years in some High Courts and it has been observed that according to the law as understood at present there is no presumption one way or the other and there is no difference between the case of a male and the case of a female, and the fact that the donee is a woman does not make the gift any the less absolute where the words would de sufficient to convey an absolute estate to a male."
It is therefore manifest that in construing gifts there is no distinction in the mode of construction between a gift to a male and a gift to a female. There is no presumption in the cases of gifts to females that the gift is only of a life estate. If the terms of the document are clear and unambiguous, the recitals therein shall be construed irrespective of the sex of the grantee. If the recitals of the document are ambiguous, courts will rely upon the surrounding circumstances to ascertain the intention of the donor. Having regard to the aforesaid principles, we shall proceed to consider the interests acquired by Bapanamma, which she subsequently conveyed to the plaintiff. There is no document disclosing how Bapanamma acquired the property. But she was admittedly in enjoyment of the suit item till a few years before she died and it is in evidence that she lived up to a very old age, In 1929, when she executed Exhibit A-1, the gift deed in favour of the plaintiff, she in clear terms mentioned that she got the property from her parental family absolutely and that she was in possession from the date of the gift to her. There are no other circumstances of the case to show that the gift was not absolute or was subject to any conditions. In the circumstances, as there is no presumption one way or the other, we have no hesitation to agree with the courts below that the gift made to Bapanamma by the members of her parental family was absolute and she had the right to gift the same to the plaintiff. The finding of the courts below is correct. The appeal fails and is dismissed with costs. Appeal dismissed.

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