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1930 Supreme(SC) 65
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
PRESENT AT HEARING: VISCOUNT DUNEDIN, SIR JOHN WALLIS, SIR LANCELOT SANDERSON, SIR GEORGE LOWNDES, AND SIR BINOD MITTER, WHO DIED BEFORE THE JUDGMENT WAS DELIVERED—NAMELY, ON JULY 20, 1930.
JAGMOHAN SINGH - Appellant
Versus
SRI NATH (DEFENDANTS) - Respondents
On appeal from the Chief Court of Oudh.
Decided On : July. 22. 1930.
Solicitors for appellants:Watkins & Hunter. Solicitor for respondents: H. S. L. Polak.
Under Hindu law, a gift of immovable property from a husband to a wife confers the power of alienation if the terms of the deed, construed as a whole, grant absolute ownership, regardless of whether express power of alienation is mentioned.
Headnote:(A) Hindu Law - Gift of immovable property by husband to wife - Power of alienation - Where the donor does not confer express power of alienation, such power may be deduced from the terms of the gift if the words used are sufficient to confer absolute ownership, unless the circumstances or context show that such absolute ownership was not intended.
(B) Construction of Gift Deeds - There is no magic in the use of any particular word or form of words; the document must be construed as a whole, and its fair import deduced in the ordinary way. If the gift confers the estate out and out with no reservation, the right of alienation is included as an incident of ownership, whether the gift is to a female or a male.
(C) Interpretation of "generation after generation" - Such phrasing has acquired a technical meaning conveying a heritable and alienable estate.
Facts of the case:
A husband gifted immovable property to his wife. Following the husband's death, the wife transferred a portion of the property via a sale deed. The reversionary heirs sued for possession, arguing that the gift did not grant the wife the power to alienate the property.
Findings of Court:
The deed of gift, read as a whole, conferred an absolute estate upon the wife. The donor transferred all rights in the property and specified that the wife should remain in possession and enjoyment "generation after generation," which indicates a heritable and alienable estate.
Issues: Whether the terms of a deed of gift executed by a husband in favor of his wife conferred upon her the power to alienate the gifted immovable property.
Ratio Decidendi: Under Hindu law, a woman taking immovable property by gift from her husband has the power to alienate it if the terms of the gift confer absolute ownership. The court must construe the document as a whole to determine the donor's intent; if the estate is conferred without reservation, the right of alienation is included.
Result: Appeal dismissed with costs.
Appeal (No. 124 of 1928) from a decree of the Chief Court of Oudh (December 13, 1927) affirming a decree of the Subordinate Judge of Fyzabad (January 29, 1926).
The appellants, as reversionary heirs of Gaind Singh, who died in 1880, sued for possession of immovable property in Oudh which had been sold by Gaind Singhs widow Agind Kuar in 1881 and had passed to the respondents. The sole question arising was whether a deed of gift executed by Gaind Singh in favour of Agind Kuar in 1877 conferred upon her a power to alienate the property.
The terms of the deed are fully set out in the judgment of the Judicial Committee.
The Chief Court of Oudh, affirming a decree of the Subordinate Judge, dismissed the suit, holding that the deed conferred a power to alienate the property.
1930. June 26. De Gruyther K.C. and Jopling for the appellants. The deed of gift should be construed according to the ordinary notions of Hindus in relation to property Under HINDU LAW a gift by a husband to his wife of immovable property confers on her only the right to enjoy possession of it and not a power to sell or make gift of it, in the absence of an express power of alienation Maynes HINDU LAW , para. 664. No power to alienate was given expressly, although it was in deeds of gift which Gaind Singh executed in favour of his daughters earlier. The Board no doubt has held that a power to alienate can be inferred if the words of gift are of sufficient amplitude Surajmani v. Rabi Nath Ojha (( 1907) L. R. 35 I. A. 17.) (which was explained in Ramachandra Rao v. Ramachandra Rao (( 1923)
L. R. 49 I. A. 129,135.)) ; Fateh Chand v. Rup Chand (( 1916) L. R. 43 I. A. 183.); Bhaidas Shivdas
v. Bai Gulab (( 1921) L. R. 49 I. A. 1.) ; Sasiman Chowdhurain v. 8Mb Narayan Chowdhury. (( 1921)L. R. 49 I.A.25.) But in all the cases in which it has been so held the words used were "maliq" or “maliq-o-qabiz," or "maliq with full proprietary powers."
[SIR GEORGE LOWNDES. In the judgment in Shalig Ram v. Charanjit Lal (1) just delivered the word used was merely "waris" (heir).]
It is conceded that the deed gave the widow a heritable estate, but it does not appear that she was to have any right to alienate. Maynes HINDU LAW , 7th ed., para. 397, states " Gifts by a husband to his wife of immovable property, even though accompanied by express words of inheritance, are not alienable unless distinctly declared to be so."
[SIR JOHN WALLIS. A different view is expressed in the 9th ed., paras. 396, 397.]
Dunne K.C., Dube, and A. P. Sen for the respondents were not called upon.
July 22. The judgment of their Lordships was delivered by
SIR GEORGE LOWNDES. In this appeal the Board have again to consider a question which has been discussed under different guises in a number of cases within the last few years —namely, whether, under HINDU LAW , a woman taking immovable property by gift from her husband has power to alienate it.
The most recent decision on the subject is in Shalig Earn v. Charanjit Lal (( 1930) supra, p. 282.), which cited and followed the judgment of Lord Buckmaster in Bhaidas Shivdas v. Bai Gulab . (L. R. 49
I. A. 1.) Reference was also made to Ramachandra Rao v. Ramachandra Rao (L. R. 49 I. A. 129, 135.), in which Lord Buckmaster made certain remarks explanatory of the decision in Surajmani v.
Rabi Nath Ojha (L. R. 35 I. A. 17.), another case in which a widows power of alienation had been called in question, but their Lordships have no doubt that these remarks were not intended to qualify in any way the pronouncement in Bhaidas Shivdas v. Pai Gulab. There is also an exhaustive judgment of Sir John Edge in Sasiman Chowdhurain v. Shib Narayan Chowdhury (L. R. 49 I . A. 25.), to which Lord Buckmaster was a party and which was heard a few days only after Bhaidas Shivdas case.
Under these circumstances their Lordships feel that the doctrine upon which the decision of the present appeal depends is so well established that no further discussion of the autho
