Gift by the entire co-parcenors void ab initio.

This appeal arises in a suit for partition by a Hindu-widow under the Hindu Women’s Right to Property Act (XVIII of 1937). One Kunchithapatham Pillai, died on 27th February, 1947, possessed of movable and immovable properties including agricultural lands leaving behind him two sons by the deceased first wife, defendants 1 and 2, who are the appellants and a second wife, the plaintiff, who is the sole respondent in this Appeal. The suit was one laid for partition and recovery of separate possession of 1/3 share in the properties of Kunchithapatham Pillai. The properties consisted of agricultural lands and houses as also movables including the amount due under two insurance policies taken out by the deceased.

[His Lordship after discussing the evidence continued.]

On an examination of the evidence in this case and the circumstances together with the conduct of the parties both before and after this transaction, we have no reason to disagree with the conclusion of the learned Subordinate Judge that Exhibit B-27 (Gift deed) was a nominal transaction brought into existence at the instance of Ratnathachi but the properties were treated as joint family properties.

An alternative contention was urged in the lower Court and before us that in any event Ex. B-27 being only a gift of joint family property would not be valid in law. The power of a Hindu father or other managing member to make a gift is limited. It must be within reasonable limits if it is to be of ancestral property and must be a gift inter vivos. The purposes for which such a gift are permitted are those that are warranted by the special texts. It is stated in Mayne’s “Hindu Law,” 11th Edition, at page 452, that

“Apparently at one time, the father’s power over ancestral movable property was larger than his power over ancestral immovable property. But by the time of Vijnaneswara, it is evident that the distinction has practically disappeared. For, Vijnaneswara himself does not claim for the father an absolute power of disposing of movables at his own pleasure, but only an ‘independent power in the disposal of them for indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection to the support of the family, relief from distress and so forth’”.

There does not seem to be really any distinction as between movables and immovables in so tar as the father’s power to make a gift is concerned. The gifts could be only through affection within reasonable limits. Gifts to brides on occasion of marriage as also gift by the father to his daughter on the occasion of the marriage of a small portion of ancestral immovable property have been held to be valid Whatever the father is permitted in discharge of his indispensable duties in satisfaction of his moral obligation cast upon him by the texts must be within reasonable limits and must be a small portion of the family property. Therefore, there can be no indiscriminate gifting away of joint family property by a father and the question is whether such a gift is void or only voidable at the instance of a coparcener.

In Baba v. Timma1,a Full Bench of this Court examined the relevant texts relating to the power of a father over ancestral immovable property and held that except for purposes warranted by special texts, a Hindu father, while unseparated from his sons, has no power to alienate to a stranger his undivided share in the ancestral, movable and immovable property. Collins, C.J. and Muttuswami Ayyar, J., in Ramanna v. Venkata2, were considering the question as to the validity of a gift made by a Hindu of a certain land which he had purchased with the income of ancestral property in a suit brought to recover the land on behalf of Jus minor son, who was born seven months after the gift. It was held in that case that the gift was invalid as against the plaintiff (the son) and that he was entitled to recover the land from the donee as the property was ancestral property In that case