judgement:
Civil Appeal No. 44 of 1950.
Appeal from a judgment and decree of the High Court of Bombay (Sen and Dixit JJ.) dated 21st February, 1947, in First Appeal No. 64 of 1943.
C.K. Daphtary, Solicitor General (section B. Jutbar, with him) for the appellant.
N.C. Chatterjee (N. K. Gamadia, with him) for the respondents.
October 5.
The Judgment of Kania CJ.
, Das and Bose JJ. was read by Das J. Patanjali Sastri and Chandrasekhara Aiyar JJ.
delivered separate Judgments.
45 DAS J.
This is an appeal from the judgment of a Bench of the Bombay High Court (Sen and Dixit JJ.) delivered on February 2, 1947, in an appeal filed under section 18 of the Bombay City Land Revenue Act 11 of 1876 against the judgment of the Revenue Judge at Bombay delivered on October 27, 1942, in a suit filed by the respondents, the Municipal Corporation of the City of Bombay, and Madusudan Damodar Bhat, the then Municipal Commissioner for the City of Bom bay, against the Collector of Bombay.
There is no substantial dispute as to the facts leading up to this litigation and they may be shortly stated.
In 1865, the Government of Bombay, having decided to construct an Eastern Boulevard, called upon the Corporation of Jus tices of the Peace for the City of Bombay, the predecessor in title of the respondent Corporation, to remove its then existing fish and vegetable markets from the site required for the construction of the Boulevard.
The then Municipal Commissioner Mr. Arthur Crawford, after whom the present municipal market was named, applied for the site set aside for the exhibition buildings on the Esplanades for the pur pose of constructing new markets as the existing markets could not be removed until new markets had been provided.
On December 5, 1865, the Architectural Improvement Committee informed the Government that it had no objection to the proposed she measuring about 7 acres being "rented to the Municipal Commissioner" and suggested that "the annual charge of one pie per square yard be levied in consideration of the expense of filling in the ground.
" Computed at this rate, the annual rental would have amounted to about Rs. 176.
On December 19, 1865, the Government passed the fol lowing resolution : "(1) Government approve of the site and authorise its grant.
(2) The plans should be submitted for approval; but Government do not consider any rent should be charged to the Municipality as the markets will be, like other public buildings, for the benefit of the whole community.
" 46 Pursuant to the aforesaid Resolution, possession of the site was made over to the then Municipal Commis sioner, but no formal grant was executed as required by Statute 22 & 23 Vic. C. 41.
It has nowhere been contended that even if the statutory formalities had been complied with the grant upon the terms mentioned in the Resolution would nevertheless have been invalid being in excess of the powers of the Government.
The Municipal Com missioner had the site filled up and leveled at the expense of the Corporation.
The plans were approved by the Govern ment and the market buildings were erected by the Corpora tion at considerable expense.
The respondent Corporation was incorporated in 1888 as the successor of the Corporation of the Justices of the Peace for the City of Bombay and it continued in possession of the land and the buildings with out paying any rent to the Government according to the Government Resolution of 1865.
Indeed, it is pleaded in paragraph 7 of the plaint and it is not denied in the writ ten statement that acting upon the said grant contained in the Resolution and the terms contained therein the respond ent Corporation and its predecessor spent considerable sums of money in building and improving the market and have been in possession of the land and the buildings thereon for over 70 years in accordance with the terms of the Resolution and that no land revenue or rent had been paid to the Government ever since the grant was made.
It is in evidence that besides giving up the sites on which the old markets had been situate, a total sum of Rs. 17,65,980 12 1 has been spent by the Corporation up to March 31,1940, in filling up and leveling the site and erecting and maintaining the new market buildings on this site.
In 1911, a portion of the market site was acquired by the Government for the widening of the Palton Road.
Upon the Collector of Bombay being called upon to put in ,his claim, if any, to any part of the compensation money awarded by the Land Acquisition Officer, the Superintendent,, City Survey, on behalf of the Collec tor, replied that Government had no claim in respect of the said land.
The respondent 47 Corporation, therefore, received the whole of the compen sation money and it continued in possession of the rest of the land and the buildings thereon without payment of any rent.
On March 18, 1938, the appellant Collector of Bombay informed the respondent Municipal Commissioner that it was proposed to assess the land occupied by the Crawford Market under section 8 of the Bombay City Land Revenue Act II of 1876 and asked for certain information to enable him to do so.
In his reply, the Municipal Commissioner wrote to say that the site of the market had been given to the Municipal ity as a gift for the construction of the market and that, therefore the question of assessment did not arise.
The appellant Collector of Bombay having insisted that in spite of the Government Resolution of 1865 the Government had the right to assess the site, the Mayor of Bombay on March 23, 1939, wrote a letter to the Government stating, inter alia, as follows : "The Corporation have been advised that there can be no doubt that it was the intention of Government to make a permanent grant of the land to the Municipality, and, fur ther, that it was also the intention that permanent grant should be free from rent and from assessment to land revenue.
I am to point out that the word 'rent ' was used in official documents with the greatest frequency with refer ence to the land revenue leviable by the East India Company and later by Government in the City of Bombay and in the Presidency.
It is, therefore, clear that it was the inten tion of Government in 1865 that this grant should be free from any form of rent or assessment.
The Corporation were put into possession for a period of over 70 years, during which period the land has without interruption been devoted to the purpose for which the grant was made.
Throughout this long period there has been no suggestion from Govern ment that the grant was other than a permanent one, free of revenue, or that the terms of the grant were in any way subject to revision," 48 The above contentions were repudiated by the Govern ment in its letter of January 1, 1940, in the following terms: " As regards the contention that the land has been held by the Municipality uninterruptedly for over 70 years with out any suggestion from Government that it was liable to assessment, I am to state the right to levy the assessment is the prerogative of the Crown and a mere non user of this prerogative cannot destroy it.
Besides, conditions have considerably altered since the land was originally allotted to the Municipality without charging any ground rent or assessment; the Municipality has been recovering substantial rents by letting out stalls in the market and should now be in a position to pay the assessment.
Under the circum stances, the levy of assessment in this case can no longer be foregone or postponed.
" On January 31, 1940, the appellant Collector assessed the land under section 8 of the Bombay Act II of 1876 with a guarantee of 50 years as under : "Assessment Rs. 7,500 per annum for the first 10 years from 1st April, 1940.
Assessment Rs. 15,000 per annum for the next 10 years.
Assessment Rs. 30,000 per annum for the remaining 30 years.
" The assessment was to begin to run from I st April, 1940, and the first payment of the assessment was to become due on 1st April, 1941.
The present suit was thereupon filed in the Court of the Revenue Judge in accordance with the provisions of the Bombay City Land Revenue Act, 1876, for the following reliefs, inter alia : "(a) that it may be declared that there is a right on the part of the plaintiff Corporation in limitation of the right of Government to assess the said land and that the plaintiff Corporation is entitled to hold the said land for ever without payment of any assessment and that the Govern ment has no right to assess the said premises, 49 (b) That the said assessment may be declared ultra vires, invalid and may be ordered to be set aside.
" By his judgment dated October 27, 1942, the learned Revenue Judge dismissed the suit with costs.
The Corporation appealed to the High Court.
Before the High Court, as before us, two of the learned Revenue Judge 's conclusions were not challenged namely, (1) that the Government Resolu tion of 1865 was bad in law either as a grant or even as a contract and could not by itself operate to give any inter est in the land to the respondent Corporation because of the non compliance with the formalities required to be observed by Statute 22 & 23 Vic. C. 41 in the matter of disposition of all real and personal estate vested in the Crown under Statute 21 & 22 Vic. C. 106, and (2) that the Crown 's right to levy assessment on property was a prerogative right to which the ordinary presumption that rights to property which had not been asserted or exercised for a long period of years had been granted away did not apply What was urged before and accepted by the High Court was that the right of the Government to levy any assessment on the land in ques tion had been lost and could not be asserted or exercised by the Government by reason of the equity arising on the facts and circumstances of the case in favour of the respondent Corporation on the principle established by the decision in Ramsden vs Dyson(1) which was adopted by Jenkins C.J. in The Municipal Corporation of the City of Bombay vs The Secretary of State(2) and which equity was, on the authorities, bind ing on the Crown.
After dealing with the cases of Dadoba Janardhan vs The Collector of Bombay(3) and Jethabhoy Rut tonsey vs The Collector of Bombay(4) the High Court observed : "We think, on a reading of the language of the Govern ment Resolution dated the 19th December, 1865, that we should be justified in holding (within the meaning of the rule in Ramsden vs Dyson) that an expectation was created or encouraged by the landlord that the Municipality was to get possession of the land rent free and that the latter took possession of the land with the consent of the landlord, and upon such expectation, with the knowledge of the landlord and without objection by him, laid out money upon the land."
According to the High Court the rule of equity enunciated in Ramsden vs Dyson (supra) was not, as pointed out by Jenkins C.J. in Municipal Corporation of the City of Bombay vs The Secretary of State (supra), dependent on the validity of the disposition and could be asserted even where the statutory formalities relating to the disposition of the property had not been observed and performed, and that this equity constituted a right on the part of the respondent Corporation in limitation of the right of the Government in consequence of a specific limit to assessment having been established and preserved within the meaning of section 8 of the Act II of 1876 so as to disentitle the Government from assessing the land in question.
The High Court relied on the decision in Kamalavahooji Maharaj vs The Collector of Bombay(1) in support of their view that section 8 of the Bombay Act II of 1876 would apply even where the specific limit was nil.
In the result, the High Court reversed the decision of the learned Revenue Judge, allowed the appeal and passed a decree declaring the rights of the respondent Corporation and awarding to it the costs in both Courts.
The Collector of Bombay appealed to the Federal Court and the appeal has now come up for hearing before us.
There has been considerable discussion before us as to the precise scope and effect of the principle of equity enunciated in Ramsden vs Dyson (supra), as to whether such principle should be extended to the facts of the present case, whether the facts 'of this case attract the applica tion of the equity established in Ramsden vs Dyson (supra)or attract the equity established in Maddison vs Alderson (2) and Walsh vs Lonsdale(3) and finally as to whether, in view of the decision (1) (3) (2) 51 of the Privy Council in Ariff vs Jadunath(1), the equity in Ramsden vs Dyson (supra) can prevail against the requirement of formalities laid down in the Victorian Statute referred to above any more than the equity in Maddison vs Alderson (supra)can do against the requirements of the Transfer of Property Act and whether the decision in The Municipal Corporation of the City of Bombay vs The Secretary of State(2) requires reconsideration in the light of the deci sion in Ariff 's case (supra).
In the view we have taken, it is not necessary to go into, and to express any opinion on, any of these questions, for this appeal can, in our opinion, be disposed of on a narrower and shorter ground.
The Government claims to assess the lands in terms of section 8 of the Bombay Act II of 1876 which runs thus : "8.It shall be the duty of the Collector, subject to the orders of the Provincial Government, to fix and to levy the assessment for land revenue.
Where there is no right on the part of the superior holder in limitation of the right of the Provincial Govern ment to assess, the assessment shall be fixed at the discre tion of the Collector subject to the control of the Provin cial Government.
When there is a right on the part of the superior holder in limitation of the right of the Provincial Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit.
" The sole question for our consideration is whether, on the facts of this case, the respondent Corporation has succeeded in establishing in itself a right in limitation of the right of the Government to assess the land in conse quence of a specific limit to assessment having been estab lished and preserved.
There is no dispute that by reason of the non compliance with the statutory formalities the Gov ernment Resolution of 1865 is not an effectual grant passing title in the land to the respondent Corporation and is not also an enforceable contract.
On the other hand, there is no doubt as to the existence of an intention on the part of the Government to make and on the part of the Corporation to take a grant of the land in terms of the Resolution of 1865 including an undertaking by the Government not to charge any rent.
Both parties acted on the basis of that Resolution and the prede cessor in title of the respondent Corporation went into possession of the land in question pursuant to the Govern ment Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the respondent Corporation and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years.
What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation to the land in question?
They were in possession of the land to which they had no legal title at all.
Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under color of an invalid grant of the land in perpetuity and free from rent for the purpose of a market.
Such pos session not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant.
This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865.
The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose.
There is no question 53 of acquisition by adverse possession of the Government 's prerogative right to levy assessment.
What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been made to it.
The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily consti tute a right in limitation of the Government 's right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of section 8 of the Bombay Act II of 1876.
It is true, as pointed out by the Privy Council in Karnalavahooji Maharaj vs Collector of Bombay (supra) that the words of the section would appear to apply rather to the case of a limitation on the right to assess than to the case of a complete exemption from assessment but such a construction would not protect the cases of total exemption which, as conceded in that very case, did in fact exist and were recognised and protected by virtue of the words of section 8 of the Bombay Act II of 1876.
It has not been suggested before us that there are no cases of total exemption or that those cases are protected by any provision of law other than that of this very section.
There is, therefore, no escape from the conclusion arrived at by the High Court, with which we concur, that the words of section 8 would apply to a case where total exemp tion from assessment was granted.
In other words, specific limit may be nil for the purposes of section 8 of the Act.
It was sought to be argued that even if the Government be precluded from enhancing the "rent" in view of the terms of the Government Resolution, it cannot be held to have disentitled itself from its prerogative right to assess "land revenue".
This contention is sought to be rounded on a distinction between "rent" and" land revenue".
This contention, however, was not raised in the written statement and was not made the subjectmatter of any issue on which the parties went to trial and was never put forward before either of the Courts 54 below.
Indeed, in the letter of the Mayor of Bombay dated March 22, 1939, to which reference has been made, it was clearly alleged that the word "rent" was used in official documents with the greatest frequency with reference to the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency.
" In the Government 's reply dated January 24, 1940, also quoted above this assertion was never repudiated or denied.
In the premises, the appellant cannot be permit ted at this stage to raise this contention rounded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the Government Resolution of 1865 was synonymous with or included" land revenue.
" In our opinion, for reasons stated above, the actual decision of the High Court was correct and this appeal should be dismissed with costs, and we order accordingly.
PATANJALI SASTRI j. I am of opinion that this appeal should be allowed and I will briefly indicate my reasons without recapitulating the facts which have been fully stated in the judgment of my learned brother Das which I have had the advantage of reading.
The appeal concerns a claim by the Provincial Govern ment of Bombay to charge land revenue on a plot of land on which the predecessors of the respondent Municipality erect ed the buildings known as the Crawford Market in the City of Bombay.
It is common ground that the land in question would be assessable to land revenue under section 8 of the Bombay City Land Revenue Act (No. II of 1876) unless the respondent established "a right in limitation of the right of the Provincial Government in consequence of a specific limit to assessment having been established and preserved", in which case, the assessment must not exceed such specific limit.
It has been held, and it is not now disputed, that the words quoted above cover 55 a right of total exemption from assessment, the "specific limit" in such a case being nil (see Goswamini Shri Kamala vahooji vs Collector of Bombay (1).
The only question, therefore, is whether the respondent has established a right to such exemption.
The resolution of the Government dated 19th December, 1865, authorising the grant of the land without "any rent being charged to the Municipality as the market will be like other buildings for the benefit of the whole community" did not by itself purport to pass title to the land in question or to confer on the Municipality a right to exemp tion from land revenue.
Admittedly no formal instrument was executed either granting the land or exempting it from assessment.
Nor could the resolution be regarded as a valid disposition of property or an enforceable contract not to charge revenue on the land, as it did not comply with the requirements of the statute 22& 23 Vic. C. 41 which pre scribed certain formalities to be observed for such transactions.
As pointed out by Jenkins C.J. in Municipal Corpora tion of the City of Bombay vs The Secretary of State (2) all land in British India having been vested in the Crown by 21 & 22 Vic. C. 106, the Governor in Council in Bombay could not dispose of property or enter into a contract on behalf of the Crown except in exercise of the power bestowed on them for the purpose under 22 & 23 Vic. C. 41, and that power could be exercised only by observing the formalities prescribed by that statute.
The learned Judges of the High Court, while recognising this difficulty in the way of the respondent establishing a legal right to exemption from assessment, held that the conduct of the Provincial Govern ment in allowing and, indeed, encouraging the respondent to erect the buildings at great cost on the faith of the prom ise not to charge land revenue contained in the Resolution of 19th December, 1865, precluded the respondent on the equitable principle recognised in Ramsden vs Dyson from assessing the land in question, and that this equity was a "right" in limitation of the right of the Provincial Government to assess.
I am unable to share that view.
There is, in my opin ion, no room here for the application of the principle of Ramsden vs Dyson(1).
That decision has been explained by the Privy Council in Ariff vs Jadunath(2) as based on the equitable doctrine of part performance which, their Lord ships held, could not be applied so as to nullify the ex press provisions of the Transfer of Property Act relating to the creation of leases.
They observed : Whether an English equitable doctrine should, in any case, be applied so as to modify the effect of an Indian statute may well be doubted; but that an English equitable doctrine, affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied, by analogy, to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible."
After quoting the well known passage in the judgment of Lord Kingsdown, their Lordships commented thus : "It will be noticed that Lord Kingsdown is dealing with the case of express verbal contract or something 'which amounts to the same thing. '
He nowhere puts the case of estoppel; the word is not mentioned.
He would appear to be dealing simply with the equitable doctrine of part performance.
His reference to Gregory vs Mighall [(1811) 18 Ves.3281 confirms this view, for that case was simply an earlier instance of the application of the doctrine.
Even if Lord Kingsdown 's language was intended to cover something beyond the equitable doctrine of part performance in relation to the Statute of Frauds, and was intended to refer to circum stances in which a court of equity will enforce a title to land against the person who at law is the owner thereof, the title must, nevertheless, in their Lordships ' view, be based either upon contract express or implied, or upon some statement of fact grounding an estoppel.
In the later decision in Mian Pir Bux vs Sardar Ma horned(1) their Lordships reiterated the same view and held that English equitable doctrines did not afford in India a valid defence to an action in ejectment based on title.
After these decisions of the Privy Council elucidating the principles underlying Ramsden vs Dyson(2) and Maddison vs Alderson(3), it seems to me clear that they have no application to the facts of the present case.
They can no more prevail against the statutory provisions regarding the disposition of property or the making of contracts by Gov ernment than against the provisions of the Transfer of Property Act requiring registered instruments for effecting certain classes of transactions.
No question of estoppel by representation arises, for the Government made no represen tation of fact which it now seeks to deny.
Nor can any case of estoppel by acquiescence be rounded on the facts of the case.
Both parties knew the facts and neither was misled.
There was no lying by and letting another run into a trap [per Cotton L.J. in Russell vs Watts(4)].
The conduct of the parties was referable to the express agreement evidenced by the Government Resolution of 19th December, 1865, to make a grant of the land free of rent (which, in such context, means and includes revenue).
No question, therefore, of any implied contract could arise.
Unfortunately for the respond ent, the express agreement was unenforceable owing to non observance of the prescribed statutory formalities, though it was acted upon by both sides.
No question arises here as to the respondent 's title to the land which apparently has been perfected by lapse of time.
But it is clear that no right of exemption has been established either on the basis of express or implied contract or on the basis of the equitable principles of part performance or estoppel by acquiescence.
It was next contended that, on the analogy of the line of cases holding that a limited interest in land could be acquired by adverse possession for over the statutory peri od, the respondent 's possession of the land in dispute without payment of any quit rent or revenue for over 70 years to the knowledge of the Government perfected its title to hold the land free from liability to pay land revenue.
It is difficult to appreciate the argument so far as the claim to exemption is concerned.
There is no question here of acquisition of a limited interest in land by adverse possession.
The respondent was asserting full ownership and a right of exemption from assessment and the Government agreed with that view as shown by their letter dated 26th June, 1921, to the Land Acquisition Officer for the City of Bombay wherein they stated that "no Government claim in respect of the land under acquisition (a portion of the land here in question) in the above mentioned case is made as the land vests in the Municipality.
" Be it noted that the Government made no claim even to a portion of the compensa tion on the basis of any right of resumption reserved to them, the Resolution of 1865 having made no such reserva tion.
The position then was that throughout the period of adverse possession, the respondent Municipality regarded itself and was regarded by the Government as absolute owner of the land with the additional right of exemption from assessment to land revenue with the result that the Govern ment 's "right to such property" (the subject of adverse possession) was "extinguished" under section 28 of the Limitation Act.
But the right to levy land revenue was no part of the Government 's right to the property.
It is a prerogative right of the Crown which was placed ' on a statu tory basis under the Bombay City Land Revenue Act of 1876, and could be exercised in respect of a land only on the footing that it belonged to another, the "superior holder", for, the claim to levy assessment itself implies a recogni tion of ownership in 59 another.
It is, therefore, difficult to see how adverse possession of the land could entitle the respondent to exemption from assessment of land revenue.
It was said that the Government having intended to grant the land on the terms that it was to be held free of quit rent or revenue and the respondent having held the land on such terms claiming it to be exempt from assessment, a title to hold it on those terms was perfected by the adverse possession, the covenant for exemption from assessment forming part and parcel of the title.
In other words, the respondent should be placed in the same position as if the Government had made a valid revenue free grant.
The argument is, to my mind, fallacious.
If the Government had given effect to their expressed intention by executing an instru ment in writing observing the due formalities, the respond ent would, no doubt, have secured a valid title to the property with a contract binding the Government not to charge revenue, supported as it was by consideration.
But, as already stated, the Government 's promise not to charge land revenue was unenforceable from the inception, and the respondent 's adverse possession of the land, though accompa nied by a claim to exemption from revenue, could not destroy the Crown 's prerogative right to impose assessment on the land.
A somewhat analogous question arose in Goswamini Shri Kamala Vahooji vs Collector of Bombay(1).
The Government admitted that no land revenue had ever been charged in respect of the land which was enjoyed by the holders for more than a century without payment of revenue and it was urged that in virtue of such a long enjoyment a lost grant of the land on the terms that it should be held free from liability to pay revenue must be presumed.
Rejecting that contention, their Lordships observed : "The appellant submits that in the circumstances a lost grant should be presumed, and that this lost grant should be presumed to have contained an exemption from land revenue or a 'right in limitation of the right of Government to assess the property.
The law may presume the existence of a grant which has been lost where it is sought to disturb a person in the enjoyment of right which he and his predecessors have immemorially enjoyed, but it is a different thing to seek to presume that the Crown has by some lost grant deprived 'itself of the prerogative power to tax the property of its subjects, and their Lordships are of opinion that this plea is untenable." (italics mine).
The decision shows that exemption from land revenue does not form part and parcel of the title to land but is collateral to it.
If a presumed lost grant could not cover it neither could title by adverse possession.
I would allow the appeal but make no order as to costs.
I had the advantage of reading the judgment prepared by my learned brother; Mr. Justice Das, and 1 agree in the conclusion he has reached; but i wish to add a few words of my own on some of the points that have been discussed during the course of the hearing.
In the first place, there can be little doubt that the word "rent" in paragraph 2 of the Government Resolution of the 19th December 1865, means "assessment ".
It is true that this word is used generally in cases of landlord and tenant, but when it is remembered that here the Govern ment was parting with the land vested in the Crown in favour of the Municipal Corporation of Bombay, it can safely be assumed or presumed that they were thinking not merely of their rights as landlord but also of their prerogative right as well.
That the land was going to be used for the build ing of markets for the benefit of the whole community and, therefore, should not be charged with rent is a considera tion more relevant and appropriate to the prerogative right to assess than to a right to collect rent in respect of a transaction of lease.
Moreover, it is well known that when ever we speak of 61 a rent free grant of an inam by the Government, what is meant is land revenue or assessment.
The Resolution in question authorized the grant of the site.
There is apparently no grant in writing, conforming to the formalities prescribed by the law then in force.
Part of the site was wanted for the erection of stables and the question of title to that portion was considered and decided in The Municipal Corporation of the City of Bombay vs The Secretary of State for India in Council (1), where the Government gave the Municipality notice to quit and brought a suit for rent on the alleged determination of the tenancy.
It is part of the same transaction with which we are concerned now, and it seems to me that there was no valid grant.
The grant having been authorized, the Corpora tion went into possession and it is not denied that they have built the Crawford Market at enormous cost.
Though the grant was invalid, the Corporation has now acquired a title by adverse possession to the site; this, however, is not the case with reference to the stable site covered by the afore said Bombay decision.
There the question was brought before the Court, well within the 60 years ' period.
The Crawford Market site has been in the possession of the Municipal Corporation for over 60 years under an invalid grant, a term of which was that no rent should be charged.
We are not concerned now with any question of ejectment or determination of tenancy.
Could it be said that the right to levy assessment on the land, enjoyed without any payment of any kind so far, was lost by adverse possession ?
I find it difficult to give an affirmative answer.
Before a right could be said to be acquired or lost by adverse possession, it must have been the subject of possession by a man without title as against the person with the rightful title.
Right to levy assessment is a prerogative right of the Government and it is hard to conceive of a case where it could be said to be lost by adverse possession.
True, there can be adverse possession of a limited right like that of a mortgagee or a lessee or even a perma nent tenant, but still a right must have been enjoyed by the possessor adversely to the claim of the true owner.
It is unnecessary to go into the wider question whether the denial of the right to levy assessment and possession of property coupled with this denial for over a period of 60 years will negative that right; it is sufficient to say that no right to levy assessment was exercised in the case before us before March, 1938, and the denial was only afterwards.
This, however, does not determine the case in favour of the appellant, as there is a question of equity to con sider and on which the appellant failed in the court below.
In fact, it is the crucial point for determination.
When the Architectural Improvement Committee proposed to levy a nominal rent, the Government stated that no rent need be charged, as the markets to be built were for the benefit of the whole community.
This was a representation made by the Government when the site was given and possession was taken.
How far this representation was taken into consideration when the Corporation of Bombay took possession of the site under the grant is not necessary to be considered at any great length.
It is just possible that they would have taken the site even with the nominal rent, but it is equally possible that had they known that the rent was in the nature of assessment and liable to enhancement from time to time or periodically, they would have insisted on getting a site free from assessment in consideration of the sites they gave up for forming the eastern Boulevard.
The allegation in.paragraph 7 of the plaint that the Corporation acted on the faith of the terms contained in the grant has not been denied by the Government.
The accident that the grant was invalid does not wipe out the existence of the representation of the fact that it was acted upon by the Corporation.
Even if the suit had been brought within 60 years for ejectment and the Corporation had no answer to such a claim, the right to levy assessment might have conceivably stood on a different footing.
In any event, 63 there can be no doubt that it would have been competent for a Court of equity to give compensation for the expenditure and protect the possession in the meantime.
Lord Kingsdown refers to this aspect of the matter in Ramsden vs Dyson (1).
In the present case, the Corporation stands on much firmer ground.
They have acquired a title to the land which the Government cannot upset or challenge.
This acquisition of title is as a result of the law of limitation.
It has nothing to do with any conduct on the part of the Corpora tion which can be said to have rendered the representation about non liability to assessment of no legal effect or consequence.
The invalidity of the grant does not lead to the obliteration of the representation.
Can the Government be now allowed to go back on the representation, and ,if we do so, would it not amount to our countenancing the perpetration of what can be compendiously described as legal fraud which a court of equity must pre vent being committed?
If the resolution can be read as meaning that the grant was of rent free land, the case would come strictly within the doctrine of estoppel enunciated in section 115 of the Indian Evidence Act.
But even otherwise, that is, if there was merely the holding out of a promise that no rent will be charged in the future, the Government must be deemed in the circumstances of this case to have bound themselves to fulfil it.
Whether it is the equity recognised in Ramsden 's case(1), or it is some other form of equity, is not of much importance.
Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power.
As pointed out by Jenkins C.J. in Dadoba Janardhan 's case (2), a different conclusion would be "opposed to what is reasonable, to what is probable, and to what is fair.
" I am of the opinion that the decision of the Privy Council in Ariff vs Jadunath (3) is not applicable to the facts before us, as the doctrine of part performance (1) (2) Dadoba Janardan vs The Collector of Bombay (1901) I.L.R,.25 Born.(3) (1931) 58 I.A. 91.64 is not being invoked here as in that case, to clothe a person with title which he cannot acquire except by the pursuit of or in conformity with certain legal forms.
Here, as pointed out already, the Corporation became the full and absolute owner of the site on the lapse of SO years from the date of the grant.
Appeal dismissed.

summary:
In 1865, the Government of Bombay called upon the prede cessor in title of the Corporation of Bombay to remove some markets from a certain site and vacate it, and on the appli cation of the then Municipal Commissioner the Government passed a resolution approving and authorising the grant of another site to the Municipality.
The resolution stated further that "the Government do not consider that any rent should be charged to the Municipality as the markets will be, like other public buildings, for the benefit of the whole community.
" The Corporation gave up the sites on which the old markets were situated and spent a sum of over 17 lacs in erecting and maintaining markets on the new site.
In 1940 the Collector of Bombay, overruling the objection of the Corporation, assessed the new site under section 8 of the Bombay City Land Revenue Act to land revenue rising from Rs. 7,500 to Rs. 30,000 in 50 years.
The Corporation sued for a declaration that the order of assessment was ultra vires and that it was entitled to hold the land for ever without payment of any assessment.
The High Court of Bombay held applying the principle of Ramsden vs Dyson(1) that the Government had lost its right to assess the land in question by reason of the equity arising on the facts of the case in favour of the Corporation and there was thus a limitation on the right of the Government to assess under section 8 of the said Act: Held per KANIA C.J., DAS, CHANDRASEKHARA AIYAR and BOsE JJ.
(PATANJALI SASTRI J. dissenting) that the Govern ment was not, under the circumstances of the case, entitled to assess land revenue on the land in question.
Per KANIA C.J., DAS and Bose JJ.
Though there was no effectual grant by the Government passing title in the land to the Corporation by reason of non compliance with the statutory formalities, yet, inasmuch as the Corporation had never the less taken possession of the land in terms of the Government resolution and continued in such possession openly, uninterruptedly and as of right for over 70 years, the Corporation had acquired the (1) (1866)L.R. 44 limited title it had been prescribing for during the period, that is to say, the right to hold the land in perpetuity free of rent, but only for the purposes of a market and for no other purposes.
The right acquired included as part of it an immunity from payment of rent which constituted a right in limitation of the Government 's right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of section 8 of the Bombay City Land Revenue Act (II of 1876) there being for the purposes of this case no distinction between rent and revenue.
Per CHANDRASEKHARA AIYAR J.
If the Resolution of 1865 can be read as meaning that the grant was of rent free land the case would come strictly within the doctrine of estoppel enunciated in section 115 of the Indian Evidence Act.
Even otherwise, if there was merely the holding out of a promise that no rent will be charged in the future the Government must be deemed to have bound themselves to fulfil it.
The right to levy assessment is a prerogative right of the Government and it is hard to conceive of a ease where it could be said to be lost by adverse possession.
A court of equity must prevent the perpetration of a legal fraud.
PATANJALI SASTRI J. (contra) The principle of Ramsden vs Dyson cannot prevail against statutory requirements regarding disposition of property or making of contracts by Government.
No question of estoppel by representation arises, as the Government made no representation of fact which it now seeks to deny.
Nor can any case of estoppel by acquiescence be rounded on the facts of the case as there was no lying by and letting another run into a trap.
No right of exemption has been established either on the basis of express or implied contract or on the basis of equitable principles of part performance or estoppel by acquiescence.
The right to levy land revenue is no part of the Govern ment 's right to property but a prerogative of the Crown and adverse possession of the land could not destroy the Crown 's prerogative to impose assessment on the land.


judgement:
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. J. Umrigar and section P. Varma, for respondents Nos. I and 2. 1957.
January 29.
The Judgment of the Court was delivered by section 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.
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, I 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: 455 Ram Kishori Lal 3rd wife 4th wife 5th wife Sumitra Devi (Deft. 1) Kalicharan(Plff.3) Rambandhu BachuLal Heman Lal died during pen: (plff. 4) (Plff.
1)(Plff. 2) dency of the suit Mst.
Ram Sakhi (Plff. 3 gha) Satyanarain HiralalGopal Lachmi Narain Kamala Devi (Plff.3 Ka) (Plff.3 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.
sons 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 one third 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. 116, 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.
59 456 The marriage of Kamala Devi was settled with one Bijoy Kumar Sao, son of Nand Lal Sao, a retired Deputy 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 457 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 wag 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 principal issues were Issues Nos. 2 and 3 which were in these terms: "2.Is the defendant No. I 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. I ?
3. Is the deed of gift executed by defendant No. I 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 the 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 458 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 provi sions of section 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 would arrange for the gift of ornaments worth about Rs. 5,000, (b) a sum of Rs. 800 would be paid for meeting the expenses of travelling of the bridegroom 's party from Patna to Asansol, (e) 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 459 the deed of gift.
Relying on the decision in Debi Mangal Prasad Singh vs Mahadeo 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 vs Go pi Sahu(2) and observed that though it was competent for a Hindu widow, 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.
The ante nuptial promise cannot be regarded as a gift having been made on the occasion of the marriage.
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 (I) (1912) L.R. 39 I.A. 121.(2) Cal.1. 460 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 provision 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 " or 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 by 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 461 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 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 , came into force on June 17, 1956.
On an application filed by the appellants, fresh arguments were heard with regard to the provisions of section 14 of the .
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 evidence 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.
Parasuram, 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 462 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 con veyed 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 Sharma '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 behind the findings of fact arrived at by the Courts below.
Though the mistake made is 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 independent.
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 promised evidence 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 463 of the criticisms which greatly 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 Sumitra 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 evidence 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 related 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 Judges 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 considerstion 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 6o 60 464 of marriage.
Taking all these circumstances into con sideration, we do not think that we shall be justified in going behind the finding of the Courts below that )la 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 Nand Lal on behalf of his minor daughterin law.
In view of this finding, the question as to whether the gift was again confirmed at the time of the Gowna ceremony 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 Judges 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 Sabeb Jogendra Nath Roy was considered in the context of contemporaneous Court proceedings for the withdrawal of Rs. 10,000 and the learned Judges 465 of the High Court accepted the explanation 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 , Sumitra Devi had an absolute right of disposal in the share allotted to her on partition in 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 vs 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 vs 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 acquired by partition.
It is worthy of note that the partition 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 (1) [1863] M.I.A.487,514.
(2) (1912) L. R. 39 I.A. 121.
466 cash 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 Mangal Prasad Singh vs Mahadeo Prasad Singh (1), the property allotted to Mst.
Sumitra 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 fulfilment of an ante nuptial agreement, even though the gift was made some two years after the marriage ceremony.
This point was urged before us, as we have already stated, prior to and irrespective of the enactment of the .
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 enactment of the .
We shall, therefore, deal with this point, irrespective of the provisions of section 14 of the .
It may be stated at the very outset that 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 'Rain 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 make the gift of four houses at (1) (1912) L.R. 39 I.A. 121.
467 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 vs Kunj 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 deceased, 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 deceased.
The other relates to acts which although not essential or obligatory, are still pious observances which conduce to the bliss of the deceased 's soul.
In the later cases this distinction runs clearly through the views of the learned judges. . .
With reference to the first class of acts, the powers of the Hindu female who holds the property are wider than in respect of the acts which are simply pious and if performed are meritorious so far as they conduce to the spiritual benefit of the deceased.
In one case, if the income of the property, or the property itself, is not sufficient to cover the expenses, she is entitled to sell the whole of it.
In the other case, she can alienate a small portion of the property for the pious or charitable purpose she may have in view.
" In a very early decision, Cossi Naut Bysack vs Hurroo Soondry Dossee (2), which war, heard by the Supreme Court at Calcutta in 1819 and by the Judicial Committee in 1826 and quoted in Churaman Sahu vs Gopi Sahu (3), it was stated by Lord Gifford that a Hindu widow had " for certain purposes a clear authority to dispose of her husband 's property and might do it for religious purposes, including dowry to a daughter.
" There are several texts 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.
(2) 2 Morley 's Digest 198.
(3) Cal.
468 before she attains puberty.
Some of these texts have been quoted in Churaman Sahu 's case(1) and Ram Sumran Prasad vs Gobind Das (2).
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 11, 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 Javji Dagdu Pardeshi vs Shivnarayana Ridkarna (3)).
The texts also recognise that gifts can be made at the time of or on the occasion of the 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 obligation continues till it is discharged or fulfilled and such fulfilment may be subsequent to the marriage: see Mitakshara, Chapter 1, 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.
Vengidusami Ayyar (4), it was observed with reference to the aforesaid passages in the Mitakshara, and also to certain passagein the Smriti Chandrika, wherein the texts of Manu Yajnavalkya and other Smriti writers dealing with the question of (1) Cal. 1, 7, (2) Pat. 646, 681.
(3) Bom.
(4) Mad.113, 114.
469 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 J. 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 exceedingly 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 vs Narasimha Charyulu (1), the brother, as managing member of the joint family, made a gift of a reasonable portion of the joint family Properties to his sisters.
The sisters were married in (1) , 531, 532.470 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 authority to make the gift.
Miller J. 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 received, it is difficult to see how he can be held to have exceeded his powers if he makes good 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, J. 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 1st defendant, who succeeded him as managing member of the joint family.
" In Churaman Sahu 's case (1), the gift was no doubt made on the occasion of the daughter 's gowna ceremony which took place some two years after, the marriage, and it was held that the gowns ceremony 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) Cal.I. 7. 471 that in Churaman Sahu 's case(1), the decision in Kudutamma vs Narasimha Charyulu (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 vs Sitamma (3) is another decision of some importance.
There the marriage took place about forty years before the gift and there was no evidence 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 vs Gopi Sahu (1) and Ramasami Ayyar vs Vengidusami Ayyar (4), it was observed: "We see no reason to differ from these two decisions.
The father or the widow is not bound to giver any property.
There may be no legal but only a moral obligation.
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 vs Narasimha Charyulu (2).
It was observed 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 Bhagwati Shukul vs Ram Jatan Tewari (6).
The decision of the single judge was upheld on the (1) Cal.
(4) Mad. 113, 113.
(2) , 531, 532.
(5) A.I.R. 1922 All, 381.
(3) Mad.
628, 629 (6) All. 297.
61 472 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.
What is reasonable must depend on the facts and circumstances of each case.
In Vettor Ammal vs 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 vs Baikuntha Nath (2), 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 whenever such disposition was made.
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.
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 in Cossi Naut Bysack vs Hurroosoondry Dossee (1) ".
In Sithamahalakshmamma vs kotayya (2), Mr. Justice 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 imoveable property to his daughters without reference to the son; It is a power vested in the father under the Hindu law, which he can exercise subject to the restriction of limitations imposed on him by the said law.
The decided cases have held that the gift must be 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 property, the indebtedness of the family, and the paramount 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 will be binding on the joint family members irrespective of the consent of the members of the family If under the law it is a moral obligation on the family to make a provision as and by way of a marriage portion and such obligation continues until it is fulfilled by a reasonable provision being made therefor, the fact that one of the sons has become indebted cannot take away the power of the father to make such a gift.
In Pratap Kunwar vs Raj Bahadur Singh (3)the marriage took (1) 2 Morley 's Digest 198.
(3) A.I.R. 1943 Oudh 316.
(2) A.L.R. , 827, 474 place.
in 1923 and the gift was made in 1926.
After held that examining the evidence the learned Judges Mst.
Raj Ruer, the widow in question, did not make any "sankalpa" of the gift of fifteen villages at the on behalf of the time of her daughter 's marriage.
On behalf of the plaintiff it was argued before them that a Hindu widow could make a gift of her husband 's immoveable property v 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 vs at the time of marriage.
In Abhesang Tirabhai vs Raisang(1) , 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 vs Narayana Annavi(2), a father a made a gift to his daughter of a sum of Rs. 5,000 and a usufructuary mortgage.
As against the very large number of decisions refered to above, the only decision which can be said to strike a dissentient note is the decision in ganga Bisheshar vs Pirthi Pal(3).
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, about two years after the marriage of the daughter.
Mr. Justice Spankie observed as follows: "I understand the finding of both the lower Courts 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 the father in performance of a a dowry to his daughter.
L. R. 602.
(3) All. 635, 638.
475 tinder 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 of 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 occasion 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 fulfilled 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 476 go to the length of holding that there is a moral or religious obligation of giving a portion of the joint family property for the benefit of the daughter and the son in law, and a gift made long after the marriage may 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 last item stated above (item 6) have gone.
The finding of the final 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 marriage dowry.
It was open to Sumitra Devi to fulfil that promise as a religious act which conferred spiritual benefit upon her deceased husband, irrespective of the consideration whether she made a " sankalpa " at the time of the marriage or not.
The learned Judges of the High Court referred to section 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 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 our opinion the learned Judges of the High Court were in error with regard to the scope and effect of section 123 of the Transfer of Property Act.
Section 123 does 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 477 subsequent to the 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 , which came into force on June 17, 1956.
Explanation.
In this sub section, I 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 478 'that the four houses in question are now in the possession of Kamala Devi and under section 14 Kamala Devi is a full owner of the houses; the plaintiffs respondents cannot therefore get the declaration which they have ,asked for.
Alternatively, he has contended that if Sumitra Devi is still in possession of the houses, she also becomes a full owner and in that event also the plaintiffs respondents are not entitled to the reliefs claimed.
Learned counsel for the respondents has relied on sub section (2) of B. 14 which says that nothing in sub section
(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 section
(1) has no application to that estate.
It is further argued that Kamala Devi as donee could not get a larger estate than what the donlor had in the property, if the view of Hindu law, as contended for by learned counsel for the respondents, is accepted as correct; therefore, Kamal Devi is not entitled to the benefit of sub section(1) of section 14.
We do not think that it is necessary to decide this case on the rival contentions presented to us with regard to a. 14 of the .
We have already held that under Hindu law Mat.
Sumitra Devi could make a gift in favour of her daughter 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 reversioners.
That being the position, it is unnecessary to decide in this case the true scope and effect of section 14 of the .
For the reasons given above, we allow the 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.

dataset_name: IN-Abs

summary:
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 step sons brought a suit for a declaration that the deed of 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 453 the time of the marriage or on the occasion of the Gowna (Dwiragaman) ceremony in accordance with the provisions of section I 23 Of the Transfer of Property Act, was not binding on the reversioners beyond the lifetime of the widow and decreed the suit.
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 (1) that the widow had the power in Hindu Law, as it stood before the enactment of the , to execute the deed of gift in question and (2) that section 14 Of the said Act bad 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 , 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 vs Myna Baee, (1868) II M. 1.
A, 487, referred to.
Debi Mangal Prasad Singh vs Mahadeo Prasad Singh, (1912) L. R. 39 1.
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 I sankalpa ' at the time of the marriage or not.
Ganga Bisheshar vs Pirthi Pal, (1880) 1.
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 section 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 section
(1) Of section 14 Of the , gives a retrospective operation to the provisions of that section so as to make a fermale Hindu a 454 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 section 14 Of the Act.