judgement:
ivil Appeal No. 387 of 1963.
Appeal by special leave from the judgment and order dated February 14, 1962, of the Mysore High Court in Writ Petition No. 916 of 1959.
C.K. Daphtary, Attorney General for India, R. Gopalalkrishnan and B.R.G.K. Achar for P.D. Menon, for the appellant.
Naunit Lal, for the respondent.
August 22, 1963.
The Judgment of the Court was delivered by SUBBA RAO J.
This appeal by special leave is preferred against the Order of a Division Bench of the High Court of Mysore at Bangalore quashing the order of the 542 Government dated March 13, 1957 dismissing the respondent from service.
In the year 1957 the respondent was holding the post of an Assistant to the Additional Development Commissioner, Planning, Bangalore.
On June 25, 1957, the Government of Mysore appointed Shri G.V.K. Rao, I.A.S., Additional Development Commissioner, as the Enquiry Officer to conduct a departmental enquiry against him in respect of false claim for allowances and fabrication vouchers to support them.
After giving the usual notice, the said Enquiry Officer framed four charges against him.
After making the necessary enquiry in accordance with law the said Enquiry Officer submitted his report to the Government with the recommendation that the respondent might be reduced in rank.
After considering the report of the Enquiry Officer, the Government issued to him a notice calling upon him to show cause why he should not be dismissed from service.
The relevant part of the said show cause notice reads as follows: "The Inquiry Authority has recommended that you may be reduced in rank.
As the charges proved against you are of a very grave nature and are such as render you unfit to remain in Government Service, and the Government consider that a more severe punishment is called for in the interest of public service, it is proposed to dismiss you from service.
" The respondent made representation to the effect that the entire case had been foisted on him.
After considering the representations of the respondent, the Government passed an order on January 6, 1959 dismissing him from service.
As the argument turns upon the terms of this order, it will be convenient to read the material part thereof: "Government have carefully considered the report the enquiry, the explanation of Shri Manche Gowda and the opinion furnished by the Mysore Public Service Commission.
There is no reasonable ground to accept the version of Shri Manche Gowda that the entire case has been deliberately foisted on him.
The evidence on record shows conclusively that the charges framed are fully proved." "As regards the quantum of punishment, Government 543 have examined the previous record of the Officer and have given careful consideration to the recommendation of the Public Service Commission.
Shri Manche Gowda was recruited directly as a Gazetted Officer.
He had been punished twice first, in Government Order No. SD 19 16/A:17.
53 12, dated 1 4 1954, for making false claims of T.A. and tampering with the accounts and ledgers of Food Depot and again, in Government Order No. 40 MSC 57, dated 13th March 1957 for not having credited to Government certain sums of money which he had collected from the Office Staff.
Yet he failed to learn a lesson; he had indulged in similar offences.
It is clear that he is incorrigible and no improvement can be expected in his conduct.
In the circumstances a reduction in pay and continuance of the Officer in Government Service, as recommended by the Public Service Commission, is no remedy.
Having regard to the status of the Officer and the nature of the charges proved against him, Government have come to the conclusion that he is unfit to continue in Government service and direct that he may be dismissed from service forthwith.
" It will be seen from the said Order that the reason for giving enhanced punishment above that recommended by the Inquiry Officer as well as by the Service Commission was that earlier he had committed similar offences and was punished once on April 1, 1954 and again on March 13, 1957.
In the second notice those facts were not given as reasons for the proposed punishment of dismissal from service.
The respondent filed a petition in the High Court under article 226 of the Constitution for quashing the said order and the High Court quashed the order of dismissal on the ground that the said two circumstances on which the Government relied for the proposed infliction of punishment of dismissal were not put to the petitioner for being explained by him, in the show cause notice, which was issued to the petitioner on February 4, 1958.
The impugned order was accordingly set aside leaving it open to the State Government to dispose of the matter afresh if it desired to do so after compliance with the requirements of article 311(2) of the 544 Constitution.
Hence the appeal.
Learned Attorney General contends that the Government is entitled to take into consideration the previous record of a Government servant in awarding punishment to him and it is not incumbent on it to bring to the notice of the Government servant the said fact in the second notice.
Alternatively, he argues that whether a Government servant has had a reasonable opportunity of being heard or not, being a question of fact in each case, and in the instant case as the Officer concerned had knowledge of his two earlier punishments which formed the basis of the enhanced punishment, he was not in any way prejudiced by their non disclosure to him in the second notice and, therefore, the principles of natural justice were not violated.
Mr. Naunit Lal, learned counsel for the respondent, says that a Government servant cannot be punished for his acts or omissions unless the said acts or omissions arc subject of specific charges and are enquired into in accordance with law and that, in any view, even if the Government could take into consideration a Government servant 's previous record in awarding punishment, the facts that form the basis of that punishment should at least be disclosed in the second notice giving thereby an opportunity to the said Government servant to explain his earlier conduct.
The material part of article 311(2) of the Constitution which 'embodies the constitutional protection given to a Government servant reads thus: "No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." Section 240(3) of the Government of India Act was pari materig with the said clause of the Article of the Constitution.
That section fell to be considered by the Federal Court in Secretary of State for India vs I. M. Lall(1).
In considering that sub section, Spens C.J , speaking for the majority of the Court, made the following remarks relevant to the present enquiry: "It does however seem to us that the sub section (1) , 139.
545 requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken, and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken . . . .
In our judgment each case will have to turn on its own facts, but the real point of the sub section is in our judgment that the person who is to be dismissed or reduced must know that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed.
This judgment was taken in appeal to the Privy Council, and the Judicial Committee, after quoting in extenso the passage just now extracted by us from the Federal Court judgment, expressed its agreement with the view taken by the majority of the Federal Court.
This Court Khem Chand vs The Union of India(1) also emphasized upon the importance of giving a reasonable opportunity to a Government servant to show that he does not merit the punishment proposed to be meted out to him.
Das C.J., speaking for the Court, observed: "In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him.
He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of re (1) ; , 1096.
546 moval or reduction in rank and that any of the lesser punishments ought to be sufficient in his case.
" The relevant aspect of the case has been neatly brought out by the Nagpur High Court in Gopalrao vs State(1).
There, as here, the previous record of a Government servant was taken into consideration in awarding punishment without bringing the said fact to his notice and giving him a reasonable opportunity of explaining the same.
Sinha, C.J. speaking for the Court, observed: "Normally, the question of punishment is linked up with the gravity of the charge, and the penalty that is inflicted is proportionate to the guilt.
Where the charge is trivial and prima facie merits only a minor penalty,, a civil servant may not even care to defend himself in the belief that only such punishment as would be commensurate with his guilt will be visited on him.
in such a case, even if in the show cause notice a more serious punishment is indicated than what the finding of guilt warrants, he cannot be left to guessing for himself what other possible reasons have impelled the proposed action.
It is not, therefore, sufficient that other considerations on which a higher punishment is proposed are present in the mind of the competent authority or are supported by the record of service of the civil servant concerned.
In a case where these factors did not form part of any specific charge and did not otherwise figure in the departmental enquiry, it is necessary that they should be intimated to the civil servant in order to enable him to put up proper defence against the proposed action." Randhir Singh J. of the Allahabad High Court, in Girja Shankar Shukla vs Senior Superintendent of Post Offices, Lucknow Division, Lucknow(2), distinguished the case thus: "In the present case, however, those punishments were taken into consideration which are not only within the knowledge of the applicant but which he had suffered earlier . . . . . . .
This is evidently not opposed to any principles of (1) I.L.R. , 94.
(2) A.I.R. 1959 All.
624, 625.
547 natural justice.
" Multiplication of citation is not necessary, as the aforesaid decisions bring out the conflicting views.
Under article 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive.
The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam vs Bimal Kumar Pandit(1).
If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive.
If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant.
It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record.
This contention misses the real point, namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him.
It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered.
If that fact .was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer (1) ; 548 for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers.
Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry.
He may have many other explanations.
The point is not whether his explanation would be acceptable, but whether he has been given an Opportunity to give his explanation.
We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity".
We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.
Before we close, it would be necessary to make one point clear.
It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment.
An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages.
The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same.
Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry.
But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry.
But, nothing in law 549 prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it, relates more to the domain of punishment rather than to that of guilt.
But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same.
In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service.
On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave.
But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission.
This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service.
This notice clearly contravened the provisions of article 311(2)of the Constitution as interpreted by Courts.
This order will not preclude the Government from holding the second stage of the enquiry afresh and in accordance with law.
In the result the appeal is dismissed with costs.
Appeal dismissed.

summary/full:
The respondent was holding the post of an Assistant to the Additional Development Commissioner, Planning, Bangalore.
A departmental enquiry was held against him and the Enquiry Officer recommended that the respondent be reduced in rank.
After considering the report of Enquiry Officer, the Government issued a notice calling upon respondent to show cause why he should not be dismissed from service.
The reply of the respondent was that the entire case had been foisted on him.
After considering his representation, the Government passed an order dismissing him from service.
The reason given for his dismissal was that the respondent had on two earlier occasions committed certain offences and he had been punished for the same.
However, those facts were not given as reasons for the proposed punishment.
of dismissal from service.
541 The respondent filed a petition in the High Court under article 226 of the Constitution for quashing the order of his dismissal.
The High Court quashed the order of dismissal on the ground that the two circumstances on which the Government relied for the proposed infliction of punishment of dismissal were not put to the respondent for being explained by him in the show cause notice which was issued to him.
The appellant came to this Court by special leave.
The contentions of the appellant were that the Government was entitled to take into consideration the previous record of Government servant in awarding punishment to him and it was not incumbent on it to bring to the notice of the Government servant the said fact in the second notice.
Moreover, as the Government servant in this case had knowledge of his two.earlier punishments he was not in any way prejudiced by their non disclosure in the second notice.
Dismissing the appeal, Held, that it was incumbent upon the Government to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment was also based on his previous punishments or his previous bad record, that should be included in the second notice so that he may be able to give an explanation.
The doctrine of "presumptive knowledge" or that of "purposeless enquiry" is subversive of the principle of "reasonable opportunity".
Secretary of State for India, vs I. M. Lal, [1945] F.C.R. 103, Khern Chand vs Union of India, ; , Gopalrao vs State, I.L.R. , Shankar Shukla vs Senior Superintendent of Post Offices, Lucknow Division, A.I.R. 1959 All. 624 and State of Assam vs Bimal Kumar Pandit, [1964] 2 S.C.R. referred to.


judgement:
Appeal No. 513 of 1961.
Appeal by special leave from the judgment and order dated June 23, 1960, of the Kerala High Court in Second Appeal No. 103 1957.
551 S.T. Desai and V.A. Seyid Muhmmad, for the appellants.
Sardar Bahadur, for the respondents.
August 23, 1963.
The facts leading up to this question may now be stated.
One Mammotty was married to Seinaba and he made a gift of his properties including immovable property to Seinaba on April 7, 1944 by a registered deed.
Mammotty died on May 3, 1946 without an issue.
Seinaba also died soon afterwards on February 25, 1947, without leaving an issue.
At the time of the gift Seinaba was 15 years 9 months old.
It appears that Mammotty was ill for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother in law 's house afterwards.
There are conflicting versions about the nature of the disease and a plea was taken in the case that the gift was made in contemplation of death and was voidable.
This plea need not detain us because the trial Judge and the first Appellate Judge did not accept it.
After the death of Seinaba, the present suit was brought by Kunhamu an eider brother of Mammotty for partition and possession of a 6/16 share of the property which he claimed as an heir under the Muhammadan Law, challenging the gift as invalid.
To the suit he joined his two sisters as defendants who he submitted were entitled to a 3/16 share each.
He also submitted that the first three defendants (the appellants) were entitled to the remaining 4/16 share as heirs of Seinaba.
In other words, Kunhamu 's contention was that when succession opened out on the death of Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there was no issue, and the remaining 3/4 was divisible between 552 Kunhamu and his two sisters, Kunhamu getting twice as much as each sister, These shares according to him were unaffected by the invalid gift in faVour of Seinaba and accepted on her behalf by her mother.
This contention has been accepted and it has been held in this case in all the three courts that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under the Muhammadan Law, that is to say, by the father or his executor or by the grand father or his executor.
As Katheesumma the mother of Seinaba was not a legal guardian of the property of Seinaba it was contended by the plaintiff that the gift was void.
It was admitted on behalf of the plaintiff that Mammotty could have himself taken over possession of the property as the guardian of his minor wife; but it was submitted that such was not the gift actually made.
These contentions raise the question which we have set out earlier in this Judgment.
Mr. S.T. Desai on.
behalf of the appellants contends that neither express acceptance nor transfer of possession is necessary for the completion of a gift, when the donor is himself the guardian or the de facto guardian or 'quasi guardian ' provided there is a real and bona fide intention on the donor 's part to transfer the ownership of the subject matter of the gift to the donee, and that even a change in the mode of enjoyment is sufficient evidence of such an intention.
He further contends that no delivery of possession is necessary in a gift by a husband to his minor wife provided such an intention as above described is clearly manifested.
According to him, the law is satisfied without an apparent change of possession and will presume that the subsequent holding of the property was on behalf of the minor wife.
Lastly he submits that in any view of the matter when a husband makes a gift to a minor wife and there is no legal guardian of property in existence, the gift can be completed by delivery of the property to and acceptance by any person in whose control the minor is at the time.
If there is no such person one can be chosen and appointed by the donor to whom possession can be made over to manifest the intention of departing from the property gifted.
Mr. Desai seeks to justify these submissions on authority as well as by de 553 ductions from analogous principles of Muhammadan Law relating to gifts to minors which are upheld though accepted by persons other than the four categories of legal guardian.
The other side contends that there is no rule of Muhammadan Law which permits such acceptance and that the decision of the High Court is right.
A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz).
The word Hiba literally means the donation of a thing from which the donee may derive a benefit.
The transfer must be ' immediate and complete (tamlik ul 'ain) for the most essential ingredient of Hiba is the declaration "I have given".
Since Muhammadan Law views the law of gifts as a part of the law of contract there must be a tender (ijab) and an acceptance (qabul) and delivery of possession (qabza).
There is, however, no consideration and this fact coupled with the necessity to transfer possession immediately distinguishes gifts from sales.
In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise.
In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact.
Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba.
Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living; (Durrul Mukhtar, Vol.
3 p. 104 and Fatawa i Alamgiri Vol.
239 240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman).
But Mammotty did not complete his gift in this way.
His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter.
A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor Wilayat ul Mal.
A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un 36 2 S.C. India/64 554 married and that of the husband if she is married ' and has gone to her husband.
Even under the Guardian and Wards Act, the husband is the guardian of the person after marriage of a girl unless he is considered unfit.
The mother was thus not the guardian of the person of Seinaba.
Seinaba 's mother was also not a guardian of the property of Seinaba.
Mahammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage (Wilayat ulNikah) in the case of minor females.
Guardians of the property are father and grandfather but they include also executors (Wasi) of these two and even executors of the executors and finally the Kazi and the Kazi 's executor.
None of these were in existence except perhaps the Civil Court which has taken the place of the Kazi.
Now Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted (Kabz ul Kamil) especially of immovable property.
The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie (Dig.
p. 508) quoting from the Inayah refers to a Hadis of the Prophet "a gift is not valid unless possessed".
In the Hedaya it is stated "Gifts are rendered valid by tender, acceptance and seisin" (p. 482) and in the Vikayah "gifts are perfected by complete seisin" (Macnaghten 202).
The question is whether possession can be given to the wife 's mother when the gift is from the husband to his minor wife and when the minor 's father and father 's father are not alive and there is no executor of the one or the other.
Is it absolutely necessary that possession of the property must be given to a guardian specially to be appointed by the Civil Court ? The parties are Hanafis.
No direct instance from the authoritative books on Hanafi law can be cited but there is no text prohibiting the giving of possession to the mother.
On the other hand there are other instances from which a deduction by analogy (Rai fi 'l qiyas) can be made.
The Hanafi law as given in the Kafaya recognises the legality of certain gifts which custom ( 'urf) has accepted.
This is because in deciding questions which are not covered by precedent Hanafi jurisprudence attaches to transfer possession immediately distinguishes gifts from sales.
In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise.
In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact.
Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba.
Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living; (Durrul Mukhtar, Vol.
3 p. 104 and Fatawa i Alamgiri Vol.
239 240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman).
But Mammotty did not complete his gift in this way.
His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter.
A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor Wilayat ul Mal.
A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un 36 2 S.C. India/64 555 based on istehsan (liberal construction ; lit.
producing symmetry) and istislah (public policy).
The Prophet himself approved of Mu 'izz (a Governor of a province who was newly appointed) who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason.
But to be able to say that a new rule exists and has always existed there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should not be haram (forbidden), or Makruh (reprobated).
It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was not handed over to one of the stated guardians of the property of the minor.
We shall now refer to some of these cases.
The rules on the subject may first be recapitulated.
It is only actual or constructive possession that completes the gift and registration does not cure the defect nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion.
If the property is with the donor he must depart from it and the donee must enter upon possession.
The strict view was that the donor must not leave behind even a straw belonging to him to show his ownership and possession.
Exceptions to these strict rules which are well recognised are gifts by the wife to the husband and by the father to his minor child (Macnaghten page 51 principles 8 & 9).
Later it was held that where the donor and donee reside together an overt act only is necessary and this rule applies between husband and wife.
In Mohammad Sadiq Ali Khan vs Fakhr Jahan(1), it was held that even mutation of names is not necessary if the deed declares that possession is delivered and the deed is handed to the wife.
A similar extension took place in cases of gifts by a guardian to his minor ward (Wilson Digest of Anglo Muhammadan Law 6th Edn.
p. 328).
In the case of a gift to an orphan minor the ,rule was relaxed in this way: "If a fatherless child be under charge of his mother, (1) (1932) 59 I.A. I. 556 and she take possession of a gift made to him, it is valid. .
The same rule also holds with respect to a stranger who has charge of the orphan." Hedaya p. 484.
See also Baillie p. 539 (Lahore Edn.) In the case of the absence of the guardian (Gheebuti Moonqutaa) the commentators agree that in a gift by the mother her possession after gift does not render it invalid.
Thus also brother and paternal uncle in the absence of the father are included in the list of persons who can take possession on behalf of a minor who is in their charge: Durrul Mukhtar Vol.
4 p. 512 (Cairo Edn.).
In Radd ul Mukhtar it is said : "It is laid down in the Barjindi : There is a difference of opinion, where possession has been taken by one, who has it (the child) in his charge when the father is present.
It is said, it is not valid; and the correct opinionis that it is valid." (Vol. 4, C.513 Cairo Edn.) In the Bahr al Raiq Vol. 7 p. 314 (Edn. Cairo) "The rule is not restricted to mother and stranger but means that every relation excepting the father, the grand father and their executors is like the mother.
The gift becomes complete by their taking possession if the infant is in their charge otherwise not." In Fatawai Kazikhan Vol. 4, p. 289 (Lucknow Edn.), the passage quoted above from Radd ul Mukhtar is to be found and the same passage is also to be found in Fatawai Alamgiri Vol.
4 p. 548 Cairo Edn.
All these passages can be seen in the lectures on Moslem Legal Institutions by Dr. Abdullah al Mamun Suhrawardy.
The rule about possession is relaxed in certain circumstances of which the following passage from the Hedaya p. 484 mentions some : "It is lawful for a husband to take possession of any thing given to his wife, being an infant, provided she has been sent from her father 's house to his; and this although the father be present, because he is held, by implication, to have resigned the management of her concerns to the husband.
It is otherwise where she has not been sent from her father 's house, because then the father is not held to have resigned the management of her concerns.
It is also otherwise 557 with respect to 'a mother ' or any others having charge of her; because they are not entitled to possess themselves of a gift in her behalf, unless the father be dead, or absent, and his place of residence unknown ; for their power is in virtue of necessity, and not from any supposed authority ; and this necessity cannot exist whilst the father is present.
" Macnaghten quotes the same rule at p. 225 and at page 230 is given a list of other writers who have subscribed to these liberal views.
The above views have also been incorporated in their text books by the modern writers on Muhammadan Law.
(See Mulla 's Principles of Mahomedan Law 14th Edn.
139, 142, 144 and 146, Tyabji 's Muhammadan Law 3rd Edn.
430 435, sections 397 400, Amir Ali 's Mahommedan Law Vol. 1, pp.
130 131).
The principles have further been applied in some decisions of the High Courts in India.
In Nabi Sab vs Papiah and ors.(1) it was held that gift did not necessarily fail merely because possession was not handed over to the minor 's father or guardian and the donor could nominate a person to accept the gift on behalf of the minor.
It was pointed out that the Muhammadan law if gifts, though strict, could not be taken to be made up of unmeaning technicalities.
A similar view was expressed in Nauab Ian vs Safiur Rehman(2).
These cases were followed recently in Munni Bai and anr.
vs Abdul Gani(3), where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift.
It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to complete it by some significant overt act.
See also Mt. Fatma vs Mt. Autun(4), Mst.
Azizi and anr.
vs Sona Mir(5) and Mam& ors.
vs Kunhdi & ors.(6).
(1) A.I.R. (1915) Mad.
(2) A.I.R. (1918) Cal.
(3) A.I.R. (1959) M.P. 225.
(4) A.I.R. (1944) Sind 195, (5) A.I.R. (1962) J. & K. 4.
(6) 1962 K.L.J 351. 558 In Md. Abdul Ghani vs Mt. Fakhr Jahan (1), it was held by the Judicial Committee as follows: "In considering what is the Mohammaden Law on the subject of gift intervivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammedan law were promulgated there were not in the contemplation of any one any Tran sfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.
The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.
" Later in Mahamad Sadiq Ali Khan vs Fakhr Jahan Begum(2), it was held by the Privy Council that at least between husband and wife Muhammadan law did not require an actual vacation by the husband and an actual taking possession by the wife.
In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession.
These cases show that the strict rule of Muhammadan law about giving possession to one of the stated guardians of the property of the minor is not a condition of its validity in certain cases.
One such case is gift by the husband to his wife, and another, where there is gift to a minor who has no guardian of the property in existence.
In such cases the gift through the mother is a valid gift.
The respondent relied upon two cases reported in Suna Mia vs section A. section Pillai(3) where gift to a minor through the mother was considered invalid and Musa Miya and (1) (1922) 491.A. 195 at 209.
(2) (1932) 591.A.I. (3) (1932) 11 Rang. 109.
559 anr.
vs Kadar Bux(1), where a gift by a grandfather to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid.
Both these cases involve gifts in favour of minors whose fathers were alive and competent.
They arc distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger.
In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration.
As we have shown above there is good authority for these propositions in the ancient and modern books of Muhammadan law and in decided cases of undoubted authority.
In our judgment the gift in the present case was a valid gift.
Mammotty was living at the time of the gift in the house of his mother in law and was probably a very sick person though not in marzulmaut.
His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mother 's house and in her care where the husband was also residing.
The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother in law and accepted by her on behalf of the minor.
There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee.
If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother in law, in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift.
In our opinion both on texts and authorities such a gift must be accepted as valid and complete.
The appeal therefore succeeds.
The Judgment of the High Court and of the Courts below are set aside and the suit of the Plaintiff is ordered to be dismissed with costs throughout.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
One Mammotty was married to Seinaba and he made a gift 550 of his properties including immovable property to Seinaba by a registered deed.
Mammotty died without an issue more than two years after the execution of the gift deed.
Later on, Seinaba also died without leaving an issue.
At the time of gift, Seinaba was fifteen years and nine months old.
Mammotty was iII for a long time and was in hospital.
He was discharged uncured a month before the execution of the gift deed and he remained in his mother in law 's house afterwards.
After the death of Seinaba, the present suit was brought by Kunharnu, an eider brother of Mammotty, for partition and possession of 6/16 share of the property which he claimed as an heir under Muhamrnadan law, challenging the gift as invalid.
Kunhamu 's contention was that when succession opened out on the death of Mammotty, his widow was entitled to one fourth share and the remaining three fourth share was divisible between him and his two sisters.
These shares were unaffected by the in .
valid gift in favour of Seinaba and accepted on her behalf by her mother.
The contention of Kunhamu was accepted by all the three courts below which held that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under Muhammadan law i.e. by the father or his executor or by grand father or his executor.
As the mother of Seinaba was not the legal guardian of the property of Scinaba, the gift was void.
The appellant came to this Court by special leave.
Held, that under Muhammadan law a gift by a husband to his minor wife of immovable property accepted on her behalf by her mother is valid if none of the guardians of the property of the minor is available provided there is a clear and manifest intention to make the gift and the husband divests himself of the ownership and possession of the property.
Held further, on facts the above conditions were satisfied in this case.
Mohammad Sadiq Ali Khan vs Fakir Khan (1932) L.R.59 I.A. 1, Nabi Sab vs Papiah and Ors.
A.I.R. 1915 Mad.
972, Nawab fan vs Safiur Rahman, A.I.R. 1918 Cal. 786, Munni Bai vs Abdul Gani, A.I.R. 1959 M.P. 225, Mt. Fatma vs Mt. Autun, A.I.R. 1944 Sind.
195, Mst.
Azizi vs Sona Mir, A.I.R. 1962 J. & K. 4, Mareroad & Ors.
vs Kunhali & Ors., 1962 K.L.J. 351, Md. Abdul Ghani vs Mt. Fakir Khan (1962) 49 I.A. 195, Suna Mia vs S.A.S. Pillai, (1932) 11 Rang.
109 and Musa Miya vs Kadar Bux, I.L.R. , referred to.


judgement:
iminal Appeals Nos. 75, 100 and 101 of 1963.
Appeals from the judgment and order dated February 27, 28, 1963 of the Bombay High Court in Criminal Appeal No. 1077 of 1962.
section G. Patuwardhan and A. G. Ratnaparkhi for the appellant(in Cr.
A. No. 75 of 1963).
B. B. Tawakley, Harbans Singh and A. G. Ratnaparkhi, for the appellants (in Cr. A. Nos. 100 and 101 of 1963).
D. R. Prem, K. L. Hathi and B. R. G. K. Achar, for R. H. Dhebar, for the respondents.
August 27, 1963.
The Judgment of the Court was delivered by DAS GUPTA J.
On June 11, 1961 at 5 p.m. the road in front of the Temple of Shri Maruti in the village of Chinchpur of Taluk Sholapur was the scene of a terrible tragedy.
Three persons Revansidappa, and his two maternal uncles, Yellappa and Maruti were done to death there in a most gruesome manner.
Revansidappa 's neck was severed from the body, except for a piece of skin and one of his legs was chopped off.
The spinal cord and vertebra of Yellappa were cut off.
The jaw, vertebra, tongue and a major part of the neck of Maruti were cut off.
The first information that reached the police station of this tragedy was by a letter of the village police patel written on the same day and addressed to the Police Sub Inspector of Mandrup.
It merely stated that three murders had taken place in course of riot and maramari at 5 p.m. in the evening and mentioning the names of the men who had been murdered.
This letter reached the police sta 591 tion at 2.30 a.m. Head Constable Bansode who was in charge of the police station then left for the place of occurrence after having sent a report to the Police Sub Inspector who was camping at Bhandrkavathe village.
The Sub Inspector reached Chinchpur at about 11 a.m. on the 12th.
Some constables had already reached the village.
Vishwanath, Head Constable of Mandrup with two other constables who had been on duty on the bridge over the Bhima river which runs west of the village Chinchpur learnt of these terrible murders at 7 p.m. on the very date of the murders and left for the place, arriving at the village at 9.30 p.m.
They found the three dead bodies lying there and the Police Patel and some other persons present.
Head Constable Ram Chandra Bansode reached the place at 6.30 a.m. on the 12th and after making enquiries had three persons, Gurpadappa, Parasappa and Daulappa brought to the place.
They were arrested by the Sub Inspector when he arrived.
The only witness the Sub Inspector could examine on that date was Parwati, the step mother of the deceased Revansidappa.
He found that all the men had left the village and only women were present.
After completing the investigation the Sub Inspector sent up cliarge sheet against 13 persons.
All the thirteen were tried by the Sessions Judge on a charge under section 148 of the Indian Penal Code, on three charges under section 302/34 of the Indian Penal Code, with three alternative charges under section 302/149 of Indian Penal Code and a further charge under section 342 of the Indian Penal Code.
Three out of the 13, viz., Gurpadappa, Parasappa and Annarava Shivabala were convicted by the learned Sessions Judge under section 302/34 of the Indian Penal Code on each of the three counts and sentenced to imprisonment for life.
All the three were also convicted under section 342 of the Indian Penal Code and sentenced to six months ' rigorous imprisonment.
Gurpadappa and Annaraya were also convicted under section 147 of the Indian Penal Code and sentenced to rigorous imprisonment for two years.
Parasappa was convicted under section 148 of the Indian Penal Code and sentenced to rigorous imprisonment for three years.
The sentences were directed to run concurrently.
The other 10 accused persons were acquitted by the learned Judge.
592 Gurpadappa, Parasappa and Annaraya Shivabala appealed to the High Court of judicature at Bombay against their conviction and sentence.
Their appeal was dismissed and the conviction and sentence of Gurpadappa and Annarava were affirmed.
Parasappa 's conviction was also affirmed but after notice on him as to why the sentence should not be enhanced, the sentence of life imprisonment was enhanced to one of death.
The State appealed against the order of acquittal of all other accused except that of Sangappa.
The High Court allowed the State 's appeal in respect of three of these, viz., Shranappa, Ganpati and Tipanna and convicted them of the offence with which they were charged.
The High Court sentenced Shranappa to death and Ganpati and Tipanna to imprisonment for life.
The State 's appeal in respect of the other six were dismissed.
Sliranappa had filed the present appeal under article 134(1)(a) of the Constitution.
The other five, viz., Gurpadappa, Parasappa, Annaraya, Ganpati and Tipanna were granted special leave to appeal by this.
Court and on the basis of that they have filed the appeals against the orders of conviction and sentence passed against them.
The prosecution case is that there had for sometime been trouble between Gurpadappa and his brother Dhannappa on the one side and Parwati and the deceased Revansidappa on the other over the possession of a plot of land in Chinchpur.
According to Parwati and Revansidappa this land had merely been mortgaged to Gurpadappa by Revansidappa 's father and the debt had been paid out and they were entitled to get back possession.
To this Gurpadappa did not agree.
He, however, agreed to Parwati 's request that the dispute may be settied by a Panchayat.
But without calling a Panchayat Gurpadappa and his brother started cultivating the land on June 10.
When Parwati saw this, she protested ; but to no purpose.
The two brothers said that there would be no Panchayat.
On the next day i.e., June 11, Revansidappa who used to live with his maternal uncles at the neighbouring village, Chanegaon, came to Parwati 's house at Chinchpur with his two uncles, Maruti and Yellappa.
Shortly after this all the thirteen accused persons came in front of 593 the house and demanded that Revansidappa, Yellappa and Maruti should come out of the house.
When they did not, some of the accused went on the roof of the house and began to remove it by means of spades.
Some iron sheets were actually removed.
Ultimately, at the instance of two neighbours Gourava and Panchppa the three unfortunate young men came out of the house.
They were led to the school which stands some way north of Parwati 's house.
From there one by one they were taken near the Maruti Temple outside the Ves, the village wall and done to death.
It is said that Yellappa was struck by Parasappa and Shranappa with axes while the other accused beat him with sticks.
He died instantaneously.
Next was the turn of Revansidappa.
He was also struck with axes by Shranappa and Parasappa and all others with sticks.
Revansidappa died immediately.
Maruti was brought there last of all; Parasappa and sangappa struck him with axes and the other accused with sticks.
He also died on the spot.
All the accused then left the place.
Three of them, Gurpadappa, Parasappa and Daulappa were taken into custody on the very next day.
Annaraya Shivabala was arrested on June 13 and Sliranappa and Ganpati Shamraya on the following day.
Three more accused, Dhanappa, jakanna and Ganpati Gurling were arrested three days later.
On August 6, 1961 were arrested Tipanna and Dhondappa.
The remaining accused Sangappa surrendered in Court on October 16, 1961.
All the accused pleaded not guilty.
Their case was that they had been falsely implicated Gurpadappa and his brother Dhanappa because they were in possession of the land purchased by them, which Revansidappa and his step mother, Parwati, had been claiming and the other accused either on suspicion or because they had supported Gurpadappa and his brother over the land dispute.
Shranappa 's appeal is one of right under article 134(1) (a) of the Constitution.
To decide his appeal it is therefore necessary for us to examine the evidence adduced in the case for ourselves and to see whether the assessment of the evidence on which the High Court convicted him is proper and justified.
That evidence consists in this case of the testimony of a single witness Par 594 wati, given by her in the Court of the Committing Ma gistrate.
This is undoubtedly substantive evidence, which if believed, would be sufficient in law to support the order of conviction.
For, it was brought on the record of the Sessions Court under the provisions of section 288 of the Code of Criminal Procedure ; when in, the Sessions Court Parwati resiled from her previous statement before the Committing Magistrate and made a definite statement that she had not seen the occurrence the question has.
naturally been raised whether this evidence of Parwati which is substantive evidence at the Trial under the provisions of section 288 of the Code of Criminal Procedure required corroboration before the Court should act on it.
The question how far evidence in the Committing, Court given by a witness who refiles from it at the Trial in Sessions and which is brought in as evidence at the Trial under section 288 of the Code of Criminal Procedure requires corroboration or not, has engaged the attention of most of the High Courts in India in numerous cases.
Many such judgments have been cited before us and extensive passages have been read out from some of them.
While the dust of controversy sometimes obscured the simplicity of the true position, most of the learned Judges have, if we may say so, with respect, appreciated the situation correctly.
That is this.
On the one hand, it is true that corroboration of such evidence is not required in law ; but it is equally true that in order to decide which of the two versions, the one given in the Committing Court and the one in the Sessions Court, both of which are substantive evidence, should be accepted, the judge of facts would almost always feel inclined to look for something else beyond this evidence itself to help his conclusion.
We cannot do better in this connection than to quote from the observations on this question by their Lordships of the Privy Council in Bhuboni Sahu vs The King(1).
In that case the evidence of an approver in the Committing Court had been brought on the record under section 288 of the Code of Criminal Procedure.
Dealing with the question as to the value that can be attached to such evidence their Lordships observed thus (1)A.I.R. 1949 (P.C.) 257.
595 "Apart from the suspicion which always attaches to the evidence of an accomplice it would plainly be unsafe, as the judges of the High Court recognized, to rely implicitly on the evidence of a man who had deposed on oath to two different stories.
" This, if we may say so, with respect, is the crux of the question.
Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence.
In other words, before one decides to accept the evidence brought in under section 288 of the Code of Criminal Procedure as true and reliable one has to be sa tisfied that this is really so.
How can that satisfaction be reached? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true.
If there be a case and there is such infinite variety in facts and circumstances of the cases coming before the courts that it cannot be dogmatically said that there can never be such a case where even without such extrinsic support the Judge of facts, after bearing in mind the intrinsic weakness of the evidence, in that two different statements on oath have been made, is satisfied that the evidence is true and can be safely relied upon, the judge will be failing in his duty not to do so.
The present is not one such case.
It is true that Parwati has in this deposition in the Committing Court given a detailed account of not only the incidents at the house and the three young men, Rvansidappa, Maruti and Yellappa being taken out of her house to the accused persons but also as regards how they were led to the village school, how one after the other the three were taken near the Maruti Temple, how her entreaties to spare them were in vain and the manner of attack on each of the victims.
The learned judges of the High Court appear to have been impressed by the very vividness of this description and persuaded themselves apparently from this alone that she was speaking the truth.
Unfortunately the important fact that the witness had made a totally different statement on oath in another Court and denied to have seen the occurrence did not receive from the lear 596 ned judges the attention it deserved.
Again, the ability to describe vividly should not be mistaken for anxiety to speak truly.
For, one often exists without the other.
Closer scrutiny of Parwati 's statement in the Committing Court discloses some features, at least, for which no explanation is available.
According to her account Yellappa was first taken from the school to the temple and that all the thirteen took part in the attack.
If that be true, there were none of the accused party to guard Revansidappa and Maruti, who were in the school during this time.
Who however was left to guard them? To this we find no answer from Parwati 's deposition.
There is the same mystery as to who was left to guard Maruti when Revansidappa was next taken and killed all the thirteen taking part in the attack according to her.
It is also to be noticed that she does not clearly state in this deposition where exactly she was standing or sitting during the occurrence.
The place where the bodies were discovered and where undoubtedly these three young men were killed is outside the village wall.
This wall would have a door through which, if the prosecution story is true, the victims were taken out.
Was Parwati also allowed to go out? If she was riot, could she have seen the actual attack on these three persons from her place on the village side of the Ves.
We look in vain in Parawiti 's deposition for any answer to these questions.
Again, according to her story, three axes were used in the attack.
Only one axe was however discovered at the place of occurrence.
How is it that while two axes were taken away the third was left behind? There may be a good answer to this question.
But none is furnished by the evidence on the record.
This being the nature of Parwati 's evidence it is, in our opinion, clearly unsafe to accept her testimony against any of the accused persons unless corroborated by other evidence.
In respect of Shranappa, whose appeal we are now considering, there is admittedly no such corroboration.
It is not possible therefore to accept what Parwati had said against this appellant as true.
The High Court has, in our opinion, fallen into error in acting on her testi 597 mony even in the absence of corroboration.
We hold that the prosecution has failed to prove its case against him and he must be acquitted of the charges against him.
The appeals by the other five, is by special leave of this Court, but what we have stated above as regards the need of corroboration of Parwati 's testimony in the Cornmiting Court applies equally in respect of each of them also.
There is no such corroboration whatsoever in respect of Parwati 's story of participation in the occurrence of Gurpadappa, Ganpati Shamraya and Tipanna.
As regards the other two appellants, Parasappa and Annaraya Shivabala, some slight corroboration has been offered by the prosecution.
That is in the presence of stains of human blood on the soles of the Chappals seized from them at the time of their arrest.
The value of this corroboration is considerably reduced however by the fact that before these chappals were seized from Parasappa on Julie 12 and from Annaraya Shivabala on June 13, these accused persons had been brought up to the place of occurrence.
There is scope therefore for thinking that the soles of the chappals became stained with blood when they walked over the blood stained ground.
It will not be reasonable thereforeto treat the presence of these blood stains on the soles of their chappals as sufficient corroboration of Parwati 's evidence against them.
The conviction of these five appellants also cannot therefore stand.
Accordingly, we allow the appeals, set aside the order of conviction and sentence passed against them and order that they be acquitted.
Appeals allowed.

summary/full:
The appellants were convicted by the High Court for com mitting three murders.
In this case the High Court considered the testimony of one "Parwati", given by her in the committing court.
She was in eye witness of the occurrence according to her testimony in the committing court.
In the sessions court she resiled from her previous statement before the committing Magistrate and made a definite statement that she had not seen the occurrence.
Her evidence before the committing court was tendered as evidence under section 288 Criminal Procedure Code in the court of sessions.
Her evidence before the committing court was not corroborated in respect of participation in the occurrence by four appellants.
The High Court convicted the appellants on the basis of the statement made by Parwati before the committing Magistrate on the ground that it was substantive evidence which did not require any corrobo ration.
Held, that the evidence of a witness tendered under section 288 of the Code of Criminal Procedure before the Sessions Court is substantive evidence.
In law such evidence is not required to be corroborated.
But where a person has made two contradictory statements on oath it is ordinarily unsafe to rely implicitly on her 590 evidence and the judge, before he accepts one or the other of the statements as true, must be satisfied that this is so.
For such satisfaction it will ordinarily be necessary for the evidence to be supported by extrinsic evidence not only as to the occurrence in general but also about the participation of the accused in particular.
But in a case where even without any extrinsic evidence the judge is satisfied about the truth of one of the statements, his duty will be to rely on such evidence and act accordingly.
Bhuboni Sahu vs The King, A.I.R. 1949 P.C. 257, relied on.
On the facts of this case, it was held that without corrobo ration from extrinsic evidence, the High Court was not justified in acting on the evidence of the only eye witness Parwati, given in the committing court.


judgement:
Appeal No. 95 of 1952.
Appeal from the judgment and decree dated the 27th February, 1950, of the High Court of Judicature at Madras (Rao and Ayyar JJ.) in Appeal No. 635 of 1946 arising, out of judgment and decree dated the 13th August, 1946, of the Court of the Subordinate Judge of Tinnevelly in Original Suit No. 50 of 1945.
K. section Krishnaswamy Iyengar (section Ramachandra with him) for the appellants.
K. Rajah Iyer (R. Ganapathy Iyer, with him) for the respondent.
April 14.
The Judgment of the Court was delivered by MAHAJAN J.
One Lakshminarayana Iyer, a Hindu Brahmin, who owned considerable properties in the Tirunelveli district, died on 13th December, 1924, leaving him surviving a widow Ranganayaki, and a married daughter Ramalakshmi.
Ramalakshmi had married the plaintiff and had a number of children from him.
They were all alive in December, 1924, when Lakshminarayana died, Before his death he 850 executed a will on 16th November, 1924, the construction of which is in controversy in this appeal.
By this will he gave the following directions "After my lifetime, you, the aforesaid Ranganayaki Amminal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me.
After your lifetime Ramalakshmi Ammal, our daughter and wife of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations.
As regards the payment of maintenance to be made to Chinnanmal alias Lakshmi Ammal, wife of my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed".
Ranganayaki entered into possession of the properties on the death of her husband.
On 21st February, 1928, she settled the maintenance claim of Lakshmi Ammal and obtained a deed of release from her by paying her a sum of Rs. 3,350 in cash and by executing in her favour an agreement stipulating to pay her a sum of Rs. 240 per annum.
Ramalakshmi died on 25th April, 1938 during the lifetime of the widow.
None of her children survived her.
On the 24th July, 1945, the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for Rs. 500.
On the 18th September, 1945, the suit out of which this appeal arises was instituted by the plaintiff, the husband and the sole heir of Ramalakshmi, for a declaration that the said sale would not be binding on him beyond the lifetime of the widow.
A prayer was made that the widow be restrained from alienating the other properties in her possession.
On the 19th September, 1945, an ad interim injunction was issued by the High Court restraining the widow from alienating the properties in her possession and forming part of her husband 's estate, In 851 spite of this injunction, on the 27th September, 1945, she executed two deeds of settlement in favour of the other defendants comprising a number of properties.
The plaintiff was allowed to amend his plaint and include therein a prayer for a declaration in respect of the invalidity of these alienations as well.
It was averred in the plaint that Ramalakshmi obtained a vested interest in the suit properties under the will of her father and plaintiff was thus entitled to maintain the suit.
The defendants pleaded that the plaintiff had no title to maintain the suit, that the widow was entitled under the will to an absolute estate or at least to an estate analogous to and not less than a widow 's estate, that the estate given to Ramalakshmi under the will was but a contingent one and she having predeceased the widow, no interest in the suit properties devolved on the plaintiff.
The main issue in the suit was whether the widow took under the will an absolute estate or an estate like the Hindu widow 's estate and whether the daughter 's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest.
The subordinate judge held that the widow took under the will a limited life, interest, and not an absolute estate or even a widow 's estate under Hindu law, and that the daughter got thereunder a vested interest in the properties to which the plaintiff succeeded on her death.
In view of this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in the suit properties and that the alienations made by her would not enure beyond her lifetime.
The question as to the validity of the alienations was left undetermined.
The unsuccessful defendants preferred an appeal against this decree to the High Court of Judicature at Madras.
During the pendency of the appeal the widow died on 14th February, 1948.
The High Court by its judgment under appeal affirmed the decision of the trial judge and maintained his view on the construction of the will.
Leave to appeal to the Supreme Court was 852 granted and the appeal was admitted on the 27th November, 1951.
The substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman 's estate under Hindu law or merely a limited life estate in the English sense of that expression.
It was not contested before us that a Hindu can by will create a life estate, or successive life estates, or any other estate for a limited term, provided the donee or the persons taking under it are capable of taking under a deed or will.
The decision of the appeal thus turns upon the question whether the testator 's intention was to give to his widow ail ordinary life, estate or an estate analogous to that of a Hindu widow.
At one time it was a moot point whether a Hindu widow 's estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a will oil his widow the same estate which she would get by inheritance.
The widow in such a case takes as a demisee and not as an heir.
The court 's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair.
Considering the will in the light of these principles,it seems to us that Lakshminarayan Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation.
He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property.
They were the real persons whom he earmarked with certainty as the ultimate recipients of 853 his bounty.
In express terms he conferred on his daughter powers of alienation byway of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers.
The direction to her was that she should enjoy the entire properties including the outstandings etc.
and these shall thereafter pass to her daughters.
Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms.
If the testator had before his mind 's eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widow 's estate on her the daughter will, only have a mere spes successions under the Hindu law which may or may not mature and under the will her interest would Only be a contingent one in what was left indisposed of by the widow.
It is significant that the testator did not say in the will that the daughter will enjoy only the properties left indisposed of by the widow.
The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same.
Just as the widow was directed to enjoy tile entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation.
They could not enjoy the same properties in the manner directed if the widow had a full Hindu widow 's estate and had the power for any purpose to dispose of them and did so.
If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow.
The widow cannot be held to have been given a full Hindu widow 's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication.
As above pointed out, admittedly power of alienation in express terms was not conferred on her.
It was argued 854 that such a power was implicit within the acts she was authorized to do, that is to say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes, if necessity arose, she could alienate the properties.
This suggestion in the surrounding circumstances attending the execution of this will cannot be sustained.
The properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will.
Indeed we find that within four years of the death of the testator the widow was able to pay a lump sum of Rs. 3,350 in cash to the daughter in law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts.
It is not shown that she alienated a single item of immovable property till the year 1945, a period of over 21 years after the death of her husband, excepting one, which she alienated in the year 1937 to raise a sum of Rs. 1,000 in order to buy some land.
By this transaction she substituted one property by another.
For the purpose of her maintenance, for payment of debts etc., and for settling the claim of the daughter in law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so.
In this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes cannot be raised.
In our opinion, even if that suggestion is accepted that for the limited purposes mentioned in the will the widow could alienate, this power would fall far short of the powers that a Hindu widow enjoys under Hindu law.
Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for 855 other authorized purposes.
It cannot be said that a Hindu widow can only alienate her husband 's estate for payment of debts, to meet maintenance charges and for her own maintenance.
She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations.
We therefore hold that the estate conferred on Ranganayaki Ammal was more like the limited estate in the English sense of the term than like a full Hindu widow 's estate in spite of the directions above mentioned.
She had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter.
Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator 's death.
She was given a present right of future enjoyment in the property.
According to Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator 's properties on his death.
It was strenuously argued by Mr. K. section Krishnaswami Iyengar that Lakshminarayana Iyer was a Brahmin gentleman presumably versed in the sastras, living in a village in the southernmost part of the Madras State, that his idea of a restricted estate was more likely to be one analogous to a Hindu woman 's estate than a life estate a, , understood in English law wherein the estate is measured by use and not by duration, and that if this will was construed in the light of the notions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widow 's estate and the daughter got under it a contingent remainder in the nature of spes and on her death there was nothing which could devolve on the plaintiff and he thus had no locus standi to question the alienations made by the widow, 856 The learned counsel in support of his contention drew our attention to a number of decisions of different High Courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions.
This rule of construction by analogy is a dangerous one to follow in construing wills differently worded and executed in different surroundings.
[Vide Sasiman vs Shib Narain (1)].
However, out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them.
Mr. Krishnaswami Iyengar sought to derive the greatest support for his contention from the decision in Ram Bahadur vs Jager Nath Prasad (2 ).
The will there recited that if a daughter or son was born to the testator during his lifetime, such son or daughter would be the owner of all his properties but if there was no son or daughter, his niece section would get a bequest of a lakh of rupees, and the rest of the movable and immovable properties would remain in possession of his wife until her death, and after her these would remain in possession of his niece.
The remainder was disposed of in the following words: "If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother 's daughter, then two thirds of the movable property will belong to the son and one third to the daughter.
But as regards the immovable property none shall have the lest right of alienation.
They will of course be entitled to enjoy the balance left after payment of rent".
This will was construed as conveying an absolute estate to the son and the daughter of the niece.
It was remarked that in spite of an.
express restriction against alienation, the estate taken by section (the niece) was an estate such as a woman ordinarily acquires by inheritance under the Hindu law which she holds in a completely representative character but is unable to (1) 491.
A. 2 5.
(2) 857 alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a Hindu has in regard to devolution of his property.
The provisions contained in this will bear no analogy to those we have to construe.
The restraint against alienation was repugnant to both a life estate and a widow ', , estate and was not, therefore, taken into account.
But there were other indications in that will showing that a widow 's estate had been given.
The fact that the gift over was a contin gent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow 's estate.
There is no such indication in the will before us.
Reliance was next placed on the decision in Pavani Subbamma vs Ammala Rama Naidu (1).
Under the will there dealt with, the widow S, was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the son 's daughter and the daughter 's son respectively.
A suit was instituted by the son 's daughter for the recovery of possession of her share in one item of property forming, part of the estate which had been sold by section The question for decision in that case was whether section was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate.
Varadachari J. held that since in the will the gift over to the grand children was of the entire Properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest.
This decision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned Judge proceeded to say " In deference to the view taken in Maharaja of Kolhapur vs sundaram Iyer (2), it may be possible to create an interest analogous to a woman 's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by section need not necessarily be only a life estate in the English law (1) (2) Mad.
1. 111 858 sense of the term.
" We do not understand how such passing observations can be helpful in deciding the present case.
Assuming that it is possible to create a Hindu woman 's estate not with standing the addition of a gift over, the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration.
The following remarks in the Privy Council decision in Nathu, Ram Mahajan vs Gangayabai(1) were next cited: As the will gave her the right to 'enjoy ' the income of the estate during her lifetime, it was evidently contemplated that she should, as provided by the Hindu law in the case of a widow, be in possession of the estate.
" Such casual observation made in respect of a will couched in entirely different terms cannot afford much assistance in the decision of the case.
In Vasantharao Ammannamma vs Venkata Kodanda Rao Pantalu(2), the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows: "Out, of the aforestated ancestral lands, the oneninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to section son of my second elder brother deceased.
My self acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter.
Thereafter they shall pass to my grandson through my daughter".
The will was construed as giving the self acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take under the law of inheritance, that is a limited estate analogous to a widow 's estate.
At page 193 of the report it was observed as follows : "The question therefore arises, did he intend to confer only a life estate or a daughter 's estate ? It seems (1) (2) , 859 to us that he meant to give a daughter 's estate rather than a life estate.
He omits the words 'during her life ' with reference to the disposition in favour of the daughter.
The words 'pass to my daughter ' would rather indicate that in the ordinary course of devolution the estate should pass to her, that is, the daughter and then to the grandsons.
The words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons.
Either he must have intended that the daughter should convey the property either by will or inter vivos to the grandsons or she having taken the estate, through her it should pass to the grandsons in the ordinary course of devolution.
If it was the daughter 's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a vested interest".
This line of reasoning which appealed to the learned judges is not of much he] ) to us here as the language hi this will is quite different.
If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. section K. Iyengar because in the will in this case the widow 's estate is delimited by the words " till your lifetime.
" Reliance was next placed on Maharaja of Kolhapur vs Sundaram Iyer (1).
That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant.
There it was said that " the widows of Sivaji Raja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widow 's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance." These remarks do not throw much light on the point before us.
The last decision referred to was the decision of the Privy Council in Mahomed Shumsool vs Shewukram(2) There a Hindu inhabitant of Bihar by a document of (1) Mad. 1.
(2) (1874 75) 2 I.A. 7. 860 a testamentary character declared his daughter who had two daughters, as his heir, and after her two daughters together with their children were declared heirs and malik.
One daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son, the respondent in that case.
In a suit by the respondent against his grandmother the daughter of the 'testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daughters succeeding her.
In this judgment the following observations were emphasized as relevant to this enquiry : " It has been contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be construed as intimating the intention of the testator that Mst.
Rani Dhun Kaur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters.
In other words, that she should take an estate very much like the ordinary estate of a Hindu widow.
In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property.
It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate.
" These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may not confer upon her by will a Hindu widow 's estate which she would otherwise get by inheritance.
Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise 861 where a Hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that.
The question in every case cannot be determined merely on the theory that every Hindu thinks only about a Hindu widow 's estate and no more.
What is given must be gathered from the language of the will in the light of the surrounding circumstances.
The learned counsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar.
He also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour.
In the first instance, he placed reliance on a decision of the Madras High Court in Ratna Chetty vs Narayana swami Chetty(1).
There the testator made a will in favour of his wife providing, inter alia, "all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chetty (nephew) and my wife, should live together amicably as of one family.
If the two could not agree and live together amicably, my wife would pay Rs. 4,000 and separate him and then my wife would enjoy all the remaining properties with absolute rights.
If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow.
" It was held upon the construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator 's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger.
This decision only decides that case and is not very relevant in this enquiry.
Reference was also made to the decision of their Lordships of the Privy Council in Mst.
Bhagwati Devi vs Chowdry Bholonath Thakur(2).
This was a case of a gift inter vivos.
The gift to Mst.
Chunderbutti, his wife, was in these terms (1) (19I4) (2) (1874 75) 2 I.A 256.
862 "the remaining 'milkiut ' and 'minhai ' 'estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst.
Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of Government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son).
" The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death.
The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow.
The Privy Council on this will held as follows " Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti.
If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband 's estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal.
But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether.
She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one.
It would also follow that she would completely represent the estate, and under certain circumstances the statute 863 of limitations might run against the heirs to the estate, whoever they might be.
Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing it according to its plain meaning.
" These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable.
This will was couched in different language than the will in the present case.
There was a clear prohibition, forbidding the widow to make any transfers of the milkiuit estates and the slaves.
Reference was also made to a decision of the Bombay High Court in Lallu vs Jagmohan(1).
The will there ran as follows: " When I die, my wife named Suraj ' is owner of that property.
And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife 's death, my daughter Mahalaxmi is owner of the said property after that.
" It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs.
After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will.
Both the learned counsel eventually conceded that the language used in the will was consistent with the testator 's intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widow 's estate.
It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance (1) Bom.
409. 864 negatived the view that the testator intended to confer upon his widow a Hindu widow 's estate as she would get in case of intestacy.
He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow 's estate " till your lifetime " and of the omission from therein of words such as nialik etc., while describing the widow 's estate.
Mr. Krisbnaswami lyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter 's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widow 's estate.
In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated and in the result, therefore, we dismiss this appeal with costs.
Appeal dismissed.
Agent for the respondent Ganpat Rai.

summary/full:
A Hindu Brahmin governed by the Mitakshara law made a will in which he gave the following directions: " After my life time, you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties .
After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange and sale from son to grandson and so on for generations.
As regards the payment of maintenance to be made to C, wife of my late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed." After the death of the testator his wife entered into possession of his properties but before the death of his wife, his daughter and all her children died: Held, (i) that on a proper construction of the will in the light of surrounding circumstances, the testator bad conferred on his 849 wife only an ordinary life estate, and alienations made by her would not endure beyond her lifetime ; (ii) that the testator 's daughter obtained under the will a vested interest in the properties after the lifetime of the widow, to which her husband succeeded on her death.
The rule of construction by analogy is a dangerous one to follow in construing wills differently worded, and executed in different surroundings.
Ram Bahadur vs Joger Nath Prasad , Pavani Subbamma vs Arumala Rama Naidu ([1937] , Nathu Rain Mahajan vs Ganga Bai ([1938] , Vasanta Rao Ammennamma vs Venkata Kodanda Rao ([1940] , Maharaja of Kolhapur vs Sundaram Iyer (I.L.R. 48 Mad. 1), Mahoned Shumsool vs Shewakram (2 I.A. 7), Ratna Chetty vs Narayana swami Chetty , Mst.
Bhagwati Devi vs Choudry Bholonath Thakur (2 I.A. 256) and Lallu vs Jagmohan (I.L.R. referred to.
Judgment of the Madras High Court affirmed.