LexAMMATHAYEE AMMAL & ANR. versus KUMARESAN & OTHERS
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A AMMATIIAYEE AMMAL & ANR. v. KVMARESAN & OTHERS ' September 15, 1966 B [K. N. WANCHOO, J.M. SHELAT AND G. K. MITTER, JJ.j c D E F G H Hindu Law-ImmC1Vable property belonging ta joint /amily-HtUbawi whether can (/ift such property to his wife-Doctrine of 'pious obliga1ion', applicability. Indian Evidence Act, 1812, s. 112-Presumption o(legitlm«y under. R was a man of considerable property. He married four times. The third wife bore him a son. When R made a gift of some joint family proper!}i to his second wife the third wife gave a notice that the gift was not valid. R, in his reply to the DOtice alleged, that she bad deserted him and that the son born of her was not his. These allegations were denied by the third wife. After the death of R a suit was instituted by the said son claiming a half share of thi» property left by R. The two living step mothers, namely, the second and fourth wives of R contested the suit. Tho questions were whether 1ho plaintift was tho son of R and whether the gift deed was valid. The trial court held on both points in favour of ·the plaintiff and the High Court also decided against the two step-mothers who thereupon appealed to this Court. The appellants con- tended that (I) the courts below had wrongly held the plamtiff respon- dent to be the legitimate son of R (2) R's gift of ancestral immovable property was valid becanse it was a gift for 'pious purposes'. HEW : (i) Section 112 of the Evidence Act raises, inter a/ia, a con- clusive presumption that a child born during the continuance of a valid marriage between his mother and any man is the legitimate son of the man, and this conclusive presumption can only be rebutted if it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The appellants had completely failed to prove the non-access of R to his third wife at any time when the plain- tiff-respondent could have been begotten. In these circumstances there was no reason to interfere with the concurrent finding of the courts below that the plaintiff-respondent was the legitimate son of R. [357 E-F] (ii) The contention of the don.ee appellant that the gift in her favour by her husband of ancestral immovable prol'erty made out ot affection should be upheld must fail because no .. uch gift is permitted under Hindu Law insofar as immovable ancestral property is concerned. The scope of the expression 'pious pwposes' cannot be extended to include such gifts. [359 DJ Kamala Devi v. Bachu Lal Gupta, [1957] S.C.R. 452 and Guramma Bharattll' Chanbassappa Deshmukh v. Ma/appa, [1964] 4 S.C.R. 497, re- ferred to. (iii) Nor can the proposition be accepted that a father.in-law can make a gift of ancestral immovable property in fav')ur of his daughter- in-law at the time of her marriage. The case of • daughter-in-law who would become entitled to property in the fath~'~w's family in her own right stands on a very different footing ft'Oll:k the case of daughter who is being married and to whom a reasonable gift of ancestral ijnmov- able property can be made. [360 A-Bl The rule of Hindu law that gifts made in token of love by a father- in-law to his daughter-in-law are permitted and become the 11rldhan pro- 354 SUPREME COURT REPORTS (1967) l S.C.R. perty must be taken to refer to gifts of movable properties and such im- A movable properties as are not joint family properties. (360 C-E] R's gift of immovable ancestral property to his second wife could not therefore be considered to be valid even if it was In purported com- pliance with the wishes of his father at the time of her marriage. (360 0-HJ CIVIL APPELLATE JURISDICTIOS: Civil Appeal No. 618 of 1964. s Appeal from the judgment and decree dated November 29, 1960 of the Madras High Court in Appeal Suit No. 207 of 1957. Sarjoo Prasad and M. S. Narasimhan, for the appellants. S. V. Gupte, S-0/icitor-General and A. G. Ratnaparkhi, for respondents Nos. I and 2. R. Ganapathy Iyer, for respondent No. 3. The Judgment of the Court was delivered by Wanchoo, J, This is an appeal on a certificate granted by the Madras High Court and arises in the following circumstances. One Rangaswami Chettiar was a man of considerable property and used to Jive in Poolathur village. He first married one Bappini and had a son by her. But both the son and Bappani died. He therefore married Ammathayee, who was defendant No. 2 in th
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