Thamma
Venkata Subbamma Vs. Thamma Rattamma & Ors [1987] INSC 157 (6 May 1987)
DUTT,
M.M. (J) DUTT, M.M. (J) NATRAJAN, S. (J) CITATION: 1987 AIR 1775 1987 SCR (3)
236 1987 SCC (3) 294 JT 1987 (2) 440 1987 SCALE (1)1000
ACT:
Hindu
Law--Mitakshara School of Hindu Law-Gift by a Coparcener of his undivided
coparcenary interest to another coparcener without consent of other
coparceners--Whether valid or void--Held-Valid.
Hindu
Succession Act 1956--Section 30---Interpretation of.
HEADNOTE:
A
coparcener in a Joint Hindu Family governed by the Mitakshara school in Hindu
Law executed a deed of settlement (which indisputably was really a deed of
gift) in favour of another coparcener (his brother) conveying his entire
undivided interest in the coparcenary but reserving a life interest to himself
and also providing that after his death the other coparcener should maintain
his wife. In a suit for partition and recovery of the property filed by the
widow of the coparcener who executed a deed of settlement on the ground that
the gift deed was a void document under the Hindu Law, the Trial Court held
that the deed of settlement was void and inoperative under the Hindu Law in the
absence of consent of the other coparcener. On appeal the High Court held that
the deed of settlement was valid. In this appeal by special leave the question
for consideration was whether a gift by a coparcener of his undivided
coparcenary interest to another coparcener is void or not. The argument of the
respondent was that it was a case of renunciation or relinquishment of a
coparcener's interest in favour of his brother and his sons.
Dismissing
the appeal, this Court.
HELD:
1. A gift made by the coparcener to his brother should he construed as
renunciation of his undivided inter- est in the coparcenary in favour of his
brother and his sons, who were the remaining coparceners. A gift was, there-
fore, valid and consent of other coparceners was immaterial.
[246A-B]
Mulla's Hindu Law, Fifteenth Edition, Article 264 at page 357, referred to.
237
2.
It is, however, settled law that a coparcener may alienate his undivided
interest in the coparcenary property for a valuable consideration even without
the consent of other coparceners. Such recognition of alienations of copar-
cenary property for valuable considerations has been one of gradual growth
rounded upon the equity which the purchaser for value has to be allowed to
stand in his vendor's shoes and to work out his rights by means of a partition.
[244B-C] Suraj Bunsi Koer v. Sheo Proshad Singh and Ors., ILR 6 IA 88, referred
to.
3.
The personal Law of the Hindus governed by Mitakshara school of Hindu Law is
that a coparcener can dispose of his undivided interest in the coparcenary
property by a will but he cannot make a girt of such interest. [243D] Ponnusami
v. Thatha and Ors., ILR 9 Madras, 273; Ramanna v. Venkata, ILR 11 Madras 246;
Rottala Rungunatham Chetty v. Pulicat Ramasami Chetti, ILR 27 Madras, 162;
Mayne's Hindu Law, Eleventh Edition, Article 382 and Mulla's Hindu Law, Fiteenth
Edition, Article 258, referred to.
4.
It is a settled law that a coparcener can make a gift of his undivided interest
in the coparcenary property to another coparcener or to a stranger with the
prior consent of other coparceners. Such a gift will be quite legal and valid.
[243G]
5.
When a particular state of law has been prevailing for decades in a particular
area and the people of that are having adjusted themselves with that law in
their daily life. it is not desirable that the court should upset such law
except under compelling circumstances. It is for the Legislature to consider
whether it should change such law or not. It may be legitimately presumed that
before the passing of the Hindu Succession Act, 1956, the Legislature must have
taken into consideration the prohibition against making of gifts by a
coparcener of his undivided interest in the coparcenary property, but the
Legislature has not, except permitting the coparcener to make a will in respect
of his undivided interest by section 30 of the Hindu Succession Act, altered
the law against making of gift by a coparcener of his undivided interest. While
considering whether the strict rule against alienation by girt should he
interfered with or not, the court should also take into consideration the legislative
inaction in not interfering with the rule against alienation by gift, while
enacting the Hindu Succes- sion Act. [244D-G] 238 G. Suryakantam V.G.
Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012, differed.
A.
Perumalakkal v. Kumaresan Balakrishnan and Ors., [1967] SC 560, referred to.
6.
That an individual member of the joint Hindu family has no definite share in
the coparcenary property. By an alienation of his undivided interest in the
coparcenary property, a coparcener cannot deprive the other coparceners of
their right to the property. The object of this strict rule against alienation
by way of gift is to maintain the jointness of ownership and possession of the
coparcenary property. It is true that there is no specific textual authority
prohibiting an alienation by gift and the law in this regard has developed
gradually, but that is lot the purpose of preventing a joint Hindu family from
being disintegrated. [242G-H; 243A-B]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 258 of 1974 From the Judgment and
Order dated 22.9.1972 of the Andhra Pradesh High Court in Appeal No. 549 of
1969.
T.S.
Krishnamurthy. G. Prabhakar and G. Narsimhulu for the Appellant.
P.P.
Rao, T.C. Gupta and G.N. Rao for the Respondents.
The
Judgment of the Court was delivered by DUTT, J. The only point that is involved
in this appeal by special leave is whether a gift by a coparcener of his
undivided coparcenary interest to another coparcener is void or not.
In
order to consider the point it is necessary to state a few relevant facts. Two
brothers, Rami Reddy and Veera Reddy and the sons and daughters of the latter
being respondents Nos. 2 to 7 herein, constituted a joint Hindu family governed
by the Mitakshara School of Hindu Law. On May 4, 1959, Rami Reddy executed a
deed of settlement (Ex.
A-1)
in favour of his brother, Veera Reddy, conveying his entire undivided interest
in the coparcenary reserving a fife interest to himself and also providing that
after his death, his brother should maintain his wife. Rami Reddy died in
January, 1965 and shortly 239 thereafter his brother Veera Reddy also died in
March, 1965.
It
appears that after the death of Rami Reddy, differences arose between his widow
and the respondent No. 1, as a result of which the widow of Rami Reddy (since
deceased) demanded a partition of her husband's share which was gifted by her
husband to his brother Veera Reddy. Thereafter, she file.1 a suit out of which
this appeal arises for partition and recovery of her husband's share after
cancelling the deed of settlement (Ex. A-1), inter alia on the ground that it
was a void document under the Hindu Law. The suit was contested by the
respondents Nos. 1 to 7. The respondent No.
3
filed a written statement denying the plaint allegations.
The
other respondents adopted the written statement of the Respondent No. 3.
The
Trial Court, on a consideration of the evidence adduced on behalf of the
parties held, inter alia, that the deed of settlement was void and inoperative
under the Hindu Law in the absence of consent of the other coparceners.
Further,
it was held by the Trial Court that even assuming that the deed of settlement
was valid and binding on the plaintiff, the plaintiff was entitled to the
alternative relief of maintenance and separate residence under section 39 of
the Transfer of Property Act, as the plaintiff's husband was legally bound to
maintain his wife and the plaintiff was entitled to enforce her maintenance
claim with a charge on the properties in suit. In that view of the matter, the
Trial Court held that the plaintiff was entitled to a sum of Rs. 1,200 per
annum towards her maintenance and separate residence with a charge on the A and
B Schedule properties of the plaint. The suit was, accordingly, decreed by the
Trial Court.
The
defendant-respondents filed an appeal before the Andhra Pradesh High Court. The
High Court, however, did not agree with the finding of the Trial Court that the
deed of settlement was void. It was held by the High Court that the deed of
settlement was valid. The judgment and decree of the Trial Court was set aside
and the suit was dismissed in so far as it related to the cancellation of the
deed of settlement and recovery of possession of the suit properties by way of
partition. But the decree passed by the Trial Court awarding maintenance to the
plaintiff at the rate of Rs.
1,200
per annum, that is to say, at the rate of Rs. 100 p.m.
from
the date of filing of the suit and creating a charge for the amount of
maintenance on the suit properties was upheld by the High Court. The appeal was
allowed in part.
Hence
this appeal by special leave.
During
the pendency of this appeal in this Court the plain- tiff, the 240 widow of
Rami Reddy, died and the present appellant, who is her heir and legal
representative, has been substituted in her place.
It
is not disputed that the deed of settlement (Ex. A-1) is really a deed of gift.
It has been strenuously urged by Mr. Krishnamurthy Iyer, learned Counsel
appearing on behalf of the appellant, that in holding that the gift in question
was legal and valid, the High Court committed an error of law in the face of
the legal position particularly prevailing in the erstwhile State of Madras of
which the present State of Andhra Pradesh was a part, as recognised in several
judicial decisions that a gift of coparcenary property by a coparcener without
the consent of the other coparceners is void.
The
parties are admittedly governed by the Mitakshara School of Hindu Law. The
essence of a coparcenary under the Mitakshara School of Hindu Law is community
of interest and unity of possession. A member of joint Hindu family has no
definite share in the coparcenary property, but he has an undivided interest in
the property which is liable to be enlarged by deaths and diminished by births
in the family.
An
interest in the coparcenary property accrues to a son from the date of his
birth. His interest will be equal to that of his father.
So
far as alienations of coparcenary property are con- cerned, it appears that
such alienations were permissible in eighteenth century. Indeed, in Suraj Bunsi
Koer v. Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council ob- served
as follows:- " ......... it has been settled law in the presidency of
Madras that one coparcener may dispose of ancestral undivided estate, even by
contract and conveyance, to the extent of his own share; and a fortiori that
such share may be seized and sold in execution for his separate debt.
.................
But it appears .............
that,
in order to support the alienation by one coparcener of his share in undivided
property, the alienation must be for value.
The
Madras Courts, on the other hand, seem to have gone so far as to recognise an
alienation by gift. There can be little doubt that all such alienations,
whether voluntary or compulsory, are inconsistent with the strict theory of a
joint and undivided Hindu family; and the law as established in Madras and
Bombay has been one of gradual growth, rounded upon the equity which a
purchaser for 241 value has to be allowed to stand in his vendor's shoes, and
to work out his rights by means of a partition." Thus, the Privy Council
also noticed that in Madras alienations by gift were recognised. Such
alienations were held by their Lordships to be inconsistent with the strict
theory of joint and undivided Hindu family. It is, however, a settled law that
a coparcener may alienate his undivided interest in the coparcenary property
for a valuable consid- eration even without the consent of other coparceners.
As has been observed by the Privy Council in Suraj Bunsi Koer's case (supra),
such recognition of alienations of coparcenary property for valuable
considerations has been one of gradual growth rounded upon the equity which the
purchaser for value has to be allowed to stand in his vendor's shoes and to
work out his rights by means of a partition.
After
the above Privy Council decision, there has been a gradual growth in Madras of
a particular legal position in regard to alienations by way of gift. Although
at the time of the judgment of the Privy Council in Suraj Bunsi Koer's case,
the Madras Courts recognised alienations by gift, as time passed the courts of
law declared alienations by gift of undivided interest in coparcenary
properties as void. The leading decision on the point is the case of Baba v.
Timma and Ors., ILR 7 Mad. 357 FB, where it has been held that a Hindu father,
if unseparated, has no power, except for purposes warranted by special text, to
make a gift to a stranger of ancestral estate, movable or immovable. In that
case, the gift was made by the father to a stranger to the detriment of the
sons' right in the property gifted. In Ponnusami v. Thatha and Ors., ILR 9 Mad.
273, the gift was made by a brother to the children of his daughter. It was
held that under the Hindu Law a voluntary alienation by gift of joint family
property could not be made by an undivided coparcener, unless permitted by an
express text. Thus, the cumulative effect ,of Ponnusami's case and Baba's case
(supra) is that a coparcener cannot make a gift of his undivided interest in
the coparcenary property either in favour of a stranger or in favour of his
relations.
In
Ramanna v. Venkata, ILR 11 Mad. 246 a Hindu made a gift of certain land which
he had purchased with the income of ancestral property, and a suit was brought
to recover the land on behalf of his minor son, who was born even seven months
after the date of the gift. It was held that the gift was invalid as against
the plaintiff, and that he was entitled to recover the land from the donee.
Thus, a son, who was born to the family after the gift was made, was held
entitled to recover 242 the property from the donee. In other words, he would
not be bound by such an alienation. Again, in Rottala Runganathan Cheuy v
Pulicat Ramasami Chetti, ILR 27 Mad. 162 it has been held that it is not
competent to an individual-member of a Hindu family to alienate by way of gift
his undivided share or any portion thereof;' and such ,an alienation, if made,
is void in toto.
There
is a long catena of decisions holding that a gift by a coparcener of his
undivided interest in the coparcenary property is void. It is not necessary to
refer to all these decisions. Instead, we may refer to the following statement
of law in Mayne's Hindu Law, Eleventh Edition, Article 382:- "It is now
equally well settled in all the Provinces that a gift or devise by a coparcener
in a Mitakshara family of his undivided interest is wholly invalid
..................
.............................................
A
coparcener cannot make a gift of his undivided interest in the family property,
movable or immovable, either to a stranger or to a relative except for purposes
warranted by special texts." We may also refer to a passage from Mulla's
Hindu Law, Fifteenth Edition, Article 258, which is as follows:-- "Gift of
undivided interest.-- (1) According to the Mitakshara law as applied in all the
States, no coparcerer can dispose of his undivided interest in coparcenary property
by gift. Such transaction being void altogether there is no estoppel or other
kind of personal bar which preclude the donor from asserting his right to
recover the transferred property.
He
may, however, make a gift of his interest with the consent of the other
coparceners." It is submitted by Mr. P.P. Rao, learned Counsel appearing
on behalf of the respondents, that no reason has been given in any of the above
decisions why a coparcener is not entitled to alienate his undivided interest
in the coparcenary property by way of gift. The reason is, however, obvious. It
has been already stated that an individual member of the joint Hindu family has
no definite share in the coparce- nary property. By an alienation of his
undivided interest 19 the coparcenary property, a coparcener cannot deprive the
other coparceners of their right to the property. The object of this strict
rule against 243 alienation by way of gift is to maintain the jointness of
ownership and possession of the coparcenary property. It is true that there is
no specific textual authority prohibiting an alienation by gift and the law in
this regard has de- veloped gradually, but that is for the purpose of
preventing a joint Hindu family from being disintegrated.
The
rigor of this rule against alienation by gift has been to some extent relaxed
by the Hindu Succession Act, 1956. Section 30 of the Act permits the
disposition by way of will of a male Hindu in a Mitakshara coparcenary
property. The most significant fact which may be noticed in this connection is
that while the Legislature was aware of the strict rule against alienation by
way of gift, it only relaxed the rule in favour of disposition by a will the
interest of a mate Hindu in a Mitakshara coparcenary property. The Legislature
did not, therefore, deliberately provide for any gift by a coparcenary of his
undivided interest in the coparcenary property either to a stranger or to
another coparcener. Therefore, the personal law of the Hindus, governed by
Mitakshara School 0f Hindu Law, is that a coparcener can dispose of his undivided
interest in the coparcenary property by a will, but he cannot make a gift of
such interest.
Again,
it may be noticed in this connection that under the proviso to section 6 of the
Hindu Succession Act, if the deceased had left him surviving a female relative
specified in class I of the Schedule or a male relative specified in that class
who claims through such female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under the Act and not by survivor- ship. The
devolution of interest in coparcenary property by survivorship has been altered
to testamentary or intestate succession, as enjoined by the proviso to section
6 relating to a female relative or a male relative claiming through such female
relative. The substantive provision of section 6, however, enjoins that the
interest of a male Hindu in a coparcenary property will devolve by survivorship
upon the surviving members of the coparcenary and in accordance with the
provisions of the Act.
It
is, however, a settled law that a coparcener can make a gift of his undivided
interest in the coparcenary property to another coparcener or to a stranger
with the prior con- sent of all other coparceners. Such a gift would be quite
legal and valid.
The
High Court has noticed most of the above decisions and also legal position that
a gift by a coparcener of his undivided interest in 244 the coparcenary
property without the consent of the other coparceners is void. The High Court
has also noticed the provisions of sections 6 and 30 of the Hindu Succession Act.
The
learned Judges of the High Court have, however, placed much reliance upon its
previous Bench decision in G. Suryakantara v. G. Suryanarayanamurthy and Ors.,
AIR 1957 Andhra Pradesh 1012. In that case, it has been held that the law is
not that a gift of an undivided share is void in the sense that it is a
nullity, but only in the sense that it is not binding on the other coparceners.
No authority has, however, been cited in support of that proposition of law. On
the contrary, there is a long series of decisions since the decision in Baba v.
Thimma and Ors., ILR 7 Mad. 357 some of which have been referred to above,
laying down uniformly that a gift by a coparcener of his undivided interest in
the coparcenary property either to a stranger or to his relation without the
consent of the other coparceners is void. In the circumstances, it is very
difficult to accept the proposition of law laid down in G. Suryakantara v. G.
Suryanara- yanamurthy (supra) that a gift by a coparcener of his undivided
interest in the joint family property is not void, but is only not binding on
the other coparceners. When a particular state of law has been prevailing for
decades in a particular area and the people of that area having adjusted
themselves with that law in their daily life, it is not desirable that the
court should upset such law except under compelling circumstances. It is for
the Legislature to consider whether it should change such law or not. It may be
legitimately presumed that before the passing of the Hindu succession Act,
1956, the Legislature must have taken into consideration the prohibition
against making of gifts by a coparcener of his undivided interest in the
coparcenary property, but the Legislature has not, except permitting the
coparcener to make a will in respect of his undivided inter- est by section 30
of the Hindu Succession Act, altered the law against making of gift by a
coparcener of his undivided interest. While considering whether the strict rule
against alienation by gift should be interfered with or not, the court should
also take into consideration the legislative inaction in not interfering with
the rule against alienation by gift, while enacting the Hindu Succession Act.
In the circumstances, we are unable to accept the proposition of law that has
been laid down in G. Suryakantarn's case (supra).
In
the instant case, the High Court has also noticed a decision of this court in
A. Berumalakkal v. Kumaresan Balakrishnan and Ors., AIR 1957 SCR 569, that a
gift of a coparcenary property is not valid under the Hindu Law except for
specified purposes. That case has been distinguished by the High Court on the
ground that the question 245 of validity of such a gift on the ground of
consent of other coparceners did not arise for consideration. We do not think
that it was a reasonable distinction that could be made of the law laid down by
this Court merely because the question of consent of other coparceners did not
arise. This Court, therefore, also has laid down against the validity of a gift
of an undivided share in the coparcenary property.
Coming
back to the facts of the case, we find that Rami Reddy made the gift for the
common benefit of the done as well as his sons as held by the High Court. It is
submitted on behalf of the respondents that really it is a ,case of
renunciation or relinquishment by Rami Reddy of his interest in favour of his
brother and his sons. It was the intention of the donor that the property might
be enjoyed by his brother and his sons and, excepting that the donor had reserved
to himself a life interest, presumably for his maintenance, he gifted his entire
interest in the coparcenary property to his brother. There is some force in the
contention of the learned Counsel for the respondents that the gift should be
construed as relinquishment or renunciation of his undivided interest by the
donor in favour of the other coparceners. Although the gift is ostensibly in
favour of Veera Reddy, but really the donor meant to relinquish his interest in
the coparcenany in favour of Veera Reddy and his sons. In this connection, we
may refer to the following passage from Mulla's Hindu Law, Fifteenth Edition,
Article 264 at page 357:- "Art. 264. (1)Renunciation ,or relinquishment of
his share.---A coparcener may renounce his interest in the coparcenary property
in favour of the other coparceners as a body but not in favour of one or more
of them. If he renounces in favour of one or more of them the renunciation
enures for the benefit of all other coparceners and not for the sole benefit of
the coparcener or coparceners in whose favour the renunciation is made. Such
renunciation is not invalid even if the renouncing coparcener makes it a
condition that he would be paid something towards maintenance. The renunciation
or relinquishment must, of course, be genuine. If fictitious and not acted upon
it would not be operative as between the parties and partition can be
claimed." Assuming that it is a renunciation in favour of one of the
coparceners, namely, Veera Reddy, such renunciation enures for the benefit of
all other coparceners and. not for the sole benefit of the 246 coparcener in
whose favour the renunciation was made. In our view, the gift made by Rami
Reddy to Veera Reddy should be construed as renunciation of his undivided
interest in the coparcenary in favour of Veera Reddy and his sons who were the
remaining coparceners. The gift was, therefore, valid construing the same as
renunciation or relinquishment by Rani Reddy of his interest in the coparcenary
and, accordingly, the consent of other coparceners was immaterial.
In
the result, the conclusion arrived at by the High Court is affirmed though on a
different ground. The appeal is dismissed. There will, however, be no order as
to costs.
H.S.K.
Appeal dismissed.
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