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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