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PETITIONER: THAMMA VENKATA SUBBAMMA (DEAD) BY L.R.

       Vs.

RESPONDENT: THAMMA RATTAMMA & ORS.

DATE OF JUDGMENT06/05/1987

BENCH: DUTT, M.M. (J) BENCH: 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  undi- vided  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  relin- quishment of a coparcener’s interest in favour of his broth- er 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

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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 disin- tegrated. [242G-H; 243A-B]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  258  of 1974     From  the  Judgment  and Order dated  22.9.1972  of  the

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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  re- spondents  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 settle- ment  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

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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  prevail- ing  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  sepa-               rate 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 compul-               sory, 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  ven-               dor’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-

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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  enti- tled  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 coparcen-               er  in  a Mitakshara family of  his  undivided               interest is wholly invalid ..................               .............................................                A coparcener cannot make a gift of his  undi-               vided 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

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             to   the Mitakshara law as applied in all  the               States,  no  coparcerer  can  dispose  of  his               undivided interest in coparcenary pro perty 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 appear- ing  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 coparce- nary property by way of gift. The reason is, however,  obvi- ous. 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  proper- ty.  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 proper- ty. 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 copar- cener can dispose of his undivided interest in the  coparce- nary  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  succes- sion, 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

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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. Suryak- antara  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  proposi- tion  of law laid down in G. Suryakantara v.  G.  Suryanara- yanamurthy (supra) that a gift by a coparcener of his  undi- vided interest in the joint family property is not void, but is only not binding on the other coparceners. When a partic- ular  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 donee  as

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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  coparce- nary  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  renuncia- tion 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 renuncia-               tion  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  renuncia-               tion  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,  accord- ingly, 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  dis- missed. 247