THAMMA VENKATA SUBBAMMA (DEAD) BY L.R. v. THAMMA RATTAMMA & ORS.

The Judgment of the Court was delivered by

F · DUTf, J. The only point that is involved in this appeal by spe- cial leave is whether a gift by a coparcener of his undivided coparce- nary interest to another coparcener is void or not .

. In order to consider the point it is necessaiy to state a few rele- vant 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 a Hindu Law. On May 4, 1959, Rami Reddy executed deed of settle- ment (Ex. A·l) in favour of his brother, Veera Reddy, conveying his entire undivided interest in the coparcenary reserving a life interest to himself and also providing that after his death, his brother should maintain his wife. Rami Reddy died in January, 1965 and shortly

... T.Y. SUBBAMMA v. T. RATTAMMA (DUTT. J.] 239

thereafter his brother Veera Reddy also died in March, 1965. It A appears that after the death of Rarni Reddy, dllierences arose between his widow and the respondent No. 1, as a result of which the widow of Rarni Reddy (since deceased) demanded a partition of her husband's share which was gifted by her husband to his brother Veera Reddy. Thereafter, she filed a suit out of which this appeal arises for partition and recovery of her husband's share after cancelling the deed of settle- B -~

- ment (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 state- - ment of the Respondent No. 3. c 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 .... r plaintiff, the plaintiff was entitled to the alternative relief of mainte- nance and separate residence under section 39 of the Transfer of Pro- perty Act, as the plaintiff's husband was legally bound to maintain his wife and the plaintiff was entitled to enforce her maintenance claim D

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 -- E on the and B Schedule properties of fhe plaint. The suit was, accord- --..., ingly, decreed by the Trial Court. ' The d~fendant-respondents filed an appeal before the Andhra '-"( Pradesh High Court. The High Court, hmvever, 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 mainte- ~· nance 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 plaintiff, the H

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A 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 behaH of the appellant, that in holding B 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. c 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 commun.ity of interest and un.ity of possession. A member of joint Hindu family has no definite share in the coparce- nary property, but he has an undivided interest in the property which D 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 concerned, it appears that such alienations were permissible in eighteenth century. E Indeed, in Suraj Bunsi Koerv. Sheo Proshad Singh and Ors., ILR 6 IA as 88 the Privy Council observed follows:-

" ........ .it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undi- vided 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 band, seem to have gone so far as to recognise an alienation by gift. There can be little doubt that all such alienations, whether volun- tary 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, founded upon the equity which a purchaser for

T.V. SUBBAMMA v. T. RATTAMMA (DUTT, J.J 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 consi- deration 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 coparccnary property for valuable consi- derations has been one of gradual growth founded upon the equity which the purchaser for value has to be allowed to stand in his vendor's C shoes and to work out his rights by means of a partition.

In Ramanna v. Venkata, ILR 11 Mad. 246 a Hindu made a gift of G 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 H

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A the property from the donee. In other words, he would not be bound ), by such an alienation. Ag,ain, in Rottala Runganatham Chetty 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. B 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 Editjon, Article 382:- c "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 D in the family property, movable or immovable, either to a stranger or to a relative except for purposes warrant.ed by special texts."

We may also refer to a passage from Mulla's Hindu Law, Fifteenth Edition, Article 258, which is as follows:, E "Gift of undividsd interest.- (1) According to the Mitakshara law as applied in all the States, no coparcener ~ can dispose of his undivided interest in coparcenary pro- - perty by gift. Such transaction being void altogether there i$ 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 undi- vided interest in the coparcenary property by way of gift. The reason ·-i 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 in the copa- rcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against

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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 alientation by gift and the law in this regard has developed 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 male Hindu in a c 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 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 gift of such interest.

Again, it may be noticed in this connection that under the. pro- viso 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 survivorship. 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, en joins 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 G r· his undivided interest in the coparcenary property to another copar· cener or to a stranger with the prior eonsent 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 ti1e legal position that a gift by a coparcener of his undivided interest in H

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A 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 q_. Suryakantam v. G. Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012. In that case, it has been held that the B law is not that a gift of an undivided share is void in the sense that it is a l -. nullity, but only in the sense that it is not binding on the other /'I'. 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 FB. some of which have been referred to above, laying down uniformly c 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. Suryakantam v. G. Suryanarayanamurthy (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 particular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselve 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 alientation by gift should be interfered with or not, the court should also take into consideration the legislative inaction in not in- terfering with the rule against alientation 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. Suryakantam's G case (supra).

In the instant case, the High Court has also noticed a decision of this court in A. Berumalakkal v. Kumaresan Ba/akrishnan 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

T.V. SUBBAMMA v. T. RATTAMMA [DUTT, J.) 245 ' of validity of such a gift on the ground of consent of other coparceners did not ariie for consideration. We do not think that it was a reason- able 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. B Coming back to the facts of the case, we find that Rami Reddy made the gift for the common benefit of the donee 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 C -- 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 th~ respon- dents that the gift should be construed as relinquishment or renuncia- tion of his undivided interest by the donor in favour of the other D coparceners: Although the gift is ostensibly in favour of Veera Reddy, but really the donor meant to relinquish his interest in the coparce'nary 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 ill 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 F 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 J!lakes it a condition that he would be paid something towards mainte- nance. The. renunciation or ·relinquishment must, of . course, be genuine. If fictitious ,and not acted upon it would .G 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 - H

2-16 SUPREME COURT REPORTS [1987] 3 S.C.R.

A 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 relin- quishment by Rani Reddy of his interest in".the coparcenary and, B 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.