Venkatarama Ayyar, J. -
(1.) THIS civil miscellaneous second appeal arises out of an application filed by the Respondent under Section 9 -A and Section 19 of the Madras Agriculturists Relief Act IV of 1938 for scaling down two usufructuary mortgages executed in favour of the Appellant. The first of them was on 4th September 1921 and for a sum of Rs. 2,500. It was executed by the Respondent and his brother, Velayutha Thevar, both being members of a joint undivided Hindu family. The second mortgage is dated 29th November 1932 and is for a sum of Rs. 200. On 17th May 1944, Velayutha Thevar executed a settlement deed, exhibit B -1, conveying his undivided half -share in the joint family properties to one Ramanatha, the son of his brother, Karuppiah Thevar. Ramanatha was a minor on the date of the transaction and he was represented by his father Karuppiah Thevar as his guardian. The Appellant filed Original Suit No. 48 of 1946 on the file of the Court of the District Munsif, Pattukottai, to enforce the mortgage, dated 4th September 1921. The suit was decreed. Under the provisions of the Madras Agriculturists Relief Act as they stood at that time, usufructuary mortgages were not liable to be scaled down. In 1948, the Act was amended by inserting Section 9 -A, under which usufructuary mortgages also could be scaled down under the conditions set out therein. It is under this provision that the Respondent filed Execution Application No. 174 of 1949 for scaling down the two mortgages. That the Respondent is entitled to have the debt scaled down in respect of his half -share was not in dispute. The point in controversy between the parties was with reference to the share of Velayutha Thevar in the mortgaged properties. The contention of the Appellant before the learned District Munsif was that there had been a partition between Velayutha Thevar and Karuppiah Thevar, that Velayutha Thevar had transferred his interest in the properties to Ramanatha by exhibit B -1 and that therefore under the terms of Section 9 -A(7), no relief could be granted in respect of that half -share. The learned District Munsif held that there was a partition, and he accordingly granted relief to the Respondent only in respect of his half -share. There was an appeal by the Respondent to the Court of the District Judge of West Tanjore, Appeal Suit No. 11 of 1950. The learned District Judge held that there was no partition between Velayutha Thevar and Karuppiah Thevar, and he further held that exhibit B -1 would be void as being a gift -by a co -parcener of his interest in joint family properties. He accordingly decreed that the mortgages should be scaled down in respect of the entire interests of the mortgagors. It is against this decree that the present appeal has been filed.
(2.) TWO contentions have been raised before us on behalf of the Appellant. One is that there was a partition between Velayutha Thevar and Karuppiah Thevar. In support of this contention, reliance was placed on the recitals in two documents, exhibits B -6 and B -4. Exhibit B -6 is a power -of -attorney, dated 22nd June 1904, executed by Karuppiah Thevar for himself and on behalf of his minor son Ramanatha, in favour of Velayutha Thevar. This document recites that the executants would be going to Ceylon and that Velayutha Thevar should be in management of the properties during their absence. Velayutha is described as a vibhakta or divided brother in this document. Exhibit B -4 is a release deed executed by a stranger, wherein it is recited that a particular plot fell to the share of Karuppiah. On these materials, it is argued for the Appellant that it should be held that there was a division between Velayutha Thevar and Karuppiah Thevar. In the absence of direct evidence on the matter, the learned District Judge took the view that the recitals were not conclusive to establish a partition and that they were capable of explanation. We are unable to say that this is not a view which is possible on the facts of the case and as the question is one of fact there are no grounds for interfering with the same in second appeal. The second contention that is raised is that exhibit B -1 must be construed as an alienation of the joint family properties in favour of Ramanatha made with the consent of all the co -parceners, and that such an alienation would in law be valid. It is argued that at the time of exhibit B -1 the joint family consisted of only three co -parceners; one of them Velayutha Thevar was the grantor under exhibit B -1; another of the co -parceners, minor Ramanatha, was the grantee there under, and the third co -parcener, Karuppiah Thevar, was the guardian of the minor grantee, and he must therefore be taken to have accepted the transaction. On these facts, it is argued that the settlement, exhibit B -1, must be upheld as a transfer made by one co -parcener with the consent of all the other co -parceners. Reliance is placed in support of this contention on the decision of the Privy Council in Lakhmi Chand v. Anandi, I.L.R. (1926) ALL. 313 (P.C.). The facts of that case were that there were two brothers called Baldeo Sahai and Lakhmi Chand, who were members of a joint family. Neither of them had male issue; they had only daughters. On 5th June 1915, both of them executed a joint will providing for the devolution of the properties in the manner set out therein. The will was duly registered. Thereafter, on 10th June 1915, one of the executants of the will, Baldeo Singh, died leaving behind a widow, Anandi. She claimed the properties under the will and that was resisted by Lakhmi Chand. The point for decision before the Privy Council was as to the effect of this will on the rights of the parties. It was held that Lakhmi Chand who was a party to the transaction was bound by it, and that Anandi's rights could not be disputed by him. The contention of Mr. T. Krishna Rao, the learned Advocate for the Appellant, is that if a bequest of joint family properties made by two brothers could be upheld on the basis of their consent, the gift under exhibit B -1 in favour of Ramanatha should also be upheld on the basis of the consent of all the co -parceners. We are of opinion that the decision in Lakhmi Chand v. Anandi, I.L.R. (1926) All. 313 (P.C.) has no application to the facts of this case. There, the co -parcenery consisted of only two members, and the question was as to what effect should be given to their will. In Vitla Butten v. Yamenamma, (1874) 8 M.H.C.R. 6, it was held by this Court that a will made by a member of a joint Hindu family of his interest in the property was not valid. This decision was approved by the Privy Council in Lakshman Dada Naik v. Ramchandra Dada Naik, I.L.R. (1880) 5 Bom. 48 (P.C.). These decisions were approved in Lakhmi Chand v. Anandi, I.L.R. (1926) All. 313 (P.C.) and it was held: "The document in question could not, however, operate as a will." The Privy Council next proceeded to consider if the dispositions under the will could take effect as a family settlement. Relying upon the authority in Brijraj Singh v. Shehodan Singh, I.L.R. (1913) All. 337 (P.C), it was held that though the document may fail as a testamentary disposition it might still be valid as representing a family arrangement, and that Lakhmi Chand who was a party to that arrangement could not be permitted to dispute the rights of Anandi claiming under another party to the settlement. This decision might be taken to have laid down two propositions: (i) that a will of joint family properties would be void even though it is made with the consent of all co -parceners, and (ii) that a family arrangement would be binding on the parties thereto and their representatives even though it might be embodied in a will which is inoperative. It is difficult to see how this decision is of assistance to the Appellant. So far as the first proposition is concerned, it is, if anything, against him. If we are to apply the analogy of a bequest to a gift, then it must be held that it could not be made even with the consent of all co -parceners. Nor can exhibit B -1 be upheld as a family settlement because one of the parties to the settlement was a minor. The principle on which family settlements are upheld is that persons who solemnly agree to a settlement of rights on a particular basis are precluded from setting up any rights in opposition thereto as against persons who are parties to that settlement or their representatives. But an essential condition for the enforcement of this principle is that the parties sought to be bound by the arrangement, should have the capacity to enter into it; and as Ramanatha was a minor on that date, exhibit B -1, cannot be upheld as a valid family arrangement. It is argued for the Appellant that as Karuppiah acted as the guardian of his minor son in exhibit B -1, it must be taken that he accepted it on his behalf and that that was sufficient consent. In Subbarami Reddi v. Ramamma (1), I.L.R. (1920) Mad. 824, a Hindu father who was joint with his infant son bequeathed certain properties to his widow and it was found that as a provision for maintenance it was reasonable. It was nevertheless held that the will was void because the father was not competent to dispose of joint family properties by will. The question then arose for decision whether the bequest could be upheld on the basis of the consent of the co -parceners, the father consenting on behalf of his minor son. The Court held that the father could not bind his son by his consent and that the disposition could not be upheld on that footing. Reference was then made to the decision of this Court in Patra Chariar v. Srinivasa Chariar, I.L.R. (1917) Mad. 1122, where a bequest in favour of a daughter had been upheld on the ground that it was reasonable in extent and that the relations of the minor co -parcener had agreed to it. It was observed that none of the authorities referred to in Subbarami Reddi v. Ramamma, I.L.R. (1920) Mad. 824 were placed before the Judges who decided Patra Chariar v. Srinivasa Chariar, I.L.R. (1917) Mad. 1122 and that the consent of the father would not render the bequest valid and that the minor son would not be bound by it. This decision was referred to in Lakhmi Chand v. Anandi, I.L.R. (1926) All. 313 (P.C.) with approval. If the principle of Subbarami Reddi v. Ramamma, I.L.R. (1920) Mad. 824 is to be applied to this case, it must be held that the transaction could not be upheld on the footing that Karuppiah Thevar must be taken to have given his consent on behalf of Ramanatha. Mr. T. Krishna Rao argues that the disposition in Subbarami Reddi v. Ramamma, I.L.R. (1920) Mad. 824 was in favour of a third person, whereas here it is in favour of a co -parcener, and that it would make a difference. We are unable to see why it should make a difference, whether the disposition is in favour of a stranger or a co -parcener. On the other hand, in Subbanna v. Balasubba Reddi, I.L.R. (1945) Mad. 610 (F.B.) in which it was held by a Full Bench of this Court that there could be no relinquishment by a co -parcener of his share in favour of another co -parcener; there is the following statement of the law, bearing on the present question:
The relinquishment by one co -parcener of his interest in the family estate in favour of the members of the co -par -cenery does not amount to an alienation; it merely amounts to an extinction of his interest in favour of the others. The gift of his interest to one of several other co -parceners would not mean the extinction of that interest. It would mean an alienation of it. It is well settled law, that there cannot be such a gift to a stranger and it is now clear that there cannot be a gift to a fellow co -parcener, if the family is to remain undivided.
(3.) WE are of opinion that these observations are applicable to the present case and that exhibit B -1 cannot be upheld as a valid alienation.;