Decided on September 22,1972



M.Krishna Rao J - (1.) This appeal is filed by defendants 1 and 3 to 7 against the Judgment of the learned Subordinate Judge, Bapatla in O S. No. 26 of 1967. The relationship between the parties may be stated as follows Rumireddy and Veerareddy are two brothers. The Plaintiff is the widow of Ramireddy. 'The 1st defendant is the widow of Veerareddy, defendantt 2,3, and 4 are sons and defendants 5, 6 and 7 are the daughters of Veerareddy. Ramireddy and Veerareddy were living as members of an undivided family. On 4-5-1959 Kamireddy executed a deed of Settlement Ex. A-1, when be was 80 years of age, in favour of his brother Veerareddy conveying his entire undivided interest in the family. Veerare'ddy was having children and Ramireddy was affectionately disposed toward's Veerareddy and bis children and hence he executed the said settlement deed reserving a life interest in himself and also providing that after his life time his brother should maintain his wife. Thereafter Ramireddy died in January 1965 and his brother Veerareddy too died in March, 1965. After the death of Ramireddy, differences arose between the plaintiff and the 1st defendant, as a result of which the plaintiff demanded by notice partition of the properties representing the share of her husband. The defendants replied that Ramireddy executed a deed of settlement of all his properties and that the plaintiff had only a right of maintenance. The pliantiff thereupon filed the present suit for parition and recovery of her husband's share after cancelling the deed of settlement executed by her husband as having been vitiated by, undue influence, and also on the ground that it is not valid under Hindu Law. The 3rd defendant, one of the sons of Veerareddy filed a written statement denying the plaint allegations. Defendants 1 and 4 to 7 adopted his written statervent. The Court below, on a consideration of the evidence and, probabilities in the case, held that the deed of settlement was a genuine document but vitiated by undue influence, but gave a decree to the plaintiff holding that the settlement-deed is void and inoperative under Hindu Law in the abence of consent of the other co-parceners. In his appeal the learned counsel for the respondent-plaintiff sought to challenge the adverse finding given by the court below. We have gone through the evidence and we do not see any reason to differ from the finding of the court on this point. Hence the only question which remains for consideration is whether the deed of settlement is valid under Hindu Law. It may be recalled that the principal source of Hindu Law as it stands today is judgemade law. Many a text of Hindu Law has lost its original complexion due to the impact of several in-roads made by the interpretations of commentators and judicial decisions which have reflected from time to time the spirit of the changing society. The original rule of Hindu Law prohibiting a co-parcener from dealing with his undivided interest in the coparcenery property has also suffered an appreciable cange and reform due to the development of the social life when compared to the age when the Hindu society -was governed by the texts of Hindu Law. According to the original text of Mitakshara extracted in Ponaappa v. Pllai Papayyangar "separated Kinsmen, as those who are unseparated, are equal la respect of immovable, for one has no power over the whole to mate a gift, saee, or mortgage", it was interpreted as "among unseparated kinsmen the coasent of all is indispensably requisite, because no one is fully empowered to make an alienation since the estate is in common." At lean by the middle of the 19th century it was recognised in the Madras and Bombay States that a coparcener can sell, mortgage or otherwise alienate for values bis undividied interest in the co-parcenery property without, the consent of the other co-parceners. The rigour of the original text has been obviously relaxed in favour of the alienees for value and also in favour of purchasers at an execution sale in many other provinces in India. The next stage of the development is that the creditor is allowed to bring to sale in execution the undivided inteiest of a coparcener without the concurrence of the others. He can even purchase the share and standing in the shoes of the alienating coparcener work out his rights in a general "suit for partition. But the restrictions on the power to make a gift or device of interest however continue in force. No doubt the Hindu Law texts laid down some exceptions conferring power on the father or manage to maker gifts of small extents of property within reasonable limits for religious, charitable or other pious purposes. But the rigours of this rule was attenuated in coarse of time by judicial authority by upholding gifts and testamentary dispositions of undivided coparcenery property on the ground of consent or ratification by the transferor of the disposition. Another device adopted was to treat the transaction wherever possible as a reunuciation by a coparcener. Coming to recent times, section 30 of the Hindu Succession Act, contains a statutory recognition of the right of a coparcener to dispose of by will his undivided interest in the coparcenary without the consent of the others. The only surviving relic of this antiquated Hindu Law is that.a coparcener cannot make a gift of his undivided interest in the coparcenary without the consent of the other coparceners. We have no doubt that in the near future this rule would be liquidated by the Legislature. But we have to note that the trend of judicial authority is as far as possible to uphold a gift made by a coparcsner if the consent of the other co-parceners is either express or implied or even if it is ratified at a sub sequent point of time.
(2.) We will now refer to the authorities cited on behalf of the appellants in support of the contention, that such a gift can be held to be valid if the consent of the other co-parceners is express or implied. In Tagore v Tagore]l it was observed that as to ancestral estate it is said to be improper then it should be gifted by the holder without the concurrence of those who are interested in the succession In Seth Laksamichand v. Md. Anandi]2 a bequest by an undivided coparcener of his interest was justified on the basis of a family arrangement which was acted uppn and consented to by all the cosharers. In Gundayy a Hapmant v. Srinivas Narayan]3 a gift by ons coparcener of his interest was held to be valid on the ground of mutual concurrence. The true principle is stated to be that a coparcener cannot do any act which is to the prejudice of the other coparceners or whica infringes their rights over the common property except with their consent express or implied. Ram SaramSingh v. Prithipal Singh]4 is a case where one coparcener makes a gift of his interest in favour of the remaining coparcener.
(3.) In such a case the consent of the remaininig coparcener is implied or It can be jusitfied as a relinquishment by one in favour of the other. In Snbbanna v. Balasubbaredal] it was held that where a coparcener relinquisbes his interest in favour of only some of the other coparceners, it operates as a relinquisbment in favour of all the other coparceners, and such a transaction is not affected if the out-going coparcener takes a trifle. In Rathnasabmathy v. Saraswathi Ammal a Division Bench of the Madras High Court, while notng that a gift of undivided coparcenery interest is not permitted under Hindu Law, however held that such a gift can be made with the consent of all the coparceners and that with such consent the gift may be even to a stranger or a charity. The next is a direct decision of a Division Bench of the Andhra Pradesh High Court in Suryakaotam v. Suryarayanamurthy]3 That was a case where a coparcener executed a deed of settlement of his undivided share in the joint family properties in favour of his wife and mothfr witht a condition that he should be 'maintained for life by payment of Rs 200/- as maiotenancejper annum. After the death of the donee the remaining'coparceners ratified this transaction, at a partition between them. It was accordingly held as follows: "The rule of law is not that the gift of undivided share is void in the sense that it is a gullity but only in the sense that it is not binding on the other coparceners. The rule is that no such gift can be made without the concurrence of the persons affected. But, whereas in this case the members of the family subsequently recognised and acted upon the gift and- allotted a share to the donee, the transaction cannot be attacked by a stranger or the donor himself. Hence there could be no impediment of law io passing of a good title in favour of the minor wife under that arrangement".;

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