- (1.) THIS second appeal arises out of the judgment and decree passed in first appeal by the Commissioner, Kota on 25th April, 1960.
(2.) BRIEFLY, the facts of the case are that the parties are members of the joint Hindu family with Narainji as their common ancestor. They held some agricultural lands and two wells in village Barondhan and Barodia, District Bundi. The well and the agricultural land in village Barondhan was mortgaged with one Chhogalal, which was redeemed subsequently in Smt. 2002 by the respondents. The respondents sold this land along with the well for Rs. 4,000/- to one Ramkalyan one of the amount was taken over by them. The land and the respondents and the well in village Barodia was a mortgaged property with the family, and as the period of limitation for redeeming the mortgage had expired, the joint Hindu family became the full owner of the property. The plaintiff appellants alleged that they were entitled to 1/4th share in the joint Hindu family as their father Gopi Ballabh had gone in adoption to Chhogalal, one of the sons of Narainji. If that plea is not accepted, the plaintiffs were entitled to 1 /6th of their share, out of the Barodia property and to a similar share in the sale proceeds of the Barondhan property. The respondents denied the plaintiffs' claim on the ground that the plaintiffs-appellants' father Gopi Ballabh had relinquished his interest in the joint family property. Further, the respondents were adversely in possession of the property. The trial Court upholding the plea of relinquishment by appellant's father dismissed the plaintiffs-appellants' suit. In the appeal before the Commissioner, Kota, filed by the present appellants the judgment of the trial court was upheld on the point of the relinquishment of his interest by the appellants' father. The counsel for the appellants has only chosen to contest the legality of the decision of the two subordinate Courts on the question of relinquishment of the interest of Gopi Ballabh, the father of the plaintiff-appellants. He has stated that only limited owners in a joint Hindu family such as a widow, can release or relinquish their interests. The full co-owners cannot relinquish their interests in the joint Hindu family property except by way of sale or gift. In support, he cited 59 Indian Cases, page 451, AIR 1924 Patna page 124 and 1927 Patna page 706. The counsel urged that Gopi Ballabh, the father of the present appellants, was admittedly a co-owner of the joint Hindu family. Even assuming that he executed the deed of the relinquishment of his interest, legally he was incapable of doing so. This relinquishment cannot be treated as a sale or a gift for want of proper consideration, on the part of Gopi Ballabh, as it was no legal obligation on his part to incur the expenditure on the death ceremony of his grand father, Narainji or on other occasion. The counsel for the respondents stated in reply that the nature of the transaction embodied in the deeds executed by Gopiballabh does not operate as a release or relinquishment, but was in the nature of a family arrangement. Besides, the land in Barodia which was mortgaged with the family was sold by the State as Escheat property and purchased by the respondents as their self acquired property in public auction, and is thus not available for division between the family. We have considered the arguments advanced by both sides on the point of law contended by the counsel for the appellants. The geneological table of the family, as produced by the plaintiff-appellants, is admitted by the respondents. This shows that Narainji was the common ancestor, and his son Onkarlal and his grandson Radhaballabh and Gopi Ballabh and the great grand sons appellants and respondents are the co-partners, and as such they have an interest in the co-parcenary property in the hands of Narainji. It is also a proved fact that the two properties of Barondhan and Barodia consisting of wells and agricultural lands were the co-parcenary property. Therefore, each co-parcenar had an interest in that property. The only plea taken by the defendants respondents, in this case was that Gopi Ballabh in lieu of some considerations relinquished or renounced his interest in the co-parcenary property. The counsel for the appellants concedes that the document renouncing the interest may be taken as proved which means that Gopi Ballabh in fact, renounce his interest in the co-parcenary property. The counsel for the plaintiff appellants placing reliance on certain rulings of the High Court, has however urged before us that this relinquishment is not legal. Only limited owners can alone relinquish. We have examined some of the rulings cited before us. AIR 1924 Patna p. 114 is not at all applicable to this case. It only states that in appeal before the High Court, a decree from a part of the record and although not tendered formally it should be printed in the Paper Book. A. I. R. 1957 Patna p. 706 is an authority on the proposition of law that no valid title can be created by relinquishment or release. The release presupposes the existence of title in a third person and does not purport to reconvey that title to him. It is tantamount to an admission of existing facts by the ostensible owner. It is no authority for saying that a co-parcener cannot release his interest. This case related to the under tenure, merging and co-parcenary tenure and has no relevancy here. We were unable to get hold of 59 Indian Gases p. 451, and thus are enable to make any comments on the applicability of that ruling to this case. Similarly, the counsel for the respondents has tried to show by citing A. I. R. 1932 All. 174 that peaceful relations between the Members of the Joint Hindu Family is a good consideration for family arrangements. He wanted us to believe that the documents executed by Gopi Ballabh, father of the present plaintiff appellants, were in the nature of a family arrangement. This is a new plea which was never taken before any of the Courts below and there is nothing in those documents to show that Gopi Ballabh in executing the release deed was making a family arrangement with regard to the property of the co-parcener. Gopi Ballabh as found the two subordinate Courts was, in fact, relinquishing or renouncing his interest in the co-parcenary property in consideration of his failure to discharge some of his debts and obligations towards the family. The two subordinate courts held this relinquishment by Gopi Ballabh, father of the present appellants, to be valid, and dismissed the plaintiffs suit for division of the holding. The point for determination before us is whether under the Hindu Law one of the co-parcener can renounce interest in the co-parcenary property or not. This point of law is well settled and in Mulla's Hindu Law in para, 264 this principle of law has been enunciated in the following manner - "a co-parcener may renounce his interest in the co-parcenery property in favour of the other co-parcenars 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 other co-parceners and not for the sole benefit of the co-parcener or co-parceners in whose favour the renunciation is made. " Thus there is much force in the contention raised by the counsel for the appellants that a co-parcener is incapable of renouncing his interest. As the law stands a coparcener can renounce his interest, but the renunciation of his interest enures for the benefit of all other co-parceners. The present plaintiffs-appellants are admittedly co-parceners, being grand-sons of Narainji, the common ancestor and when Gopi Ballabh, their father renounced his interest in the co-parcenery property, it enured for the benefit of his sons. This act of renunciation by Gopi Ballabh does not debar his sons from claiming a share in the co-parcenery property on partition of the family property. Therefore, the legal effect of relinquishment by Gopi Ballabh has been wrongly construed by the two subordinate courts, as the extinction of the interest of his sons the plaintiff appellants. As the law stands, they have a valid interest in the co-parcenery property, and the present members forming the coparcenary can claim the interest in the co-parcenary property. Thus the two subordinate courts committed an error of law in dismissing the plaintiff's suit for division of the holding on a simple point of law. With regard to the other contention of the counsel for the appellants that the renunciation did not operate as a sale or gift by Gopi Ballabh in the co-parcenery property for want of proper consideration nee d not be gone into at this stage. For the reasons stated above we accept the appeal of the appellants, set aside the decree and judgment of the two subordinate courts and remand this case to the trial court for proceeding further in accordance with law and after hearing the parties to pass fresh judgment. . ;