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2012 DIGILAW 736 (MAD)

Thandavarayan v. Janaki

2012-02-10

T.RAJA

body2012
Judgment :- 1. The defendants 1 and 2, who failed before both the Courts below, have defendants 1 e preferred the present Second Appeal, challenging the concurrent findings rendered in their respective judgments. 2. The plaintiffs 1 and 2/respondents 1 and 2 herein (mother and son respectively) filed a suit for declaration of title and injunction in O.S. No.72 of 1998 on the file of the learned Additional District Munsif, Tindivanam. The 1st plaintiff is the wife of the 3rd defendant and the 2nd plaintiff is the son of both the 1st plaintiff and the 3rd defendant. In respect of the property owned by him, the 1st plaintiff's husband-the 3rd defendant had executed a settlement deed dated 22.7.1969-Ex.A1, in favour of the plaintiffs, vividly mentioning that the 1st plaintiff-wife of the 3rd defendant would enjoy life estate till her life time and after her death the said property would devolve upon the 2nd plaintiff-son, with absolute right over the suit property having an extent of 1.82 cents. After a long time, the 3rd defendant, by cancelling the settlement deed, dated 22.7.1969, executed a deed of cancellation, dated 01.7.1997-Ex.B.4 and, on the same date, the 3rd defendant/3rd respondent had executed a sale deed dated 01.7.1997-Ex.B1 selling half share in Item Nos.2,3,4,5,7 and 8 in favour of 1st defendant/1st appellant. By another sale deed dated 1.7.97 under Ex.B3, the 3rd defendant/3rd respondent sold Item No.1 in favour of the 2nd defendant/2nd Appellant. Aggrieved by the cancellation of the settlement deed and the sale of the joint family property by the 3rd defendant, the plaintiffs filed the suit for declaration of title and permanent injunction of the suit property on the ground that the suit property being joint family property of the 3rd defendant/3rd respondent herein and his son-2nd plaintiff/2nd respondent, after settling the suit property by way of settlement deed, the 3rd defendant-father of second plaintiff cannot alienate the property by unilaterally cancelling the settlement deed through cancellation. It was an admitted case of both the plaintiffs and the 3rd defendant before the trial Court that the suit property is a joint family property of the 3rd defendant and his son-2nd plaintiff. It was an admitted case of both the plaintiffs and the 3rd defendant before the trial Court that the suit property is a joint family property of the 3rd defendant and his son-2nd plaintiff. The trial Court, after finding that the suit property was allotted to the 3rd defendant in a partition between him and his brothers, whereupon, the said property allotted to the 3rd defendant in the partition had become his separate property, concluded that the 3rd defendant is entitled to gift the same, however, after gifting the same in favour of the plaintiffs, when there is no specific clause for revocation in the settlement deed, the settlement cannot be revoked by cancellation through Ex.B4 dated 1.7.1997. Concluding thus, the sale of property in favour of 1st and 2nd defendants through Exs.B1 and B3 was rendered as invalid. 3. Aggrieved by that, when appeal was filed before the Additional Sub Court, Tindivanam, in A.S. No.86 of 2003, the said Court also held against the 1st and 2nd defendants/1st and 2nd appellants herein by observing that the suit property having been handed over to the donees, it amounts to acceptance of the gift and that once a valid gift was accepted, the same could not be revoked, and ultimately confirmed the judgment and decree of the trial Court. 4. The unsuccessful defendants 1 and 2 have preferred this second appeal before this Court and, at the time of admission, the following substantial questions of law have been formulated for consideration: "a. Are the courts below justified in upholding the validity of Ex.A.1 settlement deed, overlooking that the properties dealt with under Ex.A.1 settlement deed are admittedly joint family properties of 3rd defendant and his son ? b. When the execution and validity of Ex.A.1 Settlement Deed is specifically denied and not admitted, is it not the duty of plaintiffs to produce the original of Ex.A.1 and to prove the due execution of the same as contemplated under Section 68 of Indian Evidence Act ?" 5. The second appeal was filed in the year 2006. Notice to the respondents was ordered on 10.4.2006 including private notice. On 20.03.2006, M/s J.Ruth Nalini Vijaya Sekari took notice for the caveators. After four years, when the matter was taken up on 02.8.2010, there was no appearance on behalf of the respondents and the matter was ordered to be posted 'for final disposal on 04.10.2010'. Notice to the respondents was ordered on 10.4.2006 including private notice. On 20.03.2006, M/s J.Ruth Nalini Vijaya Sekari took notice for the caveators. After four years, when the matter was taken up on 02.8.2010, there was no appearance on behalf of the respondents and the matter was ordered to be posted 'for final disposal on 04.10.2010'. On 12.1.2012 this matter was part-heard and for reply, the same has been posted on 18.1.2012 and on that day, orders were reserved. 6. Along with the aforesaid two substantial questions of law, the learned counsel appearing for the appellants requested this Court to formulate one more substantial question of law which is extracted hereunder: "Whether a co-parcener who is entitled to have half share in the co-parcenary property is legally entitled to gift or alienate his specific half share to a stranger by way of sale?" 7. Since the first and third substantial questions of law are interconnected, they are dealt with together. In respect of the same, Mr.A.K.Kumarasamy, the learned counsel for the appellants, assailing the concurrent findings, pleaded that the properties conveyed through the settlement deed Ex.A.1 are only half share of second plaintiff's father/3rd defendant, therefore, a co-parcener can very well dispose of his own share undivided interest in the coparcenary property by way of sale. 7-A. Learned counsel has referred to a judgment of a Division Bench of Andhra Pradesh High Court in ASHOK KUMAR RATANCHAND V. COMMISSIONER OF INCOME TAX ( 1990 (186) ITR 475 ) for the proposition that when a property is received by an assessee on partition, as he is a single member, the same does not constitute a Hindu Undivided Family because his status is that of an individual. The fact of his marriage does not alter the position and in the absence of a son, the personal law of the assessee regards him as the owner of the property received by him on partition. On this basis, the learned counsel for the appellant contended that a sole surviving coparcener can deal with the property as he likes as a full owner and unrestrained by consideration of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. A son born, begotten or adopted after the alienation has no right to challenge the alienation. 8. He may sell it, mortgage it or make a gift of it. A son born, begotten or adopted after the alienation has no right to challenge the alienation. 8. According to the learned counsel, both the courts below misdirected themselves in understanding the right of the father/3rd defendant to sell away a part of the property despite the factum of execution of a settlement deed by him, for, the third defendant only after duly executing a cancellation deed, proceeded to sell the property in question; thus, interference by this court is absolutely called for. 9. On this issue, it will be of much relevance to refer to the decision in T.VENKATA SUBBAMMA v. T.RATTAMMA ( AIR 1987 SC 1775 ) by extracting below the observations of the Apex Court, in paragraphs 20 and 21 of the said judgment:- "20.) 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 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 the respondents that the gift should be construed as relinquishment or renunciation 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 coparcenary 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. 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 renunciation 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 renunciation 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." 21.) 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 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 Rami Reddy of his interest in the coparcenary and, accordingly, the consent of other coparceners was immaterial. It could be seen that the Apex Curt while referring to Article 264 has held that a coparcener may renounce his interest in the coparcenary property in favour of 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 his renunciation enures 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 some thing towards maintenance. If the renunciation or relinquishment is genuine, but not fictitious, the same would be operative as between the parties. Therefore, if the renunciation or gifting enures for the benefit of other coparceners such gifting was held valid. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid some thing towards maintenance. If the renunciation or relinquishment is genuine, but not fictitious, the same would be operative as between the parties. Therefore, if the renunciation or gifting enures for the benefit of other coparceners such gifting was held valid. In such circumstances, the consent of other coparceners was also held immaterial. Therefore, the ratio laid down by the Apex Court in the above mentioned judgment holding that if a coparcener renounces his interest in the coparcenary property in favour of other coparceners as a body, such renunciation of gift being available for the remaining coparcener and the said gift is always valid. 10. Coming to the present case, the 3rd defendant, husband of the 1st plaintiff and father of the 2nd plaintiff had admittedly executed the settlement deed-Ex.A.1, dated 22.7.1969, granting life estate in favour of his wife, namely, 1st plaintiff and after her death, absolute interest over the suit property was gifted to the 2nd plaintiff, the son of 3rd defendant. Since the 3rd defendant as a coparcener has renounced his interest in the coparcenary property in favour of his only son and admittedly, it is not the case of the 3rd defendant that he had issues other than the 2nd plaintiff-son, the settlement deed dated 22.7.1969 renouncing his interest in favour of his only son and the same not operating against the benefit of other co-parceners, namely, another son or issues, it is not open for the 3rd defendant to cancel the previous settlement deed dated 22.7.1969 by way of deed of cancellation dated 1.7.1997. Therefore, when 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 all other coparceners and such a gift would be quite legal and valid, the settlement deed dated 22.7.1969 is perfectly valid. In other words, the gift through the settlement deed being construed as renunciation of father's undivided interest in the coparcenary in favour of his son, as there is no need for taking consent of other coparceners, such a gift is a valid one. In other words, the gift through the settlement deed being construed as renunciation of father's undivided interest in the coparcenary in favour of his son, as there is no need for taking consent of other coparceners, such a gift is a valid one. Under these circumstances, it has to be concluded that the sale deeds dated 1.7.1997 made in favour of 1st and 2nd defendants under Exs.B1 and B3, as held by both the Courts below, are invalid and the verdict shall be confirmed as such for the reason that once the 3rd defendant had executed a settlement deed dated 22.7.1969 giving life interest to his wife/first plaintiff and after her life giving absolute interest in favour of his son-2nd plaintiff after 28 long years the 3rd defendant cannot cancel the same in the year 1997, for, maintenance of a wife by her husband is a matter of personal obligation which attaches from the moment of marriage, even if her husband is not possessed of any property. Indeed she is entitled to enforce this personal obligation by creating a charge on this property,either acquired or ancestral. The property which a Hindu coparcener obtains on partition and who marries subsequently is conditioned by the obligation to maintain his dependents including wife. Therefore, the cancellation of his previous settlement is invalid. While answering the first substantial question of law thus, With regard to the third substantial question of law as to whether a male Hindu in Mitakshara school can alienate his undivided share to others without the consent of other coparceners, it must be added that though this issue was settled in the beginning to the effect that a coparcener may alienate his undivided interest in the coparcenery property for a valuable consideration without the consent of other coparceners, by gradual growth of law, the said position came to a drastic change which is reflected in the following ruling of the Apex Court in Thamma Venkata Subbamma (Dead) by Lr vs. Thamma Rattamma and Ors ( AIR 1987 SC 1775 ) and the relevant portion therefrom is extracted below:- "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. 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 birth, 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. Indeed, in Suraj Bunsi Koer v. Sheo Proshad Singh, (1879) 6 Ind App 88 the Privy Counsel observed 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 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 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 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 value has to be allowed to stand in his vendor's shoes, and to work out his rights by means of a partition." 9.) Thus, the Privy Council also notices that in Madras alienations by gift were recognised. Such alienations were held by their Lordships to be inconsistent with the strictly theory of joint and undivided Hindu family. It is, however, a settled law that a coparcener may alienate his undivided interest in the co-parcenary property for a valuable consideration even without the consent of other coparceners. Such alienations were held by their Lordships to be inconsistent with the strictly theory of joint and undivided Hindu family. It is, however, a settled law that a coparcener may alienate his undivided interest in the co-parcenary property for a valuable consideration 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 founded 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. 10.) 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 ( 1879(6) Ind App 88) 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, (1884) 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, (1886) 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. 11.) In Ramanna v,. 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. 11.) In Ramanna v,. Venkata, (1888) 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 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 the property from the donee. In other words, he would not be bound by such an alienation. Again, in Rottala Runganatham Chetty v. Pulicat Ramasami Chetty (1904) 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." In regard to the observation made in the first part of the paragraph No.11 cited above it is to be clarified that this position in law is changed by a recent judgment of the Apex Court holding that no alienation can be challenged by a son if it had taken place prior to his birth. 11. At the risk of repetition, it is added that if a coparcener renounces his interest in the coparcenary property in favour of other coparceners as a body but not in favour of one or more of them, such renunciation or relinquishment is valid in law. In the present case, the parties are admittedly governed by the Mitakshara school of Hindu Law. The interest in the coparcener accrues to the son from the date of his birth. His interest is equal to that of his father, therefore, selling his own share by father in favour of D1 and D2 after 28 years,ie.,on 1-7-1997 that too, after execution of a valid settlement deed dated 22-7-1969 without any revocation clause therein is totally invalid. The interest in the coparcener accrues to the son from the date of his birth. His interest is equal to that of his father, therefore, selling his own share by father in favour of D1 and D2 after 28 years,ie.,on 1-7-1997 that too, after execution of a valid settlement deed dated 22-7-1969 without any revocation clause therein is totally invalid. In view of the same, the third substantial question of law is answered against the appellants. 12. Regarding the Division Bench decision of the A.P. High Court in Ashok Kumar Ratanchand's case cited by the learned counsel for the petitioner in support of the submissions made by him, it should be noted that the said judgment in fact holds against the case of the appellants in stating that a property which a coparcener obtained on partition does not become for all time his individual and separate property. Therefore, when the 3rd defendant/3rd respondent has executed the settlement deed dated 22.7.1969 in favour of 1st and 2nd plaintiffs giving life estate in favour of his wife1st plaintiff and on her death, granting absolute right over the property in favour of his son-2nd plaintiff, such a settlement deed having been executed in the year 1969 cannot be cancelled after 28 years because it is settled law that once the settlee accepts the transfer, it is presumed that document in question has been acted upon irrespective of the fact that the settlee has obtained possession or not. 13. In similar circumstances, this Court has held in the case of R.KUMARASAMY GOUNDER's case ( 1996 (2) CTC 150 ) that once a gift is accepted by or on behalf of a donee, it cannot thereafter be revoked under any circumstance. Further, it is also relevant to point out that the right of a Hindu wife to be maintained by her husband, has been recognised from ancient time and this customary aspect has not been altered so far, therefore, as I held in para 10 supra the cancellation of previous settlement deed in favour of his wife giving life interest, is invalid. 14. 14. The only other substantial question of law, namely, "Whether the execution of Ex.A1-settlement deed is denied and not admitted, is it not the duty of the plaintiffs to prove the original of Ex.A.1 and prove the due execution of the same, as contemplated under section 68 of the Indian Evidence Act?" has to be straightaway answered against the appellants having regard to the admission made by them before the first appellate Court where it was pleaded that the 3rd defendant after executing the deed of cancellation cancelling the settlement deed dated 22.7.1969, had sold away the suit property in favour of 1st and 2nd defendants. When the appellants themselves have accepted the case of the 1st and 2nd plaintiffs/1st and 2nd respondents herein that the settlement deed dated 22.7.1969 executed by the 3rd defendant in favour of 1st and 2nd plaintiffs was cancelled by cancellation deed dated 1.7.1997, it is not necessary for the 1st and 2nd plaintiffs/1st and 2nd respondents herein to prove the execution and validity of Ex.A1-settlement deed dated 22.7.1969. Accordingly, the above substantial question of law is also answered against the appellants. 15. Consequently, the Second Appeal is liable to be dismissed and the same is dismissed. The judgment and decree of the first appellate Court confirming the judgment and decree of the trial court are confirmed. No costs. Consequently, connected M.P.is closed.