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:-
"Article 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 Rani Reddy of his interest in the
coparcenary and, accordingly, the consent of other
coparceners was immaterial.
SECOND APPEAL NO. 208
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Sou. Parvatibai @ Laxmibai w/o Annaji Patil. V Baburao Ganu Kanade
Coram : Ravi K. Deshpande, J.
Date : June 19, 2014.
Citation; 2014(6) ALLMR 845
The Regular Civil Suit No.85 of 1979 filed by the
1. Appellant-original Plaintiff for partition and separate
possession of half share in the suit property was dismissed by
the trial Court by its judgment and order dated 2 nd May 1987.
The Regular Civil Appeal No.155 of 1987 filed by the Plaintiff
was partly allowed on 22 nd July 1991 by the learned Additional
District Judge, Kolhapur declaring that the Appellant-Plaintiff is
having 1/2 share in the suit property at serial No.1(A), namely
Block No. 795 and the Collector is directed to effect partition.
The Defendant does not challenge the decree passed by the
appellate Court but it is the Plaintiff who has come before this
Court in the second appeal.
One Santu, common ancestor had three sons –
2.
Vithu, Ganu and Hari and the suit property was a coparcenery
property in the hands of these coparceners. It is the case of
the Plaintiff as well as the Defendants that Dattu, son of Vithu
had separated himself by taking away his share. Ganu died
and was survived by his son Babu, the Defendant No. 1. The
coparcenery then consisted of Hari and his nepehw, Babu. On
29th March 1954 Hari executed a registered gift-deed at
Exhibit-119 in respect of his share of 5-anna and 4-paisa in the
The Appellant-Plaintiff Parvati is the daughter of
3.
suit property in favour of Babu, his nephew, Defendant No. 1.
Hari and she filed Regular Civil Suit No.85 of 1979 on 31 st
March 1980 claiming half share in the suit property being the
legal heir of Hari. Both the Courts below have recorded the
finding of fact that the Defendant No.1 Babu has proved gift-
deed dated 29th March 1954 executed by Hari, which is at
Exhibit-119 and the Plaintiff was not entitled to any share in
the suit properties. The appellate Court has held that the gift-
deed at Exhibit-119 does not include the property at serial No.
1(A), namely, Block No. 795 and hence the Plaintiff is held
entitled to 1/2 share in that suit property.
4.
In the background of aforesaid facts and the
findings recorded by the Courts below, this Court had framed
two substantial questions of law on 16 th June 2014 and the
matter was adjourned so as to enable the learned Counsel
appearing for the parties to address this Court on the said
patilsr
Those two substantial questions of law are re-
questions.
casted as under :
[1] When a coparcenery consists of two members of the
joint family, whether the gift of coparcenery property
by one of the coparceners in favour of the remaining
coparcener becomes void ?
[2] Whether a daughter of a coparcener gets any right to
succeed to the coparcenery property held by her
father prior to the coming into force of the Hindu
5.
Succession Act, 1956 ?
Coming to the first substantial question of law
which is framed, the undisputed factual position needs to be
seen.
With the assistance of the Counsel appearing for the
parties, I have gone through copy of the plaint and the written
statement. The parties are very specific in their stand.
It is
undisputed position that Hari and Babu were the only
coparceners and the property in question was a coparcenery
property in their hands. By the registered gift-deed dated 29 th
March 1954 at Exhibit-119, Hari bequeathed his undivided
share and interest in the property which was undisputedly 5-
anna and 4-paisa in favour of Babu.
The gift is prior to the
coming into force of the Hindu Succession Act, 1956 and the
position of law prevailing prior to it has been stated by the
Apex Court in paras 13 and 17 of its judgment in Thamma
Venkata Subbamma v. Thamma Rattamma [(1987) 3 SCC].
The same are reproduced below :
“13.
We may also refer to a passage from
Mulla's Hindu Law, Fifteenth Edition, Article 258, which
is as follows :
"Gift of undivided interest.-- (1) According to the
Mitakshara law as applied in all the States, no
coparcener can dispose of his undivided interest
in coparcenary property by gift. Such transaction
being void altogether there is 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."
17.
It is, however, a settled law that 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. Such a gift would be quite legal and
valid.”
6.
A gift made by a coparcener of his undivided
interest in the coparcenery property either in favour of a third
person or in favour of another coparcener with the consent of
other coparceners would be legal and valid. In the absence of
any such consent, the gift becomes void. In the present case,
only two surviving coparceners were there, Hari and Babu.
Hari has executed a gift of his undivided interest in the
coparcenery property in favour of the remaining sole surviving
coparcener–Babu, the Defendant No.1 in this case. In such a
situation,
the
question
of
obtaining
consent
of
other
coparceners does not at all arise and the registered gift-deed
which is proved cannot be declared or treated as void for want
patilsr
7.
of law at Serial No.[1] is answered accordingly.
of the consent of other coparceners. The substantial question
The problem can be looked into from another
angle. The gift of undivided interest in a coparcenary property
by one coparcener, even if it is in favour of any particular
named coparcener, can be construed as a relinquishment or
renunciation for the benefit of the other coparceners as a body.
The matter is no longer res-integra.
In the decision of the
Apex Court in the case of Thamma Venkata Subbamma v.
Thamma Rattamma & Ors cited supra, this question has also
been dealt with in paras 20 and 21 of the said decision, which
are reproduced below :
“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:-
"Article 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 Rani Reddy of his interest in the
coparcenary and, accordingly, the consent of other
coparceners was immaterial.
In view of the aforesaid decision and the facts and
circumstances of the present case, the gift in question at
Exhibit-119
has
to
be
construed
as
relinquishment
or
renunciation of an undivided interest of Hari in favour of and
for the benefit of the surviving coparceners and such
renunciation or relinquishment cannot be treated as invalid or
void.
Coming to the second substantial question of law,
8.
an undisputed factual position is that there was no partition in
respect of the coparcenery property either till the date of
execution of the gift-deed dated 29 th March 1954 or even after
coming into force of the Hindu Succession Act, 1956 in the
year 1956 and thereafter till the death of Hari on 10 th August
1971. In the decision of this Court in Bhagirathibai v. Tanabai
[2013(2) Mh.L.J. 502] the position of law prevailing at the time
of coming into force of the Hindu Women's Rights to Property
Act, 1937 and the Hindu Succession Act, 1956 has been stated
in paragraph 11 and 12, which are reproduced below.
“11. A Hindu joint family consists of all persons lineally
descended from a common ancestor and includes their
wives and unmarried daughters. A daughter ceases to be
a member of her father's family on marriage and
becomes a member of her husband's family. A joint or
undivided Hindu family may consists of a single male
member and widows of deceased male members. The
existence of at least one male member is essential for
constituting a joint family with other members. A Hindu
coparcenary is a much narrower body than the Hindu
joint family. The coparcenary not only consists of father
and sons, but also grandsons, great-grandsons of the
holder of the joint family property for the time being. It
includes only those persons who acquire by birth an
interest in the joint or coparcenery property.
12.
The property inherited by a Hindu from his father, father's
father or father's father's father is an ancestral property,
whereas the property inherited by him from other
relations is his separate property. If a Hindu inherits the
property from his father, it becomes ancestral in his
hands as regards his son. In such a case, it is said that
the son becomes a coparcener with the father as regards
the property so inherited and the coparcenery consists of
a father and a son. Even wife, though she is entitled to
maintenance out of her husband's property and has, to
9.
that extent, an interest in his property, is not her
husband's coparcener, nor is a mother a coparcener with
her son, neither a mother-in-law with her daughter-in
-law.”
In view of the aforesaid position of law that a
Hindu joint family consists of persons lineally descended from
a common ancestor and includes their wives and unmarried
daughters. A daughter ceases to be a member of her father's
family on marriage and becomes a member of her husband's
family. In the present case, on the date of execution of the
gift-deed at Exhibit-119, the Plaintiff who is the daughter of
Hari, was married, and therefore she ceased to be a member
of the Hindu joint family headed by his father Hari. A Hindu
coparcenary is a much narrower body than a Hindu joint family.
The coparcenary consists of all those persons who acquire by
birth an interest in the joint or coparcenary property and it
consists of not only father and sons but also grandsons and
great-grandsons.
A daughter is not considered to be a
coparcener as she does not acquire any interest in the joint or
coparcenary property by birth. On the date of execution of the
gift-deed, the property in question was a coparcenary property
and there was no partition between Hari and Ganu or his son
Babu–the Defendant No.1.
The Plaintiff, therefore, did not
possess any interest in the coparcenary property when a gift-
deed at Exhibit-119 was executed.
She had, therefore, no
right to succeed to a coparcenary property held by her father
prior to the coming into force of the Hindu Succession Act,
1956.
The second substantial question of law is, therefore,
In view of the above, the second appeal is
answered accordingly.
dismissed. No costs.
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