SHANKARAYYA BALAYYA PUJARI Vs. CHAMPABAI

JUDGEMENT

(1.) Arguments on behalf of the appellants were heard on 5-2-88 and the respondents' counsel is heard now. The only point set down as substantial question of law to be decided in this appeal is------ Whether the courts below were correct in holding that a coparcener cannot gift away the coparcenery property even to the extent of his own share ? The point arises in the following manner :- The plaintiffs being the widow and children of one Shivayya Pujari brought the original suit for partition and possession of their share in as many as four agricultural lands and three house properties. Balayya Pujari-propositor was the father of the said Shivayya defendant No.1. Shivayya died in July, 1968. Balayya died on 26-6-69. Defendants 2 to 4 are the sons of defendant No. 1 and Balayya executed a gift deed in favour of defendants 2 to 4 on 3-6-1969 of four agricultural lands and two houses. They are survey numbers 279/1 B, 285/1 B, 283/1A and 553/2 and the houses are 72/B and 73 of Karoshi village in Chikodi Taluk. The courts below held that the gift in favour of these defendants 2 to 4 of these family properties was viod and even the undivided interest of Balayya could not pass on to the donees. It appears during admission it was argued for the appellants that the gift was valid atleast to the extent of his share. It may be noted that though there was a contention that the properties were self acquired properties of Balayya the same was negatived by the courts below and it is now concluded that they were the joint family properties of Balayya and his sons.

(2.) As far as the point involved is concerned the courts below relied on certain decisions and in the case of Gowramma v. Mallappa 1966 B.L.R-page 284 relied upon by the courts below it was clearly held that a manager of the joint Hindu family was incompetent to make a gift of any portion of the joint Hindu family property, but a gift could be made only for pious purposes within the meaning of that expression. Such a gift by father to his poor daughter and for her maintenance of a small portion of the joint family property has been held to be valid. But, there cannot be a gift even of his undivided share in the joint family properties to his sons or grand-sons who for the purpose of the law on this point shall have to be considered as stranger donees. In the case of Srinivas Padayachi v. Parvathiammal A.I.R. 1970 Madras 113 a similar view was taken holding that a gift by a coparcener of his undivided share in the joint family property is void and does not bind even the alienor. However, the coparcener has power to alienate under Mitakshara law prevailing in Madras for value his undivided interest in the property. This, however, is not the position in the instant case in as much as the gift was of substantial portions of the coparcenery property to the grand-sons In the case of Guramma Bhratar Chanbasappa Deshmukh and others v. Mallappa Chanbasappa and another-MR 1964 Supreme Court 510, Supreme Court made it amply clear that the father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances cf the family. But a gift to a stranger, however much the donor was beholden to him, cannot be sustained on the ground that it was made out of charity. The manager has no absolute power of disposal over joint Hindu family property. The Hindu law permits him to do so only within strict limits. The scope of the power cannot be extended on the basis of the wide interpretation given to the words "pious purposes" in Hindu Law in a different context. Therefore, a gift to a stranger or relative of a joint family property out of love and affection by the manager of the family is void. Lastly, in a later decision in the case of D Nagaratnamba v. Kunuku Ramayya and another AIR. 1968 Supreme Court 253 same view was reiterated and at para 6 it has been observed ihat the manager was free to make a gift of his own property to his concubine. The gifts under Exs. A-1 and A-2 were not hit by S. 6(h) of the Transfer of Property Act. But the properties gifted under Exs. A-1 and A-2 were coparcenary properties. Under the Madras school of Mitakshara law by which he was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid

(3.) The law is thus well settled that a manager cannot gift even his interest to any member of the family or to a stranger unless it is for the pious purposes to a small extent recognised by law. In the instant case Balayya has made gift of substantial properties to his grand-sons and the courts below were right in holding that the gift was void. Therefore, in view of the settled position of law gift even of his undivided interest cannot be considered as valid when a transfer becomes void and has not been permitted by law. The appeal fails and is dismissed. Parties, however, to bear their respective costs in this appeal.