RAMAKRISHNA NAIDU Vs. SHANMUGASUNDARAM

JUDGEMENT

(1.) THIS second appeal is by the first defendant. The suit for declaration and injunction was dismissed by the trial court, but the appellate court decreed it.

(2.) THE two plaintiffs filed the suit alleging as follows: THE suit properties belonged to the joint family of the fifth defendant and his sons-the plaintiffs, and they (plaintiffs) are now in possession of it. When the first plaintiff on 26. 9. 1981 went to plough the suit property the first defendant and his three-brothers-defendants 2 to4 obstructed. It appears the fifth defendant had executed a gift deed on 3. 4. 1972 in respect of this property in favour of his brother'' s sons Madhiyazhagan and Vijayaseelan. This gift deed is void and of no effect. THE said settlees appears to have executed a sale deed on 22. 12. 1975 in favour of the first defendant. THE gift deed being void and of no effect the first defendant will not get any title under the sale deed dated 22. 12. 1975. THErefore the suit is for declaration of the plaintiffs title to the suit property and for injunction restraining the defendants from interfering with their possession.

(3.) THE appellate court has referred to some of the judgments of the Supreme Court and this Court which are to the effect that a coparcener even if he is the joint family manager has no right to execute a gift deed in respect of the joint family property and such a gift deed is void ab initio. In the Division Bench case in Rayakkal v. Subbanna, I. L. R 16 Mad. 84, a Hindu, during the infancy of his son conveyed certain immoveable ancestral property to his wife and married daughters by way of gift. After his death the son sued by his next friend to have these alienations set aside and to recover the property. It was held that the alienations should be set aside together. In another later Judgment of a Division Bench of this Court in s. V. Sundaresan v. Assistant Controller of Estate Duty, Coimbatore, 1983 Tax l. R. 1438, it was held as follows: ' ' A. gift or device by a co-parcener in a mitakshara family of his undivided interest in family properties is wholly invalid and void in toto, subject to an exception in the case of a manager in favour of small gifts to female relations on Special occasions or for pious, charitable or religious purpose. ' ' THE learned Judge of the appellate court on the evidence found that out of 3 1/4 acres of land owned by the joint family, in respect of 93 cents the gift deed in question has been executed and the fifth defendant had three sons and three daughters and therefore the gift deed in fervour of his brother'' s sons cannot be said to be for any pious or charitable or religious purpose. In this view of the matter I am quite satisfied that the finding of the appellate court that the gift deed is invalid and ineffective is to be upheld. Even in respect of the 1/3 share of the fifth defendant the gift deed is invalid.