RAM SARAN SINGH Vs. PRITHIPAL SINGH

JUDGEMENT

(1.) A simple money decree was obtained on 27th April 1928 by two persons, Bhairon Baksh Singh and Sukhraj Singh against one Mahip Singh. The appellants in this appeal are the successors-in-interest of the decree-holders. Bhairon Baksh Singh and Sukhraj Singh and the respondent is the objector-judgment-debtor, being the grandson and successor-in-interest of Mahip Singh, the original judgment-debtor. In this execution, the decree-holders sought to realise the money by attachment and sale of certain property which the respondent claimed was his personal property and was net liable to attachment and sale in execution of the decree against Mahip Singh. The respondent claimed his personal ownership of the property under a deed of gift executed on 37th April 1925 in his favour by Mahip Singh. This deed of gift wag followed by a declaratory suit in which the respondent asked for a declaration that the property was his and the defendant was Mahip Singh. That suit was compromised and a compromise decree was passed declaring the right of the respondent. The execution Court held that this deed of gift was fictitious and that the compromise decree was collusive. No right was conveyed to the respondent by this deed of gift and hence the property was liable to attachment and sale under the decree. The lower appellate Court, on appeal, held that the deed of gift was not fictitious nor was the compromise decree collusive. A further contention by the appellants that the deed of gift had been executed in order to defeat and delay the creditors and was, therefore, voidable at their option under Section 53, T. P. Act, was also repelled by the lower Court. This appeal has been filed against the order of the lower Court allowing the objection of Jibe respondent and holding that the property is not liable to attachment and sale under the decree.

(2.) In this appeal before me only two questions of law have been raised by the learned Counsel for the appellants. The first question is that the deed of gift was void ab initio because it was a gift of joint family property by one coparcener and the compromise decree which followed this deed of gift was collusive. In the alternative, it was urged that the deed of gift had been executed to defeat and delay the creditors and was, therefore, voidable under Section 53, T. P. Act.

(3.) As regards the first point, it has to be noticed that there is no finding that the property which was the subject-matter of the deed of gift was joint family property. There is a concurrent finding of both the lower Courts that Mahip Singh and the respondent constituted a joint Hindu family but there is no finding at alt on the fact that the property in suit was joint family property. There was also no finding or evidence that the joint family consisting of Mahip Singh and the respondent was possessed of any joint family property or of any nucleus of such property. There is, therefore, no presumption under Hindu Law that this property was joint family property there was no direct evidence to prove that the property was joint family property. While there is no proof that the property was joint family property, there is no reason to bold that the deed of gift by Mahip Singh was void. Even in the alternative, the contention of the appellants that the deed of gift would have been void ab initio if the property in suit was joint family property cannot be accepted. The facts clearly show that Mahip Singh and the respondent were the only two members of the coparcenary body which owned this property in 1925 when this deed of gift was executed. The gift was made by one member of the coparcenary body in favour of another. The donor and the donee between them constituted the whole of the coparcenary body. The consent of the donee in such a gift is implied so that the gift was by one coparcener with the consent of the remaining coparceners. Such a deed of gift cannot be void. The learned counsel for the appellants referred me to the oases of Baba v. Timma, 7 Mad. 357 (F.B.), Ponnusami v. Thatha, 9 Mad. 273; Ramanna v. Venkata, 11 Mad. 246; Rottala Runganatham Chetty v. Pulicat Ramasami Chetti, 27 Mad. 162 and Kalu v. Barsu, 19 Bom. 803, in support of his proposition that the deed of gift would be void ab initio, AH these cases are, however, different from this case. In all these cases, the deed of gift had been executed by one coparcener without the consent of the other coparceners in favour of some stranger. These oases are correct so far as they lay down the law relating to the facts dealt with in them. The present case is one where the deed of gift baa been executed by one coparcener in favour of the sole remaining coparcener and the views expressed in these cases are, therefore, not at all applicable in this case. It is a well-recognized principle in Hindu law that a coparcener can make a gift of his interest with the consent of all the remaining coparceners. In this case, since the gift was in favour of the remaining coparcener the consent of remaining coparcener is implied and hence the gift is not void. Mulla in his Commentary on Hindu Law in Section 258 has clearly stated that a coparcener may make a gift of his interest with the consent of the other coparceners. A more explicit and appropriate comment on this point is to be found in para. 383 in Mayne's Treatise on Hindu Law and Usage (1988 Edn.) where it is said that a gift by a coparcener or his entire undivided interest in favour of the other coparcener or coparceners will be valid whether it is regarded as one made with the consent of the other or others or as a renunciation of his interest in favour of all. In Thangavelu Pillai v. Doraisami Pillai, 27 M.L. J. 272: (A. I. R. (2) 1915 Mad. 113), it was held that a gift by a father of all his interest in the family property in favour of his only son being supported by natural love and affection can be upheld as a relinquishment. These views would clearly show that the deed of gift in the present case must be held to be valid either as being presumed to be with the consent of the remaining coparcener or as a relinquishment by one coparcener in favour of the sole surviving coparcener.