P SUBBI REDDY Vs. P CHINNA REDDEMMA

JUDGEMENT

(1.) The only question urged in these appeals is whether a gift made of an undivided interest in a coparcenary property by a coparcener, jointly in favour of some other members of the coparcenary and his daughter, is valid. A brief adumbration of facts is necessary to focus the question raised. The plaintiffs appellants filed the suit O.S.No. 9 of 1975 as donees under the gift deed with the averment that they are the sons of defendant No. 4 - third respondent, another co-parcener. It was their case that one Nagappa and the defendant No. 4 were brothers and the plaintiffs together with them constituted the coparcenary. The respondent No. 1-first defendant is the daughter of Nagappa whereas the defendant No. 2-Respondent No. 2 is his I widow. Nagappa executed the registered gift deed gifting his undivided interest in the coparcenary in favour of the appellants and respondent No. 1 equally. The suit was brought for partition, the respondents 1 and 2 having not agreed for the same. A further averment in the plaint, which did not find favour with the trial Court as also with the learned single Judge, was that there had been a previous partition of the joint family property prior to the execution of the gift deed with the gifted properties falling to the share of Nagappa. During the pendency of suit, the defendant No. 2 died. The suit was contested by the respondent No. 1 and her mother filing written statement stating of there having been no previous partition and the registered deed of gift having been obtained by fraud and misrepresentation and as not binding upon them. Besides, it I was also contended that the deed of gift was cancelled by Nagappa on 4-9-1974 and that the defendants 1 and 2 had alienated the properties by registered sale deed Ex. B. 3 in favour of third defendant-respondent No. 2. While the suit was pending, the original defendants 1 to 3 of the suit filed O.S.No. 86 of 1975 against the plaintiffs and defendant No. 4 in O.S.No. 9/75, seeking setting aside of the registered deed of gift executed on 18-7-1974, to declare it to have been duly revoked, for partition of the properties in A-Schedule of the suit in two equal shares and allot one to the plaintiffs in the suit and also to divide equally plaint schedules B, C and D properties. As a matter of fact, broadly stated, the stand of the plaintiffs in the second suit was the same as the defence taken by them in the written statement in O.S.No. 9 of 1975. In view of the respective stand of the parties, the moot question to be considered, for which issue was also framed, was the validity of the registered deed of gift executed by Nagappa, i.e., whether it was vitiated by fraud and misrepresentation, whether it was void ab initio being gift by a coparcener of his undivided interest and whether it was revoked by the deed of cancellation. Both the suits were tried together and were disposed of by common judgment by the trial Court holding Ex. A.1, the registered deed of gift, to have been voluntarily executed out of free will and in sound state of mind. Ex. B.1, the deed of cancellation was held a doubtful document and not valid. Because of the conclusions reached, the suit O.S.No. 9 of 1975 was decreed whereas O.S.No. 86 of 1975 was dismissed. Both the appeals A.S.Nos. 1794 and 1334 of 1981 preferred by respondents 1 and 2 against the judgment allowed by the learned single Judge holding any gift of undivided coparcenary interest to be void. The plaintiffs in O.S.No. 9 of 1975 are in appeal in these Letters Patent Appeals.

(2.) The only question, as has been already noticed, necessary to be decided is the validity of the registered deed of gift. While it is submitted by Mr. T. Balireddy, learned counsel for the appellants, that the gift executed by a member of coparcenary of undivided interest in favour of coparcener or coparceners is a valid act if the gift is accepted, it is the submission of Mr. Sundararajan, learned counsel for the respondents, that firstly such gift is void ab initio and that secondly even if gift of coparcenary interest with the consent of other coparceners in favour of some coparceners may be valid, yet in the instant case the gift being a joint one in favour of some caparceners and one outsider i.e., the daughter of nagappa, was not saved. There is no plea in the case of the gift deed executed on 18-7-1994 of having not been accepted by the plaintiffs. There is also no dispute before us that if the question of law raised as above is decided in favour of the appellants, the gift is still void for any other reason. The question raised, however, stands concluded by the decision of the Supreme Court in T. Venkata Subbamma vs. T. Rattamma (1) AIR 1987 SC 1775 wherein their Lordships, exposing the concept of gift of undivided coparcenary interest said that while gift of an undivided share is void yet "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." Law in that respect since then has become settled as an exception, to the general rule and gift of undivided share of coparcenary in favour of either another coparcener or to a stranger with the prior consent of all other coparceners is not void. The same proposition of law also appears in Mulla's Principles of Hindu Law 16th Edition Article 258 saying that a coparcener may make a gift of his interest with the consent of other coparceners, reliance for which proposition has been made, apart from the decision in T. Venkata Subbamma's case (1 supra), on Tagore vs. Tagore (2) (1872) 9 Beng. LR. 377, L.R. LA. Sup. Vol. 47. To the same effect is also the view as found in Mayne's Hindu Law and Usage in Article 406 where it is stated "it is open to a coparcener to make a gift of his interest with the consent of all the other coparceners" reliance having been placed on Suryakantham vs. Suryanarayana Murthi (3) AIR 1957 A.P. 1012, Ram Saran Singh vs. Pritipal Singh (4) AIR 1950 All 224 and Ratnasabhapathi vs. Saraswathi (5) AIR 1954 Mad. 307.

(3.) Mr. Sundararajan, however, submits for the acceptance of a contrary view placing reliance on Sec. 4 read with Sec. 30 of Hindu Succession Act, 1956. Section 4 enacts the overriding effect of the Hindu Succession Act, 1956 (No. 30 of 1965) which says that any. text, rule or Interpretation of Hindu Law or any customary usage as part of that law in force immediately before the commencement of the Act shall cease to have effect in respect of matters for which provision has been made in the Act. Section 30 provides for testamentary succession saying that a Hindu may d|spose of his property by way of testamentary disposition and explanation to the section clarifies that the interest of male Hindu and Mitakshara coparcenary property is, notwithstanding anything contained in the Act or any other law for time being in force, to be deemed to be property capable of being disposed of by him within the meaning of the section. From this, submission is advanced that as specific provision was made in Sec. 30 enabling a male Hindu coparcenary to dispose of the property by testamentary disposition, the logical conclusion to be reached is that a bar operates in respect of all other types of disposition of property by Hindu male coparcener including gifts and that this aspect was not noticed by the Lordships of the Supreme Court. We are unable to agree as no canon of interpretation of statutes lends support to the proposition advanced. The effect of Sec. 4 would only effect any existing law so far as specific provision to the contrary is made in the Act itself. There is no provision in the Hindu Succession Act prohibiting gift by coparcener of his undivided interest in the coparcenary whereas such right inhers in him under the existing Hindu Law. Such right will continue unabated as it is not prescribed by any provision of the statute. The effect of Sec. 30 of the Hindu Succetion Act cannot be stretched in the manner it is sought to, to cover also matters which were not dealt with by that Section. The decision in T. Venkata Subbamma's case (1 supra) was later followed by the Supreme Court in Pavitri Devi vs. Darbari Singh (6) (1993) 4 SCC 392 saying that a gift by one coparcener of his undivided share to another coparcener to the exclusion of others is not invalid. As against such conclusive decisions, Mr. Sundararajan brings to our notice a decision of this Court in Veeramallu Venkataramayya vs. Bathina Venkateswara Rao (7) 1992(1) ALT 462 wherein the learned single Judge of this Court took the view, relying on decisions of the Supreme Court in Mukund Singh vs. Wazir Singh (8) 1972(4) SCC 178 and Venkata Subbamma's Case (1 supra) that Sec. 30 of the Hindu Succession Act only saves testamentary disposition of the joint family property by the coparcener and disposal by way of gifts are not saved which makes them void. The decision of the Supreme Court in Mukund Singh vs. Wazir Singh (8 supra) had only held gift of coparcenary property by a member to be void but the question as was considered by their Lordships in Venkata Subbamma's case (1 supra) was not before their Lordships viz., as to whether gift of undivided share to another coparcener made with the consent of all other members of the coparcenary is valid. That decision hence has no application to the facts of the case. Venkata Subbamma's case (1 supra), as we have already shown, expressly pointed out the exception in respect of gifts of coparcenary property. In that view of the matter, with great respect, since we are otherwise bound by the decision of the Supreme Court, we are unable to subscribe to the view taken in veeramallu Venkataramayya's Case (7 supra).