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TMI Blog1987 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... s that after the death of Rami Reddy, differences arose between his widow and the respondent No. 1, as a result of which the widow of Rami Reddy (since deceased) demanded a partition of her husband's share which was gifted by her husband to his brother, Veera Reddy. Thereafter, she filed a suit out of which this appeal arises for partition and recovery of her husband's share if after cancelling the deed of settlement (ex. A-1 ), inter alia, on the ground that it was a void document under the Hindu law. The suit was contested by respondents Nos. 1 to 7. Respondent No. 3 filed a written statement denying the plaint allegations. The other respondents adopted the written statement of respondent No. 3. The trial court, on a consideration of the evidence adduced on behalf of the parties held, inter alia that the deed of settlement was void and inoperative under the Hindu law in the absence of consent of the other coparceners. Further, it was held by the trial court that even assuming that the deed of settlement was valid and binding on the plaintiff, the plaintiff was entitled to the alternative relief of maintenance and separate residence under section 39 of the Transfer of Property A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family, An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father. So far as alienations of coparcenary property are concerned, it appears that such alienations were permissible in the eighteenth century.Indeed, in Suraj Bunsi Koer v. Sheo Pershad Singh [1878-79] 61A 88 ILR 5 Cal 148, 167, the Privy Council observed as follows : ".... it has been settled law in the Presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by private contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his separate debt ....... But it appears ...... that, in order to support the alienation by one coparcener of his share in undivided property, the alienation must be for value. The Madras Courts, on the other hand, seem to have gone so far as to recognise an alienation by gift. There can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of a stranger or in favour of his relations. In Ramanna v. Venkata [1888] ILR 11 Mad 246, a Hindu made a gift of certain land which he had purchased with the income of ancestral property and a suit was brought to recover the land on behalf of his minor son, who was born seven months after the date of the gift. It was held that the gift was invalid as against the plaintiff and that he was entitled to recover the land from the donee. Thus, a son, who was born to the family after the gift was made, was held entitled to recover the property from the donee. In other words, he would not be bound by such an alienation. Again, in Rottala Runganatham Chetty. Pulicat Ramasami Chetti' [1903] ILR 27 Mad 162, it has been held that it is not competent to an individual member of a Hindu family to alienate by way of gift his undivided share or any portion thereof; and such an alienation, if made, is void in toto. There is a long catena of decisions holding that a gift by a coparcenar of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Mayne's Hindu Law, eleventh edit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coparcenary property. The Legislature did not, therefore, deliberately provide for any gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to another coparcener.Therefore, the personal law of the Hindus, governed by the Mitakshara school of Hindu law, is that a coparcener can dispose of his undivided interest in the coparcenary property by I will, but he cannot make a gift of such interest. Again, it may be noticed in this connection that tinder the proviso to section 6 of the Hindu Succession Act, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims, through such female, relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. The devolution of interest in coparcenary property by survivorship has been altered to testamentary or intestate succession, as enjoined by the proviso to section 6 relating to a female relative or a male relative claiming through such female relative. The substantive provision of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against making of gifts by a coparcener of his undivided interest in the coparcenary property, but the Legislature has not, except permitting the coparcener to make a will in respect of his undivided interest by section 30 of the Hindu Succession Act, altered the law against making of gift by a coparcener of his undivided interest.While considering whether the strict rule against alienation by gift should be interfered with or not, the court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift, while enacting the Hindu Succession Act. In the circumstances, we are unable to accept the proposition of law that has been laid down in G. Suryakantam's case, AIR 1957 AP 1012. In the instant case, the High Court has also noticed a decision of this court in Ammathayee alias Perumalakkal v. Kumaresan alias Balakrishnan,AIR 1967 SC 569, that a gift of a coparcenary property is not valid under the Hindu law except for specified purposes. That case has been distinguished by the High Court on the ground that the question of validity of such a gift on the ground of consent of other coparceners did not arise for consideration. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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