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2000(5) Supreme 739
SUPREME COURT OF INDIA
(From Karnataka High Court)
A.P. Misra & Mrs. Ruma Pal, JJ.
Thimmaiah & Ors. -Appellants
versus
Ningamma & Anr. -Respondents
Civil Appeal No. 1062 of 1992
Decided on 25-8-2000
Counsel for the Parties :
For the Appellants : Ms. Lalita Kaushik, Advocate.
For the Respondents : Rajesh Mahale and K.C. Sudarshan, Advocates.
(ii) Hindu Law-Gift of co-parcenary property by Karta-Validity-Consent of one co-parceners obtained-No consent from others-Gift voidable-Gift not valid.
Where the alienation is not with the consent of all the coparceners, it is voidable at the instance of the coparcener whose consent has not been obtained. Needless to say where there is only a sole surviving coparcener and no other member of the family who has a joint interest in the property, there are no fetters on the alienation of the property. The rationale behind the impermissibility of certain dispositions of coparcenary properties is the protection of the interest of other coparceners. Where other persons have an interest in coparcenary property, whether inchoate or otherwise, and willingly acquiesce in the depletion of such interest for whatever purpose, such a disposition would be permissible. (Paras 19 and 20)
In this case, apart from the appellant No. 1, if the other heirs of Hiri had such an interest, merely getting the consent of the appellant No. 1 would not do. The impugned deed was executed in 1971, prior to Hiri s death in the same year. By this time, the Hindu Succession Act, 1956 had come into force. The proviso to Section 6 of the 1956 Act (considered at greater length later in the judgment) now provides that the deceased s interest in Mitakshara coparcenary property does not devolve by survivorship if the deceased leaves surviving him female relatives specified in class I of the Schedule. Consequently, the interest of the surviving coparcener to the deceased s coparcenary share, in such a case, no longer survives and his consent to depletion of his interest in joint family property would not, therefore, make a gift of coparcenary property otherwise invalid, valid. Consent in such a case would have to be obtained from all the persons who could claim a share in the deceased coparceners interest. The appellants 2, 3 and 4 as well as both the respondents are class I heirs of Hiri. It is not the case of the respondents that the appellants 2, 3 and 4 had consented to the gift. We are, therefore, of the opinion that the finding of the High Court on the validity of the deed of gift dated 9.6.71 is unsustain able and it is accordingly set aside. (Paras 20 & 21)
(iii) Mysore Hindu Law Women s Rights Act, 1993-Section 8-Hindu Succession Act, 1956-Section 6-Females right to share at partition-Where female members sought to be protected under Section 8 of Mysore Act are class I heirs of deceased co-parceners-Section 8(1)(d) of Mysore Act has been superseded by proviso to Section 6 of Hindu Succession Act. (Para 23)
JUDGMENT
Ruma Pal, J.-The issue to be decided in this appeal is the share of each of the parties in coparcenary properties. Hiri Thimmaiah (referred to briefly as Hiri ) was the Karta of the coparcenary. He has two wives Sidamma and Ningamma. The appellants are the children of Hiri s first wife, Sidamma. The respondent No. 1 is the second wife and the respondent No. 2 is her daughter.
2. Hiri died in 1971. Soon after his death, in 1972, the appellant No. 1 filed a suit for partition by metes and bounds of 12 properties described in the Schedule to the plaint and for separate possession of 7/12th share in such properties. The case in the plaint was the items 1 and 2 of the schedule properties were ancestral and all the remaining properties belonged to the coparcenery. The further case in the plaint was that Hiri had illegally sought to gift away item No. 1 and 2 by deed dated 17.11.67 to the respondent No. 1 and items 3 to 6 by deed dated 9.6.71 to the respondent No. 2. The appellant No. 1 claimed a declaration that the gifts were void.
3. The appellants 2, 3 and 4 were named as defendants 3, 4 and 5 in the suit. They filed a written statement substantially supporting the case of the appellant No. 1 and claiming 1/4th share in all the 12 properties.
4. In their written statement, the respondents (who were the defendants 1 and 2 in the suit) conceded that items 1 and 2 were ancestral properties but claimed that items 3 to 6 were the self-acquired properties of Hiri. They claimed that both the deeds were settled deeds. The first settlement deed dated 17.11.67 made provision for the maintenance of respondent No. 1 out of items 1 and 2 and after her death, the properties were to revert back to Hiri. By the second deed dated 9.6.71, items 3 to 6 had been settled on the second respondent with the consent of appellant No. 1 who had not only put his left thumb impression on the deed but had also signed the document as a consenting party.
5. Issues were framed on the basis of the pleadings. Witnesses were examined in support of the contesting parties. The trial Court negatived the claim put forward by the respondents that the two deeds were deeds of settlement. It was held that items 3 to 6 were not the self-acquired properties of Hiri but belonged to the coparcenary and that the two deeds were deeds of gift and were void. In coming to this conclusion, the trial Court noted the contention of the appellant No. 1 that fraud had been committed on him and that he had not fixed his left thumb impression by way of his consent to the document dated 9.6.71 and said :
"It has to be noted that there is material in the evidence of DW-3 the uncle of the plaintiff, to show that on the very same day of the execution of the document in question, the father of the plaintiff executed another document in favour of his brother DW-2 as per Ex.P-24 and in the course of obtaining consent of the plaintiff to that document, Ex.P.-24, the signature of the plaintiff is by deceitful means obtained on Ex.D-2 also."
6. However, the Trial Judge did not hold that the deeds were void only because of the lack of the consent of appellant No. 1. Relying on the decision of this Court in Ammathayee alias Perumalakkal & Anr. v. Kumaresan alias Balakrishnan and Others1 the Trial Judge held that Hiri was incompetent to gift items 3 to 6 to the respondent No. 2 irrespective of the consent of the appellant No. 1. According to the Trial Judge immovable ancestral properties could only be gifted within reasonable limits for pious purposes such as the marriage of an unmarried daughter. The Trial Court found that a considerable portion of the coparcenary properties had been gifted by Hiri to the respondent No. 2 and that it could not be said that the gift had been made in favour of the second respondent in fulfillment of any pious purpose as she was well below the marriageable age when the gift was made.
7. The appellant No. 1 s suit was accordingly decreed on 8th August 1977 as prayed for
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