Judgement

DUTT, J. :- The only point that is involved in this appeal by special leave is whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not.

2. In order to consider the point it is necessary to state a few relevant facts. Two brothers, Rami Reddy and Veera Reddy and the sons and daughters of the latter being respondents Nos. 2 to 7 herein, constituted a joint Hindu family governed by the Mitakshara School of Hindu Law. On May 4, 1959, Rami Reddy executed a deed of settlement (Ex. A-1) in favour of his brother, Veera Reddy, conveying his entire undivided interest in the coparcenary reserving a life interest to himself and also providing that after his death, his brother should maintain his wife. Rami Reddy died in January, 1965 and shortly thereafter his brother Veera Reddy also died in March, 1965. It appears 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 husbands 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 husbands share 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 the respondents Nos. 1 to 7. The respondent No. 3 filed a written statement denying the plaint allegations. The other respondents adopted the written statement of the respondent No. 3.

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 S. 39 of the Transfer of Property Act, as the plaintiffs husband was legally bound to maintain his wife and the plaintiff was entitled to enforce her maintenance claim with a charge on the properties in suit. In that view of the matter the trial Court held that the plaintiff was entitled to a sum of Rs. 1,200/- per annum towards her maintenance and separate residence with a charge on the A and B Schedule properties of the plaint. The suit /was, accordingly, decreed by the trial Court.

4. The defendant-respondents filed an appeal before the Andhra Pradesh High Court. The High Court, however, did not agree with the finding of the trial Court that the deed of settlement was void. It was held by the High Court that the deed of settlement was valid. The judgment and decree of the trial Court was set aside and the suit was dismissed insofar as it related to the cancellation of the deed of settlement and recovery of possession of the suit properties by way of partition. But the decree passed by the trial Court awarding maintenance to the plaintiff at the rate of Rs. 1,200/- per annum, that is to say at the rate of Rs. 100/- p.m. from the date of filing of the suit and creating a charge for the amount of maintenance on the suit properties was upheld by the High Court. The appeal was allowed in part. Hence this appeal by special leave.

5. During the pendency of this appeal in this Court the plaintiff, the widow of Rami Reddy, died and the present appellant, who is her heir and legal representative, has been substituted in her place.

6. It is not disputed that the deed of settlement (Ex. A-1) is really a deed of gift. It has been strenuously urged by Mr. Krishnamurthy Iyer, learned Counsel appearing on behalf of the appellant, that in holding that the gift in question was legal and valid, the High Court committed an error of law in the face of the legal position particularly prevailing in the erstwhile State of Madras of which the present St