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1977 Supreme(Bom) 211
IN THE HIGH COURT OF BOMBAY
R.M. Kantawala, C.J.
Hemlata Rajaram Kulkarni now V.V. Thakurdas (Mrs.) others.... Appellants.
Versus
Genba Baburao Gabhane others.... Respondents.
Appeal No. 95 of 1971 from Appellate Decree, decided on 20-10-1977.
Advocates appeared :
A.Y. Kulkarni, for appellants.
D.S. Marathe, for respondent No. 1.
S.M. Mhamane, for respondent Nos. 2, 4, 5 16.
P.Y. Kulkarni, for respondent No. 6-A.
A co-sharer can make a gift of his share in the property without obtaining the consent of the other co-sharers.
Headnote:
GIFT OF CO-SHARER'S SHARE - CONSENT OF OTHER CO-SHARERS - NOT REQUIRED - HINDU LAW - BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 (BOM. LXVII OF 1948), SEC. 32G - SUMMARY
Fact of the Case:
Plaintiffs filed a suit to recover possession of 8 annas 11 pies share in the suit lands and for mesne profits for three years. Their contention was that their father was the owner of 8 annas share in his own right and in or about the year 1939 he purchased from his sister Umabai-defendant No. 15, her 11 pies share in the suit lands. The suit was resisted by defendant No. 1. The trial Court decreed the plaintiffs suit both as regards 8 annas 11 pies share in the suit lands as well as regards the mesne profits. In an appeal preferred by defendant No. 1, the decree passed by the trial Court was reversed by the Appellate Court.
Finding of the Court:
The Appellate Court was in error in declaring the gift-deed by the father in favour of the plaintiffs executed in March 1966 as void and inoperative. The question of consent of other co-sharers does not arise. There was already a partition amongst the various members of the family and whatever had come to the share of the plaintiffs father it was his separate property and he was entitled to make a gift thereof without obtaining the consent of other co-sharers even though the property may not have been divided by metes and bounds in accordance with the respective rights of the various co-sharers.
Issues: Whether the gift-deed executed in favour of the plaintiffs on March 8, 1966, was inoperative in law as consent of the other co-sharers to the said gift-deed was not obtained.
Ratio Decidendi: A co-sharer can make a gift of his share in the property without obtaining the consent of the other co-sharers. This is not a case where the property is held to be a co-parcenary property at the time of the gift by the father. After all the property was his separate property and there was no limitation either under the Hindu Law or under any other law under which a co-sharer while gifting away his property should obtain the consent of the other co-sharers.
Final Decision: The appeal is allowed. Plaintiffs are entitled to joint possession of 8 annas share in the suit property along with the other co-sharers. Defendant No. 1 will pay a sum of Rs. 300/- to the plaintiffs as mesne profits for three years prior to the date of the institution of the suit. The future mesne profits in respect of the 8 annas share in the suit property will be determined under the directions of the trial Court having regard to the provisions of Order XX, Rule 12 of the Code of Civil Procedure. The plaintiffs will be entitled to costs throughout from defendant No. 1 only.
2. Mr. Kulkarni on behalf of the plaintiffs submitted that the Appellate Court was in error in declaring the gift-deed by the father in favour of the plaintiffs executed in March 1966 as void and inoperative. He submitted that the question of consent of other co-sharers does not arise. There was already a partition amongst the various members of the family and whatever had come to the share of the plaintiffs father it was his separate property and he was entitled to make a gift thereof without obtaining the consent of other co-sharers even though the property may not have been divided by metes and bounds in accordance with the respective rights of the various co-sharers. He, therefore, submitted that the very basis on which the Appellate Court has set aside the decree that has been passed by the trial Court cannot be sustained. In fairness to Mr. Kulkarni, who appears for the plaintiffs, it should be stated that he has sustained the gift to the extent of only 8 annas share and he has not made any claim for 11 pies share in the suit land in respect of which a claim was made on the basis of the purchase effected by the plaintiffs father from his sister, Umabai-defendant No. 15.
3. So far as the 11 pies share which was claimed to have come to the plaintiffs father is concerned, there is one infirmity. The right thereto is claimed on the footing that Umabai had 11 pies share in the suit land. Umabai obtained various properties by way of gift from her mother Laxmibai; but there is nothing in the indenture of gift to show that the suit property was included therein. If the suit property was not included in the gift-deed in favour of Umabai, she does not acquire any title to the suit property or any portion thereof as a result of the said gift-deed. To that extent any sale by Umabai in favour of the father of the plaintiffs in respect of 11 pies share will not be valid so as to confer any title in respect of any such share. Mr. Kulkarni, therefore, has rightly not Advocated the case in respect of this 11 pies share in the suit land.
4. That takes me to the remaining 8 annas share in the suit property. This share has been gifted by the father of the plaintiffs to them. The title of the father to this 8 annas share has not been controverted by any of the parties. If that is so, then the father, who was a co-sharer
