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2014 Supreme(Bom) 1188
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ravi K. Deshpande, J.
Sou. Parvatibai @ Laxmibai w/o Annaji Patil - Appellant
Versus
Baburao Ganu Kanade - Respondents
SECOND APPEAL NO. 208 OF 1992
Decided On: June 19, 2014
Advocate Appeared:
Mr. M. L. Patil for the Appellant.
Smt. S. A. Mudbidri for the Respondent Nos. 1 to 3.
Headnote:HINDU LAW - Gift by a coparcener. - A gift made by a coparcener of his undivided interest in coparcenary property, in favour of any particular named coparcener is legal and valid. The gift of undivided interest in a coparcenary property by one coparcener, even if it is in favour of any particular named coparcener, can be construed as a relinquishment or renunciation for the benefit of the other coparceners as a body. The matter is no longer Respondent-integra.
The gift in question at Exhibit-119 has to be construed as relinquishment or renunciation of an undivided interest of ‘H‘ in favour of and for the benefit of the surviving coparceners and such renunciation or relinquishment cannot be treated as invalid or void.
HINDU LAW - Right of married daughter in coparcenary property. - A married daughter has no right in coparcenary property held by her father prior to coming into force of Hindu Succession Act, 1956. - Hindu joint family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her father‘s family on marriage and becomes a member of her husband‘s family. In the present case, on the date of execution of the gift-deed the plaintiff who is the daughter of ‘H‘ was married, and therefore she ceased to be a member of the Hindu joint family headed by her father ‘H‘. A Hindu coparcenary is a much narrower body than a Hindu joint family. The coparcenary consists of all those persons who acquire by birth an interest in the joint or coparcenary property and it consists of not only father and sons but also grandsons and great-grandsons.
A daughter is not considered to be a coparcener as she does not acquire any interest in the joint or coparcenary property by birth. On the date of execution of the gift-deed, the property in question was a coparcenary property and there was no partition between ‘H‘ and ‘G‘ his son ‘B‘ - the defendant No. 1. The plaintiff, therefore, did not possess any interest in the coparcenary property when a gift deed was executed. She had, therefore, no right to succeed to a coparcenary property held by her father prior to the coming into force of the Hindu Succession Act, 1956. The second substantial question of law is, therefore, answered accordingly.
HINDU LAW - Validity of gift by a coparcener. - A gift by a coparcener of his undivided interest in coparcenary property, with consent of other coparceners, legal and valid. - A gift made by a coparcener of his undivided interest in the coparcenery property either in favour of a third person or in favour of another coparcener with the consent of other coparceners would be legal and valid. In the absence of any such consent, the gift becomes void. In the present case, only two surviving coparceners were there, ’H’ and ’B’. ’H’ has executed a gift of his undivided interest in the coparcenery property in favour of the remaining sole surviving coparcener - ’B’, the defendant No. 1 in this case. In such a situation, the question of obtaining consent of other coparceners does not at all arise and the registered gift-deed which is proved cannot be declared or treated as void for want of the consent of other coparceners.
P. C. :
1. The Regular Civil Suit No.85 of 1979 filed by the Appellant - original Plaintiff for partition and separate possession of half share in the suit property was dismissed by the trial Court by its judgment and order dated 2nd May 1987. The Regular Civil Appeal No.155 of 1987 filed by the Plaintiff was partly allowed on 22nd July 1991 by the learned Additional District Judge, Kolhapur declaring that the Appellant-Plaintiff is having 1/2 share in the suit property at serial No.1(A), namely Block No. 795 and the Collector is directed to effect partition. The Defendant does not challenge the decree passed by the appellate Court but it is the Plaintiff who has come before this Court in the second appeal.
2. One Santu, common ancestor had three sons – Vithu, Ganu and Hari and the suit property was a coparcenery property in the hands of these coparceners. It is the case of the Plaintiff as well as the Defendants that Dattu, son of Vithu had separated himself by taking away his share. Ganu died and was survived by his son Babu, the Defendant No. 1. The coparcenery then consisted of Hari and his nepehw, Babu. On 29th March 1954 Hari executed a registered gift-deed at Exhibit-119 in respect of his share of 5-anna and 4-paisa in the suit property in favour of Babu, his nephew, Defendant No. 1.
3. The Appellant-Plaintiff Parvati is the daughter of Hari and she filed Regular Civil Suit No.85 of 1979 on 31st March 1980 claiming half share in the suit property being the legal heir of Hari. Both the Courts below have recorded the finding of fact that the Defendant No.1 Babu has proved giftdeed dated 29th March 1954 executed by Hari, which is at Exhibit-119 and the Plaintiff was not entitled to any share in the suit properties. The appellate Court has held that the giftdeed at Exhibit-119 does not include the property at serial No. 1(A), namely, Block No. 795 and hence the Plaintiff is held entitled to 1/2 share in that suit property.
4. In the background of aforesaid facts and the findings recorded by the Courts below, this Court had framed two substantial questions of law on 16th June 2014 and the matter was adjourned so as to enable the learned Counsel appearing for the parties to address this Court on the said questions. Those two substantial questions of law are recasted as under :
[1] When a coparcenery consists of two members of the joint family, whether the gift of coparcenery property by one of the coparceners in favour of the remaining coparcener becomes void ?
[2] Whether a daughter of a coparcener gets any right to succeed to the coparcenery property held by her father prior to the coming into force of the Hindu Succession Act, 1956 ?
5. Coming to the first substantial question of law which is framed, the undisputed factual position needs to be seen. With the assistance of the Counsel appearing for the parties, I have gone through copy of the plaint and the written statement. The parties are very specific in their stand. It is undisputed position that Hari and Babu were the only coparceners and the property in question was a coparcenery property in their hands. By the registered gift-deed dated 29th March 1954 at Exhibit-119, Hari bequeathed his undivided share and interest in the property which was undisputedly 5- anna and 4-paisa in favour of Babu. The gift is prior to the coming into force of the Hindu Succession Act, 1956 and the position of law prevailing prior to it has been stated by the Apex Court in paras 13 and 17 of its judgment in Thamma Venkata Subbamma v. Thamma Rattamma [(1987) 3 SCC].
The same are reproduced below :
“13. We may also refer to a passage from Mulla's Hindu Law, Fifteenth Edition, Article 258, which is as follows :
"Gift of undivided interest.-- (1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which preclude
