A coparcener cannot validly gift joint family property without the consent of other coparceners, and complete partition is necessary to transform joint ownership into separate ownership and possession.

1. Heard Mr. D. K. Sinha, learned Sr. Counsel appearing on behalf of the appellants.

2. This appeal has been filed against the judgment and decree dated 9th April,. 2009 passed by the Additional District Judge, Fast Track Court No. 1, Aurangabad, reversing the judgment and decree dated 9-7-2002 passed by Sub-Judge-V, Aurangabad, in Title Suit No. 189/91/36/2000.

3. The plaintiffs have filed the suit for declaration that the deed of gift dated 27-1-1989 executed by Ambika Singh in favour of the defendants is illegal document and not binding upon the plaintiffs. Bereft of details it would be suffice to mention here that one Bharosa Singh had executed a gift of deed in favour of Rasdhari Singh who was the predecessor of the plaintiffs. As the said gift of deed of the year 1919 was exclusively in the name of Rasdhari Singh, the plaintiffs have asserted that Ramdhari Singh and his son Ambika Singh did not acquire any right, title and interest in the property covered by the said gift deed. THE plaintiffs have also stated that Ambika Singh had filed Title Suit No. 10 of 1989 for partition of the joint family property including the properties covered by the gift of deed of 1919 and simultaneously he had executed a gift deed dated 27-1-1989 in favour of defendant Nos. 1 to 7 which is a void document as a coparcener in his status as such could not have executed or alienated joint family property by way of gift. However, the defendants have contended that there was separation and Ambika Singh had separated from the joint family in the year 1982-1983 and as such he was fully competent to execute the gift deed in question.

4. The trial Court after considering the evidence and rival cases of the parties has come to the finding that the gift deed dated 27-1-1989 by Ambika Singh is a valid and legal document. However, in appeal by the plaintiffs, the appellate Court reversed the finding of the trial Court and has come to hold that the gift: deed of Ambika Singh who was a coparcener was not a valid document with regard to coparcenary property.

5. Mr. Sinha, the learned Sr. Counsel in support of this appeal has submitted that the appellate Court has erred in law in framing a new issue and giving a finding thereupon without remitting the matter back to the trial Court. He has further submitted that the finding by the trial Court regarding validity of deed of gift dated 27-1-1989 is unassailable in the facts of the case and the appellate Court has committed an error of law in reversing the said finding.

6. From the perusal of the impugned judgment of the appellate Court it appears that the appellate Court has mainly proceeded to record its conclusion on the basis of well settled principle of Hindu Law that a coparcener cannot alienate the joint family property by way of gift without the consent of other coparceners and such gift deed would be void altogether and even not binding upon the alienating coparcener. There is no dispute that Ambika Singh had filed Title Suit No. 10 of 1989 for partition in which he had also in-cluded the properties subject-matter of the gift of deed dated 27-1-1989. The allegation of separation even if it is accepted to be true cannot be sufficient to disrupt the joint status of the family which can be disrupted only on a partition by metes and bounds and the different coparceners coming in exclusive possession of their shares. In a Hindu Undivided Family the partition is complete only when the title over the joint family property which is vested in the coparcenery is transformed into different titles of the co-sharers after allotment of their shares and putting them in exclusive possession of the same. In Santan Nr. Tewary v. Saran Nr. Tewary and others, AIR 1959 Pat 331 a Division Bench of this Court has succinctly explained this principle of Hindu Law in the following words :

"...............This principle follows from the fundamental concept of joint ownership and possession giving each joint owner a right to