An after-born son of a renouncing coparcener is not entitled to a share in the joint family property.

JUDGEMENT:- The third defendant is the appellant. The suit property is stated to be a vacant site. The property originally belonged to the joint family of first and fourth defendants who are brothers. In their hands, it is admitted, it was ancestral property. The fourth defendant executed a deed styled (Matter in Tamil omitted-Ed.) on 27-9-1948 in favour of his brother, the first defendant, releasing his half share in the suit property. At the time when he executed that document, he was unmarried. Subsequently, the first defendant sold the property to the second defendant and from the second defendant the third defendant has purchased the same. The plaintiffs are the children of the fourth defendant and they have filed the suit for partition and separate possession of their share in the property on the ground that the release deed could not deprive them of their share in the property of the joint family. They also pleaded that the release deed was executed under coercion and undue influence and that it was also a sham and nominal document that never came into operation.

2. The trial Court held that the release deed Ex. B-3 was true and valid, that the suit is barred by res judicata by reason of an earlier judgment and decree in O.S. No. 704 of 1962 in which the title of the first defendant to the suit property was accepted, that the suit is not barred by limitation and that, though the suit is in time, since their father had released his rights, the plaintiffs are not entitled to a claim for partition and separate possession and on these findings it dismissed the suit.

3. The plaintiffs preferred an appeal and the only point that was raised before the appellate Court was as to the legal effect of the release deed in respect of the shares of the plaintiffs in the joint family property. Purporting to follow the decision of the Bombay High Court in Mahalingayya v. Sangayya, AIR 1943 Bom 397, the lower appellate court held that the release deed cannot operate as a relinquishment of the rights of the plaintiffs and that therefore the plaintiffs are entitled to partition and separate possession as prayed for and in that view decreed the suit.

4. The learned counsel for the appellant contended that the release deed having been executed by the fourth defendant at the time when he was not even married, it completely effaced whatever rights the fourth defendant had in the property of the joint family and the plaintiffs who are the after-born sons cannot claim any right in the suit property.

5. It is now well settled that a renunciation by a coparcener of his entire undivided interest in favour of the other coparcener or coparceners as a body will be valid and such renunciation can be effected by an expression of an intention to that effect no formality is necessary. It is not material whether the renouncing coparcener describes the transaction as a gift or surrender or release. In such a case, the renunciation enures for the benefit of all the coparceners. In the case of such a renunciation, the other members of the coparcenery would continue as joint as before and the effect of renunciation is to reduce the number of persons to whom the shares will be alloted, if and when a division of the estate takes place.

6. A Full Bench of this court in Subbanna v. Balasubba Reddi, 1945-1 Mad LJ 140 : (AIR 1945 Mad 142) held that a member of a joint Hindu family governed by the Mitakshara Law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate; and in such circumstances, he can relinquish his interest but the relinquishment operates for the benefit of all the other members.

7. But in all these cases, the right of an after-born son of the renouncing coparcener had not been considered specifically, though it might be inferred that, since by renunciation he goes out of the family, any such son born to him thereafter will not be entitled to any share in the, joint family properties of the remai