Relinquishment of right of one co-parcener in family property.

8th defendant in O.S. No.294 of 1973, on the file of II Additional Subordinate Judge’s Court, Vellore, North Arcot District, is the appellant.

2. Suit filed by plaintiffs was one for partition claiming 3/8th share in the plaint items.

3. The relevant facts which are necessary for disposing of the appeal are, that the property belonged to one Narasimhalu Naidu, who had two sons, Rathna Naidu and Veeraraghava Naidu. They constituted a joint family. After the death of Narasimhalu Naidu, other members continued to be joint, and they also acquired other properties from out of the income, which admittedly belonged to me family. Plaintiff is the son of Veeraraghava Naidu and his son is deceased first defendant. Defendants 2 to 8 and one Perumal Naidu are the sons of Rathna Naidu. It is said that the defendants alone are taking the income. Therefore, the plaintiff prays that he may be allotted 3/8th share.

4. In the written statement filed by second defendant, which has been adopted by the appellant herein, also, the main contention raised was that Narasimhalu Naidu had an elder brother by name Kullappa Naidu, and both of them were members of the same family. Kullappa Naidu released all his rights in favour of Rathna Naidu and, therefore, the property covered by that document, i.e., items 5 to 10 in the plaint belonged to their branch exclusively. Therefore, the plaintiff is not entitled to any right over items 5 to 10. They are entitled to partition of items 1 to 4.

5. Trial court granted a preliminary decree in favour of plaintiff for items 1 to 4 only.

6. It is seen that even in respect of the preliminary decree, appellant was not satisfied. So, he filed A.S. No.173 of 1980, on the file of District Judge, Vellore. Plaintiff also filed a cross-appeal. Before the lower appellate court, additional evidence was taken. Exs.B-6 and B-7 were marked. The lower appellate court found that even in respect of items for which preliminary decree was not granted by the trial court, plaintiff is entitled to share. The lower appellate court was of the view that on the basis of Ex.B-6, Rathna Naidu alone will not be entitled to any separate right. The benefit of Ex.B-2 must enure to the benefit of the entire family. The contention of the defendants that Ex.B-6 property exclusively belonged to Rathna Naidu could not be accepted. The cross-appeal was allowed, and the appeal was dismissed. It is against the said judgment, this second appeal is filed.

7. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:

“(1) Whether the learned Judge is right in holding mat Ex.B-6 was only a release deed and not a conveyance?

.(2) Whether the learned Judge is right in holding that Ex.B-6 would enure to the benefit of the plaintiff and his mother and sister? and

.(3) Whether the learned Judge is right in thinking that the question of the status from plaintiff as the son of Veeraraghava Naidu was not in dispute in the appeal?”

8. The only argument that was put forward at the time of hearing by learned counsel for appellant was, on the question whether Ex.B-6 enures to the benefit of the Branch of Rathna Naidu alone or to the entire joint family.

9. That Ex.B-6 was executed by an undivided coparcener in favour of Rathna Naidu is not disputed. Ofcourse it is said that it was executed for consideration. It is because the document is for consideration, the contention is that it is a conveyance of the coparcener’s right in favour of the purchaser or Rathna Naidu. Whether that contention could be accepted or not, is the only question to be decided.

10. Derrett on ‘Introduction to Modern Hindu Law’ (1963 Edition) has stated (at pages 250 and 251) as to what is the nature of a coparcener’s interest in a family property. The relevant portion reads thus:

"No individual member of the coparcenary can claim before partition (in which he participates) that he owns a certain definite share eith