A gift by a coparcener in a Mitakshara family of his undivided interest is wholly invalid, subject to certain exceptions. However, a transfer of undivided share by a coparcener can be valid if it is for value.

JUDGMENT :- Pethakutty Thalavanar, Pooliappa Thalavanar and Subbiah Thalavanar were three brothers who constituted a Hindu undivided family owning a few items of properties. On 27-01-1118 M. E. Subbiah Thalavanar, one of the brothers executed a deed of settlement in favour of his wife, Velammal, covering some items of joint family properties. The terms of the settlement deed will be referred to later. On 20-09-1119 M. E. Subbiah Thalavanar sold his undivided one third share in respect of 3 items of properties in favour of Pandia Thalavanar for a sum of Rs. 1100. One of the items of properties comprised in the said sale was already the subject matter of the settlement by Subbiah in favour of his wife. Pandia Thalavanar died in 1126 M. E. leaving behind his last will and testament in and by which the plaintiff, his son became the sole legatee of his properties.

2. Pandia Thalavanar s son filed O. S. No. 89 of 1952 011 the file of the District Munsif Court, Shencottah, impleading the two brothers of Subbiah Thalavanar as defendants 1 and 2, and his widow as the 3rd defendant and seeking relief by way of partition and separate possession of an one-third share in the three items of properties which Ms father had purchased from the late Subbiah Thalavanar.

3. The suit was resisted by the defendants on. the ground that the sale by Subbiah to tire plaintiffs father was not a genuine transaction, and that in any event no relief can be had in respect of item 3 of the plaint schedule which had already been, settled upon Valammal by Subbiah even prior to the execution of the sale by Subbiah.

4. The learned District Munsif, Shencottah, upheld the sale by Subbiah in favour of the plaintiffs father and accordingly granted a preliminary decree for partition in respect of items 1 and 2 of the plaint schedule. Item 3 of the plaint schedule was the property which formed the subject matter of the settlement in favour of the Velammal by her husband Subbiah. The learned District Munsif held that the settlement by Subbiah was valid in law as a family settlement and consequently Subbiah was incompetent to sell that item to the plaintiffs father. The suit in respect of item 3 was therefore dismissed. The learned District Munsif directed ascertainment of mesne profits in respect of items 1 and 2 in the final decree proceedings and awarded mesne profits to the plaintiff from the date of the suit.

5. The plaintiff preferred an appeal in A. S. No. 160 of 1957 on the file of the District Court, Tirunelveli, reiterating his claim for an one third share in respect of item 3 of the plaint schedule property. The learned District Judge upheld the settlement in favour of the third defendant and negatived relief to the plaintiff in respect of item 3. The learned District Judge held that the plaintiff was cot entitled to mesne profits for any period prior to the institution of the suit. The appeal therefore failed and was dismissed.

6. The plaintiff has preferred the above second Appeal and the point for consideration is whether She plaintiff is entitled to an one third share in item 3 of the plaint schedule property. The registered document executed by Subbiah Thalavanar is dated 27-01-1118 M. E. and is marked as Ex. I in the case. It is styled as a deed of settlement. The vernacular expression used is "settlement udanpadikkai". The material portions of the document may be translated as follows.

"Particulars of my having executed this document entitling you to the properties and debts mentioned hereunder in consideration of our family benefit and out of love and affection for you my wife are as follows. The subject matter mentioned hereunder shall hereafter be enjoyed by us paying "kara" (Government cist) and without either of us encumbering or alienating them separately. We shall ourselves pay and discharge the undermentioned debts. If the undermentioned properties require to be encumbered for our family benefit we shall together encumber them. In respect of