Point of Law: Gift by a coparcener of his undivided interest in coparcenery properties as void - Coparcener can make a gift of his undivided interest in coparcener property to another coparcener or to a stranger with a prior consent of all other coparceners.

JUDGMENT :

(Prayer: First Appeal is filed under Section 96 of C.P.C., against the judgment and decree dated 28.11.2017 made in O.S.No.173 of 2010 on the file of the Learned Principal District Court, Namakkal.)

1. The Appeal against the judgment and decree passed by the Trial Court in the suit for partition and separate possession. The aggrieved defendant is the appellant before this Court.

2. Suit for partition filed by the purchaser of the undivided ½ share of the suit property. Same was defendant by the co-sharer on the ground of pre-existing right to purchase. The Trial Court rejected the said defence.

3. The Trial Court judgment and decree is assailed on the ground that the Court below erred in relying upon a void settlement deed dated 02.02.2010 marked as Ex.A.3 and the subsequent sale deed dated 30.09.2010 marked as Ex.A.4, which is per se not maintainable in the eye of law. The contention of the appellant is that a coparcener cannot donate or settle her undivided share in the suit property without the consent of the other coparceners. Therefore, the settlement deed through which the property has been alienated in favour of the plaintiff is non est in the eye of law because the gift or devise by a coparcener in Mitakshara family of her undivided interest is wholly invalid.

4. In this case, the plaintiff had purchased the suit property from one Haripriya vide Ex.A.4. The plaintiff's vendor Haripriya got the property by way of a settlement deed Ex.A.3 executed by her mother Vasanthamani.

5. The contention of the Learned Counsel for the appellant is that Vasanthamani have no power to settle her undivided share in the coparcener property to her daughter Haripriya. Therefore, the said settlement deed as well as the consequence sale deed will not bind the other coparcener namely the appellant. Further, the case of the appellant is that Ex.A.3 settlement deed and Ex.A.4 sale deed had been fraudulently created at the instigation of one K.P.Ramasamy, then M.L.A of Rasipuram Constituency. At his instance Ex.A.3 settlement deed was fabricated and thereafter, a bogus sale deed created in the name of his wife Sulochana, who is the plaintiff. By force, she took possession of the property and same established by the defendants through Ex.B.6 to Ex.B.12.

6. It is further contended that, proper issues were not framed and the Trial Court had discussed irrelevant issues, which are not germane for deciding the suit. The validity of settlement deed (Ex.A.3) dated 02.02.2010 not been properly considered by the Trial Court. The suit should have been valued as per Section 37(1) of Tamil Nadu Court Fees Act, 1955, had being erroneously valued under Section 37(2) of the Act, which was not considered by the Trial Court.

7. The Learned Counsel for the appellant relying upon the judgment of the Hon'ble Supreme Court in Thamma Venkata Subbamma -vs- Thamma Rattamma and others reported in (1987) 3 SCC 294 and Karsanbhai Dahyabhai Parmar -vs- Dahiben D/o Dahyabhai Dabhaibhai and others reported in AIR 2017 SC 3857 submitted that, gift deed in respect of undivided share without the consent of the other coparceners is invalid. However, the trial Court has totally failed to take note of the dictum laid down by the Hon'ble Supreme Court and erroneously decreed the suit.

8. Per contra, the Learned Counsel appearing for the respondent herein defending the judgment and decree of the trial Court submitted that, on 11.02.1966, the suit property was given to the share of Vasanthamani when the partition was effected among the legal heirs of Patcha Konar. In the said partition, the suit property was allotted to Papayeeammal and her three children. Viz two sons namely Balasubramanian and Jeganathan and one daughter Vasanthamani. Papayeeammal died interstate on 14.11.2005 and her son Balasubramanian died on 07.06.2009 leaving behind his wife Parimala and daughter Elyanandhini and Satya. Papayeeammal another son Jeganathan died as bachelor on 17.11.2009. The suit property, thu