M. Krishna Rao, J.
1. This appeal is filed by defendants 1 and 3 to 7 against the judgment of the learned Subordinate Judge, Bapatla in O. S. No. 26 of 1967.
2. The relationship between the parties may be stated as follows : Rami Reddy and Veerareddy are two brothers. The plaintiff is the widow of Rami reddy. The Ist defendant is the widow of Veerareddy, defendants 2, 3, and 4 are the sons and defendants 5, 6 and 7 are the daughters of Veerareddy. Ramireddy and Veerareddy were living as members of an undivided family. On 4-5-1969 Ramireddy executed a deed of settlement. Ex. A-1, when he was 80 years of age, in favour of his brother Veerareddy conveying his entire undivided interest in the family. Veerareddy was having children and Ramireddy as affectionately disposed towards Veerareddy and his children and hence he executed the said settlement deed reserving a life interest in himself and also providing that after his lifetime his brother should maintain his wife. Thereafter Ramireddy died in January, 1965 and his brother Veerareddy too died in March, 1965. After the death of Ramireddy, difference arose between the plaintiff and the Ist defendant as a result of which the plaintiff demanded by notice partition of the properties representing the share of her husband. The defendants replied that Ramireddy executed a deed of settlement of all his properties and that the plaintiff had only a right of maintenance. The plaintiff thereupon filed the present suit for partition and recovery of her husband's share after cancelling the deed of settlement executed by her husband as having been vitiated by undue influence, and also on the ground that it is not valid under Hindu Law. The 3rd defendant one of the sons of Veerareddy filed a written statement denying the plaint allegations. Defendants 1 and 4 to 7 adopted his written statement. The court below, on a consideration of the evidence and probabilities in the case, held that the deed of settlement was a genuine document not vitiated by undue influence, but gave a decree to the plaintiff holding that the settlement deed is void and inoperative under Hindu Law in the absence of consent of the other co-parceners.
3. In this appeal the learned counsel for the respondent-plaintiff sought to challenge the adverse finding given by the Court below. We have gone through the evidence and we do not see any reason to differ from finding of the lower Court on this point. Hence the only question which remains for consideration is whether the deed of settlement is valid under Hindu Law.
4. It may be recalled that on the principal sources of Hindu Law as it stands today is judge-made law. Many a text to Hindu Law has lost its original complexion due to the impact of several inroads made by the interpretations of commentators and judicial decisions which have reflected from time to time the spirit of the changing society. The original rule of Hindu Law prohibiting a coparcener from dealing with his undivided interest in the coparcenary property has also suffered a appreciable change and reform due to the development of commerce and trade and the phenomenal evolution of social life when compared to the age when the Hindu society was governed by the texts of Hindu Law.
According to the original text of Mitakshara extracted in Ponnappa Pillai v. Pappuvayyangar ILR (1882) Mad 1 , ' separated kinsman, as those who are unseparated are equal in respect of immovables, for one has not power over the whole to make a gift, sale, or mortgage '. It was interpreted as ' among unseparated kinsmen the consent of all indispensably requisite, because no one is fully empowered to make an alienation since the estate is in common. ' At least by the middle of the 19th century it was recognised in the Madras and Bombay States that a coparcener can sell, mortgage or otherwise alienate for value his undivided interest in the coparcenary property without the consent of the other coparceners. The rigour of the original text has been obviously relaxed in favour of purchasers at an execution sale in many other Provinces in India. The next stage of the development is that the creditor is allowed to bring to sale in execution the undivided interest of a coparcener without the concurrence of the others. He can even purchase the share and standing in the shoes of the alienating coparcener work out his rights in a general suit for partition. But the restrictions on the power to make a gift or device of interest however continued in force. No doubt the Hindu Law Texts laid down some exceptions conferring power on the father or manager to make gifts of small extents of property within reasonable limits for religious charitable or other pious purposes. But the rigour of this rule was attenuated in course of time by judicial authority by upholding gifts and testamentary dispositions of undivided coparcenary property on the ground of consent or ratification of all the coparceners, whose interests are directly affected by the transfer or disposition. Another device adopted was to treat the transaction wherever possible as a renunciation by a coparcener. Coming to recent times, Section 30 of the Hindu Succession Act contains a statutory recognition of the right of a coparcener to dispose by will his undivided interest in the coparcenary without the consent of the others. The only surviving relic of this antiquated Hindu Law is that a coparcener cannot make a gift of his undivided interest in the coparcenary without the consent of the other coparceners. We have no doubt that in the near future this rule will be liquidated by the Legislature. But we have to note that the trend of the judicial authority is as far as possible to uphold a gift made by the coparceners if the consent of the other coparceners is either express or implied or even if it is ratified at a subsequent point of time.
5. We will now refer to the authorities cited on behalf of the appellants in support of the contention that such a gift can be held to be valid if the consent of the other coparceners is express or implead. In Tagore v. Tagore (1872) 9 B.L.R. 377. Privy Council observed that as to ancestral estate it is said to be improper that it should be gifted by the holder without the concurrence of those who are interested in the succession. In Seth Lakshmi Chand v. Mt. Anandi AIR 1926 PC 54, a bequest by an undivided coparcener of his interest was justified on the basis of a family arrangement which was acted upon and consented to by all the co-sharers. In Gundayya Hanmant v. Srinivas Narayan AIR 1937 Bom 51, gift by one coparcener of his interest in the coparcenary property in favour of the other was held to be valid on the ground of mutual concurrence. The true principle is stated to be that a coparcener cannot do any act which is to the prejudice of the other coparceners or which infringes their rights over the common property except with their consent express or implied.
Ram Saran Singh v. Prithipal Singh : AIR1950All224 is a case where one coparcener makes a gift of his interest in favour of the remaining coparcener. In such a case the consent of the remaining coparcener is implied or it can be justified as a relinquishment by one in favour of the other. In Subbanna v. Balasubba reddi AIR 1945 Mad 142 it was held that where a coparcener relinquishes his interest in favour of only some of the other coparceners, it operates as a relinquishment in favour of all the other coparceners, and such a transaction is not affected of the outgoing coparcener takes a trifle. In Ratnasabapathy v. Saraswathi Ammal : AIR1954Mad307 a Division Bench of the Madras High Court while noting that a gift of undivided coparcenary interest is not permitted under Hindu Law, however held that such a gift can be made with the consent of all the coparceners and that with such consent the gift may be even to a stranger or the charity. The next is a direct decision of a Division Bench of the Andhra Pradesh High Court in Suryakantam v. Suryanarayanamurthy. AIR 1957 AP 1012. That was a case where a coparcener executed a deed of settlement of his undivided share in the joint family properties in favour of his wife and mother with a condition that he should be maintained for life by payment of Rs. 200 /- as maintenance per annum. After the death of the donees the remaining coparceners ratified this transaction at a partition between them. It was accordingly held as follows :
'The rule of law is not that the gift of undivided share is void in the sense that it is not binding on the other coparceners. The rule is that no such gift can be made without the concurrence of the persons affected. But, whereas in this case the members of the family subsequently recognised and acted upon the gift and allotted a share to the donee, the transaction cannot be attacked by a stranger or the donor himself. Hence there could be no impediment of law in passing of a good title in favour of the minor wife under that arrangement. '
6. We may now refer to the provisions of Hindu Succession Act which have to some extent introduced a change in the Hindu Law concept of coparcenary. Section 6 clearly recognises the right on the death of the coparcener, of certain preferential heirs to claim an interest in the property which belonged to the share of the coparcener at the time of his death. In Mulla's Hindu Law it is pointed out in the note to Chapter XII on coparceners as follows :--
'The cardinal doctrine of the Mitakshara law that a coparcener in a joint family cannot make a valid gift or bequest of his interest in the coparcenary property so as to defeat the rights of the other members to take by survivorship is partly abolished to the extent that it is now competent to such a coparcener to dispose of by will ( S. 30 ) his undivided interest in the coparcenary property. '
Under the proviso to Section 6 of the Hindu Succession Act if a coparcener dies leaving a female relative specified in class I of the Schedule to the Act, etc., his interest in the coparcenary devolves by testamentary or intestate succession, and not by survivorship.
7. We will now refer to the other line of authorities cited by the learned counsel for the respondent in which a gift of a coparcenary property was held to be invalid. In Baba v. Timma ILR (1884) Mad 357 it was held that a Hindu father while unseparated from his son has no power except for purposes warranted by the special texts to alienate to a stranger his undivided share in the ancestral estate. That was a clear case where there was no plea of consent on the part of the son of the donor. Under those circumstances it was held to be not binding on the son. The principle underlying the decision is that as the son an equal interest in the coparcenary property it is not open to the father without his concurrence to affect his rights in the property.
Ramanna v. Venkata ILR (1888) Mad 246 is again a case of the son questioning a gift made by his father with respect to the ancestral property in favour of a stranger. The transaction was questioned by a minor son who could not have consented to the gift. It was held that the gift is invalid as against his son. Applying the above principles it was held in Rottala Runganatham Chetty v. Pulicat Ramasami Chetty ILR (1904) Mad 162 that an alienation which is not supported by consideration is in to void to that extent as a gift of undivided family property. In Venkatappayya v. Raghavayya : AIR1951Mad318 , a decision of a Single Judge ( Raghava Rao, J.). a gift made by a father for himself and on behalf of his minor son in favour of another coparcener was held to be void and that even the donor can sue to recover the property. It is not necessary for us to say anything about the correctness of this decision which has taken an extreme stand. But it can be distinguished on the ground that the donor's minor sons could not have given any consent. Reference may next be made to a decision of a Single Judge of this Court ( Sheshachalapathi, J. ) in Salvalingam v. Lingamurthy : AIR1962AP173 . That was a case of coparcener making a gift of his undivided interest in the coparcenary in favour of his grandson without the concurrence of the son. It was not a case where the gift was sought to be validated on the ground of consent of the son. Though the learned Judge sitting single did not choose to follow the judgment of the Division Bench of this Court in AIR 1957 AP 1012, it can be distinguished on the ground that it was not a case where the gift was accepted by the coparcener affected thereby.
The case in A. Perumalakkal v. Kumarasan Balakrishnan : 1SCR353 , only related to the powers of a father or manager to dispose of coparcenary property within the reasonable limits for pious purposes. There is no doubt a general statement of law that a gift of coparcenary property is not valid under Hindu Law except for specified purposes. But the validity of such a gift on the ground of consent of other coparceners did not arise for consideration. The case before the Supreme Court arose out of a gift by a coparcener to his wife in the presence of son who did not consent for the gift. Our attention is also invited to two decisions of this Court which have arisen under the Gift Tax Act viz. Smt. Valluri Janakamma v. Commissioner of Gift Tax : 66ITR255(AP) and Commissioner of Gift Tax v. P. Hanumanthappa : 68ITR363(AP) . In these two cases this Court held that a gift of coparcenary property is not valid in law. There was no plea that the gifts were ratified or consented to by other coparceners whose interests are affected.
8. In view of the above authorities and in the absence of any specific textual authority stating that the gift is void as such, we are inclined to accept the principle stated by the Division Bench in AIR 1957 AP 1012, viz., that the gift is not void but it does not bind the other coparceners who are affected thereby and that if they consent the gift can be treated as valid. There is also abundant authority as seen above that the consent may be express or implied and that consent may be given at the time of the transaction or inferred by subsequent conduct. Applying the above principle to the facts of the instant case, we find that the gift was accepted by the donee who was the undivided brother of the donor. The donee's sons have no right by birth in the share of the donor. In view of the affection towards the donee and his sons, the donor must be taken to have made the gift for the common benefit of the donee as well as his sons. The first son of Veerareddy had relinquished all his interests in favour of others and a portion of the gifted property was again given by Veerareddy to his second son. When the plaintiff gave a notice challenging the statement the defendants denied her claim and relied on the settlement. The youngest son filed a written statement adopting the pleas raised by his father accepting the gift. The plaintiff is not a coparcener having any pre-existing interest in the undivided interest of her husband. Hence she is not a person affected by the gift. We, therefore, hold that the gift Ex. A-1 is valid. As the deed of the gift did not specify the amount to be paid to the plaintiff by way of maintenance, we confirm the finding regarding maintenance given by the lower Court viz., Rs. 100 /- per month for her life. The learned counsel for the appellant is also agreeable to pay maintenance at that rate. We, therefore, allow this appeal and set aside the decree of the lower Court.
9. In the result, the suit will be dismissed in so far as it related to the cancellation of the gift-deed and for the recovery of possession of the properties by way of partition and for profits. But instead, there will be a decree awarding maintenance at the rate of Rs. 100 /- per month from the date of plaint. There will be a charge on the A Schedule properties for the maintenance. The decree for costs and the direction for court-fee given in the Court below will stand. But the parties will bear their respective costs in this appeal.
10. Appeal allowed.