1. This is a plaintiffs' appeal arising out of a suit brought for a declaration that the property in dispute belongs to the plaintiffs who are members of a joint Hindu family, and not to defendant 2, though he also is a member of the same joint family, and that accordingly the property is not attachable and saleable in execution of a simple money decree in favour of defendant 1 against defendant 2. The plaintiffs relied on a document called the deed of relinquishment, dated 1st February 1929, executed by defendant 2 within a few months of his attainment of majority. Under this deed defendant 2 purported to relinquish all his interest in certain specified properties which at that time were admittedly joint family properties. He did not intend to separate from the family and continued to be a joint member of the family, and indeed provided that his wife and children would be supported and maintained by the plaintiff 1, the elder brother, and that the latter would meet the expenses of the marriage of his daughter when born in future. In the plaint the plaintiffs did not any where allege that the terms of the conditions imposed by defendant 2 had been accepted by them, or that there was in any other form any consideration passing from the plaintiffs to defendant 2. There was certainly no suggestion that defendant 2 had relinquished his interest in the joint family property on receipt of a part of the family property.
2. Plaintiff 1 made a statement on 26th November 1931 in which he admitted that at the time when the deed of relinquishment was executed the execution of a decree against defendant 2, and perhaps also plaintiff 1, had been transferred to the Collector, who was carrying on proceedings under Schedule 3, Civil P.C., and had given leases of shares in 10 villages out of the shares in 23 villages, which are in dispute in this suit. It was also admitted that defendant 2, Behari Singh, was still living jointly with plaintiff 1, and that both the brothers lived jointly and maintained themselves with the joint family property in which the properties relinquished were included, and that the only change effected by the arrangement was that the younger brother's name had been removed from the khewats, but that possession of the elder brother had continued in the same way as before, and both the brothers were still joint, and there was never any separation between them. After this admission the contesting defendant applied to the Court that the case may be disposed of on the legal point that arose in the case without taking any further evidence. The Court below acceded to this request and had dismissed the suit on two grounds: first, that there was no valid relinquishment which would extinguish the proprietary interest of Behari in the property covered by the deed of relinquishment; and secondly, that para. 11, Schedule 3, Civil P.C., was a bar to the relinquishment.
3. The learned Counsel for the plaintiff had to concede that if the deed of relinquishment was a deed of transfer under which the interest of Behari passed from him to plaintiff 1, Shok Haran Prasad Singh, then the transfer would be invalid firstly because the family being still joint a transfer of an undivided interest by one member of the family in favour of the other would be wholly invalid, and secondly because of the proceedings in the Collector's Court the transfer would be void. As regards the first point the position is perfectly clear from the ruling in Ram Chand v. Mathura Chand 1921 19 ALJ 299, where it was held by a Bench of this Court that a member of a joint Hindu family cannot legally transfer a portion of the joint family property so long as the family remains joint. In that case a document which was styled as tamlikhnamah and had been executed by one member of the family in favour of another was held to be wholly invalid to bring out a transfer and extinguish the interest of that member of the joint family who has parted with his interest. On the second point also the position is clear from the language of para. 11, Schedule 3, Civil P.C., vide Syed Mazhar Hussain v. Bodha Bibi (1899) 25 IA 219, corresponding to Gaurishanker Balmukand v. Chinnamiya 1918 46 Cal 183 and Sarju Prasad v. Ram Saran Lal 1931 All 541.
4. Learned Counsel for the plaintiffs however contends before us that the deed of relinquishment was not in reality any deed of transfer at all, and that therefore there is no prohibition against it under the Hindu law. His contention is that it is open to a member of a joint Hindu family to surrender his interest in any part of the family property, and thereby bring about an extinction of ownership in such property with the result that the other members become automatically the sole owners of the property. In the first place this was not a surrender by a member in that sense, but was a surrender in favour of only one out of the several members of the joint family. In the second place there is no authority even under the Hindu law in support of this proposition. The learned Advocate has urged before us that the analogy of a surrender made by a Hindu widow in favour of the next reversioner applied to this case. It may be pointed out that a Hindu widow's surrender is not effective unless the entire estate is relinquished in favour of the next reversioner. She has no right to surrender a part of the estate and keep the other to herself. As already pointed out, in this case defendant 2 did not surrender his entire interest in all the family properties but only confined the relinquishment to certain specified properties.
5. Had Behari declared his intention of separating from the other members of the family, that is to say, altogether retiring from the family, and had taken a small part of property, and relinquished the rest, there would have been nothing objectionable in such an act; but here Behari still continued to be a member of the joint family and merely purported to relinquish his interest in a few items of the family property. He, therefore, did not bring about any extinction of his joint interest in the joint properties.
6. Admittedly before the relinquishment he was the owner of an undivided interest in all the joint properties. A mere declaration of his, that he would not in future have anything to do with that property, or claim any interest in it, would not amount to a transfer of his interest, nor can it amount to a mere extinction without such a transfer. Either the transaction is a transfer or it is not a transfer. If it is a transfer then it becomes invalid so long as the transferor is a member of the joint Hindu family, and there is no legal necessity for such a transfer. If it is not a transfer, then his interest must continue to remain vested in him and has not passed. A surrender of rights can at the most be regarded as a mere agreement not to claim the interest in future. Unless there be circumstances which amount to a complete estoppel so as to prevent the person who has surrendered his interest from claiming it, such a surrender would not have the effect of preventing him from claiming the property again, particularly if there was no consideration for the surrender. Even if there had been any consideration it may in some cases be open to a Court to allow him to claim back the property and allow damages for the breach of the contract committed by him.
7. The case before us is quite parallel to the case which came up for decision before a Bench of the Madras High Court in Appa Pillai v. Ranga Pillai (1883) 6 Mad 71. There also the plaintiff, a member of an undivided Hindu family, had by a registered document renounced all his rights to the family property in favour of the remaining coparceners, who were to manage the estate in future, to pay all debts, and maintain the plaintiff in the family, and sued to recover his share of the family property by partition. The defendants set [up a deed of relinquishment against him. It was held by the learned Judges of the Madras High Court that there was no estoppel against the plaintiff. It was pointed out that the text of the Mitakshara, Ch. 1, Section 2, para. 12, did not support the contention that a co-parcener can renounce his interest. The learned Judges pointed out that where there is no partition, the corporate unity continued and the co-parceners could not contract with another; and further held that even if the transaction could be viewed as an agreement between separated co-parceners in settlement of the family property, it would not be binding on the plaintiff as there Was no consideration for it. For the promise no consideration had moved from the defendant on the one side and plaintiff and defendant's father on the other, and the transaction could not be regarded as an agreement made for natural love and affection.
8. The text of the Mitakshara referred to only authorises a member of the coparcenary body who is not desirous of sharing his father's goods to take a small part and complete the separation or division so that his children may have no future claim to inheritance. Obviously that text refers to the case where a member goes out of the family on receipt of a part of family property. It has no application to the case where the co-parcener continues to be joint with the other members and merely renounces his claim to a part of the joint property.
9. The learned advocate for the plaintiff relies on a passage in the judgment in Chandar Kishore v. Dampat Kishore (1891) 16 All 369, to the effect that if the alienation be regarded as a surrender of the interest, it is a surrender to the whole of the co-parcenary body and cannot enure to the peculiar benefit of one of them. In that case it was held by the Bench that one member of a joint Hindu family cannot transfer his undivided share in the joint family to another member of the family without the consent of the rest of the co-sharers. We do not take that observation to mean that if it were a surrender to the whole of the co-parcenary body it would amount to a transfer. The learned Judges were only concerned with the question whether the surrender of the interest in favour of one member of the family was valid, and they remarked that it was settled law that in cases governed by the Mitakshara Law one sharer had no authority to make the transfer. It seems to us that the deed of relinquishment cannot be regarded as having brought about any transfer or to operate as an estoppel; and if it can be regarded as an attempted transfer then it was invalid under the Hindu Law. The view taken by the learned Subordinate Judge on both the points is correct. The appeal is accordingly dismissed with costs.