Alfred Henry Lionel Leach, C.J.
1. The question propounded is whether one member of a joint Hindu family consisting of several members can, irrespective of a partition of the family estate, give his own interest therein to one of the other coparceners. If the judgments of this Court in Peddayya v. Ramalingam I.L.R. (1888) Mad. 406 and Thangavelu Pillai v. Doraiswami Pillai : AIR1915Mad113 are to be followed the answer must be in the affirmative, but it is said that the decision of the Privy Council in Venkatapathi Raju v. Venkatanarasimha Raju (1915) 2 L.W. 850 has made it clear that the observations in Peddayya v. Ramalingam I.L.R. (1888) Mad. 406 and Thangavelu Pillai v. Doraiswami Pillai : AIR1915Mad113 cannot'be regarded as embodying a correct statement of the law.
2. In Peddayya v. Ramalingam I.L.R. (1888) Mad. 406, a joint Hindu family governed by the Mitakshara law consisted of four brothers. Disputes arose with regard to the right of succession to the movable property left by their father. The plaintiff claimed that the whole of this property belonged to him under an arrangement made by the father. In another partition suit two of his brothers by their plaint had relinquished their shares in this property. They accepted the position that it was their father's wish that it should devolve upon the plaintiff. In the suit which gave rise to the appeal the plaintiff claimed three quarters of the property on the ground that two of his brothers had relinquished their interest in it in his favour. This claim was upheld by the trial Court, by the District Court on first appeal and by this Court on second appeal. The appeal to this Court was heard by Muttuswami Ayyar and Shephard, JJ., who after quoting the following texts,
(1) If any one of the brethren has a competence from his own occupation and desires not the property, he may be debarred from his share, giving him a trifle in lieu of maintenance, '(Manu, Chapter IX, page 207). (2) The separation of one who is able to support himself, and is not desirous of participation may be completed by giving him some trifle.'--(Yagnavalkya, II-117);
proceeded to say:According to the Smritis, then, the renunciation operates as alienation of one coparcener's interest in favour of the others. If he can alienate in favour of the other coparceners as a body, there is no reason why he should not do so in favour of one of them, who alone may need such help.. In this case Bogalingam and Gangayya, in fulfilment of their natural obligation to give effect to what they believed to be the wish of their father, gave up their interest in plaintiff's favour, and their act may be regarded as the severance of their interest coupled with a direction to make over their shares to the respondents when he should separate.
3. The last part of this statement indicates that the Court realised that it would be contrary to the idea of a Hindu joint family for one coparcener to have a greater share in the estate than the other coparceners while they remained joint.
4. In Thangavelu Pillai v. Doraiswami Pillai : AIR1915Mad113 another Division Bench of this Court held that a gift by a father of all his interest, in the family estate to his only son could be upheld as a relinquishment. In that case the only members of the joint family were the father and the son, and therefore the case presented no difficulty, but the Court accepted Peddayya v. Ramalingam I.L.R. (1888) Mad. 406 as direct authority for the proposition that one coparcener could not only relinquish his share in favour of the remaining coparceners, but he could do so in favour of one of them so as to increase his interest in the joint estate. In the course of the judgment it was observed that the giving of a trifle to the outgoing coparcener as contemplated by the texts could not be regarded as a condition precedent to the validity of the relinquishment and the learned Judges reiterated this opinion in Veerammal v. Kanna Ammo I.L.R. (1888) Mad. 406. There can be no doubt with regard to the correctness of the latter assertion.
5. In Ananthachari v. Krishnaswami I.L.R. (1938) Mad. 410, Varadachariar, J., referred to what had been decided in Peddayya v. Ramalingam I.L.R. (1888) Mad. 406 and Thangavelu Pillai v. Doraiswami Pillai (1914) 37 M.L.J. 872 without making any comment thereon.
6. We will now turn to the judgment of the Privy Council in Venkatapathi Raju v. Venkatanarasimha Raju . There a member of a joint Hindu family governed by the Mitakshara law relinquished his interest in the family estate and went to live in another village. From thence onwards he and his descendants cut themselves off from the family. It was held that the renunciation extinguished his interest in the family estate, but it did not affect the status of the remaining members who continued to be coparceners as before. The passage in the judgment of their Lordships which is relevant to the present case reads as follows:
What is the effect of this renunciation upon the status of the other members of the family? It is argued that, when one member of a joint family separates from the other members, his separation operates as a separation of all the members of the family from one another. In many cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other coparceners are or would be entitled to, and in this sense, subject to the question whether these others have agreed to remain united or to reunite, the separation of one is said to be a virtual separation of all; Balabax Ladhuram v. Rukmabai I.L.R. (1888) Mad. 406. It is a settled rule that when the members of a family hold the family estate in defined shares, they cannot be held to be joint in estate. But no definement of shares need take place, when the separating member does not receive any share in the estate but renounces his interest therein. His renunciation merely extinguishes his interest in the estate, but does not affect the status of the remaining members quoad the family property, and they continue to be coparceners as before. The only effect of renunciation is to reduce the number of the persons, to whom shares would be allotted, if, and when, a division of the estate takes place.
Here two principles are stated : (1) When the members of a Hindu family have denned shares in the family estate they can no longer be deemed to be joint in estate, and (2) the renunciation by one member of his interest in the family merely extinguishes that interest in favour of the continuing coparceners. It is true that their Lordships do not deal directly with the case where one coparcener purports to give his share to one of several other coparceners, but it follows from what they have said that he cannot do so, if the donee and the other coparceners are to remain joint in estate. The relinquishment by one coparcener of his interest in the family estate in favour of the members of the coparcenary does not amount to an alienation; it merely amounts to an extinction of his interest in favour of the others. The gift of his interest to one of several other coparceners would not mean the extinction of that interest. It would mean an alienation of it. It is well-settled law that there cannot be such a gift to a stranger and it is now clear that there cannot be a gift to a fellow coparcener if the family is to remain undivided.
7. There is another Privy Council judgment which supports the proposition that there cannot be a renunciation by one member of a joint family in favour of one of several other members of the family while the family remains joint. In Vasantrao v. Anandrao (1914) 37 M.L.J. 872, one Madhawrao executed a release of his interest in the family property in favour of his father. The Bombay High Court held that the release must be treated, as being, not for the benefit of the father alone, but of the coparcenary and the shares were to be determined as though Madhawrao had died. This case went to the Privy Council as Anandrao v. Vasantraa (1936) 71 M.L.J. 558: L.R. 63 IndAp 397. Their Lordships held that the governing principles had been rightly applied by the High Court and dismissed the appeal.
8. At page0 497 of the tenth edition of Mayne the learned editor expresses the opinion that the dicta in Peddayya v. Ramalingam I.L.R. (1888) Mad. 406 and Thangavelu Pillai v. Doraiswami Pillai I.L.R. (1938) Mad. 410 cannot be considered good law especially after the decision of the Privy Council in Venkatapathi Raju v. Venkatanarasimha Raju (1936) 71 M.L.J. 558 : 1936 L.R. 63 LA. 397. It follows from what we have said that we are in full agreement with this opinion and that additional support for it is to be found in the judgment of their Lordships in Anandrao v. Vasantrao (1907) 17 M.L.J. 184.
9. The answer which we give to the question referred is this : a member of a joint Hindu family governed by the Mitakshara law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate. In such circumstances he can relinquish his interest but the relinquishment operates for the benefit of all the other members.
10. The costs of this reference will be costs in the appeal.