1. Before finally disposing of the case, we think that there should be a distinct finding on the question whether Exhibit A refers to the whole of the family properties or only to portions of them. The question is raised in the written statement and is covered by the latter portion of issue 1. Before the District Judge, a ground was taken that the Munsif should have recorded a finding on that point.
2. Therefore, a finding should be now arrived at on that question. Parties shall be at liberty to: produce fresh documents, if any and not oral evidence.
3. Finding will be submitted in two months and ten days are allowed for filing objections.
4. We do not think it necessary to call for a finding on the question whether Exhibit A was not given effect to. The Subordinate Judge held it was acted upon and no serious attempt seems to have been made to impeach that finding.
5. In compliance with the order contained in the above judgment the District Judge of South Kanara submitted a finding that Exhibit A referred to the whole of the family properties with the exception of the properties in Travancore.
6. This second appeal and the memorandum of objections filed by the 1st respondent coming on for final hearing on the 23rd January 1918 after the return of the finding of the lower Appellate Court upon the issues referred by this Court for trial, and the case having stood over for consideration till this day, the Court delivered the following
7. The property in suit along with some other property in Travanoore belonged to three branches of a Hindu family in South Kanara. Admittedly the three branches divided their South Kanara properties long ago. In this appeal we are concerned only with one of these branches, the head of which was one Narayana Kunkullaya. He had fire sons, of whom Kesava died issueless. Padmanabha the third son transferred his properties under Exhibit A to Vishnu the last son. Vasudeva the fourth son similarly transferred his properties' to Vishnu, Exhibit 13. All this time there was no actual partition among the brothers. The first son Venkatesa left two sons Narayana and Bamakrishna. The present plaintiff is the widow of this Narayana. Her case is that when Vishnu died in 1909 her husband Narayana was joint in estate with him, that by survivorship the properties in suit devolved on her husband, and that she as his widow is entitled to them. This Narayana died in 1910. Shortly before his death Padmanabha, who transferred his properties in' favour of Vishnu under Exhibit A, sold all the properties of the branch to the 1st defendant, as if he were the sole owner thereof. The 1st defendant is a stranger and not a member of the family. The transfer by Padmanabha and Vasudeva to Vishnu related only to their shares in the South Kanara properties.
8. The Subordinate Judge before whom the original suit was filed came to the conclusion that Padmanabha by conveying his properties under Exhibit A ceased to be a member of the joint family and that this alienation in favour of the 1st defendant was ineffective so far as the suit properties are 'concerned. The District Judge on appeal held that Padmanabha did not cease to belong to the joint family and modified the decree of the Subordinate Judge.
9. When the second appeal first came on for hearing, we remitted an issue for finding as to whether the transfer by Padmanabha and Vasudeva comprised the Travanoore properties as well. The finding was that Exhibits A and 13 related only to the South Kanara properties. We accepted that finding.
10. Now the question arises for consideration whether Padmanabha had any right to deal with the property in favour of the 1st defendant after he had transferred his rights to Vishnu.
11. Mr. Sitarama Rao for the appellant con-tended that the effect of Exhibit A was to separate Padmanabha from the joint family and to leave the other members undivided. As wag pointed out by Mr. Justice Bashyam Aiyangar in Sudarsanam Maistri v. Narasimhulu Maistri 11 M.L.J. 353, notwithstanding the seperation of one member from the joint family the others would continue to remain undivided. There can be a smaller co parcenary within a larger co-parcenary just as there can be a Tavazi in a Tarwad. There are dicta in the decisions of this Court and of the Privy Council which indicate that ordinarily if one member gets himself separated from the rest, the presumption is that all have become divided In Balabux v. Bukhmabai 30 I.A. 130 the Judicial Committee stated: 'There is no presumption when one co-parcener separates from the others that the latter remain united. In many cases it may be necessary in order to ascertain the share of the outgoing member to fix the shares which the other co-parceners are or-would be entitled to, and in this sense the separation of one is said to be the virtual separation of all.' That is also the view taken by the Madras High Court. But, in a later case, Kedar Nath v. Ratan Singh 7 Ind. Cas. 648 : (1910) M.W.N. 311, Lord Macnaghten in delivering the judgment of the Judicial Committee quoted the opinion of the Judicial Commissioner of Oudh and concluded with the observation: 'Their Lordships agree in that opinion.' The Judicial Commissioner, held that when one of the members sued for partition and obtained a decree for his ' share, the other two remained joint with rights of survivorship. It is open to argument that this conflict of view should not affect a transaction which, in the language of the Judicial Committee, may be construed as a unilateral declaration of an intention by one member to separate himself from the others. In such a case there can be no presumption that his act disrupted the co-parcenary of all the members. Therefore, even if Exhibit A is to be regarded as notifying Padmanabha's desire to cease to belong to the joint family, it would not follow that there was a general partition. But, in our opinion, Exhibit A must be treated as a deed of relinquishment. No doubt the document is styled a sale-deed; but Padmanabha was living away in a distant place and was an earning member. He gave a power-of-attorney to a third party to transfer bis share in the family property. Another of the brothers subsequently transferred his share in the family property. la both cases the conveyance was to a member of the family. In our opinion, the effect of these documents was to relinquish the shares of the transferors in favour of their undivided brother for a consideration, and not to effect a partition among all the members of the joint family.
12. Under the Hindu Law it is open to an earning member of the family to surrender his rights to the remaining members of the family. In Mitakshara, Chapter 1, Section 11 (12), it is stated: 'To one who is himself able to earn wealth and who is not desirous of sharing his father's goods anything whatsoever, though not valuable, may be given and the separation or division may be 'thus completed by the father so that the children or ether heirs of that son may have no future claim to inheritance.' The text of Yajnawalkya which is commented on as above by Vignaneswara is in these terms: 'if one have means and do not desire to share, be shall be separated, something trifling being given to him.' (Yajnawalkya, 11, 117.) There is no mention of the right of the father in this text. Aparaka in commenting on this text of Yajnawalkya says: 'The son, who because of ability to acquire wealth does not desire paternal property, should be separated after giving him some worthless small property, otherwise there may be dispute with him or with his children.' We think that Vignaneswara did not intend to restrict the right of making an unequal distribution only to, the father. The principle deducible from the Smriti writers is that by renouncing his share for a small consideration the seceding member is alone separated from the family and the others continue to be members of the joint Hindu family with rights of survivorship, etc If there is no consideration at all received for the relinqnishment, it id doubtful whether by making a gift of his share a member of the family can renounce his rights in the general property; because it is a well-established rule of Hindu Law that an undivided member cannot make a gift of his share' in the joint family property. There is no text of Hindu Law or any binding authority which says that a gift by one member to another of his share is permissible: and as at present advised, we see no reason for introducing such an exception to a well-understoou principle of Hindu Law.
13. Nor are we prepared to say that the text of Yajnawalkya already referred to contains only a moral injunction in regard to the giving of some consideration and that a voluntary gift is within the spirit though not within the letter of Yajnawalkya's text. As Sarkar Shastri points out in his Hindu Law, if the transaction by a member of the family is not within the meaning of the text of Yajnawalkya, it is doubtful whether he will be estopped from claiming his share in the joint family property.
14. In the present case in the view we take of Exhibit A this question need not be pursued any further. It is the substance of the transaction and not the language used that has to be looked into and, in our opinion, Exhibit A, evidences a renunciation as contemplated by Hindu lawyers.
15. As regards, the decided cases, Sivagnana Tevar, Ramasami Chetti and Eosalarama v. Periasami 5 I.A. 61 : 1 Ind. Dec. 208 supports the view we have taken. In that case the Judicial Committee held that a surrender by one of the brothers effected a severance of interest quad that property between the surrender or and his brother. In Peddayya v. Rarnalivgam 4 Ind. Dec. 283 Justice Muthuawami Aiyar and Justice Sheppard held that relinquishment by one of the brothers separated him from the rest of the joint family. Sudarsanam Maistri v. Natsimhulu Maistri 11 M.L.J. 353, to which. we already referred, follows these two decisions. In Balkrishna Ttimbah Tendulkar v. Savitribai 2 Ind. Dec.36 the same view was taken. Vide also Mutuusami Mudaliar Nallakulantha Mudaliar 6 Ind. Dec. 940, The theory that a renunciation by one member keeps the family intact, while ex-cluding from it the transferor, derives support from another class of oases to which Mr. Sitarama Rao drew our attention. Generally speaking:, an alienation of the share of a co-parcener in a specific property is invalid: but if the other members consent to such an alienation, it would be valid. Vide Ghinna Sanyasi v. Suriya 6 Ind. Jur. 410 : 2 Ind. Dec.137 and Balgo-bind Das v. Narain Lal 20 I.A. 116. The essence of the transaction is that it is an arrangement which does not disturb the co-parcenary. The same may be said of a relinquishment by a member of the family. The object is not to disturb the joint family, but to leave it unaffected while the renouncing member wants to be excluded from it. Therefore, if as we interpret Exhibits A and XIII, their object was to secure individual freedom to Padmanabha from the possible claims of his co-parceners on his earnings while not intending to disturb them; it is a natural result of such a transaction that he alone became a divided member* while the others continued to remain joint and undivided.
16. Mr. Adiga for the respondents contended that Exhibit A was in fact and in effect an alienation of Padmanabha's share and that it did not matter that that alienation was in favour of the co parcener. It is well settled that if a member of a joint Hindu family alienates his share in the property to a stranger, such a transaction does not put an end to the co parcenary. There is a course of decisions upon this subject in Madras and elsewhere, and we are not prepared to accept the contention that an alienation is really a unilateral declaration of intention to effect a partition in the family. It may be that logically and by parity of reasoning a member of a joint Hindu family conveying his share to a stranger should be regarded as expressing a clear intention to got his share partitioned from the shares of the others. But we agree with the learned Vakil for the appellant that until the Judicial Committee expressly make such a pronouncement, we would not be justified in deducing such a rule in regard to alienation from what has been decided concerning declarations of intentions contained in plaints and documents addressed to the members of the family. It is true that in Ariyaputri v. Alamelu 4 Ind. Dec. 213 the learned Judges suggest that a renunciation by a member is equivalent to an alienation in favour of the other members. In our opinion this obiter dictum should not be separated from the con-text and applied to circumstances like the present. Therefore, we must hold that the transaction evidenced by Exhibit A is not an alienation but a relinquishment of rights in favour of the other members of the family.
17. The two Courts below have held that Padmanabha and Vasudeva intended that the share relinquished should vest not only in Vishnu but in all the other members of the co parcenary. This is a further support to our conclusion that the two members wanted that the remaining members of the family should remain undivided.
18. Mr. Adiga next argued that there is no justification for not holding that the renunciation by Padmanabha did not put an end to the co-parcenary as a whole. We have given our reasons fully in the previous paragraphs for holding that Padmanabha's act only severed him from the co parcenary and left the others in the same state as they were in before.
19. In the result we reverse the decree of the District Judge and restore that of the District Munsif. In the circumstances of the case, each party will bear his own costs throughout as regards the subject-matter of the appeal. The memorandum of objections is dismissed with costs.