1. The third defendant is the appellant. The suit property is stated to be a vacant site. The property originally belonged to the joint family of first and fourth defendants who are brothers. In their hands, it is admitted, it was a central property. The fourth defendant executed a deed styled (Matter in Tamil omitted-Ed.) on 27-9-1948 in favour of his brother, the first defendant, releasing his half share in the suit property. At the time when he executed that document, he was unmarried. Subsequently, the first defendant sold the property to the second defendant and from the second defendant the third defendant has purchased the same. The plaintiffs are the children of the fourth defendant and they have filed the suit for partition and separate possession of their share in the property on the ground that the release deed could not deprive them of their share in the property of the joint family. They also pleaded that the release deed was executed under coercion and undue influence and that it was also a sham and nominal document that never came into operation.
2.The trial Court held that the release deed Ex. B-3 was true and valid, that the suit is barred by res judicata by reason of an earlier judgment and decree in O. S. No. 704 of 1962 in which the title of the first defendant to the suit property was accepted, that the suit is not barred by limitation and that, though the suit is, in time, since their father had released his rights, the plaintiffs art not entitled to a claim for partition and separate possession and on these findings it dismissed the suit.
3. The plaintiffs preferred an appeal and the only point that was raised before the appellate Court Was as to the legal effect of the release deed in respect of the shares of the plaintiffs in the joint family' property. Purporting to follow the decision of the Bombay High Court in Mahalingayya v. Sangayya, AIR 1943 Born 397, the lower appellate court held that the release deed cannot operate as a relinquishment of the rights of the plaintiffs and that therefore the plaintiffs are entitled to partition and separate possession as prayed for and in that view decreed the suit.
4.The learned counsel for the appellant contended that the release deed having been executed by the fourth defendant at the time when he was not even married, it completely effaced whatever rights the fourth, defendant had in the property of the joint family and the plaintiffs who are the after-born sons cannot claim any right in the suit property.
5. It is now well settled that a renunciation by a coparcener of his entire undivided interest in favour of the other coparcener or coparceners as a body will be valid and such renunciation can be effected by an expression of an intention to that effect no formality is necessary. It is not material whether the renouncing coparcener describes the transaction as a gift or surrender or release. In such a case, the renunciation ensures for the benefit of all the coparceners in the case of such a renunciation, the other members of the coparcener would continue as joint as before and the effect of renunciation is to reduce the number of persons to whom the shares will be allotted, if and when a division of the estate takes place.
6. A Full Bench of this court in Subbanna v. Balasubba Reddi, : AIR1945Mad142 held that 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; and in such circumstances, he can relinquish his interest but the relinquishment operates f6i the benefit of all the other member.
7. But in all these cam, the right, if an after-born son of the renouncing coparcener had not been considered specifically, though it might be inferred that, since by renunciation he goes out of the family, any such son, born to him thereafter will not be entitled any share in the joint family properties of the remaining coparceners. A specific question came up for consideration in the decision in Anjaneyalu v. Ramavya, : AIR1965AP177 . It was held that a member separating himself from the family by relinquishing his interest in the family properties in favour of other members could no longer be regarded as a member of the coparcenery. The son begotten after his separation cannot claim the status of a coparcener with the remaining members of the undivided family. He can only be a coparcener with his father, but he cannot be added to the original coparcenary, since the necessary nexus, for this namely, the membership of his father in the original joint family, is absent. The moment the father got himself separated that relationship gets snapped and a son who is not conceived by then cannot be incorporated into the original joint family. The position with regard to the original family is that the share of the deceased coparcener will pass by survivorship to the remaining coparceners. If the relinquishing member had son or children of his own, or a posthumous son the position will be different. Under Hindu Law, such a. son in existence or a posthumous son has a right by birth and such right cannot be divested by his father.
8.The decision in Mahalingayya v. Sangayya, : AIR1943Bom397 relied on by the learned Subordinate Judge does not support the proposition that even the after-born sons will be entitled to a share in the joint family property. It was held there that where a joint brother renounces his in the joint property the person renouncing severs his connection with the family but such renunciation, apart from extinguishing the interest of the renouncing member, leaves the coparcenary itself intact. Though the head note is not clear, it is seen from the facts therein that the widow who adopted the plaintiff in that case, was not the widow of the relinquishing coparcener. She was a member of a joint family as a widow of the deceased coparcener with a right of adoption. Since the release would be in favour of the entire body of the joint family, it was held that the plaintiff was entitled to a share, though the release purported to be in favour of the only remaining brother of the deceased. Further in Bombay a female member is entitled to a share in the joint family properties on partition. That decision cannot-be held to be an authority for the position now contended by the respondent. Therefore, an after-born son of a renouncing coparcener would not be entitled to a share in the joint family property.
9. The decision in Krishna Chander v. Board of Revenue, which was cited at the Bar, depended on the facts in that case. On an interpretation of the document of renunciation, it was held that though the coparcener renounced his share in the properties, lie did not go out of the family and he continued to be a member of The joint family and in those circumstances it was held that the renunciation did not deprive his sons including the after-born sons of a share in the joint family property. Therefore, as a proposition of law it cannot be held that the after-born, sons of a renouncing coparcener will be entitled to any share in the joint family properties; but whether the renunciation was only a renunciation of the interest in the joint family property or whether the renouncing member has gone out of the family would depend upon the terms and conditions of the deed of release, if there is one, or the intention of the parties, is there is any evidence in that regard.
10. The learned counsel for the respondents 1 to 3 (plaintiffs) strenuously contended that under Ex. B-3, the father of the plaintiffs did not completely relinquish his rights in the joint family, but he relinquished his interest only in the specified properties referred to in that document and that he shall be held to have continued to be a member of the joint family so that the plaintiffs could claim a right for partition and a share in the joint family property. After reciting that under the document the fourth defendant is releasing his share in the properties, the document further stated that thereafter except the blood relationship between the parties there will be no other relationship and that the fourth defendant will have no claim or -any other right in the properties. I am of opinion that the terms of the document show that there was a complete relinquishment by the fourth defendant and it is not a relinquishment of his share alone in any particular property. The wording of the document is such that he has gone out of the family. In fact, the document refers to joint family debts and directs that the entirety of the joint family debts shall be discharged by the first defendant. In the circumstances, therefore. I am of the view that the plaintiffs will have no right for partition and separate possession on the basis that they are members of a joint family. The second appeal is accordingly allowed. The judgment and decree, of the lower appellate court are set aside and those of the trial court are restored. But there will be no order as to costs.
11. Appeal allowed.