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Ponnuchami Servai Vs. Balasubramanian and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberS.A. No. 281 of 1977
Judge
Reported inAIR1982Mad281
ActsTransfer of Property Act, 1892 - Sections 53-A and 122; Code of Civil Procedure (CPC), 1908 - Sections 100 and 101; Hindu Law
AppellantPonnuchami Servai
RespondentBalasubramanian and ors.
Appellant AdvocateK.R. Thiagarajan and ;S. Shahul Hameed, Advs.
Respondent AdvocateT.R. Srinivasan and ;N. Srivatsamani, Advs.
Cases ReferredGurulingappa v. Nandappa
Excerpt:
.....the person as well as the property of a minor. the law is now well-settled by a full bench of this court in chella subbanna v. doraisami pillai, air1915mad113 a bench of this court held that a gift by a father of all his interest in the family property in favour of his only son being supported by natural love and affection can be upheld as a relinquishment. doraiswami pillai air1915mad113 and it is still good law......: air1915mad113 a bench of this court held that a gift by a father of all his interest in the family property in favour of his only son being supported by natural love and affection can be upheld as a relinquishment. the authority of this decision is not affected by the full bench in chella subbarma v. chella balasubbareddi, ilr (1945) mad 610: air 1945 mad 142. in fact referring to this case, leach c. j. delivering the judgment of the full benchstated at p. 143 of air that the only members of the joint family in thangevelu pillails case : air1915mad113 were the father and the son and that therefore, the case presented no difficulty. the learned judges deciding thangavelu pillai v. doraiswami pillai, : air1915mad113 , referred to an earlier decision in peddayya v. ramalingam, ilr.....
Judgment:

1. The third defendant in 0. S. No. 896 of 1974 in the court of the Principal District Munsif of Pudukottai is the appellant in the second appeal. The plaintiff, a minor represented by his mother and next friend filed a suit for declaration and injunction or in the alternative for possession, The plaintiff is the son of the first defendant, who was said to have been leading a wasteful life on 24-5-1973 the first defendant executed a release deed, marked as Ex. A. 2, in favour of the other members of the joint family of which his father was the Kartha and obtained the suit properties, towards his share in the family estate on the following day, i.e,, on 25-5-1973, he executed a settlement deed in favour of the plaintiff with regard to the suit properties. Briefly stated, under the terms of the settlements, the income from the suit properties was to be enjoyed by the plaintiff, his parents and also by other heir of his father. The properties were not to be alienated by the first defendant or his wife, during their lifetime and after the lifetime of the first defendant, and on his attaining majority, the plaintiff would get an absolute interest over the properties, However, contrary to the deed, namely, Ex. A, 1 on 7-5-1974, the first defendant purported to revoke Ex. A. 1 and on 15-5-1974, executed a registered sale deed in favour of the third defendant appellant of the suit propertiles for a sum of Rs. 9500. The said document has been marked as Ex. B. 3. According to the plaintiff, the sale was illegal and void and not binding on him. The second defendant claimed to be a lessee from the first defendant of the properties under a document, dated 3-8-1973, and marked as Ex. B. 2. As defendants 2 and 3 were alleged to be attempting to trespass into the properties, the present suit was filed for declaration and

injunction or in the alternative for possession.

2. The first defendant in his written statement contended that there were demands from the creditors and that a deed of gift was executed with a view to defraud the creditors. The settlement was said to be void. Illegal and unenforceable. The validity of the settlement was also attacked on the ground that it had not been accepted. The first defendant alleged that the plaintiff's mother was wasting the properties without any benefit to the family and that he was therefore, constrained to revoke the settlement deed The sale was stated to have been effected in favour of the third defendant for discharging his debts. The first defendant, therefore resisted the grant of the prayer for declaration and injunction or possession. The second defendant claimed to be a lessee having paid the rental in advance and resisted the prayer for possession. The third defendant took up the stand that he was a bona fide purchaser of the suit properties for valuable consideration without any notice of any defect in title, that he believed the representation made by the first defendant and purchased the suit properties for Rs. 9500, which was utilised by the first defendant for discharging his debts and that the suit was, therefore, not maintainable.

3. The learned District Munsif held that the settlement deed was void, illegal and unenforceable, that the revocation deed was valid since there was no acceptance of the gift on behalf of the minor plaintiff and that the sale in favour of the third defendant was valid. He found against the second defendant's claim. The result was he dismissed the suit and the plaintiff filed an appeal, which was disposed of by the learned Subordinate Judge of Pudukottai. The appellate court held that the settlement deed was valid, that it was accepted, that the revocation was invalid and that the third defedant was not entitled to any benefit under the sale deed, especially after the lifetime of the first dependency a decree in favour of the plaintiff for the reliefs claimed was passed. The present appeal has been filed be the third defendant. fendant, who died during the pendency of the appeal. The result was a decree in favour of the plainiff for the reliefs claimed was passed. The present appeal had been filed by the third defendant.

4. The learned counsel for the appellant contended that Ex. A. 1 was invalid for two reasons, namely (1) an undivided interest in a coparcenary property cannot be subject to a gift, and (2) even assuming it could he so gifted, in the present case, the gift had not been accepted by any one on behalf of the done. His further contention was that Ex. A. 1 was in fact not a settlement deed, but only a Will that could be revoked at any time that its revocation under Ex. A. 3 was valid and legal and that the sale deed Ex. B 3 was executed by a person, who had title to the lands, for valuable consideration and was binding on the plaintiff.

5. The first question that arises for consideration is whether the document, Ex. A. 1 was a Will or a settlement or a gift. If it was a Will, it could be revoked and therefore; there would be no impediment to the first defendant revoking the Will and deallng with his share of the properties of the joint family.

6. The question whether a particular document is a testamentary or a no testamentary instrume has been gone into in several cases. It is enough to mention two of the latest Bench decisions, namely, (1) Cornmr of Gift Tax Madras v. C. Thiruvenkata Mudaliar, ILR (1977) Mad 53 : 1977 Tax LR 1187 and (2) Ramasami Naidu v. M. S. Velappan : (1979)2MLJ88 . Though the second decision does not refer to the first, to which I was a party, still the principles enunciated in both the decisions are not materially different. Normally speaking, every document has to be construed with reference to the language it contained and therefore a decision construing one document cannot be an authority for construing another document except to the extent that the said decision may lay down certain principles or guidelines. The principles enunciated in this class of cases is that a testamentary bequest is revocable as the interest contemplated 4,herein is intended to pass only after the lifetime of the testator, while a settlement or a gift which comes into operation immediately is irrevocable. Even if a Will contains a clause that it is not revocable the law makes it revocable whereas in a gift or settlement if there is a clause that the settler or donor can revoke it, still it will remain irrevocable under the law, because the done obtains his interest in the property on the execution of the document itself. Consequently, whether a particular document contains a provision as to whether it is revocable or irrevocable is not decisive of the question whether it is a Will or a gift. Similarly, the caption or the nomenclature given by the parties to the transaction is again not decisive of the question as to whether it is a Will or a gift. If a particular document provides for immediate transfer of the interest from the original owner to somebody else, notwithstanding the fact that the parties called it a Will, it would operate only as a gift. Similarly if a document contains provisions which showed that the disposition would come into existence only on the death of the executant of the document even if the parties call it a settlement, it would be only a Will. The fact of registration alone would not render the document a settlement if it, in other respects, is a Will. Thus, the real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift is to examine the nature of the disposition under the document to see whether it had transferred any interest in praesenti in favour of the settlee or whether it intended transfer of interest in favour of the beneficiary only on the death of the executant.

7. It is in the light of these principles that I have to examine Ex. B. 1. The document is in Tamil and has been written by a Karnam. The executant is the first defendant and it purports to be in favour of the plaintiff, represented by both the father as well as the mother. The opening portion of the document shows that both the father and the mother executed the settlement as guardians, but the settlement deed does not contain the signature of the mother. It refers to the plaintiff, being the only son and there being no other male heir and also to the love and affection the first defendant bore to the plaintiff. It contemplates the enjoyment of the properties by the first defendant as the guardian and the income from the properties was to be utilised by the first defendant and the plaintiff and also by his wife and his other heirs. The properties were not alienable either be the first defendant or his wife. After his lifetime, and on the plaintiff attaining majority, the properties were to be taken absolutely by the plaintiff. The document contemplates also the income being utilised not only for the maintenance of the first defendant's family, but also for the marriage of the plaintiff's only sister. The document declares that in the suit properties no female heir of the first defendant or his wife had any interest. This is a significant statement. The document wag executed after the Hindu Succession Act 1956 came into force. Under that Act, female children have a share on the death of the father. If it was only a Will there was no need to make this statement as a will could alter the statutory course of succession. The declaration in this form suggests that the female heirs and the wife did not have any interest in the property even during his lifetime. If it was not intended to be operative in praesenti, there was no scope or need for making this statement. It is also stated that the settlement is irrevocable. In the context of this document, this statement of its irrevocability would only mean that the first defendant was content to reserve only a right to the income so as to maintain himself and his family during his lifetime, and gave up all his other rights forthwith. The giving up of his right to alienate the properties is also consistent only with its being a transaction, vesting the property in praesena on the plaintiff.

8. It is necessary to remember that this document came into existence immediately after the first defendant executed a release deed in favour of the father Ramaswami Aiyar and his brother Balasubramaniam. The first defendant did not himself go into the witness box and there are allegations about his wayward life, which remain uncontradicted by the only person who could speak on it. The settlement was executed on the very next day after he obtained the properties from his father. The sequence of events indicates its being a part of a scheme to see that the first defendant did not deal with the property to the detriment of the minor. The fact that he executed the revocation deed and a sale deed in about a year after the settlement shows how the first defendant would behave if he were left free to deal with the property. There is no evidence to prove that the first defendant was really indebted at the time when Ex. B-1 came into existence and that there was any actual altempt to defeat that claims of the creditors. His allegations in the revocation deed that his wife was squandering the income have been made only to suit the execution of the document. When the daughter was a minor, there could be no question of any preparation for her marriage. Yet the failure to make such preparation is trotted out as an excuse for the revocation deed which was to be followed within a week or so by the sale in which there is no provision for investing part of the consideration for the marriage. It is also in evidence that he was living with a concubine in the same village. There could be no cause for wonder in these circumstances to find that the first defendant found an earliest opportunity to execute the sale deed. Thus the circumstances under which Ex. B. 1 came into existence go 'to show that it was executed with a view to see that the first defendant did not squander away the properties obtained by him as a result of the release from the joint family.

9. The contention of the learned counsel for the appellant that there was no acceptance of the gift has been negatived in the court below. Whether there was acceptance or not essentially a question of fact and the finding of the court below that there was acceptance is binding on me.

10. Even assuming that I could go into the question of acceptance; I see no reason to differ from the conclusion of the court below. The non-acceptance would strike at the root of the validity of the deed. If there was no acceptance, there was no need for the first defendant to execute a deed of revocation on 7-5-1974. Further the circumstances in which the first defendant was placed go to show that the whole idea was to see that the properties were saved for the family. Such a purpose cannot be effectuated by execution of a sham or nominal document. The plaintiff was a minor and the acceptance of the settlement can only be be his guardian. After the Hindu Minority and Guardianship Act, 1956, there can be no doubt that the father alone could be the guardian of the person as well as the property of a minor. It is only after him that the mother can be the guardian. Unfortunately, there is a general notion that in a document executed by the father in favour of a minor issue, somebody else has to be appointed as a guardian and the mother is referred to as the guardian in such cases. But this is a lay and erroneous notion. The acceptance, on the facts here can only be by the father as the guardian of the minor and when be himself executed a document, the ao1cePtance can be presumed.

11. In Alapati Venkataramayya v. Alapati Nagamma : AIR1932Mad272 , there was a gift of a house by the to her son and his wife. The son and the wife were minors. The donees and the parents of the husband of the donor continued to live in the house. It was held that the acceptance of the gift should be inferred unless the contrary was proved, and that the mere circumstance that the mother retained custody of the deed and kept the house in her name in the Municipal records and paid taxes did not show that she did not intend the gift to be acted upon. In the present case also, the father was the only person who could have accepted the gift, and the parties were continuing to stay together even after the gift. In these circumstances, the finding of the court below that there was acceptance is unexceptionable.

12. It is now necessary to go into the other aspect, namely, whether there could be a gift or a settlement of an undivided interest in a coparcenary property. The learned counsel for the appellant drew my attention to the following passage in Mulla's Hindu Law. 14th Edn. occurring in para 258 at P. 320-

'According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transactions being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.'

13. It is unnecessary for our present purpose to go into the proposition as 10 whether a coparcener can dispose of his undivided interest in the coparcenary property by gift to a stranger. The above passage itself recognises the coparcener gifting his interest with the consent of the other coparceners. Such a gift can be in favour of any one. In the present case, there are only two coparceners, namely, the first defendant and the plaintiff and the first defendant was the person to act on behalf of the plaintiff also. As the transaction wa5 beneficial to the minor, there is no reason why the first defendant should withhold his consent to the gift of his interest in favour of the minor. Thus, this is a case where the gift of the undivided interest of the first defendant in the suit properties could have been validly gifted in favour of the plaintiff.

14. There is also another principle applicable- to this case which has been set out in Mayne's Hindu Law, 11th Edn. para 383 at P. 485 as follows--

'A gift by a coparcener of his entire undivided interest in favour of the other coparcener or coparceners will be valid whether it is regarded as one made with the consent of the other or others as a renunciation of his interest in favour of all. Such a renunciation can be effected by an expression of an intention to that effect, and no formality is necessary. '

There is one aspect to be borne in mind namely that a coparcener cannot pick and choose one of several coparceners so as to make a gift of his undivided interest. The law is now well-settled by a Full Bench of this court in Chella Subbanna v. Chella Baiasubbareddi, ILR (1945) Mad 610 : AIR 1945 Mad 142 In that case, it was ruled 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. In such circurnztances, he can relinquish his interest, but the relinquishment operates for the benefit of all the other members. The earlier decisions on this point have been adverted to in the Full Bench decision. Such a problem does not arise in the present case because the plaintiff is the only other coparcener and, therefore, the gift of the undivided interest of the first defendant can validly be made in favour of the plaintiff.

15. Learned counsel next contended that in the present case a gift cannot be taken to be in the nature of a renunciation in favour of the other coparcener as in this case a life interest has been reserved in favour of the first defendant, his wife and his other heirs. In Thangavelu Pillai v. Doraisami Pillai, : AIR1915Mad113 a Bench of this court held that a gift by a father of all his interest in the family property in favour of his only son being supported by natural love and affection can be upheld as a relinquishment. The authority of this decision is not affected by the Full Bench in Chella Subbarma v. Chella Balasubbareddi, ILR (1945) Mad 610: AIR 1945 Mad 142. In fact referring to this case, Leach C. J. delivering the judgment of the Full Benchstated at p. 143 of AIR that the only members of the joint family in Thangevelu Pillails case : AIR1915Mad113 were the father and the son and that therefore, the case presented no difficulty. The learned judges deciding Thangavelu Pillai v. Doraiswami Pillai, : AIR1915Mad113 , referred to an earlier decision in Peddayya v. Ramalingam, ILR (1888) Mad 406 which was found to be wrongly decided by the Full Bench. Therefore, no doubt is thrown on the actual decision in Thangavelu Pillai v. Doraiswami Pillai : AIR1915Mad113 and it is still good law.

16. I have already referred to the learned counsel contending that this is a case in which it cannot be postulated that there was a renunciation as the first defendant reserved for himself certain rights in the properties settled. In Mahalingayya v. Sangayya, : AIR1943Bom397 the Bombay High Court considered a settlement or a gift of an undivided interest of a brother. In that case, one Chenbasayya renounced his interest in the family properties in' favour of his brother Mahalingayya. It was found that Chenbasayya believed that he would be allowed to remain on part of the property which he undertook to relinquish in favour of his brother, with a condition as to the latter's making provision for his maintenance. At P. 402, the learned Judge took the view that the gift was a susceptible of the construction that Chenbasayya intended to make an absolute gift in favour of Mahalingayya. The property was therefore, found to be still one, which retained the joint family character and did not become the absolute property of Mahalingayya. At p. 402, the learned Judges observed-

'The mere renunciation without more could, in the view we take, not be regarded as altering the nature of the property. In fact, in our view, the expression of the belief of Chenbasayya that he would be maintained and clothed and that the donee would continue to maintain him till the last is suggestive of an intention to retain some interest in the family property and to continue as a member of the coparcenary. In that view of the matter, it is difficult to regard the property, the subject matter of the renunciation as the separate property of Mahalingayya'.

What is to be noticed is that notwithstanding the retention of some interest, it was treated to be a renunciation. In that case another brother's branch represented by an adopted son claimed a share in the properties in respect of which there was a renunciation by Chenbasayya. It was held that as the said property continued as joint family property and in favour of vidual the other branch would entitle to a share therein.

17. The relationship of the alienating or renouncing coparcener with the joint family has been considered by Bhashyam Ayyangar J. in Aiyyagiri Venkataramayya v. Aiyyagiri Ramayya ILR (1902) Mad 690 which followed an earlier Bombay decision in Gurulingappa v. Nandappa, ILR (1897) 27 Bom 797. In the Bombay case, which was followed by Bhashyam Ayyangar J. it was held that the sale of a coparcener's interest in joint family property cannot affect the position of such coparcener in the joint family or alter the rights of the several coparceners, inter se, and that the alienating coparcener, s rights to succeed to his brother's shares by survivorship were not affected by the sale of his interest -in the joint family property so long as the purchaser did not proceed to work out his rights by partition. Referring to this pronouncement in Ramasubbaraya v, Appalanarasimharaju, AIR 1940 Mad 217. Venkataramana Rao J. sitting with Abdul Rahman J. observed at P. 220-

'This is a definite pronouncement that an allenating coparcener continues undivided even in respect of the share of the other members in the property alienated so that on the death of any member he will succeed to his share by survivorship along with other members.'

Thus renunciation does not cut him off from the family.

18. On the facts here it has to be held that the first defendant voluntarily executed a settlement of his undivided interest in favour of the plaintiff, the only other coparcener, with the result that the transaction was a renunciation Of his interest in the joint family properties and that. There after, he had no Power to execute neither the deed of revocatim nor the sale deed in favour of the appellant. On a full consideration of the facts available in this case, I consider that this is a case in which there was only a settlement in favour of the plamtiff by the first defendant that the settlement has to be taken as renunciation of the interest of the first defendant in the joint family properties and that the plaintiff is entitled to the declaration and other reliefs asked f or. There is no substance in the contention that the third defendant is a bona fide purchaser for value without notice of the interest to the plaintiff in the properties. Ex. A. 1 is a registered document, which confers an interest in praesenti on the plaintiff and in spite of such a document the third defendant considered it worthwhile to purchase the Property then there would be no equity in his favour. He has to face the consequences of his action. There is also no proof of any debt having been incurred by the first defendant to the extent of Rs. 9500 or any substantial part thereof in discharge of which the property had to be sold. The appeal is accordingly dismissed. There will be no order as to costs.

19. Appeal dismissed.


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