V. Sethuraman, J.
1. This appeal has been filed of the plaintiff in O.S. No.272 of 1970 on the file of the Subordinate Judge of Cuddalore. The properties under consideration in this case originally belonged to a Hindu undivided family consisting of one Pakkiriswami Naidu, his son Muthu Naidu and the plaintiff the grandson of Muthu Naidu as coparceners. On 19th September, 1955, when the plaintiff was aged about three years, a document was executed by Pakkiriswami and Muthu Naidu settling the suit properties on the plaintiff. His mother was to be the guardian and to be in possession of the properties, and on the plaintiff attaining majority, the properties were to be handed over to him. The plaintiff has attained majority, and he filed the present suit for setting aside certain sale deeds in favour of defendants 1 to 10, for possession and for future mesne profits. The sale deeds have been marked as Exhibits B-3, B-7, B-9, B-10 and B-11. The said sale deeds have been executed either by the plaintiff's father, who has been impleaded as the 11th defendant or by his mother. The case of the plaintiff was that neither the 11th defendant nor his mother had any right to execute sale deeds and that the said sale deeds were not binding on him. The defendants filed their respective written statements. The first defendant is the alienee of plaint item No. 1 conveyed under Exhibit B-10 by the 11th defendant purporting to act for himself and on behalf of his minor son. Defendants 2 and 3 were impleaded in respect to a claim of two items described as Items Nos. 2 and 3 in the plaint. The said defendants have been subsequently given up and, therefore, it is unnecessary to say anything more about them. The fourth defendant is the alienee in respect of items 7 to 12 of the plaint-purported to have been conveyed under Exhibit B-9 by the 11th defendant. The other defendants, except the 11th defendant, similarly are the vendees under one or the other of the documents.
2. The contention of the defendants was that the properties continued to be joint family properties notwithstanding the execution of the settlement deed, that the settlement deed was not valid and that the alienations were, therefore, binding on the plaintiff. The 11th defendant, in his written statement, pointed out that the settlement deed was a sham and nominal transaction, that the properties continued to belong to the joint family and that the alienations have been made for purposes binding on the family.
3. Several issues were framed in the suit, the main issues being (1) whether the settlement deed dated 19th September, 1955, is true and valid? and (2) whether the alienations in favour of the respective defendants were valid, legal and binding on the plaintiff. The trial Court passed a preliminary decree for partition and separate possession of the plaintiff's one-fourth share in the suit properties-excepting items 2 and 3 holding that the alienations in favour of defendants 6 to 10 were not binding. The said alienations were set aside. In the final decree proceedings, the properties purchased by defendants 1, 9 and 10 were to be allotted to the share of the plaintiff as far as possible and the suit was dismissed as against defendants 2 and 3. It is this decree which is now challenged in the present appeal.
4. It may be mentioned here that though all the defendants have been served, only defendants 5, 9 and 10 are the contesting respondents in this Court. The 11th defendant remained ex parte even during the trial after filing the written statement. The other respondents have not appeared either in person or by counsel.
5. The first question that arises for consideration is whether the settlement deed is a valid transaction. This deed has been marked as Exhibit A-2, and, as mentioned already, it was executed on 19th September, 1955. It values the properties at a sum of Rs. 6,000. It recites that the 11th defendant and his father, out of love and affection towards the plaintiff, settled the properties on him for his maintenance. The mother of the plaintiff was constituted as the guardian for the purpose of managing the properties and she, had no power to alienate the properties during the minority of the plaintiff. The produce from the lands was to be utilised for the maintenance and also for payment of kist etc. There is reference to two debts due to one Dandapani Naidu and Rajamanicka Naidu and these debts were to be discharged by the plaintiff. If any subsequent male issue were born, the properties were to be shared equally by the plaintiff with the said children. It appears that these properties, which were settled under the document Exhibit A-2, were substantially the whole of the properties belonging to the joint family.
6. There was some difference of opinion as to whether a member of a joint Hindu family governed by the Mithakshara Law could transfer his interest in the family-estate in favour of one of the other coparceners. In Peddayya v. Ramalingam I.LR. (1888) Mad. 406 and Thangavelu Pillai v. Doraisami Pillai : AIR1915Mad113 , it was held that a coparcener could convey his interest in favour of one of the other coparceners just as he could in favour of a stranger. However, the validity of this proposition came under a cloud as a result of a later decision of the Privy Council in Venkatapathi Raju v. Venkatanarasimha Raju and, therefore, this question came to be considered by a Full Bench in Subbanna v. Balasubba Reddi : AIR1945Mad142 . The Full Bench held that a member of the joint Hindu family governed by Mithakshara law could not give his interest in the family estate to one of the other coparceners if they remained joint in estate and in such circumstances he could relinquish his interest, but the relinquishment operated for the benefit of all the other members.
7. The law on this point has been set out by Mayne's Hindu Law and Usage, Eleventh Edition, at page 485 as follows:
A gift by a coparcener of this 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 or as 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.
8. Thus, a coparcener can make over his interest in the joint family properties, but that has to be in favour of the entire coparcenary as such. In such an event, it would be in the nature of a renunciation so, that the person who renounced would be in the same position as one who went out of the family and the other persons would continue in the coparcenary as reduced to that extent.
9. However, a Hindu father or other managing member has no power to make a gift except within reasonable limits of ancestral immovable properties and that too only for pious purposes. According to the Mithakshara law, as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction 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. (see paragraph 258 of Mulla's Hindu Law 14th edition). In Ratnasabapathi Pillai and Anr. v. Saraswathi Ammal : AIR1954Mad307 , a Bench of the Court went into this problem and in the course of the judgment referred to a decision of Venkatappa v. Raghavayya : AIR1951Mad318 . In the last mentioned case, a gift deed was executed by the plaintiff for himself and on behalf of his minor son in favour of a stranger, conveying an item of joint family property. The plaintiff thereafter instituted a suit contending that the deed of gift was void and praying for a declaration that it was not valid in law and enforceable. Raghava Rao, J., who decided the case in this Court, referred to the earlier decisions on the subject, and observed that the well-recognised common law maxim that a man shall not derogate from his own grant had no application to a case in which the personal law of the parties rendered altogether void a grant by him which must, therefore, be treated in the eye of the law as altogether non est, and there being no rights created by a void transaction of that kind, there was no estoppel or any other kind of personal bar akin thereto, which precluded the plaintiff from asserting his right to recover. An exception to this proposition was, however, pointed out at page 462 of the report Ratnasabapathy Pillai and Anr. v. Saraswathi Ammat4, as follows:
Suffice it to observe that a gift made with the consent of all the coparceners, where there is no minor or child in the womb, could not be attacked as being void in toto...
10. The learned Subordinate Judge, after referring to this passage in the above judgment, considered that in the present case, the gift would be totally invalid because there could be no consent of all the coparceners in the present case. One of the coparceners being a minor, in the view of the learned Subordinate Judge there was no question of his giving his consent to any such gift. But what is overlooked by him is that the minor himself is the beneficiary under the settlement. The gift is in his favour. When the properties are transferred by two major coparceners in favour of a coparcener who, at the relevant time, was a minor, then, there is no question of the gift becoming invalid merely because the consent of the minor had not been or could not be taken. The reason behind this rule is to see that the non-alienating coparceners are not put to any loss or difficulty by such gratuitous alienation. If the transaction does not hurt the rest of the family as a unit there is no reason why such a transaction should be held to be bad in law. Further, the law leans in favour of a benefit to the minor and it stands to reason that the minor should not be denied the benefit of a transaction in his favour. It is true that the minor is incapable of giving his consent. But unless the transaction was in favour of a stranger, nothing prevented the coparceners from conferring a benefit on the minor coparcener, and the transaction would be treated as equivalent to relinquishment or renunciation which as already pointed out is possible by any coparcener with or without the consent of others. Though the principle is that if the transaction is not valid under the personal law of the parties, the transferor will not be estopped from contending that the transaction is invalid, still, so long as the personal law contemplated a possibility of the transaction being valid and so long as there is no other infirmity in the transaction, I do not see any reason why a transaction like the one in the present case should be considered to be invalid.
11. The proposition that a transaction of gift would be void in toto and would not bind even the donor was reiterated by Natesan, J., in Srinivasa Padayachi v. Parvathiammal and Ors. : AIR1970Mad113 . That was a case of a gift in favour of a person other than a coparcener and, therefore, the principle of that decision would not be applicable here. The case of a minor coparcener as beneficiary under a settlement executed by the major coparceners can be taken to be an exception to the general principle. There can be no gift of a joint family property except within reasonable limits. But this principle does not apply to the present case which is in the nature of release or renunciation. Though the minor alone is the beneficiary, he represents the rest of the family. There is no thus no infirmity in the transaction.
12. The next question that arises is whether Exhibit A-2 was a sham and nominal document as contended by the 11th defendant in his written statement. There is no presumption that any document is a sham and nominal one. The person who asserts that the document was not intended to be operative has to prove his plea. In the present case, apart from the written statement, the only other circumstances in support of this plea are the following. It is argued that the 11th defendant executed lease chits under Exhibits B-1 and B-8 and that this would show that the 11th defendant continued to be in possession of the properties notwithstanding the terms of the settlement deed. The second circumstance relied on in this connection is the non-transfer of patta in favour of the plaintiff. Thirdly, the sale deeds executed by the 11th defendant sub-sequent to the settlement deed are also relied on as showing that he held out and proclaimed to the outside world that the settlement deed was not intended to be acted upon. Apart from filing his written statement, the 11th defendant did not go into the witness box to prove his case. The only other person who could have spoken to the intention behind the settlement deed was Pakkiriswami, the grandfather of the plaintiff. But he was not examined. In these circumstances, there is no evidence to show that the document was never intended to be acted upon. The circumstance of non-transfer of patta is neither here nor there. The plaintiff's mother, who was constituted as the guardian for managing the properties, is a lady, and the 11th defendant appears to have been living away from her. In these circumstances, there was no proper help available to the plaintiff for the purpose of getting the patta transferred in his name. The execution of the lease chits would not show that the 11th defendant never intended to act upon the settlement deed. Someone has to manage the properties, and there was nothing improper in the 11th defendant, as the father, trying to see that the properties are cultivated and income earned therefrom. The lease chits by themselves also cannot be relied on to evidence the intention not to act upon the deed. From the fact that the 11th defendant was living away from the plaintiff and his mother it is clear that he was not taking care of the family. In fact the settlement itself was the product of this kind of attitude on his part. D.W. 4 has spoken to the fact that he was cultivating the properties and paying waram to the 11th defendant. That also would not conclusively prove that the intention at the time when the document was executed was not to act upon it. There was no specific reason why the document should have been executed in favour of the minor in the manner done with an intention not to act on it. There was no need to screen the properties. In these circumstances, I do not find that it is possible to draw an inference that Exhibit A-2 was not intended to be acted upon. The result is that the document Exhibit A-2 was valid and that it is also operative.
13. The further question that now arises is whether the alienations in favour of the several defendants are valid and legal. I shall first take up for consideration the alienations in favour of defendants 5, 9 and 10. The alienation in favour of the fifth defendant is under Exhibit B-9 dated 17th October, 1962. The document has been executed only by the 11th defendant. In that document, the 11th defendant declared that the property belonged to him and was in his enjoyment. The sale purports to be for meeting the family expenses. The 11th defendant had absolutely no right over the property after the execution of the settlement deed, and, therefore, the said alienation cannot be said to be valid.
14. As regards the alienation in favour of defendants 9 and 10, the document is marked as Exhibit B-11 dated 31st May, 1962. This document recites that it was executed by the 11th defendant for himself and on behalf of this minor son. The 11th defendant was not constituted as the guardian or manager under the settlement deed to deal with it. In fact , there is a prohibition under the settlement deed itself against anyone transferring the properties. In these circumstances, the 11th defendant could not have executed any document in the manner done under Exhibit B-11. The alienation by him under this document is, therefore, invalid and illegal.
15. The other documents which require consideration are Exhibits B-3, B-7 and B-10. Exhibit B-10 has been executed in favour of the first defendant by the 11th defendant for himself and for the minor son on 23rd May, 1956. Whatever has been said with reference to Exhibit B-11 would hold good regarding this alienation also. This alienation is, therefore, invalid and cannot bind the plaintiff. As regards Exhibits B-3 and B-7, those documents have been executed by the plaintiff's mother and guardian Radha Ammal for herself and for the minor. In the face of the specific prohibition under Exhibit A-2 itself against any alienation during the minority of the plaintiff, she had absolutely no powers of alienation and even those alienations are invalid and illegal. In these circumstances the plaintiff would be entitled to a decree in the manner prayed for by him.
16. There is one aspect which requires to be considered in the event of the settlement being found to be invalid. In such a case, the properties would continue to be properties of the joint family. The family has not been divided. Therefore, the 11th defendant could not have conveyed anything beyond his own interest in the joint family properties. He would have only one-fourth share in the properties and, therefore, whatever alienations have been made, could only be effective, as far as the alienations are concerned, to the extent of one-fourth share. The Court below was, therefore, wrong in proceeding as if the alienations would not be binding on the plaintiff only to the extent of his one-fourth share. But it is unnecessary for our present purpose to go further into this aspect. The suit is decreed accordingly. The appeal is allowed. There will be no order as to costs.