P.R. Munuswamy Naidu vs V. Venkatesan and Others

S.S. Subramani, J.—8th defendant in O.S. No. 294 of 1973, on the file of II Additional Subordinate Judge''s Court, Vellore, North Arcot

District, is the appellant.

Suit filed by plaintiffs was one for partition claiming 3/8th share in the plaint items.

The relevant facts which are necessary for disposing of the appeal are, that the property belonged to one Narasimhalu Naidu, who had two

sons, Rathna Naidu and Veeraraghava Naidu. They constituted a joint family. After the death of Narasimhalu Naidu, other members continued to

be joint, and they also acquired other properties from out of the income, which admittedly belonged to the family. Plaintiff is the son of

Veeraraghava Naidu and his son is deceased first defendant. Defendants 2 to 8 and one Perumal Naidu are the sons of Rathna Naidu. It is said

that the defendants alone are taking the income. Therefore, the plaintiff prays that he may be allotted 3/8th share.

In the written statement filed by second defendant, which has been adopted by the appellant herein, also, the main contention raised was that

Narasimhalu Naidu had an elder brother by name Kullappa Naidu, and both of them were members of the same family. Kullappa Naidu released

all his rights in favour of Rathna Naidu and, therefore, the property covered by that document, i.e., items 5 to 10 in the plaint belonged to their

branch exclusively. Therefore, the plaintiff is not entitled to any right over items 5 to 10. They are entitled to partition of items 1 to 4.

Trial court granted a preliminary decree in favour of plaintiff for items 1 to 4 only.

It is seen that even in respect of the preliminary decree, appellant was not satisfied. So, he filed A.S. No. 173 of 1980, on the file of District

Judge, Vellore. Plaintiff also filed a cross-appeal. Before the lower appellate court, additional evidence was taken. Exs. B-6 and B-7 were

marked. The lower appellate court found that even in respect of items for which preliminary decree was not granted by the trial court, plaintiff is

entitled to share. The lower appellate court was of the view that on the basis of Ex. B-6, Rathna Naidu alone will not be entitled to any separate

right. The benefit of Ex. B-2 must enure to the benefit of the entire family. The contention of the defendants that Ex. B-6 property exclusively

belonged to Rathna Naidu could not be accepted. The cross-appeal was allowed, and the appeal was dismissed. It is against the said judgment,

this second appeal is filed.

At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:

(1) Whether the learned Judge is right in holding that Ex. B-6 was only a release deed and not a conveyance?

(2) Whether the learned Judge is right in holding that Ex. B-6 would enure to the benefit of the plaintiff and his mother and sister? and

(3) Whether the learned Judge is right in thinking that the question of the status from plaintiff as the son of Veeraraghava Naidu was not in dispute

in the appeal?

The only argument that was put forward at the time of hearing by learned Counsel for appellant was, on the question whether Ex. B-6 enures to

the benefit of the Branch of Rathna Naidu alone or to the entire joint family.

That Ex. B-6 was executed by an undivided coparcener in favour of Rathna Naidu is not disputed. Of course it is said, that it was executed for

consideration. It is because the document is for consideration, the contention is that it is a conveyance of the coparcener''s right in favour of the

purchaser or Rathna Naidu. Whether that contention could be accepted or not, is the only question to be decided.

Derrett on ''Introduction to Modern Hindu Law'' (1963 Edition) has stated (at pages 250 and 251) as to what is the nature of a coparcener''s

interest in a family property. The relevant portion reads thus:

No individual member of the coparcenary can claim before partition (in which he participates) that he owns a certain definite share either of the

corpus or of its income. The rights of a coparcener are : (i) to be maintained; (ii) to demand partition and on account of the state of the family

property; (iii) to become manager if the managership is vacant and no coparcener effectively objects; (iv) to alienate (in South India) only) in effect

his undivided interest in the joint-family property; and (v) to take, so long as he remains undivided, by survivorship so much of the interests of

deceased coparceners as will serve proportionately to increase his presumptive share, which will become ascertained for the first time at partition.

Thus coparceners have a community of interest and of possession of the joint-family property and are comparable with joint-tenants at English law

with benefit of survivorship, save that their individual rights commence independently and by operation of law, not by transfer between parties. No

one can create a coparcenary interest, any more than he can create, with a stranger, a joint Hindu family. He can, no doubt, provide in, for

example, a will that property over which he exercises a right of disposition shall be enjoyed by the transferees as if it were Mitakshara joint-family

property and they were co-parceners at Hindu law in respect of it; but that is a different matter.

In Mayne''s ''Hindu Law & Usage'' - 14th Edition (1996), at page 767, the learned Author says thus:

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 or as a renunciation of his interest in favour of all. Where a coparcener purported to make a gift of his

share to one brother, the Supreme Court held that though ostensibly a gift, it was a relinquishment of his share and enures for the benefit of all the

coparceners the gift was construed in such a manner as to render it valid. Renunciation with a condition to pay maintenance to him is also valid.

Such a renunciation can be effected by an expression of an intention to that effect, and no formality is necessary....

In N.R. Raghavachariar''s Hindu Law - Principles and Precedents'' - 8th Edition, (1987), at page 237, it is said thus:

A coparcener can renounce his interest in the joint family estate. The renunciation does not result in a general partition of the family. Such a

reunciation merely extinguishes his interest in that 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 the renunciation being to reduce the number of persons to whom shares would be

allotted if, and when, a division of the estate takes place. A coparcener can renounce his interest only in favour of all the coparceners and when he

renounces in favour of only one of them, the renunciation, enures for the benefit of even the others,...his renunciation which enures for the benefit of

all the other coparceners may take the form of a gift of the entire interest of a coparcener in favour of another coparcener.

[Italics supplied]

In Mulla ''s ''Hindu Law'' - 15th Edition (1982) at page 357, it is said thus:

Renunciation or relinquishment of his share - A coparcener may renounce his interest in the coparcenary property in favour of the other

coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the

benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunication is made. Such

renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The

renunciation or relinquishment must, of course, be genuine. If fictitious and not acted upon it would be inoperative as between the parties and

partition can be claimed....

In a Full Bench decision of this Court reported in Chella Subbanna and Another Vs. Chella Balasubbareddi and Others, , it was held as

follows:

...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.

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 6 B.L.R. 925 one Madhawaro

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. Vasantrao 9 B.L.R. 595 their Lordships held that the governing principles had been rightly applied

by the High Court and dismissed the appeal. At p. 497, 10th Edn. of Mayne the learned editor expresses the opinion that dicta in Pedayya v.

Ramalingam ILR 11 Mad. 406 and Thangavelu Pillai v. Doraiswami Pillai 27 M.L.J. 272 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 : ILR 69 IndAp 307 : ILR 1937 Mad. 1. 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 9 B.L.R. 595. 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. The costs of this reference

will be costs in the appeal.

[Italics supplied]

In Guruswami Goundan and Others Vs. Marappa Goundan and Others, , the question was, whether a father can relinquish his right with a

condition that the son should maintain him. In paragraph 8 of the judgment, it was held thus:

Apararka''s Commentary on Yajnavalkya is also to the same effect:

The separation of one who is able to support himself and is not desirous of participation (may be completed) by giving some trifle.

All these authorities envisage only the renunciation by a son and not by the father or grandfather who happens to be the head of the family as in the

present case. No specific text or authority showing that the father could renounce his rights in joint family property by taking a trifling or something

for his means of livelihood has been cited. But Mr. Bhashyam argues that it is open to the father to make a division of the property among his sons,

either by taking a share himself or by giving up his rights. If he decides to renounce his share on condition of being paid maintenance very year, it

must be understood that he was effecting a partition among his descendants and cutting himself off. According to the texts cited above, if a son can

renounce his rights, it stands to reason that the father, who can compulsorily effect a partition under the Hindu Law can renounce his rights after

taking something for maintenance. This kind of renunication can be interpreted in various ways. It may be a gift by the father of his share to the

sons; it may amount to an alienation of his share; or an effacement of his rights. But since the Full Bench decision in Subbanna v. Balasubba Reddi

ILR 1945 Mad. 610 : AIR 1945 Mad. 142 (F.B.), has held that an alienation or a gift of his share is not possible, the only way in which his action

can be properly construed is either an effacement of his own rights by not taking anything or partitioning the property among the sons after taking

maintenance. Whether his right to maintenance can be construed as a charge on the family property, does not arise for consideration here. If the

sons regularly give him the maintenance the question of a charge does not arise, and therefore whether a charge exists or not need not be

considered. It seems to me therefore that the renunciation of his rights in property by defendant 6, after agreeing to receive maintenance of four

putties of paddy every year for his livelihood is valid and therefore defendant 6 has no longer any share in the property which can be settled upon

defendants 3 to 5. The partition ought, to be in equal shares between the plaintiff on the one side and defendants 1 to 5 on the other.

[Italics supplied]

These decisions were considered in a decision of our High Court reported in Durai alias Karunanidhi v. Devarajalu Naidu and ten Ors. (1990)

1 M.L.J. 507, wherein V. Sethuraman, J. held 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 person''s would continue in the coparcenary as reduced to that extent.

In view of the settled position of law, the conclusion is irresistible, namely that even if the document is taken as one for consideration, the

executants of Ex. B-6 are only effacing themselves from the family and to that extent, the share of the remaining co-parceners is increased. The

relinquishment can only be in favour of the family even of the document is only for consideration. The finding of the lower appellate court is,

therefore, correct, and accordingly the second appeal is dismissed. No costs.