Let us first understand the Hindu Law to discuss and answer this question.
30. Testamentary succession. —[***] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so[disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this[section.]
Hindus have two schools of thought Dayabhaga and Mitakshara.
Dayabhaga is practiced in West Bengal while Mitakshara is followed in rest of India.
Coparcener:
The evolution of law:
The term coparcener under the Mitakshara system of jurisprudence has a distinct meaning. Its essential characteristic is that the coparcener possesses a right to the family property by birth, the existence of a mere right to partition of family property, cannot be regarded as the touch-stone of coparcenership. Only a male born or adopted into the family can under the ordinary Hindu law, be a coparcener. the right of the widow of a coparcener under the Act is derived under the statute and not by any fiction so as to enable her to take under the general law.
So far as alienation of coparcenary property are concerned, it appears that such alienation were permissible in eighteenth century. Indeed, in Suraj Bunsi Koer v. Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council observed as follows:-
” it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his separate debt.”
Thus, the Privy Council also noticed that in Madras alienations by gift were recognized. Such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family. It is, however, a settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consideration even without the consent of other coparceners. As has been observed by the Privy Council in Suraj Bunsi Koer’s case (supra), such recognition of alienations of coparcenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor’s shoes and to work out his rights by means of a partition. Although at the time of the judgment of the Privy Council in Suraj Bunsi Koer’s case, the Madras Courts recognised alienations by gift, as time passed the courts of law declared alienations by gift of undivided interest in coparcenary properties as void. The leading decision on the point is the case of Baba v. Timma and Ors., ILR 7 Mad. 357 FB, where it has been held that a Hindu father, if unseparated, has no power, except for purposes warranted by special text, to make a gift to a stranger of ancestral estate, movable or immovable. In that case, the gift was made by the father to a stranger to the detriment of the sons’ right in the property gifted. In Ponnusami v. Thatha and Ors., ILR 9 Mad. 273, the gift was made by a brother to the children of his daughter. It was held that under the Hindu Law a voluntary alienation by gift of joint family property could not be made by an undivided coparcener, unless permitted by an express text. Thus, the cumulative effect ,of Ponnusami’s case and Baba’s case (supra) is that a coparcener cannot make a gift of his undivided interest in the coparcenary property either in favour of a stranger or in favour of his relations.
In Ramanna v. Venkata, ILR 11 Mad. 246 a Hindu made a gift of certain land which he had purchased with the income of ancestral property, and a suit was brought to recover the land on behalf of his minor son, who was born even seven months after the date of the gift. It was held that the gift was invalid as against the plaintiff, and that he was entitled to recover the land from the donee. Thus, a son, who was born to the family after the gift was made, was held entitled to recover the property from the donee. In other words, he would not be bound by such an alienation. Again, in Rottala Runganathan Cheuy v Pulicat Ramasami Chetti, ILR 27 Mad. 162 it has been held that it is not competent to an individual-member of a Hindu family to alienate by way of gift his undivided share or any portion thereof;’ and such ,an alienation, if made, is void in toto.
There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Mayne’s Hindu Law, Eleventh Edition, Article 382:- “It is now equally well settled in all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid. A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.”
We may also refer to a passage from Mulla’s Hindu Law, Fifteenth Edition, Article 258, which is as follows:–
“Gift of undivided interest.– (1) 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 transaction being void altogether there is no estoppel or other kind of personal bar which preclude 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.” It is submitted by Mr. P.P. Rao, learned Counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest of the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary property. The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a mate Hindu in a Mitakshara coparcenary property. The Legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by Mitakshara School of Hindu Law, is that a coparcener can dispose of his undivided interest in the coparcenary property by a will, but he cannot make a gift of such interest.
The substantive provision of section 6, however, enjoins that the interest of a male Hindu in a coparcenary property will devolve by survivorship upon the surviving members of the coparcenary and in accordance with the provisions of the Act.
There is a long series of decisions since the decision in Baba v. Thimma and Ors., ILR 7 Mad. 357 laying down uniformly that a gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to his relation without the consent of the other coparceners is void. In the circumstances, it is very difficult to accept the proposition of law laid down in G. Suryakantara v. G. Suryanarayanamurthy that a gift by a coparcener of his undivided interest in the joint family property is not void, but is only not binding on the other coparceners. When a particular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances
Gift with consent of another coparceners:
It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid.
We may refer to the following passage from Mulla’s Hindu Law, Fifteenth Edition, Article 264 at page 357:-
“Art. 264. (1)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 renunciation 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 not be operative as between the parties and partition can be claimed.”
In the matter of Thamma Venkata Subbamma (dead) by LR v. Thamma Rattamma and others (1987) 3 SCC 294 , the Supreme Court has held that a coparcener under the Mitakshara law has no power to gift his undivided share unless he is sole surviving coparcener and gift by such coparcener is void ab initio. Paragraphs 12, 13, 14 and 17 of the report state as follows: – “12. There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Mayne’s Hindu Law, eleventh ed., Article 382 : It is now equally well settled in all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid …. A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.
We may also refer to a passage from Mulla’s Hindu Law, fifteenth edition., Article 258, which is as follows : Gift of undivided interest.–(1) 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 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.
The principle of law settled in Thamma Venkata Subbamma (supra) has been followed with approval by the Supreme Court in the matter of Pavitri Devi and another v. Darbari Singh and others (1993) 4 SCC 392 further (1972) 4 SCC 178 following its earlier decision in the matter of Mukund Singh v. Wazir Singh in which it was held that a gift of coparcener’s property by a member is void and it was further held that a disposition intra vivos by gift of coparcenary property except either with the consent of other coparceners or between coparceners or in exceptional circumstances is void.
The aforesaid decision of the Supreme Court i.e. Thamma Venkata Subbamma (supra) has again been followed in the matter of Baljinder Singh v. Rattan Singh (2008) 16 SCC 785 with approval and it was clearly held that transfer by coparcener of his undivided interest in coparcenary property by a gift, subject to certain exceptions, is void or voidable.
A gift made with the consent of the coparceners was held to be valid in Appanpatra v. Srinivasa (1917) I.L.R. 40 Madras 1122.
But a gift by one coparcener of his undivided share to another coparcener, to the exclusion of the others is not invalid Venkata Subbammana v. Rathnamma AIR 1987 SC 1757.
Supreme Court in Mukund Singh v. Wazir Singh held that a gift of coparcener’s property by a member is void. It was held that, subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.
Conclusion :
In other words, it is settled law that a disposition intra vivos by gift of coparcenary property except either with the consent of other coparceners or between coparceners or in exceptional circumstances is void. Since the gift being not for consideration is void in toto and operates during the lifetime of the donor, it is not a testamentary succession under Section 30 of the Act. Section 30 of the Act, therefore, brought about change in law of testamentary disposition of Hindu Coparcener of his interest in coparcenary properly governed by Mitakshara school of Hindu Law worked out in accordance with Section 55 read with Schedule III of Indian Succession Act or any other law in force to the above extent.
SHRUTI DESAI
14th November,2020
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