ivil Appeal No 258 of 1974 From the Judgment and Order dated 2291972 of the Andhra Pradesh High Court in Appeal No 549 of 1969
TS Krishnamurthy
G Prabhakar and G Narsimhulu for the Appellant
PP Rao TC Gupta and GN Rao for the Respondents
The Judgment of the Court was delivered by DUTT J
The only point that is involved in this appeal by special leave is whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not
In order to consider the point it is necessary to state a few relevant facts
Two brothers Rami Reddy and Veera Reddy and the sons and daughters of the latter being re spondents Nos 2 to 7 herein constituted a joint Hindu family governed by the Mitakshara School of Hindu Law
On May 4 1959 Rami Reddy executed a deed of settlement exhibit A 1 in favour of his brother Veera Reddy conveying his entire undivided interest in the coparcenary reserving a fife interest to himself and also providing that after his death his brother should maintain his wife
Rami Reddy died in January 1965 and shortly 239 thereafter his brother Veera Reddy also died in March 1965
It appears that after the death of Rami Reddy differences arose between his widow and the respondent No 1 as a result of which the widow of Rami Reddy since deceased demanded a partition of her husband s share which was gifted by her husband to his brother Veera Reddy
Thereafter she file1 a suit out of which this appeal arises for partition and recovery of her husband s share after cancelling the deed of settlement exhibit A 1 inter alia on the ground that it was a void document under the Hindu Law
The suit was contested by the respondents Nos 1 to 7
The respondent No 3 filed a written statement denying the plaint allegations
The other respondents adopted the written statement of the Respondent No 3
The Trial Court on a consideration of the evidence adduced on behalf of the parties held inter alia that the deed of settlement was void and inoperative under the Hindu Law in the absence of consent of the other coparceners
Further it was held by the Trial Court that even assuming that the deed of settlement was valid and binding on the plaintiff the plaintiff was entitled to the alternative relief of maintenance and separate residence under section 39 of the Transfer of Property Act as the plaintiff s husband was legally bound to maintain his wife and the plaintiff was entitled to enforce her maintenance claim with a charge on the properties in suit
In that view of the matter the Trial Court held that the plaintiff was entitled to a sum of Rs 1200 per annum towards her maintenance and separate residence with a charge on the A and B Schedule properties of the plaint
The suit was accordingly decreed by the Trial Court
The defendant respondents filed an appeal before the Andhra Pradesh High Court
The High Court however did not agree with the finding of the Trial Court that the deed of settlement was void
It was held by the High Court that the deed of settlement was valid
The judgment and decree of the Trial Court was set aside and the suit was dismissed in so far as it related to the cancellation of the deed of settle ment and recovery of possession of the suit properties by way of partition
But the decree passed by the Trial Court awarding maintenance to the plaintiff at the rate of Rs 1200 per annum that is to say at the rate of Rs 100 pm from the date of filing of the suit and creating a charge for the amount of maintenance on the suit properties was upheld by the High Court
The appeal was allowed in part
Hence this appeal by special leave
During the pendency of this appeal in this Court the plain tiff the 240 widow of Rami Reddy died and the present appellant who is her heir and legal representative has been substituted in her place
It is not disputed that the deed of settlement exhibit A 1 is really a deed of gift
It has been strenuously urged by Mr Krishnamurthy Iyer learned Counsel appearing on behalf of the appellant that in holding that the gift in question was legal and valid the High Court committed an error of law in the face of the legal position particularly prevail ing in the erstwhile State of Madras of which the present State of Andhra Pradesh was a part as recognised in several judicial decisions that a gift of coparcenary property by a coparcener without the consent of the other coparceners is void
The parties are admittedly governed by the Mitakshara School of Hindu Law
The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession
A member of joint Hindu family has no definite share in the coparcenary property but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family
An interest in the coparcenary property accrues to a son from the date of his birth
His interest will be equal to that of his father
So far as alienations of coparcenary property are con cerned it appears that such alienations were permissible in eighteenth century
Indeed in Suraj Bunsi Koer vs Sheo Proshad Singh and Ors ILR 6 IA 88 the Privy Council ob served 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 sepa rate debt
    But it appears    that in order to support the alienation by one coparcener of his share in undivided property the alienation must be for value
The Madras Courts on the other hand seem to have gone so far as to recognise an alienation by gift
There can be little doubt that all such alienations whether voluntary or compul sory are inconsistent with the strict theory of a joint and undivided Hindu family and the law as established in Madras and Bombay has been one of gradual growth rounded upon the equity which a purchaser for 241 value has to be allowed to stand in his ven dor s shoes and to work out his rights by means of a partition
 Thus the Privy Council also noticed that in Madras alienations by gift were recognised
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 consid eration 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
After the above Privy Council decision there has been a gradual growth in Madras of a particular legal position in regard to alienations by way of gift
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 vs Timma and Ors ILR 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 vs Thatha and Ors ILR  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 vs Venkata ILR 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 enti tled 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 242 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 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 coparcen er in a Mitakshara family of his undivided interest is wholly invalid           
A coparcener cannot make a gift of his undi vided 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 coparcerer can dispose of his undivided interest in coparcenary pro perty 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 PP Rao learned Counsel appear ing 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 coparce nary property by way of gift
The reason is however obvi ous
It has been already stated that an individual member of the joint Hindu family has no definite share in the coparce nary property
By an alienation of his undivided interest 19 the coparcenary property a coparcener cannot deprive the other coparceners of their right to the property
The object of this strict rule against 243 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 de veloped 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 
Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary proper ty
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 proper ty
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 0f Hindu Law is that a copar cener can dispose of his undivided interest in the coparce nary property by a will but he cannot make a gift of such interest
Again it may be noticed in this connection that under the proviso to section 6 of the  if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succes sion as the case may be under the Act and not by survivor ship
The devolution of interest in coparcenary property by survivorship has been altered to testamentary or intestate succession as enjoined by the proviso to section 6 relating to a female relative or a male relative claiming through such female relative
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
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 con sent of all other coparceners
Such a gift would be quite legal and valid
The High Court has noticed most of the above decisions and also legal position that a gift by a coparcener of his undivided interest in 244 the coparcenary property without the consent of the other coparceners is void
The High Court has also noticed the provisions of sections 6 and 30 of the 
The learned Judges of the High Court have however placed much reliance upon its previous Bench decision in G Suryak antara vs G Suryanarayanamurthy and Ors AIR 1957 Andhra Pradesh 1012
In that case it has been held that the law is not that a gift of an undivided share is void in the sense that it is a nullity but only in the sense that it is not binding on the other coparceners
No authority has however been cited in support of that proposition of law
On the contrary there is a long series of decisions since the decision in Baba vs Thimma and Ors ILR some of which have been referred to above 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 proposi tion of law laid down in G Suryakantara vs G Suryanara yanamurthy supra that a gift by a coparcener of his undi vided interest in the joint family property is not void but is only not binding on the other coparceners
When a partic ular 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
It is for the Legislature to consider whether it should change such law or not
It may be legitimately presumed that before the passing of the Hindu succession Act 1956 the Legislature must have taken into consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenary property but the Legislature has not except permitting the coparcener to make a will in respect of his undivided inter est by section 30 of the  altered the law against making of gift by a coparcener of his undivided interest
While considering whether the strict rule against alienation by gift should be interfered with or not the court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift while enacting the 
In the circumstances we are unable to accept the proposition of law that has been laid down in G Suryakantarn s case supra
In the instant case the High Court has also noticed a decision of this court in A Berumalakkal vs Kumaresan Balakrishnan and Ors AIR  that a gift of a coparcenary property is not valid under the Hindu Law except for specified purposes
That case has been distinguished by the High Court on the ground that the question 245 of validity of such a gift on the ground of consent of other coparceners did not arise for consideration
We do not think that it was a reasonable distinction that could be made of the law laid down by this Court merely because the question of consent of other coparceners did not arise
This Court therefore also has laid down against the validity of a gift of an undivided share in the coparcenary property
Coming back to the facts of the case we find that Rami Reddy made the gift for the common benefit of the donee as well as his sons as held by the High Court
It is submitted on behalf of the respondents that really it is a case of renunciation or relinquishment by Rami Reddy of his interest in favour of his brother and his sons
It was the intention of the donor that the property might be enjoyed by his brother and his sons and excepting that the donor had reserved to himself a life interest presumably for his maintenance he gifted his entire interest in the coparce nary property to his brother
There is some force in the contention of the learned Counsel for the respondents that the gift should be construed as relinquishment or renuncia tion of his undivided interest by the donor in favour of the other coparceners
Although the gift is ostensibly in favour of Veera Reddy but really the donor meant to relinquish his interest in the coparcenany in favour of Veera Reddy and his sons
In this connection we may refer to the following passage from Mulla s Hindu Law Fifteenth Edition Article 264 at page 357 article 264
1Renunciation 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 renuncia tion 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 renuncia tion 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
 Assuming that it is a renunciation in favour of one of the coparceners namely Veera Reddy such renunciation enures for the benefit of all other coparceners and not for the sole benefit of the 246 coparcener in whose favour the renunciation was made
In our view the gift made by Rami Reddy to Veera Reddy should be construed as renunciation of his undivided interest in the coparcenary in favour of Veera Reddy and his sons who were the remaining coparceners
The gift was therefore valid construing the same as renunciation or relinquishment by Rani Reddy of his interest in the coparcenary and accord ingly the consent of other coparceners was immaterial
In the result the conclusion arrived at by the High Court is affirmed though on a different ground
The appeal is dismissed
There will however be no order as to costs
HSK Appeal dis missed


Summary:
A coparcener in a Joint Hindu Family governed by the Mitakshara school in Hindu Law executed a deed of settlement which indisputably was really a deed of gift in favour of another coparcener his brother conveying his entire undi vided interest in the coparcenary but reserving a life interest to himself and also providing that after his death the other coparcener should maintain his wife
In a suit for partition and recovery of the property filed by the widow of the coparcener who executed a deed of settlement on the ground that the gift deed was a void document under the Hindu Law the Trial Court held that the deed of settlement was void and inoperative under the Hindu Law in the absence of consent of the other coparcener
On appeal the High Court held that the deed of settlement was valid
In this appeal by special leave the question for consideration was whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not
The argument of the respondent was that it was a case of renunciation or relin quishment of a coparcener s interest in favour of his broth er and his sons
Dismissing the appeal this Court
HELD 1
A gift made by the coparcener to his brother should he construed as renunciation of his undivided inter est in the coparcenary in favour of his brother and his sons who were the remaining coparceners
A gift was there fore valid and consent of other coparceners was immaterial
246A B Mulla s Hindu Law Fifteenth Edition Article 264 at page 357 referred to
237 2
It is however 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
Such recognition of alienations of copar cenary 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
244B C Suraj Bunsi Koer vs Sheo Proshad Singh and Ors
 ILR 6 IA 88 referred to
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 girt of such interest
243D Ponnusami vs Thatha and Ors
 ILR 9 Madras 273 Ramanna vs Venkata ILR 11 Madras 246 Rottala Rungunatham Chetty vs Pulicat Ramasami Chetti ILR 27 Madras 162 Mayne s Hindu Law Eleventh Edition Article 382 and Mulla s Hindu Law Fiteenth Edition Article 258 referred to 4
It is 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 other coparceners
Such a gift will be quite legal and valid
243G 5
When a particular state of law has been prevailing for decades in a particular area and the people of that are 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
It is for the Legislature to consider whether it should change such law or not
It may be legitimately presumed that before the passing of the  the Legislature must have taken into consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenary property but the Legislature has not except permitting the coparcener to make a will in respect of his undivided interest by section 30 of the  altered the law against making of gift by a coparcener of his undivided interest
While considering whether the strict rule against alienation by girt should he interfered with or not the court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift while enacting the Hindu Succes sion Act
244D G 238 G Suryakantam vs
G Suryanarayanamurthy and Ors AIR 1957 Andhra Pradesh 1012 differed
A Perumalakkal vs Kumaresan Balakrishnan and Ors  referred to
That an individual member of the joint Hindu family has no definite share in the coparcenary property
By an alienation of his undivided interest in 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 lot the purpose of preventing a joint Hindu family from being disin tegrated
242G H 243A B