Second Appeal No.375 of 1997

28th January, 2010

Petitioner Counsel: Mr. M. L. PATIL
Respondent Counsel: Mr. A. M. KULKARNI

Cases Cited:
Tatoba Ganu Vs. Tarabai w/o. Kedari Tambe, AIR 1957 Bom. 280 [Para 9]

JUDGMENT

JUDGMENT:- This second appeal is filed by the original plaintiffs whose suit came to be dismissed by the first appellate court. The parties shall hereinafter be refered to as the Plaintiffs and the Defendants.

2. The facts giving rise to the appeal are as under:-

The subject matter of the suit is city survey No.2836 admeasuring 36 ft. x 22 ft. According to the plaintiffs, the suit property was an ancestral joint family property and was in possession of the father of the plaintiffs and the defendant Nos.1, 2 and 3 and husband of defendant No.4. The plaintiffs are the sons of the first wife of deceased Mallappa while defendant Nos.1, 2 and 3 are born from the second wife i.e. the defendant No.4. The said Mallappa had partitioned the family property by a registered partition deed dated 3.8.1959. According to that partition, each party was put in possession of the separate portion of the property of their respective shares. They have been accordingly enjoying their shares. The plaintiffs contend that deceased Mallappa was indebted to other persons and therefore in order to save this property, he had executed a nominal document in favour of defendant No.4. The Plaintiffs submit that under the partition deed dated 3.8.1959, eastern half portion of city survey No.2836 fell to the share of the plaintiffs while western half portion fell to the share of defendant Nos.1, 2 and 3. There is stipulation in the said partition deed that in order to divide the property equally the parties to the said partition deed would erect a well in between. The plaintiffs therefore wanted to erect a wall. The defendants have been obstructing the same. Hence the suit for injunction.

3. The defendant Nos.1, 2 and 3 filed their written statement. According to them, municipal house No.846 was situated on plot Nos.2836 and 2837. This property was gifted by deceased Mallappa to defendant No.4 - his second wife in the year 1941 by a registered gift deed. According to the defendants, this property was the self acquired property of Mallappa and since the said property has now been gifted to defendant No.4 she has become exclusive owner thereof. It is also contended that Mallappa did not have any ancestral property at all. Further according to them, the partition dated 3.8.1959 is a void document. They also denied that the gift deed executed in favour of defendant No.4 was a nominal document. It was further contended that the suit was barred by limitation.

4. Defendant No.4 had also filed her separate written statement. She also contended that the property has been gifted to her by Mallappa by a registered gift deed and she has become full owner thereof. According to her, the plaintiffs have been residing separately in house No.2844 which she had given to the plaintiffs. She also contended that the suit is barred by limitation.

5. The learned Judge of the trial court framed issues and found that the plaintiffs are the owners of the suit property and they have a right to erect a well in between the property allotted to the plaintiffs and the defendants. The learned Judge of the trial Court also found that Mallappa did not have a right to gift the suit property to defendant No.4 and as such the plaintiffs have acquired titled in the suit property by virtue of partition effected in 1959. Holding so, he decreed the suit.

6. The defendants preferred an appeal before the District Judge. The Additional District Judge, who heard the appeal, found that Chandrabai - the defendant No.4, had become a full owner of the suit property by a registered instrument and, therefore the partition deed did not confer any right upon the plaintiffs. Holding so, he allowed the appeal and dismissed the suit. Feeling aggrieved thereby, the original plaintiffs preferred this second appeal.

7. This second appeal was admitted by this Court on the following substantial questions of law :-

(1) Whether the Gift Deed dated 20-7-1941 whereby deceased Mallappa gifted the ancestral houses viz. M.C.Nos.846 and 849 to the defendant No.4 while the plaintiffs were minor is void ab initio and under which no title could pass to her in view of and as per S.258 of the Hindu Law?

(2) Whether in view of the fact that the family continued to remain joint till the partition deed dt.3-8-1959 and parties started residing separately since that date it could be said that the Gift Deed was not acted upon?

(3) Whether the transaction of Gift Deed which is void ab initio can be said to have attained legality merely because the name of defendant No.4 was entered in the record ?

(4) Whether the impugned Judgment and decree is vitiated as the lower appellate court has failed to consider the above referred S.258 of Hindu Law especially when the trial court held the gift deed void on that ground?

7-A. I have heard the learned counsel for the Appellants and the learned counsel for the Respondents.

8. The main contention that was raised was whether the gift deed dated 20-7-1941 executed in favour of defendant No.4 by her husband Mallappa was void as Mallappa as a Karta had no right to gift the joint family property. The learned Judge of the trial Court relying on the commentary in Mulla's Hindu Law held that it is void. If the written statement of the defendant No.4 is seen, it would be clear that House No.846 situated on plot No.2836 and 2837 was gifted to her. There does not appear to be a dispute with regard to house No.849. The contents of the gift deed themselves make it very clear that this property i.e. house No.846 situated on plot Nos.2838 and 2837 is an ancestral property. It is so described in the gift deed itself. The other property i.e. house No.849 is described as self acquired property. Thus donar very cautiously gives mode of acquisition of both the properties by him. Therefore, description as given by the donar in the gift deed that the suit property is an ancestral property has to be accepted as true and correct. Therefore, the suit property which is plot No.2836 has to be treated as ancestral property.

9. The learned Judge of the trial Court relying upon Section 258 of Mulla's Hindu Law held that gift is not valid as co-parcener has no right to gift joint family property. I reproduce here Section 258:-

"S.258. SLAE OR MORTGATE OF UNDIVIDED INTEREST - OTHER STATES

According to Mitakshara law as administered in West Bengal and Uttar Pradesh, no coparcener can alienate even for value, his undivided interest without the consent of other coparceners, unless the alienation be for legal necessity (S.242), or for payment by a father of antecedent debts (S.295). The consent of the other coparceners is necessary, even if the alienation is made in favour of a coparcener.

The same rule applies to cases governed by Mitakshara law as administered in Bihar and Orissa, Punjab, and in Oudh. Also, see Ss.269(1) and 270(4).

However, the rigor of the rule has been relaxed in favour of alienees for value in Bombay, Madras and Madhya Pradesh (S.261) and in favour of purchasers at an execution sale throughout India (S.289). Reference may be made to the undermentioned decision."

But what needs to be looked into more specifically is Section 356 of Mulla's Hindu Law, 20th Edition. The commentary reads as follows:

"S.356. WHAT PROPERTY MAY BE DISPOSED OF BY GIFT

(1) A Hindu, whether governed by Mitakshara or Dayabhaga school, may dispose of by gift his separate or self acquired property, subject in certain cases to the claims for maintenance of those whom he is legally bound to maintain (S.222). Reference may be made to ss 18-22 of the Hindu Adoptions and Maintenance Act 1956.

(2) A coparcener under Dayabhaga law may dispose of his coparcenary interest by gift, subject to the claims of those who are entitled to be maintained by him (S-282).

A coparcener under Mitakshara law, however, has no such power (S.258), unless he is the sole surviving coparcener (S.257)."

Thus the copacener under Mitakshara law has no power to gift his undivided share also unless he is sole surviving copacener. It is not disputed in this case that the plaintiffs were born when the gift deed was executed. As such Mallappa was not the sole surviving coparcener. This court had an occasion to deal with similar question in the case of Tatoba Ganu Vs. Tarabai w/o. Kedari Tambe, reported in AIR 1957 Bombay 280. The Court observed as under:

"When there is a disability as regards an alienation by way of gift in the case of coparcener, much more so is the disability in the case of managing member, because the managing member holds a representative capacity. If an individual member i.e. a coparcener cannot make a valid gift in respect of his undivided interest in the coparcenary property, a managing member would not be able to make a valid gift in respect of the family property. However, a manager of a joint Hindu family may make a gift of a small portion of the family property. In three cases only will the gift of a portion of the family property be valid i.e. during the season of distress for the sake of the family and especially for pious purposes. Where the motive for the deed of gift is the friendship which subsisted between the family of donee and that of the donor that is not a valid purpose for the gift. The deed of gift is invalid and does not confer any title upon the donee. It cannot be said that this is a case of a donor having merely exceeded his power and therefore the gift is not void but voidable. Where there is power, there can be a case of an excess of power. Where there is right, there can be no case of an excess in the exercise of that right. Where there is no power at all to start with, no question can arise of a person having acted in excess of it. A person has no power at all to give away that which is not his own. If a person gives away what is not his own, he does not do something which is merely in excess of his power, but does what he has no power to do. If what the donor gave away was not his own the gift void ab initio."

10. If the above observation are seen, it is very much clear that the copacener has no power to gift coparcenery property and the only exception would be a gift of fraction of property during distress for the sake of the family and especially for pious purposes. The property is not gifted for any of these reasons. The only reason given in the gift deed is that the property was being gifted out of love. The learned judge of the trial Court seems to have rightly considered the provisions of law. The decision in Tatoba's case equally lays down that if a donar gives what did not belong to him, the gift is void ab initio. The gift deed in this case has to be treated as void ab initio. It was contended on behalf of the respondents that the plaintiff does not seek any declaration to that effect and seeks an injunction only and therefore the suit itself was not maintainable. There is no necessity of seeking declaration that the document is void. Where it is void ab initio, there is no need to see such declaration. Such a declaration needs to be sought when the document is voidable.

11. The gift deed is of 1941. In 1959 registered deed of partition was effected between Mallappa and his sons. Neither of the defendants disputed the partition deed of 1959. In fact D.W.1 Chandrabai admits in her cross-examination that at the time of negotiation of partition, she was present. Obviously, defendant No.4 Chandrabai was aware of this partition and she was also aware of the fact that no share was given to her. If she was aware of negotiation but must be assumed that she was also aware which property was being given to whom. It is also admitted by D.W.1 Chandrabai that after partition, the plaintiffs and the defendants started residing separately. Thus to the knowledge of Chandrabai the partition was effected and it was acted upon as she herself says that thereafter they started residing separately. It is also clear from this that until the partition all parties to the suit were residing together. It is therefore further clear that defendant No.4 was not in exclusive possession of the property i.e. to the exclusion of the plaintiffs until the partition in 1959. The fact that defendant No.4 in spite of knowledge of partition deed did not protest and allowed the property to be partitioned equally indicates that the gift deed was not to be acted upon.

12. The law is well settled that entries in the revenue records are merely for fiscal purposes. They neither confer the title nor they take away the right title and interest. Even if the name of Chandrabai is recorded in the revenue record, that does not make any difference, since the said document was not acted upon and by mutual partition the property was further partitioned. The learned Judge of the first appellate court should have considered the provisions of Hindu law as were considered by the learned Judge of the trial Court. He having not considered those provisions, he fell in error. Had he so considered, he would not have come to conclusion to which he had come. All the substantial questions are therefore answered accordingly. As a result, it must follow that the plaintiffs become owners of the suit property by virtue of partition and the partition deed stipulates that both the adjoining shareholders should erect a wall in between since the partition deed is a valid document. The plaintiffs have a right to enforce a stipulation in it. As a result, the appeal must be allowed. Accordingly, this appeal is allowed. The judgment and decree passed by the first appellate court is set aside and that of the trial Court restored. Respondents shall pay costs through out. The execution of the decree passed by the trial Court is stayed for a period of eight weeks from today.

Ordered accordingly.