This second appeal is focussed by the second defendant, animadverting upon the judgement and decree dated 03.12.2003 passed by the learned Additional District Court cum Chief Judicial Magistrate, Fast Track Court No.V, Chengalpattu in A.S.No.35 of 2001 confirming the judgement and decree dated 13.09.2001 passed by the learned Subordinate Judge, Tiruvallur in O.S.No.89 of 1995. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Avoiding discursive delineation and detailing of the facts in view of both the courts below having set forth the cases of the respective parties at length, the summation and summarisation of relevant factual scenario, which is absolutely necessary and germane for the disposal of this second appeal could be portrayed thus:
The respondents/plaintiffs filed the suit O.S.No.89 of 1995 seeking the following main relief as against the defendants.
- for partition and separate possession of 2/3 share from out of the suit properties in favour of the plaintiffs and to put the plaintiffs in possession of the same.
(extracted as such from the copy of the plaint) The defendants entered appearance and filed the written statement resisting the suit.
3. The trial Court framed the relevant issues. During trial, the fourth plaintiff examined himself as P.W.1 along with P.W.2 Govindammal and Ex.A1 was marked. On the defendants' side D2 was examined as DW1 along with D.Ws.2 and 3 and Exs.B1 to B25 were marked.
4. Ultimately the trial Court decreed the suit, as against which, the first appeal A.S.No.35 of 2001 was filed by the second defendant, for nothing but to be dismissed by the lower appellate Court confirming the judgement and decree of the trial Court. Being disconcerted and aggrieved by the judgement and decree of the first appellate Court, the second defendant has filed this second appeal on various grounds by setting out a few substantial questions of law in the memorandum of appeal.
5. Heard Mr.T.V.Ramanujam, the learned senior counsel appearing for the second defendant/appellant and Mr.V.Raghavachari, the learned counsel appearing for the plaintiffs/respondents.
6. My learned predecessor framed the following substantial questions of law:
"1. Whether the Courts below have considered the material evidence in the case and have properly applied the law relating to the consideration and appreciation of family arrangement, while considering the defence put forward by the defendant in this regard?
2. Whether the courts below have properly considered the material evidence in the case namely, Ex.A1, which is a gift (settlement) deed gifting undivided share in the coparcenary property ? and
3. Whether the Courts below properly considered the material evidence, namely Ex.B16 and Ex.B17, which have been brought into existence by the plaintiffs pending the suit which contain the admission to lean towards the family arrangement?"
7. A deep analysis and poring over of the judgments of both the courts below including the typed set of papers would demonstrate and display that the plaintiffs filed the suit for partition and for separate possession of 2/3rd share of the suit properties mainly on the ground that by virtue of the settlement deed dated 05.05.1963 executed in favour of Govindammal by her father Venkata Reddy @ Pakki Redy and her father's brother viz., Chenga Reddy settling their 2/3 rd share in the joint family comprised of those two brothers and their one other brother Venkatarama Reddy. The plaintiffs are the legal heirs of Govindammal ; plaintiffs 1 to 4 are her sons, 5th plaintiff is her daughter and 6th plaintiff is the widow of her deceased son Jagannathan and the 7th plaintiff is the minor daughter of the 6th plaintiff. The first defendant Markandeya Reddy is the son of deceased Venkatarama Reddy, who would claim that there was on oral partition during the year 1984 and as per which the said settlement deed was agreed to be ignored and accordingly, the suit properties were divided and demarcated and Markandeya Reddy has been in possession and enjoyment of his share and the plaintiffs have been in possession and enjoyment of their share.
8. The learned senior counsel appearing for the second defendant/ the widow of deceased D1 Markandeya Reddy would advance his arguments to the effect that Ex.A1, the settlement deed is a void document and never acted upon; whereas during the year 1964, before the Panchayatar partition was effected and in that the properties were divided into two shares and one share was allotted to Markandeya Reddy and the remaining had been under the enjoyment of Govindammal and consequently now under the enjoyment of the plaintiffs herein, so to say, her legal heirs. Accordingly, he prayed for the dismissal of the suit.
9. The learned senior counsel for the second defendant/appellant cited various precedents to highlight that Ex.A1, the settlement deed executed by the two undivided co-parceners in respect of their undivided shares in the suit property is null and void. It is therefore, just and necessary to consider the decisions cited by the learned senior counsel for the second defendant as under:
(i) AIR 1981 SC 1274 (Ku.Sonia Bhatia vs. State of U.P.and others). Certain excerpts from it would run thus:
16. It is, therefore, clear from the statement made in this book that the concept of gift is diametrically opposed to the presence of any consideration or compensation. A gift has aptly been described as a gratuity and an act of generosity and stress has been laid on the fact that if there is any consideration then the transaction ceases to be a gift. Before closing this aspect of the matter we might also refer to the definition of consideration given in various books. BLACKS LAW DICTIONARY defines consideration thus:
Consideration is not to be confounded with motive. Consideration means something which is of value in the eye of the law, moving from the plaintiff, either of benefit to the plaintiff or of detriment to the defendant. This is the view expressed in 2 QB 851. Similarly, at p. 61 in the same volume, the words adequate consideration have been defined thus:
One which is equal, or reasonably proportioned, to the value of that for which it is given. Fair and reasonable under circumstances. (emphasis supplied)
20. From a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration, the inescapable conclusion that follows is that consideration means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee. Similarly, when the word consideration is qualified by the word adequate, it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case. It has also been seen from the discussions of the various authorities mentioned above that a gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form. In fact, where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour. It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making a gift with the consideration which is the subject-matter of the gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal considerations as understood by law. It is manifest, therefore, that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the circumstances under which such a transfer takes place. Furthermore, when the legislature has used the word transfer it at once invokes the provisions of the Transfer of Property Act. Under
Section 122 of the Transfer of Property Act, gift is defined thus:
Gift is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
21. Thus,
Section 122 of the Transfer of Property Act clearly postulates that a gift must have two essential characteristics (1) that it must be made voluntarily, and (2) that it should be without consideration. This is apart from the other ingredients like acceptance, etc. Against the background of these facts and the undisputed position of law, the words, transfer for adequate consideration used in clause (b) of the proviso clearly and expressly exclude a transaction which is in the nature of a gift and which is without consideration. Love and affection, etc., may be motive for making a gift but is not a consideration in the legal sense of the term. As regards the argument of Mr Kacker that if the legislature intended to exclude gifts, clause (b) of the proviso should have expressly said so; the answer is very simple. Every legislature has its own technical or legal device to express its intendment. Some legislatures may have chosen to expressly exclude gift as Mr Kacker says but that is not the only method of conveying the legislative intent. There may be other methods or devices by which the legislative intent can be expressed, namely, by using such expressions which would expressly or by necessary intendment exclude a particular transaction. This method seems to have been adopted by the legislature in enacting clause (b) of the proviso. In fact, the legislature has made its intention clear that gift is excluded by qualifying the word consideration by the adjective adequate. Assuming that love and affection, spiritual benefit or similar other factors may amount to a consideration for the gift, the word adequate is wholly inapplicable to and inconsistent with the concept of a gift because it is impossible to measure love and affection, the sentiments or feelings of the donor by any standard yardstick or barometer. The words adequate consideration clearly postulate that consideration must be capable of being measured in terms of money value having regard to the market price of the property, the value that it may fetch if sold, the value of similar lands situated in the vicinity, so on and so forth. In the instant case, therefore, in our opinion, the legislature by using the word adequate to qualify the word consideration has completely ruled out and excluded gift from the ambit of clause (b) of the proviso. In these circumstances, therefore, the argument of Mr Kacker that by not expressly excluding gift, clause (b) of the proviso includes gift cannot be accepted particularly in the face of the clear and unambiguous language used by clause (b) of the proviso in describing the nature of the transaction as one for adequate consideration.
22. We now deal with the second limb of the argument of Mr Kacker that as in the case of a gift there is no question of a consideration, we should hold that the 3rd part of clause (b) of the proviso which contains the words for adequate consideration is inapplicable and ignore the same. This argument is diametrically opposed to the well known rule of interpretation that courts in interpreting statutes must not interpolate or legislate. It is well settled that a legislature does not waste words without any intention, and every word that is used by the legislature must be given its due import and significance. In the instant case, the words adequate consideration have undoubtedly a well recognised concept and, as indicated above, the intention was to exclude any transaction which is not for adequate consideration. Not to speak of a gift but even if a sale is found to be bona fide but the consideration is inadequate, for instance, where the property has been sold for a nominal price or below the market value, the transaction would fall beyond the protection given by clause (b) of the proviso. Our attention has been drawn by Mr Kacker to a single Bench decision by Banerji, J. in Fateh Singh v. State of U.P where the learned Judge had taken the view that the definition of a transfer given in clause (b) of the proviso included a gift because a gift also could not be said to be a transfer without consideration even though consideration may not be weighed in terms of money. The learned Judge in taking this view had obviously fallen into error of confusing what was the motive or the reason for the gift as being a legal consideration of it. It has already been pointed out that in considering the nature of a gift one should not confuse the motive, which may be love and affection, or spiritual benefit, with valuable consideration which has to be either in the shape of a money compensation or equivalent of the same. It is true that in every gift the donor has a particular motive and objective or a reason to part with his property in favour of the donee, the reason being, in some cases, love and affection where the gift is in favour of a relation or friend, or spiritual benefit in other cases but this will be the immediate motive for making the gift and cannot be regarded as a consideration for the gift because the very concept of gift is based on a purely gratuitous consideration. The Division Bench of the Allahabad High Court in the case1 referred to above has rightly overruled the view of Banerji, J., on this count. In fact the matter has been considered by other High Courts who have consistently taken the view that a gift is a transfer without consideration, love and affection being only the motive for making the transfer. In Debi Saran Koiri v. Nandalal Chaubey while elucidating the nature and character of a gift Sahay, J. made the following observations:
Now,
Section 122, T.P. Act defines gift as a transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. ... To my mind consideration in
Section 122, T.P. Act, means valuable consideration and not consideration in the shape of conferring spiritual benefit to the donor. If valuable consideration be not the consideration referred to in
Section 122, I fail to understand how any gift can be made without consideration at all. There must be some sort of consideration in every gift, for instance, a consideration of an expectation of spiritual or moral benefit or consideration of love and affection. Such considerations are not considerations contemplated in
Section 122. The consideration there contemplated must be valuable consideration, that is consideration either of money or of moneys worth (emphasis supplied)
(ii) AIR 2000 SC 3529 (2) (Thimmaiah and others vs. Ningamma and another). Certain excerpts from it would run thus:
17. The karta is competent or has the power to dispose of coparcenary property only if (a) the disposition is of a reasonable portion of the coparcenary property, and (b) the disposition is for a recognised pious purpose. The High Court has not come to any conclusion as to whether the gift of Items 3 to 6 by Hiri to Respondent 2 was within reasonable limits or in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of Respondent 2s marriage. It must be taken, therefore, that the findings of the lower courts on both counts were accepted. That being so, Hiri could not have donated Items 3 to 6 to Respondent 2 and the deed of gift dated 9-6-1971 was impermissible under Hindu law. The question is could such an alienation be made with the consent of Appellant 1?
21. The impugned deed was executed in 1971, prior to Hiris death in the same year. By this time, the Hindu Succession Act, 1956 had come into force. The proviso to
Section 6 of the 1956 Act (considered at greater length later in the judgment) now provides that the deceaseds interest in Mitakshara coparcenary property does not devolve by survivorship if the deceased leaves surviving him female relatives specified in Class I of the Schedule. Consequently, the interest of the surviving coparcener to the deceaseds coparcenary share, in such a case, no longer survives and his consent to depletion of his interest in the joint family property would not, therefore, make a gift of coparcenary property otherwise invalid, valid. Consent in such a case would have to be obtained from all the persons who could claim a share in the deceased coparceners interest. Appellants 2, 3 and 4 as well as both the respondents are Class I heirs of Hiri. It is not the case of the respondents that Appellants 2, 3 and 4 had consented to the gift. We are, therefore, of the opinion that the finding of the High Court on the validity of the deed of gift dated 9-6-1971 is unsustainable and it is accordingly set aside. The aforesaid decisions of the Hon'ble Apex Court would leave no doubt in the mind of the Court that the undivided co-parceners cannot execute a settlement deed in the form of gift in favour of any person.
10. Whereas the learned counsel for the plaintiffs would develop his argument to the effect that the settlement deed Ex.A1 was executed by the father of Govindammal, namely, Venkata Reddy @ Pakki Reddy and her uncle Chenga Reddy who had no issues, purely for the purpose of providing succour to Govindammal and also in consideration of Govindammal having given protection to her father and to her uncle Chenga Reddy, who had no social support at all and that such a settlement deed is valid.
11. Whereas the learned senior counsel for the second defendant/appellant would torpedo and pulverise the arguments as put forth on the plaintiffs' side by pointing out that as on the date of execution of Ex.A1, the settlement deed, Govindammal was the married daughter of Venkata Reddy and in such a case, the question of providing any social security to Govindammal after her marriage would not arise so as to save the settlement.
12. The following other decisions were also cited by the learned senior counsel for the second defendant/appellant and certain excerpts from those decisions would run thus:
(i) 1969 (II) MLJ 597 Srinivasa Padayachi vs. Parvathiammal and others) ...........The document Exhibit A1 recites that, in view of the insistence of a settlement of properties when the settlor asked the plaintiff to marry him, he is giving the properties under the settlement deed and placing the same in her possession. The properties are to be enjoyed by her during his life time without alienation. Children of the marriage have to take the properties absolutely, and, if there is no issue by the marriage, the plaintiff herself has to take the properties. The settlement in this case was not just a motive or a grant made out of affection or as a provision for the future. The transfer here was not just a gratuitous transfer. The transfer preceded the marriage and in consideration of the same the marriage followed immediately thereafter. The Transfer of Property Act defines a gift as a transfer of certain existing moveable or immoveable property made voluntarily and without consideration by a person called the donor to another called the donee, and accepted by or on behalf of the donee. As pointed out in Mullah's Transfer of Property Act, 5th Edn.772, the word "consideration is used in the definition of gift under the Transfer of Property Act", in the same sense as in the Indian Contract Act, and excludes natural love and affection. Mullah quotes Blackstone as saying "gifts are always gratuitous grants upon some consideration or equivalent . The Indian Contract Act defines "consideration" in
section 2 (d) as follows:
"When, at the desire of the promiser, the promisee or any other person has done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing, something, such or abstinence or promise is called a consideration for the promise".
.................
The lower appellate court in this case has followed the decision of this Court in Nanjundasamy Chetti v. Kanagaraju Chetti. In that case a settlement of a portion of joint family property was made by a Hindu in favour of his foster daughter, in pursuance of a promise made by him in consideration of her marriage with another who offered to marry her on such condition. It was held that the settlement was not a gift, but was valid and binding on the alienor's son to the extent of the alienors share as an alienation for consideration. It was a case of settlement as a condition for the marriage similar to the present case except that the promise here is by the husband to his would be wife. The settlement was by the foster father of the bride to her would be husband. It must be noted that the bride not being the daughter of the joint family the settlement evidently was not attempted to be justified as a gift permitted under the Hindu Law. The Court observed in that case that, if a person contracted a marriage in consideration of a promise, then the marriage would be valuable consideration within the meaning of the definition of "consideration" in the Contract Act. After pointing out that it was settled law that a coparcener could not make a valid gift even of his share, the Court proceeded to consider the question whether the transaction in that case was a gift or alienation for valuable consideration. ........"
(emphasis supplied)
(ii) 2002 (4) CTC 210 (Thulasiammal vs. Marappa Gounder and three others) "21. On the basis of the above settled law, now it has to be decided in the present case, in terms of Ex.A1, which reads as follows:
VERNACULAR (TAMIL) PORTION DELETED From the above said recitals, it is clear that the properties had been given to the first defendant's daughter mainly on the ground that she had been looking after her parents. From a reading of the entire recitals in the said document, it cannot be said that the properties had been given to the plaintiff for pious purpose. Even the first defendant had come forward with the specific plea that they have been under the care and custody of the second defendant and not under the plaintiff. So, appreciating the entire circumstances, it cannot be said that the settlement deed Ex.A1 has been made in favour of the plaintiff for discharging pious purpose and so the said document cannot be said as it has been made within the limits and powers of the first defendant as settled in various decisions. Moreover, under Ex.A1, 1/3rd of the family properties had been given and so it cannot be said that it is a reasonable settlement so as to enable the plaintiff to sustain Ex.A1, in law. The plaintiff, by way of the settlement deed Ex.A1 is getting more share than other sharers. Hence, the lower appellate Court is correct in holding that the settlement deed made under Ex.A1 by the first defendant is not valid and cannot be enforced by the plaintiff and so the plaintiff cannot claim any right in the properties. In view of the above discussion, I am not dealing with the issue regarding genuineness of Ex.A1."
As such, the learned senior counsel for the second defendant/appellant placing reliance on the aforesaid two decisions of this Court would develop his argument that, so far this case is concerned, the execution of Ex.A1, the settlement deed by the two undivided co-sharers in favour of Govindammal, the married daughter of one of the co-sharers, was not tenable. Applying the above principles found enunciated in the two aforesaid decisions of this Court, a fortiori that Ex.A1 cannot be treated as a valid settlement deed, as out of the three co-sharers only two co-sharers executed the sale deed.
13. Whereas, the learned counsel for the plaintiffs understanding the insurmountable obstacle in the way of the plaintiffs to save Ex.A1, would try his level best to put forth his argument to the effect that even though the undivided shares in the co-parcenery property cannot be gifted, nonetheless, by consent or implied consent of other co-sharers, the same could be effected. In support of his contention, he would cite the following decision of the Hon'ble Apex Court reported in 100 Law Weekly part 41 page 1125 (Thamma Venkata Subbamma (dead) by L.R vs. Thamma Rattamma) and certain excerpts from it would run thus:
10. 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 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 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 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 case and Baba case 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.
18. The High Court has noticed most of the above decisions and also the legal position that a gift by a coparcener of his undivided interest in 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 Hindu Succession Act. The learned Judges of the High Court have, however, placed much reliance upon its previous Bench decision in G. Suryakantam v. G. Suryanarayanamurthy. 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 v. Thimma 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 proposition of law laid down in G. Suryakantam 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. 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 interest by Section 30 of the Hindu Succession Act, 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 Hindu Succession Act. In the circumstances, we are unable to accept the proposition of law that has been laid down in G. Suryakantam case.
19. In the instant case, the High Court has also noticed a decision of this Court in Ammathayee alias Perumalakkal v. Kumaresan alias Balakrishnan 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 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 validity of a gift of an undivided share in the coparcenary property. A complete reading of the said decision including the aforesaid excerpts would clearly indicate that the said decision is not in favour of the plaintiffs but it only supports the case of the defendant. The Hon'ble Apex Court in the cited decision Thamma Venkata Subbamma's case held that the gift by a co-parcener of an undivided co-parcenery is not valid. In fact, the ratio decidendi is that there should not be any gift of an undivided share in a co-parcenery property by a coparcener.
14. Nowhere in that precedent, it is found spelt out that by implied consent such alienations could be made and further more, in this case, absolutely, there is no iota or shred, shard or miniscule, infinitesimal or molecular, scintilla or pint-sized of evidence to demonstrate that the said Venkatarama Reddy, father of Markandeya Reddy (D1) ever expressly or impliedly consented for such settlement.
15. The learned senior counsel for the second defendant would appropriately argue that on the plaintiff's side they were not justified in putting forth during the arguments the plea of consent or implied consent when there is no pleading to that effect in the plaint.
16. It is a trite proposition of law, in addition to it, being a common or garden principle that any amount of evidence without the back up of the pleadings has to be eschewed. In this case, there is no evidence much less clinching evidence with regard to consent or implied consent of Venkatrama Reddy in support of Ex.A1, the settlement deed dated 05.05.1963.
17. The learned senior counsel for the second defendant/appellant would cite the following decisions to highlight that there should be specific pleadings before any evidence could be adduced.
(i) 1996 (1) MLJ 118 (Kannu Reddiar vs. T.Palanirajan and others) and
(ii) Vol 95 LW 708 (P.Thangavelu Vs.R.Dhanalakshmi Ammal and other)
18. The learned senior counsel would also cite the decision of the Hon'ble Apex Court reported in (1988)1 SCC 383 (Bhairab Chandra Nandan vs. Ranadhir Chandra Dutta) and an excerpt from it would run thus:
6. ......................Though formally no issue was framed, the parties went to trial and adduced evidence with this issue in mind and have drawn the attention of the court to the existence of another house belonging to the appellant in Ismail Madan Lane and the said house being not vacant. There is, therefore no need for the appeal being remanded for a finding on the question whether alternate suitable accommodation is available for the appellant. It is explicit in this case that the plaintiffs did not plead anything about consent or implied consent of the other co-sharer Venkatarama Reddy in support of Ex.A1, the settlement deed.
19. The learned counsel for the plaintiffs also cited a few more decisions:
(i) AIR 1982 Madras 281 (Ponnuchami Servai vs. Balasubramanian and others) "15. ............ In Thangavelu Pillai v. Doraisami Pillai (1914) 27 Mad LJ 272: (AIR 1915 Mad 113), a Bench of this Court held that a gift by a father of all his interest in the family property in favour of his only son being supported by natural love and affection can be upheld as a relinquishment."
The cited decision emerged in certain set of factual situation where a father gifted his share in favour of his only son and I am of the opinion that there could be no quarrel over such a proposition as the only son as per doctrine of representation would also be a co-parcener. Furthermore, here the facts are different.
(ii) 1993 (4) SCC 392 (Pavitri Devi and another vs. Darbari Singh and others). Certain excerpts from it would run thus:
"11. ............. A gift made with the consent of the coparceners was held to be valid in Appan Patra Chariar v. V.S. Srinivasa Chariar.
12. In Dwarampudi Nagaratnamba v. Kunuku Ramayya this Court held that under the Madras School of Mitakshara law by which V was governed, he had no power to make gift of his undivided interest in the coparcenary property to his concubine. But a gift by one coparcerner of his undivided share to another coparcener, to the exclusion of the others is not invalid (Thamma Venkata Subbamma v. Thamma Rattamma). This Court in Mukund Singh v. Wazir Singh held that a gift of coparceners property by a member is void. 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 eo instanti 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 a Hindu coparcener of his interest in coparcenary property 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. The appellant, donee acquires no interest by devolution under the gift to represent the interest of the deceased plaintiff under Order 22 Rule 10 of CPC. Therefore, though for different reasons, we uphold the finding of the High Court in this behalf that the appellant is not a successor-in-interest by devolution by operation of Order 22 Rule 10. Accordingly we reject the claim of the appellant on that premise"
20. Learned counsel for the plaintiffs cited the decision of this Court reported in (1995) 2 MLJ 173 (Subbanna Gounder and another vs. Mohan Raj (minor) rep.by next friend mother Kaliammal and others). An excerpt from it would run thus:
"24-A. No doubt, as already held, 6th defendant goes out of the family after effecting partition, after these settlements and even before the death of Karuppanna Gounder (in 1964). Once he goes out of the family, then his interest in the said properties settled, also will cease. No doubt, the settlement of the life interest under Ex.A5 in favour of 4th defendant 9wife of Karuppanna Gounder) and the settlement of life interest under Ex.A6 in favour of the 5th defendant (daughter of Karuppanna Gounder) will have to be upheld. Since they were given only life interest in the respective properties for their maintenance, and the corpus of the properties as such, has not been transferred to them. In such a situation, those gifts of life interest could be construed as gift of usufructs of the corpus in other words as gift of movable. In Section 225 at page 250 of Mulla's Hindu Law, Sixteenth Edition, it is also stated thus:
"A" gift of affection, may be made to a wife, to a daughter, and even to a son. But the gift must be the property, within reasonable limits.
There will be no difficulty in holding that the life interest to wife and daughter of Karuppanna Gounder was within reasonable limits."
This decision is not applicable to the facts and circumstances of this case as in that case only life estate was given to the wife and the daughter of the co-parcener. But here, it is obvious and axiomatic that the factual position is entirely different as discussed supra.
21. The learned counsel for the plaintiffs would put forth and set forth his arguments to the effect that the very plea of the defendants that there was oral partition before the panchayatars and that Ex.A1 was agreed to be ignored would indicate that the defendants were aware of the Ex.A1 the Settlement Deed and thereby gave recognition to Govindammal as the beneficiary under Ex.A1 and accordingly as per them, she was taken as a sharer and in such a case, they cannot veer round and take antithetical plea that the settlement deed is void. Such an argument would put the plaintiffs in a catch-22 situation.
22. In my considered opinion such an argument cannot be countenanced and upheld as correct for the reason that the plaintiffs totally deny the very panchayat held and the alleged consequential partition and in such a case, the plaintiffs cannot approbate and reprobate and blow hot and cold.
23. The onus of proof as well as the onus probandi is on the defendant to prove that there was oral partition before the panchayatars. But it is clear that absolutely there is no evidence much less reliable evidence to uphold the alleged oral partition. No panchayatar was examined on the side of the defendant to prove such panchayat was held and the oral partition took place. In a village, if really a partition had taken place in the presence of panchayatars, certainly some evidence in that regard must be available and the same should have been adduced before the court. But, that was not done so.
24. The learned counsel for the plaintiffs appositely and appropriately would invite the attention of this Court to the indubitable fact that DW2 who was examined on the side of the defendant to prove oral partition admittedly was a small boy, aged about 5 years at the time of panchayat and he also during cross examination candidly admitted that since the deceased D1 told him about the oral partition, he came to know about it.
25. It is obvious and axiomatic, apparent and explicit that such sort of hear say evidence in this sort of serious matters is totally not permissible legally. DW1, the widow of deceased D1 only relied on the evidence of DW2 to prove the alleged oral partition. Hence, the contention of the plaintiffs that there was no oral partition, is well founded.
26. However, the learned senior counsel for the second defendant/appellant in an unsuccessful attempt to probabilise the case of the oral partition would invite the attention of this Court that some of the plaintiffs while executing the sale deeds during the pendency of the suit and transferring certain items of properties referred to therein, the share of the property of D1 Markandeya Reddy, which he obtained in the oral partition is referred to as one of the boundaries by specifying the boundary as Markandeya Reddy's property and similarly in Ex.B17 dated 12.03.1997 also similar reference is found mentioned.
27. The learned counsel for the plaintiffs would appropriately torpedo the argument of the learned senior counsel for the second defendant that mere reference while describing the boundaries could not be taken as conclusive proof that there was an oral partition.
28. I am of the considered opinion that mere such reference, which emerged during the year 1997 vide Ex.B16 and Ex.B17 , by no stretch of imagination could be taken as sufficient evidence to prove the alleged oral partition of the year 1964. No more elaboration in this regard is required.
29. The learned counsel for the plaintiffs appropriately and correctly cited the following decisions to highlight the point that mere change or mutation effected in the revenue records relating to possession of a portion of the joint family property would not confer any exclusive right over such property in favour of the co-parcener concerned.
(i) AIR 1967 SC 1124 (Girija Nandini Devi and others vs. Bijendra Narain Choudhury). An excerpt from it would run thus:
"8. Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family: it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally intention to sever the joint family status. Merely because one member of a family severs his relation, there is no presumption that there is severance between the other members: the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances."
(ii) 1996 (6) SC 223 (Sawarni vs. Inder Kaur and others). An excerpt from it would run thus:
"7. Having heard the learned counsel for the parties and having scrutinised the judgment of the trial Judge as well as that of the lower appellate court, we find sufficient force in all the contentions raised by the learned counsel for the appellant. At the outset, it may be noticed that the plaintiff had filed the suit claiming half interest for herself and claiming half interest in favour of the husband and sons of Roori and, therefore, the learned Additional District Judge was wholly in error to hold that the plaintiff could not have filed the suit in question. In view of the rival stand of the parties the main question that arose for consideration was whether Roori was the daughter of Gurbax Singh or Inder Kaur, Defendant 5 was the daughter of the same Gurbax Singh? The learned trial Judge after elaborate discussion of the evidence on record both oral and documentary came to the positive conclusion that it was Roori who was the daughter of Gurbax Singh as alleged by the plaintiff and not Inder Kaur. The lower appellate court without focusing its attention on the weighty reasons advanced by the trial court and without examining the materials on record in that respect even did not set aside the said finding of the trial Judge and yet reversed the decree of the trial Judge. We have no hesitation to come to the conclusion that the said judgment of the Additional District Judge is wholly unsustainable in law. The crucial point being as to who was the second daughter of Gurbax Singh, namely Roori or Inder Kaur, and the trial Judge having come to the positive conclusion that it was Roori who was the second daughter of Gurbax Singh, the lower appellate court was not justified in not considering the material evidence as well as the reasons advanced by the trial Judge and merely coming to the conclusion that the evidence on the file does not prove Roori to be the daughter of Gurbax Singh. Further, the lower appellate court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed away by the so-called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment. That apart, as it would be seen, the learned trial Judge had considered the oral evidence adduced on behalf of the parties to establish the respective stand as to who was the second daughter of Gurbax Singh and on perusal of the same came to the conclusion that it was Roori who was the second daughter of Gurbax Singh. The Additional District Judge has not even discussed anything about the said oral evidence and the reasonings advanced by the learned trial Judge in coming to the conclusion that it was Roori who was the second daughter of Gurbax Singh. Non-consideration of the oral evidence adduced by the parties, by the lower appellate court vitiates the ultimate conclusion on the question whether Roori was the daughter of Gurbax Singh or not. It is further seen that Gurdip Kaur, widow of Gurbax Singh had executed a Will in respect of the entire estate in favour of the plaintiff and Roori and after the death of Gurdip Kaur a succession certificate had been issued by the civil court under the Indian Succession Act, 1925 in favour of the plaintiff and the said Roori. The said succession certificate and rights flowing therefrom cannot be ignored. Admittedly no attempt has been made by Defendants 1 to 4 to annul the succession certificate on the grounds available under the Succession Act. The Additional District Judge committed serious error of law in not considering the said Will and the succession certificate in question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District Judge is vitiated. The High Court also was in error in not examining these questions and dismissing the second appeal in limine."
(iii) 1999 (III) CTC 304 (Kammavar Sangam through its Secretary R.Krishnasamy vs. Mani Janagarajan). Certain excerpts from it would run thus:
"16. In this connection Ex.B1 assumes much importance. Long before Ex.A1, the entire property of 2.73 acres under pymash No.350 was purchased by appellant's predecessor from one Ramasamy Naicker. It also refers to 9 cents of land in the same survey number, which has been given to the local fund office. Statement in Ex.B1 is supported by Ex.B2 from which it could be seen that is inam land and all sides of 9 cents of land is covered by pymash No.350. After inam was abolished, it has been re-surveyed and it is admitted by both sides that survey number is 310/1. That could be seen from Ex.A2, also which is an extract of town survey register. In Ex.A2, area of property is mentioned as 1265 sq.metres as mentioned in schedule of properties in the plaint. When antecedent title shows that entire property in pymash No.350 belong to appellant out of which 9 cents have been given to the local fund office, it is for the plaintiff to prove that he obtained right over the property by some mode known to law. Except for producing patta or mutation entries, no evidence have been let it. As stated earlier, Ex.A1 patta only sows that patta has been changed in the name of plaintiff since property devolved on him. It therefore, follows that plaintiff cannot be ancestral title holder. When there is no evidence regarding plaintiff's predecessor had title of the property, it is for the plaintiff to prove, how he acquired the property after the death of Shanmuga Nadar, his grandfather. Reliance was only placed on Exs.A1 and A2 for the said purpose. Lower Appellate Court also found that predecessor of defendant was owner of 2 acre and 50 cents in pymash No.350. I feel that reliance placed by courts below on the patta is not correct.
20. In view of these legal position, it goes without saying that no reliance could be placed on Exs.A1 and A2. It is not the case of plaintiff that he obtained title of the property on the basis of order of the Government as an assignee of the property. His claim is based only on devolution of right ie.,derivative title . In such a case he is bond to prove the ancestral title and how the property devolved on him."
(iv) 1999 (III) CTC 650 (Guruvammal and another vs. Subbiah Naicker and others) and an excerpt from it would run thus:
"14. It is contended on behalf of the appellants that there was transfer of patta in favour of Krishnaswamy Naicker and Exs.A-64 and A-65 orders issued by the Tahsildar relating to transfer of patta would clinch the issue in favour of the appellants. There is absolutely no evidence as to how an order came to be passed by a Tahsildar with regard to transfer of patta.
22. In Sankalchan Jaychandbhai Patel and others v. Vithalbhai Jaychandbhai Patel and others, 1996 (6) SCC 433 it has been held that, it is settled law that mutation entries are only to enable the State to collect revenues from the person in possession and enjoyment of the property and that the right, title and interest as to the property should be established de hors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein.
26. Thus the position on this aspect is well settled. It has not been shown by the appellants that de hors Exs.A-64 and A-65 there is any material available to substantiate their case of partition between Krishnaswamy Naicker and Subbiah Naicker."
(v) The learned counsel for the plaintiffs also cited the decision of the Karnataka High Court in the case of Boramma vs. Srinivasa and others). An excerpt from it would run thus:
"10. Of course, the documents placed on record clearly discloses that suit properties fell to the share of defendant No.1 in the partition suit as per the compromise entered into between the parties, i.e. Defendants 1 and 2 herein. ...............
..........................................................................................Entry in a revenue record or papers by no stretch of imagination can form basis for declaration of title" .............................................................
(vi) (2008)4 MLJ 781 (Gopaliappa vs. Madanagiriappa and three others). Certain excerpts from it would run thus:
"16. Further, it is seen that even in Ex.P.1, sale deed on which heavy reliance is placed upon by the plaintiff, there is no mention that there was an oral partition in 1965 amongst the defendants, as claimed by the plaintiff. That apart, the plaintiff has not proved, by any form of evidence whatsoever, much less any clinching evidence, that the first defendant had been in separate possession of the suit property from 1965 to 1968. In the patta marked as Ex.P.4, the name of the plaintiff is not found singly, but, it is found along with the name of the defendants too. In this context, it needs to be stated that the finding of the Trial Court based on the mere fact that the plaintiff's name is found in the Ex.P.4, patta and hence, he is in separate possession of the suit does not all appear to be convincing, as found by the lower appellate Court. Though it is the strong case of the plaintiff that the second defendant has witnessed Ex.P.1, sale deed, the plaintiff has neither averred in the plaint nor stated in his evidence that the recitals of Ex.P.1 were read over to the second defendant when particularly and admittedly, all the defendants are illiterates. Furthermore, even assuming but without conceding that the second defendant had witnessed Ex.P.1, sale deed, there is no reason as to why the other defendants had not witnessed the same. Had the other defendants too witnessed Ex.P.1, sale deed, it can safely be concluded that the oral partition had taken place in the defendants' family. Thus, viewed from this perspective, it cannot be said that the defendants are barred by the principle of estoppel to question the oral partition which had been alleged to have taken place and accordingly, this Court is of the considered view that the Trial Court has miserably erred in holding that there was an oral partition amongst the defendants and that the lower appellate Court has rightly reversed the said finding rendered by the Trial Court. Thus, from this piece of conclusion alone, it can be concluded that the first defendant was not in separate possession and enjoyment of the suit property."
As such, a plain perusal of the above excerpts including the whole precedents concerned, would demonstrate and display that based on the mere revenue records serious partition suits relating to respective rights of parties of Hindu families, cannot be decided in favour of a person on the sole ground that the patta stands in the name of such person.
30. The learned counsel for the plaintiffs also correctly cited the decision of this Court reported in (2003) 3 MLJ 492 (Saroja and others vs. Chennimalai and three others). An excerpt from it would run thus:
"27. Mr.Raghavachari, learned counsel also referred to the sale deeds dated 28.10.1991 and 24.08.1994 executed by the plaintiffs in favour of third parties and submitted that in those sale deeds the plaintiffs have referred to the Will dated 28.9.1979 and claimed rights under the said will. In our view, the statement made in the two sale deeds cannot be taken advantage of by the defendants as the sale deeds were executed during the pendency of the appeal and in both the sale deeds there is a reference to the decree in O.S.No.930 of 1985, which is the subject matter of appeal before this Court."
The learned counsel for the plaintiffs also attacking the alleged oral partition would advance his argument that it is an admitted fact that as per enjoyment, the defendant is in possession of 3 acres of land more than one half of the suit properties and that itself is indicative of the fact that there was no voluntary equitable partition as alleged by the defendant.
31. The learned senior counsel for the second defendant would try to justify the factum of partition by invoking good soil and bad soil theory.
32. The discussion supra would evince that there was no evidence to prove such oral partition, which allegedly took place in the year 1964 and hence in such a case, the question of upholding the alleged oral partition/family arrangement does not arise at all.
33. Accordingly,
(i) the first substantial question of law is answered to the effect that both the courts below, their reasons apart, correctly arrived at the ultimate conclusion that the alleged oral partition was not proved.
(ii) the substantial question of law No.2 is decided to the effect that both the courts below committed serious error in applying the Hindu law to the factual situation and in wrongly holding that Ex.A1, the settlement deed is a valid one and consequently in awarding 2/3 rd share in favour of the plaintiffs and
(iii) the substantial question of law No.3 is decided to the effect that the recitals in Exs.B16 and B17 cannot be taken as sufficient evidence to prove the alleged oral partition.
34. In the result, the second appeal is partly allowed and the judgment and decree of the both the courts below shall correspondingly shall stand modified as under:
The three original co-parceners are Venkatarama Reddy, Venkata Reddy and Chenga Reddy and out of that Changa Reddy died issue less and hence by survivorship his right devolved upon Venkatarama Reddy and Venkata Reddy and their respective legal descendants are entitled to half share each by the doctrine of representation or per stirpes. Accordingly, the plaintiffs being the legal representatives/legal heirs of Venkata Reddy are entitled to one half share and the defendant being the sole widow of D1 Markandeya Reddy s/o Venkata Rama Reddy is entitled to another half share in all the suit properties. Accordingly, preliminary decree shall follow. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
vj2 To
1. The Additional District Court cum Chief Judicial Magistrate, Fast Track Court No.V Chengalpattu
2. The Subordinate Judge, Tiruvallur