Bombay High Court
Vishwasrao Madhavrao Chiplunkar Since ... vs Kamlabai Vishwasrao Chiplunkar And ... on 24 July, 2003
Equivalent citations: 2004(2)MHLJ25
Author: V.C. Daga
Bench: V.C. Daga
JUDGMENT V.C. Daga, J.
1. This second appeal arises from the judgment and order dated 10th December 1991 passed by the Tenth Additional District Judge, Pune in Regular Civil Appeal No. 809 of 1987, confirming the judgment and decree dated 30th June 1987 passed by the Third Joint Civil Judge, Senior Division, Pune in Special Civil Suit No. 251 of 1985; whereby the suit filed by respondent Nos. 1 and 2 was decreed. The parties to the appeal are hereinafter referred to in their original capacity as they were arrayed in the suit.
THE FACTS
2. The facts necessary to appreciate real controversy may be stated briefly.
The plaintiff No. 1 is a legally wedded wife and plaintiff No. 2 is a legitimate son of plaintiff No. 1 and Shri Vishwasrao Chiplunkar. Both of them filed a suit, being Special Civil Suit No. 251 of 1985 to seek declaration that the gift deed dated 6th July 1984 executed by Shri Vishwasrao, defendant No. 1 in favour of his second wife Smt. Hirabai, defendant No. 2 is illegal, null and void with further declaration that plaintiff Nos. 1 and 2 had 2/3rd and l/3rd shares respectively; in the suit property and thereby they became full owners thereof, as such defendant No. 1 Vishwasrao had no right, title and interest muchless transferable interest in the suit property so as to transfer suit property or part thereof by gift in favour of Smt. Hirabai. Thus gift deed did not create any interest, in the suit property, in favour of Smt. Hirabai (defendant No. 2).
The gift deed was also challenged on the ground that defendant No. 1 Vishwasrao had no authority to gift coparcenary property in favour of Hirabai without prior knowledge and consent of the plaintiffs. In addition to the decree of declaration, a decree for permanent injunction was also sought against defendants restraining them from interfering with the possession of the plaintiffs over the suit property with further direction directing them not to deal with it in any manner whatsoever.
3. The plaint allegations are as under:--
Plaintiff No. 1 Smt. Kamlabai is a legally wedded wife of defendant No. 1 Vishwasrao; whereas plaintiff No. 2 Ranjit is a son of plaintiff No. 1 and defendant No. 1. The alleged marriage of defendant No. I with defendant No. 2 Smt. Hirabai is bad and illegal being hit by the provisions of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946.
4. The suit property described in the plaint is a property bearing CTS No. 424 situated at Somwar Peth, Pune. The plaintiffs claimed that the said suit property is an ancestral property of defendant No. 1. Both plaintiffs claimed undivided shares in the said property. According to them, the suit property being joint family property; Vishwasrao, Ranjit and Kamlabai (being mother of Ranjit.) all of them had 1/3rd share each in the suit property.
5. The plaint also makes out a case that defendant No. 2, Smt. Hirabai not being a legally wedded wife of defendant No. 1, has no right, title and interest in the ancestral property.
6. The genealogy emerging from the plaint allegations is as under:
VISHWASRAO _______________|__________________________ | | KAMALABAI HIRABAI (first wife) (second wife) | | RANJIT _______________________|_________ (son) | | | DILIP SURYAKANT NILIMA (son) (son) (daughter)
7. The plaint further makes out a case that on 11th November, 1974 defendant No. 1 had executed Release Deed in favour of Kamlabai, plaintiff No. 1 by which defendant No. 1, Vishwasrao had released his 1/3rd share in the suit property in her favour which, according to her, resulted in increasing her share from 1/3 to 2/3 in the suit property. Thus, Kamlabai, the plaintiff No. 1 claimed 2/3rd share whereas Ranjit claimed 1/3rd share and thereby both claimed full ownership to the suit property. Both the plaintiffs claiming to be the full owners of the suit property pleaded that Vishwasrao had no right, title and interest in the suit property. He had lost interest in the suit property with the execution of the release deed dated 11th November, 1974, as such transfer of interest in the suit property by him in favour of anybody muchless Smt. Hirabai (defendant No. 2) was not legal and valid.
8. On being summoned, the defendants appeared and filed their joint written statement. Defendant No. 1 Vishwasrao and defendant No. 2 Smt. Hirabai both tried to contend that their marriage being prior to 1956 was a legal and valid marriage. That the claim of the plaintiffs is not bona fide and absolutely untenable in the eye of law. That the suit property was self-acquired property of Vishwasrao. None of the plaintiffs, muchless Ranjit or Smt. Kamlabai, had any interest in the suit property. That there was no partition of the suit property at any time. The defendants have three issues by names Dilip, Suryakant and Nilima from their wedlock. All of them are residing together in the suit property. That the release deed dated 11th November, 1974 by defendant No. 1 Vishwasrao in favour of plaintiff No. 1 Smt. Kamlabai was denied. In defence, it was pleaded that the gift deed dated 6th July, 1984 executed by defendant No. 1 in favour of defendant No. 2, Smt. Hirabai with delivery of possession was legal valid and binding on the plaintiffs and that the plaintiffs had no right to take objection to the mutation entry in the name of defendant No. 2 recorded in the record of city survey.
9. With the aforesaid rival pleadings of the parties issues were framed at Exh.23 by the trial Court. The suit was put on trial. The respective rival parities were permitted to lead their rival evidence. The trial Court, after appreciating the evidence and submissions advanced by the parties, was pleased to hold that the suit property being the property of joint Hindu family consisting of defendant No. 1 Vishwasrao, plaintiff No. 1 Smt. Kamlabai and plaintiff No. 2 Ranjit all of them had 1/3rd share each in the suit property. The trial Court was further pleased to hold that 1/3rd undivided share of defendant No. 1 having been released by him in favour of plaintiff No. 1 her share became 2/3, as such defendant No. 1 was left with no right, title and interest in the suit property. The gift deed dated 6th July, 1984 executed by defendant No. 1 in favour of defendant No. 2 was, therefore, not legal and valid. The trial Court with the above findings decreed the suit. The defendants were restrained from dealing with the suit property and collecting rent from the tenants.
10. Being aggrieved by the aforesaid judgment and decree passed by the trial Court, the defendants filed appeal under Section 96 of the Code of Civil Procedure, 1908 ("C.P.C." for short) before the District Court, Pune being Regular Civil Appeal No. 809 of 1987.
11. Defendant No. 1 Vishwasrao, during pendency of the appeal, expired leaving behind plaintiffs, defendant No. 2 Smt. Hirabai her two sons and a daughter, namely, Dilip and Suryakant and Nilima. Since they were not parties to the appeal, they were brought on record as legal heirs of defendant No. 1, Vishwasrao.
12. The aforesaid appeal came to be allotted to the file of 10th Additional District Judge, Pune who by his judgment and order dated 10th November 1991, was pleased to confirm the judgment and decree passed by the trial Court, with the result, appeal preferred by the defendants came to be dismissed. The lower appellate Court was pleased to hold that the suit property was a joint family property of the joint Hindu family; consisting of plaintiffs and defendant No. 1 Vishwasrao, who was the Karta of the said joint family. The lower appellate Court vide its judgment and order dated 10th November 1991 was pleased to confirm all the findings recorded by the trial Court.
13. Being aggrieved by the judgment and decree passed by the trial Court and confirmed by the lower appellate Court, appellants preferred this appeal under Sections 100 of Civil Procedure Code to contend that the approach adopted by the Courts below being perverse, illegal, the appeal is liable to be allowed.
The submissions
14. At the outset, Mr. P. B. Shah, learned counsel appearing for appellants contended that both the Courts below were wrong in applying the rule of blending. He submits that the rule of blending inevitably postulates that the owner of the separate property should be a coparcener, who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. He further submits that the conduct on which the plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property.
15. Mr. Shah submits that there is no material on record to infer that Vishwasrao had any coparcenary property prior to blending his property in the joint stock, as such the doctrine of blending could not have been invoked by the Courts below. He, therefore, submits that the findings recorded by both the Courts, below holding that the suit property was a joint family property; of the family consisting of plaintiffs and defendant No. 1 late Vishwasrao cannot be said to be a legal finding. He placed reliance on the judgment of the Apex Court in the case of Mallesappa v. Mallappa, in support of his contention.
16. Learned counsel for the appellants further submits that the marriage of defendant No. 1, Vishwasrao with defendant No. 2, Smt. Hirabai being prior to 1956 cannot be said to be illegal marriage. He sought to contend that both of them lived together as husband and wife for a considerable long time. This wedlock has given birth to three issues. All of them lived together. It was thus not open for the Courts below to reach to the conclusion that the marriage between Vishwasrao and Smt. Hirabai was not legal and valid and that their sons and daughter were not legitimate issues.
17. Alternatively, he submits, assuming but not admitting that the suit property was ancestral property of Vishwasrao even then, in absence of factual partition or demand thereof, plaintiff No. 1, Smt. Kamlabai had no share in the suit property. She was entitled to a share only upon partition between the coparceners or in the event of any demand for partition by any of the coparceners. Smt. Kamlabai, as such, had no interest in the suit property; so as to claim 1/3rd share therein. He, thus, submits that assumption of both the Courts below that Smt. Kamlabai had 1/3rd undivided share in the suit property was misplaced.
18. Mr. Shah further submits that even if property of Vishwasrao was held to be ancestral property, in that event, Vishwasrao and Ranjit could only be said to be the persons having interest in the property in the ratio of 50:50. On this premise, he further builds up his submission to urge that the release deed dated 11th November 1974 had an effect of transferring 1/3rd share in favour of Smt. Kamlabai, from and out of 1/2 share of Vishwasrao, which upon calculation resulted in creating 1/6th share in favour of Kamlabai in the suit property leaving 1/6th share with Vishwasrao. Mr. Shah, upon such calculations, further urged that Vishwasrao was thus very much entitled to gift his remaining l/6th share in favour of Smt. Hirabai. That is how Mr. Shah tried to establish legality of the gift deed dated 6th July 1984 executed by Vishwasrao in favour of Smt. Hirabai.
19. Alternatively, Mr. Shah further urged that even if the gift deed is held to be bad and illegal, in that event, upon death of Vishwasrao, his 1/6th share will be inherited by all his legal heirs which shall include present appellants excluding Smt. Hirabai. He, thus, contends that the entire approach adopted by both the Courts below is liable to be viewed as perverse and their judgments are liable to be quashed and set aside and respective rights of the parties are required, to be recognised in accordance with law.
20. Per contra. Mr. Apte, learned senior counsel appearing for the respondents contended that Smt. Kamlabai being the member of HUF had 1/3rd share in the suit property being mother of Ranjit, as such both the Courts below were perfectly right in holding that Vishwasrao, Smt. Kamlabai and Ranjit each of them had 1/3rd share in the HUF property. He further submitted that Vishwasrao, having transferred his entire 1/3rd share in favour of Smt. Kamlabai by executing release deed dated 11th November, 1974, he was left with no interest in the suit property. He, therefore, could not have transferred any interest in the suit property in favour of Smt. Hirabai by any instrument muchless by executing gift deed dated 6th July 1984.
21. Apart from the above submissions alternatively, learned counsel for the respondents further contended that the gift deed executed in favour of Smt. Hirabai could not be said to be legal and valid instrument in absence of consent of other coparcener viz. Ranjit. He thus contends that the gift deed is illegal for want of consent of Ranjit.
22. Mr. Apte also contended that the pleadings sought to be raised before this Court with respect to the nature of the property were never raised before either of the Courts below. He, therefore, submits that this Court, for the first time should not permit the appellants to raise this new contention for which there is no foundation on record. He further submits that the plaintiffs had no opportunity to meet this defence sought to be canvassed before this Court for the first time. He also urged that having recorded concurrent findings of fact by the Courts below that Vishwasrao had thrown his property in common stock and both the Courts below having declared that the suit property is a joint family property, it would not be open for this Court to disturb the said finding of fact. He, thus, submitted that the appeal be dismissed holding it to be without any substance.
Scope of Appeal
23. The jurisdiction of the High Court under Section 100 of Civil Procedure Code is very peculiar. It is neither as wide as under Section 96 (Appeals) nor as restricted as under Section 115 (Revision). The effect of Sections 100 and 101 read together is that a second appeal is competent only on the ground of an error on a question of law or procedure and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or unexcusable the error may seem to be. The scope of second appellate Court is very limited and the second appellate Court is expected to confine itself within the points of law involved. The second appellate Court is not expected to intrude into the question of fact. The existence of a "substantial question of law", is the sine qua non for the exercise of jurisdiction by the High Court under the amended provisions of Section 100 of Civil Procedure Code. The High Court can exercise its jurisdiction under Section 100 only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law (see Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, ).
24. While as a normal rule the finding of fact recorded by the lower appellate Court, even if the appreciation of evidence made by it is patently erroneous and the finding recorded in consequence is grossly erroneous, has to be accepted in a second appeal. The High Court where it is not satisfied that the lower appellate Court has ignored the weight of evidence on record altogether, it would not be justified in reappraising the evidence and giving its own conclusion. It is also well settled that in second appeal the High Court should not substitute the findings of the Court below with its own findings unless there is considerable material evidence.
25. It is also well settled that the High Court is not expected to entertain a new plea which was not raised in either of the Courts below, either in the plaint or in the written statement and in respect of which no issue was framed as held by the Apex Court in the case of Santosh Hazari v. Purshottam Tiwari, 2001(2) Mh.L.J. (SC) 786 : AIR 2001 SC 965. Where a point of law has not been pleaded or is found to be arising between the parties in absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal.
26. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. The High Court cannot interfere in second appeal with the findings of fact given by the first appellate Court based on appreciation of relevant evidence. As already stated hereinabove, the High Court has no jurisdiction to give a finding on an issue which was not present in the trial Court (see Babu Ram alias Durga v. Indra Pal Singh, ).
CONSIDERATION
27. With the aforesaid contours of the jurisdiction of this Court, if one turns to the submissions and questions raised by Mr. Shah, learned counsel for the appellants, it is not possible to go into the question as to whether or not the suit property was joint family property. The said question was never raised before either of the Courts below. None of the parties made any pleadings in this behalf. Neither party had availed any opportunity to place adequate material before the Court with respect to the plea sought to be raised for debate by Mr. Shah. It is no doubt true that the rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. It is also true that this doctrine inevitably postulates that the person who has an interest in the coparcenary property, if owns a separate property, then, he can blend his separate property with the coparcenary property, if he so desires. Such blending can be accepted subject to establishment of fact in this behalf. The question sought to be raised in this behalf by Mr. Shah, essentially, turns on the investigation of the facts as to whether or not Mr. Vishwasrao had coparcenary property so as to enable him to blend his self-acquired property with that of HUF property. This factual issue was never raised before either of the Courts below. It is, therefore, not possible for this Court to go into the issue sought to be raised by Mr. Shah at this belated stage of the litigation.
28. Having heard the parties and having examined the evidence available on record, no fault can be found with the findings of fact recorded by the Courts below that the suit property is a joint family property of the family consisting deceased Vishwasrao his wife Smt. Kamlabai and son Ranjit. Both the parties proceeded on the assumption that joint family property was available and Vishwasrao had thrown his interest in the self-acquired property in a common stock, as such entire property assumed colour of HUF property. If this was the basis of the understanding of the parties and parties went to trial on the basis of this understanding, then, I do not think the said finding recorded by both the Courts below can be set aside in second appeal. I, therefore, confirm the finding recorded by both the Courts below that the entire property was property owned by the joint Hindu family of which Vishwasrao was the Karta.
29. It is not in dispute that Vishwasrao and Smt. Hirabai were living together for long years as husband and wife treating themselves as legally wedded couple. It is also not in dispute that this wedlock has given birth to three issues, viz. Dilip, Suryakant and Nilima. Vishwasrao has admitted his marriage with Smt. Hirabai. It is not in dispute that Vishwasrao never disowned Dilip, Suryakant and Nilima as his children. Under these circumstances, it cannot be denied that Vishwasrao was the father of Dilip, Suryakant and Nilima whose mother is Smt. Hirabai. Though the marriage of Vishwasrao with Smt. Hirabai was prior to 1956, even then, the said marriage being hit by the provisions of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, cannot be said to be legal marriage. Consequently, the said marriage of Vishwasrao with Smt. Hirabai was rightly held to be a marriage not recognised by law. In the circumstances, the children born to Vishwasrao and Smt. Hirabai will have to be treated as illegitimate.
30. In the above premises, now it is necessary to address on the issue of validity of two documents executed by Vishwasrao viz. release deed dated 11th November, 1974 in favour of Smt. Kamlabai and gift deed dated 6th July, 1984 in favour of Smt. Hirabai and effect thereof on the HUF property.
31. So far as release deed in favour of Smt. Kamlabai is concerned, the said document is a registered document. It is prior in point of time vis-a-vis gift deed in favour of Smt. Hirabai. One of the substantial questions of law sought to be raised in this appeal at the time of admission relates to absence of registration of the release deed under Section 17(1)(b) of the Indian Registration Act. But having examined the said document, I do not find any fault with the registration thereof. In the circumstance, the release deed will have to be treated as legally executed document by Vishwasrao in favour of Smt. Kamlabai.
32. If the above release deed is held to be a legal and valid document, then, the next question which needs consideration is : what is the effect of this document of release on the status of joint family property. Whether not it has caused severance of joint status. If yes, then the next question would be: to what extent it has created interest of the respective members of the joint Hindu family in the suit property.
33. Now, let me turn to examine the first question what is effect of release deed and whether or not it has caused severance of joint family. In order to answer these questions, one has to find out how severance of status of joint family takes place. Under Mitakshara school, severance of status is the first step towards partition. Severance of status is a matter of individual volition on the part of coparceners. Whenever a coparcener expresses a definite and unequivocal intention to partition, severance of status takes place as ruled by the Supreme Court in the case of Kalyani v. Narayan, .
34. The next incidental question which needs consideration is: how expression of intention should be. What is necessary to bring about a severance is a clear and unequivocal expression, by words or conduct, of an intention to partition. Once members of the joint family agree or express an intention to partition, severance of status takes place. The law in this respect is well-settled as back as in the year 1922 by virtue of the judgment of the Privy Council in Syed v. Jorawar, AIR 1922 PC 353; wherein it has been observed as under :--
"It is a settled law that ........ a severance of estate is effect on an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place ........."
In Raghvamma v. Chenchamma, AIR 1964 SC 130, the Supreme Court said that there must be an intimation, indication or representation of an intention to partition, though in what form the manifestation of an intention should be will depend upon the circumstances of each case. However, the expression of intention must be a conscious and informed act; sham documents, or even statements and admissions serving a genuine purpose, but made in ignorance of correct position of law, may not be a satisfactory evidence of severance. Mere separation from commonness does not necessarily amount to severance of status if unaccompanied by unequivocal declaration of intention to partition. Severance does indeed also result by the mere declaration.
35. The effect of severance of status is that the coparceners stand in severality. Their interest get demarcated. The survivorship is arrested. No longer can the coparcener take the interest of other coparceners by survivorship. In other words, the property ceases to be joint and immediately shares are defined and thereafter parties hold the property as tenants-in-common.
36. In Kalyani v. Narayan (cited supra), the Supreme Court reviewed the entire case law on the subject and reiterated that once severance of status takes place the Karta cannot alienate joint family property even for a valid purpose for which he could have alienated, had the partition not taken place. If a severed coparcener dies, then his interest will devolve on his heirs by succession.
37. Now, let me turn to examine whether or not in the facts and circumstances of the present case the severance of status of joint family has taken place, keeping the aforesaid well-settled principles in mind. On the facts of this case, it is clear that Vishwasrao has executed registered release deed dated 11th November, 1974 in favour of his wife Smt. Kamlabai. It is further clear from the recitals of this release deed that Vishwasrao transferred demarcated share in favour of Smt. Kamlabai by carving out or demarcating his own share in the suit property. Now the question is; can this document be said to be a document effecting severance of status of the joint family. Can it be said to be expression of intention to bring about the severance in clear and unequivocal terms? The Apex Court in the case of Raghvamma v. Chenchamma (cited supra), while considering the effect of the Will executed in that case held that the Will had effect of severance of status of joint family and ruled that the member of the joint Hindu family can bring about the separation in status by definite and unequivocal declaration of his intention to separate himself from his family and enjoy his share in severally by expressing such intention even in the Will.
38. Now, let me turn to find out whether or not by executing release deed Vishwasrao has expressed an unequivocal intention to separate himself from his family by defining or carving out his own share in the joint family property. A perusal of the release deed does indicate unmistakable intention of Vishwasrao to carve out, demarcate and separate his own share from the other member of the joint family. If that be so, in my view, the document of release deed executed by Vishwasrao had an effect of bringing about the severance of status of the joint family. In other words, the intention expressed therein was sufficient to bring about the severance of the joint family in clear and unequivocal terms. In the result, survivorship got arrested. Interests of the members of the HUF got demarcated which, in my view, amounted to partition of the property in the eye of law.
39. Prima facie, the document is a best expression of intention to bring about severance of status. Partition is nothing but a severance of joint status. As seen hereinabove, partition can be made by definite, unambiguous declaration of intention to separate himself from the family. If this is done, it amounts to division of status. Thus, having regard to the facts and circumstances of the case at hand, the joint status of the family came to an end and resulted in severance of status. The moment Vishwasrao released demarcated share from and out of his own share in favour of his wife Smt. Kamlabai, it resulted in severance of joint status and she became entitled to 1/3rd share in the HUF property in her own rights being a mother of Ranjit. If that be so, the interest of Vishwasrao in the HUF property was only to the extent of 1/3 share. If Vishwasrao had 1/3rd undivided share in the property upon severance of status of joint family and if that share was transferred in favour of Smt. Kamlabai by executing release deed in her favour, then Vishwasrao was left with no interest or share in the property. If that be so, nothing was left with him for being transferred by gift deed in favour of Smt. Hirabai. Therefore, gift deed executed in favour of Smt. Hirabai cannot be said to be a legal and valid transfer. With execution of the release deed, Shri Vishwasrao had divested all his right, title and interest in the suit property in favour of Smt. Kamlabai and was left with no interest therein. He, therefore, could not have transferred any part of the suit property or interest therein in favour of Smt. Hirabai in any manner whatsoever muchless by executing gift deed. The gift deed elated 6th July, 1984 in favour of Smt. Hirabai, in the facts and circumstances of this case, has to be treated as illegal document on this count.
40. Apart from the above, even otherwise, the gift deed in favour of Smt. Hirabai cannot be said to be a legal and valid document. Assuming for the sake of argument that Vishwasrao could have transferred his interest in the property by executing the gift deed in favour of Smt. Hirabai, but the same could not have been done by him without prior consent of other coparcener. 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 all other coparceners. Such a gift deed is quite legal and valid. The prohibition against making of gifts by coparcener of his undivided share in the coparcenary continues even after the enactment of Hindu Succession Act and he can make such gifts either to another coparcener or to a stranger only with the prior consent of all other coparceners. In the present case, Ranjit was one of the coparceners. Shri Vishwasrao was a member of the family along with Ranjit, as such in absence of consent of Ranjit i.e. other coparcener he could not have executed the gift deed in favour of Smt. Hirabai. In this behalf, it would not be out of place to refer to the readily available judgment of the Apex Court in the case of Thamma Venkata Subbamma (dead) by L.R. v. Thamma Rattamma, ; wherein the Apex Court laid down :--
"17. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid.
18......... 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 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."
41. Factually, there is no consent of Ranjit who was a coparcener. A gift made by Vishwasrao in favour of Smt. Hirabai of his undivided interest in the coparcenary property was not with the consent of Ranjit. Therefore, it was rightly held by the Courts below that the gift deed dated 6th July 1984 executed by Vishwasrao in favour of Smt. Hirabai was bad and illegal and that she did not get any right, title and interest in the suit property.
42. The trial Court in view of the above was pleased to decree the suit and the same was confirmed by the lower appellate Court. This Court on consideration of the facts and circumstances of the case and the law referred to hereinabove is not in a position to reach to any other different or contrary conclusion other than the conclusions reached by both the Courts below, may be for the reasons recorded hereinabove; which are little different than the reasons recorded by both the Courts below. At any rate, in ultimate result the present appellants cannot succeed. The appeal, therefore, has to be dismissed. Accordingly, in the result, appeal stands dismissed for the reasons recorded herein with no order as to costs.