JUDGMENT
Jagat Narayan, C.J.
1. This is a petition under Article 226 of the Constitution by the defendants in a suit for partition of agricultural lands and some other reliefs against the judgment of the Board of Revenue.
2. The agricultural lands were owned by one Narain the common ancestor of the plaintiffs and the defendants. Narain had 5 sons Onkarlal, Kanhaiya Lal, Moti Lal, Chuni Lal and Chhoga Lal. The branches of Kanhaiya Lal and Chuni Lal have admittedly become extinct. Onkar Lal had two sons Radha Vallabh and Gopi Vallabh. The plaintiffs are the sons of Gopi Vallabh. Defendants Nos. 1 and 2 are the sons of Radha Vallabh. Defendants Nos. 9 and 6 are sons of Defendant No. 2. Defendant No. 7 is the son of Defendant No. 9. Defendant No. 3 is the son of Moti Lal and Defendant No. 8 is the son of Defendant No. 3. The plaintiffs alleged in the alternative that Gopi Vallabh was adopted by Chhoga Lal’s widow Smt. Vedi Devi. If the adoption is proved the share of the plaintiffs would be one-third in the property in suit. If it is not proved then their share would be one-fourth.
3. The suit was resisted inter alia on the ground that Gopi Vallabh had renounced his share in the coparcenary property and his sons consequently could claim no share in it. This ground prevailed with the Assistant Collector and the Revenue Appellate Authority and they dismissed the suit of the plaintiffs altogether. The Board of Revenue however held that the renunciation of his share by Gopi Vallabh did not deprive his sons Krishna Vallabh and Krishna Gopal of a share in the joint family property as they continued to remain coparceners. On this finding the Board of Revenue remanded the suit for disposal in accordance with law to the Court or the Assistant Collector.
4. The finding of the Board of Revenue has been challenged before us. Having heard the learned counsel for the parties we are of the opinion that the finding is correct. Article 264 of Mulla’s Hindu Law. Thirteenth Edition, runs as follows:–
“Renunciation by coparcener of his share.– A coparcener may renounce his interest in the coparcenery property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. Reference may be made to Article 328(6).”
Article 328(6) referred to in the above article is is the following words:–
“A renunciation by a member of his interest in the family property stands on a different footing altogether from the case where one member receives his share in the property and separates from the other members. In the former case, the other members continue joint as before. The effect of renunciation is to reduce the number of persons to whom shares would be allotted if and when a division of the estate takes place.”
In the present case Gopi Vallabh did not separate from the joint family at the time of his renunciation. He continued to be a member of it. The result was that although he renounced his share he did not deprive his sons of a share in the joint family property. Even his after-born sons were members of the coparcenery and are entitled to claim a share out of the ancestral joint family property.
5. In Derrett’s Introduction to Modern Hindu Law, 1963 Edition, the law is stated in Article 537 at page 330 in the following words:–
“When a partition is contemplated a participant, whilst accepting his separation from the others, may renounce his share, thereby extinguishing his interest in the property under partition. He may renounce only his own share. In such cases the shares of the remaining coparceners will certainly be increased. If a father renounces and then, even after partition, a son is
conceived to him, the son is entitled to call upon his brothers for a share notwithstanding his father’s ill-considered renunciation. Renunciation is not a contractual act, but a step in the nature of self-effacement. It may either operate to separate the renouncing member (as we have seen) or it may operate merely to renounce a share at a particular partition, reserving to him the right to remain joint in all other respects. If such a member wishes to forgo a share on a subsequent partition between himself and other members of the joint family who did not participate at the previous partition (for example, if they were not then born), he must renounce once again.”
We are accordingly of the opinion that the decision of the Board of Revenue is correct and dismiss the writ petition with costs.
