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Madras High Court
Thangavelu Pillai And Purshottam … vs Doraisami Pillai And Anr. on 10 August, 1914
Equivalent citations: (1914) 27 MLJ 272
Author: S Aiyar


JUDGMENT

Sadasiva Aiyar, J.

1. The plaintiff is the appellant in both these appeals. The suit out of which Second Appeal No. 2229 arose was brought on a mortgage document executed in the plaintiff’s favour by the defendants land 2 on the 13th February 1905. The 2nd defendant is the son of 1st defendant. The lower appellate Court finds (a) that the 2nd defendant was a minor when the 1st defendant induced him to join the 1st defendant in executing the mortgage document; (b) that the mortgaged property belonged solely to the son, the 2nd defendant, on the date of the mortgage deed in 1905 as it had been gifted away by the father, the 1st defendant to the 2nd defendant under the registered gift-deed, Exhibit IV, dated 1892; and (c) that the money which formed the consideration for the mortgage Exhibit A was not borrowed for the benefit of the 2nd defendant.

2. On these findings the plaintiff’s suit was dismissed with the 2nd defendant’s costs so far as it prayed for the sale of the mortgaged property though there was a personal decree passed against the 1st defendant.

3. The only contention argued in this second appeal is that the gift-deed, dated 1892 by the 1st defendant to the 2nd defendant was not legally effective to transfer the 1st defendant’s undivided half share in the plaint properties to his only son, the 2nd defendant, and that therefore the mortgage under Ex. A affected at least the 1st defendant’s said undivided half share and that a decree ought to have been passed by the lower Courts for the sale of the said moiety. One of the grounds on which the gift-deed is attacked is that the gift was not accepted by anybody on behalf of the 2nd defendant. The district Judge clearly finds that the defendant’s witness No. 2 accepted the deed on be (sic) of the 2nd defendant and that he subsequently handed the dcument over to the 2nd defendant’s mother. This finding is supported by the evidence of the said 2nd witness which proves that he acted as the agent of the 2nd defendant’s mother and received the gift-deed from the 1st defendant on her behalf. This indicates her acceptance of the gift-deed on behalf of the 2nd defendant. The only other ground on which the gift-deed is attacked is that under the Hindu Law, an undivided co-parcener cannot validly make a gift of his share in the property so as to be binding even on himself. For this proposition reliance is placed on certain observations in Appa v. Ranga (1882) I.L.R. 6 M 71. In that case it was held on the facts appearing there in that plaintiff, a member of an undivided Hindu family, got no consideration for the agreement by which he relinquished his rights in the family property in favour of the remaining co-parceners, that his release therefore having been by an agreement without consideration was not binding upon him and that he was, notwithstanding the agreement, entitled to sue for his share in the family properties. Thus the decision turned on the sole ground that there was no consideration for the relinquishment agreement relied upon by the defence. In that same case, it is observed that if the relinquishment was. in favour of persons who stood in such a relationship with the executant that natural love and affection was evidently the motive of the transaction. (See Section 25 of the Contract Act) the relinquishment would be valid. The learned Judges in that particular case held however that the terms of the document clearly showed that natural love and affection was not the motive for the relinquishment and that therefore there was not even the consideration of natural love and affection and hence, the agreement was not valid. In the present case, the gift is made by a father to his only son and the circumstances clearly show that if the gift deed is treated as an agreement by which the father relinquished his rights in favour of his son, it would be a valid agreement supported by the consideration of natural love. It was then argued that the case in Appa v. Ranga (1882) I.L.R. 6 M 71 was really decided on the ground that a co-parcener cannot relinquish his share unless something trifling at least, was given to him as consideration. Having carefully read that judgment I do not find that the learned Judges expressed any such view. They only refer to the contention of the respondent in that case that there could be no valid partition of the property without such a trifling present because the law as laid down in Manu requires that even a co-parcener who does not desire to take a share must have something given him at the time of the partition and then the learned Judges refer to the reply of the appellant to this contention put forward on behalf of the respondents. The learned Judges nowhere state that they accept the said contention of the respondent. In Peddayya v. Ramalingam (1888) I.L.R. 11 M 406 it has been held that a co-parcener cannot only relinquish his share in faVour of all the remaining co-parceners as a body but he can do it in favour of even one of the several remaining co-parceners. The texts of Manu and Yagnavalkya which refer to the giving of some trifle to the person who so relinquished his share were not consider-ed as making the receipt of such trifle as a condition precedent to the validity of such relinquishment. In that case, two out of four co-parceners gave up their interest in favour of one of the remaining two co-parceners,merely in order to give effect to what they believed to be the wishes of their father and Muthusami Aiyar and Shephard JJ. held that such a relinquishment was perfectly valid following the decision in an unreported case (Regular Appeal No. 58 of 1884) where a gift made by an undivided son, in fulfilment of a natural obligation founded upon the consent of the father to the severance of the alienor’s interest in the co-parcenary was upheld. The reference in the texts to the giving of a trifle to the relinquishing co-parcener must be treated rather as an antiquated formality which was prescribed as conclusive evidence of the deliberate and final character of the relinquishment than as forming an indispensable condition to the validity of such a relinquishment.

4. It is only a transfer to a stranger of natural rights which carry with them obligations to third parties that could not be assigned under the law, but every man is perfectly entitled to waive or release any rights in property belonging to himself. I do not think that there is anything in the judgment in the case Appa v. Ranga (1882) I.L.R. 6 M 71 which throws doubt upon the existence of such a power of relinquishment and if there are any, those observations must be held to have been not followed in the later case in Peddayya v. Ramalingam (1888) I.L.R. 11 M 406.

5. Lastly, it is clear in the present case that the gift by the 1st defendant to his only son was part of an arrangement brought about by mediators to effect a division between the 1st defendant (who was squandering his ancestral property in evil ways) and his minor son the 2nd defendant. Though Ex. A is in form a gift it was really an allotment of the plaint properties for the son’s share, the father taking the other properties for his share which properties on the same date were conveyed by him to a friend of his in trust to discharge his debts and to repay the balance left to himself (the father); such an arrangement is clearly binding on the 1st defendant. In the result the Second Appeal No. 2229 fails and is dismissed with costs. For similar reasons Second Appeal No. 1512 is also dismissed with costs.

Napier, J.

6. I concur.


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