This second appeal is preferred against the judgment and decree, dated 25.4.1989, in A.S.No.94 of 1987 passed by the Subordinate Judge, Tindivanam. The plaintiffs are the appellants in this second appeal.

2. Briefly, the case of the plaintiffs is thus. The suit properties belong to the joint family consisting of three brothers, namely, Abimanna Gounder, Subburaya Gounder and Chinnaraju Gounder and all of them died. The plaintiffs are the sons of Abimanna Gounder. Defendant is the only son of Chinnaraju Gounder. Subbaraya Gounder had no male issues. The first item of the suit property is ancestral and the second item has been purchased by the plaintiffs father Abimanna Gounder as manager of the joint family. Both the items are enjoyed commonly as a single item, consisting of a country tiled house and thottam. The plaintiffs have 1/3rd undivided share in the suit items. Besides, the 1/3rd share belong to Subbaraya Gounder has been gifted to plaintiffs by his legal representatives under Settlement Deeds, dated 1.3.1980 and 6.4.1981. The settlement has been duly accepted and thus the plaintiffs are entitled to 2/3rd share in the suit items and the remaining 1/3rd belong to the defendant. The defendant started giving trouble to the plaintiffs and he is making arrangements from 6.8.1983 to make changes in the physical features of the suit properties. The plaintiffs suggested partition and separate possession, but the defendant did not come forward. It is no longer possible for the plaintiffs to have joint ownership of the suit items along with the defendant and the suit is filed to effect partition of the suit items and for allotment of 2/3rd share to the plaintiffs with future mesne profits.

3.The defendant in his written statement contended as follows. It is true that item No.1 was the ancestral property and item No.2 was purchased for the benefit of the joint family. The averment in the plaint that 1/3rd share of Subburaya Gounder was gifted by his legal representatives to the plaintiffs under two registered settlement deeds, dated 1.3.1980 and 6.4.1981 is denied. The truth, due execution and attestation of the settlement deeds are denied. The settlement deeds were never accepted and acted upon. The settlors have no right or interest in the suit properties and they cannot convey the alleged share of Subburaya Gounder. The plaintiffs cannot derive right under settlement deeds. The defendant and his father have been in exclusive possession and enjoyment of the portions MAK and DKLM, the room on the northern side of it. There was no objection on the side of the plaintiffs for the enjoyment of the defendant and his father. The defendant and his ancestors prescribed title to the western portion of the house by ouster also. The plaintiffs, even if they had any title, it was extinguished by non-user for more than the statutory period. There was dispute among the plaintiffs and the defendant in respect of enjoyment of the house and it ended in criminal cases. Panchayatdars, namely, Chinnaraj Pillai, Munuswamy Gounder, Manicka Gounder and Periaswamy Naicker intervened to settle the dispute and it was agreed in the panchayat that the defendant should take the room DKLM in the Commissioners Report and also the room on the north of it along with the portions on the eastern and western sides of the two rooms exclusively and the defendant should lay a wall along the wall of northern room and also provide entrance and he should pay the plaintiffs a sum of Rs.150/-. It was decided and agreed that the plaintiffs should take the rearing northern portion with the existing entrances and they should receive Rs.150/- from the defendant. The parties accepted and consented to the decision of the panchayatdars. The plaintiffs received a sum of Rs.150/- in the presence of panchayatdars and hence it is not open to them to allege that the suit properties continued to be joint. The defendant has been in possession and enjoyment of the western portion along with the vacant site. Defendant has not done anything to alter the structure or physical features of the suit properties. The plaintiffs are not entitled to claim partition as they have been in enjoyment of separate and distinct portions.

4. On the above pleadings, the trial court framed five issues and on a consideration of oral and documentary evidence, concluded that there was no partition of the suit properties as alleged by the defendant and the settlement deeds, dated 1.3.1980 and 6.4.1981 are valid and had been acted upon and granted a preliminary decree for partition and possession of 2/3rd share in the suit properties to the plaintiff. Aggrieved by the same, the defendant preferred appeal in A.S.No.94 of 1987 to the Court of Subordinate Judge, Tindivanam and the learned Subordinate Judge held that the suit properties were already partitioned and the plaintiffs are not entitled to the relief asked for in the suit and allowed the appeal accordingly. Aggrieved by the judgment and decree of the lower appellate Court, the plaintiffs have preferred the present second appeal. In this judgment, for the sake of convenience, the parties are described as arrayed in the suit.

5. The following substantial questions of law have been framed by this Court in the second appeal.

"1.Whether the lower appellate Court overlooked the legal position that there is always a presumption regarding continuance of the joint family and it is for the defendant to make out and prove the same.

2.Whether the lower appellate court overlooked the impact of the Hindu Succession Act regarding the right of Muthulakshmi Ammal."

6. The suit property consists of two items. The first item comprises a land measuring 15 cents together with a country tiled house described by boundaries. The second item comprises of land measuring East-West 99 and South-North 37 out of 24.56 acres described by boundaries. It is not disputed that item No.1 of the suit property is ancestral and it belong to the joint family consisting of three brothers, namely, Abimanna Gounder, Subburaya Gounder and Chinnaraju Gounder and all the brothers died. Plaintiffs are the sons of Abimanna Gounder and the defendant is the only son of Chinnaraju Gounder. The deceased Subburaya Gounder had no male issues and his wife is Muthulakshmiammal. The second item of the suit property was purchased by the father of the plaintiffs, namely, Abimanna Gounder, as Manager of the joint family and it is admitted that both the suit items are clubbed as one single item and is being enjoyed commonly by the plaintiffs and the defendant.

7. According to the plaintiffs, they are entitled to undivided 1/3rd share in the suit items which belonged to their father Abimanna Gounder and the other undivided 1/3rd share which belonged to Subburaya Gounder has been gifted to them by his legal representatives under two registered settlement deeds, dated 1.3.1980 and 6.4.1981 and they have accepted the same and hence they are totally entitled to 2/3rd share in the suit items and the remaining 1/3rd share belonged to the defendant. The defendant disputes the settlement deeds, dated 1.3.1980 and 6.4.1981 and contends that the settlors had no right or interest in the suit items and hence they could not have conveyed any share to the plaintiffs. It is the further case of the defendant that he and his father have been in exclusive possession and enjoyment of specific portions and the dispute with regard to enjoyment of the house was resolved in a panchayat by panchayatdars, namely, Chinnaraj Pillai, Munuswamy Gounder, Manicka Gounder and Periaswamy Naicker and as per the decision in the panchayat, the defendant took the room shown as DKLM in the Commissioners report and the northern side room along with the portions on eastern and western sides of both the rooms exclusively and they have laid a wall of northern room in the common way and provided separate entrance and also paid a sum of Rs.150/- to the plaintiffs as agreed upon in the presence of panchayatdars. In short, the defendant contended that there was a division in panchayat, as a result of which, both the parties are in possession and enjoyment of the portions divided.

8. It has to be seen as to whether the suit items were already partitioned as stated by the defendant. Defendant examined himself as D.W.1 and has examined one more witness on his side. For the first time in the chief examination, D.W.1, the defendant, has stated that there was a partition between his father and his brothers. During cross examination, he has stated that partition happened 38 years ago and he did not know it personally and there is no document evidencing partition. He has admitted that he has not mentioned about that partition in his written statement. Hence the alleged partition spoken by the defendant is not true. Both in the written statement and in the oral testimony, the defendant has stated that there was a panchayat with regard to the enjoyment of the house and the panchayatdars were Chinnaraj Pillai, Manicka Gounder, Munuswamy Gounder and Periyaswamy Naicker and in the panchayat, the house was divided between the plaintiffs and the defendant. None of the alleged panchayatdars named by the defendant was examined by him in the suit to substantiate his contention. The testimony of D.W.2 does not in any way advance the case of the defendant. The defendant has not substantiated his contention that the suit properties were partitioned earlier.

9. The lower appellate court has observed in the judgment that P.W.1, namely, the second plaintiff, has admitted in his examination that the suit properties were earlier partitioned and the plaintiffs and defendant were residing in the portions allotted to them and hence it is clear that there was earlier partition. The counsel for the appellants vehemently contends that there was no such admission made by P.W.1 in the box and the finding of the lower appellate court is palpably wrong and without any basis. A reading of the testimony of P.W.1 shows that only a suggestion has been put to him regarding the alleged partition and he has denied the same. In such circumstances, the conclusion of the lower appellate court in this regard is erroneous. The lower appellate court has further relied on Exs.B-3 to B-7 for accepting the case of the defendant. Exs.B-3 to B-5 are the house tax receipts standing in the name of Chinnaraju. Ex.B-6 is the house tax receipt standing in the name of defendant. Ex.B-7 is the extract of house tax demand register maintained by the village panchayat. Based on Exs.B-3 to B-8, the lower appellate court has concluded that there was earlier partition and the parties are in enjoyment of separate properties. It has to be borne in mind that the case of the plaintiffs itself is that the suit properties are enjoyed by them and the defendant in common and parties are residing in separate portions therein. Exs.B-3 to B-6 may show that the parties are in enjoyment of separate portions of the suit properties, but they do not prove partition. Exs.C-1 and C-2 are the report and plan of the Commissioner, who was examined as P.W.2. The Commissioner has only spoken about the enjoyment of the properties by the parties. As already seen, there is no dispute with regard to common enjoyment of the properties. The defendant has not substantiated his contention that there was earlier partition of the suit properties. Hence it can be safely concluded that the suit properties are undivided properties belonging to the joint family and if that be so, the plaintiffs are entitled to undivided 1/3rd share which belonged to their father.

10. The other contention raised by the defendant is that Exs.A-2 and A-3 settlement deeds are not valid and the settlors could not have conveyed any share to the plaintiffs. Exs.A-2 and A-3 are the registered settlement deeds executed by Muthulakshmiammal and others settling the 1/3rd undivided share of the suit properties in favour of the plaintiffs. It is not disputed that Subbaraya Gounder died without leaving male issues and Muthulakshmiammal is his widow. P.W.2 has attested both Exs.A-2 and A-3 settlement deeds and according to him, Muthulakshmiammal signed in those deeds in his presence and he also signed in them in her presence. P.W.3 is the other attestor to Ex.A-2 settlement deed.

11. The learned counsel for the respondent Mr.V.Raghavachari contended that even though Muthulakshmiammal inherited 1/3rd undivided share of her husband on the date of his death as per Section 6 of Hindu Succession Act and though her share gets fixed, she cannot be treated as having ceased to be a member of the family without her volition and notwithstanding the death of her husband, the remaining members of the family continued to hold the family properties together though the individual interest of the female member, namely, Muthulakshmiammal, had become fixed and Muthlakshmiammal cannot make a gift of her undivided interest in the family property to another coparcener without the prior consent of other coparceners and he relied on the following decisions in this regard.

(1) In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and others ((1985) 2 SCC 321 [LQ/SC/1985/98] ), their Lordships of the Apex Court have observed as follows.

"10.We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under Section 6 of thefiles a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her, as stated in Explanation I to Section 6 of the. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under Section 6 of thebut she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow from the language of the statute. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family............... It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed."

(2) In Thamma Venkata Subbamma (dead) by L.R. vs. Thamma Rattamma & others (100 L.W. 1125), the Apex Court laid down as follows.

"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 S.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."

12.Mr.N.Vanchinathan, learned counsel for the appellants contended that the right of Muthulakshmiammal to the interest inherited by her in the family property got fixed on the death of her husband under Section 6 of the Hindu Succession Act and she became full owner thereof and there can be no fetter on her making gift of her undivided interest in the coparcenary property to another coparcener.

13. The prohibition against making of gifts by coparcener of his undivided interest 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, even though Muthulakshmiammal inherited the interest of her deceased husband in the family property, she continued to be a member of the family and the property including that of hers was held by the family. As a female heir, having inherited property under Section 6 of the Hindu Succession Act, Muthulakshmiammal cannot be treated as having ceased to be a member of the family without her volition. The renunciation of her interest in the coparcenary property is only in favour of one of the coparceners, namely, the plaintiffs, and it does not enure for the benefit of all other coparceners. Factually there is no consent for the above renunciation given by the other coparcener, namely, the defendant herein. Though Muthulakshmiammal can dispose of her undivided interest in the coparcenary property by a Will or sale for a valuable consideration, she cannot make a gift of such interest without the prior consent of all other coparceners. In such circumstances, the gifts made in Exs.A-2 and A-3 settlement deeds in favour of the plaintiffs by Muthulakshmiammal are not legally valid on account of lack of prior consent of other coparcener and the plaintiffs do not get any right under the gifts. The plaintiffs are entitled to only 1/3rd share in the suit items. The substantial questions of law are answered accordingly.

14. In the result, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside and there shall be a preliminary decree granting 1/3rd share to the plaintiffs in the suit properties. In the circumstances of the case, there shall be no order as to costs. Connected C.M.P.No.15613 of 1989 is closed.