1. The material facts of this case lie in a short and narrow compass, The father of the plaintiff and of the defendant in the suit, out of which this second appeal arises, made a gift of his separate property to the plaintiff under Ex. P-1 dated 5-9-1943 wherein he says after reciting certain preliminary facts which it is unnecessary to set out:
"I have conveyed to you (as Dhakal) the property of the value of Rs. 400 mentioned in the schedule below, and myself and my wife shall live therein for the lifetime of both of us. After the lifetime of both of us, you shall take possession of the schedule property, and may enjoy the same as you please with absolute powers of disposition by way of gift, sale etc. and I, my heirs and claimants through me shall never raise any dispute whatsoever against you, your heirs and claimants through you."
The plaintiff for himself and his minor son, since dead, thereafter executed Ex. D-1 dated 6-4-1944 in favour of the defendant conveying to him the property acquired by him under Ex. P-1. Thereafter, there were certain proceedings for compulsory registration of EX. D-1 at the instance of the defendant which ended in his favour. The present suit was filed by the plaintiff on 30-12-1944 impeaching Ex-D. 1 as a spurious document and also alleging that, in any event, it was a gift of joint family property and therefore void, and asking for a declaration that the gift was not true, and even if true was not valid in law and enforceable.
2. That the document is not spurious has been found by both the Courts below, and that is a finding of fact which cannot be and has not been assailed in this Court. The Courts below decreed the suit, however, on the alternative ground of the invalidity of the document as one in the nature of gift of joint family property which conveyed no title whatsoever to the defendant.
3. In this second appeal, the defendant's learned counsel puts his point in two ways. First, it is said that the property conveyed to the plaintiff by Ex. P-1 is not ancestral property in his hands with reference to his son but his self-acquired property. Secondly, it is urged that the validity of the gift is a matter for challenge at the instance only of other coparceners and not of the very coparcener, who executed the deed. The son of the plaintiff who was alive at the time of the gift and who was himself a party thereto by the plaintiff as his father having died by the date of suit without havings impeached it, the plaintiff who was himself an executant cannot attack it.
4. The question whether the self-acquired property of the father which has been the subject of gift or bequest by him to his son is ancestral property in the latter's hands has given rise to considerable difference of opinion in the Indian High Courts which has bean referred to at very great length but left unresolved by the Judicial Committee of the Privy Council in Lalram Singh v. Deputy Commissioner of Partabgarh, 45 ALL. 596: (A. I. R. (10) 1929 P. C. 160). The Madras view laid down as long ago as 1901 is Nagalingam Pillai v. Ramachandra Tevar, 24 Mad. 429: (11 M. L. J. 210) has been consistently followed in this Province in a whole catena of decisions ending with Seeyali Achari v. Doraiswami Achari, 1947-2 M. L. J. 49 : (A. I. R. (35) 1948 Mad. 46). That view is that:
It was open to a father to determine whether the property bequeathed or given by him to his son shall be ancestral or self-acquired, but unless he expressed his wish that it should be deemed to be sell acquired, it was ancestral.
It is contended for the appellant on the basis of this last decision that the clause of Ex. P-l authorising the plaintiff to enjoy the property as he pleased with absolute powers of disposition by way of gift, sale etc., is sufficient expression by his father of his wish that the property should be deemed to be self-acquired within the meaning of the rule as above stated. There is a decision of a single Judge of this Court (Pandrang Row J.) in Visweswararao v. Varahanarasimham, 1937 M. W. N. 296 : (A. I. R. (24) 1937 Mad. 631) holding that these are the usual words of conveyancing employed in order to indicate that the entire ownership is to pass and that they do not show any intention of the part of the donor or testator as to whether the donee or the legatee is to take the property as self-acquired property or as joint family property with reference to his sons. That mode of interpreting such words has, however, been dissented from by Wadsworth and Govindarajachari JJ. who decided Seeyali Achari v. Doraiswami Achari, 1947-2-M. L. J. 49: (A. I. R. (35) 1948 Mad. 46). The learned Judges point out that they very much doubt whether the attention of the learned Judge was pointedly drawn to a certain passage which they quote from the judgment of the Privy Council in Lalram Singh v. Deputy Commissioner of Partbgarh, 45 ALL. 596: (A. I. R. (10) 1929 P. C. 160). They regarded the passage in question as conclusive of the error of the view of Pandrang Row J. The passage runs in these terms:
"It the criterion were to be the intention of the father when he makes the gift, there is nothing to indicate that Hanwant Singh desired to make the estate ancestral property in the hands of Lachman. His expression of opinion or desire, whichever it may be, that the property should still be governed by the Act 1869 would indicate the contrary view; because under the Act each holder of the estate has a power to give it or will it away."
Relying upon the last words of this passage the learned Judges conclude that any words in a document of gift or bequest by the father in favour of his son which empower the donee or the legatee to give or will away the property as he likes would necessarily indicate an intention on the part of the donor or testator that the property should be taken by the donee or the legatee otherwise than as ancestral property. I very much doubt whether this analogical reasoning is sound. It may be that a clause in a will that certain property shall stand governed by a certain Act by force of which each holder of the property has a power to give it or will it away stands on a higher footing than an ordinary clause of conveyancing in a document authorising the taker under it to enjoy the property with a power of sale gift, etc. In the latter case, the question may well still remain whether the usual terms of conveyancing were used by the maker of the document to indicate of themselves and conclusively an intention on his pact that the property should be held by the taker as his separate, as distinct from his ancestral property. The Bench has, however, held such words to be indicative of such an intention, and I do not feel myself at liberty to go behind its ruling to that effect.
5. It has however, been argued for the respondent on the basis of an unreported decision, that of Subba Rao and Somasundaram JJ. in A. S. No 529 of 1916, that I can get away from the ruling reported in Seeyali Achari v. Doraiswami Achari, 1947-2-M. L. J. 49: (A. I. R. (36) 1948 Mad. 46). I have looked into the unreported decision and do not find myself in a position to agree with the contention based upon it. There are no words in Ex. P-1 and no other circumstances here such as existed in the unreported case and helped the learned Judges there to refuse to give effect to the ruling reported in Seeyali Achari v. Doraiawami Achari, 1947-2 M. L. J. 49: (A. I. R. (35) 1948 Mad. 46). A principle of interpretation based upon a certain passage in the Privy Council decision in Lalram Singh v. Deputy Commissioner of Partabgarh, 45 ALL. 596: (A. I. R. (10) 1923 P.C. 160) is laid down in Seeyali Achari v. Doraiswami Achari, 1947-2-M. L. J. 49; (A. I. R. (35) 1948 Mad. 46) with reference to the meaning of certain words of conveyance which occurred in the document before Pandrang Row J. in the case in Visweswara Rao v. Varahanarasimham, 1937 M W. N. 296: (A. I. R. (24) 1937 Mad. 631) aa well as in the document before the Bench which decided Seeyali Achari v. Doraiswami Achari, 1947-2-M. L. J. 49; (A. I. R. (36) 1948 Mad. 46), even as they occur in the document before me. That principle of interpretation, as pointed out by the learned Judges who decided Seeyali Achari v. Doraiswami Achari, 1947-2M L. J. 49 : (A. I. R. (35) 1948 Mad. 46) was not taken note of by Pandrang Rai J. in Visweswara Rao v. Varahanarasimham, 1987 M. W. N. 296: (A. I. R. (24) 1937 Mad. 631) as it ought to have been, and must, as I am inclined to think, prima, facie be taken note of by me. I quite agree, as pointed out in the judgment in the unreported case, that no decision of any Bench on the construction of any particular document can be binding authority for the construction of another document. As pointed out in Halsbury's Laws of England, Vol. 19 p. 255:
A decision of a Court of Appeal on a matter of fact is not binding on any other Court except as between the parties; but when the decision is that from certain facts certain legal consequences follow, it would seem that the decision of the Court of appeal is binding on that Court in any case raising substantially similar facts.
Likewise, it seems to me that whore the decision of a Bench lays down a principle of interpretation of certain words on the basis of a decision of higher authority which enters into the construction of any document containing such words, which comes up before the Court in any other given case, that principle of interpretation must, in my opinion, be treated as binding on the Court is such other cage, unless on other relevant facts and circumstances the principle is to be denied the effect, which it must otherwise have. That being the true legal position for me to bear in mind in this connection, I consider myself bound to hold in favour of the appellant on the argument advanced on the basis of the ruling in Seeyali Achari v. Doraiswamy Achari, 1947-2-M. L. J. 49 : (A. I. R. (35) 1948 Mad. 46).
6. On the alternative ground urged before me for the appellant, I am of opinion that although words like "the right of prohibition" and "the power of interdiction" as on the part of other coparceners have been used in Baba v. Timma, 7 Mad. 8S7 F. B. and Ramanna v. Venkata, 11 Mad. 246 to indicate the ground of invalidity of a gift of family property, the ruling in the latter case makes it perfectly clear that any such gift is absolutely void and can convey no title whatsoever to the donee irrespective of the exercise of such right or power by the other coparceners. The learned District Munsif in the present case has, in my opinion, appreciated this ruling quite correctly. I may well adopt his statement of the effect of the decision which is in the following terms :
"In the last mentioned case, there was a suit already instituted by the father to set aside the gift, and when that had failed, the subsequent suit by the son disputing the gift was instituted. It was the latter suit that came up for decision before the High Court, It is argued before their Lordships that in allowing this suit, the father will be enabled to recover through his son what he could not recover himself and that he would be estopped from recovering by a suit instituted in his own right. In answer to this contention their Lordships stated : "
There is no doubt this is an apparent anomaly, but the real question is whether the property in question continues to vest in the joint family.' Lower down they held :
'..... the decision must depend not on the question whether the father or the son may happen to die in coparcenary, but whethar the gift was valid at the time when it was made and whether it operated to transfer the property in the subject of the gift from the family to the donee either In part or in whole.' The last mentioned observations clearly show that the test would always be whether on the date the gift deed was executed, it was valid and whether it operated to transfer the property in the subject of the gift from the family to the donee."
7. As pointed out in Mayne on Hindu Law?
and Usage, Edn. 11 at p. 484 :
"It is now (equally) well settled in all the provinces that a gift or device by a coparcener in a Mitakshara family of his undivided interest is wholly invalid . , . A coparcener cannot make a gift of his undivided interest in the family property, moveable or immoveable, either to a stranger or to a relative except for purposes warranted by special texts."
In the footnote to the passage just cited, there is a reference made to a Full Bench decision of this Court reported in Runganatham Chetti v. P. Ramasami Chetti, 27 Mad. 162 F. B., and the following observation of the Full Bench at p. 166 of the Report has been extracted, which I may well quote here:
It has now been definitely settled by judicial decisions that It is incompetent to an undivided member |of a Hindu family to alienate by way of gift his undivided share or any portion thereof, and that such alienation is void in toto, and this principle cannot be evaded by the undivided member professing to make an alienation for value, when such value is manifestly inadequate and inequitable. In such a case, the transaction can be upheld against the family, in respect of the alienor's interest in the joint family property, only to the extent of the value received.
8. It is, however, contended for the appellant that Section 8, T. P. Act which renders any rule of Hindu law to the contrary unavailing after the amendment of Section 2 of the Act by the removal of the word "Hindu" from its last paragraph concludes the present case against the decision of the Courts below. The section mo doubt says:
"Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in she property, and in the legal incidents thereof."
The answer to the argument is, in my opinion, furnished by the following observation of the learned District Munsif in para. 12 of his judgment which I consider to be correct:
.... It is not the case of the plaintiff that on the construction of the gift deed, the Court should presume that the plaintiff has conveyed anything less than what is expressed in the document. As already shown, his case is, that under the personal law by which he is governed, whatever he gets from his father either by gift or by inheritance, he would have no right to alienate the same except under certain circumstances.
9. It is also urged for the appellant that the well recognised common law maxim that a man shall not derogate from his own grant must preclude the present plaintiff from seeking to recover the property conveyed by him to the defendant The maxim has, however, in my opinion, no application to a case in which the personal law of the parties renders altogether void a grant by him which must therefore be treated in the eye of law as altogether non est. There being no rights created by a void transaction of that kind there is no estoppel or any other kind of personal bar akin thereto which precludes the plaintiff from asserting his right to recover. The property has always remained the property of the family and has never gone out of it. The declaration that the plaintiff therefore seeks is thoroughly justified and the second contention for the appellant must accordingly be repelled.
10. In the result, and for the reason that I have accepted the first line of argument for the appellant in the foregoing, this second appeal prevails. The suit, therefore, must stand dismissed but in the circumstances without costs either here or in the Courts below.
11. No leave.