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TMI Blog1982 (4) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... unmarried leaving his brother Venkataramanan as the sole surviving coparcener. As the accountable person, Venkataramanan filed an estate duty account in respect of the estate of the deceased Kamakshisundaram under the provisions of the E.D. Act, 1953. In the account filed on August 9, 1970, the value of the estate of Kamakshisundaram was shown as Rs. 3,69,616 including the value of the entire agricultural land. Subsequently, a revised account was filed stating that the lands in Varadampalayam and Kottuverampalayam villages had been settled in favour of Saraswathi Ammal, and that consequently the said lands had to be excluded from the estate of Kamakshisundaram for the purposes of computation of estate duty. This was accepted by the Asst. Controller of Estate Duty and an order of assessment was passed. On October 28, 1972, November 27, 1974 and July 21, 1975, the respondent revised the assessment order on some ground with which we are not concerned in this writ petition. On December 7, 1976, the respondent issued a notice to the petitioner under s. 61 of the E.D. Act, 1953 (called " the Act "), stating that the settlement deed dated October 28, 1959, executed by Venkataramana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power under s. 61 of the Act can be invoked only where the earlier order of assessment suffers from an error apparent from the record. In the present case, there was no error apparent from the record in the earlier order of assessment. The respondent had taken note of the settlement deed and excluded the settled lands from the computation of the value of the estate of late Kamakshisundaram. In any view of the matter, the question whether a gift made by a coparcener of an HUF is void or not is a debatable point and, therefore, such a question cannot be determined by resorting to s. 61 of the Act. Having bestowed our anxious and careful consideration to the arguments advanced by Mr. K. Srinivasan, we are of the view that the), are devoid of merit. Hindu law on the question of gifts of ancestral property is well settled. A gift or device by a coparcener in a Mitakshara family of his undivided interest is wholly invalid and void in toto, subject to an exception in the case of a manager in favour of small gifts to female relations on special occasions or for pious, charitable or religious purpose. The law is thus stated in Mayne's Treatise on Hindu Law and Usage, eleventh edition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complain of its enforcement to his prejudice. " In Rottala Runganatham Chetty v. Pulicat Ramasami Chetti [1904] ILR 27 Mad 162, a Full Bench of this court has observed as follows (at p. 166): " 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." The above dictum has been followed by Raghava Rao J., in Venkatappayya (K.) v. Raghavayya (K.) [1950] II MLJ 466; AIR 1951 Mad 318. In that case, the very coparcener who had made a gift of his undivided interest had filed the suit for recovery of possession of the property. On behalf of the donee-defendant it was contended that the well known common law maxim, that a man cannot derogate from his own grant, must preclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by her and was in the mother's womb. The learned judge following the Full Bench decision in Rottala Ranganatham Chetty v. Pulicat Ramasami Chetti [1904] ILR 27 Mad 162 and K. Peramanayakam Pillai v. S.T. Sivaraman [1952] I MLJ 308; AIR 1952 Mad 419, held that the gift made by the father in that case was ab initio void. From the above decisions it follows that a gift by a coparcener of his undivided interest is ab initio void. This is on the principle stated in Ramanna v. Venkata, ILR II Mad 246, that the family estate has to be preserved for the benefit of the joint family which in the conception of Hindu law is composed not only of the coparcenary for the time being and the male children in the womb but also of the male children to be born thereafter. As was observed by the Full Bench in Peramanayakam Pillai v. Sivaraman [1952] 1 MLJ 308; AIR 1952 Mad 419, the right of a coparcener under Hindu law to alienate for consideration his interest in the property is based on principles of equity for that consideration paid by the alienee. However, no such consideration can arise in the case of gifts executed by a coparcener in respect of his undivided interest in the coparcenary proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that by devise. This rule of Mitakshara law has now been abrogated by s. 30 and the Explanation thereto. Section 30 read with the Explanation only empowers a coparcener to dispose of his property by will in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force. The section is confined only to testamentary dispositions and does not cover dispositions by way of gift inter vivos. We, therefore, reject the contention of Mr. Srinivasan that the settlement deed executed by the late Kamakshisundaram and Venkataramanan in favour of Saraswathi Ammal in 1959 would be valid under s. 30 of the Hindu Succession Act. The next question for consideration is whether the respondent, the Asst. CED, had jurisdiction to revise the original order of assessment. As already stated, the contention of Mr. Srinivasan is that the question whether a gift of his undivided interest in joint family property by a Hindu coparcener is void or not, is a debatable point and one not free from difficulty. In the circumstances, according to the learned counsel a mistake apparent on the record must be an obvious and patent mistake and not something which can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d palpable error in treating the settlement as valid and excluding the value of the lands covered by the settlement deed in computing the value of the estate which passed on the death of Kamakshisundaram. In view of the catena of decisions holding that a gift by coparcener of his undivided interest in the joint family property is ab initio void, the respondent had no other option but to ignore the gift altogether in the computation of the value of the estate which passed on the death of Kamakshisundaram. There cannot be any two opinions on the question whether a gift executed by a coparcener of his undivided interest is valid, void or voidable. Viewed in that light, we see no reason to accept the contention of Mr. Srinivasan that the validity of a gift executed by Kamakshisundaram and Venkataramanan in 1959 in favour of Saraswathi Ammal was a debatable one and cannot be deemed to be an error apparent from record to clothe the respondent with powers under s. 61 of the E.D. Act to revise the order of assessment originally passed. As already pointed out, the error is so glaring and palpable that it needed to be rectified the moment the mistake was realised by the respondent. We have, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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