PADMANABHAN J.


The writ petitioner herein is one Sundaresan. The petitioner's father, S. K. Venkataramanan and S. K. Kamakshisundaram were brothers and were members of an HUF of which Venkataramanan was the karta. Venkataramanan's wife is Saraswathi Ammal. Kamakshisundaram remained a bachelor. While so, on October 28, 1959, Venkataramanan and Kamakshisundaram executed a settlement deed by which they conveyed an extent of 27.29 acres of agricultural lands in Varadampalayam and Kottuverampalayam villages belonging to the HUF in favour of Venkataramanan's wife, Saraswathi Ammal. Saraswathi Ammal obtained possession of the lands pursuant to the said settlement deed and was in enjoyment. On March 25, 1965, Saraswathi Ammal in her turn executed a settlement deed in respect of a portion of the said properties in favour of her husband Venkataramanan On November 15, 1970, Kamakshisundaram died 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 petitionOn 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 Venkataramanan and Kamakshisundaram, in favour of Saraswathi Ammal was void and, therefore, the half share of Kamakshisundaram should be included in his estate and that the assessment already made under the Act had to be revised. The petitioner in his reply to the notice took the stand that the respondent was fully aware of all the facts at the time the original order of assessment was passed, that there was no error apparent from the record and that consequently the respondent had no jurisdiction to initiate rectification proceedings under s. 61 of the Act. On February 25, 1977, the respondent negatived the contention of the petitioner and passed a revised order of assessment including the value of one half share of the agricultural lands covered by the settlement deed executed by the brothers in favour of Saraswathi Ammal and recomputed the value of the estate of late Kamakshisundaram at Rs. 4, 65, 455. The respondent took the view that the settlement dated October 28, 1959, executed by Venkataramanan and Kamakshisundaram in favour of Saraswathi Ammal was ab initio void.


In the above circumstances, the petitioner has filed this writ petition for the issue of a writ of certiorari to quash the revised order of assessment passed by the respondent on February 25, 1977.


Mr. K. Srinivasan, the learned counsel for the petitioner raised the following contentions: (1) The view taken by the respondent that the settlement deed executed by late Kamakshisundaram and late Venkataramanan, the petitioner's father, was valid. Under Hindu law a coparcener can gift his undivided share in the family properties with the consent of the other coparceners. At the time of the settlement deed, Venkataramanan and Kamakshisundaram were the only members of the joint family. Inasmuch as both of them had jointly executed the gift deed, each one of them must be deemed to have consented to the execution of the gift deed by the other in favour of Saraswathi Ammal. Viewed in this light, the settlement deed has to be held to be valid. Further, after the introduction of the Hindu Succession Act a coparcener has got the power to make a gift of his undivided share in the family properties under s. 30 of the Hindu Succession Act. (2) In any event, on the facts and circumstances of this case, the respondent had no jurisdiction to revise the assessment in exercise of his powers under s. 61 of the Act. The 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 ActHaving 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, at page 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, movable or immovable, either to stranger or to a relative except for purposes Warranted by special texts. In Radhakant Lal v. Nasma Begum 1918 (45) Cal 733, gifts of a part of the joint family estate made by a Hindu in favour of two of his concubines and the daughter of one of them were held to be invalid as against his sons and grandsons even in respect of his own interest." *


In Mulla's Hindu Law, fourteenth edition, at page 320 it is stated thus:


"According to the Mitakshara law as applied in all the states, no coparcener can dispose of his undivided interest in coparcenery property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property." *


In Ramanna v. Venkata [1888] ILR II Mad 246 a Hindu had made gift of certain land, which he had purchased with the income of the ancestral property. Thereafter, his son brought a suit to recover possession of the land on the ground that the gift was not valid. The learned judges observed as follows (p. 249)


"During coparcenary, the ancestral property vests in the joint family, and if any coparcener dies before partition, the property vests in the other coparceners as if he was never born. In the case of a sale, the alienation is upheld to the extent of the alienor's share as a matter of equity, which the purchaser is considered to be entitled to insist upon, but in the case of gift there is no such equity. It has already been decided by a Full Bench of this court that the gift by a coparcener of his undivided interest in ancestral property cannot be supported at all even to the extent of the donor's share... The gift is not binding on the family either in part or in whole, and the property in the subject of gift originally vesting in it is not divested by it, and we are, therefore, of opinion that the power of interdiction includes a right to see that the family estate is preserved for the family until a partition is made and that the donee, who accepts the gift subject to this right of a coparcener is not entitled to complain of its enforcement to his prejudice." *


In Rottala Runganatham Chetty v. Pulicat Ramasami Chetti 1904 (27) ILR(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; 1951 AIR(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 the plaintiff-donor from seeking to recover the property conveyed by him to the defendant. The learned judge rejected the contention in the following words:


"It cannot be said that the validity of a gift by a coparcener is not matter for challenge at the instance of the very coparcener who executed the deed. The maxim that a man shall not derogate from his own grant is not applicable 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 executant of such gift from asserting his right to recover the property and have a declaration that the gift is void." *


A similar question came up once again for scrutiny before the Full Bench of this court in Peramanayakam Pillai (K.) v. Sivaraman (S.T.) 1952 (1) MLJ 308; 1952 AIR(Mad) 419. The head note at page 309 (of MLJ) reads as follows:


"It is the undoubted right of a coparcener under Hindu law to alienate for consideration his interest in the property, but it is not open to him to make a gift of it, as the very foundation of the alienee's equity is the payment of consideration." *


Raghava Rao J., while formulating the various propositions arrived at by him, has observed as follows (at page 456 of AIR)

"A gift or devise by a coparcener in a Mitakshara family of his undivided interest is, ordinarily speaking and 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, wholly invalid, void in toto. This principle cannot be evaded by the undivided member 'professing to make an alienation for value, when such value is manifestly inadequate and inequitable' (vide Rottala Ranganatham Chetty v. Pulicat Ramasami Chetti 1904 (27) ILR(Mad) 162 (FB)." *


Veeraswami J. (as he then was) held in Sivagnana Thevar v. U. Thevar 1961 AIR(Mad) 356, that even a gift of reasonable portion of immovable property belonging to the joint family to a second wife as a marriage gift or in anticipation of marriage is invalid.


Varadarajan J. (as he then was) in Kandammal v. Kandiah Thevar family property by a father to his wife at a time when a son had been conceived 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 (27) ILR(Mad) 162 and K. Peramanayakam Pillai v. S.T. Sivaraman [1952] I MLJ 308; 1952 AIR(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; 1952 AIR(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 property. The contention of Mr. Srinivasan that in view of the fact that both Venkataramanan and Kamakshisundaram were parties to it, the settlement deed could not be held to be void cannot be sustained. If the very basis of the rule that a gift by a coparcener of his undivided interest in the coparcenary property is void is based on the principle that the joint family property has to be preserved not only for the male members, adults and minors, who were then existing and in the womb but also to be born thereafter into the family, it will not be possible to hold that all the adult members by common consent can deprive the family of joint family property by a gift. We are, therefore, not in a position to accept the contention of Mr. Srinivasan that by consent, the members of the joint family can execute a valid gift of the joint family property. To uphold the said proposition would be to go against the long catena of decisions which has held against the validity of gifts executed by a coparcener in respect of his undivided interestMr. Srinivasan, then contended that under s. 30 of the Hindu Succession Act it will be open to the coparcener to execute a gift of his undivided interest in the coparcenary property. Section 30 of the Hindu Succession Act reads as follows:


"Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.


Explanation.The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act or any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section." *


According to the original Mitakshara law, no coparcener, not even father, could dispose of by will his undivided coparcenary interest even if the other coparceners consent to the disposition. This is because the moment the coparcener died his undivided interest devolved by survivorship on the other coparceners. The title by survivorship was considered to take precedence to the exclusion of 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 ActThe 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 established only by a long-drawn process of reasoning of points on which there may be two opinions. A decision on a debatable point of law is not a mistake apparent from the record. The learned counsel relied upon the decision of the Supreme Court in T. S. Balaram, ITO v. Volkart Brothers. No exception can be taken to this contention of the learned counsel. In the above case, which dealt with the powers of an ITO to rectify a mistake under s. 154 of the I.T. Act, 1961, Hegde J., observed as follows (at p. 53 :).


"A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. A decision on a debatable point of law is not a mistake apparent from the record." *


A Bench of this court in CWT v. Kamala Ganapathi Subramaniam to which one of us was a party (Balasubrahmanyan J.) had occasion to consider the power of the WTO under s. 35 of the W.T. Act which conferred on the WTO the power for rectification of any order passed among others by the AAC on the ground that it suffered an error apparent from record. The learned judges held that when an apparent mistake is found in an order, the jurisdiction to rectify is acquiredWe have had occasion to consider the power of rectification vested in the ITO under s. 154 of the I.T. Act, 1961, in T.C. No. 1192 of 1977, decided on 10-12-1981 (Umma Salma v. CIT). The argument of the learned counsel for the assessee in that case was that the error that was sought to be rectified by the ITO could only be resolved by debate and lengthy argument. That was not accepted by us on the ground that the earlier order of assessment passed by the Officer was manifestly wrong and no extraneous circumstance was required to show the erroneous nature of the order. The same principle appli

es in interpreting s. 61 of the E.D. Act. As we have already found, it is one of the settled principles of Hindu law that a coparcener cannot execute a gift in respect of his undivided interest in joint family property and that such a gift if made would be void in toto. In the circumstances, the gift deed executed in 1959 by Venkataramanan and Kamakshisundaram in favour of Saraswathi Ammal was ab initio void and non est. The respondent committed a glaring and 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, therefore, no hesitation in holding that the respondent was justified in exercising his powers under s. 61 of the E.D. Act and revising the earlier order of assessment and recomputing the value of the estate of Kamakshisundaram by including the one half of the value of the agricultural lands covered by the settlement deed of 1959In the result, the writ petition is dismissed, but under the circumstances without costs.