In Thamma Venkata Subbamma (dead) by LRs. vs. Thamma Rattamma and Others (1987) 3 SCC 294) it was observed as follows :
“12. There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions, instead, we may refer to the following statement of law in Mayne’s Hindu Law, Eleventh Edn., Article 382 :
“It is now equally well settled in all the Provinces that a gift or devise by a co parcener in a Mitakshara family of his undivided interest is wholly invalid….A co- parcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.
We may also refer to a passage from Mulla’s Hindu Law, Fifteenth Edn., Article 258, which is as follows :
Gift of undivided interest. – According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary prop erty 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. He may, however, make a gift of his interest with the consent of the other coparceners.
It has been already stated that an individual member of the joint Hindu family has no definite share in the coparce nary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu fam ily from being disintegrated.
It is, however, a settled law that a coparcenary can make a gift of his undi vided 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”.
In Mayne’s Hindu Law, XIV Edn. It has been noted as follows :
“Gifts of affection- The father’s power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognized. In Ramalinga vs. Narayana (1922 (49) IA 168) the Privy Council held that “the father has undoubtedly the power under the Hindu Law of making within rea sonable limits, gifts of movable property to a daughter”.
By Will- But such gifts through affection of joint family property when they are by will, are invalid, because the right of the coparceners vests by survivorship at the moment of the testator’s death, and there is accordingly nothing upon which the Will can operate. In Subbarami vs. Ramamma ((1920 (43) Mad 824) the Madras High Court held that a Will made by a Hindu father bequeathing certain family properties for the maintenance of his wife was invalid as against his infant son through it would have been a proper provision if made by him, during his lifetime. This may be in a sense right. There is however no compelling logic in not regarding wills “as gifts to take effect upon death at least as to the property which they can transfer and the persons to whom it can be transferred”. Convenience would seem rather to point to the extension to the sphere of Hindu Law of the general principle of jurisprudence that what a man can give by act inter vivos, he can give by Will”.
So far as the question whether the gift is void or voidable much depends on the factual scenario.
The distinction between void or voidable is summarized as follows :
“De Smith, Woolf and Jowell in their treatise Judicial Review of Administrative Action, 5th, para 5-044, have summarized the concept of void and voidable as fol lows :
“Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciat ing complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record.”
Clive Lewis in his work Judicial Remedies in Public Law at p.131 has explained the expressions “void and voidable” as follows :
“A challenge to the validity of an act may be by direct action or by way of collat eral or indirect challenge. A direct action is one where the principal purpose of the action is to establish the invalidity. This will usually be by way of an application for judicial review or by use of any statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in the course of some other proceed ings, the purpose of which is not to establish invalidity but where questions of validity become relevant.”
In Sunil Kumar and Anr. vs. Ram Parkash and Ors., AIR 1988 SC 576) it was noted in paras 23 and 24 as follows :
The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family ne cessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The of quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad vs. Mt. Babooee, (1856 ) 6 M.I.A. 393. There it was observed at p. 423 : (1) “The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate.” This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.
Remedies against alienations :
Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Court of law. The other members of the family have a right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy him self as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager’s share in Madras, Bombay and Central Provinces. The purchaser could get only the manager’s share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. (Mayne’s Hindu Law 11th Edn. para 396).
In Sadasivam vs. K. Doraisamy, AIR 1996 SC 1724, it was found that when the father has executed sale deed in favour of a near relative and the intention to repay debt or legal necessity has not been proved as a sham transaction.
In Words and Phrases by Justice R.P. Sethi the expression ‘void’ and “void able’ read as under :
“Void- Black’s Law Dictionary gives the meaning of the word “void” as having different nuances in different connotations. One of them is of course “null or having no legal force or binding effect”. And the other is “unable in law, to Supplort the purpose for which it was intended”. After referring to the nuances between void and voidable the lexicographer pointed out the following: “The word ‘void’ in its strict est sense, means that which has no force and effect, is without legal efficacy, is incapable of being enforced by law, or has no legal or binding force, but frequently the word is used and construed as having the more liberal meaning of ‘voidable’. The word ‘void’ is used in statute in the sense of utterly void so as to be incapable of ratification, and also in the sense of voidable and resort must be had to the rules of construction in many cases to determine in which sense the legislature intended to use it. An act or contract neither wrong in itself nor against public policy, which has been declared void by statute for the protection or benefit of a certain party, or class of parties, is voidable only”. (Pankan Mehra and Anr. vs. State of Maharashtra and Ors. (2000) 2 SCC 756).
Per Fazal Ali, J- The meaning of the word “void” is stated in Black’s Law Dictio nary (3rd Edn.) to be as follows :
“Null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to Supplort the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid”. Keshavan Madhava Menon vs. State of Bombay (1951) SCR 228.
The expression “void” has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoid ing the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. Judicial Review of Administrative Action, 5th Edn., para 5-044 (See also Judicial Remedies in Public Law at page 131; Dhurandhar Prasad Singh vs. Jai Prakash University and Ors. (2001) 6 SCC 534)
The other type of void act, e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate preceding the transaction becomes void from the very beginning. Another type of void act may be one, which is not a nullity, but for avoiding the same, a declaration has to be made. (See Government of Orissa vs. Ashok Transport Agency and Ors. (2002) 9 SCC 28)
The meaning to be given to the word “void” in Article 13 of the Constitution is no longer res integra, for the matter stands concluded by the majority decision of the Court in Keshavan Madhava Menon vs. The State of Bombay (1951) SCR 228. We have to apply the ratio decidendi in that case to the facts of the present case. The impugned Act was a existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed in the citizens of the India by Article 19(1)(g) restrictions which could not be justified as reasonable under clause (6) as it then stood and consequently under Article 13 (1) that existing Law became void “to the extent of such inconsistency”. As explained in Keshavan Madhava Menon’s case (supra) the Law became void in toto or for all purposes or for all times or for all persons but only “to the extent of such inconsis tency”, that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens. It did not become void independently of the existence of the rights guaranteed by Part III. (See Bhikaji Narain Dhakras and Ors. vs. The State of Madhya Pradesh and Anr. (1955) 2 SCR 589).
The word “void” has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. In Halsbury’s Laws of England, 4th Edn. (Re-issue) Vol. 1(1) in para 26, p.31 it is stated thus: “If an act of decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved”. (See State of Kerala vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and ors. (1996) 1 SCC 435).
“Voidable act” is that which is a good act unless avoided, e.g. if a SUIT is filed for a declaration that a document is fraudulent, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is oblige to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. Government of Orissa vs. Ashok Transport Agency and Ors. (2002) 9 SCC 28)”.
Ref: Baljinder Singh Versus Rattan Singh-AIR 2008 SCW 5666 : JT 2008 (10) SC 98 : (2008) 11 SCALE 198