C. N. Arunachala Mudaliar Vs. C. A.
Muruganatha Mudaliar & ANR  INSC 63 (14 October 1953)
MAHAJAN, MEHR CHAND JAGANNADHADAS, B.
CITATION: 1953 AIR 495 1954 SCR 243
CITATOR INFO :
E 1965 SC1730 (10) RF 1967 SC 591 (8) R 1975
SC 431 (9) R 1987 SC 518 (7)
Hindu law-Gift-Property gifted by father to
son-Whether ancestral property in the hands of son-Construction of willPresumptions.
Property gifted by a father to his son could
not become ancestral property in the hands of the son simply by reason of the
fact that he got it from his father. The father is quite competent when he
makes a gift, to provide expressly either that the donee would take it
exclusively for himself or that the gift would be for the benefit of his branch
of the family and if there are express provisions to that effect in the deed of
gift or will, the interest which the son would take in such property would
depend on the terms of the grant.
If there are no clear words describing the
kind of interest which the donee is to take, the question would be one of
construction and the court would have to collect the intention of the donor
from the language of the document taken along with the surrounding
circumstances in accordance with the established canons of construction. The
material question in such cases would be whether the grantor really wanted to
make a gift of the properties to his son or the apparent gift was only an
integral part of a scheme to partition the same.
There is no presumption that he intended
either the one or the other, as it is open to the father to make a gift or
partition his properties as he himself chooses.
Muddun v. Ram (6 W.R. 71), Nagalingam v.
Ramachandra (I.L.R. 24 Mad. 429), Bhagwat v. Mst. Kaporni (I.L.R. 23 Pat? 599),
Jugmohan Das v. Mangal Das (I.L.R. 10 Bom. 528), Parsottam v. Jankibai (I.L.R
29 All. 354), Amarnath v. Guran (A.I.R. 1918 Lah. 394). Lal Ram Singh v. Deputy
Commissioner, Partabgarh (64 I.A. 265) referred to.
Where a testator who had 3 sons, after giving
certain properties to his wife and other relations, provided that the
properties in Schedules A,B and C of the will which were his self acquired
properties shall be taken by his eldest, second and third son respectively, and
that the sons shall enjoy the properties allotted to them with absolute rights
and with powers of alienation such as gift, exchange, sale etc. from son to
LB(D)2SCT-2(a) 244 Held, that as the will
expressly vested the sons with absolute rights with full powers of alienation,
the property bequeathed to them was not ancestral property in their hands vis a
vis their own male issue.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 191 of 1952.
Appeal by special leave granted by the Supreme
Court on the 21st May, 1951, from the Judgment and Decree dated the 13th
December, 1949, of the High Court of Judicature at Madras (Rao and Somasundaram
JJ.) in Appeal No. 529 of 1946 arising out of the Judgment and Decree dated the
20th February, 1946, of the Court of Subordinate Judge of Coimbatore in O.S.
No. 138 of 1945.
P.Somasundaram (R. Ganapathy Iyer, with him)
for the appellant.
B.Somayya (K. R. Chowdhury, with him) for
respondent No. 1.
1953. October 14. The Judgment of the Court
was delivered by MUKHERJEA J.-This appeal, which has come before us on special
leave, is directed against a judgment and decree of a Division Bench of the
Madras High Court dated December 13, 1949, affrming, with slight modification,
those of the Subordinate Judge, Coimbatore, passed in O.S. No. 138 of 1945.
The suit was commenced by the plaintiff, who
is respondent No. I in this appeal for specific allotment, on partition, of his
one-third share in the properties described in the plaint, on the allegation
that they were the joint properties of a family consisting of himself, his
father, the defendant No. 1, and his brother, the defendant No. 2, and that he
was entitled in law to one-third share in the same. It appears that the
plaintiff and defendant No.
2, who are two brothers, are both sons of
defendant No. I by his first wife who predeceased her husband. After the death
of plaintiff's mother, the defendant No. I married again and his second wife is
defendant No. 3 in the suit. The allegations in the plaint, in 245 substance,
are that after the step-mother came into the house, the relation between the
father and his sons became strained and as the father began to assert an
exclusive title to the joint family property, denying any rights of his sons
thereto, the present suit had to be brought. The properties in respect of which
the plaintiff claims partition are described in Schedule B to the plaint. They
consist of four items of agricultural land measuring a little over 5 acres in
the aggregate, one residential house in the town of Erode and certain
jewellery, furniture and brass utensils. In addition to these it is averred in
paragraph I I of the plaint that there is a sum of about Rs. 15,000 deposited
in the name of the first defendant in the Erode Urban Bank Limited; that money
also belongs to the joint family and the plaintiff is entitled to his share
The defendant No. I in his written statement
traversed all these allegations of the plaintiff and denied that there was any
joint family property to which the plaintiff could lay a claim. His case was
that items I and 2 of Schedule B lands as well as the house property were the
self-acquired properties of his father and he got them under a will executed by
the latter as early as in the year 1912. The other items of immovable property
as well as the cash, furniture and utensils were his own acquisitions in which
the sons had no interest whatsoever. As regards the jewels mentioned in the
plaint, it was said that only a few of them existed and they belonged
exclusively to his wife the defendant No. 3.
The defendant No. 2, who is the brother of
the plaintiff, supported the plaintiff's case in its entirety.
The defendant No. 3 in her written statement
asserted that she was not a necessary party to the suit and that whatever
jewellery there were belonged exclusively to her.
After hearing the case the trial judge came
to the conclusion that properties bequeathed to defendant No. I by his father
should be held to be ancestral properties in his hands and as the other
properties were acquired by defendant No. 246 1 out of the income of the
ancestral estate, they also became impressed with the character of joint
property. The result was that the Subordinate Judge made a preliminary decree
in favour of the plaintiff and allowed his claim as laid in the plaint with the
exception of certain articles of jewellery which were held to be non-existent.
Against this decision, the defedant No. I
took an appeal to the High Court of Madras. The High Court dismissed the appeal
with this variation that the jewelssuch of them as existed-were held to belong
to defendant No.
3 alone and the plaintiff's claim for
partition of furniture and brass utensils was dismissed. The High Court
rejected the defendant No. 1's application for leave to appeal to this court
but he succeeded in getting special leave under article 136 of the
The substantial point that requires
consideration in the appeal is whether the properties that the defendant No. I
got under the will of his father are to be regarded as ancestral or
self-acquired properties in his hands. If the properties were ancestral, the
sons would, become co-owners with their father in regard to them and as it is
conceded that the other items of immovable property were mere accretions to
this original nucleus, the plaintiff's claim Must Succeed. If, on the other
hand, the bequeathed properties could rank as self-acquired properties in the
hands of defendaant No. 1, the plaintiff's case must fail.
The law on this point, as the courts below
have pointed out, is not quite uniform and there have been conflicting opinions
expressed upon it by different High Courts which require to be examined
For a proper determination of the question,
it would be convenient first of all to refer to the law laid down in Mitakshara
in regard to the father's right of disposition over his self-acquired property
and the interest which his sons or grandsons take in the same. Placitum 27,
chapter 1, section I of Mitakshara lays down:
"It is settled point that property in
the paternal or ancestral estate is by birth, though the father has independent
247 power in the disposal of effects other than the immovables for
indispensable acts of duty and for purposes prescribed by texts of law as gift
through affection, support of the family, relief from distress and so forth;
but he is subject to the control of his sons and the rest in regard to the
immovable estate, whether acquired by himself or inherited from his father or
other predecessors since it is ordained, 'though immovables or bipeds have been
acquired by man himself, a gift or sale of them should not be made without
convening all the sons'." Mitakshara insists on the religous duty of a man
not to leave his family without means of support and concludes the text by
saying: "They who are born and they who are yet unbegotten and they who
are still in the womb, require the means of support. No gift or sale should
therefore be made." Quite at variance with the precept which seems to
restrict the father's right of disposition over his selfacquired property in an
unqualified manner and in the same way as ancestral lands, there occur other
texts in the commentary which practically deny any right of interference by the
sons with the father's power of alienation over his self-acquired property.
Chapter 1, section 5, placitum 9 says:
"The grandson has a right of prohibition
if his unseparated father is making a donation or sale of effects inherited
from the grandfather: but he has no right of interference if the effects were
acquired by the father. On the contrary he must acquisce, because he is
dependent." The reason for this distinction is explained by the author in
the text that follows: "Consequently the difference is this: although he
has a right by birth in his father's and in his grandfather's property; still
since he is dependent on his father in regard to the paternal estate and since
the father has a predominant interest as it was acquired by himself, the son
must acquiesce in the father's disposal of his own acquired property." 248
Clearly the latter passages are in flat contradiction with the previous ones
and in an early Calcutta case(1) a reconciliation was attempted at by taking
the view that the right of the sons in the self-acquired property of their
father was an imperfect right incapable of being enforced at law. The question
came pointedly for consideration before the Judicial Committee in the case of
Rao Balwant v. Rani Kishori(2) and Lord Hobhousel who delivered the judgment of
the Board, observed in course of his judgment that in the text books and
commentaries on Hindu Law, religious and moral considerations are often mingled
with rules of positive law. It was held that the passages in Chapter 1, section
1, verse 27 of Mitakshara contained only moral or religious precepts while
those in section 5, verses 9 and 10 embodied rules of positive law. The latter
consequently would override the former. It was held, therefore, that the father
of t joint Hindu family governed by Mitakshara law has full and uncontrolled
powers of disposition over his self-acquired immovable property and his male
issue could not interfere with these rights in any way. This statement of the
law has never been challenged since then and, it has been held by the various
High Courts in India, and in our opinion rightly, that a Mitakshara father is
not only competent to sell his self-acquired immovable property to a stranger
without the concurrence of his sons(2), but he can make a gift of such property
to one of his own sons to the detriment of another(3); and he can make even an
unequal distribution amongst his heirs(4).
So far the law seems to be fairly settled and
there is no room for controversy. The controversy arises, however, on the
question as to what kind of interest a son would take in the self-acquired
property of his father which he receives by way of gift or testamentary bequest
from him, vis a vis his own male issue. Does it remain self-acquired property
in his (1) Vide Muddun, v. Ram, 6 W.R. 71.
(2) 25 I.A. 54.
(3) Vide Sital v. Madho T.L.R. I All. 394.
(4) Vide Bawa v. Rejeah, 10 W.R 287.
249 hands also untrammelled by the rights of
his sons and grandsons or does it become ancestral property in his hands,
though not obtained by descent, in which his male issue become co-owners with
him? This question has been answered in different ways by the different High
Courts in India which has resulted in a considerable diversity of judicial
opinion. It was held by the Calcutta High Court(1) as early as in the year 1863
that such property becomes ancestral property in the hands of his son as if he
bad inherited it from his father. In the other High Courts the questions Ion is
treated as one of construction to be decided in each case with reference to its
facts as to whether the gifted property was intended to pass to the sons an
ancestral or self-acquired, property; but here again there is a sharp cleavage
of judicial opinion. The Madras High Court has held(2) that it is undoubtedly
open to the father to determine whether the property which be has bequeathed
shall be ancestral or self-acquired but unless he expresses his intention that
it shall be self-acquired, it should be held to be ancestral. The Madras view
has been accepted by a Full Bench of the Patna High Court(3) and the latest
decision of the Calcutta High Court on this point seems to be rather leaning
towards it(4). On the other hand, the Bombay view is to hold such gifted
property as self-acquisition of the donee unless there is clear expression of
intention on the part of the donor to make it ancestral(5), and this view has
been accepted by the Allahabad and the Lahore High Courts(6). This conflict of
judicial opinion was brought to the notice of the Privy Council in Lal Ram
Singh v. Deputy Commissioner of Partabgarh(7), but the Judicial Committee left
the question open as it was not necessary to decide it in that case.(1) Vide
Muddan v. Ram 6 W.R. 71.
(2) Vide Nagalingham v. Ram Chandra, I. L.R.
24 Mad. 429.
(3) Vida Bhagwat v. Mst. Kaporni, I.L.R. 23
(4) Vida Lala Mukti Prasad v. Srimati lswari.
(8) Vide Jugmohan Das v. Sir Mangal Das. 10
(6) Vide Parsotam v. Janki Bai, I.L.R. 29 All
Amararanth v. Guran, A.I.R. 1918 La],. 394.
(7) 64 T. A. 265.
250 In view of the settled law that a
Mitakshara father has absolute right of disposition over his self-acquired
property to which no exception can be taken by his male descendants, it is in
our opinion not possible to hold that such property bequeathed or gifted to a
son must necessarily, and under all circumstances, rank as ancestral property
in the hands of the donee in which his sons would acquire co-ordinate interest.
This extreme view, which is supposed to be laid down in the Calcutta case(1) referred
to above, is sought to be supported on a two-fold ground. The first ground is
the well known doctrine of equal ownership of father and son in ancestral
property which is enunciated by Mitakshara on the authority of Yagnavalkya. The
other ground put forward is that the definition of "selfacquisition"
as given by Mitakshara does not and cannot comprehend a gift of this character
and consequently such gift cannot but be partible property as between the donee
and his sons.
So far as the first ground is concerned, the
foundation of the doctrine of equal ownership of father and son in ancestral
property is the well known text of Yagnavalkya(2) which says:
"The ownership of father and son is
co-equal in the acquisitions of the grandfather, whether land, corody or
chattel." It is to be noted that Vijnaneswar invokes this passage in
Chapter 1, section 5 of his work, where he deals with the division of
grandfather's wealth amongst his grandsons. The father's gradsons, it is said,
have a right by birth in the grand estate equally with the sons and
consequently are entitled to shares on partition, though their shares would be
determined per stirpes and not per capita. This discussion has absolutely no
bearing on the present question. It is undoubtedly true that according to
Mitakshara, the son has a right, by birth both in his father's and
grandfather's estate but as has been jointed out before. a distinction is made
in this respect by Maitakshara itself. In the ancestral or grandfather's
property (1) Vide Muddun v. Ram, 6 NY. R. 71.
(2) Vide Yagnavalkya. Book 2. 129.
251 in the hands of the father, the son has
equal rights with his father; while in the self-acquired property of the
father, his rights are unequal by reason of the father having an independent
power over or predominent interest in the same(1). It is obvious, however, that
the son can assert this equal right with the father only when the grandfather's
property has devolved upon his father and has become ancestral property in his
hands. The property of the grandfather can normally vest in the father as
ancestral property if and when the father inherits such property on the death
of the grandfather or receives it by partition, made by the Grandfather himself
during his lifetime. On both these occasions the grandfather’s property comes
to the father by virtue of the latter's legal right as a son or descendant of
the former and consequently it becomes ancestral property in his hands. But
when the father obtains the grandfather's property by way of gift, he receives
it not because he is a son or has any legal right to such property but because
his father chose to bestow a favour on him which he could have bestowed on any
other person as well. The interest which he takes in such property must depend upon
the will of the grantor. A good deal of confusion. We think has arisen by not
keeping this distinction in mind. To find out whether a property is or is not
ancestral in the hands of a particular person, not merely the relationship
between the original and the present holder but the mode of transmission also
must be looked to;
and the property can ordinarily be reckoned
as ancestral only if the present holder has got it by virtue of his being a son
or descendant of the original owner. The Mitakshara, we think, is fairly clear
on this point. It has placed the father's gifts under a separate category
altogether and in more places than one has declared them exempt from partition.
Thus in Chapter 1. section 1, placitum 19 Mitakshara refers to a text of Narada
(1) Vide Mayne's Hindu Law 11th edition, page
252 "Excepting what is gained by valour,
the wealth of a wife and what is acquired by science which are three sorts of
property exempt from partition-, and any favour conferred by a father."
Chapter 1, section 4 of Mitakshara deals with effects not liable to partition
and property "obtained through the father's favour" finds a place in
the list of things of which no partition can be directed(1). This is emphasised
in section 6 of chapter I which discusses the rights of posthumous sons or sons
born after partition. In placitum 13 'of the section it is stated that though a
son born after partition takes the whole of his father's and mother's property,
yet if the father and mother has affectionately bestowed some property upon a
separated son that must remain with him. A text of Yagnavalkya is then quoted
that "the effects which have been given by the father and by the mother
belong to him on whom they are bestowed"(2).
It may be noted that the expression
"obtained through favour of the father" (pitr prasada labdha) which
occurs in placitum 28, section 4 of Mitakshara is very significant. A
Mitakshara father can make a partition of both the ancestral and self-acquired
property in his hands any time he likes even without the concurrence of his
sons-, but if he chooses to make a partition. he has got to make it in
accordance with +the directions laid down in the law. Even the extent of
inequality, which is permissible as between the eldest and the Younger sons, is
indicated in the text(3). Nothing depends upon his own favour or discretion.
When, however, he makes a gift which is only an act of bounty, he is unfetterd
in the exercise of his discretion by any rule or dictate of law. It is in these
gifts obtained through the favour of the father that Vijnaneswar, following the
earlier sages, declares the exclusive right of the sons. We hold, therefore,
that there is no warrant for saying that according to the Mitakshara, an (1)
Vider C. Placitum 28 of Mitakshara.
(2) Vide Yagnavalkya 2, 124.
(3) Vide Mitakshara chapter 1, section 2.
253 affectionate gift by the father to the
son constitutes ipso facto ancestral property in the hands of the donee.
If this is the correct view to take, as we
think it is, it' would furnish a complete answer to the other contention
indicated above that such gifted property must be held partible between the
father and the sons as it does not come within the definition
"self-acquisition", as given by Mitakshara. In chapter 1, section 4
of his work, Vijnaneswar enumerates and deals with properties which are not
liable to partition. The first placitum of the section defines what a
"self-acquisition" is. The definition is based upon the text of
Yagnavalkya that "whatever is acquired by the coparcener himself without
detriment to the father's estate as present from a friend or a gift at
nuptials, does not appertain to the co-heirs." What is argued is this,
that as the father's gift cannot be said to have been acquired by the son without
detriment to the father's estate, it cannot be regarded as selfacquisition of
the son within the meaning of the definition given above and consequently
cannot be exempted from partition. This argument seems to us to be untenable.
Section 4 of the first chapter in Mitakshara enumerates various items of
property which, according to the author, are exempt from partition and
self-acquisition is only one of them. Father's gifts constitute another item in
the exemption list which is specifically mentioned in placitum 28 of the
section. We agree with the view expressed in the latest edition of Mayne's
Hindu Law that the father's gift being itself an exception, the provision in
placitum 28 cannot be read, as requiring that the gift must also be without
detriment to the father's estate, for it would be a palpable contradition to
say that there could be any gift by a father out of the estate without any
detriment to the estate(1). There is no contradition really between, placitum I
and placitum 28 of the section. Both are separate and independent items of
exempted properties, of which no partition can be made.
(1) Mayane's Hindu Law, 11th
edition,paragraph 280,page 344 254 Another argument is stressed in this
connection which seems to have found favour with the learned Judges of the
Patna High Court who decided the Full Bench case(1) referred to above. It is
said that the exception in regard to father's gift as laid down in placitum 28
has reference only to partition between the donee and his brothers but so far as
the male issue of the donee is concerned, it still remains partible. This
argument, in our opinion, is not sound. If the provision relating to
self-acquisition is applicable to all partitions, whether between collaterals
or between the father and his sons, there is no conceivable reason why placitum
28, which occurs in the same chapter and deals with the identical topic should
not be made applicable to all cases of partition and should be confined to
collaterals alone. The reason for making this distinction is undoubtedly the
theory of equal ownership between the father and the son ancestral property
which we have discussed already and which in our opinion is not applicable to
the father's gifts at all. Our conclusion, therefore, is that a property gifted
by a father to his son could not become ancestral property in the hands of the
donee simply by reason of the fact that the donee got it from his father or
As the law is accepted and well settled that
a Mitakshara father has complete powers of disposition over his selfacquired
property, it must follow as a necessary consequence that the father is quite
competent to provide expressly, when he makes a gift, either that the donee
would take it exclusively for himself or that the gift would be for the benefit
of his branch of the family. If there are express provisions to that effect
either in the deed of gift or a will, no difficulty is likely to arise and the
interest which the son would take in such property would depend upon the terms
of the grant. If, however, there are no clear words describing the kind of
-interest which the donee is to take, the question would be one of construction
and the court would have to collect the intention of the donor from the
language of the document taken (1) Vide Bhagwant v. Mst, Kaporni, I.L.R. 23
255 along with the surrounding circumstances
in accordance with the wellknown canons of construction. Stress would
certainly( have to be laid on the substance of the disposition and not on its
mere form. The material question which the court( would have to decide in such
cases is, whether taking the document and all the relevant facts into
consideration, it could be said that the donor intended to confer a bounty upon
his son exclusively for his benefit and capable of being dealt with by him at
his pleasure or that the apparent gift was an integral part of a scheme for
partition and what was given to the son was really the share of the property
which would normally be allotted to him and in his branch of the family on
partition. In other words, the question would be whether the grantor really
wanted to make a gift of his properties or to partition the same. As it is open
to the father to make a gift or partition of his properties as he himself
chooses, there is, strictly speaking, no presumption that he intended either
the one or the other.
It is in the light of these principles that
we would proceed now to examine the facts of this case. The will of his father
under which defendant No. I got the two items of Schedule B properties is Ex.
P-1 and is dated the 6th of June. 1912. The will is a simple document. It
recites that the testator is aged 65 and his properties are all his own which
he acquired from no nucleus of ancestral fund. He had three sons, the eldest of
whom was defendant No. 1. In substance what the will provides is that after his
death, the A Schedule properties would go to his eldest son, the B Schedule
properties to his second son and the properties described in Schedule C shall
be taken by the youngest. The sons are to enjoy the properties allotted to them
with absolute rights and with powers of alienation such as gift, exchange,
sale, etc. from son to grandson hereditarily. The testator, it seems, had
already given certain properties to the wives of his two brothers and to his
own wife also.
They were to enjoy these properties during
the terms of their natural lives and after their death, they would vest in one
or the other of his sons. as indicated in the will.
The D Schedule property 256 was set apart for
the marriage expenses of his third son and an unmarried daughter. Authority was
given to his wife to sell this property to defray the marriage expenses with
its sale proceeds.
It seems to us on reading the document in the
light of the surrounding circumstances that the dominant intention of the
testator was to make suitable provisions for those of his near relations whom
he considered to have claims upon his affection and bounty. He did not want
simply to make a division of his property amongst his heirs in the same way as
they themselves would have done after his death, with a view to avoid disputes
in the future. Had the testator contemplated a partition as is contemplated by
Hindu law, he would certainly have given his wife a share equal to that of a
son and a quarter share to his unmarried daughter. His brothers' wives would
not then come into the picture and there could be no question of his wife being
authorised to sell a property to defray the marriage expenses of his unmarried
son and daughter. The testator certainly wanted to make a distribution of his
properties in it way different from what would take place in case of intestacy.
But what is really material for our present purpose is his intention regarding
the kind of interest which his sons were to take in the properties devised to
them. Here the will is perfectly explicit and it expressly vests the sons with
absolute rights with full powers of alienation by way of sale, gift and
exchange. There is no indication in the will that the properties bequeathed
were to be held by the sons for their families or mate issues and although the
will mentions various other relations, no reference is made to sons' sons at
all. This indicates that the testator desired that his sons should have full ownership
in the properties bequeathed to them and he was content to leave entirely to
his sons the care of their own families and children. That the testator did not
want to confer upon the sons the same rights as they could have on intestacy is
further made clear by the two subsequent revocation instruments executed by the
testator. By the document Exhibit P-2 dated, the Z6th 257 of March, 1914, he
revoked that portion of his will which gave the Schedule C property to his
youngest son. As this son had fallen into bad company and was disobedient to
his father,. he revoked the bequest in his favour and gave the same properties
to his other two sons with a direction that they would pay out of it certain
maintenance allowance to their youngest brother, or to his family if he got
There was a second revocation instrument,
namely, Exhibit P3, executed on 14th April, 1914, by which the earlier revocation
was cancelled and the properties intended to be given to the youngest son were
taken away from the two brothers and given to his son-in-law and the legatee
was directed to hand them over to the third son whenever he would feel confident
that the latter had reformed himself properly. In our opinion, on reading the
will as a whole the conclusion becomes clear that the testator intended the
legatees to take the properties in absolute right as their own selfacquisition
without being fettered in any way by the rights of their sons and grandsons. In
other words, he did not intend that the property should be taken by the sons as
ancestral property. The result is that the appeal is allowed, the judgments and
decrees of both the courts below are set aside and the plaintiff's suit is
dismissed. Having regard to the fact that the question involved in this case is
one of considerable importance upon which there was considerable difference of
judicial opinion that the plaintiff himself is a pauper, we direct that each
party shall bear his own costs in all the courts.
Agent for the appellant: S. Subramanian.
Agent for the respondent No. 1: M.S.K.