9911796707
TMI Blog1953 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff 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 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 ₹ 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 therein. The defendant No. I in his written stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 carefully. 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 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 es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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(Vide Sital v. Madho T.L.R. I All. 394.); and he can make even an unequal distribution amongst his heirs(Vide Bawa v. Rejeah, 10 W.R 287). 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 fat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty 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(Vide Muddun v. Ram, 6 NY. R. 71.) 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(Vide Yagnavalkya. Book 2. 129.) which says: The ownership of father and son is co-equal in the acquisitions of the grand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which says: 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(Vider C. Placitum 28 of Mitakshara.). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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(Mayane s Hindu Law, 11th edition,paragraph 280,page 344). 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. 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(Vide Bhagwant v. Mst, Kaporni, I.L.R. 23 Pat. 599.) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 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 married. There was a second revocation instrument, namely, Exhibit P- 3, 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 prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
