9911796707
TMI Blog1950 (8) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... acquired property of the mortgagor's father; but the learned first appellate Judge, who was the final Court of fact, has found that the property was the self-acquired property of the mortgagor's father. There was a concession made besides on behalf of the mortgagor's sons that the property was the self-acquired property of the mortgagor and that there had been a partition made by the father of this property during his lifetime, by which he gave to the mortgagor the share which he mortgaged. The principal contention which now remains is as to whether, even though the father purported to partition his self-acquired property between his sons, that transaction could be effected without a registered instrument. The learned advocate w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s self-acquired property. He insisted that so far as the property which was derived from a line of ancestors was concerned, the division would have to be equal; it' could not be unequal. 4. It is contended, however, on behalf of the plaintiffs, mortgagor's sons, that even if the father was entitled to give the sons shares in his self-acquired property by a partition during his lifetime, that does not give the sons a good title. It is pointed out that sometimes, whether at the time of a partition or otherwise, it may be open to a manager of a Hindu family to make small gifts of property, whether movable or immovable, and it is said that, if there is the right to make a gift of immovable property under the Hindu law, notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that he proposed to make a division of his property between his sons and with that object in view was throwing the self-acquired property into the hotchpot, he could not possibly have contended that, as a matter of fact, any further gift deed is necessary; but he says that in this case there has never been raised any contention that the father threw his self-acquired property into the hotchpot, and consequently such a contention should not be allowed to be taken up by the mortgagee. Now, we can see that in this case the mortgagee at no time raised a contention that the father threw his self-acquired property into the hotchpot; but we are not considering the question as to whether in the particular circumstances of this case the father can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically for the purpose of making a partition between the sons, then we fail to understand why the power of the father to make an unequal division, so far as his self-acquired property is concerned, should disappear merely by the act of the property being thrown into the hotchpot. The Mitakshara includes both self-acquired property as well as property which is ancestral or joint family property by the word ^^nk;]** and, in our view, when the father is treating what is his self-acquired property in the same manner in which he treats joint family property or ancestral property, by proceeding to distribute it between his sons during his lifetime there is nothing in that act which would come in the way of his making an unequal distribution, so f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
