C.N. Arunachala Mudaliarv. C.A. MuruganathaMudaliar 1954 SCR 243: AIR 1953 SC 495

Case Summary

Full Case Details

B. K. MUKHERJEA, J.-2. The suit was commenced by the plaintiff, who is Respondent 1 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, Defendant 1, and his brother, Defendant 2, and that he was entitled in law to one-third
share in the same. It appears that the plaintiff and Defendant 2, who are two brothers, are both
sons of Defendant 1 by his first wife who predeceased her husband. After the death of plaintiff’s
mother, Defendant 1 married again and his second wife is Defendant 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 para 11 of the plaint that there is a sum of about Rs
15,000 deposited in the name of the first defendant in Erode Urban Bank Limited; that money
also belongs to the joint family and the plaintiff is entitled to his share therein.

3. Defendant 1 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 1 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
4. 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,
   Defendant 3.
5. Defendant 2, who is the brother of the plaintiff, supported the plaintiff’s case in its entirety.
   Defendant 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.
6. After hearing the case the trial Judge came to the conclusion that the properties bequeathed
   to Defendant 1 by his father should be held to be ancestral properties in his hands and as the other
   properties were acquired by Defendant 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.
7. Against this decision, Defendant 1 took an appeal to the High Court of Madras. The High
   Court dismissed the appeal with this variation that the jewels – such of them as existed – were held
   to belong to Defendant 3 alone and the plaintiff’s claim for partition of the furniture and brass
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   utensils was dismissed. The High Court rejected Defendant 1’s application for leave to appeal to
   this Court but he succeeded in getting special leave under Article 136 of the Constitution.
8. The substantial point that requires consideration in the appeal is, whether the properties
   that Defendant 1 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 Defendant
   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.
9. 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 I,
   Section 1 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 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.”
10. Quite at variance with this precept which seems to restrict the father’s right of disposition
    over his self-acquired 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 acquised,
    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
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    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.”
    Clearly the latter passages are in flat contradiction with the previous ones and in an early
    Calcutta case [Muddunv. Ram, 6 WR 71], 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[25 IA 54] and Lord Hobhouse
    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 I, 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 a 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 but he can make a gift of such property to one of his own
    sons to the detriment of another [Sitalv. Madho, ILR 1 All 394]; and he can make even an
    unequal distribution amongst his heirs [Bawav. Rajah, 10 WR 287].
11. 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 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 as
    early as in the year 1863 that such property becomes ancestral property in the hands of his son as
    if he had inherited it from his father. In the other High Courts the question 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 as ancestral or self-acquired property; but here again there is a
    sharp cleavage of judicial opinion. The Madras High Court has held [Nagalinghamv. Ram
    Chandra, ILR 24 Mad 429] that it is undoubtedly open to the father to determine whether the
    property which he 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 [Bhagwat v.Mst. Kaporni, ILR 23 Pat
    599] and the latest decision of the Calcutta High Court on this point seems to be rather leaning
    towards it [Lala Mukti Prasad v. Srimati Iswari, 24 CWN 938]. On the other hand, the Bombay
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    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 [Jugmohan Das v. Sir
    Mangal Das, 10 Bom 528], and this view has been accepted by the Allahabad and the Lahore
    High Courts [Parsotamv.Janki Bai, ILR 29 All 354; Amarnath v. Guran, AIR 1918 Lah 394].
    This conflict of judicial opinion was brought to the notice of the Privy Council in Lal Ram Singh
    v. Deputy Commissioner of Partapgarh[64 IA 265] but the Judicial Committee left the question
    open as it was not necessary to decide it in that case.
12. In view of the settled law that a Mitakshara father has right of disposition over his selfacquired 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 referred to above, is sought to be supported on a twofold 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 “self-acquisition” 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.
13. 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
    [YaganavalkyaBook 2, 129] 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 I, Section 5 of his work, where
    he deals with the division of grandfather’s wealth amongst his grandsons. The grandsons, it is
    said, have a right by birth in the grandfather’s 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 pointed out before, a distinction is made in this respect by
    Mitaksharaitself. In the ancestral or grandfather’s property 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 predominant interest in the
    same [Mayne’s Hindu Law, 11th Ed., p. 336] 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
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    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 I, 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 I, 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 [Section 4, 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 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” [Yaganavalkya 2, 124].
14. It may be noted that the expression “obtained through favour of the father” which occurs
    in Placitum 28, Section 4 of Mitaksharais 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
    [MitChapter I, Section 2]. Nothing depends upon his own favour or discretion. When, however,
    he makes a gift which is only an act of bounty, he is unfettered 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 affectionate gift
    by the father to the son constitutes ipso facto ancestral property in the hands of the donee.
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15. 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 of “self-acquisition”, as given by
    Mitakshara. In Chapter I, 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 “selfacquisition” 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 self-acquisition 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 Lawthat 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 contradiction to say that there could be any gift by a father out of the estate without
    any detriment to the estate [Mayne’s Hindu Law, 11th ed., para. 280, p. 344]. There is no
    contradiction really between placitum 1 and placitum 28 of the section. Both are separate and
    independent items of exempted properties, of which no partition can be made.
16. 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 Bhagwat v.Mst.
    Kaporni [ILR 23 Pat 599] 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 in the 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 ancestor.
17. As the law is accepted and well settled that a Mitakshara father has complete powers of
    disposition over his self-acquired 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.
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    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 along with the surrounding
    circumstances in accordance with the well known 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.
18. 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 1 got the two items of Schedule B properties
    is Ex. P-1 and is dated 6-5-1912. 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 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 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.
19. 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
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    certainly wanted to make a distribution of his properties in a 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 male 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 26-3-1914, 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 thatthey 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 14-4-1914, 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 self-acquisition 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.