# GOVINDBHAI CHHOTABHAI PATEL & ORS v. PATEL RAMANBHAI MATHURBHAI

- **Citation:** [2019] 13 S.C.R. 152
- **Court:** Supreme Court of India
- **Decided:** 2019-09-23
- **Case number:** Civil Appeal No. 7528 of 2019
- **Bench:** L. Nageswara Rao, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/govindbhai-chhotabhai-patel-ors-v-patel-ramanbhai-mathurbhai-33243
- **Pages:** 25

## Headnote

Hindu Law - Self-acquired property bequeathed by the father
in favour of the son - Nature of such property in the hands of the
son - Appellants-plaintiffs are sons of the Donor (since deceased)
- During his life time, the Donor purportedly executed gift deed in
favour of the defendant-donee - Trial Court recorded finding that
the property was ancestral - Upheld by the First Appellate Court -
High Court held that the property was not ancestral in the hands of
the Donor and hence, he was competent to execute the gift deed -
On appeal, held: Admittedly, the grandfather of the appellants
purchased the property, and such self-acquired property came to
be bequeathed by him to the Donor through Will - Thus, the
grandfather of the appellant was competent to execute the Will in
favour of any person and since the beneficiary of the Will was his
son (the Donor) thus, in the absence of any intention in the Will,
beneficiary would acquire the property as self-acquired property -
Appellants stated in the cross-examination that there was family
partition in 1964 between the Donor and his two brothers - A
statement in the cross-examination that there was partition between
the Donor and his two brothers will not make the property ancestral
in the hands of the Donor - Burden of proof that the property was
ancestral was on the plaintiffs (appellants) alone - It was for them
to prove that the Will of their grandfather intended to convey the
property for the benefit of the family so as to be treated as ancestral
property - In the absence of any such averment or proof, the property
in the hands of Donor has to be treated as self-acquired - Once the
property in the hands of Donor is held to be self-acquired, he is
competent to deal with it in manner he considers proper including
by executing gift deed in favour of a stranger to the family - Further,
appellants admitted the execution of the gift deed but alleged it to
be forged/fabricated - In the absence of any evidence of forgery/
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fabrication and specific denial of the execution of the gift deed, the
Donee was under no obligation to examine one of the attesting
witnesses of the gift deed - As per evidence on record, the Donee
was taking care of the Donor for many years - Appellants were
residing in the United States but failed to take care of their parents
- Therefore, the father of the appellants executed gift deed in favour
of a person who stood by him - No error in the findings recorded
by the High Court- Transfer of Property Act, 1882- s.123 - Indian
Succession Act, 1925 - s.63 - Evidence Act, 1872 - s.68 - Code of
Civil Procedure, 1908 - s.100 and Or. VI, r.4.
Evidence Act, 1872 - s.68 - Appellants-plaintiffs are sons of
the Donor (since deceased) - During his life time, the Donor
purportedly executed gift deed in favour of the defendant-donee -
Trial Court recorded finding that the property was ancestral -
Upheld by the First Appellate Court - High Court held that the
property was not ancestral in the hands of the Donor and hence,
he was competent to execute the gift deed - Held: s.68 makes it
mandatory to examine one of the attesting witnesses for the purpose
of proving of the execution of Will but such limitation is not
applicable in respect of proof of execution of any document which
has been registered in accordance with provisions of the 1908 Act,
unless the execution is specifically denied - In the present case, the
entire reading of the plaint does not show that there was any specific
denial of execution of the gift deed - Thus, in view of the absence
of specific denial of the execution of the gift deed, the Donee was
under no obligation to examine one of the attesting witnesses of the
gift deed- Indian Registration Act, 1908.
Dismissing the appeal, the Court
HELD: 1.1 PW-1 has stated, vide Exhibit 34, that the
property in question was purchased by his grandfather and after
death of his grandfather, property was owned by the Donor
accordi

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SUPREME COURT REPORTS
[2019] 13 S.C.R.
GOVINDBHAI CHHOTABHAI PATEL & ORS.
v.
PATEL RAMANBHAI MATHURBHAI
(Civil Appeal No. 7528 of 2019)
SEPTEMBER 23, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Hindu Law - Self-acquired property bequeathed by the father
in favour of the son - Nature of such property in the hands of the
son - Appellants-plaintiffs are sons of the Donor (since deceased)
- During his life time, the Donor purportedly executed gift deed in
favour of the defendant-donee - Trial Court recorded finding that
the property was ancestral - Upheld by the First Appellate Court -
High Court held that the property was not ancestral in the hands of
the Donor and hence, he was competent to execute the gift deed -
On appeal, held: Admittedly, the grandfather of the appellants
purchased the property, and such self-acquired property came to
be bequeathed by him to the Donor through Will - Thus, the
grandfather of the appellant was competent to execute the Will in
favour of any person and since the beneficiary of the Will was his
son (the Donor) thus, in the absence of any intention in the Will,
beneficiary would acquire the property as self-acquired property -
Appellants stated in the cross-examination that there was family
partition in 1964 between the Donor and his two brothers - A
statement in the cross-examination that there was partition between
the Donor and his two brothers will not make the property ancestral
in the hands of the Donor - Burden of proof that the property was
ancestral was on the plaintiffs (appellants) alone - It was for them
to prove that the Will of their grandfather intended to convey the
property for the benefit of the family so as to be treated as ancestral
property - In the absence of any such averment or proof, the property
in the hands of Donor has to be treated as self-acquired - Once the
property in the hands of Donor is held to be self-acquired, he is
competent to deal with it in manner he considers proper including
by executing gift deed in favour of a stranger to the family - Further,
appellants admitted the execution of the gift deed but alleged it to
be forged/fabricated - In the absence of any evidence of forgery/
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fabrication and specific denial of the execution of the gift deed, the
Donee was under no obligation to examine one of the attesting
witnesses of the gift deed - As per evidence on record, the Donee
was taking care of the Donor for many years - Appellants were
residing in the United States but failed to take care of their parents
- Therefore, the father of the appellants executed gift deed in favour
of a person who stood by him - No error in the findings recorded
by the High Court- Transfer of Property Act, 1882- s.123 - Indian
Succession Act, 1925 - s.63 - Evidence Act, 1872 - s.68 - Code of
Civil Procedure, 1908 - s.100 and Or. VI, r.4.
Evidence Act, 1872 - s.68 - Appellants-plaintiffs are sons of
the Donor (since deceased) - During his life time, the Donor
purportedly executed gift deed in favour of the defendant-donee -
Trial Court recorded finding that the property was ancestral -
Upheld by the First Appellate Court - High Court held that the
property was not ancestral in the hands of the Donor and hence,
he was competent to execute the gift deed - Held: s.68 makes it
mandatory to examine one of the attesting witnesses for the purpose
of proving of the execution of Will but such limitation is not
applicable in respect of proof of execution of any document which
has been registered in accordance with provisions of the 1908 Act,
unless the execution is specifically denied - In the present case, the
entire reading of the plaint does not show that there was any specific
denial of execution of the gift deed - Thus, in view of the absence
of specific denial of the execution of the gift deed, the Donee was
under no obligation to examine one of the attesting witnesses of the
gift deed- Indian Registration Act, 1908.
Dismissing the appeal, the Court
HELD: 1.1 PW-1 has stated, vide Exhibit 34, that the
property in question was purchased by his grandfather and after
death of his grandfather, property was owned by the Donor
according to the inheritance since 1952-1953. The appellants
stated in the cross-examination that there was family partition in
the year 1964 between the Donor and his two brothers. It is,
thus, sought to be argued that since the property was partitioned
in 1964, therefore, the Donor has acquired the property not as
self-acquired property but as ancestral property. A statement in
the cross-examination that there was partition between the Donor
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL
RAMANBHAI MATHURBHAI
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and his two brothers will not make the property ancestral in the
hands of Donor. The Will executed by the father of Donor has not
been produced by the appellants to show as to what was intended
by his grandfather when the Will was executed in favour of Donor.
It is admitted fact that grandfather purchased the property, thus,
such self-acquired property came to be bequeathed to the Donor
even as per the judgment relied upon by the Appellant. The
grandfather of the appellants purchased the property, therefore,
he was competent to execute the Will in favour of any person.
Since the beneficiary of the Will was his son and in the absence of
any intention in the Will, beneficiary would acquire the property
as self-acquired property in terms of C.N. Arunachala Mudaliar
case. The burden of proof that the property was ancestral was on
the plaintiffs alone. It was for them to prove that the Will intended
to convey the property for the benefit of the family so as to be
treated as ancestral property. In the absence of any such averment
or proof, the property in the hands of Donor has to be treated as
self-acquired property. Once the property in the hands of Donor
is held to be self-acquired property, he was competent to deal
with his property in such a manner he considers as proper
including by executing a gift deed in favour of a stranger to the
family. A gift deed is required to be compulsorily attested in terms
of Section 123 of the Transfer of Property Act, 1882. Similar is
the provision in respect of execution of a Will which is required
to be attested in terms of Section 63 of the Indian Succession
Act, 1925. Section 68 of the Evidence Act makes it mandatory to
examine one of the attesting witnesses for the purpose of proving
of the execution of Will but such limitation is not applicable in
respect of proof of execution of any document which has been
registered in accordance with provisions of the Indian
Registration Act, 1908, unless the execution is specifically denied.
[Paras 10, 11, 21 and 24][160-E-G; 166-F-H; 167-A, E-F]
1.2 The appellants refer to Will dated December 3, 2001
said to be executed by the Donor in their favour. But no issue
has been framed in respect of Will propounded by the appellants.
In fact, no attesting witness of the Will has been examined.
Therefore, the Will relied upon by the appellants cannot be said
to be proved. [Para 28][170-C]
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1.3 Though the learned Trial Court has discussed the
evidence on record but in view of the finding that the property is
ancestral, no finding was recorded whether the gift deed is forged
or not as per the issue framed. The First Appellate Court in a
short judgment affirmed the finding of the learned Trial Court.
The Trial Court has not returned any finding that the gift deed is
forged. Therefore, the High Court was within its jurisdiction to
decide the Issue No.1 on the basis of evidence led by the parties.
The entire reading of the plaint does not show that there was any
specific denial of execution of the gift deed. [Paras 30, 31]
[171-E-G]
1.4 Order VI Rule 4 of the Code of Civil Procedure, 1908
warrants that in all cases in which allegation of any
misrepresentation, fraud, breach of trust, wilful default, or undue
influence, the necessary particulars are required to be stated in
the pleadings. The appellants went to trial on the basis of
fabrication of gift deed. The appellants have admitted the gift
deed but alleged the same to be forged or fabricated. However,
the appellants have not been able to prove any forgery in the
execution of the gift deed. [Paras 36, 38][173-D-G]
1.5 The facts of the present case are akin to the facts which
were before the Kerala High Court in Kannan Nambiar. The
appellants have not denied the execution of the document but
alleged forgery and fabrication. In the absence of any evidence of
any forgery or fabrication and in the absence of specific denial of
the execution of the gift deed in the manner held in Kannan
Nambiar, the Donee was under no obligation to examine one of
the attesting witnesses of the gift deed. As per evidence on record,
the Donee was taking care of the Donor for many years. The
appellants were residing in the United States but failed to take
care of their parents. Therefore, the father of the appellants
executed gift deed in favour of a person who stood by him. There
is no error in the findings recorded by the High Court. Thus, no
error found in the judgment of the High Court which may warrant
interference in the present appeal. [Paras 41, 42][176-B-E]
Shyam Narayan Prasad v. Krishna Prasad & Ors. (2018)
7 SCC 646 : [2018] 5 SCR 36 - distinguished.
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL
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Rosammal Issetheenammal Fernandez (Dead) by LRs
& Ors. v. Joosa Mariyan Fernandez & Ors. (2000) 7
SCC 189 : [2000] 2 Suppl. SCR 336; K. Laxmanan v.
Thekkayil Padmini & Ors. (2009) 1 SCC 354 : [2008]
16 SCR 1117 - held inapplicable.
C.N. Arunachala Mudaliar v. C.A. Muruganatha
Mudaliar & Anr. AIR 1953 SC 495 : [1954] SCR 243
- relied on.
Dashrath Prasad Bajooram v. Lallosingh Sanmansingh
& Anr. AIR 1951 Nag 343; Kannan Nambiar v.
Narayani Amma & Ors. 1984 KLT 855 - approved.
Thulasidhara & Anr. v. Narayanappa & Ors. (2019) 6
SCC 409; Jugmohan Das v. Sir Mangal Das (1886)
I.L.R. 10 Bom 528; Parsotam v. Janki Bai, ILR 29 All
354; Amarnath v. Guran, AIR 1918 Lah 394; Pulavarthi
Venkata Subba Rao & Ors. v. Valluri Jagannadha Rao
(deceased) by his Heirs & LRs & Ors. AIR 1967 SC
591 : [1964] SCR 310; Badat and Co. Bombay v. East
India Trading Co. AIR 1964 SC 538 : [1964] SCR 19
- referred to.
Case Law Reference
(2019) 6 SCC 409
referred to
Para 7
[1954] SCR 243
relied on
Para 7
[2018] 5 SCR 36
distinguished
Para 7
(1886) I.L.R. 10 Bom 528
referred to
Para 14
ILR 29 All 354
referred to
Para 15
AIR 1918 Lah 394
referred to
Para 15
[1964] SCR 310
referred to
Para 18
[2000] 2 Suppl. SCR 336
held inapplicable
Para 32
[2008] 16 SCR 1117
held inapplicable
Para 32
[1964] SCR 19
referred to
Para 37
AIR 1951 Nag 343
approved
Para 39
1984 KLT 855
approved
Para 40
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7528
of 2019.
From the Judgment and Order dated 05.09.2018 of the High Court
of Gujarat at Ahmedabad in Second Appeal No. 211 of 2018
Mukul Rohatgi, Sr. Adv., A. R. Gupta, Aditya Gupta, Ms. Devanshi
Popat and Prateek K Chadha, Advs. for the Appellants.
Nakul Dewan, Sr. Adv., Pradhuman Gohil, Mrs. Taruna Singh
Gohil, Ms. Ranu Purohit and Shiva P., Advs. for the Respondent.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. Leave granted.
2. The order passed by the High Court of Gujarat on September
5, 2018 in second appeal is the subject matter of challenge in the present
appeal on behalf of the plaintiffs-appellants.
3. The appellants are sons of Chhotabhai Ashabhai Patel1 who
died on December 6, 2001. During his life time, he purportedly executed
a gift deed dated November 15, 1977 in favour of defendant Ramanbhai
Mathurbhai Patel2.
4. The parties went to trial on the following issues:
(i) Whether the plaintiffs prove that the disputed gift deed is
fabricated?
(ii) Whether the plaintiffs prove that the suit properties are
ancestral properties and late Chhotabhai Ashabhai had no right to execute
the gift deed?
(iii) Whether the plaintiffs prove that the defendant has no right,
title or interest over the said property?
(iv) Whether the plaintiffs prove that they are entitled to get the
relief as prayed for?
(v) Whether the defendant proves that the plaintiffs have no right
to file the present suit?
(vi) What order and decree?
1 for short, 'Donor'
2 for short, 'Donee'
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL
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5. The High Court framed five substantial questions of law and
after giving findings on such substantial questions of law, the judgment
and decree passed by the learned Trial Court on February 10, 2014 and
the judgment and decree passed by the First Appellate Court on October
9, 2017 were set aside.
6. The findings recorded by the High Court, inter alia, are that
execution of the gift deed was not specifically denied in the suit filed.
Therefore, it is not necessary for the Donee to examine one of the
attesting witnesses in terms of proviso to Section 68 of the Indian
Evidence Act, 18723. It is also held that the suit property is not ancestral
property. The property was purchased by Ashabhai Patel, father of the
Donor and it is by virtue of Will executed by Ashabhai Patel, property
came to be owned by the Donor in the year 1952-1953. The High Court,
thus, held that the Donor was competent to execute the gift deed dated
November 15, 1977 as the property was not ancestral in the hands of
Donor. The relevant findings on such questions which arose for
consideration in the second appeal, read as under:
"92. Once again, at the cost of repetition, I state that Section 68
of the Evidence Act has been thoroughly misconstrued by the
Courts below. The occasion for applying the rule of exclusion
from evidence in Section 68 arises when a party seeking to rely
upon a document requiring attestation, fails to prove it in a given
manner. As observed by me earlier, the party will then not be able
to use it as evidence. But this procedural disability against use of
a document as evidence cannot by any stretch be regarded as an
affirmative finding that the grounds of attack for avoidance of the
deed as claimed in the original relief or cancellation subsisted.
The plaintiff cannot succeed relying upon the weakness or a flaw
in the case set up by the defendant. The law is that the plaintiff
can succeed in the suit only on the strength of his own case.
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105. The case of the plaintiffs is very specific. According to them,
the suit properties were purchased by their grandfather and those
properties came to be devolved upon their father by Testamentary
disposition i.e. on the strength of the will of their grandfather.
The Hindu Law, as it stands today, clearly postulates that if it is a
3 for short, 'Evidence Act'
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self-acquired property of the father, it falls into the hands of his
sons not as coparcenary property, but would devolve on them in
their individual capacity. Where the property is a self-acquired
property of the father, it falls into the hands of his son in his
individual capacity and not as coparcenary property in such case
son's son cannot claim right in such property.
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108. In view of the above, I hold that the suit properties devolved
upon the father of the plaintiffs could not be said to be coparcenary
property. The properties were purchased by the grandfather of
the plaintiffs, as pleaded and admitted by the plaintiffs themselves.
Such self-acquired properties of the grandfather came to be
devolved upon the father of the plaintiffs by way of a 'will' i.e.
testamentary disposition. In such circumstances, it could be said
that the properties are self-acquired properties of the father of
the plaintiffs. The succession would have been in accordance
with Section 8 of the Hindu Succession Act. When the properties
could be said to be self-acquired properties of the father of the
plaintiffs, then the father could have definitely transferred those
properties by way of a gift deed.
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114. In view of the above, I hold that the suit properties were selfacquired properties of the father of the plaintiffs, and in such
circumstances, it was open for the father of the plaintiffs to execute
the gift deed in favour of the defendant."
7. Learned counsel for the appellants submitted that the High
Court has exceeded its jurisdiction in second appeal as findings recorded
by the First Appellate Court were not specifically dealt with. It is, thus,
argued that the interference in the second appeal is contrary to judgment
of this Court in Thulasidhara & Anr. v. Narayanappa & Ors.4. It is
argued that the appellants have produced old revenue record and from
the documents (Exhibits 107 to 126), the property is proved to be ancestral
and such is the finding recorded by the Trial Court and the First Appellate
Court. Such evidence was not controverted by the Donee. It is argued
that the findings recorded by the High Court that the property devolved
on the Donor by virtue of a Will, therefore, it ceases to be an ancestral
4 (2019) 6 SCC 409
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL
RAMANBHAI MATHURBHAI [HEMANT GUPTA, J.]
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property is contrary to the judgment of this Court in C.N. Arunachala
Mudaliar v. C.A. Muruganatha Mudaliar & Anr.5. The reliance is
also placed upon judgment of this Court in Shyam Narayan Prasad v.
Krishna Prasad & Ors.6 that self-acquired property of a grandfather
devolves upon his son as ancestral property.
8. On the other hand, learned counsel for the Donee argued that
the plaintiffs have failed to prove that the property was ancestral property
after admitting that their grandfather has purchased the property and
given it under Will to their father to the exclusion of other family members.
The argument raised by learned counsel for the appellants that the High
Court has exceeded its jurisdiction by reversing the findings of fact
recorded by the First Appellate Court does not hold good as the very
reasoning recorded has been found to be illegal. It is argued that judgment
in C.N. Arunachala Mudaliar is to the effect that the property
bequeathed or gifted to a son by a Mitakshara father will be treated as
self-acquired property in the hands of Donee.
9. The first and the foremost question required to be examined is
as to whether the appellants have proved that the property in the hands
of Donor was ancestral property.
10. Govindbhai Chhotabhai Patel (PW-1) has stated, vide Exhibit
34, that the property in question was purchased by his grandfather
Ashabhai Patel and after death of his grandfather, property was owned
by the Donor according to the inheritance since 1952-1953. The
appellants stated in the cross-examination that there was family partition
in the year 1964 between the Donor and his two brothers Chimanbhai
Patel and Motibhai Patel. It is, thus, sought to be argued that since the
property was partitioned in 1964, therefore, the Donor has acquired the
property not as self-acquired property but as ancestral property.
11. We find that a statement in the cross-examination that there
was partition between the Donor and his two brothers will not make the
property ancestral in the hands of Donor. The Will executed by the father
of Donor has not been produced by the appellants to show as to what
was intended by his grandfather when the Will was executed in favour
of Donor. It is admitted fact that grandfather purchased the property,
thus, such self-acquired property came to be bequeathed to the Donor
even as per the judgment relied upon by the Appellant.
5 AIR 1953 SC 495
6 (2018) 7 SCC 646
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12. This Court in three Judge Bench in C.N. Arunachala Mudaliar
considered the question as to whether the properties acquired by
defendant No. 1 under Will are to be regarded as ancestral or selfacquired property in his hands. It is a case where the plaintiff claimed
partition of the property in a suit filed against his father and brother. The
stand of the father was that the house property was the self-acquired
properties of his father and he got them under a Will executed in the
year 1912. It was held that 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. The Court while examining the question as
to what kind of interest a son would take in the self-acquired property of
his father which he receives by gift or testamentary bequest from him, it
was held that Mitakshara father has absolute right of disposition over his
self-acquired property to which no exception can be taken by his male
descendants. It was held that it was not possible to hold that such
property bequeathed or gifted to a son must necessarily rank as ancestral
property. It was further held 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.
13. The Court found that such questions have been answered in
different ways by different High Courts. The Calcutta High Court held
that properties become ancestral property in the hands of his son as if he
had inherited it from his father but in 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.
14. The Bombay High Court in Jugmohan Das v. Sir Mangal
Das7 held that if the son takes by devise, the property continues to be
self-acquired in his hands. A man can give away his self-acquired property
to whomsoever it pleases, including his own sons and that property so
given would be considered self-acquired in the hands of the donee. The
Court held as under:
"I now come to the question, whether a son, to whom a father
leaves his self-acquired property by will, takes the estate by devise
or by descent. This is a most important point, perhaps the most
important point in the case. For, if the son takes by devise, the
7 (1886) I.L.R. 10 Bom 528
GOVINDBHAI CHHOTABHAI PATEL & ORS. v. PATEL
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property would, in my opinion, continue to be self-acquired in his
hands, and a ready means would be afforded by the use of the
testamentary power of checking enforced partitions...
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The principle is now settled beyond question, that under Hindu
law a man may alienate his property to the same extent by a will
as he might by a gift inter vivos. In the Tagore Case (Ind. Ap.
Sup. Vol. at p. 68) their Lordships of the Privy Council say: "A
gift by will is, until revocation, a continuous act of gift up to the
moment of death, and does then operate to give the property
disposed of to the persons designated as beneficiaries. They take,
upon the death of the testator, as if he had given the property in
his life-time."
A bequest by will, therefore, is a gift made in contemplation of
death. It only differs from a gift in the fact that it takes effect at a
future time instead of immediately. But it must clearly be governed
and controlled by the general rules regarding gift. Now, there is
no doubt that a man can give away self-acquired property to
whomsoever he pleases, including his own sons; and there is no
doubt that property so given would be considered self-acquired in
the hands of the donee. It would, therefore, follow that property
given by will would equally be self-acquired in the hands of the
devisee."
15. Such view of the Bombay High Court was accepted by the
Allahabad High Court8 and the Lahore High Court9. This Court in C.N.
Arunachala Mudaliar approved the view of the Bombay High Court
and held as under:
"9. ... 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
8 Parsotam v. Janki Bai, ILR 29 All 354
9 Amarnath v. Guran, AIR 1918 Lah 394
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the concurrence of his sons [Vide Muddun v. Ram, 6 WR 71] but
he can make a gift of such property to one of his own sons to the
detriment of another [ Vide Sital v. Madho, ILR 1 All 394] ; and
he can make even an unequal distribution amongst his heirs [Vide
Bawa v. Rajah, 10 WR 287].
10. 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, untrammeled
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?......
11. In view of the settled law that a Mitakshara father has 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..."
16. Still further, it was held that the father's gifts are exempt from
partition. The reason for this distinction is that the theory of equal
ownership between the father and the son in the ancestral property is
not applicable to the father's gifts at all. The Court held as under:
"12. ...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
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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."
xx
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xx
15. 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 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. This Court further held that on reading of the Will as a whole,
the conclusion becomes clear that the testator intended the legatees to
take the properties in absolute rights as their own self-acquired property
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. Consequently, the appeal was
allowed and the suit for partition by the son against his father was
dismissed.
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18. In other case reported as Pulavarthi Venkata Subba Rao &
Ors.v. Valluri Jagannadha Rao (deceased) by his Heirs & LRs &
Ors.10, life estate was given by Valluri Jagannadha Rao to his two sons,
Srivatsankara Rao and Narasimha Rao. There was a condition that if
any of his sons left no son, the sons of his other son would be entitled to
the properties at the end of the life estate. The High Court held that the
properties taken by two sons of Narasimha Rao under Will were their
separate properties and not ancestral properties as there was no such
intention in the Will. This Court held as under:
"8. The contention of the judgment-debtors was that there were
two persons who were legatees under the will. They took the
villages not as ancestral properties but as self-acquired properties,
and the peshkash payable on these two villages must be divided
between them before Section 3(ii), proviso (D) of the Act was
made applicable. The contention on the side of the decree-holders
was that these properties were held by an undivided Hindu family
and the sons of Narasimha Rao took the properties under the will
as ancestral properties, and the peshkash in respect of the two
villages must be added together for the purpose of the application
of the said proviso. The High Court held that the properties taken
by the two sons of Narasimha Rao under the will, were their
separate properties and not ancestral properties, as there were
no words to show a contrary intention. The High Court also
referred to the conduct of the respondents in partitioning the villages
and held that the property was held not jointly but in definite shares.
The High Court, therefore, held that the peshkash in respect of
the two villages could not be aggregated. The High Court,
accordingly, broke up the peshkash in respect of Kalagampudi
and the three-fifth share of Pedamamidipalli into two halves and
held that as each son of Narasimha Rao was required to pay only
his share, the peshkash paid by them individually did not exceed
Rs 500 mentioned in proviso (D), and that the judgment-debtors
were, therefore, agriculturists. This part of the case was not
challenged before us by the learned Advocate-General of Andhra
Pradesh. Indeed, the decision of the High Court is supported by
C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar
[(1954) SCR 243], in respect of the character of the property
10 AIR 1967 SC 591
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inherited by the two sons of Narasimha Rao, and this fundamental
fact could not be questioned....."
19. Learned counsel for the appellants has referred to Shyam
Narayan Prasad. That is a case in which the property in question was
held to be ancestral property by the Trial Court. The plaintiffs therein
being sons and grandson of one of the sons of Gopal Prasad, the last
male holder was found to have equal share in the property. The question
examined was whether the property allotted to one of the sons of Gopal
Prasad in partition retains the character of coparcenary property. It was
the said finding which was affirmed by this Court. This Court held as
under:
"12. It is settled that the property inherited by a male Hindu from
his father, father's father or father's father's father is an ancestral
property. The essential feature of ancestral property, according
to Mitakshara Law, is that the sons, grandsons, and great grandsons
of the person who inherits it, acquire an interest and the rights
attached to such property at the moment of their birth. The share
which a coparcener obtains on partition of ancestral property is
ancestral property as regards his male issue. After partition, the
property in the hands of the son will continue to be the ancestral
property and the natural or adopted son of that son will take interest
in it and is entitled to it by survivorship."
20. The question examined in the aforesaid case was in respect
of status of the property after partition. The said question is not arising in
the present case as it is not a question of partition but testamentary
succession in favour of the Donee.
21. In view of the undisputed fact, that Ashabhai Patel purchased
the property, therefore, he was competent to execute the Will in favour
of any person. Since the beneficiary of the Will was his son and in the
absence of any intention in the Will, beneficiary would acquire the
property as self-acquired property in terms of C.N. Arunachala
Mudaliar case. The burden of proof that the property was ancestral
was on the plaintiffs alone. It was for them to prove that the Will of
Ashabhai intended to convey the property for the benefit of the family
so as to be treated as ancestral property. In the absence of any such
averment or proof, the property in the hands of Donor has to be treated
as self-acquired property. Once the property in the hands of Donor is
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held to be self-acquired property, he was competent to deal with his
property in such a manner he considers as proper including by executing
a gift deed in favour of a stranger to the family.
22. The other material question is whether the appellants have
specifically denied the execution of the gift deed in terms of proviso to
Section 68 of the Evidence Act, to make it mandatory for the defendant
to examine one of the attesting witnesses to prove the Gift deed in his
favour.
23. Section 68 of the Evidence Act, reads as under:
"68. Proof of execution of document required by law to be
attested- If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the court and
capable of giving evidence:
 Provided that it shall not be necessary to call an attesting witness
in proof of the execution of any document, not being a will, which
has been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the
person by whom it purports to have been executed is specifically
denied."
24. A gift deed is required to be compulsorily attested in terms of
Section 123 of the Transfer of Property Act, 1882. Similar is the provision
in respect of execution of a Will which is required to be attested in terms
of Section 63 of the Indian Succession Act, 1925. Section 68 of the
Evidence Act makes it mandatory to examine one of the attesting
witnesses for the purpose of proving of the execution of Will but such
limitation is not applicable in respect of proof of execution of any document
which has been registered in accordance with provisions of the Indian
Registration Act, 1908, unless the execution is specifically denied.
25. The gift deed (Ex.104) is registered and that all the
requirements of Section 123 of the Transfer of Property Act have been
fulfilled, is the finding of the Trial Court. The learned Trial Court recorded
the following findings:
"However, as far as it is concerned with the gift deed of Exh-104,
in order to prove that Late Chhotabhai Ashabhai executed this
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gift deed in favour of the defendant in fully conscious state, it is
necessary as per section - 123 of the Transfer of Property Act
that this gift deed should be signed by the executer in presence of
the two witnesses that means it should be executed in the presence
of two attesting witnesses. Moreover, it should be proved that
such gift deed is registered. Looking to the gift deed at Exh - 104,
it is an undisputable fact that it is properly registered before the
Sub Registrar, Padra. It is also an indisputable fact that (1)
Bhikhabhai Ramabhai and (2) Karshanbhai Dhulabhai have put
their signatures in this gift deed as the attesting witnesses. Thus,
it is found that all the requirements of section 123 of the Transfer
of Property Act have been fulfilled. However, along with this, it is
also necessary to examine the attesting witnesses of the deed."
26. The argument of the learned counsel for the appellants is that
the attesting witnesses of the gift deed are Bhikhabhai Ramabhai and
Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and Vaid
Alkaben Vinodchandra are the witnesses at the time of registration of
the document. It is argued that the attesting witnesses of the document
have not been examined which is a mandatory requirement to prove
execution of the gift deed in terms of Section 68 of the Evidence Act.
The High Court has held that the appellants have not denied specifically
the execution of the gift deed, therefore, it was not necessary for the
Donee to examine one of the attesting witnesses.
27. The issue No. 1 framed by the Trial Court is whether the gift
deed is fabricated. Such issue arises on the basis of averments made in
the plaint wherein, the appellants have admitted the execution of the gift
deed but alleged that Donee has made unsuccessful effort for grabbing
the property. The appellants have, inter alia, pleaded that Chanchalben,
wife of the Donor, died in August, 1997. Thus, there was no reason for
the Donor to execute the gift deed as real nephews of the Donor were
taking complete control of the Donor. The other ground of challenge
was that the attesting witnesses have no relation with the Donor nor
they are friends of the Donor. It was also alleged that the gift is not for
religious reasons or to any religious trust or institution or for public use
nor the consent has been sought by the Donor from the appellants. The
specific averments in the plaint are as under:
"2) The deceased Chhotabhai Ashabhai who was the father of
plaintiff Nos. 1 to 4 and plaintiff Nos. 1 to 4 were living in USA
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(America) since many years and the deceased Chhotabhai Patel
and the mother of plaintiff Nos. 1 to 4 Chanchalben wife of
Chhotabhai Ashabhai who had expired in and around August, 1997,
and since August, 1997, deceased Chhotabhai Ashabhai was living
alone thus, taking advantage of his loneliness the defendant on
15/11/1997 executed one gift deed which was registered in the
office of Sub-Registrar, Padra at Sr. No.