# Lah. 394), Lal Ra'ln Singh v. Deputy Commissioner, Partabgarh (64 - **Citation:** [1954] 1 S.C.R. 243 - **Court:** Supreme Court of India - **Decided:** 1951-05-21 - **Case number:** Civil Appeal natha Mudaliar No. 191 of 1952 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lah-394-lal-ra-ln-singh-v-deputy-commissioner-partabgarh-64-260 - **Pages:** 15 ## Headnote I J ' S.C.R.. SUPREME COURT REPORTS 0. N. ARUNAOHALA MUDALIAR v. O. A. MURUGANATHA MUDALIAR, AND ANOTHER. MEHR CHAND MAHAJAN, MuKHER.JEA and JAGANNADHADAS ,JJ. 243 Hind1t law-Gift-Property gifted by father to son-Whether a.1westral property in. the hands of son-Construction of willPresu1nptions. 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 accordanc~. 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. Muddim 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 Born. 528), Parsottam v. J'ankibai (I.L.R. 29 All. 354), A'!narnath v. Guran (A.LR. 1918 Lah. 394), Lal Ra'ln 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 --4. gift, exchange, sale etc. from son to grandson hereditarily: 33 1953 Oct.14, • 244 SUPREME COURT REPORTS [1954] 1968 Held, that as the will expressly vested the sons with absolute rights with lull powers of alienation, the property bequeathed to '0. N. Arunachala them '\\'as not ancestral property in their hands vis rt vis their own • Mudaliar male issue, v. O.A.Muruga. CIVIL APPELLATE JURISDICTION: Civil Appeal natha Mudaliar No. 191 of 1952. and Another. 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. 529of1946 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. Somasunda.ram (R. Gan.apathy Iyer, with him) for the appellant. B. Soma.yya(K. R. Chowdhury, with him) for respondent No. 1. 1953. October 14. The ,fodgment of the Conrt 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, affirming, 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. 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, 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 ## Text I J ' S.C.R.. SUPREME COURT REPORTS 0. N. ARUNAOHALA MUDALIAR v. O. A. MURUGANATHA MUDALIAR, AND ANOTHER. MEHR CHAND MAHAJAN, MuKHER.JEA and JAGANNADHADAS ,JJ. 243 Hind1t law-Gift-Property gifted by father to son-Whether a.1westral property in. the hands of son-Construction of willPresu1nptions. 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 accordanc~. 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. Muddim 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 Born. 528), Parsottam v. J'ankibai (I.L.R. 29 All. 354), A'!narnath v. Guran (A.LR. 1918 Lah. 394), Lal Ra'ln 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 --4. gift, exchange, sale etc. from son to grandson hereditarily: 33 1953 Oct.14, • 244 SUPREME COURT REPORTS [1954] 1968 Held, that as the will expressly vested the sons with absolute rights with lull powers of alienation, the property bequeathed to '0. N. Arunachala them '\\'as not ancestral property in their hands vis rt vis their own • Mudaliar male issue, v. O.A.Muruga. CIVIL APPELLATE JURISDICTION: Civil Appeal natha Mudaliar No. 191 of 1952. and Another. 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. 529of1946 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. Somasunda.ram (R. Gan.apathy Iyer, with him) for the appellant. B. Soma.yya(K. R. Chowdhury, with him) for respondent No. 1. 1953. October 14. The ,fodgment of the Conrt 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, affirming, 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. 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, 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 defendan~ No. 2, who ·are two brothers, are both sons of defendant No. 1 by his first wife who predeceased her husband. After the death of plaintiff's mother, the defendant No. 1 married again and his second wife is defendant No. 3 in the I ' 8.C.R. ' • • . " '; ! • . - - ' ~ ! . SUPH,EME COURT REPORTS 245 . b 1953 suit. The allegations in the plaint, m su stance, are __ that after the step-mother came into the house, the c.N. Arunaohala relation between the father and his sons became strainMudaUar ed and as the father began to assert an exclusive title v. to the joint family property, denying any rights of his C. A. Muruga· b b h Th natha M udaliar sons thereto, the present suit had to e roug t. e and Another. properties in respect of which the plaintiff claims partition are described in Schedule B to the plaint. They Mukherjea J, 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 11 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 therein. The defendant No. 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 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 con· clusion that the properties bequeathed to defendant No. 1 by his father should be held to be ancestral properties in his hands and as the other properties were ,,. . . 246 SUPREME COURT REPORTS [1954] i96a acquired by defendant No. I out of the income of the 0 N ;- 1 la ancestral estate, they also became impressed with the · Mu~:~i:~"' character of joint property. The result was that the y. Subordinate Judge made a preliminary decree in a. A. Muruga· favour of the plaintiff and allowed his claim as laid in natha Mudaliar the plaint with the exception of certain articles of and Another. jewellery which were held to be non-existent. 1 ~ · Mukherjea J. Against this decision, the defendant No. 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 hilld to belong to defendant No. 3 alone and the plaintiff's claim for partition of the furniture and brass utensils was dismissed. The High Court rejected the defendant No. l's application for leave to appeal to this court but he succeeded in getting special leave under article 136 of the Constitution. The substantial point that requires consideration in the appeal is, whether the properties that the defendant No. 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 No. I, 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 I; section 1 of Mitakshara lays down : ··" It is settled point that property in the· paternal or a:p.cestral estate is by birth, though the father has " , ; ) J -· \ S.O.R. SUPREME COURT REPORTS 247 independent power in the disposal of effects other than 195J the immovables for indispensable acts of duty and for 0 N -;- h 1 purposes prescribed by texts of law as gift through · M;,;:~=~ a a affection, support of the family, relief from distress v. and so forth ; but he is subject to the control of his a. A. Mumyasons and the rest in regard to the immovable estate, natha Mudaliar whether acquired by himself or inherited from his father and Another. or other predecessors since it is ordained, 'though i!J'.l- ,VJukherjcaJ. movables 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 religious 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 this precept which seems tu° 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 ~:mntrary he must acquiesce, 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 SUPREll\fE COURT RElPORTS [1954J 1953 Clearly the latter passages are in flat contradiction o.N. Amnachala with the previous ones and in an early Calcutta case(') Mudaliar a reconciliation was attempted at by taking the view v. that the right of the sons in the self-acquired property o. A. JJ.Juruya- of their father was an imperfect right incapable of natha Mudaliar being enforced at law. The question came pointedly anrl Another. for consideration before the Judicial Committee in the Mitkherjea J. case of Rao Balwant v. Rani ]( ishori (') and Lord Hobhouse, who delivered the judgment of the Board, ob- . served 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 (1), but he can make a gift of such property to one of his , own sons to the detriment of another('}; and he can make even an unequal distribution amongst his heirs('). So farthe 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 (1) Vidc MHddu1t v. Rani, 6 W.R. 71, (2) 23 I.A. 54. (3) v;de Sital v. Madlw, l.L.R. r All. 394. (4) Vide Bawa v, Rajah, 10 W.R. 287. I ' r _) J S.C.R. SUPREME COURT REPORTS 249 remain self"acquired property in his hands also untram1953 melled by the rights of his sons and grandsons or does 0 N ~ h la it become ancestral property in his hands, though not · .MuZz7:; a obtained by descent, in which his male issue become v. co-owners with him ? This question has been answered o. A. Muruga· in different ways by the different ·High Courts in India natha Mudaliar which has resulted in a considerable diversity of and Another. judicial opinion. It was held by the Calcutta High M"kherjea J. Court(') as early as in the year 1863 that such property beeomes 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 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 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 (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 ~old 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 Muddttn v. Ram 6 W.R. 7r. (2) Vide Nagalingham v. Ram Chandra, I.L.R. 24 Mad. 429. (3) Vide Bltagwat v. Mst. Kaporni, I.L.R. 23 Pat. 599. (4) Vide Lala Mukti Prasad v. Srimati Iswari, 24 C.W.N. 938. (5) Vide Jugmohan Das v. Sir Mangal Das, 10 Born. 528. (6) Vide Pa.rsotam '" Janki Bai, I.L.R. 29 All. 354; Amarnath v. Guran, A.LR. 1918 Lah. 394. (7) 64 I.A. 265. 250 SUPREME COURT REPORTS [1954] 1953 In view of the settled law that a Mitakshara father -- ·has absolute right of disposition over his self-acquired O.N. Arun~chala property to which no exception can be taken by his Mudaliar 1. d d t 't . . , , t 'bl t v. ma e escen an s, i is m our opm10n no poss1 e o o. A. Murnaahold that such property bequeathed or gifted to a son 11atha Mudaliar must necessarily, and under all circumstances, rank as and A,,o,her. ancestral property in the hands of the donee in which 1 1 his sons would acquire co-ordinate interest. This M"kherjea J, extreme view, which is supposed to be laid down in the Calcutta case(') 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 Mit_akshara 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. So far as the first ground is ooncerned, the foundation of the doctrine of egnal ownership of father and · son in ancestral property is the well known text of Yagnavalkya(') which says: "The ownership of father and son is co-egua] 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 110 bearing on the present question. It is undon btedly true that according to Mitakshara, the son has a right • by birth both in his father's and grandfather's estate, hut as has been pointed out before, a distinction is made in this respect by Mitakshara itself. In the · {l:) Vide Muddun v. Ra·m, 6 W.R. 71. ~2) Vide Yagnavalkya, Book 2, 129, > t ) S.C.R. SUPREME COURT REPORTS 251 ancestral or grandfather's property in the hands of the. U51$ father, the son has equal rights with· his father; while 0 N Ah 1 in the self-acquired property of the father, his rights · Mu~':z'::. a a are unequal by reason of the father having an independv. ent power over or predominant interest in the o. A. Murugasame (1). It is obvious, however, that the son can natha Miidalia7 assert this equal right with the father only when the and Anothe,.. grandfather's property has devolved upon his father Mu/cherjea J. 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 f 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 ofNarada which says: (r) Vide Mayne's Hindu Law, 11th edition, page 336, 3f 252 SUPREME COURT REPORTS [1954] 1953 "Excepting what is gained by valour, the wealth of 0 N Ah 1 a wife and what is acquired by science which are three · Mu;;:l~:; a a sorts of property exempt from partition ; and any v. favour conferred by a father." c. A. Muruga. Chapter I, section 4 of Mitakshara deals with effects "':,~"; ~:.~~;~:' not liable to partition and property " obtained through 1 , the father's favour" finds a place in the list of things Mukh