KAVURU VENKATAPPAYYA Vs. KAVURU RAGHAVAYYA

JUDGEMENT

(1.) THE material facts of this case lie in a short and narrow compass, The father of the plaintiff and of the defendant in the suit, out of which this second appeal arises, made a gift of his separate property to the plaintiff under Ex. P -1 dated 5 -9 -1943 wherein he says after reciting certain preliminary facts which it is unnecessary to set out: 'I have conveyed to you (as Dhakal) the property of the value of Rs. 400 mentioned in the schedule below, and myself and my wife shall live therein for the lifetime of both of us. After the lifetime of both of us, you shall take possession of the schedule property, and may enjoy the same as you please with absolute powers of disposition by way of gift, sale etc. and I, my heirs and claimants through me shall never raise any dispute whatsoever against you, your heirs and claimants through you.' The plaintiff for himself and his minor son, since dead, thereafter executed Ex. D -1 dated 6 -4 -1944 in favour of the defendant conveying to him the property acquired by him under Ex. P -1. Thereafter, there were certain proceedings for compulsory registration of EX. D -1 at the instance of the defendant which ended in his favour. The present suit was filed by the plaintiff on 30 -12 -1944 impeaching Ex -D. 1 as a spurious document and also alleging that, in any event, it was a gift of joint family property and therefore void, and asking for a declaration that the gift was not true, and even if true was not valid in law and enforceable.

(2.) THAT the document is not spurious has been found by both the Courts below, and that is a finding of fact which cannot be and has not been assailed in this Court. The Courts below decreed the suit, however, on the alternative ground of the invalidity of the document as one in the nature of gift of joint family property which conveyed no title whatsoever to the defendant.

(3.) THE question whether the self -acquired property of the father which has been the subject of gift or bequest by him to his son is ancestral property in the latter's hands has given rise to considerable difference of opinion in the Indian High Courts which has bean referred to at very great length but left unresolved by the Judicial Committee of the Privy Council in Lalram Singh v. Deputy Commissioner of Partabgarh, 45 ALL. 596: A. I. R. 1929 P. C. 160. The Madras view laid down as long ago as 1901 is Nagalingam Pillai v. Ramachandra Tevar, 24 Mad. 429: 11 M. L. J. 210 has been consistently followed in this Province in a whole catena of decisions ending with Seeyali Achari v. Doraiswami Achari, : (1947)2MLJ49 . That view is that: 'It was open to a father to determine whether the property bequeathed or given by him to his son shall be ancestral or self -acquired, but unless he expressedhis wish that it should be deemed to be sell acquired, it was ancestral.' It is contended for the appellant on the basis of this last decision that the clause of Ex. P -l authorising the plaintiff to enjoy the property as he pleased with absolute powers of disposition by way of gift, sale etc., is sufficient expression by his father of his wish that the property should be deemed to be self -acquired within the meaning of the rule as above stated. There is a decision of a single Judge of this Court (Pandrang Row J.) in Visweswararao v. Varahanarasimham : AIR1937Mad631 holding that these are the usual words of conveyancing employed in order to indicate that the entire ownership is to pass and that they do not show any intention of the part of the donor or testator as to whether the donee or the legatee is to take the property as self -acquired property or as joint family property with reference to his sons. That mode of interpreting such words has, however, been dissented from by Wadsworth and Govindarajachari JJ. who decided Seeyali Achari v. Doraiswami Achari, : (1947)2MLJ49 . The learned Judges point out that they very much doubt whether the attention of the learned Judge was pointedly drawn to a certain passage which they quote from the judgment of the Privy Council in Lalram Singh v. Deputy Commissioner of Partbgarh, 45 ALL. 596:A. I. R. 1929 P. C. 160. They regarded the passage in question as conclusive of the error of the view of Pandrang Row J. The passage runs in these terms: 'It the criterion were to be the intention of the father when he makes the gift, there is nothing to indicate that Hanwant Singh desired to make the estate ancestral property in the hands of Lachman. His expression of opinion or desire, whichever it may be, that the property should still be governed by the Act 1869 would indicate the contrary view; because under the Act each holder of the estate has a power to give it or will it away.' Relying upon the last words of this passage the learned Judges conclude that any words in a document of gift or bequest by the father in favour of his son which empower the donee or the legatee to give or will away the property as he likes would necessarily indicate an intention on the part of the donor or testator that the property should be taken by the donee or the legatee otherwise than as ancestral property. I very much doubt whether this analogical reasoning is sound. It may be that a clause in a will that certain property shall stand governed by a certain Act by force of which each holder of the property has a power to give it or will it away stands on a higher footing than an ordinary clause of conveyancing in a document authorising the taker under itto enjoy the property with a power of sale gift, etc. In the latter case, the question may well still remain whether the usual terms of conveyancing were used by the maker of the document to indicate of themselves and conclusively an intention on his pact that the property should be held by the taker as his separate, as distinct from his ancestral property. The Bench has, however, held such words to be indicative of such an intention, and I do not feel myself at liberty to go behind its ruling to that effect.