KISANSING MOHANSING BALWAR Vs. VISHNU BALKRISHNA JOGALEKAR

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a suit, which had been filed by the sons of a mortgagor for a declaration that the mortgage was invalid, inasmuch as the mortgagor had no title to the property. It appears from the evidence that the property was the self-acquired property of the mortgagor's father. There was a dispute between the parties, namely, the sons of the mortgagor and the mortgagee, as to whether the property was the ancestral property of the mortgagor's father, or whether it was the self-acquired property of the mortgagor's father; but the learned first appellate Judge, who was the final Court of fact, has found that the property was the self-acquired property of the mortgagor's father. There was a concession made besides on behalf of the mortgagor's sons that the property was the self-acquired property of the mortgagor and that there had been a partition made by the father of this property during his lifetime, by which he gave to the mortgagor the share which he mortgaged. The principal contention which now remains is as to whether, even though the father purported to partition his self-acquired property between his sons, that transaction could be effected without a registered instrument. The learned advocate who appears for the mortgagor's sons says that it should be effected only by a registered instrument, inasmuch as the transaction amounts to a gift.

(2.) NOW, it is quite true that there is this difference, when the father gives the sons shares in the ancestral or joint family property and in his self-acquired property, that whereas in the former the sons have got an interest by birth, in the latter the sons have got no interest, so that if subsequently they get an interest in the property without paying consideration, the transaction can be regarded as the transaction of a gift by the father to the sons.

(3.) BUT, in the first instance, in this case the transaction was not merely a gift. The father purported to effect a partition between his sons, and the result of the partition was that, even though there was no ancestral property, the sons became separate in estate. That would not be an effect which would follow the execu-tion of two gift deeds by the father giving his sons separated shares in his self-acquired property. In the second instance, such a transaction was a perfectly valid transaction under the Hindu law. It was at one stage contended before us that the father could divide only ancestral property between his sons; but the text of the Mitakshara upon the point is quite clear, and, as a matter of fact, Vijnaneshvara, has pointed out that, where Yajnavalkya said that the father was entitled to make an unequal distribution, it had reference only to what was his self-acquired property. He insisted that so far as the property which was derived from a line of ancestors was concerned, the division would have to be equal; it' could not be unequal.