RAM KALI Vs. PARDIP KUMAR

JUDGEMENT

(1.) Defendant-appellants have filed this regular second appeal against the judgment and decree of the Additional District Judge Gurgaon, dated l8th December. 1988 whereby the judgment and decree of the trial Court decreeing the plaintiffs' suit has been maintain

(2.) Vide sale deed dated 25th June, 1985, Anand Parkash father o the plaintiffs, sold the suit land to Smt. Ram Kali defendant-appellant for a sum of Rupees 25,000/-. The plaintiffs who are the son5 of the vendor-defendant brought the present suit on the allegations that the suit property was co-parcenary property of their father and the plaintiffs. Anand Parkash had no right to sell or mortgage more than his share and that the sale and mortgage of the land by him in excess of his s was illegal and not binding upon them because the parties being Aggarwal's were governed by Hindu Law. The suit was contested by the defendants-appellants. It was alleged that the suit land was neither ancestral nor coparcenary property of the defendant No.

(3.) The only contest in. this appeal is on issue No. 2 and it has been vehement1y contended by the learned counsel for the appellants that the suit land is not a coparcenary property qua the plaintiffs and the vendor. According to the learned counsel, on the admitted facts, ft could not be held that the suit land was ancestral in the hands of vendor Anand Parkash. It is the common case of the parties that Anand Parkash acquired the property from Mithan Lal by way of ft vide mutation Exhibit D. 8. The said Anand Parkash was adopted by his grand-father Mithan Lal much before the time he made the gift of the land. in his favour and on adoption by Mithan Lal he acquired the right in the said property by way of gift. Thus it has been contended that the property in the hands of Anand Parkash could not be ancestral qua his sons. In support of his contention he has relied upon C. N Arunachala Mudaliar v. C. A. Muroganatha Mudaliar AIR 1953 SC 495. It has been authoritatively held in Para 13 thereof, 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". Earlier there was some conflict between different High Courts, but ultimately the same was settled by the Supreme Court in this judgment, Moreover, there is no gift deed on the record nor there is any mention of the same in the mutation order and in the absence of any deed the property cannot be said to be ancestral in the hands of the donee.