BHATWAT SHUKUL Vs. MTKAPARNI

JUDGEMENT

(1.) The question of law involved in this appeal is whether self-acquired landed property of a Hindu governed by the Mitakshara School, if it is disposed of by him by gift to his son, is taken by the latter as his separate or ancestral property, ancestral, so far as his own male sons are concerned. The plaintiff is the widow of Rameshwar Ram, the only son of Jhaman Ram defendant 1, now dead. Jhaman Ram was the only son of his father Bulaki Ram who died long ago. The disputed property is a house which, in its original state, was acquired by Bulaki Ram by a sale deed dated 17 February 1857. Bulaki subsequently made a gift of this house to Jhaman under a registered deed dated 7 May 1891. The plaintiff's husband Rameshwar all along lived jointly with his father Jhaman in the disputed house till his death which took place on 11 March 1938. After Rameshwar's death, Jhaman executed a registered deed of gift in favour of defendant 2, an outsider, on 12 July 1939. On the same day defendant 2 executed a mokarrari deed in favour of Jhaman. The plaintiff brought the present suit on 19th September 1939 asking for a declaration that her interest in the disputed house was not affected by the deed of gift executed by defendant 4 in favour of defendant 2 and the mokarrari deed of the same date executed by defendant 2 in favour of defendant 1. The suit was contested by both the defendants mainly on the ground that the disputed house was the self-acquired property of defendant 1. Both the Courts below have held that though the disputed house was the self- acquired property of Bulaki, it must be considered in law to be the joint family property of Jhaman and Rameshwar. They have also found as a fact that the house was treated by them as joint family property. The finding of fact, however, so far as the appellate Court is concerned, is not definite, because it says: This may lead to an inference that till then both of them considered this house to be the joint family property.

(2.) The suit has been decreed by both the Courts. Defendant 2 has preferred this appeal. There is a great diversity of opinion in the different High Courts as to the effect of a gift or bequest made by a Mitakshara father of his self-acquired property to his son. The view taken by the Calcutta High Court is that it will be ancestral property in the hands of the son. In Madras the view seems to be that unless the father expresses his intention that it should be deemed self-acquired, it is ancestral. In Bombay, on the other hand, the view taken is that if there is no expression of opinion, it is deemed self-acquired. The view taken by the Allahabad and Lahore High Courts is that the property is self-acquired. This is also the view of the Oudh Chief Court. In this, state of conflict of opinion, their Lordships of the Privy Council in Ram Singh V/s. Deputy Commissioner Partabgarh A.I.R. 1923 P.C. 160, observed: It may be that some day this board will have to decide between the conflicting decisions of the Indian High Courts, and it may be that when this time comes, this board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case.

(3.) The earliest case of the Calcutta High Court is Muddun Gopal V/s. Ram Bux (1863) 6 W.R. 71 decided in 1863. In that case self-acquired property of the grand-father was distributed by him amongst his sons by executing separate deeds of gift in their favour. One of the sons sold the property obtained by him by gift to an outsider. His son brought a suit to set aside that sale. Their Lordships decreed the suit, holding that according to the Mitakshara, landed property acquired by a grand-father and distributed by him amongst his sons, does not by such gift become the self-acquired property of the sons so as to enable them to dispose of it by gift or sale without the consent, and to the prejudice, of the grandsons. Their Lordships came to this conclusion upon an examination of the several texts on the subject, as. will appear from the following passages: The principle to be deduced from the several texts on the subject (Mitakshara on Inheritance, Chap. 1, Section 4) appears to be that, if the gift or acquisition is upon a consideration personal to the donee, as marriage, or the personal regard of a stranger for him, the property given is treated as self-acquired, (see Katyayana, Colebrooke's Digest, Vol. 4, Chap. 5, para. 347, p. 35; and Manu, Ib. 345; Vyasa, Ib. 346). "But if, in cases other than that first above-mentioned, the acquisition has been made, directly or indirectly, by means of, or at the charge or expense of, the ancestral estate, the property so acquired is treated as joint and liable to partition, (see Mitakshara, Chap. 1, Section 4, Paras. 1-6-8; Katyayana, Colebrooke's Digest, Vol. 4, Chap. 5, Para. 349, p. 42; Narada, ib., Vol. 4, Para. 357, p. 62; and the Commentary of Jagunnatha, citing the opinions of Chandeswara and others, ib., p. 64). In the Mitakshara, Chap. 1, Section 4, Para. 1, p. 268, of effects not liable to partition, it is said: Whatever else is acquired by the co- parcener himself without detriment to his father's estate, or as a present from a friend, or a gift at nuptials, does not appertain to the coheirs. See also the text of Yagnyavalkya to the same effect, Colebrooke's Digest, Vol. 4, para. 352, p. 44. In this passage, it would appear that property obtained by gift from a father is not mentioned as not liable to partition. Narada, in Colebrooke's Digest, Vol. 4 para. 353, p. 45, of wealth not subject to partition, says, anything that has been received by the favour of a father --Jagunnatha adds or other friends. The absence of these words in the original seems to show that the construction put on the passage by the author of the Mitakahara, Chap. 1, Section 1, para. 19, is correct, and that it means no more than that property so acquired is exempt from partition amongst the brethren. See, further, Mitaksbarn, Chap. 1, Section 4, para. 28, as explained by Section 6, paras. 5 and 16; Manu, translated by Sir W. Jones, Chap. 9, Section 206. The text of Vyasa, Colebrooke's Digest, Vol. 4, para. 354, p. 46, admits of the same explanation. The ground of that opinion, viz, that the intent of the parties must have been to exclude partition, stated in the Mitakshara, Chap. 1, Section 1, para. 19, does not apply when the question arises between father and son.... The property cannot be said to have been acquired without detriment to the father's (i.e., ancestral) estate, because it was not only out of that estate, but in substitution for the undivided share of that estate to which the father, under the passage first cited, appears to have been entitled. It cannot, therefore, be taken to have been given simply by the favour of the father, but upon consideration of the father surrendering some interest or right to share in the grandfather's estate, which he did by the acceptance of this separate parcel.