NAND RAM Vs. MANGAL SEN

JUDGEMENT

(1.) In the suit out of which this appeal has arisen the plaintiff, Mangal Sen, sued his father Kewal Ram and his minor brother Nand Ram for partition of the joint family property including both movable and immovable property. The lower appellate Court, as also the Court of first instance, decreed the plaintiffs claim. An appeal has been preferred and the only question which has been pressed in argument before us in the appeal is in respect of the order for partition of the movable property. In the defence which was filed to the suit the defendants alleged that Kewal Ram gave away the whole of the movable property of the family to his son Nand Ram and that, therefore, the plaintiff could not have partition of the movable property. It has been found by the Court below that the movable property sought to be partitioned was part of the joint family property and that the gift which was made by Kewal Ram to his son Nand Ram was made not from affection but from vindictive motives, namely, to punish the plaintiff on account of alleged misconduct on his part. The lower appellate Court finds that the gift was not made out of affection but "on the motive of dealing retribution" to the plaintiff. We have to see, therefore, whether the father was entitled under the circumstances to make a gift of the movable property of the family to one son to the exclusion of the other.

(2.) The question of the right of a father in a family governed by the Mitakshara law, by which the parties here are governed, to dispose of movable property in favour of one son to the exclusion of the other sons has been considered in a number of cases. We need only refer to a few of the leading authorities on the subject. In the case of Raja Ram Tewary V/s. Luchman Pershad 8 W.R. 15 the question was considered and it was decided that according to Mitakshara law a son acquires by birth a right in ancestral property and has a right daring his father's lifetime to compel the partition of such property; that the father cannot without the consent of his son alienate such property except for sufficient cause and that the son may not only prohibit the father from so doing but may sue to set aside the alienation if made. In delivering the judgment of the Court in that case Sir Barnes Peacock, C.J., at p., 20, observes: "It is clear then that the son by birth alone acquires a right in ancestral property and that he has a right during his father's lifetime to compel a partition of such property; that the father cannot without the consent of the son alienate such property except for sufficient cause, and that the son may prohibit the father from so doing. It has been held that the son has not merely the right to prohibit but that he may sue to set aside the alienation if made." No distinction it will be observed is here drawn between movable and immovable property.

(3.) The same question came before the Bombay High Court in the case of Lakshman Dada Naik V/s. Ram Chandra Dada Naik 1 B. 561. There after a review of the authorities it was held that a Hindu governed by the Mitakshara law, who has two sons undivided from him cannot, whether or not his act be regarded as a gift or a partition, bequeath the whole or almost the whole of the ancestral movable property to one son to the exclusion of the other. In delivering the judgment of the Court in that case Melvill, J., observes "From the above authorities we come to the conclusion that it was not within the power of Dada Naik (i.e., the father), whether his act be regarded in the light of a gift or of a partition, to bequeath the whole or almost the whole of the ancestral movable property to one son and virtually to disinherit the other." This case came before their Lordships of the Privy Council on appeal and at the hearing it was conceded by the counsel for the parties that according to the Mitakshara law a father cannot by Will make an unequal distribution of ancestral property, whether movable or immovable between his sons. The question was also considered in the case of Jugmohandas Mangaldas V/s. Sir Mangaldas Nathubhoy 10 B. 528 in an appeal from a decision of Scott, J., who held that whether the law of the Mayukha applies or the Mitakshara a son is entitled to demand partition of movable as well as immovable property in his father's lifetime. The learned Judges who heard the appeal upheld the decision of Scott, J., and held that there was no distinction between movable and immovable property as regards the right of a son in an undivided family governed by the Mitakshara law to partition in the lifetime of the father.