MANGAL SEN Vs. NAND RAM

JUDGEMENT

(1.) In the suit oat 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 moveable and immoveable property. The lower appellate court, as also the court of first instance, decreed the plaintiff's 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 moveable property. In the defence, which was filed to the suit the defendants alleged that Kewal Ram gave away the whole of the moveable property of the family to his son Nand Ram and that therefore the plaintiff could not have partition of the moveable property. It has been found by the court below that the moveable property sought to be partitioned was part of the joint family property and that the gift which was wade 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 moveable property of $he 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 Mitakahara law, by which the parties here are governed, to dispose of moveable property in favour of one son to the exclusion of 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. Luchmun Pershad (1867) 8 W.R. 15 this question was considered and it was decided that according to the Mitakahara law a son acquires by birth a right in ancestral property and has a light during his father's lifetime to compel the partition of such property 5 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 go 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 moveable and immoveable property.

(3.) The same question came before the Bombay High Court in the case of Laksham Dada Naik V/s. Ram Chandra Naik (1876) I.L.R. 1 Bom. 561. There, after a review of the authorites, 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 moveable 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 moveable 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 moveable or immoveable, between his sons. The question was also considered in the case of Jugmohan Das Mangal Daa V/s. Sir Mangal Das Nathubhoy (1886) I.L.R. 10 Bom. 528 in an appeal from a decision of Secott, J., who held that whether the law of the Mayuhha applies, or the Mitakshara, a son is entitled to demand partition of moveable as well as immoveable property in his father's lifetime, The. learned Judges who heard the appeal upheld the decision of Secott, J., and held that there was no distinction between moveable and immoveable 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.