INDOJI JITHAJI Vs. KOTHAPALLI RAMA CHARLU

JUDGEMENT

(1.) The plaintiff, appellant, sued on several promissory notes executed by one Ranga Charlu, who died about six months before the institution of the suit, asking for a decree for Rs. 3,237.80 on account of principal and interest due on the notes and seeking to recover the amount out of his assets consisting of the share which, it is alleged, Rangacharlu bad in the properties in the possession of the 1st defendant, his father, defendants Nos. 2 to 4, his brothers, and the 5th defendant, his widow. The main questions are, firstly, are the properties in dispute the ancestral properties of the family in the hands of the 1st defendant or his self- acquired and separate property, secondly, if ancestral, was there a division of status between Rangacharlu on the one hand and his father and brothers on the other, and, thirdly, is the instrument, Exhibit II, which is described as a release executed by Rangacharlu in favour of the 1st defendant, valid and operative as being made in bona fide settlement of a family dispute or is it liable to be avoided as being made to defeat Rangacharlu s creditors?

(2.) The 1st defendant obtained the property under a Will of his father, dated the 12th September 1910, wherein he describes the properties as his self-acquisition. He then bequeaths the properties in equal halves to the 1st defendant and to the minor son of the testator s deceased younger brother, his undivided co parcener, and some small amounts to other persons. The main bequest was to the testator s son, the 1st defendant, and to the younger brother s son in equal moieties. There can be little doubt in my opinion that upon those fasts the property would be ancestral property in the hands of the 1st defendant, according to the ruling of this Court in Tara Chand v. Reeb Ram 3 M.H.C.R. 50 at p. 55 and Nagalingam Pillai v. Ramachandra Tevar 24 M. 429 : 11 M.L. 210. The question was fully discussed in the last-mentioned case, where it is laid down that "a father may leave his self acquired property to descend to his sons as ancestral property or if he makes any disposition of it in favour of a son, he is at liberty to preserve for it the character of ancestral property. Whether in any given case, the property was intended to pass to the son as ancestral or as self acquired property is a question of intention turning on the construction of the instrument of gift. If there are no words indicating a contrary intention, the natural inference should be that the father intended the sons to take the property as their ancestral estate." I may mention that the property in dispute there had also been devised under a Will, so that the ruling is a direct authority on the question before us. While laying down this proposition the learned Judges were careful to point out that any observation in the case reported as Tara Chand v. Reeb Ram 3 M.H.C.R. 50 at p. 55. to the effect that a Hindu cannot make a free disposition of his self-acquired property by gift or by testamentary disposition, was no longer good law in the light of later decisions. The decision in Nagalingam Pillai v. Ramachandra Tevar 24 M. 429 : 11 M.L. 210 has been followed in a recent case reported as Venkitaramiah Pantulu v. Subramaniam Pillai 26 Ind. Cas. 393 : 16 M.L.T. 489 and as I read the judgment of Sadasiva Aiyar and Napier, JJ., in Krishnaswami Naidu v. Seelhalakshmi Animal 31 Ind. Cas. 803 : 18 M.L.T. 542 : 3 L.W. 317 39 M. 1029 I do not think that they meant to question the correctness of that ruling. I should bold, therefore, that the law on the point as enunciated in Tara Chand v. Reeb Ram 3 M.H.C.R. 50 at p. 55 and Nagalingam Pillai v. Ramcchandra Tevar 24 M. 429 : 11 M.L. 210 is settled so far as this Presidency is concerned in Calcutta the rule seems to be even more absolute in favour of such property being regarded as ancestral. See Hatarimal Babu v. Abani Nath 18 Ind. Cas. 625 17 C.L.J. 38 at p. 43 : 17 C.W.N. 280. In Bombay, however, the law as expounded at least in the earlier cases was different. In Jugmohandas Mangaldas v. Mangaldas Nathubhoy 10 B. 528 at pp. 551; 574; 577 the matter was elaborately considered, and it was laid down that the self-acquired property of a Hindu devised by him to his son will be regarded as the self-acquired and separate property of the son and not as ancestral property. In a recent case, however, in that Court Ahmedbhoy Habibbhoy v. Sir Dinshaw M. Petit 3 Ind. Cas. 124 : 11 Bom. L.R. 545 and 366: 6 M.L.T. 200, Beaman, J. seems to contend against the soundness of that ruling, and in any case, be understands it to lay down nothing more than that it is a question of the intention of the testator whether the property bequeathed by him is to be treated as ancestral or self- acquired in the hands of the donee. The Allahabad High Court s interpretation of the law was on the lines of the Bombay High Court. See Parsotarn Rao Tantia v. Janki Bai 29 A. 354 at p. 363 : 7 A.L.J. 257 : A.W.N. (1907) 77.

(3.) I do not think there is anything to show in this case that the 1st defendant s father intended that the property should be held by the 1st defendant as his self- acquired property. The fact that the testator did cot mention in the Will the two sons of the 1st defendant who were living at the time does not in my opinion tend to rebut the presumption that the property is to be held by the 1st defendant as ancestral. The fact that such a presumption is raised by the law would in itself account for the non-mention of the 1st defendant s sons in the Will, On the other hand, the fact that the testator divided the property equally between his son and his younger brother s son supports the inference, that he meant the property to be enjoyed as ancestral property. I, therefore, agree in the finding of the District Judge on this point.