`IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.252/2002 Reserved on: 5.4.2008 Decided on.6.6.2008 Jagdish Kumar. …Appellant. Versus Praveen Kumar and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the appellant : Mr. Chander Pal Sood, Advocate. For the respondents : Mr. Bhupender Gupta, Senior Advocate with No.1 to 3. Mr. Janesh Gupta, Advocate. Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 30.3.2002 passed by the learned District Judge, Chamba in civil appeal No.40 of 2000. The brief facts necessary for the adjudication of this appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for possession by way of partition. The trial court decreed the suit on 27.4.2000. The Respondents- defendants (hereinafter referred to as ‘the defendants’ for convenience sake) filed an appeal in the court of learned District Judge, Chamba against the judgment and decree dated 27.4.2000. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 The learned District Judge, Chamba accepted the appeal and set aside the judgment and decree passed by the learned trial court. The Regular Second appeal was admitted on the following substantial question of law: 1. Whether section 30 of the Hindu Succession Act has application to a property which is held to be ancestral but which is not a coparcenary property? Mr. Chander Pal Sood, Advocate had strenuously argued that the judgment dated 30.3.2002 of the learned District Judge is not sustainable in the eyes of law and that the judgment dated 27.4.2000 of the trial court be restored. He also contended that the property in dispute could not be bequeathed by the father of his client either by way of will or gift since the property in his hands had all the ingredients of ancestral property. He further contended that the trial court in civil suit No. 97/91 had recorded findings that the property in question is ancestral property. Mr. Bhupender Gupta, Senior Advocate had supported the judgment dated 30.3.2002 of the learned District Judge and strenuously argued that the property bequeathed in favour of the defendants by way of will and gift was the self acquired property. He also contended that since the civil suit No. 97/91 was dismissed, the defendants were not required to file a separate appeal challenging the adverse findings against them. I have heard the learned counsel for the parties and perused the record carefully. 3 To prove the case, the plaintiff has appeared as PW-1. He had relied upon Ex.P-1 to Ex.P-8. The defendants have examined 8 witnesses including one of the defendants Parveen Kumar as DW-3. They have relied upon the documents Ex.D-1 to D-5, Ex.DW-6/A, Ex.DW-8/A and Ex.DW-8/B. Mr. Chander Pal Sood, Advocate had strenuously argued that in the previous suit No. 97/91 Ex.P-8, a specific finding has been returned by the learned trial court to the effect that the property in question was the ancestral property. He also contended that since the defendants had not preferred any appeal against the findings recorded by the trial court, the findings returned by it had attained finality. Mr. Bhupender Gupra, Senior Advocate to the contrary relied upon Tara Singh versus Smt. Shakuntala, AIR 1974 Rajasthan 21 and submitted that once the suit itself was dismissed by the trial court, the defendants were not required to file an appeal assailing the findings recorded by the trial court. The learned Single Judge of the Rajasthan High Court has held as under: “In AIR 1922 PC 241, an earlier suit had been filed by a Zamindar against his tenant claiming possession of certain chur land. That suit was compromised. After the expiry of the term a fresh patta and kabuliyat were to be given at a fair rent to the determined. Then subsequently there was litigation between the parties. The Zamindar filed the suit for Khas possession of certain accretions to chur land. The Zamindar gave notice to terminate the tenancy. The tenant pleaded that he was an occupancy tenant and consequently could not be 4 evicted under the terms of the Bengal Rent Act. When the case went to the Privy Council previous judgment was sought to be used. In that judgment certain findings were against the defendants. In that connection their Lordships expressed their view that their Lordships did not consider that an actual plea of res judicata for the defendants could be found as the defendants succeeded on other plea and, therefore, had no occasion to go further. This opinion of their Lordships shows that a party in whose favour goes the ultimate result of the case is not bound by any finding adverse to him in that judgment and as such the party cannot go in appeal against that judgment.” This Court had also occasion to go into the issue raised by Mr. Chander Pal Sood, Advocate in Shakuntla Devi (Smt.) verus Santosh (Smt.) and others, 2002 (1) (HP) Current Law Journal- 338. The learned Single Judge has held as under: “Hence, where the decree or order is absolutely in favour of a party but some issues are found against him, he has no right of appeal against such findings for two reasons, namely: a) he is not adversely affected thereby; and b) such findings are not embodied in and do not form part of the decree or order.” Mr. Chander Pal Sood, Advocate had strenuously argued that the property in the hands of Sh. Shiv Lal is not ancestral property since he has received it from Sh. Ram Nath. He had further submitted that the property being a coparcenary property, his client 5 has right in the suit property to the extent of 1/5th share. Lastly, he submitted that the entries made on the basis of the will Ex.DW-8/A and gift deed Ex.DW-8/B, are illegal and contrary to law. He had relied upon Valliammai Achi versus Nagappa Chettiar and another, AIR 1967 SC-1153. Their Lordships have held as under: “But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappa's father would change merely because Pallaniappa's father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappa's father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co- sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently : [see Hindu Law by Mulla, Thirteenth Edition, p. 249, para. 223 (2) (4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappa's father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of 6 opinion that merely because Pallaniappa's father made the will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.” On the other hand, Mr. Bhupender Gupta, Advocate submitted that once the father of the defendants had received the property by way of will, it cannot be termed as a coparcenary property and for all intents and purposes, it has to be treated as the self acquired property by their father. He also submitted that the property in question has been bequeathed by way of will and gift in accordance with law. The will is dated 18.2.1986 and gift deed is dated 15.7.1991. The plaintiff has failed to prove that the property in the hands of Sh. Ram Nath was not a self acquired property. Sh. Shiv Lal has acquired this property by way of will. Sh. Shiv Lal has succeeded to the suit property by way of will Ex.DW-6/A executed by his father Sh. Ram Nath. The plaintiff has not assailed the will Ex. DW-6/A and gift deed Ex.DW-8/B. The plaintiff while appearing as DW-1 has testified that the suit property was originally owned by Sh. Nanak Chand and on his death the suit property was inherited by Sh. Ganga Ram and on the death of Sh. Ganga Ram; it was inherited by Sh. Ram Nath and on his death, his father Sh. Shiv Lal inherited the suit property. He further stated that the revenue entries altered on the basis of execution of will and gift are bad in law. 7 The defendants have examined 8 witnesses. DW-1 was posted as General Record Keeper in the office of Deputy Commissioner, Chamba. She has proved the copy of plaint Ex.D-2, written statement Ex. D-2 and replication Ex. D-3. DW-2 Sh. Davinder Singh has stated that he knew Sh. Shiv Lal and he identified him before the Sub-Registrar, Chamba, who had executed the will. He has further stated that Tehsildar read over the contents of the will to Sh. Shiv Lal, who signed the document in his presence after admitting the contents thereof to be correct. DW-4 Dr. Nagesh Verma has stated that the defendants have raised new building on the old house of Sh. Shiv Lal. He has also deposed that Sh. Shiv Lal was in good health till his death. DW-5 Alla Dad has scribed the will Ex.DW-6/A. He has stated that the will was scribed at the instance of Ram Nath and after scribing the same it was read over to Ram Nath who appended his signatures after admitting the contents thereof to be correct. He further stated that Barfi Ram and Mutalbi also signed/thumb marked the document in the presence of Ram Nath. He has further stated that the will mark ‘A’ (Ex.DW-8/A) was also scribed by him at the instance of Shiv Lal. DW-6 Barfi Ram has deposed that the will Ex.DW-6/A was got scribed by Ram Nath and the same was read over to him. He further stated that he and Mutalbi were marginal witnesses of the document. DW-7 Gian Chand has stated that the gift deed Ex.DW-8/B was scribed by him at the instance of Shiv Lal and the same was read over to him, who after admitting the contents to be correct appended his signatures. 8 DW-8 Mukesh Kumar has stated that the will and gift deed were executed in his presence. Ex.P-1 is the copy of Jamabandi for the years 1986-87. According to the entries, Jagat Ram, Bainsu and Smt. Sobtu have been recorded as owners in possession of the land bearing Khasra Nos. 65, 73, 90, 96, 151, 171, 266, 270, 283, 291, 294, 295, 299 and 302 and Shiv Lal son of Ram Nath son of Ganga Ram has been recorded as non-occupancy tenant of the land bearing khasra Nos. 68, 77, 78, 83 and 290. Ex.P-2 is the copy of jamabandi for the years 1990-91. As per these entries, Shiv Lal son of Ram Nath son of Ganga Ram has been recorded owner of the land bearing khasra Nos. 3712, 4341, 4342, 4343, 4344, 4348 and 4349. Ex.P-3 is the copy of jamabandi for the years 1991-92. In these entries, Shiv Lal son of Ram Nath son of Ganga Ram has been recorded as owner in possession of the land bearing khasra Nos. 62, 63, 67, 69, 70, 72, 75, 79, 82, 84, 292, 293 and 297. Similarly, Shiv Lal has been recorded owner of the land bearing khasra Nos. 89, 96/1, 138, 179, 265, 271, 282 and 298 whereas Bainsu and Jagat Ram have been recorded as non-occupancy tenants. Ex. P-4 is the copy of jamabandi for the years 1986-87. In these entries, Jagat Ram, Bainsu and Sobtu have been recorded as owners and Shiv Lal son of Ram Nath son of Ganga Ram has been recorded as non- occupancy tenant of the land bearing Khasra Nos. 67, 77, 78, 83 and 290. Ex.P-5 is the copy of mutation No. 3149 dated 17.7.1991 vide which mutation of property situated in Chamba town bearing 9 khasra Nos. 4341, 4342, 4343, 4344, 4348, 4349 and 3709 has been sanctioned in favour of the defendants on the basis of gift deed Ex.PW-8/B. Ex.P-6 is the copy of mutation No. 219 dated 10.9.1993 vide which the land situated in Mohal Jatota owned by Shiv Lal son of Ram Nath son of Ganga Ram bearing Khata Khatauni No. 36/44 and 45 has been mutated in the names of defendants on the basis of will Ex. DW-8/A. Ex. P-7 is the certified copy of gift deed dated 12.7.1991 (Ex.PW-8/B). Ex.P-8 is the certified copy of judgment dated 20.8.1993 in civil suit No. 97/91. Ex. D-1 is the certified copy of plaint, Ex.D-2 is the certified copy of written statement, Ex.D-3 is the certified copy of replication, Ex.D-4 is the certified copy of report of Local Commissioner and Ex.D-5 is the certified copy of statement of Shiv Lal in civil suit No. 97/91. Ex.DW-6/A is original will vide which Ram Nath son of Ganga Ram has bequeathed his property in favour of Shiv Lal. Ex.DW-8/A is original will executed by Shiv Lal son of Ram Nath son of Sh. Ganga Ram in favour of the defendants. It is evident from the scrutiny of Ex. DW-6/A that Ram Nath son of Ganga Ram had bequeathed his movable and immovable property in favour of Sh. Shiv Lal. Sh. Shiv Lal has bequeathed his property in favour of defendants alone. Ex.DW-8/A stands duly proved, more particularly, in view of the statement of DW-8 Mukesh Kumar. It was for the plaintiff to prove by leading cogent evidence that the suit property in the hands of Sh. Ram Nath was originally owned by Nanak Chand and on his death it was inherited by his son Ganga Ram and on his death it was inherited by Ram Nath. 10 Similarly, the plaintiff has failed to prove that the suit property bequeathed by way of will and gift deed to Sh. Shiv Lal was of Sh. Ganga Ram and on his death it was inherited by Ram Nath and then by Shiv Lal on the death of Ram Nath. The plaintiff has failed to prove that the property bequeathed by way of will and gift by Sh. Shiv Lal was ancestral property. The plaintiff has also failed to prove the nature of the suit property owned by Sh. Nanak Chand and Ganga Ram by tendering and proving the copies of the revenue record. Sh. Shiv Lal had received the property by way of will and not by natural succession. The will Ex.DW-6/A has not been assailed by the plaintiff. DW-2, DW-3, DW-7 and DW-8 have duly proved the execution of gift deed Ex.DW-8/B and will Ex.DW-6/A. Their Lordships of the Hon’ble Supreme Court in C.N. Arunachala Mudaliar versus C.A. Muruganatha Mudaliar and another AIR 1953 SC 495 have held that the property got by way of will or gift by father in the hands of legatee or donee is not ancestral ipso facto. Their Lordships have held as under: “In view of the settled law that a Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rankas ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest. This extreme view, which is supposed to be laid down in the Calcutta case: vide - '6 W. R. 71 (A)' referred to above, is sought to be supported on a two-fold ground. The first ground is the well known doctrine of equal ownership of 11 father and son in ancestral property which is enunciated by Mitakshara on the authority of Yagnavalkya. The other ground put forward is that the definition of "self- acquisition" as given by Mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot but be partible property as between the donee and his sons. So far as the first ground is concerned, the foundation of the doctrine of equal ownership of father and son in ancestral property is the well known text of Yagnavalkya: vide Yagnavalkya Book 2, 129 which says: "The ownership of father and son is co-equal in the acquisitions of the grandfather, whether land, corody or chattel." It is to be noted that Vijnaneswar invokes this passage in Chap. I, Sec. 5 of his work, where he deals with the division of grandfather's wealth amongst his grandsons. The grandsons, it is said, have a right by birth in the grandfather's estate equally with the sons and consequently are entitled to shares on partition, though their shares would be determined 'per stirpes' and not 'per capita'. This discussion has absolutely no bearing on the present question. It is undoubtedly true that according to Mitakshara, the son has a right by birth both in his father's and grandfather's estate, but as has been pointed out before, a distinction is made in this respect by Mitakshara, itself. In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father. While in the self-acquired property of the father his rights are unequal by reason of the father having an independent power over or predominant interest in the same: vide Mayne's Hindu Law, 11th Edition, page 336. It is obvious however, that the son can assert this equal right with the father only when the grandfather's property has devolved upon his 12 father and has become ancestral property in his hands. The property of the grandfather can normal vest in the father. as ancestral property it and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. But when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. A good deal of confusion, we think, has arisen by not keeping this distinction in mind. To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the made of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. The Mitakshara, we think, is fairly clear on this point. It has placed the father's gifts under a separate category altogether and in more places than one has declared them exempt from partition. Thus, in Chap. I, Sec. 1. placitum 19 Mitakshara refers to a text of Narada which says: "Excepting what is gained by valour, the wealth of a wife and what is acquired by science which are three sorts of property exempt from partition; and any 'favour conferred by a father'." 13 Chapter 1, sec. 4 of Mitakshara deals with effects not liable to partition and property "obtained through the father's favour" finds a place in the list of things of which no partition can be directed: vide section 4, placitum 28 of Mitakshara. This is emphasised in Sec. 6 of chapter I which discusses the rights of posthumous sons or sons born after partition. In placitum 13 of the section it is stated that though a son born after partition takes the whole of his father's and mother's property, yet if the father and mother has affectionately bestowed some property upon a separated son, that must remain with him. A text, of Yagnavalkya is then quoted that "the effects which have been given by the father and by the mother belong to him on whom they are bestowed": vide Yagnavalkya 2, 124. It may be noted that the expression 'obtained through favour of the father' which occurs in placitum 28, Sec. 4 of Mitakshara is very significant. A Mitakshara father can make a partition of both the ancestral and self-acquired property in his hands any time he likes even without the concurrence of his sons: but if he chooses to make a partition, he has got to make it in accordance with the directions laid down in the law. Even the extent of inequality, which is permissible as between the eldest and the younger sons, is indicated in the text: vide Mit. chapter I. Section 2. Nothing depends upon his own favour or discretion. When, however, he makes a gift which is only an act of bounty, he is unfettered in the exercise of his discretion by any rule or dictate of law. It is in these gifts obtained through the favour of the father that Vijnaneswar, following the earlier sages, declares the exclusive right of the sons. We hold, therefore, 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. 14 If this is the correct view to take, as we think it is, it would furnish a complete answer to the other contention indicated above that such gifted property must be held partible between the father and the sons as it does not come within the definition of 'self- acquisition', as given by Mitakshara. In chapter I, section 4 of his work Vijnaneswar enumerates and deals with properties which are not liable to partition. The first placitum of the section defines what a "self-acquisition" is The definition is based upon the text of Yagnavalkya that "Whatever is acquired by the coparcener himself without detriment to the father's estate as present from a friend or a gift at nuptials, does not appertain to the co-heirs." What is argued is this, that as the father's gift cannot be said to have been acquired by the son without detriment to the father's estate, it cannot be regarded as self-acquisition of the son within the meaning of the definition given above and consequently cannot be exempted from partition. This argument seems to us to be untenable section 4 of the first chapter in Mitakshara enumerates various items of property which, according to the author, are exempt from partition and self-acquisition is only, one of them. Father's gift's constitute another item in the exemption list which is specifically mentioned in placitum 28 of the section. We agree with the view expressed in the latest edition of Mayne's Hindu Law