Case: C. N. Arunachala Mudaliar Vs. C. A. Muruganatha Mudaliar And Another

intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its were form.The material question which the court would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent, gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other.17. It is in the light of these principles that we would proceed now to examine the facts of this case. The will of his father under which defendant 1 got the two items of Sch. B properties is Ex. P-1 and is dated 6-6-1912. The will is a simple document. It recites that the testator is aged 65 and his properties are all his own which he acquired from no nucleus of ancestral fund. He had three sons, the eldest of whom was defendant1. In substance what the will provides is that after his death, the A Schedule properties would go to his eldest son, the B Sch. properties to his second son and the properties described in Schedule C shall be taken by the youngest. The sons are to enjoy the properties allotted to them with absolute rights and with powers of alienation such as gift exchange, sale, etc. from son to grandson hereditarily. The testator, it seems, had already given certain properties to the wives of his two brothers and to his own wife also. They were to enjoy these properties during the terms of their natural lives and after their death, they would vest in one or the other of his sons, as indicated in the will. Then Schedule property was set apart for the marriage expenses of his third son and an unmarried daughter. Authority was given to his wife to sell this property to defray the marriage expenses with its sale proceeds.18. It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst the heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu Law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers wives would not then came into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son and daughter.19. The testator certainly wanted to make a distribution of his properties in a way different form what would take place in case of intestacy. But what is really material for our present purpose is his intention regarding the kind of interest which his sons were to take in the properties devised to them. Here the will is perfectly explicit and it expressly, vests the sons with absolute rights with full powers of alienation by way of sale, gift and exchange. There is no indication in the will that the properties bequeathed were to be held by the sons for their families or male issues and although the will mentions various other relations, no reference is made to sons sons at all. This indicates that the testator desired that his sons should have full ownership in the properties bequeathed to them and he was content to leave entirely to his sons the care of their own families and children.20. That the testator did not want to confer upon the sons the same rights as they could have on intestacy is further made clear by the two subsequent revocation instruments executed by the testator. By the document Ex.P-2 dated 26-3-1914 he revoked that portion of his will which gave the Schedule C property to his youngest son. As this son had fallen into bad company and was disobedient to his father, he revoked the bequest in his favour and gave the same properties to his other two sons, with a direction that they would pay out of it certain maintenance allowance to their youngest brother or to his family if he got married. There was a second revocation instrument, namely, Ex.P-3 executed on 14-4-1914 by which the earlier revocation was cancelled and the properties intended to be given to the youngest son were taken away from the two brothers and given to his son-in-law and the legatee was directed to hand them over to the third son whenever he would feel confident that the latter had reformed himself properly.21. In our opinion, on reading the will as a whole the conclusion becomes clear that the testator intended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons an ancestral property.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. For a proper determination of the question it would be convenient first of all to refer to the law laid down in Mitskshara in regard to the fathers right of disposition over his self-acquired property and the interest which his sons or grandsons take in the same.So far the law seems to be fairly settled and there is no room for controversy. The controversy arises, however, on the question as to what kind of interest a son would take in the self-acquired property of his father which he receives by way of gift or testamentary bequest from him, vis- a-vis his own male issue. Does it remain self-acquired properly in his hands also, untrammelled by the rights of his sons and grandsons or does it became ancestral property in his hands, though not obtained by descent, in which his male issues become co-owners with him? This question has been answered in different ways by the different High Courts in India which has resulted in a considerable diversity of judicial opinion.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 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.It is obvious however, that the son can assert this equal right with the father only when the grandfathers property has devolved upon his 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 grandfathers property comes to the father by virtue of the latters legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its were form.It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst the heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu Law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers wives would not then came into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son andour opinion, on reading the will as a whole the conclusion becomes clear that the testator intended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons an ancestral property.