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

2. The suit was commenced by the plaintiff, who is respondent 1 in this appeal for specific allotment, on partition, of his one-third share in the properties described in the plaint, on the allegation that they were the joint properties of a family consisting of himself, his father, defendant 1, and his brother, defendant 2 and that he was entitled in law to one-third share in the same. It appears that the plaintiff and defendant 2, who are two brothers, are both sons of defendant 1 by his first wife who predeceased her husband. After the death of plaintiffs mother, the defendant 1 married again and his second wife is defendant 3 in the suit.The allegations in the plaint, in substance, are that after the step-mother came into the house. the relation between the father and his sons became strained and as the father began to assert an exclusive title to the joint family property, denying any rights of his sons thereto, the present suit had to be brought. The properties in respect of which the plaintiff claims partition are described in Sch. B to the plaint. They consist of four items of agricultural land measuring a little over 5 acres in the aggregate, one residential house in the town of Erode and certain jewellery, furniture and brass utensils. In addition to these, it is averred in para. 11 of the plaint that there is a sum of about Rs. 15,000/- deposited in the name of the first defendant in the Erode Urban Bank Limited; that money also belongs to the joint family and the plaintiff is entitled to his share therein.3. Defendant 1 in his written statement traversed all these allegations of the plaintiff and denied that there was any joint family property to which the plaintiff could lay a claim. His case was that items 1 and 2 of Sch. B lands as well as the house property were the self-acquired properties of his father and he got them under a will executed by the latter as early as in the year 1912. The other items of immovable property as well as the cash, furniture and utensils were his own acquisitions in which the sons had no interest whatsoever. As regards the jewels mentioned in the plaint, it was said that only a few of them existed and they belonged exclusively to his wife, defendant 3.4. Defendant 2, who is the brother of the plaintiff, supported the plaintiffs case in its entirely. Defendant 3 in her written statement asserted that she was not a necessary party to the suit and that whatever jewellery there were belonged exclusively to her.5. After hearing the case the trial judge came to the conclusion that the properties bequeathed to defendant. 1 by his father should be held to be ancestral properties in his hands and as the other properties were acquired by defendant 1 out of the income of the ancestral estate, they also became impressed with the character of joint property. The result was that the subordinate Judge made a preliminary decree in favour of the plaintiff and allowed his claim as laid in the plaint with the exception of certain articles of jewellery which were held to be non-existent-6. Against the decision, the defendant 1 took an appeal to the High Court of Madras. The High Court dismissed the appeal with this variation that the jewels such of them as existed-were held to belong to defendant 3 alone and the plaintiffs claim for partition of the furniture and brass utensils was dismissed. The High Court rejected defendant 1s application for leave to appeal to this Court but he succeeded in getting special leave under Art. 136 of the Constitution.

Reasoning: 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.