Amar Nath and another vs Munshi Ram and others

Chopra, J.—The facts giving rise to this second appeal are as follows:

Jeona Ram had five sons namely Munshi Ram, Chhota Ram, Channan Ram, Ganga Ram and Devi Dayal The last two of them had renunciated the world in the life time of their father. Jeona Ram disinherited Munshi Ram by a registered deed (Ex. PB), dated 3-11-1985 because of his bad character and gambling habits. Thereafter, he executed a will, Ex. DA on 9-2-1988, and by this he bequeathed the whole of his property to his two sons, Chhota Ram and Chanan Ram. After the death of Jeona Ram, the two legatees agreed that the mutation of the land now in dispute be entered in favour of themselves and their third brother Munshi Ram in equal shares. This mutation is No. 209, dated 15th Mar 1999. On 10th Har 2002, Amar Nath and Jagan Nath, sons of Chhota Ram instituted the suit giving rise to this appeal, for a declaration that the transfer of one third share of the land by means of the said mutation in favour of Munshi Ram defendant by their father, Chhota Ram and uncle, Chanan Ram would not affect their reversionary rights. Munshi Ram was the contesting defendant in the suit. The trial Judge decided all the five issues, struck on the pleadings of the parties, in favour of the plaintiff and decreed the suit. On appeal by the defendant, the learned District Judge was of the view that the property acquired by Chhota Ram and Chanan Ram through the will made by their father, was self-acquired in their hands and that an alienation thereof could not be contested by their sons. He consequently held that the plaintiffs had no locus standi to challenge the mutation made in favour of Munshi Ram at the instance of their father and uncle. The appeal was, therefore, accepted and the suit dismissed. This is plaintiff''s second appeal.

It is conceded by the parties that the land in dispute was acquired by Jeona Mal himself. The sole question for decision in this appeal is whether the self-acquired property bequeathed by Jeona Mal in favour of his sons was ancestral in their hands qua their sons. The matter on which the different High Courts in India have been sharply divided, has very recently been set at rest, so far as this court is concerned, by a Division Bench of this Court in ''MEGH RAJ v. RELU'', AIR 1951 Pepsu 138. The facts of that case were almost similar to those of the one before me, except that the property alienated in that case was acquired by the alienor from his grand-father by gift and not through a will. In a suit by the sons of the donee, to challenge an alienation made by him, it was held that the shop in the hands of the donee was his self-acquired property qua his sons.

After discussing the divergent case law on the point, Teja Singh C. J. who delivered the judgment with which Passey J. concurred, made the following observations:

It cannot be denied that even though a person be a member of joint Hindu family he has complete power of disposing of his self-acquired property as he likes. If he does not exercise that power and allows that property to devolve upon his son on his death, it will become ancestral qua the son''s sons but if he gives it to his son during his lifetime or makes a will regarding it in his favour, I am of the opinion that it must he treated as the self-acquired property of the son, unless he expresses his intention that the son should take it on behalf of his family. I am further of opinion that in the absence of any intention to the contrary when a father gives his self-acquired property to his son the presumption is that he intended it to belong solely to the son.

I am in respectful agreement, if I may say so, with the observations reproduced above. The distinction pointed out by the learned counsel for the appellant is without any difference. It is immaterial whether the self-acquired property of the father is acquired by the son from the former by means of a gift or through a will. The result would obviously be the same as regards the nature of the property in the hands of the done or the legatee. The only material difference between a gift and a will is that in the former case it takes effect at once, while in the latter the legatee gets the property after the death of the legatos. ''KANHIYA LAL v. DEEP CHAND'', AIR 1947 Lah 199 was the case of a will, and in that it was held that the legatee of the self-acquired property of his father gets it as his personal property qua his sons. I do not, therefore, see any ground to differ from the finding arrived at by the learned District Judge. The appeal is consequently dismissed with costs. Appeal dismissed.