Megh Raj vs Relu

Teja Singh, C.J.—This is a regular first appeal from the judgment & decree of Sub-Judge 1st class, Bhatinda. One Narain Singh Aggarwal of Minsa sold a shop to Relu Mal, Chanan Ram Baboo Ram & Bonarsi Dass for Rs. 10,000. Megh Raj & Gurcharan Dass, sons of Narain Singh, brought a suit for possession of the shop on the allegations that it was a joint family property, that the sale made by their father was without any legal necessity & that they were not bound by it. It may hero be mentioned that prior to the sale Narain Singh had also mortgaged the shop & the position of the pltfs. was that the mtge. too was void as against their interests inasmuch as it had not been made for the benefit of the joint family of which they & their father were the members. The vendees resisted the suit on the grounds that the shop was not the joint family property, that Megh Raj pltf. had no locus standi to bring the action, & that the sale as well as the mortgage had been effected for the benefit of the joint family. All these points were put in issue but the Sub-Judge without deciding the issue relating to the character of the sale dismissed the suit holding that the pltfs. had not been able to prove that the shop was the coparcenary property. The pltfs. are the applts. before us.

Before entering into the merits of the appeal I consider it necessary to observe that the Ct. below acted improperly in leaving undecided some of the issues arising in the case. It has been pointed out by this Ct. more than once that except in cases where a question of jurisdiction is involved it is the duty of trial Cts. to give their findings on all the issues raised by the parties It so happens that in this case we are upholding the decision of the Ct. below that the suit property has not been shown to be the property of the joint family & accordingly the pltfs. cannot question the sale but had our finding been otherwise, the decree passed by the trial Ct. would have had to be set aside & the case would have been remanded for decision on the issue which was left undecided & this would have resulted not only in hardship & unnecessary expense for the parties but would have involved a considerable waste of the time of Cts.

Both sides are agreed that Narain Singh''s father was Kaka alias Bishan Singh & Kaka had a brother named Ishar Singh. The name of Kaka Singh''s father was Punjab Singh. The parties are further agreed that Punjab Singh bought two vacant sites, one on which the shop in dispute was constructed & on the other was raised a second shop. Kaka predeceased Punjab Singh. It was contended on behalf of the pltfs. that the shop became the coparcenary property because it wa3 the ancestral property inasmuch as it devolved upon Narain Singh from Punjab Singh. The contesting defts., on the other hand, argued that Narain Singh got the shop from Punjab Singh by way of gift & for this reason it was the self-acquired property of Narain Sigh & his sons, even though they formed a joint family with him they acquired no interest in it by birth. No documentary evidence was produced by the defts. to prove that Punjab Singh gifted the shop to Narain Singh & the entire evidence that they reld. upon in this connection consisted of the statements of their witnesses. [His Lordship discussed the evidence and proceeded as follows:] I, therefore, hold that Narain Singh obtained the shop in dispute from his grandfather Punjab Singh by gift.

The question now is whether it was the separate property of Narain Singh or whether it became ancestral qua his sons, i.e. the pltfs. There is a conflict of opinion on this point between the various H. Cs. In Calcutta it has been held that where a Hindu instead of allowing his self-acquired property to go by descent makes a gift of it to his son, or bequeathes it to him by will, auch property would be ancestral. The leading case is Muddan Gopal v. Ram Baksh 6 W.R. 71 where a father had distributed his property among his sons by various deeds of gift. The Ct. held that the portion obtained by each was ancestral property as regards his male issue. The other cases in point are Hazari Mal v. Abaninath 17 C.W.N. 280 & Mukti Prokash Nanda v. Iswari Debi AIR 1920 Cal. 746 . In the first case Mukerjee J. thought that if the matter were res integra he would take a different view & give full effect to the text in the Mitakshara. In the second case a father had left all his self-acquired properties to his sons & had laid down that each son was to live in a joint mess with his brOrs. until he completed his 25 years when his aliquot share would fully belong to him in title after vesting absolutely in his sons & grandsons, etc. The learned Judges held that the testator had intended that each of his sons should take his share as ancestral property & not as self-acquired property. In the Madras case, as pointed out by Mulla in Section 223(5) of his well-known treatise (Principles of Hindu Law) the view seems to have been taken that the father can determine whether the property which he gives to his sons either intervivos or by means of a will shall be ancestral or self-acquired on the principle of "cuius est dare eius est disponere" but that unless he expresses his wish that it should be deemed self-acquired it is ancestral. The relevant cases are Tara Chand v. Reeb Ram 3 Mad. H.C. 50 and Nagalingam Pillai v. Ramchandra 24 Mad 429. The last case was followed in Velayudham v. Commissioner of Income Tax ILR 1945 Mad. 549 & it was held that where a father gives his self-acquired property to his son he takes it as ancestral property unless it is apparent that he intended the gift to be merely personal to his son. The Bombay H.C. also accepts the principle of intention, but the view taken is that if there is no intention to the contrary the property given by a father to his son by gift or by will is deemed self-acquired The leading case is Jugmohan Dass v. Mangaldas Nathubhoy 10 Bom. 528. This case was folld. by the Allahabad H.C. in Parsotam v. Janki Bai 29 All. 354 & recently in Jai Prakash Vs. Bhagwan Das and Co., The view taken by the Oudh J. Cts. Ct. is the same as that of the Allahabad H.C. (See in this connection Rameshar v. Mt. Rukmin 12 I.C. 770. After referring to a number of Bombay & Madras cases, this is what was observed:

On a careful consideration of all the authorities on the subject, we are of opinion that we ought to follow the rules accepted in Bombay & hold that in a case where self-acquired property is bequeathed to sons it should be presumed in the absence of language clearly indicating the testator''s intention that the property should be held by the sons subject to the incident of survivorship, that each son takes an interest which passes to his heirs at his death.

The other Oudh case in point is AIR 1930 39 (Oudh) The Patna H.C. in a F.B. decision Bhatwat Shukul Vs. Mt. Kaparni, has folld. the Madras view.

In the Punjab the view has always been that the property acquired by will become the self-acquired property of the-legatee & it is not ancestral qua his sons. The earliest case is Amar Nath v. Guran Ditta Mal 14 P.R. 1918 decided by a bench, consisting of Shadi Lal & Lerossignol JJ. Jagatar Singh v. Raghbir Singh AIR 1932 Lah. 85 was a case under Customary law & the question was whether a property obtained by means of a Will can be deemed ancestral in his hands qua his sons. The answer to the question was given in the negative. In the course of his judgment Tek Chand J. while discussing the customary law on the point, incidentally observed that "under Hindu law also the consensus of authority is that such property is not ancestral." In the first place, the remarks is of the nature of an obiter dictum & has not much value. Secondly, with all deference the learned Judge was not right in saying that there was consensus of authority under Hindu law, because as I have shown above, the opinion of the various H. Cs. is sharply divided. There are, however, two other cases in which the view taken was the same as in Amar Nath''s case. There cases are Ram Singh v. Ram Nath AIR 1932 Lah. 533 and Kishan Chand v. Punjab Sindh Bank Ltd. AIR 1934 Lah. 534.

The question was once raised before their Lordships of the P.C. in Lal Ram v. Dy. Comr. Partabgarh 50 I.A. 265, but they merely refd. to the conflicting decisions of the various H. Cts., & said that when the time came they would prefer to go baok to the original text of Mitakshtra & put their own construction upon that text. The text of the Mitakshara reads as follows:

Whatever else is acquired by the coparcener himself without detriment to his father''s estate or as a present from a friend or a gift at nuptials, does not appertain to the co-heirs. (Mitakshara Ch. 1, Section 4, para 1).

This case refd. to in Madan Gopal''s case, but it was held that according to it landed property acquired by a grandfather & distributed by him among his sons does not by such gift become the self-acquired property of the sons so as to enable them to dispose of it by gift or sale without the consent & to the prejudice of the grandsons. The Ct. observed:

The property cannot be said to have been acquired without detriment to the father''s estate, because it was not only given out of that estate, but in substitution for the undivided shire of that estate to which the father (under the passage first cited) appears to have been entitled.

Mayne while commenting upon this decision has expressed the opinion that it cannot be regarded as an authority for the general proposition that where there is a gift or bequest by a father of his seff-acquired property, it is nevertheless ancestral property under all circumstances. (Mayne on Hindu Law Usage Edn. 1938 p. 356). In my opinion, Mayne is right in this.

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 doe3 not exercise that power & 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 life time or makes a will regarding it in his favour I am of the opinion that it must be treated as the self-acquired property of the son, unless be 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. This view is in accordance with that of the Bombay & Allahabad H. Cs. which I follow in preference to the view of the other H. Cs. Mayne has discussed this point at considerable length at pp. 356 to 359 of his book & has arrived at the same conclusion

Viewed in the light of this there can be no doubt that the suit-shop cannot be held to be ancestral property in the hands of Narain Singh. There was no instrument of gift whereby the property was given to him by his grand-father. Evidently the gift was oral & since there is no thing to show that the intention of grand-father was that Narain Singh should take the shop on behalf of his family it must be presumed that it intended to be his self-acquired property. It was argued before us that because Punjab Singh divided his entire property between Narain Singh on one hand & Ishar Singh on the other, & these were his only heirs, it was a case of acceleration of succession & as such the property that each of them got by virtue of the division must stand on the same footing as the property that they might have inherited on Punjab Singh''s death. Now in order that a transfer of property by a person in favour of his next reversioner or reversioners be regarded as an acceleration of succession it should comprise the entire property owned by him but in this case it appears from the statement of Megh Raj pltf. refd. to above that though Punjab Singh gifted some of his property, including agricultural land to Narain Singh & Ishar Singh some he retained for himself & this devolved upon his descendants on his death. There is, therefore, no force in the counsel''s contention & the shop in question is held to be the self-acquired property of Narain Singh. It was conceded by the applts. counsel that in the view that we take the pltfs. could not maintain the action. The result is that the appeal is dismissed. In view of the conflict of legal authorities on the point involved in the appeal I would direct that the parties shall bear their own costs.

Passey, J.

I agree.