Kisansing Mohansing Balwar v. Vishnu Balkrishna Joglekar

Bavdekar, J.:—

This is a Letters Patent appeal from a suit, which had been filed by the sons of a mortgagor for a declaration that the mortgage was invalid, inasmuch as the mortgagor had no title to the property. It appears from the evidence that the property was the self-acquired property of the mortgagor's father. There was a dispute between the parties, namely, the sons of the mortgagor and the mortgagee, as to whether the property was the ancestral property of the mortgagor's father, or whether it was the self-acquired property of the mortgagor's father; but the learned first appellate Judge, who was the final Court of fact, has found that the property was the self-acquired property of the mortgagor's father. There was a concession made besides on behalf of the mortgagor's sons that the property was the self-acquired property of the mortgagor and that there had been a partition made by the father of this property during his lifetime, by which he gave to the mortgagor the share which he mortgaged. The principal contention which now remains is as to whether, even though the father purported to partition his self-acquired property between his sons, that transaction could be effected without a registered instrument. The learned advocate, who appears for the mortgagor's sons, says that it should be effected only by a registered instrument, inasmuch as the transaction amounts to a gift.

Now, it is quite true that there is this difference, when the father gives the sons shares in the ancestral or joint family property, and in his self-acquired property, that whereas in the former the sons have got an interest by birth, in the latter the sons have got no interest, so that if subsequently they get an interest in the property without paying consideration, the transaction can be regarded as the transaction of a gift by the father to the sons.

But, in the first instance, in this case the transaction was not merely a gift. The father purported to effect a partition between his sons, and the result of the partition was that, even though there was no ancestral property, the sons became separate in estate. That would not be an effect which would follow the execution of two gift deeds by the father giving his sons separated shares in his self-acquired property. In the second instance, such a transaction was a perfectly valid transaction under the Hindu law. It was at one stage contended before us that the father could divide only ancestral property between his sons; but the text of the Mitakshara upon the point is quite clear, and, as a matter of fact, Vijnaneshvara has pointed out that, where Yajnavalkya said that the father was entitled to make an unequal distribution, it had reference only to what was his self-acquired property. He insisted that so far as the property which was derived from a line of ancestors was concerned, the division would have to be equal; it could not be unequal.

It is contended, however, on behalf of the plaintiffs, mortgagor's sons, that even if the father was entitled to give the sons shares in his self-acquired property by a partition during his lifetime, that does not give the sons a good title. It is pointed out that sometimes, whether at the time of a partition or otherwise, it may be open to a manager of a Hindu family to make small gifts of property, whether moveable or immoveable, and it is said that, if there is the right to make a gift of immoveable property under the Hindu law, notwithstanding that right a gift will not be valid because of the Transfer of Property Act if a gift deed is not executed; and it is contended that if in this case the father purported to effect a partition between his sons, then notwithstanding the rights of the father to do so under the Hindu law, if the transaction amounted to a gift, then in that case a gift deed would be necessary before the sons get a good title to the property.

Now, there are two ways in which we can regard the transaction, if a father effects a partition between his sons and gives them a share in his self-acquired property, whether there is at the same time ancestral property available for division or not. We can regard it, in the first instance, as a partition in status accompanied by two transactions of gifts. But there is another way also in which we can look at the transaction, and that is that we can say that the father at such time throws the property into the hotchpot and makes a division. In order that he should do so it is not necessary that there must be, as a matter of fact, other joint family properties available for partition. We fail to understand that, in order that the father should throw his own property into the hotchpot, meaning thereby to treat it as if it was joint family property, it is necessary that there should be other joint family property. The learned advocate, who appears on behalf of the plaintiffs, as a matter of fact conceded that, if the father had executed a document saying that he proposed to make a division of his property between his sons and with that object in view was throwing the self-acquired property into the hotchpot, he could not possibly have contended that, as a matter of fact, any further gift deed is necessary; but he says that in this case there has never been raised any contention that the father threw his self-acquired property into the hotchpot, and consequently such a contention should not be allowed to be taken up by the mortgagee. Now, we can see that in this case the mortgagee at no time raised a contention that the father threw his self-acquired property into the hotchpot; but we are not considering the question as to whether in the particular circumstances of this case the father can be regarded to have thrown the property into the hotchpot; the question which we are considering is a general one, namely, whether in every case in which a father makes a division of his self-acquired property between his sons, whether at the same time he makes a division of joint family property or, there being no joint family property available for such distribution, the distribution is confined to his self-acquired property, it would be correct to say that he throws the property into the hotchpot, and in our opinion there is no reason whatsoever why it should not be said that he does so.

One objection which has been taken to this is that under the Hindu law the father has got a right to make an unequal division of his self-acquired property between his sons at the time of the partition. It is said that in case we regard the father as throwing the property into the hotchpot, which would make it joint family property, then in that case the father would not be entitled to make an unequal distribution of his self-acquired property between his sons; but we fail to see that result follows. The Mitakshara which speaks of the powder of the father to make a division of his self-acquired property between his sons unequally makes no reference to any question of the property being thrown into the hotchpot and speaks of the father's power to make an unequal distribution of his self-acquired property as absolute, and in case the property is thrown into the hotchpot specifically for the purpose of making a partition between the sons, then we fail to understand why the power of the father to make an unequal division, so far as his self-acquired property is concerned, should disappear merely by the act of the property being thrown into the hotchpot. The Mitakshara includes both self-acquired property as well as property which is ancestral or joint family property by the word and in our view when the father is treating what is his self-acquired property in the same manner in which he treats joint family property or ancestral property, by proceeding to distribute it between his sons during his lifetime there is nothing in that act which would come in the way of his making an unequal distribution, so far as his self-acquired property is concerned.

We, therefore, regard the transaction by which a father makes a division of his self-acquired property between his sons as a transaction by which he, in the first instance, effects a severance of status between his sons; in the second instance, he notionally throws into the hotchpot his self-acquired property, and then divides it between his sons, whether equally or unequally in accordance with his pleasure.

In that view of the case, the transaction cannot be possibly regarded as one of the five transactions mentioned in the Transfer of Property Act, which require registration, namely, sale, mortgage, exchange, lease for more than one year or a gift.

The appeal must be dismissed. No order as to costs of this appeal.

Appeal dismissed.

J.G.R