Bhagwat Shukul v. Mt. Kaporni

Chatterji, J.:— The question of law involved in this appeal is whether self-acquired landed property of a Hindu governed by the Mitakshara School, if it is disposed of by him by gift to his son, is taken by the latter as his separate or ancestral property, ancestral, so far as his own sons are concerned.

The plaintiff is the widow of Rameshwar Ram, the only son of Jhaman Ram, defendant no. 1, now dead. Jhaman Ram was the only son of his father Bulaki Ram who died long ago. The disputed property is a house which, in its original state, was acquired by Bulaki Ram by a sale deed, dated the 17th February, 1857. Bulaki subsequently made a gift of this house to Jhaman under a registered deed, dated the 7th May, 1891. The plaintiff's husband, Rameshwar, all along lived jointly with his father Jhaman in the disputed house till his death which took place on the 11th March, 1938. After Rameshwar's death, Jhaman executed a registered deed of gift in favour of defendant no. 2, an outsider, on the 12th July, 1939. On the same day defendant no. 2 executed a mokarrari deed in favour of Jhaman. The plaintiff brought the present suit on the 19th September, 1939, asking for a declaration that her interest in the disputed house was not affected by the deed of gift executed by defendant no. 1 in favour of defendant no. 2 and the mokarrari deed of the same date executed by defendant no. 2 in favour of defendant no. 1.

The suit was contested by both the defendants mainly on the ground that the disputed house was the self-acquired property of defendant no. 1.

Both the Courts below have held that though the disputed house was the self-acquired property of Bulaki it must be considered in law to be the joint family property of Jhaman and Rameshwar. They have also found as a fact that the house was treated by them as joint family property. The finding of fact, however, so far as the appellate Court is concerned, is not definite, because it says

“This may lead to an inference that till then both of them considered this, house to be the joint family property”.

The suit has been decreed by both the Courts. Defendant no. 2 has preferred this appeal.

There is a great diversity of opinion in the different High Courts as to the effect of a gift or bequest made by a Mitakshara father of his self-acquired property to his son. The view taken by the Calcutta High Court is that it will be ancestral property in the hands of the son. In Madras the view seems to be that unless the father expresses his intention that it should be deemed self-acquired, it is ancestral. In Bombay, on the other hand, the view taken is that if there is no expression of opinion, it is deemed self-acquired. The view taken by the Allahabad and Lahore High Courts is that the property is self-acquired. This is also the view of the Oudh Chief Court. In this state of conflict of opinion their Lordships of the Privy Council in Lal Ram Singh v. The Deputy Commissioner of Partabgarh observed: “It may be that some day this Board will have to decide between the conflicting decisions of the Indian High Courts, and it may be that when this time comes, this Board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case.”

The earliest case of the Calcutta High Court is Muddun Gopal Thakur v. Ram Bux Pande, decided in 1863. In that case self-acquired property of the grandfather was distributed by him amongst his sons by executing separate deeds of gift in their favour. One of the sons sold the property obtained by him by gift to an outsider. His son brought a suit to set aside that sale. Their Lordships decreed the suit, holding that “according to the Mitakshara, landed property acquired by a grandfather and distributed by him amongst 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, and to the prejudice, of the grandsons.” Their Lordships came to this conclusion upon an examination of the several texts on the subject, as will appear from the following passages:—

“The principle to be deduced from the several texts on this subject (Mitakshara on Inheritance, Chapter I, Section 4) appears to be that, if the gift or acquisition is upon a consideration personal to the donee, as marriage, or the personal regard of a stranger for him, the property given is treated as self-acquired. (See Katyayana, Colebrooke's Digest, Volume IV, Chapter V, paragraph 347, page 35; and Menu, Ib., 345; Vyasa, Ib., 346.)

“But if, in cases other than that first above mentioned, the acquisition has been made, directly or indirectly, by means of, or at the charge or expense of, the ancestral estate, the property so acquired is treated as joint and liable to partition. (See Mitakshara, Chapter I, Section 4, paragraphs, 1-6-8; Katyayana, Colebrooke's Digest, Volume IV, Chapter V, paragraph 349, page 42; Nareda, lb., Volume IV, paragraph 357, page 62; and the Commentary of Jagunnatha, citing the opinions of Chandeswara and others, lb., page 64.) In the Mitakshara, Chapter I, Section 4, paragraph 1, page 268, of effects not liable to partition, it is said ‘Whatever else is acquired by the co-parcener 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.’ See also the text of Yagnyavalkya to the same effect, Colebrooke's Digest, Volume IV, paragraph 352, page 44. In this passage, it would appear that property obtained by gift from a father is not mentioned as not liable to partition.

“Nareda, in Colebrooke's Digest, Volume IV, paragraph 353, page 45, of wealth not subject to partition, says, ‘any thing that has been received by the favour of a father’ — Jagunnatha adds, ‘or other friend.’ The absence of these words in the original seems to show that the construction put on the passage by the author of the Mitakshara, Chapter I, Section 1, paragraph 19, is correct, and that it means no more than that property so acquired is exempt from partition amongst the brethren. (See, further. Mitakshara, Chapter I, Section 4, paragraph 28, as explained by section 6, paragraphs 13 and 16; Menu, translated by Sir W. Jones, Chapter IX, Section 206.)

“The text of Vyasa, Colebrooke's Digest, Volume IV, paragraph 354, page 46, admits of the same explanation. The ground of that opinion viz., that the intent of the parties must have been to exclude partition, stated in the Mitakshara, Chapter I, Section 1, paragraph 19, does not apply when the question arises between father and son.

“The property cannot be said to have been acquired without detriment to the father's (i.e ancestral) estate, because it was not only given out of that estate, but in substitution for the undivided share of that estate to which the father, under the passage first cited, appears to have been entitled. It cannot, therefore, be taken to have been given simply by the favour of the father, but upon consideration of the father surrendering some interest or right to share in the grandfather's estate, which he did by the acceptance of this separate parcel.”

Mr. L.K Jha on behalf of the appellant criticises this decision on the ground that their Lordships, instead of confining themselves to the Mitakshara, referred to stray passages from some other texts, such as Katyayana, Menu, Vyasa, Narada, etc., quoted in Colebrooke's Digest. Colebrooke's Digest is a translation of “A Digest of Hindu Law on Contracts and Succession” compiled by Jagannath Tarkapanchanan, a Pandit of Bengal. It is said that this Digest was compiled mainly for the Bengal School, and, therefore, Colebrooke's Digest cannot be regarded as authority on questions concerning the Mitakshara School. This is not correct. It appears from the Preface to Colebrooke's Digest that the original Digest in Sanskrit of which it is a translation was compiled by Jagannath Pandit under the direction of Sir William Jones to serve as a complete Digest of Hindu Law, not limited in its application to any particular School. Colebrooke's Digest is regarded as standard authority.

However, let us examine the text of the Mitakshara on the subject. Chapter I section I refers to “Definition of Inheritance; and of Partition. Disquisition on Property”. Clause 19 of this section is as follows:—

“Likewise the prohibition of a division of that, which is obtained from the liberality of the father previous to separation, would not be pertinent: since no partition of it can be supposed, for it has been given by consent of all parties. But Nareda does propound such a prohibition: ‘Excepting what is gained by valour, the wealth of a wife, and what is acquired by science, which are three sorts of property exempt from partition; and any favour conferred by a father.’”

Clause 27 says:—

“Therefore it is a settled point, that property in the paternal or ancestral estate is by birth, although the father have independent power in the disposal of effects other than immovables, for indispensable acts of duty and for purposes, prescribed by texts of law, as gifts through affection, support of the family, relief from distress, and so forth: but he is subject to the control of his sons and the rest, in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained, ‘Though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They, who are born and they who are yet unbegotten, and they who are still in the womb, require the means of support, no gift or sale should, therefore, be made.’”

Section IV of the same Chapter deals with “Effects not liable to partition”. Clause 1 of this section on which their Lordships rely has been already quoted.

Clauses 6, 7, 8 and 9 of the same section emphasise that the acquisition which is exempt from partition must have been made without loss to the “father's estate”.

Clause 9 says:

“Thus, if the phrase ‘without detriment to the father's estate,’ be taken as a separate sentence, anything obtained by mere acceptance would be exempt from partition, contrary to established practice.”

Clause 28 of the same section says:

“What is obtained through the father's favour, will be subsequently declared exempt from partition.”

Section V of the same Chapter deals with “Equal rights of Father and Son in property ancestral”. Clause 3 of this section says

“For the ownership of father and son is the same in land, which was acquired by the grandfather”.

Clause 5 says:

“In such property, which was acquired by the paternal grandfather, through acceptance of gifts, or by conquest or other means, as commerce, agriculture, or service, the ownership of father and son is notorious and therefore partition does take place. For, or because, the right is equal, or alike, therefore partition is not restricted to be made by the father's choice: nor has he a double share.”

Clauses 9, 10 and 11 are as follows:—

“9. So likewise, the grandson has a right of prohibition, if his unseparated father is making a donation, or a sale, of effects inherited from the grandfather: but he has no right of interference, if the effects were acquired by the father. On the contrary, he must acquiesce, because he is dependent.”

“10. Consequently the difference is this although he have a right by birth in his father's and in his grandfather's property; still, since he is dependent on his father in regard to the paternal estate, and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father's disposal of his own acquired property: but, since both have indiscriminately a right in the grandfather's estate, the son has a power of interdiction if the father be dissipating the property.”

“11. Menu likewise shows, that the father, however reluctant, must divide with his sons, at their pleasure, the effects acquired by the paternal grandfather; declaring, as he does, (‘If the father recover paternal wealth not recovered by his co-heirs, he shall not, unless willing, share it with his sons; for in fact it was acquired by him:’) that, if the father recover property, which had been acquired by an ancestor, and taken away by a stranger, but not redeemed by the grandfather, he need not himself share it, against his inclination, with his sons; any more than he need give up his own acquisitions.”

Section VI of the same Chapter deals with “Rights of a posthumous son and one born after the partition”. Clauses 14, 15 and 16 are as follows:—

“14. What is given (whether ornaments or other effects), by the father and by the mother, being separated from their children, to a son already separated, belongs exclusively to him; and does not become the property of the son born after the partition.”

“15. By parity of reason, what was given to any one, before the separation, appertains solely to him.”

“16. So, among brethren, dividing the allotment of their parents who were separated from them, after the demise of those parents, (as may be done by the brothers, if there be no son born subsequently to the original partition;) what had been given by the father and mother to each of them, belongs severally to each, and is shared by no other. This must be understood.”

It will be noticed that clause 27 of Section I is in direct conflict with what is said in clauses 9 and 10 of Section V. Referring to this conflict their Lordships of the Privy-Council in Rao Balwant Singh v. Rani Kishori said that the statement in Section I clause 27 is no more than a moral precept, whereas clauses 8 and 9 of Section V lay down the positive law. Accordingly their Lordships held, contrary to what is said in Chapter I, clause 27, that “A father of an undivided Hindu family subject to the Mitakshara law has full power of disposition over his self-acquired immoveable property”.

This decision, however, does not solve the problem before us, because here we are concerned with the grandfather's self-acquired property. Clauses 3, 5 and 11 of Section V make it clear that in the grandfather's self-acquired property the father and son have equal right. This, of course, implies that the property must have come by inheritance to the father on the grandfather's death. But the father inherits in his own right as heir yet his son who is not an heir to his grandfather in the presence of his father has an equal, right in the property. The question, then, is whether it makes any difference if the property comes to the father, not by inheritance, but by gift from the grandfather. Clause 1 of Section IV, as explained in clause 9 of the same section, shows that property acquired by a son at the expense of his father's estate is divisible. If the son acquires property by a gift from his father, his father's estate itself comes to his hands, and it is, therefore, lost to his co-parceners. Consequently it cannot be regarded as his separate property. But his brothers can have no claim to it, if it be their father's self-acquired property, because the father has full power of disposal over it, as held in the said Privy Council case, Rao Balwant Singh v. Rani Kishori. The son's son, however, stands on a different footing, because he has an equal right with his father in his grandfather's property. Clause 28 of Section IV which is relied upon by Mr. Jha obviously applies to partition between the donee and his brothers and has no application to a partition between the donee and his son, otherwise it will be inconsistent with clause 1 of the same section and clauses 3, 5 and 11 of Section V. For the same reason clause 19 of Section I which refers to exemption from partition of “any favour conferred by a father” does not apply where the question arises between the donee and his son. So far as clauses 14, 15 and 16 of Section VI are concerned, the context shows that they apply when the question arises between the donee and his brother.

The effect of clauses 1 and 9 of section IV, read with clauses 3, 5, and 11 of section V, seems to be that when a grandfather's self-acquired property is taken by the father by gift from him he takes it subject to the right of his own son, unless, of course, the grandfather expresses a clear intention in the deed of gift that the property should be taken by the donee exclusively. In my view, therefore, the decision in Muddun Gopal is supported by the text of the Mitakshara.

The next case of the Calcutta High Court is Hazarimal Babu v. Abani Nath Adhurjoya. In that case the holder of an impartible estate, by a testamentary disposition, granted some lands to his younger sons for maintenance. One of these sons executed a mortgage of the lands obtained by him by the bequest. The mortgagee brought a suit to enforce the mortgage and obtained a mortgage decree. The sons of the mortgagor brought a suit for declaration that the mortgage decree was not binding on them inasmuch as the mortgagor had no right to mortgage the property which was joint family property. One of the questions for consideration before the High Court was whether the property was ancestral., Their Lordships held that it was on the authority of Muddun Gopal's case. Mookerjee, J., who delivered the judgment (Beach-croft, J. agreeing), pointed out that the decision in Muddun Gopal's case was expressly followed in Hardai Narain v. Haruck Dhari Singh which was affirmed on appeal by the Privy Council in Mussamut Nanomi Babuasin v. Modun Mohun, though in the Privy Council judgment there is no reference to Muddun Gopal's case. Mookerjee, J., however, observed: “Under these circumstances I am not prepared to dissent from the decision in Muddun Gopal v. Rani Buksh, though it may be conceded that if the matter were res integra, the question would be worthy of consideration. It cannot further be overlooked that even if the view be maintained, as has been done in some of the cases reviewed, that it is a question of construction whether the property was intended to pass to the son as ancestral property or as separate property, the appellant cannot possibly succeed. The testamentary disposition of the father of the ninth defendant makes it abundantly clear, that the intention of the testator was that the property should vest in his son for the maintenance, not merely of his son himself but also of his grandsons and their descendants.”

The latest case of the Calcutta High Court so far as it has been brought to our notice is Lala Mukti Prokash Nande v. Srimati Iswari Dei Debi. There the question arose as to the effect of a devise by a Mitakshara father of his self-acquired property to his son. Richardson, J., who delivered the leading judgment (Shamsul Huda, J. agreeing to the order proposed); held that Muddun Gopal's case was binding on them. The actual decision, however, was based on an interpretation of a will, because his Lordship said: “So far, therefore, as the language of the will is concerned, my conclusion is that the testator intended each of his sons to take his share as ancestral property”.

The earliest case of the Madras High Court is Tarachand v. Reel Ram. In that case the plaintiff, who was the son of the first defendant and brother of the remaining three defendants, sued for partition of his one-fifth share in the family property. The defence of the father was that the property having been acquired by him by will from his father was his separate property. His defence was negatived by the High Court in these words: “We can see no ground whatever for doubting that the property which came to the 1st defendant from his father is, as he himself treats it, ancestral property. It seems to us that there is no reason whatever in the contention that its quality was changed by his choosing to accept it, apparently under the terms of his father's will. Still less ground would there be for the contention that his acquiescence in that mode of receiving it would vest in himself a larger estate than he would have taken by descent. On what principle can he be conceived capable, by any act of his of depriving his children of a right given to then by the doctrines of the Mitakshara at the very moment of their birth?” It thus appears that this decision proceeded on the ground that the 1st defendant took the property as ancestral property and himself treated it as such.

The next Madras case is Nagalingam Pillai v. Ram Chandra Tevar. There the plaintiff sued to recover possession of property alienated by his father. Admittedly it was the self-acquired property of the plaintiff's grandfather who devised it to his son, that is, the plaintiff's father. The defence taken was that the property was the separate property of the plaintiff's father. In dealing with this defence Shep-hard, J., with whom Benson, J. agreed, said: “As the father is at liberty to make any disposition he pleases or to leave his self-acquired property to descend as ancestral property, so when making any disposition in favour of his son he is at liberty to preserve for the property the quality of ancestral property. Whether in any given case the property was intended to pass to the son as ancestral property or as self-acquired property must be a question of intention turning on the construction of the instrument of gift. Following the principle laid down in Mahomed Shumsool v. Shewukram, I think that if there are no words indicating the contrary intention, the natural inference should be that the father intended his sons to take his property as their ancestral estate.” His Lordship referred to Muddun Gopal's case and explained it as follows: “If a partition is made by the father on the footing that the property is partible property, although there is in point of law a disposition made by the father, there can be no doubt that the father intends that the quality of ancestral property shall remain. That is the case in Muddan Gopal Thakur v. Ram Buksh Pandey, although other reasons were given for the decision. In the present case I think there was the same intention”.

The next Madras case to which our attention has been drawn is Vairavan Chettiar v. Srinivasachariar. There the question arose whether an undivided son could sue for recovery of money, which was the self-acquired property of his deceased father, without obtaining succession certificate. Their Lordships held that succession certificate was necessary, because an undivided son acquires the self-acquired property of his deceased father by inheritance and not by survivorship. That question is quite different from the one before us.

The latest case of the Madras High Court brought to our notice is Majeti Kasi Viswesra Rao v. Pulleti Kurti Varahanarasimham, decided by Pandrang Row, J., sitting alone. His Lordship, following Nagalingam Pillai's case held that “It is left to the father to determine whether the self-acquired property which he gives to his son shall be ancestral or self-acquired, and further unless there is any expression of intention or wish that the property should be deemed to be self-acquired, it must be held that the property is to be enjoyed as ancestral property.”

The earliest case of the Bombay High Court is Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy. There a partition suit was brought by a son against his father. Some of the properties in suit had been acquired by the father by a bequest from his father. With regard to these properties the father's defence was that they were his separate properties. The suit was heard on the original side by Scott, J. and the appeal from his decision was heard by Sargent, C.J, and Bayley, J. Sargent, C.J, with whom Bayley, J. agreed, decided the case mainly relying on the terms of the will. His Lordship held that the language of the will unequivocally showed the intention of the testator that his son, that is, the plaintiff's father, should take the absolute property in the estate enumerated subject only to a restriction on his power to sell or mortgage without previously consulting the executors named by him. Referring to Muddan Gopal's case, which was relied upon by the plaintiff, his Lordship said: “The judgment doubtless also contains an expression of opinion, that such a gift would not be excluded from partition between father and sons by chapter I, section 4, placitum 1” of Mitakshara, “because it would not have been acquired ‘without detriment to the father's estate’. If, however, the above section is to be regarded as applicable to all partitions as the Court seemed to think, whether between collaterals or between a father and sons, it would seem that placitum 28 of the same section, which exempts what is obtained through the father's favour from partition, must be equally applicable in all cases of partition, and not merely between collaterals, as the Court seemed to think.” His Lordship then proceeded to state “The question, therefore, arises, whether Nathubhoy's gift by will to his son was obtained through favour; and undoubtedly, in the absence of special circumstances or of anything in the context to show a contrary intention, every such gift must be regarded as such”. As regards the contention advanced on behalf of the plaintiff that the property obtained by his father by will must be regarded as ancestral as between him and his sons, his Lordship refuted it in these words: But this broad interpretation of the term ancestral is inconsistent with the very principle upon which grandsons are said to have by birth a right in the grandfather's estate equally with the sons, viz., that they constitute a co-parcenery for the due performance of sacred rites, and, as such, have a common interest, in the enjoyment of the grandfather's property, a principle which can have no application to property which the grandfather of his own free will, and, acting ex hypothesi within his power, separated from his estate. In other words, the son has acquired by the gift of his father a title in which the grandson has no concern, except as the possible heir when his father dies”.

The next Bombay case is Nanabhat Ganpatrav Dhairyavan v. Achratbai decided by Farran, J. sitting on the original side. There the question was as to the nature of the interest which the son derived from his mother in property which originally formed part of the father's estate. This case, therefore, is not really in point.

The leading case of the Allahabad High Court is Parsotam Rao Tantia v. Janki Bai. In that case it was contended before the High Court on behalf of the defendants who were the appellants on the authority of Tarachand's case and Muddun Gopal's case that the self-acquired property of a father devised by him to one of his sons becomes joint property of the devisee and his sons. This contention was disposed of by Stanley, C.J and Burkitt, J. in these words: “We are not disposed, in view; of the pleadings of the parties and the clear admission in the written statement of the defendants of the right of Nana Narain Rao to dispose of his property amongst his sons, to permit this defence to be now set up. But assuming that it is open to the defendants to do so, we are not prepared to follow the rulings on which the learned counsel for the defendants appellants relies. We prefer to follow the rule which is laid down in the case of Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy in which this subject was discussed and dealt with, at considerable length. In that case it was held that a son to whom his father leaves his self-acquired property by will takes the property under the will and not by inheritance, and that as property received by will is held by Hindu law to be received by gift, such property is self-acquired in the hands of the son and is not subject to partition in his life-time of the suit of his son.” Thus their Lordships Without discussing the matter simply preferred to follow the Bombay decision.

The latest decision of the Allahabad High Court, brought to our notice, is Jai Prakash v. Bhagwan Das and Co. in which it was held “Where the father bequeaths his self-acquired property to his son by will, the property becomes the self-acquired property in the hands of the son and he can validly alienate such property for his own purposes”. Their Lordships' attention was drawn to the decision of the Privy Council in Lal Ram Singh's case and in view of the observations in that case, which I have already quoted, they were asked to reconsider the question. But their Lordships said “In our view, however, it is not open to a Bench of this Court to consider this matter afresh because this Court is in our judgment committed to the view that property of this kind bequeathed by a father to a son becomes in the hands of the devisee the son, his self-acquired property”. Their Lordships thought they were bound to follow the decision in Parsotam Rao's case which was followed in a later unreported decision of the fame Court, referred to by them.

The earliest decision of the Lahore High Court brought to our notice is Amar Nath v. Guran Ditta Mal. In that case, the contention was raised that the self-acquired property of a father devised by him by will to his son must be regarded as ancestral property in the hands of the devisee. This contention was disposed of by their Lordships as follows: “On this point there is a conflict of opinion between the various High Courts, but we can find no ground either of law or of common sense for holding that property devised by will over which the testator had complete powers of disposal is anything but self-acquired property in the hands of the devisee. The term ‘ancestral property’ connotes a descent by interitance,…… Though the Calcutta High Court had adopted the view that such property is to be regarded as ancestral in the hands of the devisee, it will be noted that in Hazarimal Babu v. Abani Nath Mookerjee, J., did not come to an independent finding on the point, but holding that the matter was not res integra followed previous rulings of his Court.” Thus their Lordships proceeded on the view that “ancestral property connotes a descent by inheritance”.

The next Lahore case is Ram Singh v. Ram Nath in which it was held “self-acquired property of a Hindu bequeathed by him to his sons and grandsons in equal shares is separate property in the latters' hands”. Their Lordships after pointing out that there was conflict of decisions between the different High Courts, concluded that the “weight of authority” was in favour, of the view taken by them.

The latest Lahore case brought to our notice is Kishan Chand v. Punjab Sindh Bank, Ltd. in which it was held “self-acquired property left by will by the father to his son is to be deemed to be the self-acquired property of the son quo his own sons”. Their Lordships based their decision on the earlier cases of their Court which I have just referred to.

The only case of the Oudh Chief Court which has been brought to our notice is Mt. Brij Kunwar v. Sankata Prasad in which the question arose as to the effect of a bequest by a father of his self-acquired property. Their Lordships, after referring to an earlier decision of the Court of the Judicial Commissioner of Oudh and to the decisions of the Madras, Bombay and Allahabad High Courts, disposed of the question in these words: “We are of opinion that even if we do not go the length of the view-taken by the late Court of the Judicial Commissioner of Oudh and by the Bombay and Allahabad High Courts, and if we confine ourselves to the more limited view taken by the Madras High Court, even then the terms of the will executed by Gumani Singh leave no room for doubt about his intention on the point. He says that the legatee will be the owner of the property without any coparcener and that no one except him shall have any right in the property. We are, therefore, of opinion that on the terms of the document before us the intention of Gumani Singh clearly was that the property in the hands of Gobardhan Singh should be his exclusive property and should not partake of the incidents of ancestral property”. Thus their Lordships' decision rested entirely on the interpretation of the will.

It will thus appear that the decision of the Allahabad High Court in the leading case of Parsotam Rao Tantia v. Janki Rai was based on the decision of the Bombay High Court in Jagmohandas Mangaldas's case. This Bombay decision, as I have already shown, was based mainly on the interpretation of the will. It also proceeded on the interpretation of the word “ancestral”. The earliest decision of the Lahore High Court in Amir Nath v. Guran Ditta Mal entirely proceeded on the interpretation of the term “ancestral property”.

The term “ancestral property”, when applied to the grandfather's self-acquired property, must be understood with reference to the peculiar right of the grandson in relation to his father under the Mitakshara. As I have already said, the grandson in the presence of his father has no right to inherit his grandfather's self-acquired property, but when his father inherits such property, he has an equal right in it with his father. In other words, the father takes the property for himself as well as for his son. If the grandfather who has several sons makes a gift of his self-acquired property to one of his sons, he shows a favour to that particular son, but the other sons have no right to object to this gift, because their father has full power of disposal over his self-acquired property. But for the gift, all the sons would have equally inherited the property. The gift, therefore, makes a clear discrimination between the sons. But the position is different with regard to the son of the son to whom the gift is made. The grandson has no independent right by inheritance but takes through his father. Therefore, the gift cannot be said to make a discrimination between the donee and his son, unless the gift is expressly made to the donee exclusively. As between the donee and his son, the property becomes divisible by reason of the rule laid down in Mitakshara Chapter I, Section IV, clause 1. It is thus clear that the exemption from partition of anything obtained through the favour of the father, as referred to in Mitakshara Chapter I, Section I, clause 19 and Section IV, clause 28, does not apply where the question arises between the donee and his son. It is also clear that the property in the hands of the donee is ancestral in the sense that his son would take an interest in it on birth jointly with him.

In this connection certain observations of their Lordships of the Privy Council in Ulagalum Perumal Sethurayar v. Subbulakshmi Nachiar are pertinent. Their Lordships said “The High Court was careful to point out that the present case raises no question such as might have arisen had Minakshi Sundara died leaving sons—whether the estate in his hands was ancestral as having come to him from his father in the sense that a son would have taken an interest therein at birth. On this subject there has been much divergence of opinion in India, and it was left unsettled by the judgment of the Board in Lal Ram Singh v. Deputy Commissioner of Partabgarh.” In that case Minakshi Sundara who was a younger son of the last holder of an impartible estate had taken the estate not by inheritance but under a deed of settlement executed by his father. The above observation of their Lordships suggests that the estate though not inherited by Minakshi Sundara, might possibly be ancestral as between him and his sons. There the contest arose, on Minakshi Sundara's death, between his widow and his half-brother. Their Lordships upheld the widow's claim on the ground that her husband had taken the estate as his self-acquired property. Their Lordships concluded with the following observation: “They say nothing here as to family arrangement or the power of a grantor to impose conditions, but otherwise, so far as regards the joint family, they see considerable difficulty in giving different effect to an alienation made under the power declared to exist in Sartaj Kuan's case according as the grant be made voluntarily or for consideration, comprises the whole or only part of the estate, is in favour of a member of the family or a stranger, or in favour of the person entitled to succeed or of some other member of the family. They recognize, however, that as between the grantee and his sons questions may arise upon which these considerations, or some of them, may have importance.” This last sentence shows that apparently their Lordships recognize the distinction which I have pointed out above. Thus, in their Lordships' opinion, what becomes the self-acquired property of the grantee in relation to other members of his family may, as between him and his sons, possibly be regarded as their joint family property or, in other words, ancestral property.

This distinction appears to have been altogether disregarded by the Bombay, Allahabad and Lahore High Courts.

As between the Calcutta and the Madras High Courts there is not much difference. The Calcutta High Court in the latest case of Lala Mukti Prokash Nande v. Srimati Iswari Dei Debi practically adopted the Madras view. According to the earliest Calcutta case in Muddun Gopal, the property will be regarded as ancestral property in the hands of the son who takes it by gift from his father. But if in the deed of gift the father expresses a clear intention that the property should be taken by the donee exclusively, it will certainly be regarded as his separate property.

Upon a consideration of the above authorities, it seems to are that the view taken by the Madras High Court is the correct one.

In the present case the deed of gift executed by Bulaki in favour of Jhaman recites:

“I have become old and my eye-sight has become totally lost and in this old age and blindness, my son Jhaman serves me affectionately and remains always vigilant. The world is temporal and there is no knowing of life and death, so I heartily desire that I should give possession of the house in my lifetime to my son Jhaman in lieu of service. At all events, after my death, my son Jhaman will be malik of all my properties but I wish that I should make him malik of all my properties in my presence.”

It is clear from these recitals that Bulaki intended to give Jhaman the same interest which he would have acquired if he inherited it after Bulaki's death. In other words, Jhaman took the property as ancestral. Consequently Rameshwar on his birth acquired interest in it.

That being so, the plaintiff, who is undoubtedly an heir to her deceased husband under section 3(2) of the Hindu Women's Rights to Property Act, 1937, will have the same interest in the disputed property as her husband had at the time of his death. It is argued by Mr. L.K Jha that her husband would have only half share, and that, therefore, the plaintiff cannot get her title declared in respect of the entire property. But the decree passed by the Court below declares that

“the plaintiff has got interest in the property in dispute and that her interest cannot be affected by the deeds of Danpatra and mokarrari, dated the 12th July, 1939”.

This decree is quite correct.

I would accordingly dismiss the appeal with costs.

Meredith, J.:— I agree.

Sinha, J.:— I agree.

K.D

Appeal dismissed.