I

J

'

S.C.R.. SUPREME COURT REPORTS

0. N. ARUNAOHALA MUDALIAR

v.

O. A. MURUGANATHA MUDALIAR,

AND ANOTHER.

MEHR CHAND MAHAJAN, MuKHER.JEA

and JAGANNADHADAS ,JJ.

243

Hind1t law-Gift-Property gifted by father to son-Whether

a.1westral property in. the hands of son-Construction of will­

Presu1nptions.

Property gifted by a father to his son could not become

ancestral property in the hands of the.son simply by reason of the

fact that he got it from his father. The father is quite competent

when he makes a gift, to provide expressly

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, and if there are express

provisions

to that effect in the deed of gift or will, the interest

which the son would take in such property would depend on the

terms of the grant.

If there are no clear words describing the kind of interest

which the donee is to take, the question would be one of

construc­

tion 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 accordanc~. with-the established

canons

of construction. The material question in such cases would

be

whether the grantor really wanted to make a gift of the

pro­

perties to his son or the apparent gift was only an integral part of

a scheme to partition the same.

There is no presumption that he intended either the one or

the other, as it is open to the father to make a gift or partition

his properties as he himself chooses.

Muddim v. Ram (6 W.R. 71), Nagalingam v. Ramachandra

(I.L.R. 24 Mad. 429), Bhagwat v. Mst. Kaporni (I.L.R. 23 Pat. 599),

Jugmohan Das v. Mangal Das (I.L.R. 10 Born. 528), Parsottam v.

J'ankibai (I.L.R. 29 All. 354), A'!narnath v. Guran (A.LR. 1918

Lah. 394),

Lal

Ra'ln Singh v. Deputy Commissioner, Partabgarh (64

I.A. 265) referred to.

Where a testator who had 3 sons, after giving certain pro­

perties to his wife and other relations, provided that the properties

in Schedules

A, B and

C of the will which were his self-acquired

. properties

shall be taken by his eldest, second and third son

res­

pectively, and that the sons shall enjoy the properties allotted to

them with absolute rights and with powers of alienation such as

--4. gift, exchange, sale etc. from son to grandson hereditarily:

33

1953

Oct.14,

•

244 SUPREME COURT REPORTS [1954]

1968 Held, that as the will expressly vested the sons with absolute

rights with lull powers

of alienation, the property bequeathed to '0. N. Arunachala them '\'as not ancestral property in their hands vis rt vis their own

•

Mudaliar male issue,

v.

O.A.Muruga. CIVIL APPELLATE JURISDICTION: Civil Appeal

natha Mudaliar No. 191 of 1952.

and Another.

Appeal by special leave granted by the Supreme

Court on the 21st May, 1951, from the Judgment and

Decree dated the 13th December, 1949, of the High

Court of Judicature at Madras (Rao and Somasundaram

JJ.) in Appeal No. 529of1946 arising out of the Judg­

ment and Decree dated the 20th February, 1946, of

the Court of Subordinate Judge of Coimbatore in O.S.

No. 138 of 1945.

P. Somasunda.ram (R. Gan.apathy Iyer, with him) for

the appellant.

B. Soma.yya(K. R. Chowdhury, with him) for respond­

ent No. 1.

1953. October 14. The ,fodgment of the Conrt was

delivered by

MuKHERJEA J.-This appeal, which has come before

us on special leave, is directed against a judgment and

decree of a Division Bench of the Madras High Court

dated December 13, 1949, affirming, with slight modi­

fication, those of the Subordinate Judge, Coimbatore,

passed in O.S. No. 138 of 1945.

The suit was commenced by the plaintiff, who is

respondent No. 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, the defendant No. 1, and his

brother, the defendant No. 2, and that he was entitled

in law to one-third share in the same. It appears that

the plaintiff and defendan~ No. 2, who ·are two

brothers, are both sons of defendant No. 1 by his first

wife who predeceased her husband. After the death

of plaintiff's mother, the defendant No. 1 married

again and his second wife is defendant No. 3 in the

I

'

8.C.R.

' • • . " '; ! • . -- ' ~ ! .

SUPH,EME COURT REPORTS 245

. b 1953

suit. The allegations in the plaint, m su stance, are __

that after the step-mother came into the house, the c.N. Arunaohala

relation between the father and his sons became strain-MudaUar

ed and as the father began to assert an exclusive title v.

to the joint family property, denying any rights of his C. A. Muruga·

b b h Th natha M udaliar

sons thereto, the present suit had to e roug t. e and Another.

properties in respect of which the plaintiff claims parti-

tion are described in Schedule B

to the plaint. They Mukherjea J,

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 paragraph 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.

The defendant No. 1 in his written

statement

tra­

versed 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 Schedule 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, the

defendant No. 3.

The defendant No. 2, who is the brother of the

plaintiff, supported the plaintiff's case in its entirety.

The defendant No. 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.

· After hearing the case the trial judge came to the con·

clusion that the properties bequeathed to defendant

No. 1

by his father should be held to be ancestral

properties in his hands

and as the other properties were

,,. . .

246 SUPREME COURT REPORTS [1954]

i

9

6a acquired by defendant No. I out of the income of the

0

N ;-

1

la ancestral estate, they also became impressed with the

· Mu~:~i:~"' character of joint property. The result was that the

y. Subordinate Judge made a preliminary decree in

a. A. Muruga· favour of the plaintiff and allowed his claim as laid in

natha Mudaliar the plaint with the exception of certain articles of

and Another. jewellery which were held to be non-existent.

1

~ ·

Mukherjea J. Against this decision, the defendant No. 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 hilld to belong to

defendant No. 3 alone and the plaintiff's claim for

partition of the furniture and brass utensils was dis­

missed. The High Court rejected the defendant No. l's

application for leave to appeal to this court but he

succeeded in getting special leave under article 136 of

the Constitution.

The substantial point that requires consideration in

the appeal is, whether the properties that the defend­

ant No. 1 got under the will of his father are to be

regarded as ancestral or self-acquired properties in his

hands.

If the properties were ancestral, the sons

would become co-owners

with their father in regard to

them and as it is conceded that the other items of

im­

movable property were mere accretions to this original

nucleus,

the plaintiff's claim must succeed. If, on the

other hand, the bequeathed properties could rank as

self-acquired properties in the hands of defendant

1

No. I, the plaintiff's case must fail. The law on this

point, as the courts below have pointed out, is not

quite uniform and there have been conflicting opinions

expressed upon

it by different High

Courts which

require to be examined carefully.

For a proper determination of the question, it would

be convenient first

of all to refer to the law laid down in

Mitakshara

in regard to the father's right of disposition

over his self-acquired

property and the interest which

his sons or grandsons take in the same. Placitum 27,

chapter

I; section 1 of Mitakshara lays down :

··" It is settled point that property in the· paternal or

a:p.cestral estate is by birth, though the father has "

,

;

)

J

-·

S.O.R. SUPREME COURT REPORTS 247

independent power in the disposal of effects other than

195

J

the immovables for indispensable acts of duty and for 0

N -;-h

1

purposes prescribed by texts of law as gift through · M;,;:~=~ a a

affection, support of the family, relief from distress v.

and so forth ; but he is subject to the control of his a. A. Mumya­

sons and the rest in regard to the immovable estate, natha Mudaliar

whether acquired by himself or inherited from his father and Another.

or other predecessors since it is ordained, 'though i!J'.l-,VJukherjcaJ.

movables or bipeds have been acquired by man himself,

a gift

or sale of them should not be made without con-

vening all

the

sons'."

Mitakshara insists on the religious duty of a man

not to leave his family without means of support and

concludes the text by saying : " 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."

Quite at variance with this precept which seems tu°

restrict :the father's right of disposition over his self­

acquired property in an unqualified manner and in the

same way as ancestral lands, there occur other texts

in the commentary which practically deny any right

of interference by the sons with the father's power of

alienation over his self-acquired property. Chapter 1,

section 5, placitum 9 says :

" The grandson has a right of prohibition if his un­

separated father is making a donation or sale of effects

inherited from

the grandfather : but he has no right of

interference if the effects were acquired by the father. On the ~:mntrary he must acquiesce, because he is

dependent."

The reason for this distinction is explained by the

author in the text that follows: "Consequently the

difference is this: although he has 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.

''

248 SUPREllE COURT RElPORTS [1954J

1953

Clearly the latter passages are in flat contradiction

o.N. Amnachala with the previous ones and in an early Calcutta case(')

Mudaliar a reconciliation was attempted at by taking the view

v. that the right of the sons in the self-acquired property

o. A. JJ.Juruya-of their father was an imperfect right incapable of

natha Mudaliar being enforced at law. The question came pointedly

anrl Another.

for consideration before the Judicial Committee in the

Mitkherjea J. case of Rao Balwant v. Rani ]( ishori (') and Lord Hob­

house, who delivered the judgment of the Board, ob-

. served in course

of his judgment that in the text books

and commentaries on

Hindu Law, religious and moral

considerations are often mingled with rules

of positive

law.

It was held that the passages in

Chapter I, sec­

tion 1, verse 27 of Mitakshara contained only moral or

religious precepts while those in section 5, verses 9 and

10 embodied rules of positive law. The latter conse­

quently would override the former. It was held,

therefore,

that the father of a joint Hindu family

governed

by Mitakshara law has full and uncontrolled

powers

of disposition over his self-acquired immovable

property and his male issue could not interfere with

these rights in any way. This statement of the law

has never been challenged since then

and it has been

held

by the various High

Courts in India, and in our

opinion rightly, that a Mitakshara father is not only

competent

to sell his self-acquired immovable property

-

to a stranger without the concurrence of his sons (

1

),

but he can make a gift of such property to one of his

, own sons to the detriment of another('}; and he can

make even

an unequal distribution amongst his

heirs('). So farthe law seems to be fairly settled and there is no

room for controversy. The controversy arises, how­

ever, 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

be­

quest from him, vis a vis his own male issue. Does it

(1) Vidc MHddu1t v. Rani, 6 W.R. 71,

(2) 23 I.A. 54.

(3) v;de Sital v. Madlw, l.L.R. r All. 394.

(4) Vide Bawa v, Rajah, 10 W.R. 287.

I '

r

_)

J

S.C.R. SUPREME COURT REPORTS 249

remain self"acquired property in his hands also untram- 1953

melled by the rights of his sons and grandsons or does

0

N ~ h la

it become ancestral property in his hands, though not · .MuZz7:; a

obtained by descent, in which his male issue become v.

co-owners with him ? This question has been answered o. A. Muruga·

in different ways by the different ·High Courts in India natha Mudaliar

which has resulted in a considerable diversity of and Another.

judicial opinion. It was held by the Calcutta High M"kherjea J.

Court(') as early as in the year 1863 that such pro-

perty beeomes ancestral property in the hands of his

son as

if he had inherited it from his father. In the

other High Courts the question is treated as one of

construction to be decided in each case with reference

to its facts as to whether the gifted property was in-

tended

to pass to the sons an ancestral or self-acquired

property; but here again there is a sharp cleavage

of judicial opinion. The Madras High

Court has held(

2

)

that it is undoubtedly open to the father to determine

whether

the property which he has bequeathed shall

be ancestral

or self-acquired but unless he expresses

his intention

that it shall be self-acquired, it should

be held

to be ancestral. The Madras view has been

accepted

by a Full Bench of the Patna High Court (

3

)

and the latest decision of the Calcutta High

Court on

this point seems

to be rather leaning towards it (

4

). On the other hand, the Bombay view is to ~old such

gifted property as self-acquisition

of the donee unless

there is clear expression of intention on the part of the

donor to make it ancestral

(5 ), and this view has been

accepted

by the Allahabad and the Lahore High Courts (

6

). This conflict of judicial opinion was brought

to the notice of the Privy Council in Lal Ram Singh v.

Deputy Commissioner of Partabgarh (7), but the Judicial

Committee left

the question open as it was not neces-

sary

to decide it in that case.

(1) Vide Muddttn v. Ram 6 W.R. 7r.

(2) Vide Nagalingham v. Ram Chandra, I.L.R. 24 Mad. 429.

(3)

Vide Bltagwat v. Mst. Kaporni, I.L.R. 23 Pat. 599.

(4)

Vide Lala Mukti Prasad v. Srimati Iswari, 24 C.W.N. 938.

(5) Vide Jugmohan Das v. Sir Mangal Das, 10 Born. 528.

(6) Vide Pa.rsotam '" Janki Bai, I.L.R. 29 All. 354; Amarnath v. Guran,

A.LR. 1918 Lah. 394.

(7) 64 I.A. 265.

250 SUPREME COURT REPORTS [1954]

1953 In view of the settled law that a Mitakshara father

--·has absolute right of disposition over his self-acquired

O.N. Arun~chala property to which no exception can be taken by his

Mudaliar 1. d d t 't . . , , t 'bl t

v. ma e escen an s, i is m our opm10n no poss1 e o

o. A. Murnaa-hold that such property bequeathed or gifted to a son

11atha Mudaliar must necessarily, and under all circumstances, rank as

and A,,o,her. ancestral property in the hands of the donee in which

1

1

his sons would acquire co-ordinate interest. This

M"kherjea J, extreme view, which is supposed to be laid down in the

Calcutta case(') 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

Mit_akshara 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.

So far as the first ground is ooncerned, the found­

ation of the doctrine of egnal ownership of father and ·

son in ancestral property is the well known text of

Yagnavalkya(') which says:

"The ownership of father and son is co-egua] in the

acquisitions of the grandfather, whether land, corody

or chattel."

It is to be noted that Vijnaneswar invokes .this

passage in Chapter I, section 5 of his work, where he ,

deals with the division of grandfather's wealth amongst

. his grandsons. The grandsons, it is said, have a right

by birth in the grandfather's estate equally with the

sons and consequently are entitled to .shares on parti-

tion, though their shares would be determined per

stirpes and not per capita. This discussion

has absolutely 110 bearing on the present question. It is undon btedly

true that according to Mitakshara, the son has a right

• by birth both in his father's and grandfather's estate,

hut as has been pointed out before, a distinction is

made in this respect by Mitakshara itself. In the

· {l:) Vide Muddun v. Ra·m, 6 W.R. 71.

~2) Vide Yagnavalkya, Book 2, 129, >

t

)

S.C.R. SUPREME COURT REPORTS 251

ancestral or

grandfather's property in the hands of the.

U51$

father, the son has equal rights with· his father; while

0

N A-h

1

in the self-acquired property of the father, his rights · Mu~':z'::. a a

are unequal by reason of the father having an independ- v.

ent power over or predominant interest in the o. A. Muruga­

same (1). It is obvious, however, that the son can natha Miidalia7

assert this equal right with the father only when the and Anothe,..

grandfather's property has devolved upon his father Mu/cherjea J.

and has become ancestral property in his hands. The

property of the grandfather can normally vest in the

father as ancestral property if 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 lifetime. On both these occasions

the grandfather's property comes to the father by

virtue of the latter's legal right as a son or descendant·,/'

of the former and consequently it becomes ancestral

property in his hands. But when the father obtains,

the grandfather's property by way of gift, he receives

it not because he is a son or has any legal right

to such property but because his father chose to f

bestow a favour on him which he could have)

bestowed on any other person as well. The interest

which he

takes in such property must depend upon the

will of the grantor. A good deal of confusion, we

think, has arisen by not keeping this distinction in

mind. To find

out whether a property is or is not

ancestral in the hands of a particular person, not

merely the relationship between the original and the

present holder but the mode of transmission also must

be looked to ; and the property can ordinarily be

reckoned as ancestral only if the present holder has got

it by virtue of his being a son or descendant of the

original owner. The Mitakshara, we think, is fairly

clear on this point.

It has placed the father's gifts

under a separate category altogether and in more

places

than one has declared them exempt from parti-

tion. Thus in

Chapter I, section 1, placitum 19

Mitakshara refers

to a text ofNarada which says:

(r)

Vide Mayne's Hindu Law, 11th edition, page 336,

3f

252 SUPREME COURT REPORTS [1954]

1953 "Excepting what is gained by valour, the wealth of

0

N A-h

1

a wife and what is acquired by science which are three

· Mu;;:l~:; a a sorts of property exempt from partition ; and any

v. favour conferred by a father."

c. A. Muruga. Chapter I, section 4 of Mitakshara deals with effects

"':,~"; ~:.~~;~:' not liable to partition and property " obtained through 1 ,

the father's favour" finds a place in the list of things

Mukh<rjea J. of which no partition can be directed('). This is

emphasised

in section 6 of chapter I which discusses

the rights of posthumous sons or sons born after

parti­

tion. In placitum 13 of the section it is stated that

though a son born after partition takes the whole of

his father's and mother's property, yet if the father

and mother has affectio~ately bestowed some property

upon a separated son, that must remain with him. A

text of Yagnavalkya is then quoted that "the effects

which

have been given by the father and by the

mother belong to him on whom they are

bestowed"(').

It may be noted that the expression "obtained

through favour of the father" (pitr prasada labdha)

which occurs in placitum 28, section 4 of Mitakshara is

very significant. A Mitakshara father can make a

partition of both the ancestral and self-acquired pro­

perty in his hands any time he likes even without the

concurrence of his sons ; but if he chooses to make a

partition, he has got to make it in accordance with the

directions laid down in the law. Even the extent of

inequality, which is permissible as between the eldest ,

and the younger sons, is indicated in the text('). Noth-

ing depends

upon his own favour or discretion. When,

however,

he makes a gift which is only an act of

• bounty, he is unfettered in the exercise of his discretion

by any rule or dictate of law. It is in these gifts

obtained

through the favour of the father that

Vijnan­

eswar, following the earlier sages, declares the exclus­

ive right of the sons. We hold, therefore, that there

is no warrant for saying that according to the

(1) Vide section 4, placitum 28 of Mitakshara.

(2) Vide Yagnavalkya 2, 124.

(3) Vide Mitakshara chapter I, section~·

t

,I

s.c.:R. SUPREME COURT REPORTS 253

Mitakshara, an affectionate gift by the father to

son constitutes ipso facto ancestral property in

hands

of the do nee.

the

1953

the -

0. N. Arunachala

If this is the correct view to take, as we think it is,

it would furnish a complete answer to the other con­

tention indicated above

that such gifted property must

be held partible between the father and the sons as it

does not come

witliin the definition of "self-acquisition",

as given by Mitakshara. In chapter I, section 4 of his

work, Vijnaneswar enumerates

and deals with proper­

ties which are

not liable to partition. The first

placitum

of

the. section defines what a "self-acquisi­

tion" is. The definition is based upon the text of

Yagnavalkya that "whatever is acquired by the

coparcener himself without detriment to the father's

estate as present from a friend or a gift

at nuptials,

does

not appertain to the

co-heirs." What is argued

is this,

that as the father's gift cannot be said to have

been acquired

by the son without detriment

to the father's estate, it cannot be regarded

as

self-acquisition of the son within the meaning of the

definition given above

and consequently cannot be

exempted from partition. This

argument seems to us

to be untenable. Section 4 of the first chapter in

Mitakshara enumerates various .items

of property

which, according

to the author, are exempt from

parti­

tion and self-acquisition is only one of them. Father's

gifts constitute another item in the exemption list •

which is specifically mentioned in placitum 28 of the

section. We agree with the view expressed in the

latest edition of Mayne's Hindu Law that the father's

gift being itself

an exception, the provision in placitum

•

28 cannot be read as requiring that the gift must also

be without detriment

to the father's estate, for it would

be a palpable contradiction to say

that there could be

any gift by a father out of the estate without any

detriment to the estate('). There is no contradiction

really between placitum 1

and placitum 28 of the sec­

tion.

Both are separate and independent items of

exempted properties, of which no partition can be

made.

(1)

Vide Mayne's Hindu Law, u-th editiolj, para,graph 280, pa?e 344.

Mudaliar

v.

0. A. Muruga­

natha M udaliar

and Another.

Mukherjea

J.

254 SUPREME COUit'l; REPOR'l

1

S [l954j

1958 Another argument is stressed in this connection,

0

N ~ h

1

which seems to have found favour with the learned

• ~ 11

';;.~~~ a a Judges of the Patna High Court who decided the Full

v. Bench case(') referred to above. It is said that the

a. A. Muruga-exception in regard to father's gift as laid down in

natha M

11

daliar plaqitum 28 has reference only to partition between

and Another. the donee and his brothers but so far as the male issue of

Mllkherjea J. the donee is concerned, it still remains partible. This

argument, in our opinion, is

not sound. If the provision

relating to self-acquisition is applicable

to all partitions,

whether between collaterals or between

the father and

his sons, there is no conceivable reason why placitum

28, which occurs in the same chapter and deals with

the identical topic, should not be made applicable to

all cases of partition and should be confined to colla­

terals alone. The reason for making this distinction

, is undoubtedly the theory of equal ownership . between

the father and the son in the ancestral property which

we have discussed already

and which in our opinion is

not applicable to the father's gifts at all.

Our conclu­

sion, therefore, is that a property gifted by a father to

his son could not become ·ancestral property in the

' hands of the donee simply by reason ofthe fact that the

donee got it from his father or ancestor.

As

the law is accepted and well

sett.led that a Mitak­

shara father has complete powers of disposition over

his self-acquired property,

it

mus"t follow as a neces­

sary consequence that the father is quite competent to

provide expressly, when he makes a gift, either that

J the donee would take it exclusively for himself or that

the gift would b13 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

describ­

ing 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

(1; Vlde BhagwiU v. Mst, K~poYni, I.L.R. 23 _.Pat. 599•

'

•

.,)

S.C.R. SUPREME C01JR'r REPORTS 255

surrounding circumstances in accordance with the well-1953

known canons of construction. Stress would certainly N

1 1

have to be laid on the substance of the disposition and,

0

·

M~:;:,:t:.•a

a

not on its mere form. The material question which the v.

court would have to decide in such cases is, whether c. A. Muruya­

taking the document and all the relevant facts into natha Mudaliar

consideration, it could be said that the donor intended and Another.

to confer a bounty upon. his son e~clusivel;y- for h~s Mitkherjea J.

benefit and capable of bemg dealt with by him at his. ·

pleasure or that the apparent gift was an integral part

of a scheme for partition and what was given to the

son was really the share of the property which would

normally be allotted

to him and in his branch of the

family on partition. In other words, the question

would be whether the

grantor really wanted to make a

gift of his properties or to partition the same. As it

is

open to the father to make a gift or partition of his

properties as he himself chooses, there is, strictly

speaking, no presumption

that he intended either the

one or the other .

It is in the light of these principles that we would

proceed now

to examine the facts of this case. The

will of his

father under which defendant No. 1 got the

two items of

Schedule B properties is Ex. P-1 and is

dated the 6th of June, 1912. The will is a simple docu­

ment. It recites that the testator is aged 65 and his

properties are all his own which he acquired from no

nucleus

of ancestral fund. He had three sons, the eldest

of whom was defendant No. I. In substance what the

will provides is that after his death, the A

Schedule

properties would go to his eldest son, the B Schedule

properties to his second son and the properties describ­

ed in Schedule C shall be taken by the youngest. The

sons are

to enjoy the properties allotted to them with

absolute rights and with

powei·s of alienation such as gift,

exchange, sale, etc. from son to grandson hereditarily.

The testator,

it seems, had already given certain

pro:­

perties to the wives of his two brothers and to hi.s

own wife also. They were. to enjoy these properties

during

the terms of their natural lives and after their

death, they would

v~st in one or the .. other of hjs, sons,

a.a indicated in the will, The D Schedule property wa&

256 SUPREME COUR'.i' REPOR!.rs [1954j

1953 set apart for the marriage expenses of his third son and

0

N ;-hal an unmarried daughter. Authority was given to his

· ,itu;,;::~ awife to sell this property to defray the marriage ex-

v. penses with its sale proceeds.

a. A .. Muri1u~- It seems to us on reading the document in the light

natha Mudaliar of the surrounding circumstances that the dominant

and Another. • t t' f th t t t t k "t bl .

m

en

ion o . e es a or was o ma e sm a e prov1-

Mukherjea J. sions 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 his 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 come 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 and daughter. The

testator certainly wanted to make a distribution of his

properties in a

way different from what would take

place in case of intestacy. But what is really material

for our present purpose is his intention regarding

the

kind of interest which his sons were to take in the

properties devised to them. Here the will is perfectly

explicit

and it expressly vests the sons with absolute

rights with full powers

of alienation by way of sale,

gift and exchange. There

is no indication in the will

•

that the properties bequeathed were to be held by the

sons•for their families or male issues and although the

will mentions various other relations, no reference is

made

to sons' sons at all. This indicates that the

testator desired that his sons should have full

owner­

ship in the properties bequeathed to them and he was

content to leave entirely to his sons the care of their

own families and children. That the testator did not

want to confer upon the sons the same rights as they

could have on intestacy is further made clear by the

two subsequent revocation· instruments executed by

the testator. By the document Exhibit P-2 dated the

•

1

. ~ '

S.O.R. SUPREME COURT REPORTS 257

26th of March, 1914, he revoked that portion of his igsa

will which gave the Schedule _C property to his youngest a. N. ;:;,achala

son. As this son had fallen mto bad company and was Mudaliar

disobedient t:l his father, he revoked the bequest in his v.

favour and gave the same properties to his other two a. A. Muruga­

sons, with a direction that they would pay out of it natha Mudaliar

t

· · t 11 t th · tb th andAnother •

cer am mam enance a owance o· eir younges ro er

or to his family if he got married. There was a second MukherJea J.

revocation instrument, namely, Exhibit P-3, executed

on 14th April, 1914, by which the earlier revocation

was cancelled

and the properties intended to be given

to

thesoungest son were taken away from the two

brothers

and given to his

son-in-law and the legatee

was directed

to hand them over to the third son when-

ever he would feel confident that the latter had

re-

formed himself properly. In our opinion, on reading

the will as a whole the conclusion becomes clear that

the testator intended the legatees to take the pro-

perties 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

as ancestral property.

The result is that the appeal is

allowed,

the judgments and decrees of both the courts

below are set aside

and the plaintiff's suit is dismissed.

Having regard to the fact that the question involved

in

this case is one of considerable importance upon

which there was considerable difference of judicial

opinion

and that the plaintiff himself is a pauper, we

direct that each party shall bear his own costs in all

the courts.

Appeal allowed.

Agent for the appellant:

S. Subramanian.

Agent for the respondent No. 1: M. S. K. Aiyangar.

-.---~