Decided on March 04,1901



Shephard, J - (1.) THESE are appeals against decrees made in several suits brought by the plaintiff to recover property alienated by or taken from his late father Kotasami Tevar. One ground of the plaintiff's claim to recover property so alienated is that the property, which is of various kinds, was ancestral property in the Hands of the plaintiff's father, in which, accordingly, he acquired an interest on birth. The alienations complained of were made after the date of the plaintiff's birth. If the property, which was originally acquired by Kotasami's father Ponnusami Tevar, devolved upon Kotasami by inheritance, it was unquestionably ancestral property in the hands of the latter. In point of fact, Kotasami being one of three sons of Ponnusami took his share of Ponnusami's property under his father's will, but it is argued that notwithstanding this the property was still ancestral property in Kotasami's hands. Now, there can be no doubt that it was fully competent to Ponnusami to deal as he pleased with his self-acquired property of whatever kind either by gift or by testamentary disposition Balwant Singh V/s. Rani Kishori I.L.R. 20 All. 267, Sri Raja Rao Venkata Surya Mahipati Ramakrishna Rao Bahadur V/s. The Court of Wards I.L.R. 22 Mad. 385 at p. 397. He might therefore have bequeathed his property to a stranger and his sons could not have called the disposition in question. Any of the observations made in Tara Chand V/s. Reeb Ram 3 M.H.C.R. 50, which conflict with these propositions cannot, I think, now be regarded as good law. 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/s. Shewukram L.R. 2 I.A. 7, 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.
(2.) 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 Muddun Gopal Thakoor V/s. Ram Buksh Pandey 6 W.R. (C.R.) 71, although other reasons were given for the decision, in the present case I think there was the same intention. No doubt he did not intend that his sons should take the property precisely in the same way as they would have taken it had there been no will. He intended they should take the property in severalty, but otherwise the dispositions, especially the provision that the property allotted, for maintenance should fall into the mass of the property bequeathed to the sons, are consistent with the ordinary rules of inheritance and there are no words in the will indicating any intention that his sons should hold their shares free from the incidents of ancestral property. In Jugmohandas Mangaldas V/s. Sir Mangaldas Nathubhoy I.L.R. 10 Bom. 528 at p. 574, it was considered that the will contained words showing an intention to create an estate different from that which the devisee would take as heir under Hindu law. Here I can find no such words. In my opinion the issue which is raised in all the suits as to Kotasami's power of alienation ought to have been decided in the plaintiff's favour and therefore as it is admitted that Kotasami acquired no property himself, the plaintiff is entitled to a decree in respect of all property given by Kotasami to the defendant, [His Lordship then dealt with the evidence relating to the items of property that were proved to have been given to defendant, and, Benson, J., concurring, the Court decreed accordingly.;

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