P.N. Shinghal, J.
1. This is an appeal by the plaintiff against the judgment and decree of District Judge, Kota, dated September 30, 1958 dismissing his suit with costs.
2. The suit has been filed against the Co-operative Bank Ltd., Kota (defendant No. 1), hereinafter called the 'the Bank', to avoid a mortgage made by plaintiff Nirmal Kumar's father Zorawarmal (defendant No. 7) in favour of the Bank on April 22, 1948 and the decree passed on its basis, as also for partition of the joint family property The relationship of the parties will be clear from the genealogy mentioned in the judgment of the trial court. It will be sufficient to say that the mortgaged property formed part of the self-acquired property of one Gulabchand.He had two sons Shobhagmal and Zorawarmal (defendant No. 7). Gulabchand executed document Ex. A 4 regarding his property sometime before his death in 1936 by which he gave the suit house to Zorswarmal. Zorawarmal had two sons Nirmal Kumar (plaintiff) and Nem Kumar, and three daughters. He mortgaged the suit house in favour of the Bank by document Ex. A. 2 dated April 22, 1948, for Rs. 12,000/-. The Bank obtained a decree against Zorawarmal on July 31, 1954 and put the suit house to sale in its execution. The plaintiff then instituted the present suit on Jan. 29, 1957, for a declaration that the mortgage was illegal and void against him and the decree obtained by the Bank was void and inoperative. He also prayed for partition of the ancestral property claiming that he had a one-seventh share in it. The basis of the suit was the further allegation that the mortgage was not made for securing a loan for the legal necessity of the family or for the benefit of the family property. It was the case of the plaintiff that the loan was obtained for purposes of the 'Satta' transactions of Zorawarmal and the immorality of the purpose vitiated the mortgage.
3. Defendants Nos. 2, 3, 4, 6, and 7 did not contest the suit and, on the other hand, lent support to it. The Bank however traversed the claim altogether. It pleaded that the suit property was the self-acquired property of Zorawarmal as it was acquired under a will of his father Gulabchand, and that the plaintiff had therefore no right to bring the suit. It was also pleaded that the loan was taken by Zorawarmal for the legal necessity of the family, including the payment of antecedent debt, and the benefit of the family estate. Some other pleas were also taken, but it is not necessary to refer to them.
4. Issues were framed on the points which were in controversy. The main dispute was on the question whether the property was the ancestral property of the plaintiff. This was the subject matter of issue No. 1, and the trial court decided it against the plaintiff. Issue No. 2 dealt with the question whether the mortgage was effected for legal necessity or the benefit of the joint family property or its estate, but the trial court ultimately reached the conclusion that a decision on this issue was not necessary because of the finding on issue No. 1. That court however reached the conclusion that the plaintiff had not succeeded in proving that the loan under the mortgage was taken by his father because of his 'satta' transactions or for starting a new business. The other issues were not pressed, and the trial court dismissed the suit as aforesaid.
5. It would thus appear that the fate of the case in the trial court depended on the question whether the suit property was the ancestral property of the plaintiff. It is conceded by his learned Counsel that as the plaintiff based his suit on the ground that in was ancestral property in the hands of his father Zorawarmal, the only question for decision in this appeal is whether this was so?
6. It is not disputed before me that the suit property was the self acquired property of Zorawarmal's father Gulabchand. Gulabchand was therefore the full owner of the property. It is settled law that a Mitakshara father has absolute right of disposition of his self-acquired property, so that he can dispose of it as he likes without the concurrence of his sons. It cannot however be said that when such a property comes into the hands of the son, it must necessarily, and in all circumstances, rank as ancestral property. Thus where the property had devolved on the son or had been inherited by him on the death of his father, or has been received by him on partition made by the father during his life time, it would normally be ancestral property in the hands of the son, qua the grandson. The reason is that in such cases the property is taken by virtue of the sons legal right as a son. But different considerations may arise where the property is taken byway of gift or under a will, and it cannot be said that such property must necessarily rank as ancestral property in the hands of the son so as to create a co-ordinate interest in favour of the grandson. It is the intention of the father which is decisive in such cases and where the intention of the donor is not clear enough, it has to be ascertained from all the facts and circumstances and not merely from the 'form' of the disposition. It has, however, not been contended by the learned Counsel for the plaintiff-appellant that the suit property was received by Zorawarmal by way of gift or under a will of Gulabchand. It is also not his case that it was inherited by Zorawarmal on his father's death. But the learned Counsel the strenuously argued that the property fell to the shares of Zorawarmal by virtue of a partition made by Gulabchand during his life time. I have therefore to examine whether this was so?
6. It is well settled that while a Mitakshara father can make a partition of his ancestral and self-acquired property at any time he likes, he has, all the same to make the partition according to the law. The requirement and the nature of such a partition have been lucidly brought out by their Lordships of the Supreme Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar and Anr. : 1SCR243 as follows:
It may be noted that the expression 'obtained through favour of the father (Pitra Parsad Labid) which accures in placitum 28, Section 4 of Mitakshara, is very significant. A Mitakshara father can make a partition of both the ancestral and self-acquired property 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; vide Mit. Chapter I, Section 2. Nothing depends upon his own favour or discretion.
Their Lordships have observed further that if the division of the property amongst, the heirs is not in the same way as they themselves would have done after his death, it cannot be said that the dominent intention of the father was to make a partition. It is therefore quite clear that in order to establish a claim that the property became ancestral property by virtue of a partition made by the father, it is necessary to prove that the partition was made in accordance with the directions laid down in the law, that nothing depended upon his own favour or discretion, and that the division was made in the same way as the sons would have made after the death of the father. If therefore, it is found in a given case that the father has exercised his own favour or discretion in or distributing the property amongst his heirs or that the distribution is not in the same way as the heirs would have made after his death, it will not be permissible to sustain the argument that there was a partition of the property so as to make it ancestral in the hands of the son. This test, when applied with the present case, will furnish an easy answer to the persent controversy.
7. It is not disputed that Gulabchand executed document Ex. A. 4 some time before his death in 1936. He styled the document as a will, but that is not, by itself, sufficient to reject the plea of partition so vehemently advanced by the learned Counsel for the plaintiff. The document has to be read with care and attention. Under it, Gulabchand made an equal distribution of some of his properties between his two sons Shobhagmal and Zorawarmal, but this was not all. He also gave valuable movable and immovable properties to a temple and clearly stated that his sons would have no personal right or claim thereto. He went on to clarify that his sons would manage those properties of the temple as trustees. Then Gulabchand gave his mortgagee rights in a house to his daughter-in-law Smt. Sunder Bai, wife of Zorawarmal, in full ownership. It is therefore abundantly clearly that he did not distribute his property amongst his heirs in the same way as they themselves would have done after his death, but exercised his own favour or discretion. It must therefore be held that the dominent intention of Gulabchand was, to use the language of their Lordships in Arunachala's case AIR 1953 SC 495, 'to make suitable provision for those of his near relations whom he considered to have claims upon his affection and bounty' and the aforesaid temple. The grant of substantial properties to the temple and the daughter-in-law are not capable of any other explanation. It cannot therefore be said that the two sons of Gulabchand got the properties under document Ex. A. 4 by virtue of their being the sons of Gulabchand. Ex. A. 4 was not a deed of partition and the suit property did not fall to the share of Zorawarmal by any partition. Gulabchand took care to state that document Ex. 4 was his will, and he transferred no interest in his immovable property to his sons in his life time. In all these facts and circumstances, there is no reason why the document should not be treated as a will, which it purported to be, of the last full owner of the suit property. The argument that it was a deed of partition is quite untenable.
8. A perusal of Ex. A. 4 shows that Gulabchand did not state any thing which could show that it was otherwise his intention that his property should be ancestral property in the hands of his sons, or that, in other words, he did not want his sons to be the full owners of the property bequeathed by him to each one of them separately. On the one, hand, there is a recital in the document providing that if his son Zorawarmal at any time thought of alienating the twelve 'rahvases' described in the document, his other son Shobhagmal would have the right of first refusal. This shows that Gulab Chand had the intention of making each of his sons the full owner of the property allotted to him and it was not his intention to create an interest of his grandsons or other heirs therein so as to restrict the rights of his sons in the same way as ancestral property. A similar view has been taken in Section Parthasarthi v. Commissioner of Income-tax; Madras : AIR1967Mad227 cited by Mr. Rastogi.
9. Shobhagmal and Zorawarmal therefore became full owners of the properties received by them from their father Gulabchand under document Ex. A4. The suit house, under that disposition, was allotted to Zorawarmal defendant No. 7 and it cannot be held to be ancestral property in his hands so as to create any interest of the nature claimed by the plaintiff. As the sole owner of his property, it was open to Zorawarmal to dispose it of as he liked and the plaintiff cannot make any grievance if he mortaged it in favour of the Bank.
There is thus no force in this appeal and it is dismissed with costs.