Adding of gift from father as ancestral or self acquired property.

The material facts of this case lie in a short and narrow compass. The father of the plaintiff and of the defendant in the suit, out of which this second appeal arises, made a gift of his separate property to the plaintiff under Exhibit P-1, dated 5th September, 1943, wherein he says after reciting certain preliminary facts which it is unnecessary to set out:

“I have conveyed to you (as Dhakal) the property of the value of Rs. 400 mentioned in the schedule below, and myself and my wife shall live therein for the lifetime of both of us. After the lifetime of both of us, you shall take possession of the schedule property, and may enjoy the same as you please with absolute powers of disposition by way of gift, sale, etc., and I, my heirs and claimants through me shall never raise any dispute whatsoever against you, your heirs and claimants through you.”

The plaintiff for himself and his minor son, since dead, thereafter executed Exhibit D-1, dated 6th April, 1944, in favour of the defendant conveying to him the property acquired by him under Exhibit P-1. Thereafter there were certain proceedings for compulsory registration of Exhibit D-1 at the instance of the defendant which ended in his favour. The present suit was filed by the plaintiff on 30th December, 1944, impeaching Exhibit D-1 as a spurious document and also alleging that, in any event, it was a gift of joint family property and therefore void, and asking for a declaration that the gift was not true, and even if true was not valid in law and enforceable.

That the document is not spurious has been found by both the Courts below, and that is a finding of fact which cannot be and has not been assailed in this Court. The Courts below decreed the suit however on the alternative ground of the invalidity of the document as one in the nature of gift of joint family property which conveyed no title whatsoever to the defendant.

In this second appeal the defendant’s learned counsel puts his point in two ways. First, it is said that the property conveyed to the plaintiff by Exhibit P-1 is not ancestral property in his hands with reference to his son but his self-acquired property. Secondly it is urged that the validity of the gift is a matter for challenge at the instance only of other coparceners and not of the very coparcener, who executed the deed. The son of the plaintiff who was alive at the time of the gift and who was himself a party thereto by the plaintiff as his father having died by the date of suit without having impeached it, the plaintiff who was himself an executant cannot attack it.

The question whether the self-acquired property of the father which has been the subject of gift or bequest by him to his son is ancestral property in the latter’s hands has given rise to considerable difference of opinion in the Indian High Courts which has been referred to at very great length but left unresolved by the Judicial Committee of the Privy Council in Lalram Singh v. Deputy Commissioner of Partabgarh1. The Madras view laid down as long ago as 1901 is Nagalingam Pillai v. Ramachandra Tevar2, has been consistently followed in this Province in a whole catena of decisions ending with Seeyali Achari v. Doraiswami Achari3. That view is that

“it was open to a father to determine whether the property bequeathed or given by him to his son shall be ancestral or self-acquired, but unless he expressed his wish that it should be deemed to be self-acquired, it was ancestral.”

It is contended for the appellant on the basis of this last decision that the clause of Exhibit P-1 authorising the plaintiff to enjoy the property as he pleased with absolute powers of disposition by way of gift, sale, etc., is sufficient expression by his father of his wish that the property should be deemed to be self-acquired within the meaning of the rule as above stated. There is a decision of a single Judge of this Court (Pandrang Row, J.) in Visweswara Rao v. Varahanarasimham1, holding that these are the usua