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PETITIONER: C. N. ARUNACHALA MUDALIAR

       Vs.

RESPONDENT: C. A. MURUGANATHA MUDALIAR AND ANOTHER

DATE OF JUDGMENT: 14/10/1953

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. MAHAJAN, MEHR CHAND JAGANNADHADAS, B.

CITATION:  1953 AIR  495            1954 SCR  243  CITATOR INFO :  E          1965 SC1730  (10)  RF         1967 SC 591  (8)  R          1975 SC 431  (9)  R          1987 SC 518  (7)

ACT:  Hindu  law-Gift-Property  gifted by  father  to  son-Whether  ancestral property in the hands of son-Construction of will-  Presumptions.

HEADNOTE:    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 construction 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 accordance 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 properties 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.   Muddun  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 Bom.  528), Parsottam v. Jankibai (I.L.R 29 All. 354), Amarnath v. Guran (A.I.R.   1918   Lah.  394).   Lal  Ram  Singh   v.   Deputy Commissioner, Partabgarh (64 I.A. 265) referred to.   Where  a  testator who had 3 sons, after  giving  certain

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properties  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 respectively, and that the sons  shall enjoy  the properties allotted to them with absolute  rights and  with powers of alienation such as gift, exchange,  sale etc. from son to grandson hereditarily: LB(D)2SCT-2(a) 244 Held, that as the will expressly vested the sons with  abso- lute rights with full powers of alienation, the property be- queathed  to them was not ancestral property in their  hands vis a vis their own male issue.

JUDGMENT:         CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  191 of 1952.       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. 529 of  1946 arising  out  of  the Judgment and  Decree  dated  the  20th February,  1946,  of  the  Court  of  Subordinate  Judge  of Coimbatore in O.S. No. 138 of 1945.       P.Somasundaram (R.  Ganapathy Iyer, with him) for  the appellant.      B.Somayya  (K.  R. Chowdhury, with him) for  respondent No. 1.     1953.  October 14.  The Judgment of the Court was  deli- vered 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,  affrming,  with  slight modification,  those  of  the Subordinate  Judge,  Coimbatore, passed in O.S. No.  138  of 1945.      The  suit was commenced by the plaintiff, who  is  res- pondent  No.  I 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 defendant  No. 2, who are two brothers, are both sons of defendant No. I by his first wife who predeceased her husband.  After the death of plaintiff’s mother, the defendant No. I married again and his  second  wife  is  defendant No. 3  in  the  suit.   The allegations in the plaint, in 245 substance,  are  that after the step-mother  came  into  the house,  the relation between the father and his sons  became strained  and  as the father began to  assert  an  exclusive title  to the joint family property, denying any  rights  of his  sons thereto, the present suit had to be brought.   The properties   in  respect  of  which  the  plaintiff   claims partition  are described in Schedule B to the plaint.   They 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 I I of the plaint that there is a sum of about Rs. 15,000  deposited in the name of the first defendant in  the

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Erode  Urban  Bank Limited; that money also belongs  to  the joint  family  and the plaintiff is entitled  to  his  share therein.      The defendant No. I in his written statement  traversed 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 I 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 properties bequeathed to defendant No. I by his father  should  be held to be ancestral  properties  in  his hands and as the other properties were acquired by defendant No. 246 1  out  of  the income of the ancestral  estate,  they  also became impressed with the character of joint property.   The result  was  that the Subordinate Judge made  a  preliminary decree  in favour of the plaintiff and allowed his claim  as laid in the plaint with the exception of certain articles of jewellery which were held to be non-existent.        Against  this  decision, the defedant No. I  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 held to belong to defendant No. 3 alone and the plaintiff’s claim for partition of furniture and  brass utensils was dismissed.  The High Court  rejected the  defendant  No. 1’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 defendant  No. I  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  immovable  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 defendaant No. 1, 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 1, section I of Mitakshara lays down:     "It  is settled point that property in the  paternal  or ancestral  estate  is  by  birth,  though  the  father   has

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independent 247 power  in the disposal of effects other than the  immovables for  indispensable acts of duty and for purposes  prescribed by  texts of law as gift 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 predecessors since it is  ordained, ’though  immovables  or  bipeds have been  acquired  by  man himself,  a gift or sale of them should not be made  without convening all the sons’."      Mitakshara insists on the religous 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 the precept  which  seems  to 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 ri ght of prohibition if  his  un- separated father is making a donation or sale of effects in- herited from the grandfather: but he has no right of  inter- ference if the effects were acquired by the father.  On  the contrary he must acquisce, because he is dependent."      The reason for this distinction is explained by the au- thor 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      Clearly  the latter passages are in flat  contradiction with  the previous ones and in an early Calcutta  case(1)  a reconciliation was attempted at by taking the view that  the right  of  the sons in the self-acquired property  of  their father was an imperfect right incapable of being enforced at law.   The question came pointedly for consideration  before the  Judicial Committee in the case of Rao Balwant  v.  Rani Kishori(2) and Lord Hobhousel who delivered the judgment  of the  Board, observed 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  1, section  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  consequently would override the former.  It was held, therefore, that the father  of t 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(2), but he  can

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make  a gift of such property to one of his own sons to  the detriment  of  another(3); and he can make even  an  unequal distribution amongst his heirs(4).      So far the law seems to be fairly settled and there  is no  room for controversy.  The controversy arises,  however, 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 bequest  from  him, vis a vis his own male issue.  Does it remain  self-acquired property in his (1) Vide Muddun, v. Ram, 6 W.R. 71. (2) 25 I.A. 54. (3) Vide Sital v. Madho T.L.R. I All. 394. (4)  Vide Bawa v. Rejeah, 10 W.R 287. 249 hands  also  untrammelled  by the rights  of  his  sons  and grandsons or does it become ancestral property in his hands, though not obtained by descent, in which his male issue  be- come co-owners with him?  This question has been answered in different  ways by the different High Courts in India  which has  resulted  in  a  considerable  diversity  of   judicial opinion.  It was held by the Calcutta High Court(1) as early as  in  the year 1863 that such property  becomes  ancestral property  in the hands of his son as if he bad inherited  it from his father.  In the other High Courts the questions Ion is treated as one of construction to be decided in each case with  reference  to  its  facts as  to  whether  the  gifted property  was intended 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 be 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 hold such gifted property as self-acquisi- tion  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 necessary to decide it in that case.- (1)  Vide Muddan v. Ram 6 W.R. 71. (2)  Vide Nagalingham v. Ram Chandra, I. L.R. 24 Mad. 429. (3)  Vida Bhagwat v. Mst.  Kaporni, I.L.R. 23 Pat. 599. (4)  Vida  Lala  Mukti Prasad v. Srimati lswari.  24  C.W.N. 938. (8)  Vide Jugmohan Das v. Sir Mangal Das. 10 Bom. 528. (6)  Vide  Parsotam  v.  Janki  Bai,  I.L.R.  29  All   354; Amararanth v. Guran, A.I.R. 1918 La],. 394. (7) 64 T. A. 265. 250      In view of the settled law that a Mitakshara father has absolute   right  of  disposition  over  his   self-acquired property  to  which no exception can be taken  by  his  male descendants, it is in our opinion not possible to hold  that such   property   bequeathed  or  gifted  to  a   son   must necessarily, and under all circumstances, rank as  ancestral property  in the hands of the donee in which his sons  would acquire  co-ordinate interest.  This extreme view, which  is

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supposed to be laid down in the Calcutta case(1) 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  Mitakshara 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 concerned, the foundation of the doctrine of equal ownership of father and son in  an- cestral  property is the well known text  of  Yagnavalkya(2) which says:    "The  ownership  of  father and son is  co-equal  in  the acquisitions  of  the grandfather, whether land,  corody  or chattel."    It  is to be noted that Vijnaneswar invokes this  passage in Chapter 1, section 5 of his work, where he deals with the division of grandfather’s wealth amongst his grandsons.  The father’s gradsons, it is said, have a right by birth in  the grand  estate  equally with the sons  and  consequently  are entitled  to shares on partition, though their shares  would be  determined  per  stirpes  and  not  per  capita.    This discussion   has  absolutely  no  bearing  on  the   present question.    It  is  undoubtedly  true  that  according   to Mitakshara,  the  son  has a right, by  birth  both  in  his father’s  and grandfather’s estate but as has  been  jointed out  before.  a  distinction  is made  in  this  respect  by Maitakshara  itself.   In  the  ancestral  or  grandfather’s property (1) Vide Muddun v.  Ram, 6 NY.  R. 71. (2)  Vide Yagnavalkya.  Book 2. 129. 251 in  the hands of the father, the son has equal  rights  with his  father;  while  in the self-acquired  property  of  the father,  his  rights  are unequal by reason  of  the  father having an independent power over or predominent interest  in the  same(1).   It  is obvious, however, that  the  son  can assert  this  equal  right with the  father  only  when  the grandfather’s property has devolved upon his father 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 grand father’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  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

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father’s  gifts under a separate category altogether and  in more   places  than  one  has  declared  them  exempt   from partition.   Thus  in  Chapter 1.  section  1,  placitum  19 Mitakshara refers to a text of Narada which says: (1) Vide Mayne’s Hindu Law 11th edition, page 336. 252      "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."     Chapter  1, section 4 of Mitakshara deals  with  effects not  liable to partition and property "obtained through  the father’s  favour"  finds a place in the list  of  things  of which  no partition can be directed(1).  This is  emphasised in  section  6 of chapter I which discusses  the  rights  of posthumous  sons or sons born after partition.  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  affectionately 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"(2).     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 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(3).   Nothing depends  upon his own favour or discretion.  When,  however, he  makes  a  gift which is only an act  of  bounty,  he  is unfetterd  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 Vijnaneswar, following the earlier sages,  declares the exclusive right of the sons.  We  hold, therefore,  that  there  is  no  warrant  for  saying   that according to the Mitakshara, an (1) Vider    C. Placitum 28 of Mitakshara. (2)  Vide Yagnavalkya 2, 124. (3)  Vide Mitakshara chapter 1, section 2. 253 affectionate gift by the father to the son constitutes  ipso facto ancestral property in the hands of the donee.    If  this is the correct view to take, as we think it  is, it’ would furnish a complete answer to the other  contention indicated  above  that  such gifted property  must  be  held partible between the father and the sons as it does not come within the definition "self-acquisition", as given by Mitak- shara.   In  chapter 1, section 4 of his  work,  Vijnaneswar enumerates and deals with properties which are not liable to partition.  The first placitum of the section defines what a "self-acquisition"  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 selfacquisition 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

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untenable.   Section  4 of the first chapter  in  Mitakshara enumerates various items of property which, according to the author,  are exempt from partition 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 contradition to say that there  could be  any  gift  by a father out of  the  estate  without  any detriment to the estate(1).  There is no contradition really between,  placitum I and placitum 28 of the  section.   Both are  separate and independent items of exempted  properties, of which no partition can be made. (1) Mayane’s Hindu Law, 11th edition,paragraph 280,page 344 254      Another  argument is stressed in this connection  which seems  to have found favour with the learned Judges  of  the Patna High Court who decided the Full Bench case(1) referred to  above.   It  is said that the  exception  in  regard  to father’s gift as laid down in placitum 28 has reference only to  partition between the donee and his brothers but so  far as  the  male  issue of 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 collaterals  alone.  The reason for making this  distinction is  undoubtedly  the theory of equal ownership  between  the father  and  the  son  ancestral  property  which  we   have discussed already and which in our opinion is not applicable to the father’s gifts at all.  Our conclusion, 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 of the fact that the donee got it from his  father or ancestor.     As  the law is accepted and well settled that  a  Mitak- shara  father  has complete powers of disposition  over  his selfacquired  property,  it  must  follow  as  a   necessary consequence  that the father is quite competent  to  provide expressly, when he makes a gift, 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.  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 describing 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 (1) Vide   Bhagwant v. Mst, Kaporni, I.L.R. 23 Pat. 599.                             255 along with the surrounding circumstances in accordance  with the   wellknown  canons  of  construction.    Stress   would certainly(  have  to  be  laid  on  the  substance  of   the disposition and not on its mere form.  The material question which  the  court( would have to decide in  such  cases  is, whether taking the document and all the relevant facts  into consideration,  it could be said that the donor intended  to

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confer a bounty upon his son exclusively for his benefit and capable  of being 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 pro- ceed now to examine the facts of this case.  The will of his father  under  which defendant No. I 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 document.  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.  1.  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 described in Schedule C shall be taken by the youngest.  The sons  are  to  enjoy the properties allotted  to  them  with absolute rights and with powers of alienation such as  gift, exchange, sale, etc. from son to grandson hereditarily.  The testator, it seems, had already given certain properties  to the  wives  of his two brothers and to his  own  wife  also. They  were  to enjoy these properties during  the  terms  of their  natural lives and after their death, they would  vest in  one or the other of his sons. as indicated in the  will. The D Schedule property 256      was  set apart for the marriage expenses of  his  third son  and an unmarried daughter.  Authority was given to  his wife  to sell this property to defray the marriage  expenses with its sale proceeds.     It  seems to us on reading the document in the light  of the surrounding circumstances that the dominant intention of the  testator was to make suitable provisions 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 it 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 mate issues and  although  the  will mentions  various other relations, no reference is  made  to sons’ sons at all.  This indicates that the testator desired

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that  his sons should have full ownership 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 Z6th 257 of  March, 1914, he revoked that portion of his  will  which gave  the Schedule C property to his youngest son.  As  this son  had fallen into bad company and was disobedient to  his father,.  he revoked the bequest in his favour and gave  the same properties to his other two sons with a direction  that they  would pay out of it certain maintenance  allowance  to their youngest brother, or to his family if he got  married. There was a second revocation instrument, namely, Exhibit P- 3, executed on 14th April, 1914, by which the earlier  revo- cation was cancelled and the properties intended to be given to  the youngest 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 whenever he would feel  con- fident  that the latter had reformed 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  properties 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  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. LB(D)2SCl00-3 258