Right of father to give Self Acquired property

Right of father to give Self Acquired property written by Nikhil Bharadwaj Student of Amity Law School Noida

Govindbhai Chhotabhai Patel and others vs Patel Ramanbhai Mathurbhai

Background

The appellants were sons of Chhotabhai Ashabhai Patel who died on December 6, 2001. During his lifetime, he executed a gift deed in favor of defendant Ramanbhai Mathurbhai Patel.
The parties went to trial on the following issues:
(i) Whether the plaintiffs prove that the disputed gift deed is fabricated?
(ii) Whether the plaintiffs prove that the suit properties are ancestral properties and late Chhotabhai Ashabhai had no right to execute the gift deed?
(iii) Whether the plaintiffs prove that the defendant has no right, title, or interest over the said property?
(iv) Whether the plaintiffs prove that they are entitled to get the relief as prayed for?
(v) Whether the defendant proves that the plaintiffs have no right to file the present suit?
(vi) What order and decree?

The High Court framed five substantial questions of law and after giving findings on such substantial questions of law, the judgment and decree passed by the learned Trial Court on February 10, 2014, and the judgment and decree passed by the First Appellate Court on October 9, 2017, were set aside.
The findings recorded by the High Court, are that execution of the gift deed was not specifically denied in the suit filed. Therefore, it is not necessary for the Donee to examine one of the attesting witnesses in terms of proviso to Section 68 of the Indian Evidence Act, 1872. It was also held that the suit property is not ancestral property. The property was purchased by Ashabhai Patel, father of the Donor and it was by virtue of Will executed by Ashabhai Patel, the property came to be owned by the Donor in the year 1952-1953. The High Court, thus, held that the Donor was competent to execute the gift deed.

The relevant findings on such questions which arose for consideration in the second appeal read as under:
According to the plaintiffs, the suit properties were purchased by their grandfather and those properties came to be devolved upon their father by Testamentary disposition. The Hindu Law clearly postulates that if it is a self-acquired property of the father, it would fall into the hands of his sons, not as a coparcenary property, but would devolve on them in their individual capacity. Where the property is a self-acquired property of the father, it falls into the hands of his son in his individual capacity and not as coparcenary property in such case son— s son cannot claim right in such property.
The plaintiffs held that the suit properties devolved upon the father of the plaintiffs could not be said tube coparcenary property. The properties were purchased by the grandfather of the plaintiffs, as pleaded and admitted by the plaintiffs themselves. Such self-acquired properties of the grandfather came to be devolved upon the father of the plaintiffs by way of a ‘ will— i.e. testamentary disposition. In such circumstances, it could be said that the properties are self-acquired properties of the father of the plaintiffs. The succession would have been in accordance with Section 8 of the Hindu Succession Act. When the properties could be said to be self-acquired properties of the father of the plaintiffs, then the father could have transferred those properties by way of a gift deed.

Appellants Contention

The appellants submitted that the High Court had exceeded its jurisdiction in the second appeal as findings recorded by the First Appellate Court were not specifically dealt with. It was argued that the interference in the second appeal was contrary to the judgment of this Court in Thulasidhara & Anr. v. Narayanappa & Ors.4. It was argued that the appellants had produced an old revenue record and from the documents, the property was proved to be ancestral, and such was the finding recorded by the Trial Court and the First Appellate Court. It was argued that the findings recorded by the High Court that the property devolved on the Donor by virtue of a Will, therefore, it ceased to be an ancestral property was contrary to the judgment of this Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar & Anr.5. The reliance was also placed upon the judgment of this Court in Shyam Narayan Prasad v. Krishna Prasad & Ors that self-acquired property of a grandfather devolves upon his son as ancestral property.

Respondents Contention:

The Respondents argued that the plaintiffs had failed to prove that the property was ancestral property after admitting that their grandfather had purchased the property and given it under Will to their father to the exclusion of other family members. It was argued that the argument raised by the appellants that the High Court had exceeded its jurisdiction by reversing the findings of fact recorded by the First Appellate Court did not hold good as the very reasoning recorded has been found to be illegal. It was argued that judgment in C.N.Arunachala Mudaliar was to the effect that the property bequeathed or gifted to a son by Mitakshara father will be treated as self-acquired property in the hands of Donee.

Court’s Observation:

The court said that the first and the foremost question required to be examined was as to whether the appellants had proved that the property in the hands of Donor was ancestral property.
The court noted that Govindbhai Chhotabhai Patel (PW-1) had stated, vide, that the property in question was purchased by his grandfather Ashabhai Patel and after the death of his grandfather, the property was owned by the Donor according to the inheritance since 1952-1953. The court thus said that it was the Donor who had acquired the property not as self-acquired property but as ancestral property. The court found that a statement in the cross-examination that there was a partition between the Donor and his two brothers would not make the property ancestral in the hands of the Donor. The Will executed by the father of Donor had not been produced by the appellants to show as to what was intended by his grandfather when the Will was executed in favor of Donor and It was admitted fact that grandfather purchased the property, thus, such self-acquired property came to be bequeathed to the Donor even as per the judgment relied upon by the Appellant.
The court remarked that a bequest by will, therefore, is a gift made in contemplation of death. It only differs from a gift in the fact that it takes effect at a future time instead of immediately. But it must clearly be governed and controlled by the general rules regarding the gift. Now, there is no doubt that a man can give away self-acquired property to whomsoever he pleases, including his own sons; and there is no doubt that property so given would be considered self-acquired in the hands of the donee. It would, therefore, follow that property given by will would equally be self-acquired in the hands of the devisee.’
The court noted that in view of the undisputed fact, that Ashabhai Patel purchased the property, therefore, he was competent to execute the Will in favor of any person. Since the beneficiary of the Will was his son and in the absence of any intention in the Will, a beneficiary would acquire the property as self-acquired property in terms of C.N. Arunachala Mudaliar case(AIR 1953 SC 495). The court said that the burden of proof that the property was ancestral was on the plaintiffs alone and it was for them to prove that the Will of Ashabhai intended to convey the property for the benefit of the family to be treated as ancestral property.
The other material question was whether the appellants have specifically denied the execution of the gift deed in terms of proviso to Section 68 of the Evidence Act, to make it mandatory for the defendant to examine one of the attesting witnesses to prove the Gift deed in his favor.
The court noted that a gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882 and that similar is the provision in respect of the execution of a Will which is required to be attested in terms of Section 63 of the Indian Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of Will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with provisions of the Indian Registration Act,1908 unless the execution is specifically denied.
The court reiterated that though the learned Trial Court had discussed the evidence on the record but in view of the finding that the property is ancestral, no finding was recorded whether the gift deed is forged or not as per the issue framed. The First Appellate Court in a short judgment affirmed the finding of the learned Trial Court. The Trial Court had not returned any finding that the gift deed is forged. Therefore, the High Court was within its jurisdiction to decide Issue No. 1 based on evidence led by the parties.
The court said that specific denial of execution of gift was an unambiguous and categorical statement that the donor did not execute the document. It meant not only that the denial must be in express terms but that it should be unqualified, manifest, and explicit. The court said it should be a certain and definite denial of execution. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be gathered, for the denial contemplated in the proviso.
The court said that the Defendants had no case that no document was executed by Anandan Nambiar. Their case was that the document was not valid because it had been executed under circumstances which would render the document invalid.
The court found that there was no specific denial of the execution of the document.
The court found the facts of the present case kin to the facts which were before the Kerala High Court in Kannan Nambiar. The appellants had not denied the execution of the document but alleged forgery and fabrication. In the absence of any evidence of any forgery or fabrication and the absence of specific denial of the execution of the gift deed in the manner held in Kannan Nambiar, the Donee was under no obligation to examine one of the attesting witnesses of the gift deed.

Judgment:

As per evidence on record, the Donee was taking care of the Donor for many years. The appellants were residing in the United States but failed to take care of their parents. Therefore, the father of the appellants had executed a gift deed in favour of a person who stood by him. The court found that there was no error in the findings recorded by the High Court.