The Supreme Court on September 23, 2019, in the case of Govindbhai Chhotabhai Patel & Ors. v. Patel Ramanbhai Mathurbhai has held that as per Mitakshara Law of Succession, father's self acquired property bequeathed or gifted to a son will retain the character of self acquired property and will not become ancestral property, unless a contrary intention is expressed in the testament.
A Division Bench comprising of Justices L. Nageswara Rao and Hemant Gupta was hearing an appeal filed against the order passed by the Gujarat High Court wherein it set aside the judgment and decree passed by the Trial Court and the First Appellate Court respectively.
In this case, appellants are sons of Chhotabhai Ashabhai Patel who died on December 6, 2001. During his life time, he purportedly executed a gift deed dated November 15, 1977, in favour of defendant (one of his sons) Ramanbhai Mathurbhai Patel. The other sons of Chhotabhai filed a suit challenging the gift and claiming share of the property. They claimed that Chottabhai had inherited the property from his father, and therefore it was ancestral property. Another contention was raised that the attestation of the gift deed was not proved.
The High Court while hearing the matter noted that the disputed property was self acquired by Chhotabhai's father and thus the property was not ancestral and that Chhotabhai was within his rights to give the property as gift to the defendant Ramanbhai. Aggrieved by the High Court’s decision, Special Leave Petition was filed in Supreme Court by the plaintiffs.
The primary question for consideration before the Supreme Court was whether the property in the hands of Donor (Chhotabhai) was ancestral property by virtue of him having inherited from his father.
The court placed reliance on its judgment in C.N. Arunahcala Mudaliar v. C.A. Muruganatha Mudaliar AIR 1953 SC 495. The Court while examining the question as to what kind of interest a son would take in the self-acquired property of his father which he receives by gift or testamentary bequest from him, it was held that Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. It was held that it was not possible to hold that such property bequeathed or gifted to a son must necessarily rank as ancestral property. It was further held 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.
It was observed in 1953 case: "In view of the settled law that a Mitakshara father has 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…"
In the present case, the court found that the plaintiffs had not produced the Will by which the Donor (Chhotabhai) had obtained the property from his father. Therefore, there was no means to ascertain if there was any intention expressed in the Will that the property should take the character of ancestral property.
The court said: "In view of the undisputed fact, that Ashabhai Patel purchased the property, therefore, he was competent to execute the Will in favour of any person. Since the beneficiary of the Will was his son and in the absence of any intention in the Will, beneficiary would acquire the property as self-acquired property in terms of C.N. Arunachala Mudaliar case. The burden of proof that the property was ancestral was on the plaintiffs alone. It was for them to prove that the Will of Ashabhai intended to convey the property for the benefit of the family so as to be treated as ancestral property. In the absence of any such averment or proof, the property in the hands of Donor has to be treated as self-acquired property. Once the property in the hands of Donor is held to be selfacquired property, he was competent to deal with his property in such a manner he considers as proper including by executing a gift deed in favour of a stranger to the family."