Father’s self acquired property given to son by way of Will/gift will retain the character of self acquired property and will not become ancestral property, unless a contrary intention is expressed in the testament.

The Supreme Court had observed that as per Mitakshara law of Succession, father’s self acquired property given to son by way of Will/gifts will retain the character of self acquired will retain the character of self acquired property and will not become ancestral property, unless a contrary intension is expressed in the testament.

The said ruling was held in the case of Govindbhai Chhotabhai Patel & Ors vs Patel Ramanbhai Mathurbhai (Civil Appeal No. 7528 of 2019) decided on 23.09.2019.

Challenge:

The challenge before the Hon’ble Court was whether the father of a 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. Another challenge before the Court was that the property in the hands of Chhotabhai (Donor) was ancestral property by virtue of him having inherited from his father.

Held:

Chhotabhai Ashabhai Patel executed a gift deed in favour of his son Ramanbhai Mathurbhai Patel in year 1977. Chottabhai died in 2001. 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 trial Court held that the gift deed is valid as requirements under section 123 of Transfer of Property Act, 1882 have been fulfilled. The Court further held that examination of attesting witnesses of the deed is also necessary.

The High Court however set aside the trial court decree by holding that the property was not ancestral and that Chhotabhai was within his rights to give property as gift to the defendant Ramanbhai. This was on the basis of finding that the property was self acquired by Chhotabhai’s father.

The Supreme Court noted that the issue was settled in 1953 by the Supreme Court in the decision “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 gifts 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 done got it from his father or ancestor.