Whether property received by son from father by way of gift or will is self acquired property or ancestral property?

 

Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

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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 hands also, untrammeled 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 become co-owners with him?......

11. 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...

16. Still further, it was held that the father's gifts are exempt from partition. The reason for this distinction is that the theory of equal ownership between the father and the son in the ancestral property is not applicable to the father's gifts at all. The Court held as under:

12. ...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 father's gifts under a separate category altogether and in more places than one has declared them exempt from partition. 

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.


IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7528 of 2019 

Decided On: 23.09.2019

Govindbhai Chhotabhai Patel  Vs. Patel Ramanbhai Mathurbhai


Hon'ble Judges/Coram:

L. Nageswara Rao and Hemant Gupta, JJ.

Citation: AIR 2019 SC 4822

1. Leave granted