A son challenged his father's registered relinquishment of self-acquired property to another son. The Court upheld the transfer, held that the challenger lacked a legal right to sue during the father's lifetime, and dismissed the second appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Second Appeal No. 253 of 2011
1. Manrakhan S/o Gambhira Rajwar, Aged 50 years, Occupation Agriculturist, R/o Karji, Post Patna, Tahsil Baikunthpur, Distt. Surguja, Chhattisgarh, (died) through LRs. :-
(a). Dilbas Wd/o Manrakhan Rajwar, Aged about 60
years, Occupation Housewife, R/o Village Karji
(dead).
(b). Dhansai S/o Manrakhan Rajwar, Aged aout 35
years, Occupation Labour, R/o Katkona Colliery.
(c). Meera Bai D/o Manrakhan Rajwar W/o
Rampratap, Occupation Colliery Labour, Katkona
Colliery.
(d). Jawahar Lal S/o Manrakhan Rajwar, Aged about
28 years, Occupation Colliery Labour, Katkona
Colliery.
All Tahsil Baikunthpur, Distt. Surguja,
Chhattisgarh.
---Appellants/LRs. Of Plaintiff
Versus
1. Gambhira S/o Sitaram Rajwar, Aged 65 years, Occupation Agriculturist (Dead) through Legal representatives.
2. Phool Sai S/o Late Gambhira Rajwar, Aged 40 years, Occupation Agriculturist & Service (Katkoni Colliery).
Both R/o Village Karji, Post Patna, Tahsil
Baikunthpur, Distt. Koriya, Chhattisgarh.
2
3.State of Chhattisgarh, through the Collector,
Koriya, Baikunthpur, Chhattisgarh.
--- Respondents
For Appellants :-Ms. Sharmila Singhai, Advocate
For Respondents 1 & 2:-None
For Respondent 3/State:-Mr. Ravi Bhagat, Dy. G.A.
As Amicus Curiae:-Mr. Ratan Pusty, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Judgment on Board
02/03/2021
1.Thissecond appealpreferredby the
appellants/Lrs. Of original plaintiff was
admitted for hearing on 15/01/2015 by
formulating the following two substantial
questions of law :-
“(i) Whether even in the admitted pleading
the self acquired property can be
relinquished in favour of another by virtue
of Section 173 of C.G. Land Revenue Code
even if beneficiary do not have share in it
?
(ii) Whether as against the provisions of
Transfer of Property Act the immovable
property can be transferred ?”
[The parties will hereinafter be referred to as
per their status given and ranking shown in the
plaint before the trial Court.]
3
2.Original plaintiff as well as defendant No. 2
both are sons of defendant No. 1 namely
Gambhira, who out of his free will and desire,
executed relinquishment deed dated 29/07/1985
(Ex. P/1 / Ex. D/9) in favour of his
son/defendant No. 2 thereby, relinquished the
suit property shown in Schedule 'A' and 'B'
annexed with the plaint in his favour and got it
registered in accordance with the provisions of
Indian Registration Act, 1908. Plaintiff filed a
suit, during the lifetime of his father Gambhira
and impleading him as a party/defendant No. 1
stating inter-alia that he be declared the
co-owner of the suit property as the suit
property is the ancestral property of the
parties and decree with regard to that be
granted in his favour. In alternative, averment
was also made by the plaintiff that the
relinquishment deed executed by his father
defendant No. 1 in favour of his brother
defendant No. 2 on 29/07/1985 (Ex. P/1 / Ex.
D/9) is illegal and bad in law and the mutation
made on that basis is also illegal, therefore,
appropriate decree be granted in his favour.
4
3.Defendants No. 1 and 2 resisted the claim of the
plaintiff stating inter alia that the suit
property is the self-acquired property of
defendant No. 1 which he purchased on 24/05/1978
by his own income and as such, he can relinquish
the said suit property in favour of his other
son i.e. defendant No. 2, therefore, plaintiff
has no right or title over the suit property and
the relinquishment deed (Ex. P/1 / Ex. D/9)
executed by him in favour of defendant No. 2
with the consent of his wife Patango Bai is
strictly in accordance with law, as such,
plaintiff's suit deserves to be dismissed.
4. It is pertinent to mention here that defendant No. 1 Gambhira died during the pendency of the suit on 07/08/1993.
5. Learned trial Court, upon appreciation of oral and documentary evidence on record, dismissed the suit vide its judgment and decree dated 15/12/1988 holding that the suit property shown in Schedule 'A' and 'B' of the plaint is not the ancestral property of the parties rather it is the self-acquired property of defendant No. 1 and the relinquishment deed dated 29/08/1985
(Ex. P/1 / Ex. D/9) executed by defendant No. 15
in favour of defendant No. 2 is strictly in
accordance with law, as such, plaintiff does not
have right or title in the suit property. In
turn, the decree of the trial Court having been
questioned before the first appellate Court, the
appellant/plaintiff suffered the same fate as
learned first appellate Court too, finding no
merit in the second round of litigation after
the matter being remanded from this Court,
affirmed the judgment and decree of the trial
Court and dismissed the appeal. Feeling
aggrieved and dissatisfied with the judgment and
decree of both the Courts below, this second
appeal has been preferred by the plaintiff in
which two substantial questions of law have been
formulated which have been set out in the
opening paragraph of this judgment.
6.Ms. Sharmila Singhai, learned counsel for the
appellants/Lrs. of plaintiff, would vehemently
submit that since the suit property is
admittedly the self-acquired property of
defendant No. 1, as held by both the Courts
below, therefore, he could not have executed the
relinquishment deed (Ex. P/1) in favour of
defendant No. 2 as release deed can only be
6
executed in favour of a person who has some
semblance of a pre-existing right, title,
interest over the property and a release can
only enlarge an existing title, right and
interest of the releasee, and there can be no
release in favour of a releasee who has no
title, right or interest in the property. She
would rely upon the decisions rendered by the
Supreme Court in the matter of Kuppuswamy
Chettiar vs A.S.P. A. Arumugam Chettiar1, to
buttress her submission. She would also submit
that the judgment and decree passed by both the
Courts below holding that relinquishment deed
(EX. P/1 and D/9) executed by defendant No. 1 in
favour of defendant No. 2 is illegal and bad in
law and deserves to be set aside by answering
the two substantial questions of law in favour
of the plaintiff.
7. Despite service of notice, none appears on behalf of the respondents/defendants No. 1 and 2.
8. At the request of the Court, Mr. Ratan Pusty, learned counsel has readily agreed to appear as Amicus Curiae and assist the Court by making
1 AIR 1967 SC 1395
7
submission. He would submit that a Mitakshara
father has absolute right to transfer his self-
acquired property as per his wish to which no
exception can be taken by his male descendants
and he can even transfer the property in favour
of a stranger. He would rely upon the decision
rendered by the Supreme Court in the matter of
C.N. Arunachala Mudaliar v. C.A. Muruganatha
Mudaliar2 and would also submit that since the
suit property is the self-acquired property of
defendant No. 1, therefore, during his lifetime,
plaintiff, who had no right over the suit
property, had no legal right to institute the
suit as per Section 9 of CPC. A person filing a
suit under Section 9 of CPC must have legal
right to the property involved in the suit.
However, plaintiff has no legal right in the
suit property and as such, he could not have
filed the suit under Section 9 of CPC.
9.I have heard learned counsel for the parties,
considered their submissions made herein-above
and went through the records with utmost
circumspection.
10. Plaintiff filed the suit wherein he claimed the
suit property to be the ancestral property of 2 AIR 1953 SC 495
8
the parties and in alternative, he also pleaded
that his father Gambhira i.e. defendant No. 1
could not have relinquished the suit property in
favour of his brother/defendant No. 2 as
according to the plaintiff, defendant No. 2 had
no pre-existing right in the property of their
father i.e. defendant No. 1, as both the Courts
below have held that suit property was the self-
acquired property of defendant No. 1 which has
not been questioned by in the instant appeal, as
such, the said finding has become final.
11.The only part that has been challenged by the
plaintiff in the instant appeal is the manner of
transfer of suit property by stating that since
defendant No. 2 had no existing right on the
date of execution of relinquishment deed (Ex.
P/1 / Ex. D/9), therefore, the said
relinquishment deed executed by defendant No. 1
in favour of defendant No. 2 is illegal and bad
in law, which both the Courts below have not
accepted and rejected the said plea.
12.At this stage, it would be appropriate to notice
the relinquishment deed (Ex. P/1 / Ex. D/9)
executed by defendant No. 1 in favour of
defendant No. 2, which states as under :-
9
- त ् यय ा गप् ቔ ( दस ् तबरदय ा रर) मय सहमतत प्
त्ययग कका जयी ना ने वयलर सा म्पतቈኌ कय मा मूलय् ममुबतलग 25,000-00 रू० तबनय मा लमू य तलय्
यह त्ययागप्ቔ तवलनेख आज तदनयक 29-7-85 कको स्थयान बबैकमुण्ठपमुर मम ा ममुझ गम्भररया एवव ममु० पतयावगको बयाई दयारया सम्पयातदत तकयया गयया ।
मम गम्भररया आत्मज सरतयारयाम रजवयार, आयमु 65 वरर कररब तनवयासर गयाम करजर, तहसरल-बबैकमुण्ठपमुर तजलया-सरगमुजया कया हहव । मनेरने पयास गयाम करजर मम तनम्नतलतखत भमूतम हबै जको मनेरर तनजर कमयाई ककी हबै । इस भमूतम कया सनेतटिलम न ेटि परयार मनेरने नयाम सने हर तमलया थया । मनेरने भयाईगण अलग रहतने थने और उन्हम, उनककी बनयाई हहई जमरन कया पटया तमलया थया । मनेरर इस जमरन मम सने कमुछ जमरन मनेरने दयारया जवगल कयाटिकर बनयाई गई थर और कमुछ भमूतम ममनने रयामसयागर लयाल ममुवशर सने तथया कमुछ भमूतम शरमतर अजजौररयया उरर असकोततहन सने खररदया थया । यह सब भमूतपमूवर ककोररयया स्टिनेटि अथयारत सनन् 1948 कने पमूवर ककी बयात हबै इस भमूतम मम सने तसरर एक खसरया नम्बर 710 । 2 रकबया 0-117 हने० कको ममनने सनेटिनेलममटि पररया कने बयाद खररदया थया ।
-: :भम ू तम कय ा तववरण
| गगररम | खसरयानम्बर | रकबय | लगरन |
|---|---|---|---|
| करजज प००नन० |
108 | 0-129 हने० | 14-69पबसर |
| हन तह०बबककणठपकर |
205 | 0-024 हने० | |
| 404 | 0-032 हने० | ||
| 411 | 0-142 हने० | ||
| 414 | 0-077 हने० | ||
| 420 | 0-045 हने० | ||
| 556 | 0-040 हने० | ||
| 557 | 0-053 हने० | ||
| 560 | 0-101 हने० | ||
| 632 | 0-162 हने० | ||
| 633 | 0-125 हने० | ||
| 650 | 0-073 हने० | ||
| 655 | 0-097 हने० | ||
| 683 | 0-243 हने० | ||
| 698 | 0-166 हने० | ||
| 744 | 0-142 हने० | ||
| 754 । 1 | 1-408 हने० | ||
| 883 | 0-470 हने० | ||
| 710 । 2 | 0-117 हने० | ||
| ययग | 19 | 3-646 हने० | 14-69 पबै० |
10
मनेरर आयमु लगभग 65 वरर ककी हको गई हबै । मनेरर पत्नर शरमतर पतयावगको बयाई भर कररब 60 वरर ककी हको रमुककी हबै । मनेरने दको लड़कने तथया दको लड़तकययाव हबै । बड़र लड़ककी कवजयालको बयाई ककी शयादर हको गई हबै और वह अपनने ससमुरयाल मम हबै । मनेरर दमूसरर लड़ककी रमुलमत बयाई कको उसकने पतत नने छकोड़ तदयया हबै अततः वह मनेरने सयाथ रहतर हबै । मनेरया बड़या लड़कया मतरयाखन आयमु कररब 48 वरर हबै । ममनने मतरयाखन कको अपनर उपरको्ሹ दतशरत भमूतम मम सने कमुछ जमरन पहलने सने हर दने रखया हबै तजस पर वह खनेतर करतया हबै तथया अपनया मकयान एवव बयाड़र बनयायया हबै । मतरयाखन कको अपनया मकयान बनयानने कने तलयने ममनने अपनने पमुरयानने मकयान कया कमुवडर, बयावस, खपड़या भर तदयया थया । इस तरह ममनने उसने अलग कर तदयया हबै । मतरयाखन कयालरर मम नजौकरर करतया हबै और कररब दको हजयार रूपयया मयातसक कमयातया हबै । इस ्ቚकयार वह हर ्ቚकयार सने सम्प्ቐ हबै । मनेरने दयारया मतरयाखन (बड़ने पमु्ቔ) कको दर गई जमरन कने बयाद शनेर बरर हहई जमरन पर मनेरया पमूरया हक व कब्जया हबै । रमूवतक मनेरया दमूसरया पमु्ቔ रमुलसयाय मनेरर सनेवया अननेक वररव सने कर रहया हबै तथया मनेरर, मनेरर पत्नर एवव पमु्ቔर रमुलमत बयाई कया पयालन पकोरण रमुलसयाय हर कर रहया हबै और वह हर मनेरर खनेतर ककी दनेख रनेख भर करतया हबै अततः ममनने यह तनश्रय तकयया हबै तक अपनर इस शनेर भमूतम तजसकया तववरण नररने दतशरत हबै, कया त्ययाग प्ቔ अपनने पमु्ቔ रलसयाय कने नयाम पर सम्पयातदत कर दमूव । इस सवबवध मम मनेरर पत्नर भर ममुझ सने सहमत हबै वह भर मनेरर नररने तलखर भमूतम पर, उसकने जको कमुछ भर कयानमूनर हक व अतधकयार हकोतने हम, उन्हम वह भर रमुलसयाय कने प्ቌ मम त्ययाग करनने कयाने सहमत तथया तबैययार हबै तथया अतभस्वरककतत दनेतने हहयने मनेरर पत्नर भर इस दस्तयावनेज पर अपनने हस्तया्ቌर कर रहर हबै ।
रमुलसयाय आ० गम ् भररय ा जयात रजवयार तनवयासर गयाम करजर - कने प्ቌ मम त्ययग कका जयी ना ने वयलर भा मूतम कय तववरणा तः
| गयाम | खसरयानम्बर | रकबय | जमय |
|---|---|---|---|
| करजर | 108 मम सने | 0-101 ने | हने० 9-37 पबै० |
| प०ह०नव० | 205 | 0-024 ने | हने० |
| तह० बबैकमुण्ठपमुर | 405 | 0-032 ने | हने० |
| स्टियाम्प रकीस कया | 411 मम सने | 0-093 ने | हने० |
| क. 410803 | 414 मम सने | 0-049 ने | हने० |
| 556 | 0-040 ने | हने० | |
| 557 | 0-053 ने | हने० | |
| 560 मम सने | 0-065 ने | हने० | |
| 632 मम सने | 0-113 ने | हने० | |
| 633 | 0-125 ने | हने० | |
| 650 मम सने | 0-056 ने | हने० | |
| 655 मम सने | 0-077 ने | हने० | |
| 683 मम सने | 0-153 ने | हने० | |
| 698 मम सने | 0-142 ने | हने० | |
| 744 | 0-142 ने | हने० | |
| 754 मम सने | 0-041 ने | हने० | |
| 754 मम सने | 0-049 ने | हने० | |
| 754 मम सने | 0-889 ने | हने० | |
| 883 मम सने | 0-320 ने | हने० | |
| 710 । 2 | 0-117 ने | हने० | |
| यकोग | 20 | 2-681 ने | हने० 9-37 पबै० |
11
अततः इस दस्तयावनेज कने दयारया मम गम्भररया अपनर उपरको्ሹ दतशरत भमूतम अथयारत कमुल खसरया नम्बर 20, रकबया 2-681 हनेक्टिर जमया 9-37 पबै० जको मनेरने स्वत्व तथया हक ककी हबै, उसकने समस्त स्वत्व व हक पमु्ቔ रमुलसयाय आ० गम्भररया रजवयार कने प्ቌ मम त्ययाग करतया हहव अथयारत दस्तबरदयारर करतया हहव । इस जमरन कया रयाजस्व खयातया अपनने नयाम पर अलग सने कयायम करयानने कया तथया भमूतमस्वयामर कने रूप मम अपनया नयाम रढ़वयानने कया अब रमुलसयाय कको पमूरया अतधकयार रहनेगया । आज तदनयावक सने मम इस भमूतम कया स्वयामर अपनने पमु्ቔ रमुलसयाय कको करयार दनेतया हहव । इस सम्पतቈኌ पर वयास्ततवक अतधकयार, दखल व कब्जया भर ममनने रमुलसयाय कको सौሺप तदयया हबै और उ्ሹ भमूतम सने सम्बतधत रयाजस्व कयागजयात आतद भर रमुलसयाय कको सौሺप तदयया हबै । अब रमुलसयाय कको पमूरया अतधकयार हबै तक वह इस सम्पतቈኌ कको तजस कदर रयाहने उपयकोग मम लयावम ।
अततः यह त्ययाग प्ቔ आज तदनयावक 29-7-1985 कको स्थयान बबैकमुण्ठपमुर मम अपनने हकोश हवयाश सने स्वस्थतरत तथया सस्थर बमुतቍኌ ककी सस्थतत मम स्वनेच्छया सने तलखवयाकर व समुन तथया सम्ቌ कर अपनने हस्तया्ቌर कर तदयने तजससने तक ्ቚमयाण रहने और समय पर कयाम आवने । लनेखक जगमकोहन लयाल गमुपया सहर/-जगमकोहन लयाल गमुपया बबैकमुण्ठपमुर तदनयावक 29-7-85
सया्ቌ रगण हसतय् ा्ቌ र त्ययगकतया ार
(अवगम ु ठय ा तरन ् ह) (1) तन० अव० बयाव० बन्धमुरयाम (अवगम ु ठय ा तरन ् ह) तनशयानर अवगमूठया बयावयया आ० गवगयारयाम ककोहवर, करजर गम्भररया ब० क०
(अवगम ु ठय ा तरन ् ह) (2) तन० अव० बयाव० ्ቚनेमसयाय आ० गकोपर तबवतझयया (बमगया) सया० करजर ब०क०
मनेरने पतत दयारया तलतखत उपरको्ሹ त्ययाग प्ቔ सने मम सहमत हहव ।
तन० अव० बयाव० पतयावगको बयाई जजौ० गम्भररया (अवगम ु ठय ा तरन ् ह) रजवयार ब०क०
(1) तन० अव० बयाव० बन्धमुरयाम आ० गवगयारयाम ककोहवर (अवगम ु ठय ा तरन ् ह) सया० करजर ब०क०
(2) तन० अव० बयाव० ्ቚनेमसयाय आ० गकोपर तबवतझयया (बमगया) (अवगम ु ठय ा तरन ् ह) सया० करजर ब०क०
12
13.A careful perusal of the aforesaid document
(Exhibit D/9) would show that since defendant
No. 1 desired and expressed his wish to give the
suit property standing in his name in favour of
his other son i.e. defendant No. 2, he executed
the said relinquishment deed in favour of
defendant No. 2 with the consent of his widow
namely Patango Bai, and Exhibit P/1:D/9 is also
attested by two witnesses namely Bandhu Rai and
Premsai and is also registered in accordance
with the provisions of Indian Registration Act,
1908.
14.The principle argument raised on behalf of
appellant/plaintiff (now his LRs.) is that since
defendant No. 2, one of the sons of defendant
No. 1, had no existing right, title and interest
over the suit property during the lifetime of
his father, suit property being the self-
acquired property of defendant No. 1, therefore,
there can be no release in favour of defendant
No. 2 who has no interest in the suit property
by way of the relinquishment deed (Ex. P/1 / Ex.
D/9).
15. In the matter of Thayyil Mammo v. Kottiath Ramunni 3, at page 340, it has been clearly held 3 AIR 1966 SC 337
13
by Their Lordships of the Supreme Court that a
registered instrument styled as a release deed
releasing the right, title and interest in
favour of the releasee for valuable
consideration may operate as a conveyance, if
the document clearly discloses the intention to
effect a transfer.
16.The principle of law laid down in the aforesaid
judgment further came up for consideration
before the Surpeme Court in the matter of
Kuppuswamy Chettiar(supra) wherein the
aforesaid principle of law laid down in Thayyil
Mammo(supra) was relied upon and it was held by
Their Lordships in paragraph 4 as under :-
“4. The question is whether Ex. B-1 on its
true construction conveyed properties to the
respondents. In T. Mammo v. K. Ramunni, AIR
1966 SC 337 at p. 340 this Court held :-
"a registered instrument styled a
release deed releasing the right, title
and interest of the executant in any
property in favour of the releasee for
valuable consideration may operate as a
conveyance, if the document clearly
discloses an intention to effect a
transfer".
In the present case, the release was without
any consideration. But property may be
transferred without consideration. Such a
transfer is a gift. Under S. 123 of the
Transfer of Property Act, 1882, a gift may
be effected by a registered instrument
signed by or on behalf of the donor and
attested by at least two witnesses.
Consequently, a registered instrument
14
releasing the right, title and interest of
the releasor without consideration may
operate as a transfer by way of a gift, if
the document clearly shows an intention to
effect the transfer and is signed by or on
behalf of the releasor and attested by at
least two witnesses. Exhibit B-1 stated that
the releasor was the owner of the
properties. It showed an intention to
transfer his title and its operative words
sufficiently conveyed the title. The
instrument, on its true construction, took
effect as a gift. The gift was effectively
made by a registered instrument signed by
the donor and attested by more than two
witnesses. ”
Thereafter, in paragraph 6, Their Lordships
clearly held that a deed called a deed of
release can, by using words of sufficient
amplitude, transfer title to one having no title
before the transfer and rejected the contrary
submission made therein. As such, the argument
raised by learned counsel for the plaintiff in
this count deserves to be rejected.
17.However, this issue can be considered from
another angle. Plaintiff filed a suit that
relinquishment deed (Ex. P/1 / Ex. D/9) executed
by his father defendant No. 1 in favour of his
brother defendant No. 2 is illegal and bad in
law as by way of the said relinquishment deed,
no title can be transferred in favour of
defendant No. 2 because he had no right or title
over the suit property during the lifetime of
15
his father, reason being that the suit property
was the self-acquired property of defendant No.
1.
18.Now, the question for consideration would be,
whether plaintiff himself, who had no legal
right over the suit property, during the
lifetime of his father in his self-acquired
property, can bring a suit under Section 9 of
CPC for declaring the relinquishment deed (Ex.
P/1 / Ex. D/9) executed by his father defendant
No. 1 in favour of his brother defendant No. 2
as illegal and bad in law ?
19. At this stage, it would be appropriate to notice Section 9 of CPC, which states as under :-
“9.Courts to try all civil suits unless
barred. - The Courts shall (subject to the
provisionshereincontained)have
jurisdiction to try all suits of a civil
nature excepting suits of which their
cognizance is either expressly or impliedly
barred.”
20.A careful perusal of the aforesaid provision
would show that Section 9 of CPC confers on
every person an inherent right to bring a suit
of civil nature of one's choice, at one's peril,
howsoever frivolous the claim may be, unless it
is barred by a statute. In order to have the
said right to file a suit, one must have a legal
16
right in the suit property then only the suit
can be filed under Section 9 of CPC.
21.The Allahabad High Court in the matter of Dukh
Chor & Ors. v. Ram Ratti & Ors.4 held in
paragraph 4 as under :-
“4. Counsel contended that the Appellant
are entitled to show that the gift is
void for want of permission by the
Settlement Officer as they had taken this
plea in the lower court. I do not agree.
This plea could be considered only after
they had established that the property
was joint and they had an interest in it.
After the Court had found that they have
no interest in it, their objection
against the gift becomes incompetent.
Section 9 of the Code of Civil Procedure
providesthatthecourtshave
jurisdiction “to try all suits of a civil
nature”. The words “suits of a civil
nature” mean suits enforce legal rights
and the law court will not entertain
suits by busy bodies with no interest to
protect.”
22.Thus, plaintiff, on the date of filing of the
suit seeking declaration of the relinquishment
deed (Ex. P/1 / Ex. D/9) to be illegal and void
on the property being the self-acquired property
of his father defendant No. 1, that too in his
lifetime, has no legal right over the suit
property to file a suit under Section 9 of CPC.
Section 9 bars a person to file a suit in a case
in which he has no legal right over the suit
property. Therefore, in this Court also,
4 (1967) 37 AWR 610
17
plaintiff's suit deserves to be dismissed as
well being barred by Section 9 of CPC.
23.Similarly, the Supreme Court in the matter of
C.N. Arunachala Mudaliar(supra) has clearly
laid down the law with regard to the power of
Mitakshara father to alienate his property even
to a stranger as per his wish in paragraph 9,
which states as under :-
“9. 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, S.5, placitum 9 says:
"The grandson has a right of
prohibition if his unseparated father is
making a donation or sale of effects
inherited from the grandfather: but he
has no right of interference if the
effects were acquired by the father. On
the contrary he must acquiesce, because
he is dependent."
The reason for this distinction is
explained by the author 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."
18
Clearly the latter passages are in flat
contradiction with the previous ones and in
an early Calcutta case: vide – 'Muddun
Gopal v. RamBuksh, 6 WR 71 (A), 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, 25 Ind App 54 (PC)
(B) and Lord Hobhouse, 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 Chap. I, Sec. 1, verse 27 of
Mitakshara contained only moral or
religious precepts while those in S. 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 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.
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: vide – 6 WR 71 (Cal) (A), but he
can make a gift of such property to one of
his own sons to the detriment of another:
vide – Sital v. Madho, 1 All 394 (C); and
he can make even an unequal distribution
amongst his heirs: vide – 'Bawa Misser v.
Rajah Bishen, 10 WR 287 (Cal) (D).”
24.Reverting finally to the facts of the present
case, it is held that since the suit property
was the self-acquired property of defendant No.
19
1 and he has relinquished the said property in
favour of his other son defendant No. 2 by
registered instrument Exhibits P/1:D/9 as per
his free will and desire with the consent of his
widow Patango Bai and in presence of two
attesting witnesses, it cannot be said to be
illegal and contrary to law, particularly when
defendant No. 1 had the right title and interest
over the suit property to deal with this
property in a manner in which he wishes to as
Right to Property is a constitutional right
under Article 300-A of the Constitution of
India. Even otherwise, plaintiff has no legal
right to file the suit as the suit property was
self-acquired property of his father and his
father/defendant No. 1 was empowered to deal
with the property and rightly relinquished it in
favour of defendant No. 2. As such, both the
Courts below are absolutely justified in
dismissing the suit filed by the plaintiff in
which I do not find any perversity or
illegality. Both the substantial questions of
law are answered in favour of defendants and
against the plaintiff.
20
25.The second appeal, being devoid of merits,
deserves to be and is accordingly dismissed. No
cost(s). This Court also appreciates the
assistance rendered by Mr. Ratan Pusty, learned
counsel appearing as Amicus Curiae.
26. Decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal)
Judge
Harneet
2 issues framed by the court
Could a registered relinquishment deed transfer a father's self-acquired property to a son having no pre-existing title?
Could a son lacking any legal right in his father's self-acquired property challenge its transfer during the father's lifetime under Section 9 of CPC?
Colour shows how this judgement treated each authority
Thayyil Mammo v. Kottiath RamunniRelied on¶85
AIR 1966 SC 337 · Who else cites this
Kuppuswamy Chettiar vs A.S.P. A. Arumugam ChettiarApplied¶91
AIR 1967 SC 1395 · Who else cites this
Dukh Chor & Ors. v. Ram Ratti & Ors.Relied on¶109
(1967) 37 AWR 610
C.N. Arunachala Mudaliar v. C.A. Muruganatha MudaliarApplied¶117
AIR 1953 SC 495 · Who else cites this
3 provisions across 3 enactments
Dhansai
Meera Bai
Jawahar Lal
Gambhira
Phool Sai
State of Chhattisgarh
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court