JUDGMENT
1. This is a defendant's first appeal against a decree of the learned Civil Judge of Dehra Dun decreeing the plaintiffs' suit for the recovery of Rupees 10,478-6-9 due upon a cash credit bond hypothecating certain property. The suit was to enforce this hypothecation bond or mortgage executed by defendant 1 in favour of the plaintiffs which was dated 18th August 1924. By that bond or mortgage certain property in Mussoorie was made security for the money advanced, viz. : Rs. 10,000 and in this suit the plain, tiffs claimed to enforce their rights against such property. Defendant 2 who is the present appellant is the minor son of defendant 1. Defendant 2 who alone filed a written statement raised the usual defences to this kind of suit. He alleged that the property which had been mortgaged by his father, defendant 1, was ancestral property and that the mortgage was not binding upon the property as it had not been executed for legal necessity; on the other hand the plaintiffs alleged in their plaint as amended that the property concerned was not ancestral property but on the contrary was the self, acquired property of defendant 1 and that the mortgage was binding upon the property even if no legal necessity for the same was established.
2. The learned Civil Judge held that the property mortgaged was the separate or self-acquired property of defendant 1 and that the mortgage was a valid mortgage which could be enforced by the plaintiffs in this suit. Consequently he decreed the plaintiffs' claim and against this decree defendant 2 has preferred this appeal. As we have stated previously the property in question is situate in Mussoorie. Admittedly it had belonged to Banwari Lal, the father of Chandra Shekhar Das, defendant 1. On 27th June 1920 Banwari Lal executed a will, a copy of which is printed at p. 27 of the paper book. In the first paragraph of that document he describes the property as being property possessed and acquired by him during his lifetime. By this will he devised and bequeathed his property to his three sons Chandra Shekhar Das, defendant 1, Sham Sundar Das and Sheo Prasad. It is the property bequeathed to Chadra Shekhar Das, defendant 1 which is the subject matter of the mortgage of 18th August 1924 and this suit. Banwari Lal died on 20th December 1920 and in due course his son Chandra Shekhar Das obtained possession of this property which had been bequeathed to him.
3. Counsel for the appellant has contended before us that the decree of the learned Civil Judge cannot be sustained for two reasons. In the first place he argued that the evidence in the caseshowed that the property held by Banwari Lal, the father of defendant 1, was ancestral and therefore that Banwari Lal had no power to make the will which he purported to make on 27th June 1920. That being so the property mortgaged was ancestral property and not the self-acquired property of the mortgagor. In the second place counsel for the appellant has argued that even if the property in the hands of Banwari Lal was his separate property and even if he had power to devise and bequeath it by will, yet the property bequeathed to Chandra Shekhar Das defendant 1 became ancestral or family property in the hands of defendant 1 after Banwari Lal's death. We shall shortly deal with these two contentions.
4. Dealing firstly with the question whether the evidence shows that the property held by Banwari Lal was ancestral, we are satisfied that the decision of the learned Civil Judge upon this point is correct. The only evidence adduced with a view to showing that the property held by Banwari Lal was ancestral was the evidence of one Allahdiya who stated that he had been employed by Banwari Lal for about 30 years. According to this witness Banwari Lal's father was known as Narain Das. The witness admitted that he had never seen Narain Das but stated that Narain Das did leave some "property, viz. a haveli at Boria and about 60 or 70 bighas of land in Dayalgarh although it would appear that he was not very clear about the extent of this Dayalgarh property. From a perusal of the evidence of this witness it is clear that he had no personal knowledge about this property. According to him he had heard from Banwari Lal that Narain Das had left this property, but, even if this evidence is admissible, it is difficult to accept it in face of Banwari Lal's own statement in the first paragraph of the will in which he describes the property as being in his possession and acquired by him during his lifetime. The evidence of Allahdiya is entirely hearsay and cannot possibly establish that Banwari Lal received any property from his father Narain Das. The learned Civil Judge seems to have thought that the evidence of this witness does establish that Banwari Lal did receive some small property from his father which produced about Rs. 120 to Rs. 140 a year, but on the other hand the learned Civil Judge was satisfied that Banwari Lal never acquired the property which he devised and bequeathed by his will from such a trifling nucleus. Even if we hold that a small nucleus in the hand of Banwari Lal has been established by the evidence of Allahdiya it would yet be quite impossible for us to hold that this considerable property held by Banwari Lal in Mussoorie could possibly have been obtained as the result of such small nucleus. Prom the evidence it appears that Banwari Lal had been employed at Landour as an overseer in the Military Works and as a contractor. He must have carried on a substantial business because Allahdiya states that he was the person who had been given the contract to build the Kapurthala Chatteau at Mussoorie. In our judgment the learned Civil Judge came to a right conclusion when he held that it was not established that the property held and bequeathed by Banwari Lal was ancestral property. On the other hand we are perfectly satisfied upon the evidence that this property was self-acquired property which had been purchased by Banwari Lal from moneys which he must have made and acquired as the result of his activities as an overseer in the Military Works and as a contractor. As we hold that this property was the self-acquired property of Banwari Lal he was quite competent to make a will disposing of it as he wished. Dealing, with the second contention we are hound to hold that the property bequeathed by Banwari Lal to Chandra Shekhar Das, defendant 1, must be regarded as the self-acquired property of defendant 1. Counsel for the appellant argues that there is a great conflict of authority in the Courts in India concerning this question and he has referred us to the case in Lal Ram Singh v. Deputy Commissioner, Partbgarh A.I.R. 1923 P.C. 160. The precise point before us was not decided by their Lordships of the Privy Council in the case to which we have referred, but at p. 604 their Lordships made the following observations:
It appears that there has been great diversity of opinion in the High Courts in India as to the effect in a Mitakshara family of a bequest made by a father of property which in the father's hands was self-acquired, to his son. In Calcutta, in 1863, the point first arose in Muddun Gopal v. Ram Bakhsh (1863) 6 W.R. 71 when it was held that such property would be ancestral, and this has been followed in the later case in Hazzir Mall Basu v. Abaninath (1912) 17 C.W.N. 280 decided in 1912. In Madras, upon the whole the view seems to be that the father can determine whether the property which he has so bequeathed shall be ancestral or self-acquired, on the principle of cujus est dare ejus est disponere, but that unless he expresses his wish that it should be deemed self-acquired it is ancestral : see Tara Chand v. Reeb Ram (1966) 3 M.H.C.R. 50 and compare it with Nagalingam v. Ramachandra (1901) 24 Mad. 429 and other cases. In Bombay, on the other hand, the principle of intention seems to have been accepted if it makes the property ancestral, but if there be no expression of intention it is deemed self-acquired : see Jugmohandas v. Mangaldas Nathubhoy (1886) 10 Bom. 528 and Nanabhai v. Achratbi (1888) 12 Bom. 122. At Allahabad the decision was that such property is self-acquired : see Parsotam v. Janki Bai (1907) 29 All. 354 decided in 1907. Finally, in 0udh, in Rameshar v. Mt. Rukmin (1911) 14 O.C. 244 decided in 1909, (Sic) 1911 after a review of all the cases, it was held that 'where self-acquired property is bequeathed to sons in the absence of language clearly indicating the testator's intention that the property should be held by the sons subject to the incident of survivorship, it should be presumed that each son takes an interest which passes to his heirs at his death.' If the criterion were to be the intention of the father when he makes the gift, there is nothing to indicate that Han want Singh desired to make the estate ancestral property in the hands of Lachman. His expression of opinion or desire, whichever it may be, that the property should still be governed by the Act of 1869 would indicate the contrary view; because under the Act each holder of the estate has a power to give it or will it away. If, on the other hand, Hanwant should be treated as having intended the legal consequences of his acts, he had brought the estate under Section 15; and then the argument urged by counsel for the respondent founded on the words at the end of that section by which property is to be regulated by the rules which would govern succession to it, if the transferee or legatee had brought it, would have to be considered.
But their Lordships deem it unnecessary to pronounce upon these points. It may be that some day this Board will have to decide between the conflicting decisions of the Indian High Courts, and it may be that when this time comes, this Board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case.
5. In our view, however, it is not open to a Bench of this Court to consider this matter afresh because this Court is in our judgment committed to the view that property of this kind bequeathed by a father to a son becomes in the hands of the devisee the son, his self-acquired property. The point was first determined by a Bench of this Court in Parsotam v. Janki Bai (1907) 29 All. 354 at p. 363 their Lordships who decided that case observed:
Two main grounds of appeal have been relied upon by Mr. Porter in his argument on behalf of the appellants. The first is that the property which devolved on Nana Narain Rao under the will of his father was not his separate property, but became joint family property in the hands of himself and his sons and that therefore Nana Narain Rao had DO power to partition it as he purported to do by the document of 1864. This argument was largely based upon the authority of the case in Tara Chand v. Reeb Ram (1966) 3 M.H.C.R. 50 in which it was laid down that property which devolves upon a Hindu father under a will is ancestral property and that his children cannot be deprived of the right given to them therein at the moment of their birth according to the doctrines of the Mitakshara. He also relied upon Muddun Gopal v. Ram Bakhsh (1863) 6 W.R. 71. We are not disposed, in view of the pleadings of the parties and the clear admission in the written statement of the defendants of the right of Nana Narain Rao to dispose of his property amongst his sons, to permit this defence to be now set up. But assuming that it is open to the defendants to do so, we are not prepared to follow the rulings on which the learned Counsel for the defendants-appellants rely. We prefer to follow the rule which is laid down in Jugmohandas v. Mangaldas Nathubhoy (1886) 10 Bom. 528 in which this subject was discussed and dealt with at considerable length. In that case it was held that a son to whom his father leaves his self-acquired property by will takes the property under the will and not by inheritance, and that as property received by will is held by Hindu law to be received by gift, such property is self-acquired in the hands of the son f and is not subject to partition in his lifetime at the suit of his son.
6. This case is a clear authority against the argument of learned Counsel for the appellant. If this case is binding upon us then we are bound to hold that the property bequeathed by Banwari Lal to Chandra Shekhar Das, defendant 1, became the latter's self-acquired property which he could validly mortgage for his own purposes. The case in Parsotam v. Janki Bai (1907) 29 All. 354 to which we have referred was followed and approved of by another Bench of this Court in First Appeal No. 314 of 1930 which was decided on 28th August 1933. In the case it had been argued that property bequeathed by will to a son by his father became family or ancestral property in the hands of the son. However, this Court following Parsotam v. Janki Bai (1907) 29 All. 354 held that the property received by the son under the will was his self-acquired property. In the judgment in that case their Lordships observed:
This property which Ram Charan Das received from his father under the will became his self-acquired property according to the view taken by this Court in Parsotam v. Janki Bai (1907) 29 All. 354.
7. It is clear therefore that the earlier case in Parsotam v. Janki Bai (1907) 29 All. 354 has been recently followed and approved of by a Bench of this Court and in those circumstances we have no alternative but to follow these cases and to hold that the property received by Chandra Shekhar Das, defendant 1, under his father's will was the self-acquired property of defendant 1 which he could validly mortgage to the plaintiffs apart altogether from the question of legal necessity. No other point has been taken by counsel for the appellant. In our judgment the learned Civil Judge rightly held that the property which was the subject matter of this mortgage was the self-acquired property of Banwari Lal which had been validly devised or bequeathed to defendant 1 and that the latter could validly mortgage it to the plaintiffs apart altogether from legal necessity as it became his self-acquired property in which his son, defendant 2, had no interest. No grounds have been made out for interfering with the decree of the learned Civil Judge and that being so this appeal must be dismissed with costs.