JUDGMENT (Rajiv Sharma, J.) - This Regular Second Appeal is directed against the judgment and decree dated 30.3.2002 passed by the learned District Judge, Chamba in civil appeal No. 40 of 2000. 2.The brief facts necessary for the adjudication of this appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for possession by way of partition. The trial Court decreed the suit on 27.4.2000. The respondents-defendant (hereinafter referred to as ‘the defendants’ for convenience sake) filed an appeal in the court of learned District Judge, Chamba against the judgment and decree dated 27.4.2000. The learned District Judge, Chamba accepted the appeal and set aside the judgment and decree passed by the learned trial Court. The Regular Second appeal was admitted on the following substantial question of law: 1. Whether section 30 of the Hindu Succession Act has application to a property which is held to be ancestral but which is not a coparcenary property? 3.Mr. Chander Pal Sood, Advocate had strenuously argued that the judgment dated 30.3.2002 of the learned District Judge is not sustainable in the eyes of law and that the judgment dated 27.4.2000 of the trial Court be restored. He also contended that the property in dispute could not be bequeathed by the father of his client either by way of will or gift since the property in his hands had all the ingredients of ancestral property. He further; contended that the trial Court in civil suit No. 97/91 had recorded findings that the property in question is ancestral property. 4.Mr. Bhupender Gupta, Senior Advocate had supported the judgment dated 30.3.2002 of the learned District Judge and strenuously argued that the property bequeathed in favour of the defendants by way of will and gift was the self acquired property. He also contended that since the civil suit No. 97/91 as dismissed, the defendants were not required to file a separate appeal challenging the adverse findings against them. 5.I have heard the learned Counsel for the parties and perused the record carefully. 6.To prove the case, the plaintiff has appeared as PW-1. He had relied upon Ex. P-1 to Ex. P-8. The defendants have examined 8 witnesses including one of the defendants Parveen Kumar as DW-3. They have relied upon the documents Ex. D-1 to D-5, Ex. DW-6/A, Ex. DW-8/A and Ex. 6.To prove the case, the plaintiff has appeared as PW-1. He had relied upon Ex. P-1 to Ex. P-8. The defendants have examined 8 witnesses including one of the defendants Parveen Kumar as DW-3. They have relied upon the documents Ex. D-1 to D-5, Ex. DW-6/A, Ex. DW-8/A and Ex. DW-8/B. Mr Chander Pal Sood, Advocate had strenuously argued that in the previous suit No. 97/91 Ex. P-8, a specific finding has been returned by the learned trial Court to the effect that the property in question was the ancestral property. He also contended that since the defendants had not preferred any appeal against the findings recorded by the trial Court, the findings returned by it had attained finality. Mr. Bhupender Gupta, Senior Advocate to the contrary relied upon Tara Singh v. Smt. Shakuntala, AIR 1974 Rajasthan 21 and submitted that once the suit itself was dismissed by the trial Court, the defendants were not required to file an appeal assailing the findings recorded by the trial Court. The learned Single Judge of the Rajasthan High Court has held as under: “In AIR 1922 PC 241, an earlier suit had been filed by a Zamindar against his tenant claiming possession of certain chur land. That suit was compromised. After the expiry of the term a fresh patta and kabuliyat were to be given at a fari rent to the determined. Then subsequently there was litigation between the parties. The Zamindar filed the suit for Khas possession of certain accretions to chur land. The Zamindar gave notice to terminate the tenancy. The tenant pleaded that he was an occupancy tenant and consequently could not be evicted under the terms of the Bengal Rent Act. When the case went to the Privy Council previous judgment was sought to be used. In that judgment certain findings were against the defendants. In that connection their Lordships expressed their view that their Lordships did not consider that an actual plea of res judicata for the defendants could be found as the defendants succeeded on other plea and,, therefore, had no occasion to go further. In that judgment certain findings were against the defendants. In that connection their Lordships expressed their view that their Lordships did not consider that an actual plea of res judicata for the defendants could be found as the defendants succeeded on other plea and,, therefore, had no occasion to go further. This opinion of their Lordships shows that a party in whose favour goes the ultimate result of the case is not bound by any finding adverse to him in that judgment and as such the party cannot go in appeal against that judgment.” 7.This Court had also occasion to go into the issue raised by Mr. Chander Pal Sood, Advocate in Shakuntla Devi (Smt.) v. Santosh (Smt.) and others, 2002(1) (HP) Current Law Journal 338. The learned Single Judge has held as under: “Hence, where the decree or order is absolutely in favour of a party but some issues are found against him, he has no right of appeal against such findings for two reasons, namely: (a) he is not adversely affected thereby; and (b) such findings are not embodied in and do not form part of the decree or order.” 8.Mr Chander Pal Sood, Advocate had strenuously argued that the property in the hands of Sh. Shiv Lal is not ancestral property since he has received it from Sh. Ram Nath. He had further submitted that the property being a coparcenary property, his client has right in the suit property to the extent of 1/5th share. Lastly, he submitted that the entries made on the basis of the will Ex. DW-8/A and gift deed Ex. DW-8/B, are illegal and contrary to law. He had relied upon Valliammai Achi v. Nagappa Chettiar and another, AIR 1967 SC-1153. Their Lordships have held as under: “But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappa’s father would change merely because Pallaniappa’s father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property pallaniappa’s father was not entitle not will it away and his making a will would make no difference to the nature of the property when it came into the hands of pallaniappa. The property being joint family property pallaniappa’s father was not entitle not will it away and his making a will would make no difference to the nature of the property when it came into the hands of pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: See Hindu law by Mulla, Thirteenth Edition, p. 249, para 223 (2)(4). If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and pallaniappa’s father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are, therefore, of opinion that merely because Pallaniappa’s father made the will and pallaniappa probably as a dutifil son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.” 9.On the other hand, Mr. Bhupender Gupta, Advocate submitted that once the father of the defendants had received the property by way of will, it cannot be termed as a coparcenary property and for all intents and purposes, it has to be treated as the self acquired property by their father. He also submitted that the property in question has been bequeathed by way of will and gift deed is dated 15.7.1991. The plaintiff has failed to prove that the property in the hands of Sh. Ram Nath was not a self acquired property. She. Shiv Lal has acquired this property by way of will. Sh. He also submitted that the property in question has been bequeathed by way of will and gift deed is dated 15.7.1991. The plaintiff has failed to prove that the property in the hands of Sh. Ram Nath was not a self acquired property. She. Shiv Lal has acquired this property by way of will. Sh. Shiv Lal has succeeded to the suit property by way of will Ex. DW-6/A executed by his father Sh. Ram Nath. The plaintiff has not assailed the will Ex. DW-6/A and gift deed Ex. DW-8/B. The plaintiff while appearing as DW-1 has testified that the suit property was originally owned by Sh. Nanak Chand and on his death the suit property was inherited by Sh. Ganga Ram and on the death of Sh. Ganga Ram; it was inherited by Sh. Ram Nath and on his death, his father Sh. Shiv Lal inherited the suit property. He further stated that the revenue entries altered on the basis of execution of will and gift are bad in law. 10.The defendants have examined 8 witnesses. DW-1 was posted as General Record Keeper in the office of Deputy Commissioner, Chamba. She has proved the copy of plaint Ex. D-2 written statement Ex. D-2 and replication Ex. D-3. DW-2 Sh. Davinder Singh has stated that he knew Sh. Shiv Lal and he identified him before the Sub-Reigstrar, Chamba, who had executed the will. He has further stated that Tehsildar read over the contents of the will to Sh. Shiv Lal, who signed the document in his presence after admitting the contents thereof to be correct. DW-4 Dr. Nagesh Verma has stated that the defendants have raised new building on the old house of Sh. Shiv Lal. He has also deposed that Sh. Shiv Lal was in good health till his death. DW-5 Alla Dad has scribed the will Ex. DW-6/A. He has stated that the will was scribed at the instance of Ram Nath and after scribing the same it was read over to Ram Nath who appended his signatures after admitting the contents thereof to be correct. He further stated that Barfi Ram and Mutalbi also signed/thumb marked the document in the presence of Ram Nath. He has further stated that the will mark ‘A’ (Ex. DW-8/A) was also scribed by him at the instance of Shiv Lal. DW-6 Barfi Ram has deposed that the will Ex. He further stated that Barfi Ram and Mutalbi also signed/thumb marked the document in the presence of Ram Nath. He has further stated that the will mark ‘A’ (Ex. DW-8/A) was also scribed by him at the instance of Shiv Lal. DW-6 Barfi Ram has deposed that the will Ex. DW-6/A was got scribed by Ram Nath and the same was read over to him. He further stated that he and Mutalbi were marginal witnesses of the document. DW-7 Gian Chand has stated that the gift deed Ex. DW-8/B was scribed by him at the instance of Shiv Lal and the same was read over to him, who after admitting the contents to be correct appended his signatures. DW-8 Mukesh Kumar has stated that the will and gift deed were executed in his presence. 11.Ex. P-1 is the copy of Jamabandi for the years 1986-87. According to the entries, Jagat Ram, Bainsu and Smt. Sobtu have been recorded as owners in possession of the land bearing Khasra Nos. 65, 73, 90, 96, 151, 171, 266, 270, 283, 291, 294, 295, 299 and 302 and Shiv Lal Son of Ram Nath son of Ganga Ram has been recorded as non-occupancy tenant of the land bearing khasra Nos. 68, 77, 78, 83 and 290. Ex. P-2 is the copy of jamabandi for years 1990-91. As per these entries, Shiv Lal son of Ram Nath son of Ganga Ram has been recorded owner of the land bearing Khasra Nos. 3712, 4341, 4342, 4343, 4344, 4348 and 4349. Ex. P-3 is the copy of jamabandi for the years 1991-92. In these entries, Shiv Lal son of Ram Nath son of Ganga Ram has been recorded as owner in possession of the land bearing khasra Nos. 62, 63, 67, 69, 70, 72, 65, 79, 82, 84, 292, 293 and 297. Similarly, Shiv Lal has been recorded owner of the land bearing Khasra Nos. 89, 96/1, 138, 179, 265, 271, 282 and 298 whereas Bainsu and Jagat Ram have been recorded as non-occupancy tenants. Ex P-4 is the copy of jamabandi for the years 1986-87. In these entries, Jagat Ram, Bainsu and Sobtu have been recorded as owners and Shiv Lal son of Ram Nath of Ganga Ram has been recorded as non-occupancy tenant of the land bearing Khasra Nos. 67, 77, 78, 83 and 290. Ex. Ex P-4 is the copy of jamabandi for the years 1986-87. In these entries, Jagat Ram, Bainsu and Sobtu have been recorded as owners and Shiv Lal son of Ram Nath of Ganga Ram has been recorded as non-occupancy tenant of the land bearing Khasra Nos. 67, 77, 78, 83 and 290. Ex. P-5 is the copy of mutation No. 3149 dated 17.7.1991 vide which mutation of property situated in Chamba town bearing Khasra Nos. 4341, 4342, 4343, 4344, 4348, 4349 and 3709 has been sanctioned in favour of the defendants on the basis of gift deed Ex. PW-8/B Ex. P-6 is the copy of mutation No. 219 dated 10.9.1993 vide which the land situated in Mohal Jatota owned by Shiv Lal son of Ram Nath son of Ganga Ram bearing Khata Khatauni No. 36/44 and 45 has been mutated in the names of defendants on the basis of will Ex. DW-8/A. Ex. P-7 is the certified copy of gift deed dated 12.7.1991 (Ex. PW-8/B. Ex. P-8 is the certified copy of judgment dated 20.8.1993 in civil suit No. 97/91 Ex. D-1 is the certified copy of plaint, Ex. D-2 is the certified copy of written statement, Ex. D-3 is the certified copy of replication, Ex. D-4 is the certified copy of report of Local Commissioner and Ex. D-5 is the certified copy of statement of Shiv Lal in civil suit No. 97/91. Ex. DW-6/A is original will vide which Ram Nath son of Ganga Ram has bequeathed his property in favour of Shiv Lal. Ex. DW-8/A is original will executed by Shiv Lal son of Ram Nath son of Ganga Ram in favour of the defendants. 12.It is evident from the scrutiny of Ex. DW-6/A that Ram Nath son of Ganga Ram had bequeathed his movable and immovable property in favour of Sh. Shiv Lal. Sh. Shiv Lal has bequeathed his property in favour of defendants alone. Ex. DW-8/A stands duly proved, more particularly, in view of the statement of DW-8 Mukesh Kumar. It was for the plaintiff to prove by leading cogent evidence that the suit property in the hands of Sh. Ram was originally owned by Nanak Chand and on his death it was inherited by his son Ganga Ram and on his death it was inherited by Ram Nath. It was for the plaintiff to prove by leading cogent evidence that the suit property in the hands of Sh. Ram was originally owned by Nanak Chand and on his death it was inherited by his son Ganga Ram and on his death it was inherited by Ram Nath. Similarly, the plaintiff has failed to prove that the suit property bequeathed by way of will and gift deed to Sh. Shiv Lal was of Sh. Ganga Ram and on his death it was inherited by Ram Nath and then by Shiv Lal on the death of Ram Nath. The plaintiff has failed to prove that the property bequeathed by way of will and gift by Sh. Shiv Lal was ancestral property. The plaintiff has also failed to prove the nature of the suit property owned by Sh. Nanak Chand and Ganga Ram by tendering and proving the copies of the revenue record. Sh. Shiv Lal had received the property by way of will and not by natural succession. The will Ex. DW-6/A has not been assailed by the plaintiff. DW-2, DW-3, DW-7 and DW-8 have duly proved the execution of gift deed Ex. DW-8/B and will Ex. DW-6/A. 13.Their Lordships of the Hon’ble Supreme Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar and another, AIR 1953 SC 495 have held that the property got by way of will or gift by father in the hands of legatee or donee is not ancestral ipso facto. Their Lordships have held as under: “In view of the settled law that a Mitakshara father has absolute 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, ranks ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest. This extreme view, which is supposed to be laid down in the Calcutta case : vide `6 W. R. 71(A)’ referred to above, is sought to be supported on a two-fold ground. The first ground is the well known doctrine of equal ownership of father and son in ancestral property which is enunciated by Mitakshara on the authority of Yangnavalkya. This extreme view, which is supposed to be laid down in the Calcutta case : vide `6 W. R. 71(A)’ referred to above, is sought to be supported on a two-fold ground. The first ground is the well known doctrine of equal ownership of father and son in ancestral property which is enunciated by Mitakshara on the authority of Yangnavalkya. The other ground put forward is that the definition of “self-acquisition” as given by Mitakshara does not and cannot comprehend a gift of this character and consequently such gift cannot be partible property as between the donee and his sons. So far as the first ground is concerned, the foundation of the doctrine of equal ownership of father and son in ancestral property is the well known text of Yagnavalkya : vide Yagnavalkya Book 2, 129 which says: “The ownership of father and son is co-equal in the acquisitions of the grandfather, whether land, corody or chattel.” It is to be noted that Vijnaneswar invokes this passage in Chap. I, Sec. 5 of his work, where he deals with the division of grandfather’s wealth amongst his grandsons. The grandsons, it is said, have a right by birth in the grandfather’s estate equally with the sons and consequently are entitled to shares on partition, though their shares would be determined ‘per stripes’ and no ‘per capita’. This discussion has absolutely no bearing on the present question. It is undoubtedly true that according to Mitakshara, the son has a right by birth both in his father’s and grandfather’s estate, but as has been pointed out before, a distinction is made in this respect by Mitakshara, itself. In the ancestral or grandfather’s property in the hands of the father, the son has equal rights with his father. While in the self-acquired property of the father his rights are unequal by reason of the father having an independent power over or predominant interest in the same : vide Mayne’s Hindu Law, 11th Edition, page 336. It is obvious however, that the son can assert this equal right with the father only when the grandfather’s property has devolved upon his father and has become ancestral property in his hands. It is obvious however, that the son can assert this equal right with the father only when the grandfather’s property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normal vest in the father as ancestral property it and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfather’s property comes to the father by virtue of the latter’s legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. 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 out the made 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. Thus, in Chap. I, Sec. 1 placitum 19 Mitakshara refers to a text of Narada which says: “Excepting what is gained by valor, the wealth of wife and what is acquired by science which are three sorts of property exempt from partition; and `favour conferred by a father.” Chapter 1, Sec. 4 of Mitakshara deals with effects not liable to partition and property “obtained through the father’s favour” finds place in the list of things of which no partition can be directed: vide section 4, placitum 28 of Mitakshara. This is emphasised in Section 6 of chapter I which discusses the rights of posthumous sons or sons born after partition. In placitum 13 of the section it is stated that though a son born after partition takes the whole of his father’s and mother’s property, yet if the father and mother has affectionately bestowed some property upon a separated son, that must remain with him. A text, of Yagnavalkya is then quoted that “the effects which have been given by the father and by the mother belong to him on whom they are bestowed” : vide Yagnavalkya 2, 124. It may be noted that the expression ‘obtained through favour of the father’ which occurs in placitum 28, Section 4 of Mitakshara is very significant. A Mitakshara father can make a partition of both the ancestral and self-acquired property in his hands any time he likes even without the concurrence of his sons : but if the chooses to make a partition, he has got to make it in accordance with the directions laid down in the law. Even the extent of inequality, which is permissible as between the eldest and the younger sons, is indicated in the text: vide Mit. chapter I, Section 2, Nothing depends upon his own favour or discretion. When, however, he makes a gift which is only an act on bounty, he is unfettered in the exercise of his discretion by any rule or dictate of law. It is in these gifts obtained through the favour of the father that Vijnaneswar, following the earlier sages, declares the exclusive right of the sons. We hold, therefore, that there is no warrant for saying that according to the Mitakshara, an affectionate gift by the father to the sons constitutes ‘ipso facto’ ancestral property in the hands of the donee. It this is the correct view to take, as we think it is it would furnish a complete answer to the other contention indicated above that such gifted property must be held partible between the father and the sons as it does not come within the definition of ‘self acquisition’, as given by Mitakshara. In chapter I, section 4 of his work Vijnaneswar enumerates and deals with properties which are not liable to partition. In chapter I, section 4 of his work Vijnaneswar enumerates and deals with properties which are not liable to partition. The first placitum of the section defines what “self-acquisition” is the definition is based upon the text of Yagnavalkya that “Whatever is acquired by the copartners himself without detriment to the father’s estate as present from a friend or a gift at nuptials, does not appertain to the co-heirs.” What is argued is this, that as the father’s gift cannot be said to have been acquired by the son without detriment to the father’s estate, it cannot be regarded as self-acquisition of the son within the meaning of the definition given above and consequently cannot be exempted from partition. This argument seems to us to be untenable section 4 of the first chapter in Mitakshara enumerates various items of property which, according to the author, are exempt from partition and self-acquisition is only, one of them. Father’s gift’s constitute another item in the exemption list which is specifically mentioned in placitum 28 of the section. We agree with the view expressed in the latest edition of Mayne’s Hindu law that the father’s gift being itself an exception, the provision in pracitum 28 cannot be read as requiring that the gift must also be without detriment to the father’s estate, for it would be a palpable contradiction to say that there could be any gift by a father out of the estate without any detriment to the estate : vide Mayne’s Hindu Law, 11th Edition, paragraph 280, page 344. There is no contradiction really between placitum 1 and placitum 28 of the section. Both are separate and independent items of exempted properties, of which no partition can be made. Another argument is stressed in this connection which seems to have found favour with the learned Judges of the Patna High Court who decided the Full Bench case : vide - ‘AIR 1944 pat 298 (F)’ referred to above. It is said that the exception in regard to father’s gift as laid down in placitum 28 has reference only to partition between the donee and his brothers but so far as the male issue of the donee is concerned, it still remains partible. This argument, in our opinion, is not sound. It the provision relating to self-acquisition is applicable to all partitions. This argument, in our opinion, is not sound. It the provision relating to self-acquisition is applicable to all partitions. Whether between collaterals or between the father and his sons, there is no conceivable reason why placitum 26, which occurs in the same chapter and deals with the identical topic, should not be made applicable to all cases of partition and should be confined to collaterals alone. The reason for making this distinction is undoubtedly the theory of equal ownership between the father and the son in the ancestral property which we have discussed already and which in our opinion is not applicable to the father’s gifts at all. 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. As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its were form. Stress would certainly have to be laid on the substance of the disposition and not on its were form. The material question which the court would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent, gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other. It is in the light of these principles that we would proceed now to examine the facts of this case. The will of his father under which defendant 1 got the two items of Sch. B properties is Ex. P-1 and is dated 6-6-1912. The will is a simple document. It recites that the testator is aged 65 and his properties are all his own which he acquired from no nucleus of ancestral fund. He had three sons, the eldest of whom was defendant 1. In substance what the will provides is that after his death, the A Schedule properties would go to his eldest son, the B Sch. properties to his second son and the properties described in Schedule C shall be taken by the youngest. The sons are to enjoy the properties allotted to them with ‘absolute rights and with powers of alienation such as gift exchange, sale, etc. from son to grandson hereditarily. The testator, it seems, had already given certain properties to the wives of his two brothers and to his own wife also. They were to enjoy these properties during the terms of their natural lives and after their death, they would vest in one or the other of his sons, as indicated in the well. from son to grandson hereditarily. The testator, it seems, had already given certain properties to the wives of his two brothers and to his own wife also. They were to enjoy these properties during the terms of their natural lives and after their death, they would vest in one or the other of his sons, as indicated in the well. Then Schedule property was set apart for the marriage expenses of his third son and an unmarried daughter. Authority was given to his wife to sell this property to defray the marriage expenses with its sale proceeds. It seems to us on reading the document in the light of the surrounding circumstances that the dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst the heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu Law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers wives would not then came into the picture and there could be no question of his wife being authorised to sell a property to defray the marriage expenses of his unmarried son and daughter. The testator certainly wanted to make a distribution of his properties in a way different from what would take place in case of intestacy. But what is really material for our present purpose is his intention regarding the kind of interest which his sons were to take in the properties devised to them. Here the will is perfectly explicit and it expressly, vests the sons with absolute rights with full powers of alienation by way of sale, gift and exchange. There is no indication in the will that the properties bequeathed were to be held by the sons for their families or male issues and although the will mentions various other relations, no reference is made to sons’ sons at all. There is no indication in the will that the properties bequeathed were to be held by the sons for their families or male issues and although the will mentions various other relations, no reference is made to sons’ sons at all. This indicates that the testator desired that his sons should have full ownership in the properties bequeathed to them and he was content to leave entirely to his sons the care of their own families and children. That the testator did not want to confer upon the sons the same rights as they could have on intestacy is further made clear by the two subsequent revocation instruments executed by the testator. By the document Ex. P-2 dated 26.3.1914 he revoked that portion of his will which gave the Schedule C property to his youngest son. As this son had fallen into bad company and was disobedient to his father, he revoked the bequest in his favour and gave the same properties to his other two sons, with a direction that they would pay out of it certain maintenance alliance to their youngest brother or to his family if he got married. There was a second revocation instrument, namely, Ex. P-3 executed on 14.4.1914 by which the earlier revocation was cancelled and the properties intended to be given to the youngest son were taken away from the two brothers and given to his son-in-law and the legatee was directed to hand them over to the third son whenever he would feel confident that the latter had reformed himself property. In our opinion, on reading the will as a whole the conclusion becomes clear that the testator in-tended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons. In other words, he did not intend that the property should be taken by the sons an ancestral property. The result is that the appeal is allowed, the judgments and decrees of both the courts below are set aside and the plaintiff’s suit is dismissed. In other words, he did not intend that the property should be taken by the sons an ancestral property. The result is that the appeal is allowed, the judgments and decrees of both the courts below are set aside and the plaintiff’s suit is dismissed. Having regard to the fact that the question involved in this case is one of considerable importance upon which there was considerable difference of judicial opinion and that the plaintiff himself is a pauper, we direct that each party shall bear his own costs in all the courts.” 14.A Division Bench of Kerala High Court in Penukka and others v. Kelukkutty and others, AIR 1959 Kerala 212 has held that where a Mitakshara father makes a gift of his self acquired property to his son, the property cannot become ancestral property in the hands of the son simply by reason of the fact that the son got it from his father. Their Lordships have held as under: “Before we discuss these items, it is better to clear the ground by stating that the principle of law stated by the learned Judge regarding the gift by a Hindu father to his children, based on the decision of the Supreme Court reported in Arunachala Madaliar Vs. Muruganatha Mudaliar, 1953-2 Mad LJ 796 : (AIR 1953 SC 495). Their Lordships of the Supreme Court at P. 799 (of Mad LJ)L at P.498 of AIR) of the report referred to the controversy on this point in the various High Courts as follows: “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. This question has been answered in different ways by the different High Courts in India which has resulted in a considerable diversity of judicial opinion ..... The Madres High Court in Nagalingam v. Ramachandra ILR 24 Mad 429 has held that it is undoubtedly open to the father to determine whether the property which he has bequeathed, shall be ancestral or self acquired but unless he expresses his intention that it shall be self acquired, it should be held to be ancestral...... The Madres High Court in Nagalingam v. Ramachandra ILR 24 Mad 429 has held that it is undoubtedly open to the father to determine whether the property which he has bequeathed, shall be ancestral or self acquired but unless he expresses his intention that it shall be self acquired, it should be held to be ancestral...... This conflict of judicial opinion was brought to the Privy Council in Lal Ram Singh v. Deputy Commissioner of Partabgarh, 50 Ind App 265 (AIR 1923 PC 160) by the Judicial Committee left the question open, as it was not necessary to decide it in that case.” Their Lordships further observed on the same page: “In view of the settled law that a Mitakshara father has absolute 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, ranks ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest.” Then after discussing the various Hindu Law Texts bearing on the point, their Lordships observe at p. 801 (of Mad LJ): at p. 99 of AIR): “We hold, therefore, that there is no warrant for saying that according to the Mitakshara, an affectionate gift by the father to the son constitutes `ipso facto’ ancestral property in the hands of the donee.” “Again discussing the Text regarding `self-acquisition’ their Lordships observe: “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.” Their Lordships stated then that a Mithakashara father has complete powers of disposition over his self acquired property and therefore, the father is quite competent to provide expressly, when making a gift either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. Finally, their Lordships observe: “The material question which the court would have to decide in such cases is, whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent, gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a gift of his properties or to partition the same. As it is open to the father to make a gift or partition of his properties as he himself chooses, there is, strictly speaking, no presumption that he intended either the one or the other.” Therefore, from the rolling of the Supreme Court cited above, it is clear that the statement of the learned Judge based upon the Madras view that unless the father expresses the wish that the gift should be deemed to be self acquired, it will be an ancestral property in the hands of the son who receives the gift, is not sound.” 15.A Division Bench of Mysore High Court in Sidramappa Veerabhadrappa and another v. Babajappa Balappa and others, AIR 1962 Mysore 38 has held that there is no warrant for saying that according to the Mitakshara, an affectionate gift by the father to the son constitutes ‘ipso facto’ ancestral property in the hands of the donee. Their Lordships have held as under: “The Court below has come to the conclusion that the properties bequeathed by Chanveerappa under Exhibit 76 are the individual properties of the first defendant. There is nothing in Exhibit 76 to indicate that the bequest in question was made to the family of the first defendant. On the date of the bequest the first defendant had no children. His son Balappa was bron only in 1918. There is nothing in Exhibit 76 to indicate that the bequest in question was made to the family of the first defendant. On the date of the bequest the first defendant had no children. His son Balappa was bron only in 1918. In C.N. Arunachala Mudaliar v. Muruganatha Mudaliar, AIR 1953 SC 495 the Supreme Court has laid down that in cases there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. That decision lays down that in view of the settled law that a Mitakshara father has absolute right of disposition over his self acquired property to which no exception can be taken by his male descendants it is 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 son would acquire co-ordinate interest. It was also observed that 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. 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. Their Lordships repelled an opinion sometimes held in the past that when a bequest was made by a father or by a close relation of the donee the law raises a presumption that the bequest is for and on behalf of the family of the donee. Their Lordships repelled an opinion sometimes held in the past that when a bequest was made by a father or by a close relation of the donee the law raises a presumption that the bequest is for and on behalf of the family of the donee. They stated the law thus: “There is no warrant for saying that according to the Mitakshara, an affectionate gift by the father to the son constitutes `ipso facto’ ancestral property in the hands of the donee. In other words, 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 view of this decision there is no further room for controversy as regards the true character of the gift under scrutiny.” 16.The judgment cited by Mr. Chander Pal Sood, Advocate Valliammai Achi v. Nagappa Chettiar and another, AIR 1967 SC-1153 will not be applicable in the present facts and circumstances of the case. In the case supra their Lordships have come to a conclusion that the property was joint family property and pallaniappa’s father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. In this case the plaintiff has failed to prove that the property inherited by the defendants was ancestral property. It was for the plaintiff to prove that the property inherited by the defendants from their father was ancestral property. As noticed hereinabove, Sh. Shiv Lal has inherited this property from his father by way of will Ex. DW-6/A. 17.The learned Single Judge of this Court in Bhaga Ram v. parveen Kumar and others, Latest HLJ 2000(2) 673 has held that for determination as to whether the property is ancestral or self acquired, relationship between the original and present holder and also the mode of transmission is to be looked into. The learned Single Judge has further held that the property gifted or bequeathed by a father to his son cannot become ancestral property. 18.In view of the detailed discussion made hereinabove, it is held that the property which the defendants have received from their father Sh. Shiv Lal is neither ancestral nor coparcenary property. Since the property has been received by Sh. 18.In view of the detailed discussion made hereinabove, it is held that the property which the defendants have received from their father Sh. Shiv Lal is neither ancestral nor coparcenary property. Since the property has been received by Sh. Shiv Lal from his father. Sh. Ram Nath by way of will, the property is not coparcenary. Sh. Shiv Lal has rightly bequeathed his property by way of will Ex. DW-8/A and gift deed Ed. DW-8/B. Whether the property in question constitutes ancestral/coparcener property is a question of fact and both the courts below have given concurrent findings with regard to the nature of the property. 19.Consequently, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. M.R.B. ———————