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PETITIONER: MADANLAL PHULCHAND JAIN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT09/04/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SAHAI, R.M. (J)

CITATION:  1992 AIR 1254            1992 SCR  (2) 479  1992 SCC  (2) 717        JT 1992 (2)   530  1992 SCALE  (1)799

ACT:      Maharashtra Agricultural Land (Ceiling on Holding) Act, 1961      Section  45(2)-Hindu-Inheriting land as  nephew-Natural father  having  become uncle in  adoption-Such  land-Whether separate or ancestral-Computation of surplus land.      Hindu Law      Joint  family-Blending of separate  property-Proof  of- Necessity of evidence for.

HEADNOTE:      The  appellant was taken in adoption in the  family  of his   uncle.   On  adoption,  he  got  about  28  acres   of agricultural  land  from  the  adoptive  family.   He   also inherited land admeasuring 19 acres and 19-1/2 gunthas  from his natural father, who died leaving behind no other heir.      The Commissioner, exercising power under Section  45(2) of  the Maharashtra Agricultural Land (Ceiling  on  Holding) Act, 1961, came to the conclusion that the land inherited by the  appellant  was  a separate property and  could  not  be characterised  as  ancestral  property.   The  Commissioner, further  took the view that since the land inherited by  the appellant could not be described an ancestral property,  the appellant’s   major  son’s  share  could  not  be   deducted therefrom,  and  hence  and surplus had  to  be  worked  out without making any such deduction.      These views were confirmed by the High Court in a  Writ Petition brought under Article 227 of the Constitution.  The contention  that  the inherited property  blended  with  the ancestral  property and hence it had acquired the  character of an ancestral property was rejected.      Aggrieved,  the appellant appealed to this Court  which granted  special  leave  confining it  to  the  question  of blending.      Dismissing the appeal, this Court,                                                        480      HELD  :1.  A  Hindu  can  have  interest  in  ancestral property  as well as acquire his separate  or  self-acquired property.  If he acquires by inheritance separate property a birth of a son or adoption of a son will not deprive him  of the power he has to dispose of his separate property by gift

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or will. [481H]      2.  Excluding  the property inherited from  a  maternal grandfather the only property which can be characterised  as ancestral  property  is the property inherited by  a  person from  his  father,  father’s father,  or  father’s  father’s father.  That means property inherited by a person from  any other  relation becomes his separate property and  his  male issue does not take any interest therein by birth. [482B]       In the instant case, the property which the  appellant inherited  from his uncle (nature father) was  his  separate property  in which his major son could not claim  any  share whatsoever. [482D]      3.  Under  the Mitakshara Law each son upon  his  birth takes  an interest equal to that of his father in  ancestral property,  both  movable  and  immovable.   This  right   is independent of his father. [482E]      In  the  instant  case, if the  appellant  is  able  to establish  blending of his separate property with  ancestral property, the plea of deduction of 1/5th share of his son on notional  partition may perhaps be well founded.   It  must, therefore  be  shown  that  the  appellant  had  thrown  his separate property in the common stock with the intention  of abondoning his separate claim thereon. [482F]      4.  Evidence must be led to show a clear  intention  to give  up his separate right and allow the separate  property to be treated as an ancestral property and be enjoyed by the coparceners.   Such  an  intention  has  to  be  proved   by tendering  evidence,  since no such inference can  be  drawn even from the fact that he had permitted his family  members to  us it along with him nor can it be proved from the  mere fact  that the income of the separate property was used  for supporting  his son or from the fact that he had  failed  to maintain  separate  accounts of the yield of  both  sets  of properties. [482F-H]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2627 of 1982.                                                        481      From  the  Judgment and Order dated  14.8.1980  of  the Bombay  High Court in Special Civil Application No. 9074  of 1977.      V.N. Ganpule and V.B. Joshi for the Appellant.      S.M. Jadhav and A.S. Bhasme for the Respondents.      The Judgment of the Court was delivered by      AHMADI,  J. The appellant was taken in adoption in  the family  of his uncle.  On adoption he got agricultural  land admeasuring  about 28 acres from the adoptive  family.   His natural father died leaving behind no other heir.  Thereupon land  admeasuring 19 acres and 19-1/2 gunthas was  inherited by the appellant as nephew (since his natural father  became his  uncle  on  his  adoption).   The  Commissioner,  Bombay Division,  in exercise of power under section 45(2)  of  the Maharasthra  Agricultural Lands (Ceiling on  Holdings)  Act, 1961  came to the conclusion that the land inherited by  the appellant   was  a  separate  property  and  could  not   be characterised  an  ancestral  property.  This  view  of  the Commissioner  came  to be confirmed by the High Court  in  a Writ petition brought under Article 227 of the Constitution. The  High  Court  also  rejected  the  contention  that  the inherited  property got blended with the ancestral  property and  hence  it had acquired the character  of  an  ancestral property.   The  appellant’s contention was that  the  1/5th

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share  of his major son in the ancestral property had to  be determined  on  a notional partition and deducted  from  his holding  for  the purpose of determining  the  surplus  area under  the aforesaid Act.  The Commissioner as well  as  the High  Court took the view that since the land  inherited  by the appellant could not be described as ancestral  property, the  appellant’s  major son’s share could  not  be  deducted therefrom and hence the surplus had to be worked out without making any such deduction.  The High Court also rejected the theory of blending and hence this appeal.      While granting special leave this Court ordered that it shall  be  confined to the question of blending.   We  have, therefore,  to consider the limited question  whether  there was blending and the land inherited by the appellant  formed part  of the ancestral property.  It is well settled that  a Hindu  can  have interest in ancestral property as  well  as acquire  his  separate  or self-acquired  property.   If  he acquires  by inheritance separate property a birth of a  son or adoption of a son will not deprive him of the                                                   482 power he has to dispose of his separate property by gift  or will.   That  means  that Hindu can  own  separate  property besides  having a share in ancestral  property.   Therefore, when  the  appellant inherited the land left  by  his  uncle (natural  father)  that property came to him as  a  separate property  and  he had an absolute and  unfettered  right  to dispose  of  that property in the manner he  liked.   It  is equally  well settled that excluding the property  inherited from  a maternal grandfather the only property which can  be characterised   as  ancestral  property  is   the   property inherited  by a person from his father, father’s father,  or father’s father.  That means property inherited by a  person from  any other relation becomes his separate  property  and his male issue does not take any interest therein by  birth. Thus property inherited by a person from collaterals such as a  brother,  uncle,  ect., cannot be said  to  be  ancestral property  and his son cannot claim a shre therein as  if  it were ancestral property.  There can, therefore, be no  doubt that  the  property which the appellant inherited  from  his uncle  (natural father) was his separate property  in  which his major son could not claim any share whatsoever.      But  the appellant contends that his separate  property got blended with his ancestral property and thereby acquired the  character of ancestral property in which his major  son became entitled to 1/5th share on notional partition.  It is true  that under the Mitakshara Law each son upon his  birth takes  an interest equal to that of his father in  ancestral property,  both  movable  and  immoveable.   This  right  is independent  of his father.  Therefore, if the appellant  is able  to  establish blending of his separate  property  with ancestral property, the plea of deduction of 1/5th share  of his  son on notional partition may perhaps be well  founded. It must, therefore, be shown that he had thrown his separate property  into  the  common  stock  with  the  intention  of abandoning his separate claim theron.  Evidence must be  led to  show  a  clear  intention on his part  to  give  up  his separate  rights  and  allow the  separate  property  to  be treated  as  an  ancestral property and be  enjoyed  by  the coparceners.   Such  an  intention  has  to  be  proved   by tendering  evidence,  since no such inference can  be  drawn even from the fact that he had permitted his family  members to use it along with him nor can it be proved from the  mere fact  that the income of the separate property was used  for supporting  his son or from the fact that he had  failed  to maintain  separate  accounts of the yield of  both  sets  of

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properties.   In the present case no such evidence had  been adduced  before  the  authorities below.   Counsel  for  the appellant was unable to invite our attention to the factual                                                   483 material evidencing such merger or blending.  Therefore, the submission  based on the doctrine of merger cannot  come  to the rescue of the appellant.      In  the   result  we see no merit in  this  appeal  and dismiss the same with costs. N.V.K.                                      Appeal dismissed.                                                   484