MADANLAL PHULCHAND JAIN versus STATE OF MAHARASHTRA AND ORS.

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 as 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/Sth 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 afor((said 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 th(1 surplus had to be worked out without making any such deduction .. The HighCourt als0 rejected the theory of blending and hence this appeal.

p. 481, margin B

WhiJe 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 appell3,nt 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 power he hac; to dispose of his separate property by gift or will. That means that a 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'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, etc., cannot be said to be ancestral property and his son cannot claim a share 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 aicy share whatsoever.

pp. 481–482, margin F

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 JJSth 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 moveable 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 l/Sth 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 memb~rs 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 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 m?terial evidencing such merger or blending. Therefore, the submission based on the doctrine of merger cannot come to the rescue of the appellant.

pp. 482–483, margin C

In the result we see no merit in this appeal and dismiss the same with costs. N.V.K. Appeal dismissed.

p. 483, margin A