TMI Blog1926 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff is now entitled are his self-acquisitions. As this finding is not disputed by the respondent except to the extent that the house now attached, though built out of self-acquisitions, has become joint family property owing to its having been built on the ancestral house site it is not necessary to refer to the evidence in detail. 3. It is contended by the appellant that the learned Subordinate Judge was wrong in finding that any portion of the house stands on the ancestral house site on which the thatched house stood. He states that the thatched house was on a plot adjacent to the land on which the house in question was built, that it was only about 10 or 12 feet broad and is now a pathway, the old thatched house, land shed having fallen down several years ago. His case is that he got the site on which the house is built on partition from his brother who purchased the site. 4. We do not think the appellant has made out his case. Plaintiff admits that the disputes which led to the partition between himself and his brother were in 1891, that there was an arbitration and a muri evidencing the partition. This muri is not produced nor is there any document showing that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is acquisitions to himself. It would be a violent presumption to draw that a person who builds with his acquisitions a house worth ₹ 30,000 cr ₹ 40,000 on a site worth a few rupees intended to impress on it the character of joint family properties especially when at the time of building he had no son natural or adopted or any co-parceners. As observed by Mayne the question whether a person has by his acts made property which was originally his self-acquisition joint property is entirely one of fact to be decided in the light of all the circumstances of the case; but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection. Mayne's Hindu Law, para. 278, page 360. 9. The fact that after adoption the 2nd defendant lived with his adoptive father in the house would not affect the question, as amongst Hindus an adult son usually lives with his father even when there is no joint family property and it cannot be said that a father whose property is self-acquired intends to make it joint family property simply because he does not turn out his son as soon as he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he family have only a claim on him for other similar land equal to their respective shares (2 Macnaghten's Principles of Hindu Law, page 152). The plaintiff in this case must, therefore, be compensated for his share of the ground used for building the house. Reference is made to Macnaghten's Hindu Law, Vol, II, page 134, where we find the following reply given by the Pandit to the question as to the son's rights when a father with his own funds purchased a zamindari and built a house on land purchased: If the grandfather of the respondent purchased the zamindari singly, with the produce of his separate industry, and without any aid from funds ancestral or paternal, such zamindari is property exclusively his, in which no other can have a right to participate. And if he obtained a burmotur sannad for land in his own name (which appears he did) no one else can participate on it. And supposing him to have built a brick house on ancestral land, with separate funds of his own, even in that case such house should not be property in which shares might be claimed by any co-parceners he might have. Co-parceners in the land would only have a claim on him for other similar land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1st respondent do pay appellant ₹ 250 for his costs in appeal and ₹ 250 as costs in the lower Court. Second respondent will bear his own costs throughout. H.D.C. Reilly, J. 14. I agree that the site on which the plaintiff built the house in question was ancestral property in his hands. It is undisputed that, when the plaintiff built the house, he was sole owner of the land; it had come to him in partition, and at that time he had no son. It is also undisputed that he built the house with self-acquired funds. Mr. Varadachariar contends that by the very act of building the house on ancestral land the plaintiff made the house ancestral property; the house and the funds which it represented were mingled or blended with the land on which the house stood and were, therefore, impressed with the character of the land as ancestral property. That contention appears to me to involve some misconception. A Hindu's property is either ancestral property (which, if he is a member of a joint family, is joint family property) or his own separate property, which is often described generally as self-acquired property. Strictly nothing which is not in relation to its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any coin to which income it belongs indicates nothing if he keeps separate accounts of the two incomes. Nor would paying both incomes as received into the same account in a Bank by itself alter the position so long as he maintained separate accounts of them. But, if no separate accounts of receipts and expenditure under the two heads were maintained, or if the general expenditure for the support of the whole joint family were provided from the box or money bag or Bank account on a scale which exhausted the whole of both incomes or much exceeded the income from the joint family property for a considerable time, an inference or intention to surrender the separate right to the joint family might properly be drawn in many cases. We cannot, however, appreciate the significance of an act until we know the circumstances in which it is done. Similar acts in different circumstances may have very different significance. If the case is one of sonless man, who has ancestral property in which for the time being he alone is interested, either because he is the last surviving member of his joint family or because, like the plaintiff in this case, the ancestral property has come to him on partit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th his separate funds. It is still more difficult to infer such an intention when the house is built with his separate funds on his ancestral land by a man who has at the time no co-parcener. In the absence of other evidence we should have to go out of our way to read into his action an intention to waive his separate property in the house for the benefit of a son whom he might beget or adopt at some future date. In the present case it was not until many years after he built the house in question that the plaintiff adopted defendant No. 2. It is pointed out that, after the adoption defendant No. 2 lived in the house with the plaintiff. But that indicates nothing as to the plaintiff's intention in regard to the house. If the house had been built not only with the plaintiff's separate funds but also on land which was his separate property, it would still have been natural for defendant No. 2 to live in the house with the plaintiff after the adoption. There appears to be no evidence that before the adoption or after the adoption or at the time of the adoption the plaintiff ever did anything to indicate an intention to waive his right to the house as his separate property. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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