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1926 (11) TMI 3

tiff and the 1st defendant is an attaching creditor who obtained a decree against the 2nd defendant and attached the 2nd defendant's interest in the house and ground now in dispute, alleging that the property is the joint family property of the plaintiff and the 2nd defendant and that the 2nd defendant is entitled to a half share therein. The plaintiff's case is that the property is his self-acquisition and that the 2nd defendant has no interest. He filed a claim which was disallowed and hence the suit out of which this appeal arises. 2. The plaintiff adopted the 2nd defendant in the year 1914 when he was about 10 years old. The finding of the Subordinate Judge which is amply supported by the evidence is that the only property which the plaintiff and his brothers got from their father was a thatched house and that all the other properties to which the plaintiff 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 .....

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er contributed anything, a claim to a half share. The 2nd defendant far from earning anything got into bad ways And incurred debts. 7. The only grounds on which the 2nd defendant can acquire any interest in the house are (1) that the plaintiff though he built the house with his own funds made it joint family property because he built it on the ancestral site and so mixed up his self-acquisition with the joint family property by building a house on the site and (2) he intended it to become joint family property to enure for the benefit of co-parceners who may come into existence in future. 8. As regards the question of intention there is no evidence that the plaintiff by any act or declaration evidenced an intention of treating the properly as joint family property. A person who by his own exertions makes considerable acquisitions presumably wants to keep his 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 .....

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ule on partition is to allot the building and site to the person who built the superstructure and taking into consideration the value of the site to give the share of its value or equivalent joint property to the other co-parcener. I can find no decisions which compel me to hold that the co-parcener claiming a share is entitled under such circumstances to the value of the building also or to require its demolition. 11. In Vithoba Bava v. Haliva Bara 6 B.H.C.R.A.C.J. 54 it was held that where a member of an undivided family built at his own expense a house on ground belonging to the joint family the other co-parceners were only entitled to a share equal to the value of his share in the site. Sir Richard Couch observed: "According to the Hindu Law if one builds a house on ancestral land with separate funds of his own, the other members of the 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 .....

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Chandra Banerjee 6 Ind Cas 345 : 12 CRI.L.J. 25 ;15 C.W.N. 375. I am of opinion that the Only right of the 2nd defendant is to get a half share in the land and that the 1st defendant an attaching creditor will only be entitled to attach and sell the right, title and interest of the 2nd defendant in the land on which the superstructure stands. The decree of the lower Court will be modified by declaring that plaintiff is solely entitled to the superstructure and to a half of the land on which it is built that the 2nd defendant is entitled to a half share of the land only and that the 1st defendant is only entitled to attach and sell the right, title and interest of the 2nd defendant or his share of the land. As the appellant though he has failed as regards the exclusive claim to the land has succeeded as to the superstructure we direct that 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 bui .....

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is it expressed. A man's intention can be discovered only from his words or from his acts and conduct. When his intention in regard to his separate property is not expressed in words, we must seek it in his acts and conduct, in the way in which he has dealt with the property or has allowed others to deal with it. It is in this way that acts of "mingling" "blending" and "throwing into the common stock" have assumed so much importance in case of this sort as indications of the owner's intention. But it is the intention which we must seek in every case, the acts and conduct being no more than evidence of the intention The fact that the manager of a joint family, who has his own separate property, keeps money which is the income of the joint family property and money which is the income of his separate properly in the same box or the same money bag and cannot say of 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 .....

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mere building of the house on joint family land is such a physical mingling of it with the land that the characteristics of the land must attach to it. But the owning of a house by one man and of the land on which it stands by another is a matter of such ordinary occurrence that we cannot ignore it when trying to ascertain the intention of the builder in such a case. In Vithoba Bava v. Hariba Bava 6 B.H.C.R.A.C.J. 54 the principle that a member of a joint family building a house with his own funds on joint family land may retain the house as his separate property was recognised and was the basis of the decision. No case to the contrary has been quoted before us. The fact that a house is built by one member of a joint family on joint family land cannot, therefore, be regarded as sufficient by itself to show that he intended to waive his right to the house as his separate property if he built it with 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 int .....

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