M.L. Bhat, J.
1. Respondent's suit for declaration that he was owner of the suit land as also the sale deed executed by one Rasila Ram in favour of the appellant was inoperative and ineffective as against the rights of the respondent is concurrently decreed by the Court below. This second appeal is filed by the defendant against the decrees passed by the Courts below against him.
2. Brief re'sume' relevant for the disposal of this second appeal is given as under : --
One Shama had two sons, Rasila and Kirpu. Rasila left behind him Shiv Ram, the respondent, Kirpu had one son Mansa Ram, who has died issueless. Rasila is said to have kept a keep at his place, namely Mst. Rajo. The appellant is claiming to be a relation of Mst. Rajo. Appellant's case was that Mst. Rajo had lived for 40 years with Rasila as his wife, therefore, under law she will be deemed to be legally wedded wife of Rasila. Respondent's case is that she was only a keep of Rasila.
After the death of Kirpu, brother of Rasila, his property has vested in Mansa Ram, his son. On Mansa's death it reverted back to Rasila as descendant of Mansa Ram's grandfather. The land sold by Rasila to the appellant comprises of his own land which he had inherited from his father as also the land which he inherited from Kirpu's son.
3. Courts below have held that the land in question was ancestral property in the hands of Rasila, therefore, he could not sell it, in any manner, without there being any legal necessity for making the sale. The sale deed is stated to have been obtained from Rasila by Balak Ram, through the instrumentality of Rajo, who is alleged to have been a keep of Rasila, and was without consideration. Both the courts below have found that the sale of the coparcenary property was made withoutany legal necessity, therefore, it would not bind the respondent, son of Rasila, who had challenged the sale in favour of the appellant.
4. In this second appeal, the only point that needs to be determined is whether the property inherited by Rasila from Kirpu and his son could be held to be coparcenary property so as to attract the bar of not being capable of sale, without legal necessity or was it a self-acquired property of Rasila. The courts below have found that the property inherited from Kirpu and Mansa Ram by Rasila was also coparcenary property in his hands, therefore, it could not be sold by him, without legal necessity. On this ground they have granted declaration in favour of the respondent and declared the sale deed to the extent of entire land as sham and inoperative.
5. The parties to the litigation are admittedly governed by Hindu law. Therefore, it is to be seen as to which type of property can be said to be coparcenary property under Hindu law. The property in the hands of a manager cannot always be deemed to a coparcenary property unless it is shown that said property had descended from common ancestors, father, grandfather or great-grand- father. If the property is inherited from any other source that will not be deemed to a coparcenary property. However, a distinction is to be drawn between joint family property and ancestral property, which in common parlance is known as coparcenary property and a separate property. The instance of joint family property, or what is known as coparcenary property which is inherited from common ancestorse, is that each and every coparcener had a joint interest and joint possession therein. The Supreme Court in State Bank of India v. Ghamandi Ram, reported as AIR 1969 SC 1330 has laid down main attribute to coparcenary and joint family property as under : --
i) It devolves by survivorship and not by succession. The proposition of succession is to be understood in the context of various provisions of Hindu Succession Act, wherever those are applicable;
ii) It is property in which the male issue of coparceners acquires an interest by birth.
The instances of separate property are that:--
i) It belongs exclusively to a Hindu;
ii) No other member of caparceners, not even his male issue acquires any interest in it by birth;
iii) A Hindu, even if he is living in joint family, may be possessed of separate property which he can sell or dispose of in any manner; and
iv) On the death of a Hindu, it passes to his heirs by succession and not by survivorship.
6. Then there is another concept known only to Hindu Law, which is called 'Doctrine of blending'. It postulates that any property which was originally separate or self-acquired property of a member of joint family or of a coparcener may become joint family property if it has been voluntarily thrown by such member into common stock with the intention of abandoning of separate claims upon it. A clear intention to waive of separate right by a member for such property is required to be established. However, the only exception to this rule is the property held by a Hindu female as a limited owner which cannot become joint family property or coparcenary property by the operation of 'doctrine of blending'.
7. Joint family property can be managed by a karta who has same powers which can be exercised by a manager. He is to look after the property with due deligence and care and is not permitted to alienate the property at his own will. He may do so only if there is legal necessity, which necessity must be of a coparcenary family and not his personal:
8. Aforesaid are illustrations to point out briefly distinction between coparcenary property and self-acquired property.
9. A Hindu may inherit property from any other source. That property will be deemed to be his self-acquired property, he being a member of joint Hindu family notwithstanding. Such property can become joint only when the owner thereof throws it into common pool and waives of his personal right in it. But after the death of a Hindu if it is inherited by his collaterals, a brother or brother's sons, it will become a self-acquiredproperty in the hands of such Hindus who inherit it. The question of throwing such property into common pool would not arise because it is acquired on account of death of a Hindu. The deceased cannot be said to have after his death thrown his property by doctrine of blending into joint family property so as to make it coparcenary property. Such property for all intents and purposes would be deemed to be self-acquired property of a collateral and not coparcenary property, over which his sons, grandsons or great-grand-sons, may not have any right by the incident of birth.
10. Applying these principles to the facts of this case the property inherited by Rasila from his father will be ancestral property in his hands. Such property can be alienated by him only for legal necessity and in this property respondent has a right by birth.
11. So far as the property which haddevolved on Rasila from Kirpu's branch, itwill be deemed to be his self-acquired propertyas he has inherited in on account of death ofMans a Ram. Kirpu had inherited his father'sproperty which is evidenced by mutation also.After his death that property has fallen to theshare of his only son Mansa Ram. Since MansaRam died issueless, it devolved on his father'sbrother, Rasifa under the ordinary rule ofinheritance. Therefore, such property will beself-acquired property in the hands of Rasilaand will not be coparcenary property or jointfamily property.
12. So on the death of Mansa Ram son of Kirpu, Rasila was in possession of properties which had distinct attributes. He possessed coparcenary property which he inherited from his father and he also acquired self-acquired property which he got from Mansa Ram, on account of latter's death.
13. The restriction imposed on Rasila to alienate the property for legal necessity only will be confined to coparcenary property and not with regard to the property which is self-acquired Therefore, Rasila could not alienate his property which he got from his father, without there being any legal necessity. This restriction could not be attracted to the alienation which Rasila made in respect of the property which he got from Mansa Ram, his brother's son. Therefore, as regards self-acquired property no restriction could be imposed on the rights of Rasila to alienate it because respondent had no right in that property by birth. It would devolve on respondent by succession and not -by survivorship. That is the distinction which though fine and nice cannot be lost sight of while deciding this appeal.
14. I have proceeded to decide this appeal on the assumption that the findings of the two courts below are correct on facts. Two courts below have found that Rasila had inherited Mansa Ram's property also but they had erroneously treated that property to be coparcenary property of Rasila. The findings in this respect arrived at by the Courts below, therefore, suffer from legal infirmity which can be corrected in this second appeal, which is concluded by the findings of facts. On facts I do not disturb the findings of the courts below but in so far as application of law is concerned the error committed by the court below can be corrected in second appeal.
15. The property which Rasila got from Mansa Ram cannot be said to have been thrown in joint property by doctrine of blending of the two properties nor had he ever waived his own right in respect of the said property. Said property by inheritance had gone to Rasila. Therefore, the question of waiver of Mansa Ram's right in the said property would not arise.
16. That being so, the property inherited by Rasila from Mansa Ram was self-acquired property in the hands of Rasila and it was not a coparcenary property. He had complete power of disposition of that property even without legal necessity.
17. Viewed thus, the decrees of the Courts below need to be modified to the extent that respondent was entitled to a declaration only to the extent of half of the suit property and not as regards entire suit property. Half of : the suit property was inherited by Rasila from Mansa Ram and that was his self-acquired property, which he could alienate without legal necessity. To the extent of half, the sale deed executed by Rasila in favour of the appellant cannot be treated as inoperative or ineffective. To that extent the sale deed is to be treated as valid.
18. For the reasons stated above, I allow this second appeal partially and direct that the suit of the respondent in respect of half of the property mentioned in the sale deed executed by Rasila in favour of the appellant, dt. 7-4-1967, shall stand dismissed and in respect of the remaining half only the sale deed is held to be invalid. There will be no order as to costs. Let a decree sheet be prepared in accordance with this judgment.