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Mangal Singh Vs. Harkesh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberLetters Patent Appeal No. 50 of 1944
Judge
Reported inAIR1958All42
ActsHindu Law; Evidence Act, 1872 - Sections 100 to 104 and 114; Transfer of Property Act, 1882 - Sections 45
AppellantMangal Singh
RespondentHarkesh and anr.
Appellant AdvocateC.B. Agarwala, ;B. Dayal and ;Satish Chandra, Advs.
Respondent AdvocateL.M. Roy and ;S.B.L. Gaur, Advs.
DispositionAppeal dismissed
Excerpt:
family - property - section 45 of transfer of property act, 1882 - when two or more persons purchase property out of their joint and seperate funds - where the property has been acquired by only single person - held, there is no question of apportioning the property between two or more persons. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state.....srivastava, j.1. the plaintiffs -- harkesh singh and mukhtar singh are the two sons of risal singh. risal singh had a sister, and mangal singh, the present defendant-appellant, is the son of that sister. on the 10th of september 1930, risal singh executed a deed of gift in respect of the properties in dispute in favour of his sister's son, defendant-appellant mangal singh. the plaintiffs sued to avoid this deed of gift on the ground that they formed a joint hindu family with their father, risal singh, and alleged that as the gifted property was their joint family property, risal singh had no right to give it away to the defendant.they, therefore, claimed a declaration that the deed of gift was null and void and claimed possession over the properties. along with the donee mangal singh,.....
Judgment:

Srivastava, J.

1. The plaintiffs -- Harkesh Singh and Mukhtar Singh are the two sons of Risal Singh. Risal Singh had a sister, and Mangal Singh, the present defendant-appellant, is the son of that sister. On the 10th of September 1930, Risal Singh executed a deed of gift in respect of the properties in dispute in favour of his sister's son, defendant-appellant Mangal Singh. The plaintiffs sued to avoid this deed of gift on the ground that they formed a joint Hindu family with their father, Risal Singh, and alleged that as the gifted property was their joint family property, Risal Singh had no right to give it away to the defendant.

They, therefore, claimed a declaration that the deed of gift was null and void and claimed possession over the properties. Along with the donee Mangal Singh, Risal Singh was also joined in the suit as proforma defendant. Only Mangal Singh contested the suit. He did not dispute the fact that Risal Singh and the plaintiffs formed a joint Hindu family but tried to support the gift mainly on the ground that the gifted properties were self-acquired properties of Risal Singh and not the joint family properties of his family.

The plaintiffs, he contended were, therefore, not entitled to challenge the gift or to recover the properties. He pleaded in the alternative that the ostensible gift in his favour was really a sale deed. The transfer had been made in the garb of a gift only to avoid pre-emption. He said that the sale being justified by legal necessity was binding on the plaintiffs even if the properties sold were held to be joint family properties.

2. The trial Court held that the properties were joint family properties and that the transfer in favour of the defendants was really a gift and not a sale. It therelore decreed the suit in respect of seven out of eight items of properties. It dismissed the suit in respect of the remaining one item on the ground that that item was no longer held by the defendant, it having been sold to satisfy a prior encumbrance.

3. The defendant, Mangal Singh, went up in appeal and the learned Civil Judge reversed the finding of the trial Court that the properties in dispute were the joint family properties of the plaintiffs and their father. He took the view that the properties which Risal Singh had gifted were really his self-acquired properties and the plaintiffs could not on that account object to the gift. Apparently, the plea that the transfer in favour of Mangal Singh was really a sale and not a gift was not reiterated before the learned Civil Judge. So he did not go into that question. He allowed the appeal and dismissed the suit.

4. The plaintiffs then came up in second appeal which was heard by Malik, J., (as he then was). He disagreed with the Civil Judge and was of the opinion that 'on the facts admitted or proved it must be held that the property was the joint family property and Risal Singh had no right to make a gift for the same in favour of Mangal Singh.' He, therefore, allowed the appeal and restored the decree of the trial Court. He however granted permission for a Letters Patent Appeal and the present appeal is the result.

5. The main question which arises for decision is whether the properties which Risal Singh gifted to Mangal Singh on the 10th of September 1930, were the joint family properties of his family or were his self-acquired properties.

6. Risal Singh and his sons admittedly formed a joint Hindu family. It is further admitted that family possessed two pieces of ancestral properties, 3 bighas 4 biswas poknta (equal to 10 bighas kham) of zamindari property in village Khurrampur, and 7 bighas 2 biswas of occupancy holding. Two other areas of land, one of 27 bighas and another of 91 bighas 16 biswas appear to have been entered in the papers in the name of Risal Singh. No evidence was however led by the parties as to how and when these two areas were acquired by Risal Singh. It is however common ground that the entire source of income of Risal Singh or his sons were from agriculture and from the ancestral agricultural properties possessed by the family.

7. The properties which Risal Singh gifted to Mangal Singh in 1930 were acquired under two sale deeds. The first was executed on the 7th of November 1923, and the other on the 23rd of March 1924. The consideration for the first sale deed was a sum of Rs. 15,000. No part of this amount was paid in cash to the vendor. The entire sale consideration was left in the hands of Risal Singh for payment to a creditorof the vendor whose name also was Mangal Singh.

This Mangal Singli must be distinguished from Mangal Singh, the defendant-appellant, in whose favour Risal Singh subsequently gifted the property. Out of this sum of Rs. 15,000 left with Risal Singh for payment to Mangal Singh, the creditor, the former paid only Rs. 4,800 and never paid the balance. Risal Singh did not have with him even this Rs. 4,800 in cash. He had to raise this amount by way of loan. He borrowed Rs. 3,000 out of this amount from one Khazan Singh by executing a mortgage deed in his favour on the 8th of November 1923.

As this mortgage deed has not been filed we do not know which properties were mortgaged in it. The balance of Rs. 1,800 out of this sum of Rs. 4,800 was raised by Risal Singh on the basis of a mortgage for Rs. 7,000 which he executed on the 9th of May 1924, in favour of Mangal Singh, his sister's son, the present appellant. Mangal Singh did not pay to Risal Singh the entire consideration of this mortgage bond. He paid only Rs. 1,900 out of Rs. 7,000 in cash to Risal Singh and out of this Sum of Rs. 1,900 Risal Singh paid Rs. 1,800 to Mangal Singh, the creditor of the vendor of the sale deed of the 7th November 1923.

Two properties were mortgaged by Risal Singh for raising this amount of Rs. 1,900; one was the 3 bighas 4 biswas area of ancestral zamindari property which the family possessed and the other was the area of 91 bighas 16 biswas about which there is no evidence as to how it had been acquired. Thus, out of the sum of Rs. 4,800 which was actually paid as consideration of the first sale deed, a sum of Rs. 1,800 was admittedly obtained by mortgaging a part of the ancestral property. The balance was also raised by mortgage but it is not clear from the record whether the ancestral property was included in that mortgage too or not.

8. Risal Singh had borrowed a sum of Rs. 4,000 from one Chandu Lal on the 19th of June 1922, by mortgaging to him 3 bighas and 4 biswas of the ancestral property along with the other piece of land having an area of 27 bighas which stood in his own name. Out of this SUM of Rs. 4,000, Risal Singh advanced Rs. 2,500 as loan to one Chaudhry Raj Singh. Two other persons also joined in advancing this loan and contributed Rs. 2,500 each. For this sum of Rs. 7,500 borrowed by Chaudhry Raj Singh from Risal Singh and the two other persons, Chaudhry Raj Singh executed a mortgage bond in respect of his property on the 20th of June 1922,

He died leaving a widow and she being unable to pay of the mortgage debt sold the property to Risal Singh on the 23rd of March 1924, for a consideration of Rs. 9,000. This sale deed is the second sale deed by which the property in dispute was acquired by Risal Singh. Risal Singh did not pay a single pie in cash as consideration of this sale deed. Out of its consideration of Rs. 9,000 a sum of Rs. 8,075 was credited towards the mortgage bond of the 20th of June 1922, and the balance of Rs. 925 was left for payment to another creditor.

The two other persons who had joined in advancing the consideration of the mortgage bond of the 20th June 1922, were also entitled to their proportionate shares out of the sum of Es. 8,075 which was credited towards the bond, but the record does not show whether Risal Singh paid their shares to them or not. It is also not. known whether he paid the sum of Rs. 925 left with him to the other creditor for whom it was left.

Subsequently Chandu Lal, the mortgagee, from whom Risal Singh had borrowed the sum of Rs. 4,000 on the 19th June 1922, obtained a decree for sale on the basis of his mortgage and in execution of that decree the 3 bighas 4 biswas zamindari property which was the ancestral property of the family was sold away. The only amount which was thus really paid by Risal Singh for the property purchased through the second sale deed was the sum of Rs. 2,500 which he had advanced to Chaudhry Raj Singh and which he had himself borrowed from Chandu Lal on the security of the ancestral property. For the satisfaction of that debt, the ancestral property has actually been sold away.

9. On the above facts which are either proved or admitted the learned counsel for the appellant has put forward three contentions before us. They are:

(1) The only nucleus of joint ancestral property which the family of Risal Singh possessed consisted of 3 bighas and 4 biswas of zamindary property and 7 bighas 2 biswas of occupancy holding. There is nothing to show that anything was left out of the income of this property alter meeting the family expenses. The yield of this nucleus was, therefore, in no way sufficient for enabling the acquisition of any other property. The two other properties having an area of 27 bighas and 91 bighas 16 biswas respectively could not in the circumstances be held to be joint family properties and must be considered to have been the self-acquired properties of Risal Singh.

(2) The 3 bighas 4 biswas of ancestral zamindari share was certainly utilised in connection with the acquisition of the properties in dispute. But it was in fact a very insignificant part of the property utilised for the purpose. In the first mortgage executed by Risal Singh in favour of Chandu Lal on the 19th of June 1922, besides this item of 3 bighas 4 biswas, another area of 27 bighas was also mortgaged. Out of this sum of Rs. 4,000 borrowed on the basis of the mortgage only Rs. 2,500 was paid by Risal Singh to Chaudhry Raj Singh.

The major portion of the property in dispute which was acquired by Risal Singh from the widow of Chaudhry Raj Singh had therefore no concern with the joint family or its properties. If Risal Singh Succeeded in obtaining this property without the payment of the major portion of the consideration of Rs. 15,000, the credit must go to his own cleverness and wit. This portion of the property in dispute must, therefore, be held to be the self-acquired property of Risal Singh and the learned single Judge was not justified in holding it to be the joint family property of Risal Singh and his sons.

The same consideration holds good in respect of the other item of property which Risal Singh purported to purchase for Rs. 9,000 but somehow succeeded in getting it for Rs. 4,800 only. Out of this amount o Rs. 4,800 also only a sum of Rs. 1,800 has been proved to have been raised on the security of the ancestral zamindari share. This part of the property, too should, therefore have been held to be the self-acquired property of Risal Singh.

(3) That in any case the principle of Section 45 of the Transfer of Property Act, applied and ii the properties in dispute were acquired partly out of the joint family assets and partly from the self-acquired fund or on account of his wit by Risal Singh, only the portion of the property proportionate to the contribution of the joint family estate could have been held to be joint family property. The rest of the property was bound to be held to be the self-acquired property of Risal Singh which he had a right to gift to any one he liked.

10. So far as the two items of 27 bighas and 92 bighas 16 biswas are concerned, there are no materials on the record to show when, for what consideration, and in what circumstances these properties were acquired. We do not even know whether they were acquired in on or two lots or bit by bit. Satisfactory evidence about the income from the ancestral property has also not been produced, and is not known whether it was possible to acquire these properties out of that income.

The only thing on which the plaintiff's rely is the fact that Risal Singh had no known source of separate income. This alone does not, in our opinion, appear to be sufficient for accepting the plaintiffs' contention in respect of the nature of these properties. In the absence of sufficient materials the question must necessarily be decided on the basis of presumptions, and so far as the presumptions are concerned the law appears to be in no doubt. In the case of Srinivas Krishnarao v. Narayan Devji : [1955]1SCR1 , quoting with approval the earlier dictum of the Privy Council in Appalaswami v. Suryanarayanamurti, AIR 1947 PC 189 (B). the law was stated thus:

'The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.'

11. It is thus clear that in the case of a joint family the mere existence of a nucleus isnot enough to raise a presumption that all the properties possessed by its various members are joint. The presumption arises only if the nucleus is substantial and is such that its yield could provide in whole or at any rate in considerable part the money necessary for acquiring the property in question.

12. In this case the only facts established being that the family was joint and that it had some nucleus of joint ancestral property, and it being not established that the yield of the nucleus was sufficient for acquiring these two items of 27 bighas and 91 bighas 16 biswas of properties, the plaintiffs cannot be held to have discharged the initial burden that lay upon them and the onus therefore never shifted to the shoulders of the defendant to prove affirmatively that these two items of properties were the self-acquired properties of Risal Singh. One must, therefore, accept the first contention of the learned counsel for the appellant and proceed on the assumption that these two items of properties were the self-acquired properties of Risal Singh.

13. It follows that Risal Singh utilised both the ancestral property of the family and his own self-acquired properties for acquiring the properties in dispute. The interesting question that thus arises is whether a property which has been acquired partly with the help of joint ancestral property and partly with the help of self-acquired fund should be considered to be joint family property or separate property.

14. It is obvious that this question cannot be decided on the basis of presumptions and the series of cases ending with the Supreme Court case of : [1955]1SCR1 , which deal with these presumptions cannot be of any help in its decision. The question of applying presumptions can arise only when the facts are not known or there are gaps in the evidence which have been filled in with their aid.

Here, we know the facts and the circumstances in which the properties in suit were acquired. We also know to what extent and in which manner the aid of ancestral and self-acquired properties were taken in their acquisition. Here, therefore, there is no question of applying any presumptions. What has to be considered in this case is the legal effect of the employment of the aid of ancestral property for the acquisition of the properties in dispute.

15. If on account of the use of the aid of ancestral property, whatever may be its extent the acquired property becomes joint family property, the question must be answered in favour of the respondents. If, on the other hand, the aid taken from the ancestral property has not affected the character of the acquired property, either on account of its small extent or on any other account, the acquired property remains the self-acquired property of the acquirer and the question must be answered in favour of the appellant.

16. The original texts on the point appear to be quite clear. Yajnavalkya, dealing with property not liable to partition laid down:

fir`nzO;kfojks/ksu ;nU;r~ Lo;eftZre~ A

eS=ekS}kfgda pSo nk;knkuka u rn~Hkosr~ AA

eknH;kxra nzO;a reH;q)jkq ;% A

nk;knsH;ks u rn~ nn;kn~ fo/k;k yCoeso p AA

Whatever else is acquired by the co-parcener himself, without detriment to the father's estate, as a present from a friend or a gift at nuptials, does not appertain to co-heirs. Nor shall he, who receives hereditary property which had been taken away, give it up to co-parceners; nor what has been gained by science (Yajnavalkya 2, verses 119-120).

17. The Mitakshara commentary on these verses is as follows:--

'Here, the phrase 'anything acquired by himself, without detriment to the father's estate', must be everywhere understood and it is thus connected with each member of the sentence; what is obtained from a friend, without detriment to the paternal estate; what is received in marriage, without waste of the patrimony; what is redeemed of the hereditary estate, without expenditure of ancestral property; what is gained by science, without use of the father's goods.

Consequently, what is obtained from a friend, as the return of an obligation conferred at the charge of the patrimony; what is received at a marriage concluded in the form termed 'Asura' or the like; what is recovered of the hereditary estate, by the expenditure of the father's goods; what is earned by science, acquired at the expense of the ancestral wealth; all that must be shared with the whole of the bretheren and with the father (Mitakshara I, IV, 6. Translation by Ghosh in his Principles of Hindu Law Commentaries, Vol. II, pp. 102 and 103).

(Dealing with the same matter the commentator in the Smriti Chandrika says:

'Whatever else is acquired by the co-parcener himself without detriment to the father's estate.' the meaning of this passage is made clear by Manu thus: 'What one (brother) may acquire by his labour without prejudice to the father's estate'.

In both texts, the use of the word 'father' signifies jointness. 'By labour' means by agriculture and the like requiring labour, 'Without prejudice' means without detriment. Vyas also says: 'Whatever property is acquired by one's own exertions without making use of the father's property shall not be given to the coheirs.' 'Without making use' meaning without using for the purpose of acquiring. The use of the word father here also signifies jointness. (Smriti Chandrika, Ch. VII, Verse II, Ghosh's translation in the Principles of Hindu Law Commentary, Vol. I, p. 360).

18. Kautiliya in his Arthshashtra lays down:

Lo;eftZrkfoHkkT;e~&vU;= firznzO;knqfRFkraH;%A

Acquisition with the expenditure of that property which is raised by means of paternalwealth is not partible (Ch. 62, p. 160, quoted by Jayaswal in his book 'Manu and Yajnavalkya', p. 268).

19. Manu lays down the same thing when he says:

vuqi?uu~ fir`nzO;a Jes.k ;nqikt;sr~ A

Lo;ehfgryC/ka p ukdkeks nkrqegZfr AA

What one member acquires by his exertions without using paternal wealth, with acquisition, of his own effort, he shall not share unless by his own will. (Manu, Ch. IX, Versa 208).

Jimuta Vahana in his Daya Bhag lays down:

'Manu and Vishnu declare indivisible what is gained without expenditure. What a brother has acquired by his labour, without using patrimony, he need not give up without his assent; for it was gained by his own exertion.

Since the patrimony is not used, there is no exertion on the side of others through the means of the common property; and, since it was obtained by the man's own labour, there is no corporal effort on the part of the rest. It is, therefore, the separate property of the acquirer alone for the phrase 'it was gained by his own exertion's' is stated as a reason.' (Ch. VI, Section I, Verses 3 and 4, Ghosh's Translation).'

20. Following these texts the modern writers on Hindu Law also consider it to be anessential feature of self-acquired property that it should not have been acquired with the aid of ancestral or joint family property. If it is so acquired it becomes joint family property. Thus Gupte in his 'Hindu Law in British India' dealing with joint family property at p. 70 includes in it:

'Property which is acquired

(1) with the aid or assistance of joint family property, or

(2) without the aid or assistance of joint family property provided it is acquired jointly by two or more co-parceners is joint family property.'

At p. 72 he observes:

'Property acquired with the aid of joint family property is necessarily joint family property whether

(1) it is a mere increment or accretion to it by way of income or profits; or

(2) it is acquired through the exertions of a single member or by joint labour of the whole family or of some of its members for the test of self-acquisition (separate property) is that it should be without detriment to the father's estate, that is, family property ..... Property acquired with the aid of joint family property is necessarily joint family property in all cases.'

Dealing with separate property at p. 96 he observes:

'Where the acquirer is a member of a joint family, one test of separate property is that it should not be ancestral. Another is that it should have been acquired without the aid of joint family property (ancestral or otherwise) or without detriment to the father's estate or patrimony as the texts put it.'

21. Mulla in his 'Principles of Hindu Law', 10th Edn., observes at p. 241 :

'Property jointly acquired by the members of a joint family with the aid of ancestral property is joint family property.'

22. At p. 257, dealing with separate property, he states:

'The income of a member of a joint family is his separate property if

(a) it has been obtained by his own exertions, and

(b) without any detriment to the father's estate, that is, without the aid of joint family property. But it is joint family property if it has been earned at the expense of the joint family property.'

23. Mayne, in his book on 'Hindu Law and Usage', 10th Edn., on p. 352, after referring to the texts some of which have been referred to above, proceeds to state:

'The test of self-acquisition is that it should be without detriment to the lather's estate. Accordingly all acquisitions made by co-parcener or co-parceners with the aid of the joint estate becomes joint family property.'

24. Ghosh, in his book on 'Hindu Law, 3rd Edn., Vol. I, at p. 404, says:

'Property purchased with the income of the proceeds of the sale of ancestral property or with the ancestral moveables or with money borrowed on the security of ancestral property as well as any accretion to or improvement to an ancestral property by the efforts of one member have all the incidents of ancestral property attached to it.'

25. Everyone thus appears to be agreed that before an acquisition can be claimed to be separate property it must be shown that it was made without any aid or assistance from the ancestral or family property. If the aid of the family property was employed for acquiring the property it must be shared by all the members of the family.

26. It is however contended that before the acquired property can be held to be joint family property, the aid of the ancestral or family property employed for its acquisition must be proved to have been substantial. If the assistance taken from the family fund is insignificant or negligible and the acquisition is the result mainly of the exertions ol the acquiring member or his separate assets the property should be considered to be his self-acquired property. The question is whether this contention is well founded. In our opinion it is not.

27. It will be noticed that in the original texts as well as in the various commentaries the expressions 'without detriment to the father's estate', 'without the use of father's goods', 'without prejudice to the ancestral property', 'by means of paternal wealth', 'without use of patrimony' and 'without the aid or assistance of ancestral or joint family property' are all unqualified by any word showing that the aid, use or detriment to the ancestral property was intended to be substantial before it could give to the acquired property the character of jointfamily property. In his 'Outlines of the History of the Hindu Law of Partition, Inheritance and Adoption' (Tagore's Law Lectures, 1883), Dr. Julius Jolly observes at p. 97:

'It follows from the very nature of the joint family system that every ordinary acquisition becomes joint, no matter how much or how little each individual member of the family may have contributed to its being made. Supposing one co-parcener to have exerted himself far more than the others in the cultivation of the family estate, still the oxen and the plough and the field would be joint and the produce of his labour must need be joint as well.'

28. In his 'Joint Property and Partition in British India' (Tagore Law Lectures, 1895-96), Sri Ram Charan Mitra states on p. 43:

'What would amount to an expenditure of patrimony so as to make the acquisition ancestral property was considered in Purtab Bahadur v. Tilukdhario 1807-1 Select Rep. 236 (C), and the principles laid down were that 'of several brothers living together in family partnership should one acquire property by means of funds common to the whole, the property so acquired belongs jointly to ail the brothers. Should, however, the means of acquisition, drawn from the joint fund, be of little consideration, and the personal exertions considerable, two Shares belong to the acquirer and one to each of the other brothers.'

The case referred to has not been available to us. But the learned author has referred to two other old cases laying down the same principles. They are Sree Narain Berah v. Gooro Pershad Berah, 6 Suth WR 219 (D) and Sheo Dyal Tewaree v. Judoonath Teware, 9 Suth WR 61 (E). The head-note of the former case is this:

'Where, with small aid from paternal property, separate and distinct properties are acquired probably through the exertions of particular members of a joint Hindu family, such members are entitled to a double share upon separation.'

In the other case it was held

'Whatever is acquired at the charge of the patrimony is subject to partition; but if the common stock is improved, an equal share is ordained. Where a co-parcener with the comparatively small detriment to the joint estate, acquires any separate property by his own labour or capital, the property is nevertheless to be considered joint, although the acquirer gets a double share.'

29. Both these cases as well as the case, 1807-1 Select Rep 236 (C), apparently arose in Bengal where the Daya Bhag is applicable. So far as the law relating to joint family is concerned, there is an important point of difference between the Mitakshara and the Daya Bhag schools.

Relying on a text of Bashisht (XVII-51) some of the writers of the Daya Bhag school are ofopinion that though the properties acquired with the aid of the joint family property or ancestral property are joint family property, at the time of partition, the acquirer should get a larger share. The text of Bashisht has been cited in the Mitakshara also, but as has been observed by Mayne (Hindu Law and Usage, 10th Edn., p. 359), the general principles laid by Vijnanesvara (Mitakshara, Ch. I, Section 6, Verses 1 to 6), seem to exclude the idea that any special and exclusive benefit can be secured to any co-heir by use of the family property.

30. He further quotes Mr. W. MacNaghten as stating that under the Banaras Law, no such benefit can be obtained, whatever may have been the personal exertions of any individual, but that the rule does exist in Bengal.

31. The exceptions about the double share of the acquirer being applicable to Bengal alone may for the moment be put out of consideration. The general rule laid down by these cases which is common to Mitakshara and Daya Bhag both, therefore, appears to be that whatever may be the extent of the contribution of the acquiring member himself out of his self-acquired fund if he takes the aid of any portion of joint or ancestral property in acquiring the property, however small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by him as a self-acquisition. In this view of the matter, the extent or his contribution or that of the family fund becomes immaterial. If any help is taken from the family property it is enough to make the self-acquired property the property of the family.

32. Applying the above principles to the present case, it will be found that the ancestral prdperty 3 bighas 4 biswas of zamindari share was admittedly used for acquiring the properties in dispute. Money was raised on its security for paying a part of the consideration of both the sale deeds of 1923 and 1924. The ancestral property has in fact been lost to the family on this account as it has been sold to satisfy the debt of Chandu Lal, a part of which formed the consideration of the first sale deed.

No importance can be attached to the fact that the self-acquired properties of Risal Singh were also mortgaged along with the ancestral property and that the area of the self-acquired property so mortgaged was larger than that of the ancestral share. Every inch of the ancestral property which was mortgaged was liable for the entire debt, and in fact the entire debt of Chandu Lal has been satisfied out of the ancestral property alone, no occasion having arisen for the sale of the other item which was mortgaged to him. The ancestral property was liable for every pie of the other debt borrowed from Mangal Singh.

33. It is urged that the principle of Section 45 of the Transfer of Property Act is applicable. As both ancestral and self-acquired property funds were used for acquiring the properties in dispute we must calculate the portion of the property which corresponds to the self-acquired portion of the fund and hold it to be self-acquired property. The remaining portion which will correspond to the ancestral portion of the fund may be held to be joint property.

Even a cursory perusal of Section 45 of the Transfer of Property Act will however show that it is not applicable at all. It is meant to apply to an entirely different Set oi facts. Resort can be had to its principle only if the property is transferred to two or more persons who pay the consideration out of their joint or separate funds. In that case the interest in the property which they can claim must be held in proportion to the shares of the consideration which they respectively advanced.

Here, the property has not been acquired by two or more persons. It has been acquired by a single person Risal Singh. There is, therefore, no question of apportioning the property between two persons according to their respective funds. It is, therefore, not possible to accept the contention that under the principle of Section 45 of the Transfer of Property Act any portion of the properties in dispute can be held to be the self-acquired property of Risal Singh.

Under the personal law to which he was subject at the time of acquiring the properties as he took the aid of the ancestral property in acquiring it, it was not open to him to treat them as self-acquired properties or to transfer them to any one without the consent of the other co-parceners of his family. On account of the aid utilised the entire properties assumed the character of joint family properties and became subject to the incidents of such properties.

34. The learned single Judge was thus justified in his view that the gift of the properties in dispute in favour of the defendant was void and that the plaintiffs could recover possession over them. The appeal was therefore rightly allowed and this appeal must fail as without force. It is dismissed with costs.


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