Hindu Law — Joint family property inherited by brothers from their father — Not a coparcenary Hindu joint property.

[Hardial Singh v. Nahar Singh, (Deceased through LR’s
& Ors.) AIR 2010 (NOC) 1087 (P&H)]

The plaintiff (present respondent) brother of Inder Singh
claimed that the disputed suit land to be joint Hindu coparcenary property of
the plaintiff and the defendant. The defendant was the Karta of joint Hindu
family. Suit land was inherited by the plaintiff and the defendant from their
father Pali alias Nika Singh who had inherited it from his father.

It was the case of the plaintiff that the defendant was not
competent to transfer the suit land without legal necessity. Therefore, the
transfer was said to be against the law. The Trial Court held that suit property
was joint Hindu family coparcenary property. The Appellate Court further held
that the half share of the property inherited by the plaintiff’s father Shri
Pali was ancestral.

The Court held that the property, even if joint between the
plaintiff and the defendant, could only be treated to be the joint property and
not Hindu joint coparcenary property.

The Court further observed that a father cannot change the
character of the joint family property into absolute property of his son by
merely marking a will and bequeathing it or part of it to the son as if it was
the self-acquired property of the father. In the hands of the son, the property
will be ancestral property and the natural or adopted son of that son will take
interest in it and be entitled to it by survivorship, as joint family property.
However, an affectionate gift of his self-acquired property by a father is not
ipso facto ancestral property in the hands of the son.

Property inherited by a Hindu male from his father, father’s
father, or father’s father’s father, is ancestral as regards his male issue,
even though it was inherited by him after the death of a life-tenant. Thus, if a
Hindu settles the income of his property on his wife for her life, and the
property after her death passes to his son as his heir, it is ancestral property
in the hands of the son as regards the male issue of such son.

Thus, when the property is held by brothers, it could be said
to be only joint property in their hands, but not a coparcenary Hindu joint
property in which the plaintiff could claim interest by birth qua the share of
the defendant.