Property inherited from a brother's son is self-acquired property and can be alienated without legal necessity.

1. Respondents 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 in-operative and in-effective 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 resume relevant for the disposal of this second appeal is given as under :-

3 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. Appellants case was that Mst. Rajo had lived for 40 years with Rasila and his wife, therefore, under law she will be deemed to be legally wedded wife of Rasila. Respondents case is that she was only a keep of Rasila.

4. After the death of Kirpu, brother of Rasila, his property has vested in Mansa Ram, his son, On Mansas death is reverted back to Rasila as defendant of Mansa Rams grand-father. 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 Kirpus son.

5. 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 without any legal necessity, therefore, would not bind the respondent, son of Rasila, who had challenged the sale in favour of the appellant.

6. 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 court 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

7. 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 be a coparcenary property unless it is shown that said property had descended from common ancestors, father, grand-father or great-grand-father. If the property is inherited from any other source that will not be deemed to be a coparcenary property. However, a distinction is to be drawn between joint family property & 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 ancestors is that each & every coparcenary had a joint interest and joint possession therein.

The Supreme Court in State Bank in India Vs. Ghanandi Ram, report as 1969 A. SJ C. page 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 coparcenars acquires an interest by birth

The instances of separate property are that :-

i) It belongs exclusively to a Hindu;

ii)

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