WORDS AND PHRASES

Necessary or Proper Party - Meaning of.

A necessary party is one without whom no order can be effectively made. A proper party is one whose presence is necessary
for a complete and final decision of question involved in the proceedings. Therefore, the addition of parties,
thus, would depend upon the judicial direction which has to be exercised in view of the facts and circumstances of a particular case.

Ancestral property:
Their Lordships' have abstracted the following statement from the well known treatise Mulla's Principles of Hindu Law (15th Ed. At page 289):

"if A inherits property, whether movable or immovable, from his father or father's father, father's father's
father, it is ancestral property as regards his male issue."

The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an
interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only
as regards his male issue. As regards other relations, it is separate property and if the coparcener dies without leaving male issue, it passes to his
heirs by succession.

Separate Property:
. Paragraph 230 of Sir Dinshaw Mullah's Hindu Law, 13th Edn. enumerates the following as separate property:-"Property acquired in any of the following ways is the separate property of the acquirer; it is called 'selfacquired' property, and is subject to the incidents mentioned in paragraph 222-(1) Obstructed heritage--Property inherited as obstructed heritage (sapratibandha daya), that is, property inherited by a Hindu
from a person other than his father, father's father, or father's father's father.
(2) Gift--A gift of small portion of ancestral moveable made through affection by a father to his male issue is his separate
property.
(3) Government grant--Property granted by Government to a member of a joint family is the separate property of the donee,
unless it appears from the grant that it was intended for the benefit of the family.
(4) Property lost to family--Ancestral property lost to the family, and recovered by a member without the assistance of joint
family property.
(5) Income of separate property--The income of separate property, and purchases made with such income.
(6) Share on partition--Property obtained as his share on partition by a coparcener who has no male issue.
(7) Property held by sole surviving coparceners--Property held by a sole surviving coparcener, when there is no widow in
existence who has power to adopt.
(8) Separate earnings--Separate earnings of a member of the joint family.
(9) Gains of learning--All acquisitions made by means of learning are now declared by the Hindu Gains of Learning Act, 1930,
to be the separate property of the acquirer."

There can be no difficulty in understanding items 1 to 5, 8 and 9. Clearly by no stretch of imagination can they be called coparcenary property or
joint family property which will go by survivorship on the death of the holder of the property. What is important is item 6 which deals with the
property obtained by a divided coparcener on partition. If that divided coparcener has a male issue, the property will become ancestral property
with reference to such male issue. On the other hand, if he has no male issue, against all the other divided coparceners the property will continue to
be only separate property to which the principle of inheritance alone will apply and not survivorship. In view of this alone, the rule has been
enunciated in the following terms in sub-paragraph 4 of paragraph 223 of Mullah's Hindu Law of the same edition-- "The share which a coparcener
obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in
existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards
other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession."