Testamentary devolution and HUF character: inherited property stays separate unless clear evidence shows conversion into joint family property.

Property devolving by will from a coparcener who had already separated from the joint family remains the recipient's separate property and does not become Hindu undivided family property merely because it was once ancestral. A separated coparcener may deal with property received on partition as absolute property, including by testamentary succession. However, where it is alleged that the recipient later threw the property into the HUF hotchpot or otherwise impressed it with joint family character, clear evidence of declaration, conduct, and identification of the property is required; absent such material, the question must be examined on the evidence.

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Issues: (i) whether properties devolving on the assessee under a will, after the testator had separated from the joint family, could be treated as joint family property in the hands of the recipient; (ii) whether the properties had been impressed with the character of joint family property by declaration or conduct, warranting fresh factual examination.

Issue (i): whether properties devolving on the assessee under a will, after the testator had separated from the joint family, could be treated as joint family property in the hands of the recipient.

Analysis: A person who has separated from the joint family has absolute power over the property received on partition and may dispose of it by testamentary succession. Property acquired with his own funds after partition is also his absolute property. Property devolving by succession on the recipient does not become joint family property merely because it had been ancestral at an earlier stage.

Conclusion: The properties received under the will could not be treated as joint family property merely on the basis of their earlier ancestral character.

Issue (ii): whether the properties had been impressed with the character of joint family property by declaration or conduct, warranting fresh factual examination.

Analysis: The record did not show clear identification of the properties said to have been converted into joint family property, nor any specific declaration of such conversion. The treatment of the properties by the assessee and the effect of the subsequent partition required examination of relevant evidence.

Conclusion: The matter on this question was set aside for fresh decision after marshaling the necessary evidence.

Final Conclusion: The legal position favoured the assessee on testamentary devolution, but the dispute required remand for factual determination on whether the properties had been thrown into the hotchpot of the Hindu undivided family.

Ratio Decidendi: Property received by testamentary succession from a separated coparcener remains the recipient's separate property unless there is clear evidence that it was subsequently impressed with the character of joint family property.

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