D.S. Lakshmaiah
& Anr Vs. L. Balasubramanyam & Anr [2003] Insc 417 (27 August 2003)
Y.K.
Sabharwal & B. N. Agrawal. Y.K. Sabharwal, J.
Appellant
No.1 and respondent No.2 are husband and wife respectively. Respondent No.1 is
their son. The second appellant purchased the property in question from the
first appellant.
The
respondents in this appeal are original plaintiffs. They filed a suit for
declaration of their 2/3rd share, partition and possession thereof in respect
of two properties described as Item No.1 and Item No.2.
According
to them, Schedule Item No.2 property came to appellant No.1 (original defendant
No.1 in the suit) in partition between him and his brothers and it is an
ancestral property. The Item No.1 property, according to the averments in the
plaint, was acquired by plaintiffs and the first defendant out of joint Hindu
family funds and the first defendant was trying to alienate the suit property
for his self benefit and not for the benefit of the members of the family.
When, during the pendency of the suit, it came to notice of the plaintiffs that
Item No.1 property had been sold by the first appellant, on their application,
appellant No.2 was impleded as defendant No.2 in the suit.
The
trial court decreed the suit holding that the respondents are entitled to 2/3rd
share in the properties as also possession thereof and also granting other
consequential reliefs.
The
first appellate court, however, allowed two separate appeals that had been
filed by each of the appellant and the suit was ordered to be dismissed. It was
held that the respondents have failed to prove that Item No.1 property was
joint Hindu family property. The said property was held to be the self acquired
property of the first appellant. It further held that respondent No.1 has
failed to prove that any amount of income was available in the hands of the
first appellant to purchase Item No.1 property noticing that except 15 guntas
of land (Item No.2 property), there was no ancestral property with the first
appellant and that the trial court was not correct in observing that it was for
the first appellant to show that no nucleus of ancestral property was available
with him to purchase Item No.1 property.
The
judgment and decree of the first appellate court was challenged by the respondents
before the High Court in a second appeal (Regular Second Appeal No.213/91).
That appeal was filed by son and mother. On a memo filed by respondent No.1 who
was first appellant before the High Court, his second appeal was dismissed and
only the claim of his mother who prosecuted the second appeal was examined by
the High Court. The High Court by the impugned judgment restored the judgment
and decree of the trial court, setting aside that of the first appellate court.
The
High Court has held that Item No.2 property has been proved to be joint Hindu
family property and the respondents have share in it. The finding in respect of
Item No.2 property has not been challenged before us.
Even
otherwise, there is no ground to upset the said finding of fact. The only
controversy that has been raised before us is in respect of Item No.1 property.
The said property was purchased by the first appellant in the year 1970-71. It
was sold by him in favour of the second appellant in the year 1987 after filing
of the suit. The only question to be examined is whether Item No.1 property was
self-acquired property of the first appellant or it was joint Hindu family
property in which the respondents/plaintiffs had 2/3rd share. Answering this
question in favour of the respondents, the High Court has held that the second
appellant could only be entitled to purchase 1/3rd share from the first
appellant who had no right to sell the remaining 2/3rd share in Item No.1
property The question to be determined in the present case is as to who is
required to prove the nature of property whether it is joint Hindu family
property or self-acquired property of the first appellant.
There
was evidence and it has been established that Item No.2 measuring 15 guntas of
land was joint Hindu family property but, admittedly, no evidence has been led
that the said joint Hindu family property was yielding any income or that any
nucleus was available with the aid whereof Item No.1 property could be
purchased by the first appellant. Admittedly, no evidence has been led on
behalf of the respondents/plaintiffs to show income from Item No.2 property or
value of the property. At the same time no evidence has also been led by the
first appellant to prove that he had any separate income so as to acquire Item
No.1 property. In absence of evidence either way which party would succeed and
which fail, is the question. The legal position is well settled as we will
presently notice.
In Appalaswami
v. Suryanarayanamurti & Ors. [AIR 1947 PC 189], in a partition suit filed
against their father by minor sons from the first marriage, the father claimed
the properties in question were his self- acquired properties and denied that
the plaintiffs had any right to seek partition. The High Court, reversing the
judgment of the trial court, held that the view expressed by the trial court
that only joint family property was that which the father took under partition
Exhibit A was not correct and further held that whole of the property set out
in Schedule to the written statement of the appellant/father, which had been
acquired after partition Exhibit A was joint family property. The contention
accepted by the High Court was that the share which the father took under
Exhibit A formed the nucleus from which all his further acquisitions sprang.
The plea of the father that was accepted by the Privy Council was that the
whole of the property that came to him under Exhibit A was intact and
unencumbered except a small portion sold which amount had been debited against
household expenditure. The Privy Council held that 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
is 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. In the case before the Privy Council, on facts, it was held
that the burden had shifted to the father to prove self-acquisition of
properties as it was established that the family possessed joint property which
from its nature and relative value, may have formed the nucleus to acquire the
property in question. Those properties were large in number and have been
noticed in Privy Council decision. However, on further facts found, it was held
that the father had discharged that burden. The properties were held to be
self-acquired properties of the appellant.
In Srinivas
Krishnarao Kango v. Narayan Devji Kango & Ors. [AIR 1954 SC 379], the
contention that was urged on behalf of the appellant was that the burden was
wrongly cast on the plaintiff of proving that the acquisition of the properties
were made with the aid of joint family funds, the argument being that as the
family admittedly possessed the ancestral Watan lands of the extent of 56
acres, it must be presumed that the acquisitions were made with the aid of
joint family funds and, therefore, the burden lay on the defendants who claimed
that they were self-acquired acquisitions to establish that they were made
without the aid of joint family funds and that the evidence adduced by them
fell far short of it and that the presumption in favour of the plaintiff stood unrebutted.
It was noticed by this Court that on the question of the nucleus, the only
properties which were proved to belong to the joint family were the Watan lands
of the extent of about 56 acres bearing an annual assessment of Rs.49/-. There
was no satisfactory evidence about the income which these lands were yielding
at the material time. Under these circumstances, noticing with approval the
aforesaid Privy Council decision, it was held that whether the evidence adduced
by the plaintiff was sufficient to shift the burden which initially rested on
him to establish that there was adequate nucleus out of which the acquisition
could have made is one of fact depending on the nature and extent of the
nucleus. The important thing to consider is the income which the nucleus yields.
A building in the occupation of the members of a family and yielding no income
could not be a nucleus out of which acquisitions could be made, even though it
might be of considerable value. On the other hand, a running business in which
the capital invested is comparatively small might conceivably produce
substantial income which may well form the foundation of the subsequent
acquisitions.
In Mudi
Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh [(1969) 1 SCC 386],
noticing the observations of Sir John Beaumont in Appalaswami's case (supra),
it was reiterated that the burden of proving that any particular property is
joint family property in the first instance is upon the person who claims it to
be so. But if the possession of a nucleus of the joint family property is
either admitted or proved, any acquisition made by a member of the joint family
is presumed to be joint family property. This is, however, subject to the
limitation that the joint family property must be such as with its aid the
property in question could have been acquired. It is only after the possession
of an adequate nucleus is shown, that the onus shifts on to the person who
claims the property as self-acquisition to affirmatively make out that the
property was acquired without any aid from the family estate. We are unable to
accept the contention of learned counsel for the respondents that the aforesaid
later observations have been made without reasons or that the Privy Council's
decision does not hold so. The observation that only after possession of
adequate nucleus is shown that the onus shifts also get support from Srinivas Krishnarao
Kango's case (supra) where, while considering the question of shifting of
burden, it has been held that the important thing to consider is the income which
the nucleus yields.
In Baikuntha
Nath Paramanik (dead) by His L.Rs. & Heirs v. Sashi Bhusan Pramanik (dead)
by his L.Rs. & Ors. [(1973) 2 SCC 334], this Court again held that when a
joint family is found to be in possession of nucleus sufficient to make the
impugned acquisitions then a presumption arises that the acquisitions standing
in the names of the person who were in the management of the family properties
are family acquisitions.
In Surendra
Kumar v. Phoolchand (dead) through LRs & Anr. [(1996) 2 SCC 491], this
Court held that where it is established or admitted that the family which
possessed joint property which from its nature and relative value may have
formed sufficient nucleus from which the property in question may have been
acquired, the presumption arises that it was the joint property and the burden
shifts to the party alleging self-acquisition to establish affirmatively that
the property was acquired without the aid of the joint family funds.
We may
now refer to three decisions whereupon reliance has been placed by learned
counsel for the respondents. In Mallesappa Bandeppa Desai & Anr. V. Desai Mallappa
alias Mallesappa & Anr. [AIR 1961 SC 1268], this Court held that where a
manager claims that any immovable property has been acquired by him with his
own separate funds and not with the help of the joint family funds of which he
was in possession and charge, it is for him to prove by clear and satisfactory
evidence his plea that the purchase money proceeded from his separate fund. The
onus of proof in such a case has to be placed on the manager and not on his
coparceners. It is difficult to comprehend how this decision lends any support
to the contention of the respondents that in absence of leading any evidence,
the claim of appellant No.1 of the property being self-acquired has to fail. In
the cited decision, the manager was found to be in possession and in charge of
joint family funds and, therefore, it was for him to prove that despite it he
purchased the property from his separate funds.
In the
present case, admittedly, no evidence has been led by the respondents that the
first appellant was in possession of any such joint family funds or as to value
or income, if any, of Item No.2 property.
In Achuthan
Nair v. Chinnammu Amma & Ors. [AIR 1966 SC 411], it was noticed that there
were number of properties owned by joint family which were received at the time
of separation under a decree passed in a partition suit. The claim of the
defendants in the written statement was that the property in question had been
purchased from the private funds of defendant No.1 and her son defendant No.4.
In this decision too, it was reiterated that when it is proved or admitted that
a family possessed sufficient nucleus with the aid of which the member might
have made the acquisition, the law raises a presumption that it is a joint
family property and the onus is shifted to the individual member to establish
that the property was acquired by him without the aid of the said nucleus.
After noticing this settled propositions, it was observed that if a property is
acquired in the name of a karanvan, there is a strong presumption that it is a tarwad
(joint Hindu family) property and the presumption must hold good unless and
until it is rebutted by acceptable evidence. This Court did not hold that if a
property is acquired in the name of karta, the law as to presumption or
shifting of onus would be different.
The
question of presumption would depend upon the facts established in each case.
In the present case, no evidence of nucleus having been led, onus remained on
the respondents and, therefore, there could be no question of presumption about
the property being joint family property.
The
last decision relied upon is Malappa Girimallappa Betgeri & Ors. v. R. Yellappagouda
Patil & Ors. [AIR 1959 SC 906]. It cites with approval the earlier decision
in the case of Srinivas Krishnarao Kango (supra). On facts, it was noticed that
the courts below had held that the property provided a sufficient nucleus of
joint family property out of which the properties in question might have been
acquired and the sufficiency of nucleus is again a question of fact. In view of
those circumstances, there was presumption of the properties being properties
of joint family and the said presumption had not been displaced.
In
view of the aforesaid discussion, the respondents having failed to discharge
the initial burden of establishing that there was any nucleus in the form of
any income whatsoever from Item No.2 property and no other nucleus was claimed,
the burden remained on the respondents to establish that Item No.1 property was
joint family property. In this view, the fact that the first appellant has not
led any evidence to establish his separate income is of no consequence insofar
as the claim of the respondents is concerned. Under these circumstances, for
failure to lead evidence, the respondents' claim of Item No.1 to be joint
family property would fail as rightly held by the first appellate court.
The
legal principle, therefore, is that there is no presumption of a property being
joint family property only on account of existence of a joint Hindu family. The
one who asserts has to prove that the property is a joint family property. If,
however, the person so asserting proves that there was nucleus with which the
joint family property could be acquired, there would be presumption of the
property being joint and the onus would shift on the person who claims it to be
self-acquired property to prove that he purchased the property with his own
funds and not out of joint family nucleus that was available.
Another
contention urged for the respondents was that assuming Item No.1 property to be
self-acquired property of appellant No.1, he blended the said property with the
joint family property and, therefore, it has become the joint family property.
Assuming the respondents can be permitted to raise such a plea without evidence
in support thereof, the law on the aspect of blending is well settled that
property separate or self- acquired of a member of joint Hindu family may be
impressed with the character of joint family property if it is voluntarily
thrown by the owner into the common stock with the intention of abandoning his
separate claim therein but to establish such abandonment a clear intention to
waive separate rights must be established. From the mere fact that other
members of the family were allowed to use the property jointly with himself, or
that the income of the separate property was utilized out of generosity to
support persons whom the holder was not bound to support, or from the failure
to maintain separate accounts, abandonment cannot be inferred, for an act of
generosity or kindness will not ordinarily be regarded as an admission of a
legal obligation {see Lakkireddi Chinna Venkata Reddy v. Lakkireddi Lakshamama
[1964 (2) SCR 172] and K.V. Narayanan v. K.V. Ranganadhan & Ors. [(1977) 1
SCC 244]}.
In the
present case, respondents have not led any evidence on the aforesaid aspects
and, therefore, it cannot be held that the first appellant blended Item No.1
property into the joint family account.
In
view of aforesaid discussion, Item No.1 property cannot be held to be joint
family property. The impugned judgment of the High Court is, therefore, set
aside and the appeal allowed and the judgment and decree of the first appellate
court is restored. In the circumstances of the case, parties are left to bear
their own costs.
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