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CASE NO.: Appeal (civil)  2089 of 2000

PETITIONER: D.S. Lakshmaiah & Anr.                                   

RESPONDENT: Vs. L. Balasubramanyam & Anr.                                

DATE OF JUDGMENT: 27/08/2003

BENCH: Y.K. Sabharwal & B. N. Agrawal.

JUDGMENT: J U D G M E N T

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.  

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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

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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

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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

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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.