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2016 DIGILAW 3353 (ALL)

SRIRAM v. DEPUTY DIRECTOR OF CONSOLIDATION

2016-09-30

SUDHIR AGARWAL

body2016
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Vishnu Kumar Singh, Advocate for petitioner and Sri M.N. Singh, Advocate, for respondent 14 (since deceased and substituted by legal heirs). 2. Sri Singh has confined his relief only in respect to Khata No. 9 and submitted that it was admittedly purchased only in the name of Shiv Nandan though he was member of joint family but there was no evidence to show that the aforesaid property was purchased as joint family property and this is fortified from the fact that in mutation, despite there were two brothers alive at that time, i.e., Shiv Nandan and Gopal, but in the revenue record, name of only Shiv Nandan was recorded. No evidence was adduced by respondents with respect to factum that Khata No. 9 was purchased by Shiv Nandan from the funds of joint family. 3. Learned counsel for respondents, however, submitted that since Shiv Nandan was admittedly member of a joint family, therefore, presumption lies that Khata No. 9 was purchased by Shiv Nandan from funds of joint family. 4. However, I find no force in the submission inasmuch there is no such presumption in law. 5. In Appalaswami v. Suryanarayanamurti and others, AIR 1947 PC 189 , it was held that Hindu law is very clear. Proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon one who asserts that an item of property is joint, to establish that 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 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 joint family property/fund. 6. Again in Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 , it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. 6. Again in Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 , it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. 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 form its nature and relative value, may have formed the nucleus, from which 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 joint family property. 7. The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund. 8. In Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335 , the Court said: “There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called “division in status”, or an actual division among them by allotment of specific property to each one of them which is described as “division by metes and bounds”. A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property...” (emphasis added) 9. In Achuthan Nair v. Chinnammu Amma and others, AIR 1966 SC 411 , their Lordships said: “Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. 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. This is a well-settled proposition of law.” 10. In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh, (1969) 1 SCC 386 , the Court noticed the observation of Sir John Beaumont in Appalaswami (supra) and reiterated that burden of proving that any particular property is joint family property, in the first instance, is, upon the person who claims it as coparcenary property. But, if possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of 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 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. 11. It is only after 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. 11. In Baikuntha Nath Paramanik v. Sashi Bhusan Pramanik and others, (1973) 2 SCC 334 , this Court again held, 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. 12. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, AIR 1986 SC 79 , the Court observed that character of any joint family property does not change with the severance of status of joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of joint family to convert any joint family property into his personal property. 13. In Surendra Kumar v. Phoolchand, (1996) 2 SCC 491 , the Court said: “It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted.” 14. In Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade, (2007) 1 SCC 521 , the Court said: “... there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then 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 by cogent and necessary evidence.” 15. In D.S. Lakshmaiah and another v. L. Balasubramanyam and another, (2003) 10 SCC 310 , in para 18 of the judgment the Court, after a retrospect of various earlier decisions, said: “18. 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.” (emphasis added) 16. Following the above authorities, this Court has already taken the same view in Harey Krishna Agrawal and others v. Jairaj Krishna (Dead) and others, 2013(7) ADJ 447 and Kunj Bihari and others v. Ganga Sahai Pandey and others, 2013(8) ADJ 97 and First Appeal No. 629 of 2005 (Amar Nath Kapoor and others v. Krishna Gopal Kapoor and others) decided on 25.5.2016 and learned counsel for respondents could not persuade this Court to take a different view. 17. In view of above, the writ petition is partly allowed. Impugned order dated 30.11.1970 passed by Deputy Director of Consolidation so far as it relates to Khata No. 9 allotting shares to the respondents therein is hereby set aside and orders passed by Assistant Settlement Officer (Consolidation) and Consolidation Officer, so far as they relate to Khata No. 9, are hereby restored and confirmed.