Presumption as to Joint Family Property – continuing Joint and not seperate

In This case – the court held two very fundamental principles which are of seminal importance in partition cases  -  i) if joint family’s existence is shown – some property/nucleas is shown ii) It is presumed that joint family goes on/continues iii) Some properties brought by Karta in his name iv) Onus on Karta if he claims those properties to be seperate to show his sources of income, however in the case of coparcenor holding it in his name the position is converse – the other coparcenors challenging has to adduce evidence to make it out to be joint family property.
Madras High Court
Mr.Malla Naicker @ Singari vs Miss. Jeeva (Minor) on 8 August, 2011

Dated : 8.8.2011

CORAM

The Hon’ble Mr.Justice R.S.Ramanathan

S.A.No.212 of 2011

1. Mr.Malla Naicker @ Singari

2. Mrs.Ramakkal

3. Mr.Nataraj …Appellants/defendants

Vs.

1. Miss. Jeeva (minor)

2. Senthilkumar ( minor)

3. Miss. Tamilselvi … Respondents/plaintiffs

Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 20.8.2007, passed in A.S.No.36 of 2007, on the file of the Additional District Court/Fast Track Court No.4, Bhavani, in reversing the judgment and decree dated 15.7.2004, passed in O.S.No.503 of 2004, on the file of the Second Additional District Munsif Court, Bhavani.

For appellants : Mr.N.Manokaran

For respondents 1 & 2 : Mr.A.K.Kumarasamy

JUDGMENT

The defendants are the appellants herein. The respondents/plaintiffs filed the suit for partition of 3/8 share in the suit property.

 

2. The case of the respondents/plaintiffs was that the first appellant is their paternal grandfather and the second appellant is their paternal grandmother and the third appellant is their father. The suit properties are the joint family properties in the hands of the first appellant. As the third appellant, being the father of the respondents/plaintiffs, neglected to maintain them and was leading a wayward life, the mother of the respondents/plaintiffs, is living separately and as the properties are joint family properties, they are also entitled to a share in the properties. Hence, the suit was filed for partition of their 3/8 share in the suit property. It was further stated that the suit properties are purchased out of the income from the joint family properties in the name of the appellants/defendants 1 and 2 and therefore, the suit properties are the ancestral properties in which the respondents/plaintiffs have got their right by birth. Hence, they are entitled to claim their share in the suit properties.

3. The appellants/defendants contested the suit denying the allegations made against the third appellant and further contended that the properties are not joint family properties and they were not purchased out of the joint family nucleus and they are the separate properties of the appellants/defendants. Therefore, the respondents/plaintiffs cannot claim any share in the properties by birth

4. The Trial Court, dismissed the suit holding that no evidence was let in by the respondents/plaintiffs about the ancestral properties that was lying in the hands of the first appellant and no evidence was let in prove the income from the ancestral nucleus and in the absence of any such evidence, adduced by the respondents/plaintiffs, it cannot be stated that the suit properties are purchased out of the income from the joint family properties. Further, the suit properties are purchased in the year 1983, as evidenced by Exs.A1 and A2 whereas, the joint family properties were sold only in the year 1984, as evidenced by Ex.B1. Therefore, it cannot be stated that out of the sale proceeds of the joint family properties, the suit properties are purchased and as the respondents/plaintiffs failed to prove that the joint family was having sufficient ancestral properties, which provided the consideration for purchase of the suit properties, they are not entitled to the relief of partition.

5. The Lower Appellate Court reversed the judgment and decree of the Trial Court and allowed the appeal, holding that, admittedly, the joint family possessed of ancestral properties and D.W.1 viz., the first appellant also admitted in evidence that the suit properties were purchased from the income of the ancestral properties. Therefore, having regard to the admission of the first appellant and also having regard to the fact that the ancestral properties was having nucleus, it can be presumed that the ancestral properties provided consideration for the purchase of the suit properties. Hence, the respondents/plaintiffs are entitled to a share in the suit properties and allowed the appeal and decreed the suit. Being aggrieved by the same, this Second Appeal has been filed.

6. The following substantial questions of law were framed at the time of admission of the Second Appeal:-

i) Whether the Lower Appellate Court has rightly placed the burden of proof for arriving at a conclusion that the suit properties are ancestral properties?

ii) Whether the respondents/plaintiffs are entitled to get the decree for partition, when they failed to prove that the ancestral properties provided the consideration for the purchase of the suit properties?

iii)Whether the Lower Appellate Court is right in holding that the suit properties are joint family properties?

7. The learned counsel appearing for the appellants Mr.N.Manokaran, submitted that the Lower Appellate Court, without properly appreciating the evidence of D.W.1 in its entirety, erred in holding that D.W.1 admitted that the suit properties were purchased from and out of the income from the ancestral properties and in the same cross-examination, he has corrected his earlier version and submitted that he purchased the property from and out of his business income. The learned counsel therefore submitted that the Courts below ought to have read the evidence as a whole and should not rely upon some stray sentences and D.W.1 has clearly sated that out of his own income, the suit properties were purchased in his name and in the name of his wife. D.W.1, has also stated that there was no income from the ancestral properties and he was getting only meager income from 60 cents of property, which was his ancestral properties and that was not sufficient to run the family and without considering all these aspects, the Lower Appellate Court erred in holding that D.W.1 has admitted in evidence that the suit properties were purchased from the income of the ancestral properties.

8. The learned counsel for the appellants further submitted that even according to the case of the respondents/plaintiffs that by selling the ancestral properties, the suit properties are purchased and it was demonstrated that the ancestral properties was sold in the year 1984, as per Ex.B1, whereas, the suit properties were purchased in the year 1983 and therefore, the sale proceeds of the ancestral properties would not have provided the consideration for the purchase of the suit properties.

9. The learned counsel for the appellants also submitted that the burden is on the co-parcener to prove that the properties in the name of other co-parcener is the coparcenary property and not a separate property of that co-parcener and any person claiming that the properties are the joint family properties has to prove the existence of joint family properties and the income derived from that joint family properties, which would have provided the consideration for the purchase of the other properties. In this case, the respondents/plaintiffs failed to discharge the burden cast on them, by adducing evidence and the Lower Appellate Court wrongly cast the burden on the appellants/defendants and held that the properties are the joint family properties and therefore, the judgment of the Lower Appellate Court is liable to be set aside. He also relied upon the following reported judgments in support of his contention:-

1.(1979) Madras 1 in the case of [ The Additional Commissioner of Income Tax, Madras Vs. Mr.P.L.Karuppan Chettiar],

2.(1998) 2 Law Weekly 259 in [ The Commissioner of Income Tax Vs. Mr.P.L.Karuppan Chettiar],

3. (2001) I C.T.C. 132 in the case of [ Mr.Ramaswamy and another Vs. Mr.R.Murugan],

4. (2003) 10 S.C.C. 310 in the case of [Mr.D.S.Lakshmaiah and another Vs. Mr.L.Balasubramanyam and another],

5. (2005) 3 Law Weekly 627 in the case of [ Mr.P.R.Kannaiyan (died) and 7 others Vs. Ramasamy Mandiri S/o Govinda Mandiri and 10 others]

6.A.I.R. (2007 ) S.C. 1808 in the case of [Makhan Singh (Died) by Lrs. Vs. Kulwant Singh]

and

7.(2007) 4 M.L.J. 993 in the case of [Mr.N.Ramachandran Vs. E.Varadarajan and another]

 

10. Per contra, Mr.A.K.Kumarasamy, the learned counsel appearing for the respondents submitted that the existence of the ancestral property was proved by Ex.B1 and the first appellant is the Kartha of the joint family and he has not let in any evidence to show that he had independent income and as per Ex.B1, the joint family was possessed of 63 cents with irrigation facilities. He further submitted that no evidence was adduced by the first appellant about his personal income and therefore, the Lower Appellate Court has rightly drawn a legal presumption that the suit properties were purchased out of the joint family properties’ income and the first appellant also admitted in evidence that the properties were purchased from and out of the income of the joint family properties and having regard to all these aspects, the Lower Appellate Court has rightly decreed the suit.

11.Heard both sides.

12. The presumption regarding the coparcenary property vis-a-vis separate property and the person on whom the burden lies has been succinctly stated in Mulla Hindu Law, 17th Edition Volume 1, Page 344 in paragraph No.233 as follows:-

1) Presumption that a joint family continues joint –

2)There is no presumption that a joint family possesses joint property-

" To render the property joint, the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can be brought to the cognizance of a Court in the same way, as any other fact, namely, by evidence. Where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. However, no such presumption would arise if the nucleus is such that with its held the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its held the property claimed to be joint could have been acquired. " The wide proposition that once the ancestral nucleus is proved or admitted the onus on the member to prove that the property acquired was his self-acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made? Alternatively, this may be shown from the nature and relative value of the nucleus itself. This is the second phase in the onus of proof, which lies on the person, who sets up the family character of the property. Where, however, the existence of the nucleus is shown and no other source of income is disclosed the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in any such case to that it was acquired by him in circumstances which would constitute it is separate property. He may do so by showing that the income of the existing ancestral property was employed in other ways, or was kept intact. If he adduces no evidence, the presumption that the property was joint family property, must prevail. The mere fact that it was purchased in his name and that there are receipts in his name respecting it does not render the property his separate property for all that is perfectly consistent with the notion of its being joint property. However, if, in addition to the fact that certain property stands in the name of one of the members, A, B, there be these further facts, namely that some other member of the family had acquired separate property with their own moneys and dealt with it as their own without reference to the rest of the family, and that, A, B, was allowed by the family to appear to the word to be the sole owner, the presumption that the property is joint is weakened, and the burden of proving that it is joint will lie on those who allege that it is joint. There is no presumption in case of property standing in the name of female members. In the case of a Kartha or a manager, who managed the family affairs, or was in possession of sufficient joint family assets, the onus would be on such Kartha to prove that the acquisition made by him was without the aid of such joint family assets."

13. Therefore, bearing in mind the aforesaid principles, we shall see the evidence available in this case. As stated supra, the first appellant is the Kartha of the joint family and Ex.B1, also proves that the joint family possessed of nucleus. As per Ex.B1, the property is an agricultural property, having irrigation facilities. Therefore, having regard to the fact that the first appellant is the Kartha of the family and the properties were purchased in his name and in the name of his wife, the burden is on the Kartha to prove that the properties stands in his name are his self acquired properties and they were not purchased out of the income from the joint family properties.

14. Further, it was stated in the written statement that the properties were purchased by the appellants 1 and 2 out of their own income derived from their business. To prove the same, D.W.1 has stated that he was doing business in paddy, groundnut etc., and except the statement made in the chief examination, no proof was adduced by him to show the business run by him or the income derived from that business. Evidence of D.W.1 was that, he purchased the suit properties out of his personal earnings and he was doing business in paddy groundnut etc., On the other hand, Ex.B1, sale deeds discloses that the properties sold by them under Ex.B1, belongs to the appellants 1 and 2, as ancestral properties and the third appellants got the properties as a self acquired one.

15. Therefore, in Ex.B1, the first and third appellants admitted the fact that the properties belonged to them ancestrally and it was not stated that it was their separate properties. Further, in Exs.A1 and A2, viz., the sale deeds in the name of the appellants 1 and 2, they were described as agriculturists and it was not stated that they are doing any business. Therefore, except the oral evidence of D.W.1 that he was doing business in paddy and groundnut, no other evidence was made available with the appellants/defendants to prove that out of their personal income, the suit properties were purchased. D.W.2 has given evidence, corroborating the evidence of the first appellant about the business conducted by him and he also admitted that from the ancestral properties, the family would get four bags of rice per annum and except his oral evidence, there is no documentary evidence to prove that the first appellant was doing any business.

16. Further, in Ex.B1, it was stated that sale was necessitated to meet the family expenses and also to develop the properties. Thus, the recitals in Ex.B1, not only proved the existence of ancestral nucleus, which was sold, but also proved that they are having the suit properties and to develop the same, the ancestral properties were sold. Further, the properties were sold to meet the family expenses and if really, sufficient income was derived from the business of the first appellant, as stated by him and D.W.2, there was no necessity for the first appellant to sell the ancestral properties under Ex.B1, to meet the family expenses and to develop their properties. Therefore, the recitals in Ex.B1, falsifies the case of the first appellant that except that property, there was no other ancestral properties and there was no income from that property.

17. Therefore, having regard to the presumption as per the law laid down by the Hon’ble Supreme Court as well as our High Court as referred to above, and as stated in Mulla Hindu Law that when a Kartha claims certain properties as a separate properties and the joint family admittedly possessed of some nucleus, the burden is on the Kartha to prove that the properties are his separate properties and not purchased out of the joint family properties’ income. On the other hand, if the co-parcener claims certain properties as his separate properties, then the burden is cast on the other co-parcener, who claims that the property is a joint family property to prove that property purchased in the name of one of the co-parceners was purchased out of the joint family properties’ income and it was not a separate property.

18. Therefore, the law recognizes two standards of burden of proofs, one for the Kartha of the joint family and another for a co-parcener, when they claim that certain properties are their separate properties and not joint family properties. Admittedly, the joint family possessed of some nucleus, eventhough no evidence was adduced by the respondents/plaintiffs about the nature of income from that nucleus, in the absence of any source of independent income by the other co-parcener, in whose name, the property was purchased, it can be presumed that the joint family properties would have provided the consideration for the purchase of the suit properties.

19. As a matter of fact, this principles of law was also reiterated in the judgment reported in A.I.R. (2007 ) S.C. 1808 ( cited supra) which is extracted hereunder:-

 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”

20. In the judgment reported in ( 2005) 3 Law Weekly 627 ( cited supra) the Hon’ble Division Bench, after discussing the two judgments reported in (2003) 10 S.C.C. ( cited supra) 310 and A.I.R. 1961 S.C. 1268, in [ Mallesappa Bandeppa Desai and another Vs. Desai Mallappa @ Mallesappa and another] has held as follows:-  From the decisions of the Supreme Court in A.I.R. 1961 S.C. 1268 (cited supra)A.I.R. 1977 Madras 171 in [Mr.Sankaranarayanan and another Vs. The Official Receiver, Tirunelveli and others] and also from the observations made by the Allahabad High Court in A.I.R. 1950 Allahabad 54 in [ Bhagwant Kishore and another Vs. Bishambhar Nath and others] and in Maynes Treatise on Hindu Law and usage, and all other decisions noticed above, it is apparent that no exception is carved out in the matter relating to acquisition in the name of Kartha, where it is proved that Kartha had no independent income and he is in possession of some nucleus and not necessarily sufficient nucleus of the joint family property. In such a case, even where sufficient nucleus is not proved but existence of some nucleus is proved and it is further proved that Karta or Manager, in whose name property had been purchased, had no independent income, the burden is shifted to Karta to prove that the property has been acquired without the aid of the joint family and with the own separate income of the Karta or the Manager. We hasten to add that such principle is inapplicable, where it is shown that Kartha has some separate and independent income, in which event, the normal principle that it is for the person claiming a particular acquisition that there was sufficient surplus from the joint family property from out of which the property in question could have been acquired."

21. In the judgment reported in (2003) 10 S.C.C. 310, ( cited supra) the said principle was also reiterated, which is extracted hereunder:-

" 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”

22. The other judgments relied upon by the learned counsel for the appellants is not applicable to the fact of the case on hand. Therefore, having regard to the fact that the joint family possessed of ancestral properties and the appellants failed to prove through satisfactory evidence that they were running a separate business from which they have derived income and the fact that the first appellant is the Kartha of the joint family and the properties were purchased in his name and in the name of his wife, the legal presumption is that the ancestral properties must have provided the nucleus and the burden is on the Kartha to prove that the properties were not purchased from out of the income derived from the joint family and it was purchased from his own income.

23. In this case, no evidence was let in by the appellants/defendants about their independent income and in such circumstances, the Lower Appellate Court has rightly held that the appellants failed to prove their independent income and when the joint family possessed of certain property, that would have provided the nucleus and the Lower Appellate Court correctly applied the law and set aide the judgment and decree of the Trial Court. Hence, the substantial questions of law are answered against the appellants

24. In the result, the Second Appeal is dismissed and the judgment and decree of the Lower Appellate Court is hereby confirmed. In the circumstances, there shall be no order as to costs.