Can the daughter claim partition of joint family property without bringing property given to her towards dowry in hotchpotch?

 Such being the case, I am of the considered opinion

that a beneficiary of Section 6 of the Hindu Succession

Act cannot claim a benefit by way of partition as regard

to joint family properties without reference to the

properties already received by her at the time of

marriage as dowry/gift or otherwise. The said properties

at an undisputed point of time forming part of the joint

family property and the plaintiff having received it, the

same would also have to be made part of the partition

suit in order for the partition to be equitable hence,

those properties would also be amenable to partition.

Hence, the contention of Sri.A.Nagarajappa, learned

counsel for the petitioner that these properties were

independently purchased (Item no. 9 from Defendant

no. 9 and Item No. 10 from third parties) and would not

be amenable for partition is an issue that would have to

be decided after trial and cannot be adjudicated upon at

this stage. The assertions clearly and categorically made

is that the 1st defendant had executed nominal sale

deeds in respect of item Nos.9 and 10 properties. {Para 16}

17. It is for the parties to establish during the course of trial

as to whether the properties belonged to the joint family

or not. If the properties belong to the joint family, then

the same would be amenable for partition. If the

plaintiffs were able to establish that the properties had

been independently purchased out of their own funds

and the said properties are not joint family properties,

then the same would not be amenable for partition.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU 

WRIT PETITION NO.39982 OF 2018 (GM-CPC)

SMT.HEMALATHA Vs SRI.VENKATESH

BEFORE

 MR. JUSTICE SURAJ GOVINDARAJ

Dated: 16TH DAY OF FEBRUARY, 2022

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Whether coparcener can throw his self-acquired property into common stock if there is no joint family property?

Sri R. Gopalaswami Iyengar, appearing for the contesting respondents 1 and 2 urged that as there was no joint family property, there could be no question of Narayana Pillai throwing his self-acquired property into common stock. Such a contention has been negatived in several decisions. Thus in Damodar Krishnaji Nirgude v. Commissioner of Income Tax MANU/MH/0103/1961 : [1962] 46 ITR 1252 (Bom) , it was held that it was open to a member of a Hindu undivided family to throw his self acquired property into the family hotchpot even though there was no joint or ancestral property. Again in Natesan v. Commissioner of Income Tax I.L.R. (1964) Mad. 502 , this contention has been negatived in the following passage:

It is now well settled that a separate property of a coparcener under the Hindu Law can acquire the character of a joint family property of the coparcener by his own voluntary act of putting it in the common stock or blending it with joint family properties. The process of blending connotes that there are two sets of properties, separate and joint family, and they are pooled so that the exclusive rights of the coparcener holding the separate property are abandoned; then there emerges only one kind of property, the whole of it becoming joint family property. Where, however, there exists no joint family property and the coparcener owning separate property desires to have it treated as joint family property, it will be open to him to do so and the Hindu Law does not require any formality to achieve this result. The act of the coparcener by which this conversion of separate property into joint family property takes place is described as throwing the property into the common stock or as treating the separate property as joint family property. It is, however, not necessary that there should be pre-existing common stock before it can be said that the separate property is thrown into it. In a case where the family has no joint family property, the common stock is a mere fiction and throwing into the common stock is only a convenient phraseology to describe the process of conversion. A clear, unequivocal and unambiguous declaration by the holder of the separate property that it is joint family property would sufficiently impress that property with the joint family character.

As pointed out in the above passage, the very concept of blending of self acquired property with ancestral or joint family property presupposes the existence of a joint family property. But it is clear from what we have already stated that the conversion of self-acquired property into a joint family property by what is known as throwing into common stock is only an application of the principle of abandonment or waiver of his rights by a coparcener with intention to treat his property as joint family property.

IN THE HIGH COURT OF MADRAS

Decided On: 21.11.1969

 P.L.N. Paramasivam Vs.  P.K. Ramaswami Gounder and Ors.

Hon'ble Judges/Coram:

R. Sadasivam, J.

Citations: (1970) 1 MLJ 592

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Whether there is presumption as to existence of HUF after coming into force of Hindu Succession Act 1956?

The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, MANU/SC/0265/1986 : (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, MANU/SC/0525/1986 : (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.

IN THE HIGH COURT OF DELHI

CS (OS) No. 1737/2012

Decided On: 18.01.2016

 Surender Kumar  Vs.  Dhani Ram and Ors.

Hon'ble Judges/Coram:

Valmiki J. Mehta, J.

Citation: MANU/DE/0126/2016 : 227 (2016) DLT 217 

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When court should not strike off defence of defendant if he fails to answer to interrogatories?

The legality of the said order passed by the learned Trial Judge is under
challenge in this First Miscellaneous appeal.
In this regard we are required to consider the pleadings made out by the
plaintiff in paragraph 12 of the plaint in this context of the defendant’s pleading
in paragraph 6 of the written statement. We find therefrom that the plaintiff
claimed that all the properties at village Boalia were sold by all the co-owners to
third parties. such pleadings of the plaintiff indicate that the parties had joint
properties at Boalia but none of such properties is now available for partition as
all the co-sharers sold those parties to third parties. Since such stand was taken
by the plaintiff, the plaintiff cannot be absolved of his responsibility to prove
such stand taken by him in the plaint, simply because of the fact that the
defendant are unable to disclose the particulars of the left out joint properties at
Boalia Mouza instantly in their answer to the plaintiff’s interrogatory. That apart
we cannot lose sight of the defendants’ pleading in paragraph 16 of the written
statement wherein they stated that the plaintiff who is the uncle of the
defendants being the custodian of the title deeds relating to the joint properties
of the parties, himself is liable to supply all the particulars relating to those
properties at Boalia.Since the defendants are unable to supply the particulars of the left out
joint properties at Boalia instantly, they prayed for leave to disclose the
particulars of these properties at the time of trial of the suit.
The Court has not yet taken any decision on such prayer of the defendant.
In these set of facts we feel that the defence of the defendant should not
have been struck out inasmuch as, if the defence of the defendant is struck out
at this stage, a premium will be given to the plaintiff so far as the issue regarding
maintainability of the suit for not joining all the joint properties at Boalia in the
hotchpot of the partition suit, is concerned, particularly when he in substance
admitted in the plaint that they had joint properties at Boalia Mouza but these
are now not available for partition due to sale thereof by all the co-sharers to
the third parties. In view of such pleadings in the plaint, the plaintiff in our view
is the best person to disclose the joint properties which they had, and when
those properties were sold by all the co-sharers.
In our view, this is a matter of proof by the parties during the trial of the
suit. As such we hold that the learned Trial Judge was not justified in striking
out the defence of the defendants at this stag. We thus set aside the impugned
order and permit the parties to lead evidence on all issues at the time of hearing
of the suit.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
 Justice Jyotirmay Bhattacharya
AND
 Justice Ishan Chandra Das
 F.M.A.T. 808 of 2016
 Tamal Das 
 V
 Dilip Kumar Das @ Dipak Das

Judgement on : 5th September, 2016.
Citation:AIR 2017(NOC) 188 Cal

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Whether other coparcener can claim partition of property purchased by person by income from his professional knowledge?

 Now it is not denied anywhere that the business started by Arjan Singh was not a commercial venture per se but a calling or profession, i.e. medical advice in respect of herbal remedies. The plaintiffs allege that such knowledge or expertise so acquired by Arjan Singh is not on account of his association with his father. The object of the said Act was to ensure that earning from acquired skills such as medical or legal practice, accountancy or in other avocations where individual effort and skill is necessary, should never be deemed as part of contribution by member of a joint family property so as to bring it within the HUF hotchpotch. This was to incentivize proficiency in such vocations and encourage people into acquiring greater skills and higher learning as in the absence of such safeguard, the danger of earnings acquired by the members of such joint families becoming available for division are very real. In such eventuality, the members of the joint family, who earn and toil hard were left with a miniscule portion of their earning gained entirely by individual skill and effort as the latter's share, the lion's share of which would have fallen to the other members of the family, who would possibly never work at all. In the present case, the suit expressly states that the funds for acquiring various properties in the name of Arjan Singh were out of his earnings as a medical professional, from out of M/s. Sewak Pharmacy. That clearly falls within the mischief of Section 3 of the Hindu Gains of Learning Act. Therefore, the claim for partition of such properties is expressly barred. 

Delhi High Court

Sh. Balbir Singh Uppal And Anr. vs Sh. Gurmeet Singh Uppal And Ors. on 22 April, 2010

Author: S.Ravindra Bhat

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Whether partial partition of joint family property is permissible without bringing all properties in hotchpotch?

 It may be pertinent to note that the rule that a partition suit should embrace of the joint family property is recognized and firmly applied in order to bring the equitable partition by metes and bounds. If the rules were not recognized and firmly applied, the multiplicity of litigation would be the inevitable result. If the suit for partial partition is allowed to be instituted in fragments, the jurisdiction of the trial Court and the forum of appeal might be altered; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the High Court, and whether it should at all be permitted to seek the judgment of the Judicial Committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. Therefore, in the present case, it is not possible to accept the contention of the learned counsel for the plaintiff that the suit for partial partition of the properties owned by the joint family is maintainable, without bringing into the common hotchpotch the entire joint house property of the parties. Therefore, it is quite obvious that authorities on which reliance placed by the learned counsel for the plaintiffs is totally misconceived and cannot be accepted.

18. The trial Court on consideration of the facts and circumstances rightly observed that under Section 333 of the Hindu Law, Sub-clause (3) it is laid down that in a suit for partition the general rule that where a suit for partition is brought by a coparcener against the other coparceners, it should embrace the whole family property. This rule is subject to certain qualifications which are mentioned in the Sub-rule. The instant suit filed by the plaintiff does not fall in any of the exception and it is, therefore, apparent that the plaintiff ought to have brought the entire family property in common hotchpotch so as to bring about the complete and final partition of all the joint family house property and thus the instant suit, singling out a house for partition is not maintainable.

 The appellate Court also considered this aspect of the matter and rightly held that the suit is not maintainable without bringing entire joint family house property into common hotchpotch. Consequently, the appellate Court dismissed the appeal. It would be quite clear that the suit house is not the only property owned by the joint family and having regard to the joint family house property situated at Pimpalkhuta and Amravati, it is apparent that the suit for partition of the suit house only would not be maintainable and even if it is held that the plaintiff has half share in the suit house, the partition of the same would not be equitable and just. Since all the properties were not included in the suit and the two brothers i.e. Plaintiff and defendant are claiming their rights and shares in the house properties left by Gangaram, ends of justice would be met if the case is remanded to the trial Court. The joint house property owned by the two brothers will also be included in the suit and will be dealt with in such a manner as the Court may consider, consistent with justice equity and good conscience. If the plaintiff declines to have partition of entire joint house properties, the suit will stand dismissed with costs throughout. 

Bombay High Court

Govindrao S/O Gangaramji Ajmire vs Dadarao @ Shrawan S/O Gangaramji ... on 6 April, 2004

Equivalent citations: 2004 (4) MhLj 653

Bench: S Kharche

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Leading Judgment on doctrine of blending of property

 The next question that falls for consideration is whether
‘C’ Schedule property was blended with the joint family property and
treated as part of the joint family property. To consider the issue, it
is profitable to discuss the law on this point. The decision in the
case of Ram Janam Singh –v- Stae of Uttar Pradesh and
another, reported in AIR 1994 SC 1722, enumerates the doctrine of
blending as follows:
6. To pronounce on the question of law presented
for our decision, we must first examine what is the
true scope of the doctrine of throwing into the
“common stock” or “common hotchpot”. It must be
remembered that a Hindu family is not a creature
of a contract. As observed by this Court in
Mallesappa Bendeppa Desai v. Desai Mallappa9
that the doctrine of throwing into common stock
inevitably postulates that the owner of a separate
property is a coparcener who has an interest in the
coparcenary property and desires to blend his
separate property with the coparcenary property.
The existence of a coparcenary is absolutely
necessary before a coparcener can throw into the
common stock his self-acquired properties. The
separate property of a member of a joint Hindu
family may be impressed with the character of joint
family property if it is voluntarily thrown by him
into the common stock with the intention of
abandoning his separate claim therein. The
separate property of a Hindu ceases to be a
separate property and acquires the characteristic of
a joint family or ancestral property not by any 
physical mixing with his joint family or his
ancestral property but by his own volition and
intention by his waiving and surrendering his
separate rights in it as separate property. The act
by which the coparcener throws his separate
property to the common stock is a unilateral act.
There is no question of either the family rejecting or
accepting it. By his individual volition he
renounces his individual right in that property and
treats it as a property of the family. No longer he
declares his intention to treat his self acquired
property as that of the joint family property, the
property assumes the character of joint family
property. The doctrine of throwing to the common
stock is a doctrine peculiar to the Mitakshra School
of Hindu law. When a coparcener throws is
separate property into the common stock, he
makes no gift under Chapter VII of the Transfer of
Property Act. In such a case there is no donor or
donee. Further no question of acceptance of the
property thrown into the common stock arises.”
In Lakkireddi Chinna Venkata Reddi and others Vs.
Lakkireddi Lakshmama, reported in AIR 1963 SC 1601, the
decision describes the principles of doctrine of blending as follows:-
“9. Law relating to blending of separate property
with joint family property is well-settled. Property
separate or self-acquired of a member of a 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 member of the family were
allowed to use the property jointly with himself, or
that the income of the separate property was utilised
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.
Thus, to sum up the
principles decided in the aforesaid decisions, it can be said that in
order to establish that the separate or self-acquired property of a
coparcener is blended with a joint family property following
ingredients have to be established.
1. There must be a coparcenery joint family in
existence;
 2. Property in question must be separate or self
acquired of a Hindu coparcener;
 3. He allows such property to be used by joint
family;
 4. Such action of the coparcener must be out of his
own volition;
 5. He must have an intention of waiving,
surrendering and/or abandoning his claim of
separate rights over such property.
 HIGH COURT OF ORISSA: CUTTACK
 F.A. NO. 82 OF 2000

Rama Chandra Prusty Vs Bidyadhar Prusty and others 

 Date of Judgment: 11.12.2015

P R E S E N T:
 SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)730 Orissa

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Whether property purchased from income of ancestral property will be joint family property?

Both the trial court as well as the First
Appellate Court have misread and mis-directed
themselves with regard to the positive and
substantive evidence placed on record in
justification of the claim of the plaintiff and they
have not appreciated and re-appreciated the same in
favour of the plaintiff in the proper perspective to
record the finding of fact on her claim for the
division of the share in her favour in respect of
the schedule ‘B’ property. Therefore, the concurrent
finding of fact recorded by both the trial court as
well as the First Appellate Court on the contentious
issue No.4 are not only erroneous in law but also
suffer from error in law for the reason that there
is a positive and substantive evidence elicited by
the deceased-first defendant during the course of
his cross examination before the trial court, the
relevant portion of which is extracted above,
wherein he had in unequivocal terms admitted in his
evidence that he, his sons and daughters have an
ancestral property in his village and the same has
not been divided between them and that he used to
get the income from the said agricultural land and
the same was utilized by him for the construction of
the building at Sant Nagar, i.e. schedule ‘B’
property. Therefore, it amounts to putting the said
property in the hotchpot of joint family property.
The non-consideration of the above positive and
substantive evidence by the trial court as well as
the First Appellate Court in justification of the
claim of the plaintiff in respect of the schedule
‘B’ property has rendered the concurrent finding
recorded by it as erroneous in law and therefore,

the same are liable to be set aside.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2820 OF 2015
KIRPAL KAUR 
Vs.
JITENDER PAL SINGH & ORS. 
Dated; July 14, 2015
Citation;(2015) 9 SCC356,2016(2) MHLJ542
V. GOPALA GOWDA, J.

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How to prove that separate property of father was thrown into hotchpotch?

The surviving point for consideration was whether there was anything brought on the record to show that the property held by the 2nd defendant as inherited from his father Shankar, had been impressed with the character of joint family property. A separate property can always be treated as joint family property by merger with admitted joint family properties existing or otherwise by throwing the separate property into the hotchpot. A case of blending or merger or deviations from the understanding of obstructed and unobstructed heritage would require to be specifically pleaded and proved. There can be no presumption that the property inherited by the father under the Hindu Succession Act, 1956 held as such was treated by the father as joint family property along with his sons. Such treatment must be expressly pleaded and there must be evidence of such treatment showing that the father had allowed all his sons to enjoy the properties not merely under the bounty of the father but as a right obtaining to them by the treatment made possible by the father by his conduct. The contentions made before the Court are far-fetched from what is necessary to be established at the trial. The dismissal of the plaintiff's suit by the Appellate Court was under the circumstances justified and there is no scope for interference.

Punjab-Haryana High Court

Rajesh Kumar And Anr vs Gurmeet Singh And Anr on 7 December, 2015

                      

  RSA No. 2660 of 2015 (O&M)

Citation;AIR 2016(NOC)273(P&H)

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When property shall be deemed to be put in hotchpotch of joint family property?

Both the trial court as well as the First
Appellate Court have misread and mis-directed
themselves with regard to the positive and
substantive evidence placed on record in
justification of the claim of the plaintiff and they
have not appreciated and re-appreciated the same in
favour of the plaintiff in the proper perspective to
record the finding of fact on her claim for the
division of the share in her favour in respect of
the schedule ‘B’ property. Therefore, the concurrent
finding of fact recorded by both the trial court as
well as the First Appellate Court on the contentious
issue No.4 are not only erroneous in law but also
suffer from error in law for the reason that there
is a positive and substantive evidence elicited by
the deceased-first defendant during the course of
his cross examination before the trial court, the
relevant portion of which is extracted above,
wherein he had in unequivocal terms admitted in his
evidence that he, his sons and daughters have an
ancestral property in his village and the same has
not been divided between them and that he used to
get the income from the said agricultural land and
the same was utilized by him for the construction of
the building at Sant Nagar, i.e. schedule ‘B’
property. Therefore, it amounts to putting the said
property in the hotchpot of joint family property.
The non-consideration of the above positive and
substantive evidence by the trial court as well as
the First Appellate Court in justification of the
claim of the plaintiff in respect of the schedule
‘B’ property has rendered the concurrent finding
recorded by it as erroneous in law and therefore,

the same are liable to be set aside.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2820 OF 2015
KIRPAL KAUR 
Vs.
JITENDER PAL SINGH & ORS.
Dated; July 14, 2015
Citation;(2015) 9 SCC356
V. GOPALA GOWDA, J.

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Whether coparcener can unilaterally throw his separate property in common stock of joint family property?

 Further, the decision of Orissa High Court in Commissioner of Income Tax, Orissa v. Harish Chandra Gupta, decided on 02.02.1981 was relied upon by the learned counsel for the defendants, wherein, it was held as under:

"The separate property of a Hindu ceases to be separate property and acquires the characteristics of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as a separate property. The act by which the coparcener throws his separate property in the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition, he renounces his individual right in that property and treats it as a property of the family. No sooner than he declares his intention to treat his self- acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara school of Hindu law".

Delhi High Court

Vineeta Sharma vs Rakesh Sharma And Ors. on 29 October, 2013

Author: M. L. Mehta

Citation;AIR 2015 (NOC)895 Delhi

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How to prove blending of separate property with joint family property?

 The law relating to blending of separate property with joint family property is well settled. Property, separate or self-acquired of a member of a 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.

10. The contention of the learned counsel that in the absence of there being any joint family property, the separate property of the plaintiff's father could not be impressed with the character of joint family is noted for rejection. The law in this regard is well settled. Reference can be made to the decision of our High Court in Dr.Keswal Krishan Mayor Vs. Kailash Chand Mayor and Ors., 1977(1) 2 Delhi 97, wherein it was held thus:

"As I understand the law laid down by the Supreme Court, it does not lay down that a separate property could not be impressed with the character of joint Hindu family property in the absence of the existence of a joint family or coparcenary property. The existence of joint family property is not necessary before a member of the family throws his self-acquired property in the common stock. The existence of a joint estate is not an essential requisite to constitute a joint family and a family which does not own any property, movable or immovable, may, nevertheless be joint. If the existence of the coparcenary property is considered as a pre-requisite for throwing the property into the common hotchpotch or common stock, then, only those joint families who are already possessed of ancestral property, can receive self-acquired properties of coparceners. If the arguments is taken to its logical conclusion, it will lead to absurdities or a situation that no joint Hindu family which does not own any ancestral property can ever acquire any property from any individual coparcener who intends to impress the self-acquired property with the character of a joint family property. The term „blending‟ may suggest the existence of a nucleus but that does not mean that it is not possible to conceive of coparceners impressing their self-acquired properties with the status of the joint family property unless it is shown that the joint Hindu family is already possessed of a nucleus or ancestral stock or ancestral property. There is no reason to limit the cases of blending to only those families owning coparcenary property. Throwing the self-acquired property in the common stock or hotchpotch is a well-recognized incidence of the joint Hindu families".

Delhi High Court

Vineeta Sharma vs Rakesh Sharma And Ors. on 29 October, 2013

Author: M. L. Mehta

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Partial partition of joint Hindu family property can be permitted in exceptional circumstances

In Rajendra Kumar Bose AIR 1923 Calcutta 5017, cited supra it has been laid down by the Division Bench of the Calcutta High Court that -- 'The rule that a partition suit should embrace all the joint property is neither arbitrary nor technical; it is founded on sound and weighty reasons. If the rule were not recognized and firmly applied, multiplicity of litigation would be the inevitable result. If suit for partition were allowed to be instituted in fragments, the jurisdiction of the trial Court and the forum of appeal might be altered; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the High Court, and whether he should at all be permitted to seek the judgment of the judicial committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. It need not be disputed that there may be a very special cases where the application of the rule may be justly relaxed."

14. In Kenchegowda v. Siddegowda, , the Hon'ble

Supreme Court held that "when all the joint family properties are not made the subject-matter of the suit, nor the co-sharers have been impleaded, the suit for partial partition is not maintainable,"

15. On resume of the aforesaid authorities it would reveal that the general rule is that all the joint family properties should be brought into common hotchpotch and then seek partition of the same. A member of a joint property suing his coparceners for partition of family property is bound to bring into common hotchpotch the entire joint property in order that there may be complete and final partition of family properties that may be in his possession. The general rule is that initially suit for partition is brought by a corparcener against other coparceners, it should embrace the whole family property but this rule is subject to certain qualifications and exceptions.

Bombay High Court

Govindrao S/O Gangaramji Ajmire vs Dadarao @ Shrawan S/O Gangaramji ... on 6 April, 2004

Equivalent citations: 2004 (4) MhLj 653

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Burden of proof is on plaintiff to prove that part of property is property of joint family after partition

Even from the legal aspect the plaintiff's stand in regard to Schedule C properties is untenable, His contention is that since the descendant of Shaligram Missir were members of a joint Hindu family, any acquisition even though in the name of one member will be deemed to be part of the hotch pot unless the person who claims it to be his exclusive property proves that this is so. This presumption is not applicable where there has already been previous partition between the parties. In such a situation the presumption would be otherwise namely that all joint family assets have been included for partition in the earlier suit and the burden lies on the person who claims that any left out property was also part of the joint family assets, to prove the same. This principle has been laid down in AIR 1981 Patna 111 (Ambika Devi v. Balmukund Pandey). The relevant passage from the above decision may be- quoted as follows : --

"The defendant 1st party as held above, has succeeded in proving the partition, as alleged by them. This being so, the presumption would be that all the properties of the joint family were divided and a person alleging that the joint family property, in the exclusive possession of one of the members after the pauition is joint and is liable to pe partitioned has to prove his case which the plaintiffs have signally failed to prove."

In the present case, undisputedly there were two earlier partition suits and therefore, legal presumption would be that the entire joint family assets were included in the earlier suits. Since the plaintiffs claim is that Schedule C properties though a part of joint family assets had been left out the burden clearly lies on him to establish that it was joint family property and had been wrongly left out. The evidence on record, as indicated above- clearly shows that the plaintiff has failed to discharge this burden. Hence both from the legal as well as factual aspect the plaintiff's case in respect of Schedule C properties has no substance at all.

Patna High Court

Ram Lakhan Missir vs Pandit Raghunandan Missir And ... on 5 October, 1988

Equivalent citations: AIR 1989 Pat 145

Bench: R N Prasad

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Whether hindu female can blend her property with property of joint family?

The theory of blending under the Hindu Law involves the process of a wider sharing of one's own properties by permitting the members of one's joint family the privilege of common ownership and common enjoyment of such properties. But, while introducing. new sharers in one's exclusive property one does not by the process of blending efface oneself by renouncing one's own interest in favour of others. To blend is to share along with others and not to surrender one's interest in favour of others to the exclusion of oneself. If a Hindu female who is a member of an undivided family impresses her absolute exclusive property with the character of joint family property, she creates new the exclusion of herself because not being a to demand a share in the joint family She has no right for survivorship and is of the joint family property. Her right to property is contingent, inter alia, on a husband and his sons. Under s. 3 (2) and claimants to her property to coparcener she has no right property by asking for a partition. entitled only to be maintained out demand a share in the joint family partition taking place between her (3) of the Hindu Women's Right to Property Act, 1937, her right to demand a partition in the joint family property of the Mitakshara joint family accrued on the death of her husband. Thus, the expression 'blending' is inapposite in the case of a Hindu female who puts her separate property, be it her absolute property or limited estate, in the joint family stock.

It is well settled that a Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in _the joint or coparcenary property. These are the three generations next to the holder in unbroken male descent (see Mulla's Hindu Law, 14th Ed. p. 262, para 213). A Hindu female therefore is not a coparcener. Even the right to reunite is limited under the Hindu law to males (Mulla, p. 430, para 342). It does not therefore militate against the fundamental notions governing a Hindu joint family that a female member of the joint family cannot blend her separate property, even if she is an absolute owner thereof, with the joint family property.

In our opinion, therefore, the income of Rs. 21,544 from Nishat Talkies was not assessable in the hands of the Hindu undivided family on the basis that the appellant had blended it with the joint family property.

Supreme Court of India

Pushpa Devi vs Commissioner Of Income Tax, New ... on 30 August, 1977
Equivalent citations: 1977 AIR 2230, 1978 SCR (1) 329

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