Supreme Court: Joint Family In DV Act Mean Members Live Together As Family & Not As Understood In Hindu Law

  In our view, the D.V. Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship. Therefore, the expression 'joint family' cannot mean as understood in Hindu Law. Thus, the expression 'family members living together as a joint family', means the members living jointly as a family. In such an interpretation, even a girl child/children who is/are cared for as foster children also have a right to live in a shared household and are conferred with the right Under Sub-section (1) of Section 17 of the D.V. Act. When such a girl child or woman becomes an aggrieved person, the protection of Sub-section (2) of Section 17 comes into play. {Para 36}

 43. Further, the expression 'family members living together as a joint family' is not relatable only to relationship through consanguinity, marriage or adoption. As observed above, the expression 'joint family' does not mean a joint family as understood in Hindu Law. It would mean persons living together jointly as a family. It would include not only family members living together when they are related by consanguinity, marriage or adoption but also those persons who are living together or jointly as a joint family such as foster children who live with other members who are related by consanguinity, marriage or by adoption. Therefore, when any woman is in a domestic relationship as discussed above, is subjected to any act of domestic violence and becomes an aggrieved person, she is entitled to avail the remedies under the D.V. Act.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 511 of 2022

Prabha Tyagi Vs.  Kamlesh Devi

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Whether a son conducting business with father can claim that it is a joint family business if father has started the said business with his self-acquired property?

In Ramaswami Nayakar v. Raja Padayachi MANU/TN/0247/1925 : AIR1926Mad963 , it has been held that the question whether the self-acquired property of a member of a joint Hindu family has been thrown by him into the common stock or not is a question of fact. In Pearey Lal v. Nanak Chand MANU/PR/0008/1948 : (1948) 61 L.W. 437, the Privy Council had to consider a case where a father, who had no ancestral property, started a business and his son claimed that by reason of his association in the business the character of the business became a joint family business. It has been held in that decision that the onus of proving that the separate business of the father became joint family business, especially when there is no-ancestral property, is heavy on the son and that it is for the son to prove that he was associated in the business in such a manner as to raise a reasonable inference that the father intended to make and did make his business a joint family business.  {Para 10}

IN THE HIGH COURT OF MADRAS

Decided On: 21.11.1969

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

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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 it is necessary to prove that there was joint family for seeking partition of joint family property?

Re: Burden of Proof:

26. Initial burden of proving that himself and defendants constituted the joint family was on the plaintiff. Mere admission that he was the son of defendant no. 1 does not lead to the presumption that himself and defendants constituted the joint family and were the members of the joint family.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.S.A. Nos. 1813/2015 and 2188/2016 (DEC-PAR-INJ)

Decided On: 04.04.2019

 M. Krishna Vs.  M. Ramachandra and Ors.

Hon'ble Judges/Coram:

K.S. Mudagal, J.

Citation: AIR 2019 Karnat 188

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Bombay HC: Joint family of deceased tenant can not claim tenancy right in respect of tenanted premises

From a plain reading of section 5 (11) (c) (i) of the Act,

it is difficult to accept the contention as urged on behalf of the

petitioner/defendant no.2 that the provisions recognize that every

member of the joint family or the joint family itself becomes a tenant

for the purposes of the Bombay Rent Act. The introductory words of

section 5 (11) defining tenant are crystal clear when it describes a

“tenant” to mean “any person” by whom or whose account, rent is

payable and would include as defined in sub-clause (c) of subsection

5 (11) any member of the tenants family residing with the

tenant at the time of his death. Sub-clause (c) is required to be read

in conjunction with the preceding relevant sub-clauses namely sub

clauses (aa), (b) which also uses a similar phrase ‘any person’. Thus

a tenant necessary has to be any person as recognized by section

5(11) and not otherwise and certainly not a joint family as a unit.

The legislature has avoided to include any such incident to include a

joint family to be a tenant within the meaning of section 5(11).

33. In the present context, to interpret the phrase ‘any person’

as used in section 5 (11) of the Act to include any member of the

joint family as asserted by the petitioner/defendant no.2, would lead

to an absurdity. This more particularly contrary to the election as

exercised by the family of the deceased tenant Raghunath, in

choosing Achyut –defendant no.1 (Raghunath’s son) to succeed to

the tenancy. The absurdity would be two fold firstly it would amount

to reading something into the definition of tenant, (Section 5(11) (c)

(i)), what has been not provided for and/or excluded by the

legislature; secondly it would be contrary to the conduct of the

parties who wholeheartedly accepted, chose and elected that the

tenant for the suit premises after the death of Raghunath would be

defendant no 1–Achyut. Once this is a factually established position

on record the petitioner/ defendant no.2 was not permitted and/or

was estopped from taking a contrary stand.

34. In my opinion, such an assertion as made on behalf of

the petitioner/defendant No.2 would lead to another absurdity

namely, that it would create an insurmountable uncertainty for the

landlord in pursuing eviction proceedings against a tenant as

permissible in law. This for the reason that when a landlord grants

the premises on tenancy it is a contract of tenancy as entered with a

specific person (tenant). The landlord expects fulfillment of legal

obligations from the tenant. The law therefore does not envisage

that the landlord would be required to deal with all members of the

joint family, a situation as in the present case when on the death of

the original tenant he is replaced by another named member of a

family. Hence, if such an argument by the petitioner/defendant no.2

to recognize him as a tenant, is accepted the landlord would never

obtain an eviction of a tenant as may be permissible to him in law as

every successive member of the tenant’s family would start claiming

legal rights and protection under the provisions of the Bombay Rent

Act. Such can never be the object and intention of this rent

legislation.

35. In the present case, the intention and conduct on the

part of the defendants, in my opinion was quite clear namely to

permit defendant no.1-Achyut to inherit tenancy after the death of

the original tenant his father–Raghunath. The rent receipts were

accordingly issued in favour of Achyut on the death of Raghunath.

Certainly, on two occasions namely when the original tenant-

Raghunath expired in the year 1971, and secondly when in 1979

defendant no.1-Achyut moved out of the suit premises, it was

available to the father of defendant no.2 Sadashiv to assert a position

that he had become the lawful tenant of the plaintiff’s landlords.

Sadashiv however, chose not to assert any such right. He throughout

accepted the defendant no.1- Achyut to be the tenant since the year

1971 that is from the death of his father Raghunath. Resultantly, it

was no defence for defendant no.2 to assert that he would be now

the lawful tenant having independent rights merely because his

father Sadashiv was a member of Raghunath’s joint family. It needs to

be observed that there is no legal foundation to the assertion of the

petitioner/defendant no. 2 referring to section 5(11) (c) in as much

as this provision is attracted only when a tenant dies. In the present

case defendant no.1 –Achyut who was accepted to be the tenant by

the petitioner/ defendant no.2 is surviving and has moved out of the

suit premises. In this situation it is difficult to comprehend, as to how

section 5(11) (c) can be pressed into service by the petitioner, to

assert any legal right to be a tenant .

36. The inevitable consequence in law on defendant no.1-

Achyut , (the tenant) moving out of the suit premises, brought

about a situation that defendant no.2-Vasant could not have asserted

any legal rights as a tenant, so as to contest the eviction proceedings

as instituted by the plaintiffs in the present Suit. In any event earlier

to the filing of the present suit petitioner/defendant no. 2 even qua

the plaintiffs never asserted any independent rights of tenancy in any

proceedings as could be brought by him.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Writ Petition No. 2371 OF 1997

Vasant Sadashiv Joshi.  Vs  Yeshwant Shankar Barve

CORAM : G.S.Kulkarni, J.

DATE : 3 JANUARY, 2020

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Whether landlord can seek eviction decree on ground of bonafide need if he is doing business in property of joint family?

 However it is seen that door Nos. 75 and 76, Big Bazar Street, Kumbakonam is a property belonging to the joint family of which the petitioner is one of the coparceners, In that building, the joint family business in jewellery is being carried on. The Premises bearing door Nos. 75 and 76 Big Bazar Street, Kumbakonam cannot their therefore taken as the petitioner's building. Therefore the petitioner cannot be said to be carrying, on business in a building of his own. Unless the petitioner is carrying on a business in a building of -his own, he is entitled to seek eviction " on the ground in ' question that he requires the 'premises for the purpose of carrying on, his own, business. The fact that he has been carrying on the said business in the premises be" longing to the joint family does not disentitle him from getting his own building for the purpose of the business which he is, admittedly carrying on in cosmetics.

8. This position is clear form the decision of a Division Bench of this Court in Cr. P. No. 2343 of 1971in V. R. Jayaraman. N. S. Ramalingam., 1973 TLNJ 393. In that case, the landlord was carrying on a separate and independent business of his own in the premises belonging to a Hindu joint family of which he was a coparcener. When he applied for eviction in respect of the building belonging to him for the purpose of, locating his business it was resisted by the tenant on the ground that the land lord had been already in possession of a building of his own for his business' Admittedly the landlord had a share in the joint family property in which he was carrying on the business. This contention was rejected by the Division Bench holding that if, the property occupied for the business as a business of the landlord is a Hindu joint family property and not exclusively owned, by the petitioner-land lord, it can be taken that the petitioner was not occupying a building of his own and therefore he would be entitled to apply for eviction under S. 10(3)(a)(iii) for the two conditions set out therein, namely. (i) that the landlord is carrying on a business of his own, and (ii) that he is not occupying a non-residential building of his own are satisfied. 

IN THE HIGH COURT OF MADRAS

C.R.P. No. 1497 of 1982

Decided On: 05.01.1984

 Gopalakrishna Chettair Vs. W.K.A. Yakub Hussain

Hon'ble Judges/Coram:

G. Ramanujam, J.

Citation: AIR 1984 Mad 253

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Whether it can be held that father has subletted tenanted premises to son if both are residing in joint family?

 As far as subletting of tenanted premises is concerned, evidence on record reveals that there is no parting of possession of tenanted premises in favour of respondent No. 2. Respondent No. 2 is the son of Amarjit Singh who is the Proprietor of the tenant - Firm. Both father and son are admittedly living jointly having a common mess. Therefore, it is rightly held by both the learned courts below that the petitioner failed to prove that respondent No. 2 is having exclusive control over the business being run in the tenanted premises. Both the learned courts have rendered concurrent findings of fact on a correct appreciation of the evidence on record.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 3236 of 2004 (O&M)

Decided On: 14.02.2019

 Moorti Shri Sita Ram Vs.  Amar Metal Works and Ors.

Hon'ble Judges/Coram:

Lisa Gill, J.

Citation: 2019(1) RCR(Rent) 421

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Whether there is presumption that business standing in name of any member of joint family is joint family business?

THERE IS NO PRESUMPTION THAT A BUSINESS STANDING IN THE NAME OF ANY MEMBER OF THE JOINT FAMILY IS A JOINT FAMILY BUSINESS.

46. It is also settled law that there is no presumption that a business standing in the name of any member of the joint family is a joint family business. The Supreme Court in P.S. Sairam & Am. Vs. P.S. Rama Rao Pissey & Ors. MANU/SC/0085/2004 : (2004) 11 SCC 320 has held as under:-

"7. Crucial question in the present appeal is as to whether business which was conducted by defendant No. 1 was his separate business or it belonged to joint family, consisting of himself and his sons. It is well settled that so far as immovable property is concerned, in case the same stands in the name of individual member, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business. Reference in this connection may be made to a decision of this Court in the case of G. Narayana Raju v. G. Chamaraju: MANU/SC/0113/1968 : AIR 1968 SC 1276 wherein in a suit for partition defence was taken that business of Ambika Stores was separate business of defendant as the business did not grow out of joint family funds or at least by efforts of members of joint family which was accepted by the trial court as well as the High Court. When the matter was brought to this Court in appeal, upholding the judgment of the High Court, the Court observed thus at page 466:- (AIR p. 1278, para 3)

"It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate."

(emphasis supplied)

IN THE HIGH COURT OF DELHI

CS (OS) 2223/2013, 

Decided On: 04.02.2019

Aarshiya Gulati  Vs.  Kuldeep Singh Gulati and Ors.

Hon'ble Judges/Coram:

Manmohan, J.

Citation: AIR 2019(NOC) 577 Del
Read full judgment here: Click here

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Whether one member of joint family can take plea of adverse possession against another member?

In our opinion, the stand taken by the Defendants was wholly inconsistent. They first set up a plea of adverse possession but it was rightly held not proved. The Defendants, however, did not challenge this finding in the second appeal, which became final. Even otherwise, the plea of adverse possession was wholly misconceived and untenable. It is a settled law that there can be no adverse possession among the members of one family for want of any animus among them over the land belonging to their family.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7089 of 2010

Decided On: 04.12.2017

 Nanjegowda (D) by L.Rs. and Ors. Vs.  Ramegowda

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Navin Sinha, JJ.

Citation: (2018) 1 SCC 574

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Whether there will be separation of joint family status if one coparcener declares his intention to separate?

 It was also contended on behalf of the appellants that even though the partition deed was bogus there was in law a severance of joint family status and the family could not continue to be joint (1) I.L.R. 14 Bom. 463. (3) A.I.R. 1937 Bom. 279. (2) I.L.R. 33 Mad. 228. (4) A.T.R. 1943 P.C. 196.

after 20th April, 1944 which was the date of the partition deed. In other words, the argument was that there was a declaration by the coparceners of their intention to separate and that declaration was sufficient to put an end to the joint family. status of the two brothers. In our opinion, there is no substance in this argument. It is now well established that an agreement between all the copar- ceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimated to his co- sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeach- able. But in order to operate as a severance of joint status, it is necessary; that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If, however., the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status. 

Supreme Court of India

Mudigowda Gowdappa Sankh & Ors vs Ramchandra Ravagowda Sankh & Anr on 9 January, 1969

Equivalent citations: 1969 AIR 1076, 1969 SCR (3) 245

BENCH:
RAMASWAMI, V.
SHAH, J.C.
GROVER, A.N.

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Whether joint family of tenant can be treated as tenant?

We now come to the second challenge namely that the acquisition was by the joint family. In the first instance, the tenant is petitioner. The rent receipts are in the name of the petitioner. Mere fact that along with the tenant some others including his relatives may be staying, cannot convert the tenancy from the name of the petitioner into a joint family. If it could be so, the landlord at the time of letting the premises could have let out the premises to the joint family. In the instant case it is not so. The Appellate Court after considering the evidence on record and more so the fact that the father of the petitioner owns a room at Shahid Bhagatsingh road, Mumbai and the fact that the ration card of the father at that time was in Mumbai held that there was no jointness in the family.
Bombay High Court

Rajendraprasad Kedarprasad ... vs Shankar Vithu Kuveskar on 5 April, 2002

Equivalent citations: 2002 (3) BomCR 425, (2002) 4 BOMLR 126, 2002 (3) MhLj 498

Bench: F Rebello

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Leading Supreme Court Judgment on streedhan of married woman

The stridhan property of a married woman cannot acquire the character of a joint property of both the spouses as soon as she enters her matrimonial home so as to eliminate the application of section 406 IPC. The position of stridhan of a Hindu married woman's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes-She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. The entrustment to the husband of the stridhan property is just like something which the wife keeps in a bank and can withdraw any amount when ever she likes without any hitch or hindrance. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as 193

in famine, illness or the like, the husband can utilize it but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt. 

Equally, the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family with the leave and licence of a Hindu wife, cannot have the effect of extending the jointness Of control and custody of the couple to undefined and unreasonable limits. Consequently, there is no reason to assume that the mere user or enjoyment of the dowry by other members of the house-hold, would have the effect of passing the possession and control thereof jointly to the Hindu Undivided Family as such."

Supreme Court of India

Pratibha Rani vs Suraj Kumar & Anr on 12 March, 1985

Equivalent citations: 1985 AIR 628, 1985 SCR (3) 191

Bench: Fazalali, S Murtaza

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Whether second suit for partition is tenable if there is decree in first suit for partition?

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.
In other words, if the person who seeks subsequent partition is found to be responsible for obstructing the finalisation of the actual division of the joint properties by metes and bounds and delivery thereof, he has no locus standi to come forward with a subsequent suit for partition on the ground that the earlier partition decree has not yet been enforced. The plaintiff deposing as P.W. 7 has admitted that the Commissioner had several times gone to effect Takhata-Bandi in respect of the decree of partition suit of 3 of 1948. His plea however, is that since Commissioner has tried to effect Takhatbandi only in respect of the properties of Chaibasa hence he (plaintiff) and his father and brother have been preventing Commissioner from effecting the division and Takhtabandi. Thus there is admission on the part of the plaintiff that he and his father and brother have obstructed the Pleader Commissioner from effecting Takhtabandi. His plea for such obstruct ion is obviously not tenable. The Schedule C properties were not the subject-matter of title suit No. 3 of 1948 and hence whatever may be claimed of the plaintiff in respect of the same, this could be no ground for the plaintiff or his father or brother to obstruct the Pleader Commissioner from effecting division of the properties which were the subject-matter of title suit No. 3 of 1948. Obviously therefore the plaintiff and his father and brother are the persons who put obstruction in bringing to finality the partition decree passed in title suit 3 of 1948 and if they are allowed to prosecute the present partition suit in respect of the Schedules B and D property it will only mean that they are being encourage to take advantage of their own wrongful Conduct. 

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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