Supreme court: When Joint Hindu Family Property Is Partitioned, Shares Of Parties Become Their Self-Acquired Properties

It cannot be disputed that the properties divided among Defendant No. 1 and his brothers through partition deed dated 09.05.1986, are joint family properties. However, as per Hindu law, after partition, each party gets a separate and distinct share and this share becomes their self-acquired property and they have absolute rights over it and they can sell, transfer, or bequeath it as they wish. Accordingly, the properties bequeathed through partition, become the self-acquired properties of the respective sharers. {Para 17}

19. As reiterated above, after the joint family property has been distributed in accordance with law, it ceases to be joint family properties and the shares of the respective parties become their self-acquired properties. Hence, the suit property acquired by Defendant No. 1 became his self-acquired property, on being sold by his brother Thippeswamy to him, vide sale deed dated 16.10.1989. 

In the Supreme Court of India

(Before J.B. Pardiwala and R. Mahadevan, JJ.)

Angadi Chandranna Vs  Shankar and Others 

Civil Appeal No. 5401 of 2025

Decided on April 22, 2025

Citation: 2025 SCC OnLine SC 877,2025 INSC 532.

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Protecting Minors' Interests in Joint Family Property Sales: A Judicial Perspective

In the complex realm of joint family property, the legal nuances surrounding the sale of such assets, particularly when minors are involved, require careful consideration. Recently, a petitioner argued that since the property in question was part of a joint family estate, obtaining court permission for its sale was unnecessary. This scenario raises critical questions about the legal framework governing joint family property transactions and the measures courts must take to safeguard the interests of minors. Below, we delve into the legal position, evidentiary requirements, and appropriate judicial orders in such cases.

Legal Position on Court Permission for Joint Family Property Sales

Under Hindu law, the Karta (manager) of a Joint Hindu Family (JHF) is empowered to alienate joint family property, including a minor’s undivided share, without court permission, provided the sale is for legal necessity (e.g., debt repayment, family maintenance) or benefit of the estate (e.g., preventing loss, improving property value). Sections 6 and 12 of the Hindu Minority and Guardianship Act, 1956, exempt court approval when the Karta manages undivided minor shares in joint family property. However, if the property is partitioned and the minor’s share is demarcated, court permission becomes mandatory.

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Supreme Court: Co-Owner Whose Share In Joint Property Remained Undetermined Cannot Transfer Entire Property

 The suit property which is undivided is left with the

co-owners to proceed in accordance with law to get their

shares determined and demarcated before making a

transfer. {Para 24}

25. The point for determination formulated in paragraph 12

above is accordingly answered and it is held that Brij

Mohan alone was not competent to transfer the entire

property without getting his share determined and

demarcated so as to bind the other co-owners.

Accordingly, the defendant-appellant S.K. Golam

Lalchand has rightly been restrained by the decree of

injunction in acting in derogation of the propriety rights

of the co-owners until and unless the partition takes

place.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4177 OF 2024

SK. GOLAM LALCHAND Vs NANDU LAL SHAW @ NAND LAL KESHRI @ NANDU LAL BAYES & ORS.

Author: PANKAJ MITHAL, J.

Citation: 2024 INSC 676.

Dated: SEPTEMBER 10, 2024. 

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Bombay HC: An adult member can sell the Minor's undivided interest in joint family property if it is for legal necessity

Hindu Minority and Guardianship Act (1956), Ss.6,8,12 - Minor's undivided interest in joint family property - Sale of minor's share - An adult member can sell the minor's share if it is for legal necessity - S.8 would not be applicable to minor's interest in the joint family property.

So far as Section 6 is concerned, it speaks about the natural guardian of a Hindu minor. However, it specifically excludes a minor's undivided interest in joint family property. Thus, the natural guardian father and, thereafter, the mother cannot be considered as natural guardian in respect of his undivided interest in joint family property. Section 8 lays down the powers of natural guardian. Since section 6 excludes the minor's undivided interest in the joint family property, section 8 also, would not be applicable to the minor's share in the undivided interest in the joint family property. Thus, the provisions of obtaining prior permission by the natural guardian as envisaged under section 8 sub-clause (2) would not arise in respect of a minor's undivided interest in the joint family property. Section 12 of the Act carves out an exception in respect of a minor's undivided interest in the joint family property when it states that the guardian is not to be appointed in respect of his undivided interest in joint family property. It further states that if a minor has an adult member and the property is under the management of the joint family property, no guardian should be appointed for the minor. Thus, an exception is carved out in respect of minor's interest in an undivided joint family property. Thus in view of the said provision an adult member can sell the minor's share if it is for legal necessity. [Para 12]

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

Vishwanath S/O Bhika Kolase & Anr.Vs.Kisan Mahadeo Bahadure & Ors.

Second Appeal No.241 of 1990

4th April, 2003

Coram: V.M. KANADE, J.

                  Citation: 2003(4) ALL MR 1093.

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Whether Daughter will Lose Right In Joint Family Property if Dowry Was Paid At Her Marriage?

 The evidence on record shows that the joint family property was purported to be exclusively usurped by the brothers to exclude the sisters. Merely because one of the sisters deposed in favour of the brothers does not mean that the issue of family arrangement or oral partition was duly proved. There is no evidence about providing a sufficient dowry to the daughters of the house. However, even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father's demise.{Para 86}

 IN THE HIGH COURT OF BOMBAY AT GOA

Second Appeal No. 89 of 2005

Decided On: 16.03.2023

Terezinha Martins David Vs. Miguel Guarda Rosario Martins and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: MANU/MH/1005/2023.

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Can brothers exclude their sisters from joint family property on the ground that dowry was paid at the time of their sisters' marriage?

The evidence on record shows that the joint family property was purported to be exclusively usurped by the brothers to exclude the sisters. Merely because one of the sisters deposed in favour of the brothers does not mean that the issue of family arrangement or oral partition was duly proved. There is no evidence about providing a sufficient dowry to the daughters of the house. However, even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father's demise. 

{Para 86}

IN THE HIGH COURT OF BOMBAY AT GOA

Second Appeal No. 89 of 2005

Decided On: 16.03.2023

Terezinha Martins David Vs. Miguel Guarda Rosario Martins and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: MANU/MH/1005/2023,2023 Lawweb (Bom HC ) 20.

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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 the court can rely on the plea of a coparcener that property is a self-acquired property in the absence of a specific pleading and independent nucleus for acquiring property?

  It is an admitted fact that, plaintiff No.1 is the

legally wedded wife of defendant No.1 and out of the said

wedlock, plaintiff No.2 is born. The plaintiffs are claiming

share in the share of defendant No.1. According to the

plaintiffs, all the suit schedule properties are joint family

properties. Now by filing I.A.1/2020 under Order XLI Rule

27 of CPC, the defendants/appellants are attempting to

make out a case that, some of the suit schedule properties

are purchased by defendant Nos.2 to 4 and they are their

self acquired properties. However, on perusal of the

written statement of the defendants, no such plea was

raised before the trial Court. Further, there is no pleading

that, apart from the joint family nucleus, the defendants

had any independent nucleus so as to acquire any separate

property in the name of the respective defendants. In the

absence of specific pleadings, the documents which are

now sought to be produced have no relevancy.

15. The status of the plaintiffs is admitted in the

written statement itself. It is also an admitted fact that the

joint family is having sufficient properties and it has got

nucleus to acquire the properties. Under such

circumstances, when there is no specific plea in the written

statement, presumption is that, the properties acquired

subsequently are with the aid of the joint family properties

and as such, they acquire the character of joint family

itself. Hence, I.A.1/2020 does not survive for consideration.

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

PRESENT

 MR. JUSTICE H.T.NARENDRA PRASAD

AND

 MR. JUSTICE RAJENDRA BADAMIKAR

REGULAR FIRST APPEAL No.100256/2015

TANAJI S/O NAYAKU NIKAM, Vs  BHARATI W/O TANAJI NIKAM,

Author: RAJENDRA BADAMIKAR, J.,

DATED:  15th DAY OF MARCH 2022

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Whether son can challenge alienation of joint family property by father for legal necessity?

  Once the factum of existence of legal necessity

stood proved, then, in our view, no co-coparcener

(son) has a right to challenge the sale made by the

karta of his family. The plaintiff being a son was one of

the co-coparceners along with his father Pritam Singh.

He had no right to challenge such sale in the light of

findings of legal necessity being recorded against him.

It was more so when the plaintiff failed to prove by any

evidence that there was no legal necessity for sale of

the suit land or that the evidence adduced by the

defendants to prove the factum of existence of legal

necessity was either insufficient or irrelevant or no

evidence at all.” {Para 26} 

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7037 OF 2021

BEEREDDY DASARATHARAMI REDDY  Vs V. MANJUNATH AND ANOTHER 

Author: SANJIV KHANNA, J.

Dated: DECEMBER 13, 2021.

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Can one brother sell the property to a stranger if there is a preferential offer clause in the family settlement?

The question is to whether clause (5) in question is vague and unenforceable. We noticed that it provides that the property in question cannot be sold without concurrence of the three brothers in writing. If it is sold on the agreement of three brothers, the first preference is to be given to both other brothers. When it is stated that the property cannot be sold without concurrence of the three brothers in writing, there cannot be any doubt about its meaning. It means what it says which is that should a brother want to sell the property, the other two brothers must agree in writing. This clause cannot be described as vague. This is different from the aspect as to whether it is a clog on ownership or whether it is otherwise unenforceable but it cannot be described as being vague. The second contention is that when a decision is taken by the brothers permitting sale by a third brother, then, first preference is to be given to both the other brothers. What is intended is that after the written concurrence is obtained for selling in order that property is not sold to a third party/stranger, the other two brothers are given an opportunity to buy that property. This portion of the clause cannot also be described as vague as such. No doubt, it could be argued that the price at which the offer is to be made is not expressly mentioned. We have found that the clause is part of a family settlement between brothers. Courts ordinarily lean in favour of family settlement. Clause (5) itself does not contain an agreement to sell. It only contemplates a preferential offer being treated as a condition precedent to a brother affecting a sale outside of a family to a stranger. The price can only be understood as market price which would be the fair price. Therefore, we are of the view that the finding by the High Court that contract is vague cannot be sustained.

51. The first defendant has sold his share to the second defendant. Under the clause, can the first defendant sell to a stranger? He can sell provided there was a written concurrence by the other brothers for a sale and the offer is made to the other brothers and it does not fructify into a sale for reasons which are not attributable to the brother who wishes to sell. We find that there was an offer to the appellant by the first defendant. He has failed to act upon it. The other brother has no case about offer not being made and he has not raised any dispute over the sale to the second defendant. The perusal of the plaint reveals that the following case has been set up by the plaintiff: “7. that the defendant no.1 was interested in disposing his share in House no.19-A, Chandigarh and the plaintiff was already and willing to purchase the portion of the defendant no.1 and the plaintiff has been expressing his readiness willingness to purchase the share of the defendant no.1 through number of Regd. Letters, telephone and even on FAX. 8. That the defendant no.1 as well as his wife and son has been corresponding and discussing on behalf of the defendant no.1 promising to sell the property to the plaintiff as defendant no.3 did not show any interest to purchase the share of defendant no.1 nor he was interested at all to purchase the 1/3rd share of the defendant no.1 in the property.

9. that the plaintiff was shocked and surprised to learn that the defendant no.1 has sold his 1/3rd share of the property to defendant no.2 a tenant who was already occupying the said portion in a totally secret manner without informing the plaintiff and against the terms and conditions of agreement of family partition and minutes dated 31.3.1982 arrived between plaintiff, defendant no.1 and defendant no.3. the site plan showing the portion sold by the defendant no.1 to defendant no.2 (in red) is attached with this plaint.” (Emphasis supplied)

52. Thus, what is sought is specific performance. The appellant proceeded in the suit on the basis that there is a contract. A contract presupposes an offer which is accepted which means that there was an offer from the defendant. The correspondence, which we have referred to, fortifies us in holding that there was an effective offer and it did not materialize on account of any default on the part of the plaintiff.

53. Now, if the clause is broken down, it involves the following steps. A brother announces his desire to sell his share. He seeks written concurrence of the other brothers. A written concurrence is given. Then, the next step is reached. The selling brother offers to sell it to the other brothers. If they take the offer and the price is agreeable to the parties, sale follows. If the brothers do not wish to buy, the sale to the strangers is permitted. In the above process, in the facts of this case, it is clear that the appellant and the first defendant, without insisting on the written concurrence, went to the stage of offer to brothers. The appellant has led the first defendant to assume, even without a written concurrence, that the sale is permitted. The first defendant has acted clearly on the basis that the requirement of the first stage was not being insisted upon. Otherwise, he could have certainly obtained the concurrence. Having thus acted in the matter, and the second stage having been reached, when for reasons where the fault cannot be attributed to the first defendant, the offer, which the appellant himself describes as reasonable, was

not seized upon by the appellant, the third stage emerged. This meant that it became open to the first defendant to sell to a stranger and which is what he did by it selling it to the second defendant. Even proceeding to enforce the clause, we find that the appellant is clearly estopped from setting up the plea of absence of written consent of the brothers. It would be inequitable, particularly when we are considering the matter in an appeal sourced under Article 136 of the Constitution of India.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1524-1525 OF 2019

TILAK RAJ BAKSHI Vs  AVINASH CHAND SHARMA

Author: K.M. JOSEPH, J.

Dated: AUGUST 20, 2019.

Citation: (2020) 15 SCC 605.

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When can the daughter not claim that her mother is in a fiduciary relationship with her?

  To establish a fiduciary relationship of the mother (D1) with her children, the appellant has once again used the same facts and chain of reasoning. It was submitted that the compensation paid to Yashpal Sain for the acquisition of his land, was ploughed back for the purchase of the suit property and since all the legal heirs were entitled to inherit the assets of Yashpal Sain on his death, she had a 1/4th share in the suit property and therefore, D1 held it only in a fiduciary capacity for all of the legal heirs and the allotment of the suit property and the documentation in the sole name of D1 could not nullify her rights in it. It was sought to be pointed out that D1 in her letter to the Society had herself stated that she was seeking the allotment of the very plot of land earlier allotted to her husband and was seeking it only to be able to take care of her children and therefore, it was clear that she was allotted the plot of land only in a fiduciary capacity. The appellant emphasized that her siblings were minor at that time and she herself was barely 18 years old, but still contributed her share in her father’s assets towards the cost of the suit property. These facts were enough to establish that D1 was holding the suit property in a fiduciary capacity.{Para 28}

29. However, we are unable to accept this submission. Being a mother, D1 would have naturally assumed the role of the caretaker of her children including the appellant after the death of her husband. By setting out a ground for allotment of a plot to her, it cannot be assumed that D1 had entered into a fiduciary relationship with her children. Fiduciary relationships have legal connotation and are not equivalent to filial relationships. Fiduciary relationships or capacity involve the existence of a duty or obligation that is more than parental duties or obligations.

 58. The scope of fiduciary relationship consists of the following rules:

“(i) No conflict rule — A fiduciary must not place himself in a position where his own interests conflict with that of his customer or the beneficiary. There must be ‘real sensible possibility of conflict’.

(ii) No profit rule — A fiduciary must not profit from his position at the expense of his customer, the beneficiary.

(iii) Undivided loyalty rule — A fiduciary owes undivided loyalty to the beneficiary, not to place himself in a position where his duty towards one person conflicts with a duty that he owes to another customer. A consequence of this duty is that a fiduciary must make available to a customer all the information that is relevant to the customer's affairs.

(iv) Duty of confidentiality — A fiduciary must only use information obtained in confidence and must not use it for his own advantage, or for the benefit of another person.”

32. The facts and circumstances surrounding the acquisition of the suit property by D1 and its subsequent use do not establish any of the above elements. A parent would be in a fiduciary relationship with an offspring only when the child lacks legal capacity due to minority or disability and the relationship discloses an absolute dependency on the parent for decision making. The appellant was 18 years old and legally major when the suit property was purchased. Her very case is that she consciously allowed her mother to take the property in her own name and voluntarily, even paid for it. There are no facts pleaded to show how D1 had ever established superior control over the appellant and took over her responsibility. No duty or obligation is stated to have been taken by D1 to advice the appellant or that the appellant was completely dependent on D1 for such advice. Rather, according to the appellant, her husband had all along helped D1 in dealing with the suit property. There is no pleading to the effect that a Trust had been created for the children of late Yashpal Sain and D1 had been appointed its Trustee.

33. In short, there is nothing to show that D1 had taken the allotment of the suit property for the benefit of her family and that she was holding it in trust for her children and that in view of the fiduciary nature of her title, even if the documents are recorded only her name, the appellant had a right to claim a share in the property. The decision in Marcel Martins Vs. M. Printer and others, (2012) 5 SCC 342 is distinguishable on facts as in that case, the Municipal Authorities had insisted on mutating the property only in the name of one legal heir whereas the husband and all children of the deceased owner had inherited the property jointly on her death. Here the suit property was not in existence at the time of the death of Yashpal Sain as it was allotted to D1after his death.

34. While the mother may be ethically and morally bound to do the best in the interests of her children, there is no legal duty placed on her to act solely in the interests of her children (unless minor or disabled), unlike a situation where apart from being a mother, she was required to act as their Trustee in a Trust created for their benefit or was the Karta of an HUF obligated to act in the best interest of the coparceners. When no fiduciary capacity has been established, it is apparent that the appellant’s claim is not covered under Section 4(3)(b) either. This Exception is also not available to the appellant to escape the rigours of the prohibition of Section 4 of the Benami Act and the learned Single Judge rightly held the claim to be barred by law.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Date of Decision: 03rd November, 2020

 RFA (OS) 63/2018

SAVITA ANAND  Vs  KRISHNA SAIN 

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

HON'BLE MS. JUSTICE ASHA MENON

[VIA VIDEO CONFERENCING]

JUSTICE ASHA MENON

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Whether Married Hindu Woman can give property that she has inherited from her husband in Family Settlement to her brothers' children?

Reverting to the facts of the present case,

admittedly, the defendants-respondents were nephews,

i.e., brother’s sons of Smt. Jagno. We need to look

into the Hindu Succession Act, 1956, Section 15,

which deals with the general rules of succession in

the case of female Hindus for properties inherited by

female Hindus, which are devolved in according to

Sections 15 and 16. Section 15(1), which is relevant

is as follows:-

“15. General rules of succession in the

case of female Hindus.—(1)The property of

a female Hindu dying intestate shall

devolve according to the rules set out in

section 16,—

(a) firstly, upon the sons and daughters

(including the children of any predeceased

son or daughter) and the husband;

(b) secondly, upon the heirs of the

husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the

father; and

(e) lastly, upon the heirs of the mother.”

27. A perusal of Section 15(1)(d) indicates that

heirs of the father are covered in the heirs, who

could succeed. When heirs of father of a female are

included as person who can possibly succeed, it

cannot be held that they are strangers and not the

members of the family qua the female.

28. In the present case, Smt. Jagno, who as a widow

of Sher Singh, who had died in 1953, had succeeded to

half share in the agricultural land and she was the

absolute owner when she entered into settlement. We,

thus, do not find any merit in the submission of

learned counsel for the appellants that the

defendants-respondents were strangers to the family.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5167 of 2010

KHUSHI RAM Vs NAWAL SINGH 

Author: ASHOK BHUSHAN, J.

Dated: February 22, 2021.

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Whether court can infer existence of joint family property if two brothers are carrying on business jointly?

 The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal v. Reoti Devi MANU/SC/0374/1961 : AIR 1962 SC 287. Both the parties have placed reliance on the this judgment. In this case this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in Bhagwati Prasad Sah and Ors. v. Dulhin Rameshwari Kuer and Ors. MANU/SC/0060/1951 : (1951) 2 SCR 603, it held as follows:

.... Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law.

The Privy Council in Appalaswami v. Suryanarayanamurti MANU/PR/0051/1947 : I.L.R. 1948 Mad. 440 held as follows:

The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property

The aforesaid view was accepted by this Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors. MANU/SC/0126/1954 : (1955) 1 SCR 1. In D.S. Lakshmaiah and Ors. v. L. Balasubramanyam and Ors. MANU/SC/0639/2003 : (2003) 10 SCC 310 this Court held as follows:

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.

Similar view was taken in Mst Rukhmabai v. Lala Laxminarayan and Ors. MANU/SC/0186/1959 : (1960) 2 SCR 253 and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade MANU/SC/8597/2006 : (2007) 1 SCC 521. The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.

11. Normally, an HUF can only comprise of all the family members with the head of the family being karta. Some property has to be the nucleus for this joint family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. But assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the Plaintiff to prove that the two of them joined together to form an HUF. To prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6875 and 6876-6877 of 2008

Decided On: 03.04.2020

Bhagwat Sharan (Dead) thr. L.Rs.  Vs. Purushottam and Ors.

Hon'ble Judges/Coram:

L. Nageswara Rao and Deepak Gupta, JJ.

Citation: MANU/SC/0354/2020, 2021(1) MHLJ 485

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Whether the widow of one brother can claim Benami joint ownership of the property if it is in the name of another brother?

Furthermore, it is essential to observe that the present appellant's claim also does not fall within the exception (iii) to Section 2(9)(A) of the Prohibition of Benami Property Transactions Act, 1988 which reads to the effect as under:-

"2. Definitions.-In this Act, unless the context otherwise requires,--

(8) "benami property" means any property which is the subject matter of a benami transaction and also includes the proceeds from such property;

(9) "benami transaction" means,--

(A) a transaction or an arrangement--

(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration,

except when the property is held by--

(i) .

(ii) .

(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;

(iv) .",

as observed by this Court in Deepak Aggarwal & Anr. Vs. Shakuntala Devi (Supra), the benefit of the said provision also can only be considered to be in relation between the individual who has paid for the purchase of any property as consideration in the name of his spouse or in the name of the child of any such individual and can certainly not relate back to any other property or joint property or an HUF property or any trust property in relation to which there is only an averment made on behalf of the appellant in the written statement that the property in question was purchased with the funds of her deceased spouse or her father in law.

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

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Whether injunction application to restrain daughter-in-law from entering the marital home is maintainable?

 In the present case, the first defendant has squarely questioned the title, of the plaintiff, to the suit property, and has contended that it is joint family property. She has claimed her right, therein, not merely on the ground that it is her matrimonial home, but as the mother of a coparcener to the joint family. These disputes required to be adjudicated, in the suit, and no order, interlocutory or otherwise, can be passed on the premise that the plaintiff is right, and the first defendant is wrong.

35. In my opinion, it is not necessary to enter, deeply, into the circumstances in which mandatory, or prohibitory, injunction, can be granted at an interim stage, as these principles are well settled. The decisions, on which Ms. Rajkotia relies, and which have been cited hereinabove, clearly indicate that, essentially, a plaintiff, in order to be justified to claim an interlocutory mandatory, or prohibitory, injunction, has to establish (i) a strong case in his favour, the standard being higher than that of a prima facie case, (ii) that denial of prohibitory injunction would result in irreparable loss to her, and (iii) that the balance of convenience is decidedly in favour of grant of mandatory, or prohibitory, injunction at the interlocutory stage. Additionally, grant of mandatory or prohibitory injunction, at an interim stage, has been approved where the failure, to do so, would result in the suit becoming infructuous, or the final relief, sought therein, being rendered illusory. None of these criteria are satisfied, in the present case. Most importantly, the first defendant had been residing with the plaintiff, since 2002 (or, at the latest, 2014, even if the plaintiff's stand were to be accepted), and it was only on 10th May, 2020 the first defendant left the house of the plaintiff, to visit her mother. It cannot, therefore, be said, by any stretch of imagination, that, by allowing the defendant to return to the house, where she had been staying till 10th May, 2020, irreparable harm would ensue, to the plaintiff. Mere bald assertions, to the effect that the first defendant was harassing the plaintiff, can hardly suffice. Given the option between allowing the first defendant to return to her matrimonial home, where she had been residing since 2002, or 2014, and banishing her, at least during the pendency of the suit, therefrom, the balance of convenience is also, decidedly, in favour of the former, rather than the latter, alternative.

36. Ms. Rajkotia had sought to submit that, were injunction, as prayed by her, in this application, not granted at this stage, the suit would be rendered effectively infructuous, as it would linger on for years. The submission fails to impress. The prayer, in the suit, is for a decree of possession, in favour of the plaintiff and against the defendants, in respect of the suit property, and for the decree of permanent injunction, restraining the first defendant from interfering with the peaceful possession of the suit property, by the plaintiff. In fact, the prayer, in the present application, effectively seeks grant of the prayers in the suit, before the suit is tried and at an interlocutory stage. If this Court were to restrain the first defendant, at this stage itself, from returning to the suit property, the plaintiff would secure possession thereof, and, effectively, a permanent injunction, in terms of prayer (b) in the suit, would also be granted. The plaintiff, therefore, effectively seeks decreeing of the suit without a trial.

IN THE HIGH COURT OF DELHI

I.A. 4618/2020 in CS (OS) 506/2018

Decided On: 02.07.2020

Anita Chopra  Vs.  Rohini Chopra

Hon'ble Judges/Coram:

C. Hari Shankar, J.

Citation: MANU/DE/1332/2020

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Supreme Court: Precaution to be taken by the court if, in the suit for partition of joint family property filed by a daughter, defence of prior partition is taken

Earlier, an oral partition was permissible, and at the same time,

the burden of proof remained on the person who asserted that there was a partition. It is also settled law that Cesser of Commonality is not conclusive proof of partition, merely by the reason that the members are separated in food and residence for the convenience, and separate residence at different places  due to service or otherwise does not show separation. Several acts, though not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares in the joint property in the revenue of land registration records, mutual transactions, as observed in Bhagwani v. Mohan Singh, AIR 1925 PC 132, and Digambar Patil v. Devram, AIR 1995 SC 1728.

125. The severance of status may take place from the date of filing of

a suit; however, a decree is necessary for working out the results of

the same, and there may be a change of rights during the pendency of

the suit for allotting definite shares till final decree is passed. There

are cases in which partition can be reopened on the ground of fraud or

mistake, etc. or on certain other permissible grounds. In appropriate

cases, it can be reopened at the instance of minor also.

126. The protection of rights of daughters as coparcener is envisaged

in the substituted Section 6 of the Act of 1956 recognises the partition

brought about by a decree of a court or effected by a registered

instrument. The partition so effected before 20.12.2004 is saved.

127. A special definition of partition has been carved out in the

explanation. The intendment of the provisions is not to jeopardise the

interest of the daughter and to take care of sham or frivolous

transaction set up in defence unjustly to deprive the daughter of her

right as coparcener and prevent nullifying the benefit flowing from the

provisions as substituted. The statutory provisions made in section

6(5) change the entire complexion as to partition. However, under the

law that prevailed earlier, an oral partition was recognised. In view of

change of provisions of section 6, the intendment of legislature is clear

and such a plea of oral partition is not to be readily accepted. The

provisions of section 6(5) are required to be interpreted to cast a heavy

burden of proof upon proponent of oral partition before it is accepted

such as separate occupation of portions, appropriation of the income,

and consequent entry in the revenue records and invariably to be

supported by other contemporaneous public documents admissible in

evidence, may be accepted most reluctantly while exercising all

safeguards. The intendment of Section 6 of the Act is only to accept

the genuine partitions that might have taken place under the

prevailing law, and are not set up as a false defence and only oral ipse

dixit is to be rejected outrightly. The object of preventing, setting up of

false or frivolous defence to set at naught the benefit emanating from

amended provisions, has to be given full effect. Otherwise, it would

become very easy to deprive the daughter of her rights as a

coparcener. When such a defence is taken, the Court has to be very

extremely careful in accepting the same, and only if very cogent,

impeccable, and contemporaneous documentary evidence in shape of

public documents in support are available, such a plea may be

entertained, not otherwise. We reiterate that the plea of an oral

partition or memorandum of partition, unregistered one can be

manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

128. The expression used in Explanation to Section 6(5) ‘partition

effected by a decree of a court’ would mean giving of final effect to

actual partition by passing the final decree, only then it can be said

that a decree of a court effects partition. A preliminary decree

declares share but does not effect the actual partition, that is effected

by passing of a final decree; thus, statutory provisions are to be given

full effect, whether partition is actually carried out as per the

intendment of the Act is to be found out by Court. Even if partition is

supported by a registered document it is necessary to prove it had

been given effect to and acted upon and is not otherwise sham or

invalid or carried out by a final decree of a court. In case partition, in

fact, had been worked out finally in toto as if it would have been

carried out in the same manner as if affected by a decree of a court, it

can be recognized, not otherwise. A partition made by execution of

deed duly registered under the Registration Act, 1908, also refers to

completed event of partition not merely intendment to separate, is to

be borne in mind while dealing with the special provisions of Section

6(5) conferring rights on a daughter. There is a clear legislative

departure with respect to proof of partition which prevailed earlier;

thus, the Court may recognise the other mode of partition in

exceptional cases based upon continuous evidence for a long time in

the shape of public document not mere stray entries then only it

would not be in consonance with the spirit of the provisions of Section

6(5) and its Explanation.

R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. DIARY NO.32601 OF 2018

VINEETA SHARMA Vs  RAKESH SHARMA 

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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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What is difference between succession and survivorship as per Hindu Succession Act?

Prior to enactment of Hindu Succession Act 1956,on the death of one coparcener of joint family,other coparceners of joint family were getting property of joint family by survivorship and was not inherited by his legal heirs. This rule was partly abrogated by Hindu Succession Act 1956 and totally abrogated by Hindu Succession Amendment Act 2005.Now joint family property is inherited by legal heirs of deceased and not by other coparceners of joint family. Joint family property passes to legal heirs of deceased by succession or inheritance. 

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Whether court can presume that there was partition if one co-owner is in possession of part of property for long time?

 The second plea relates to the fact that there has been demarcation of the shares and the parties have been occupying their respective demarcated areas since 1954. This plea is also misplaced.

19. I may note that there is no averment in the written statement that a partition took place and the parties subsequent to the partition have continued to occupy the area that fell to their share. There are also no documents filed by any of the defendants to support the plea that any partition took place amongst the co-owners or that the parties agreed that the demarcated area that they are occupying, are their respective shares from the property in question.

20. It also cannot follow that mere long occupation of a particular area by a co-owner implies that a partition has taken place amongst the co-owners.

21. Reference in this context may be had to the judgment of the Supreme Court in Chinthamani Ammal vs. Nandagopal Gounder and Another, MANU/SC/7126/2007 : (2007) 4 SCC 163 where the Supreme Court held as follows:-

"17. In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefore."

22. Hence, being in possession of a part of the property does not ipso facto mean that any partition has taken place. In fact no partition has been pleaded in the written statement. Hence, mere long occupation of certain areas by a co-owner does not debar the filing of a partition suit.

IN THE HIGH COURT OF DELHI

CS (OS) 224/2017, IAs. 6234 and 12851/2017

Decided On: 13.03.2020

Sushil Kumar Agarwal  Vs.  Ravi Narayan Agarwal 

Hon'ble Judges/Coram:

Jayant Nath, J.

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