Under which circumstances coparceners can challenge alienation of immovable property done by karta of joint hindu family?

  It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex.P1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See: Thimmaiah and Ors. Vs. Ningamma and Anr; (2000) 7 SCC409). Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation.{Para 12}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

Coram:  S. ABDUL NAZEER; KRISHNA MURARI, JJ.

 CIVIL APPEAL NO. 2582 OF 2010;

Dated: April 19, 2022

 K.C. LAXMANA Vs K.C. CHANDRAPPA GOWDA & ANR.

Author: S. ABDUL NAZEER, J.

Read full Judgment here: Click here.

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Whether Karta of a joint Hindu family must obtain the permission of the court for disposal of immovable property involving an undivided interest of the minor?

 A conjoint reading of the provisions contained in sections 6, 8

and12 of the Act, indicates that natural guardian of the property of Hindu minor is enjoined to seek permission of the Court to dispose of any immovable property of the minor. However, where the minor has undivided interest in the joint family property, the previous permission of the Court under section 8 of the Act for disposing of the undivided interest of the minor in the joint family property is not required. In other words, in view of the provisions contained in section 6 and 12, the permission envisaged under section 8 of the Act would not be required where a joint family property is alienated by Karta involving an undivided interest of minor in the said joint Hindu family property. A useful reference in this context can be

made to the judgment of the Supreme Court in the case of Sri

Narayan Bal & Others vs. Sridhar Sutar & Ors (1996) 8 Supreme Court Cases 54.. The observations in paragraph 5 are material and hence, extracted below. {Para 20}

5. With regard to the undivided interest of the Hindu minor

in joint family property, the provisions afore-culled are beads

of the same string and need be viewed in a single glimpse,

simultaneously in conjunction with each other. Each

provision, and in particular Section 8, cannot be viewed in

isolation. If read together the intent of the legislative in this

beneficial legislation becomes manifest. Ordinarily the law

does not envisage a natural guardian of the undivided interest

of a Hindu minor in joint family property. The natural

guardian of the property of a Hindu minor, other than the

undivided interest in joint family property, is alone

contemplated under Section 8, where under his powers and

duties are defined. Section 12 carves out an exception to the

rule that should there be no adult member of the joint family

in management of the joint family property, in which the

minor has an undivided interest, a guardian may be

appointed; but ordinarily no guardian shall be appointed for

such undivided interest of the minor. The adult member of the

family in the management of the Joint Hindu Family property

may be a male or a female, not necessarily the Karta. The

power of the High Court otherwise to appoint a guardian, in

situations justifying, has been preserved. This is the legislative

scheme on the subject. Under Section 8 a natural guardian of

the property of the Hindu minor, before he disposes of any

immovable property of the minor, must seek permission of the

court. But since there need be no natural guardian for the

minor's undivided interest in the joint family property, as

provided under sections 6 to 12 of the Act, the previous

permission of Court u/s. 8 of disposing of undivided interest of

the minor in the joint family property is not required. The joint

Hindu family by itself is a legal entity capable of acting

through its Karta and other adult members of the family in

management of the joint Hindu family property. Thus section

8 in view of the express terms of Sections 6 and 12 , would not

be applicable where a joint Hindu family property is

sold/disposed of by the Karta involving an undivided interest

of the minor in the said joint Hindu family property. The

question posed at the outset therefore is so answered.

(emphasis supplied)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION NO.1499 OF 2021

IN

SUIT NO.108 OF 2021

Hriday Niraj Mehta  Vs. Umesh Jayantilal Mehta and Others 

CORAM : N. J. JAMADAR, J.

PRONOUNCED ON : 15th FEBRUARY, 2022

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Whether court can treat the tenanted property as joint family property if Karta is the tenant of said property?

 A perusal of the facts on record would show that it was a contract of tenancy entered upon by great grandfather of the plaintiff. Even if the great grandfather was maintaining the family out of the income generated from the hotel business, that itself would not make the other family members as coparceners in the hotel business. It was the contract of tenancy which was inherited by the grandfather of the plaintiff who later surrendered it in favour of the Wakf Board. The tenancy was an individual right vested with the grandfather of the plaintiff who was competent to surrender it to the landlord. The High Court has clearly erred in law by holding that since the grandfather was a tenant, the tenancy is a joint family asset. The contract of tenancy is an independent contract than the joint Hindu family business.{Para 32}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6149 OF 2015

KIRAN DEVI  Vs THE BIHAR STATE SUNNI WAKF BOARD

& ORS.

Author: HEMANT GUPTA, J.

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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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Bombay HC: Basic principles which court should follow while declaring any one member of the family as a tenant

Accommodation is a serious problem facing people. Practically in every tenanted premises along with the tenant scores of other relatives reside. After the death of the tenant there is always an attempt to claim tenancy rights in the suit premises with the help of Section 5(11)(c) of the Rent Act. It is, therefore, for the court to find out who really can get the benefit of Section 5(11)(c). For this the court has to take into consideration various factors such as who was accepted as a tenant by the landlord, whether other members who are putting up a claim had accepted that person as a tenant or whether they had resisted the claim of that person to tenancy at any time, and in some cases wishes of the deceased tenant. In this connection it is necessary to quote the relevant observations of this court in Gool Rustomji's case (supra);

"Whenever persons who are members of the tenant's family start a scramble for the tenancy rights, in a sense the war of succession begins. Succession to the property of the deceased is generally decided by applying the rules of succession forming part of the personal law of the parties. But the law of succession is substantially modified while resolving the disputes which arise after the death of the tenant, whether statutory or contractual. If the several members, who are residing as members of the tenant's family, fail to come to an agreement, then the Court has to make the choice and declare that one amongst them will be the tenant for claiming the protection of the Rent Act. The Court will have to take into account several relevant factors including the wishes of the deceased tenant. In all such cases the Court should have regard to the paramount collective interest of the family of the deceased tenant. The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias. If the Court has in mind such considerations then it is likely that the Court will select the right person for looking after the collective interest of the tenant's family after his death. In any event the Court cannot declare more than one person as the tenant under Section 5(11)(c) of the Rent Act."{Para 12}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2311 of 1991

Decided On: 19.06.2003

Vimalabai Keshav Gokhale Vs.  Avinash Krishnaji Biniwale and Ors.

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How to ascertain that rented premises was taken on behalf of joint hindu family?

 It is the stand of the plaintiff-landlord that the tenant never paid any rent for the suit premises. It is further clear from the pleadings of the parties that the plaintiff never recognized defendants 2 and 3 as tenants. In order to make out a case of tenancy defendant No. 2 (who alone filed a written statement) tried to plead firstly, that defendant No. 1 had taken the premises on behalf of joint Hindu family and therefore, defendants 2 and 3 were entitled to enjoy the tenancy rights in the absence of defendant No. 1; secondly, a plea was sought to be taken that defendant No. 1 had relinquished the tenancy rights in favour of the defendants 2 and 3 and after relinquishment defendants 2 and 3 started paying rent to the landlord. It is however, admitted that there are no rent receipts regarding payment of rent nor there is any proof of payment of rent coming forth on the record. Both the pleas which have been raised in order to establish tenancy in favour of defendants 2 and 3 are inconsistent and mutually destructive. We find no substance in either of the pleas. It has been meekly suggested in the written statement that the premises was taken on rent by the first defendant who is the joint family manager. This statement alone does not make out a plea that the tenancy was on behalf of the joint family. Secondly, this plea cannot stand scrutiny in view of the admitted fact that the father of the defendants was alive at the time of tenancy and if at all the tenancy was to be in favour of the joint Hindu family, it was the father of the defendants who could have taken the premises on rent as manager/karta of the Joint Hindu Family. Thirdly, a reference to the lease deed shows that the name of the tenant is mentioned in his individual capacity and not as a member/karta of Joint Hindu family. To test the veracity of such a plea it is also worth mentioning that in his reply to the notice of eviction served on him by the plaintiff, the defendant never made any such suggestion. Therefore, we find no merit in the plea that the tenancy was taken for purpose of joint Hindu family.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1811-13/1997

Decided On: 31.07.2003

 S.R. Radhakrishnan  Vs.  Neelamegam

Hon'ble Judges/Coram:

Brijesh Kumar and Arun Kumar, JJ.

Citation: AIR 2003 SC 4152,MANU/SC/0516/2003

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Supreme Court: Golden rules for proving reunion of joint hindu family after partition

For the correct approach to this question, it would be convenient to quote at the outset the observations of the Judicial Committee in Palani Ammal v. Muthuvenkatacharla Moniagar (1924) L. R. 52 I. A. 83 :

"It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Balabux Ladhuram v. Rukhmabai (1903) L. R. 30 I. A. 190 ".

27. It is also well settled that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. The legal position has been neatly summarized in Mayne's Hindu Law, 11th edn., thus at p. 569 :

"As the presumption is in favour of union until a partition is made out so after a partition the presumption would be against a reunion. To establish it, it is necessary to show, not only that the parties already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of farming a joint estate with all its usual incidents. It requires very cogent evidence to satisfy the burden of establishing that by agreement between them, the divided members of a joint Hindu family have succeeded in so altering their status as to bring themselves within all the rights and obligations that follow from the fresh formation of a joint undivided Hindu family. "

28. As we give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions strongly relied upon by the learned Attorney General. Venkataramayya v. Tatayya A. I. R. 1943 Mad. 538 is a decision of a division bench of the Madras High Court. It was pointed out there that "mere jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become reunited in the sense of the Hindu law is clearly established. 

"In our view, it is not necessary that there should be a formal and express agreement to re-unite. Such an agreement can be established by clear evidence of conduct incapable of explanation on any other footing. "

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 448 of 1958

Decided On: 04.09.1961

Bhagwan Dayal Vs. Reoti Devi

Hon'ble Judges/Coram:

K. Subba Rao, M. Hidayatullah and P.B. Gajendragadkar, JJ.

Citations: 1962 AIR 287, 1962 SCR (3) 440

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Whether father can sublet tenanted premises to son?

The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well-settled that

parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of Clause (b) of Section 14(1) of the Act.

Even though the father had retired from tson can be subtenant of he business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. It the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession.

This Court in Smt. Krishnawati v. Shri Hans Raj, MANU/SC/0420/1973 : [1974]2SCR524 had occasion to discuss the same aspect of the matter. There two persons lived in a house as husband and wife and one of them who rented the premises, allowed the other to carry on business in a part of it. The question was whether it son can be subtenant of amounted to sub-letting and attracted the provisions of Sub-section (4) of Section 14 of the Delhi Rent Control Act. this Court held that if two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises. In this case if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of Section 14(1)(b) of the Act.Section 14 of the Delhi Rent Control Act. this Court held that if two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises. In this case if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of Section 14(1)(b) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1127 of 1985

Decided On: 11.05.1988

Jagan Nath   Vs. Chander Bhan and Ors.

Hon'ble Judges/Coram:

S. Natarajan and Sabyasachi Mukherjee, JJ.

Citation: AIR 1988 SC 1362

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SHORT NOTES ON LIMITATION ACT PART 3

S 18. Effect of acknowledgment in writing:-

Acknowledgment means a definite, clear admission of existing liability.

It is not necessary that there should be promise to pay. An acknowledgment does not create any new right of action but only enlarges the time and has the effect of making a new period run from the date of acknowledgment. Under this section, an acknowledgment is not limited in respect of a debt only, it may be in respect of “any property or right” which is the subject matter of the suit. There must be an unqualified,or an admission qualified by a condition which is fulfilled.

Ingredients of S 18 and essentials of a valid acknowledgment:-

To constitute a valid acknowledgment and thus to give a fresh period of limitation under this section,the following conditions must be satisfied.

1) The acknowledgment must have been made before the expiration of the period prescribed.

2) The acknowledgment must have been made by the party against whom the right is then claimed or by any person through whom he derives his title or liability.

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How should a member of a joint family prove that some of the joint family properties are his self-acquired property?

 In order to prove that the suit properties described in Schedule 'B' and 'C' were their self-acquired properties, the Plaintiffs could have adduced the best evidence in the form of a sale-deed showing their names as purchasers of the said properties and also could have adduced evidence of payment of sale consideration made by them to the vendee. It was, however, not done.

21. Not only that, the Plaintiffs also failed to adduce any other kind of documentary evidence to prove their self-acquisition of the Schedule 'B' and 'C' properties nor they were able to prove the source of its acquisition.

22. It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See-Mulla-Hindu Law, 22nd Edition Article 23 "Presumption as to co-parcenary and self acquired property"-pages 346 and 347).

23. In our considered opinion, the legal presumption of the suit properties comprising in Schedule 'B' and 'C' to be also the part and parcel of the ancestral one (Schedule 'D') could easily be drawn for want of any evidence of such properties being self-acquired properties of the Plaintiffs. It was also for the reason that the Plaintiffs themselves had based their case by admitting the existence of joint family nucleolus in respect of Schedule 'D' properties and had sought partition by demanding 4/9th share.

24. In our considered opinion, it was, therefore, obligatory upon the Plaintiffs to have proved that despite existence of jointness in the family, properties described in Schedule 'B' and 'C' was not part of ancestral properties but were their self-acquired properties. As held above, the Plaintiffs failed to prove this material fact for want of any evidence.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11220 of 2017 

Decided On: 06.09.2017

Adiveppa and Ors. Vs. Bhimappa and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: AIR 2017 SC 4465

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Whether property in name of female members of joint family can be treated as property of joint family?

In a Hindu joint family, if one sues for partition on the foot that the properties claimed by him are joint family properties, then three circumstances ordinarily arise. The first one is an admitted case where there is no dispute about the existence of joint family properties at all. He second is a case where certain properties are admitted to be joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income of the available joint family properties or in the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of the female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the names of female members are properties of the joint family. It is by now well established that properties standing in the names of the female members are their own, unless there is definite, clinching proof to the contrary by the challenging member. It is not for the female member to prove how she acquired the same. In ordinary cases also where a plea of benami is set up it is for the person who comes to Court to establish that the properties standing in the name of the other co-parceners or members are really joint family, properties which stemmed from the joint family nucleus. 

IN THE HIGH COURT OF MADRAS

Decided On: 13.08.1976

Ranganayaki Ammal and Ors. Vs. S.R. Srinivasan and Ors.

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How to prove nucleus for acquisition of joint family property?

The burden no doubt is on the plaintiff to establish that there was adequate joint family nucleus out of which his father Ramaswami Iyengar can reasonably be said to have acquired all the suit properties. In a Hindu joint family, if one sues for partition on the foot that the properties claimed by him are joint family properties, then three circumstances ordinarily arise. The first one is an admitted case where there is no dispute about the existence of joint family properties at all. He second is a case where certain properties are admitted to be joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income of the available joint family properties or in the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of the female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the names of female members are properties of the joint family. It is by now well established that properties standing in the names of the female members are their own, unless there is definite, clinching proof to the contrary by the challenging member. It is not for the female member to prove how she acquired the same. In ordinary cases also where a plea of benami is set up it is for the person who comes to Court to establish that the properties standing in the name of the other co-parceners or members are really joint family, properties which stemmed from the joint family nucleus. While considering the term nucleus it should always be remembered that such nucleus has to be established as a matter of fact and. the existence of such a nucleus cannot normally be presumed or assumed on probabilities. The extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of such joint family properties do all enter into computation for the purpose of assessing the content of the reservoir of such nucleus from which alone it could with reasonable certainty be said that the other joint family properties have been purchased unless a strong link and nexus are established between the available surplus income and the alleged joint family properties; the person who comes to Court with such bare allegations without any substantial proof to back it up should fail. 

IN THE HIGH COURT OF MADRAS

Decided On: 13.08.1976

Ranganayaki Ammal and Ors. Vs. S.R. Srinivasan and Ors.

Hon'ble Judges/Coram:

Tayi Ramaprasada Rao, J.

Citation:(1978 I MLJ 56) 

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When sons are not entitled to get partition of property standing in name of mother?

In view of the above submissions made on either side, the only question that has to be decided in this appeal is whether the suit C to E schedule properties could be considered as joint family properties to seek for partition by the plaintiffs?

19. It is the case of the plaintiffs that the suit C & D schedule properties were purchased out of the income earned by their father. Their father was earning income by doing real-estate business and also by raising flowers and casuarina saplings in the suit B schedule property. It is further case of the plaintiffs that the plaintiffs and the 1st defendant were also doing business along with their father Vadivelu and out of the income earned by their father along with them, the suit properties were purchased in the name of their mother-3rd defendant, for the benefit of the joint family. It is further submitted by the learned counsel for the appellants/plaintiffs that though it is the case of the defendants that the 3rd defendant had purchased the properties from the funds provided by her parents, she has not produced any tangible evidence before the Court to prove the same. Therefore, on the basis of the ipse dixit of the defendants, the Trial Court ought not to have dismissed the suit.

20. But, We are of the opinion that the initial burden only lies on the shoulders of the plaintiffs to establish that their father had multiple avocations and that apart from maintaining the family consisting of his wife and four children, he had surplus income and out of the said surplus income, the suit C to E schedule properties were purchased in the name of the mother-3rd defendant for the benefit of the joint family. Though it is submitted that the appellants/plaintiffs were doing business along with their father and earning income, We find that the suit C schedule property was purchased in the year 1978 through Ex. A.1 dated 29.05.1978 and the suit D schedule property was purchased under Ex. A.2, dated 21.03.1981 and the suit E schedule property was settled in favour of the 3rd defendant under Ex. B.4 dated 30.12.1992. According to P.W. 1, he was born in the year 1975. Therefore, as contended by the learned senior counsel for the respondents, he was only three years in the year 1978 and 6 years in the year 1981 and 17 years in the year 1992. Therefore, the case projected by the plaintiffs that they are helping their father in his business and earning income, is totally unbelievable and the same cannot be accepted.

21. Further, except the oral evidence of P.W. 1, No other tangible evidence was produced on the side of the plaintiffs to show that the properties were purchased out of the income earned by the plaintiffs and the 1st defendant along with their father and they are treating the properties as joint family properties. Though the plaintiffs have examined some independent witnesses as P.W. 2 to P.W. 4, their evidence are also not helpful in any way to sustain the case of the plaintiffs. In fact, P.W. 2 stated in his evidence that he was not in talking terms with the 3rd defendant. Therefore, the submission made by the learned counsel for the respondents that P.W. 2 has motive to give evidence against the 3rd defendant, is acceptable one. Further, P.W. 3 & P.W. 4 in their evidence deposed that the plaintiffs' father was doing flower business and earning income and purchased the properties. But, these evidences are not sufficient to come to the conclusion that the properties were purchased only from the income of the father Vadivelu, when admittedly all the documents are standing in the name of the 3rd defendant-mother. Therefore, We are of the opinion that the plaintiffs have miserably failed to discharge their initial burden to establish that the properties were purchased from the income of the father and sons.

22. It is well settled legal principal that initially burden lies upon the member who alleges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by utilising the same, the property in question could have been acquired. If the initial burden as referred to above is proved, then the burden shifts to the member of the joint family setting up claim that it is his/her personal property and the same has been acquired without any assistance from the joint family property. On the failure to prove the existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition. Mere fact of existence of a joint family does not lead to the presumption that a property held by any of its members is joint family property unless the above aspects are proved. If the property acquired is standing in the name the of the female member of a joint family, she need not prove as to how she acquired it.

IN THE HIGH COURT OF MADRAS

A.S. No. 593 of 2016 and C.M.P. No. 15815 of 2016

Decided On: 27.04.2017

Sadasivam and Ors. Vs.  Sankar and Ors.

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Whether female member of joint family is required to prove how she acquired property standing in her name?

It is well settled legal principal that initially burden lies upon the member who alleges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by utilising the same, the property in question could have been acquired. If the initial burden as referred to above is proved, then the burden shifts to the member of the joint family setting up claim that it is his/her personal property and the same has been acquired without any assistance from the joint family property. On the failure to prove the existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition. Mere fact of existence of a joint family does not lead to the presumption that a property held by any of its members is joint family property unless the above aspects are proved. If the property acquired is standing in the name the of the female member of a joint family, she need not prove as to how she acquired it.

IN THE HIGH COURT OF MADRAS

A.S. No. 593 of 2016 and C.M.P. No. 15815 of 2016

Decided On: 27.04.2017

Sadasivam and Ors. Vs.  Sankar and Ors.

Hon'ble Judges/Coram:
R. Subbiah and M.S. Ramesh, JJ.
Citation: AIR 2017 Madras 175

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Whether a party is entitled to get mesne profits in all circumstances?

It is necessary at the outset to distinguish between three types of cases in which a question of profits or mesne profits might arise. (1) Suits for ejectment or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past and future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defendants not being lawful, the plaintiff is entitled to recover "mesne profits" as defined in Section 2, Clause (12) of the Civil Procedure Code, such profits being really in the nature of damages. In the second case, the possession and receipt of profits by the defendant not being wrongful the plaintiff's remedy is to have an account of such profits making a]l just allowance in favour of the collecting tenant-in-common. In the third case, the plaintiff must take the joint family property as it exists at date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation.

Madras High Court

D. Nataraja Achari vs Balambal Ammal on 13 March, 1979

Equivalent citations: (1979) 2 MLJ 234

Author: V Ratnam

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How to prove that suit property is joint family property?

In this connection the judgment in D.S. Lakshmaiah case (supra ) becomes relevant. It had been observed that a property could not be presumed to be a Joint Hindu Family property merely because of the existence of a Joint Hindu Family and raised an ancillary question in the following terms:

"The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu Family property or self-

acquired property of the first appellant."

The query was answered in paragraph 18 in the following terms :

"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."

The High Court has also rightly observed that there was no presumption that the property owned by the members of the Joint Hindu Family could a fortiori be deemed to be of the same character and to prove such a status it had to be established by the propounder that a nucleus of Joint Hindu Family income was available and that the said property had been purchased from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it.

Supreme Court of India

Makhan Singh (D) By Lrs vs Kulwant Singh on 30 March, 2007

Bench: B.P. Singh, Harjit Singh Bedi

Citation:AIR 2007 SC 1808,2007(10)SCC602

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Whether joint hindu family firm can be adjudicated as insolvent?

As the above rulings throw little light on the question whether a Hindu joint family firm can be adjudged insolvent under Section 99, Presidency Towns Insolvency Act, it is necessary to look to the words of the section itself. It is no doubt true that a Hindu joint family firm is somewhat different from an ordinary partnership business; as pointed out in Mulla's Hindu Law, p. 250, a joint Hindu family firm is not dissolved by the death of a coparcener whereas an ordinary partnership is dissolved when a partner dies. Ordinarily however there is not much difference between the members of a Hindu joint family who carry on business together and the partners of an ordinary partnership firm. In common parlance members of the family who transact the business are partners and in this case they have so described themselves in the application to the Imperial Bank of India Ex. 14. In that they refer to the firm of Kala Gella as a firm and inform the bank that they are partners of the said firm. This being so, it would seem to be that the wording of Section 99, Presidency Towns Insolvency Act is wide enough to include a Hindu joint family business and that under that section it was open to the learned Additional Judicial Commissioner to adjudicate the firm insolvent.

 Citation : AIR 1931 Sindh 179

IN THE HIGH COURT OF SIND

Decided On: 07.11.1930

 Chaturbhuj and Ors.

Vs.

 F.O. Kewalram and Ors.

Milne, A.J.C.

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When alienation of property of joint hindu family will be for legal necessity?

Another contention of plaintiff Deodatta is that there was no legal necessity for his father Shankarrao to execute the sale deed. In this connection, plaintiff submits that Shankarrao embarked upon new ventures without any experience in different trades and suffered losses. He submits that family of Shankarrao was not a trading family. The income from agricultural land and other sources was enough to maintain the joint family, but to satisfy his desires and needs, he, on his own, recklessly entered into grain business, distribution of films and American futures. According to him, the sale was not independent, but correlated to earlier Aywarharik debts and since it was not for antecedent debts, sale was not binding on the plaintiff. Shri Deshpande, learned Counsel placed reliance on the following authorities in support of this challenge:

"(i) The Benares Bank Ltd. v. Hari Narain and others (MANU/PR/0021/1932 : AIR 1932 Privy Council 182).
(ii) Sabhachand Navalchand v. Sambhoo Gyanoba Bhoj (MANU/MH/0123/1936 : ACJ 1936 Bombay Law Reporter 118).
(iii) Ganesh Prasad Singh and another v. Sheogobind Sahu and others (MANU/BH/0195/1937 : AIR 1938 Patna 40).
(iv) Sankaranarayanan and another v. The Official Receiver, Tirunelveli and others (MANU/TN/0297/1977 : AIR 1977 Madras 171)."

57. In reply, learned Senior Counsel for respondent Chimotes placed strong reliance on the decision in Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni and others (MANU/SC/0409/1978 : AIR 1978 SC 1791) and would submit that house sold by Shankarrao was for legal necessity and it is equally binding on his legal heirs too.

58. From the evidence brought on record, it can be seen that suit house was ancestral. In 1936, after Shankarrao attained majority, house came to his management. In 1949, he entered into business of cinema and grain shop. It further appears from the evidence that Shankarrao was also dealing in business of American futures. It is also apparent that Shankarrao was required to borrow loan from time to time as he was unsuccessful in businesses. The question is whether loans borrowed by Shankarrao were for the joint family as a Karta or in his individual capacity to satisfy his own desires ? Here it would be relevant to look into the debts with which sale deed is actually concerned. As stated above, agreement to sell was executed on 24/1/1951 when the house was attached in execution of decree filed by Krishna Keole. To get the sale postponed, Shankarrao executed agreement to sell of house in favour of Wasudeo and Ramchandra Chimote. Accordingly, he received Rs. 2000/- from Chimotes, paid the same to Krishna Keole and got the sale postponed. On 9/7/1951 he paid remaining amount of Rs. 6200/- to Krishna Keole in full satisfaction of the decree. He executed sale deed on that day in favour of Chimotes, received Rs. 6200/- and paid to Krishna Keole. Thus, from the sale deed, it is clear that to satisfy the debts received from Krishna Keole, Shankarrao being in need of money was required to sell the house so as to satisfy the decree in favour of Krishna Keole.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 77 of 1995 in First Appeal No. 22 of 1980, 

Decided On: 30.08.2016

Prabhatai and Ors.
Vs.
 Chimote & Sons and Ors.

Hon'ble Judges/Coram:B.P. Dharmadhikari and Indira Jain, JJ.

Citation: 2017(2) MHLJ 83 Bom

Read full judgment here: click here

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Whether daughter in law can claim possession of property purchased by her father in law in her name?

One argument, of course, could be raised that by purchasing the
property in the names of the wives in the family, the late Chaman Lal was
securing the interest of his own wife, as also the interest of his sons. That
argument even if raised, would also have to be rejected, because nothing
prevented him from then purchasing the property in the name of his wife and
sons, with no mention of the daughters-in-law. The very fact that he chose to
purchase the property in the name of his wife and daughters-in-law, would go
to prove that he actually intended it to be for their benefit.
That being so, it cannot be said in the context of the
circumstances of the present case, that the property was purchased by Chaman
Lal in the name of his wife and daughters-in-law, because they stood in any

fiduciary capacity to him. If that were so, he could have executed any
instrument by way of a family settlement etc. to make any such intention clear
in that regard. That no having been done, the property cannot be said to have
been purchased for the benefit of any other person, other than those in whose
names it was purchased.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1504 of 2016
Date of Decision: 07.09.2016

Smt. Kanchan Jain Vs.  Babita Jain

CORAM: MR. JUSTICE AMOL RATTAN SINGH

Citation: AIR 2017(NOC)73 P&H

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How to ascertain legal necessity by conduct of parties?

Learned counsel for the respondent placed
reliance on cases reported as 2010 (5) Mh.L.J. 713
(Ramchandra vs. Vasant), A.I.R. (33) 1944 Oudh 92 (Sant
Bakhsh Singh v. Lachhman Prasad) and the decision
given of this Court, other Hon'ble judge in Second Appeal
No.287/1989 (between Suryakant Manikrao Deshmukh
and Mahavir Sahebrao Maske). In those cases also when
the question of legal necessity was involved, the suit
involving setting aside of the sale, made by father and
father did not turn up to give evidence, presumption was
drawn that there was legal necessity. In the present
matter also there is evidence that the plaintiffs and
defendant No.1 are living together and they are benefited
by the consideration. As there is no evidence, the
inference is not possible that defendant No.1 was addicted
to bad vices and the sale proceeds were not utilized for
the family. If they are living together there was some
reason for the sale and the reason given by the defendant
No.2 is that the land was not giving sufficient income and
so they started business at Ambajogai. Thus necessary

probability was created by the defendant No.2 in his
favour on the point of legal necessity and the District
Court has not committed any error in holding that thisburden is discharged by the purchaser. In the result, the
point is answered against the appellants and the appeal

is dismissed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 125 of 1992

 Shridhar s/o Bajirao Pawar,

V
 Bajirao s/o Dhondiba Pawar,

 CORAM: T.V. NALAWADE, J.

 DATE : 22 JULY 2016
Citation: 2016(6) ALLMR 280

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