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 it can be presumed that there was joint family property if there was HUF Bank Account?

HUF BANK ACCOUNT IS NOT RELATABLE TO ANY PROPERTY. THEREFORE, IRRELEVANT

86. As regards the HUF Bank account opened on 22nd November, 1985, it is not relatable to any property. It is an admitted position that the Public as well as the Private Limited Companies, Partnership Firms and Family Members of the defendant No. 1 had been filing independent Income Tax Returns. Therefore, the said HUF Bank account is wholly irrelevant.

87. In any event, showing in Income Tax Return, a HUF Bank account is meaningless unless the sufficient income is shown from nucleus of Hindu Joint Family Properties. The consistent legal position is that once there is no sufficient nucleus in Savings Bank Account, as in the present case, it will not make a Business/Property as a Hindu Joint Family property.

IN THE HIGH COURT OF DELHI

CS (OS) 2223/2013, 

Decided On: 04.02.2019

Aarshiya Gulati  Vs.  Kuldeep Singh Gulati and Ors.

Hon'ble Judges/Coram:

Manmohan, J.

Citation: AIR 2019(NOC) 577 Del

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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 party to deed can challenge recitals of deed?

 The implications of a statement made in a deed upon the party who made the same has been considered by the privy council in the case of Martin Cashin v. Peter J. Cashin, MANU/PR/0080/1938 : AIR 1938 Privy Council 103 and it has been ruled as follows:-

"..........In a case where the person executing the deed is neither blind nor illiterate, where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him-not because he has read it or understands it, but because he has chosen to execute it........"

(Emphasis supplied)

13. In the case of Lachman Lal v. Munshi Mahton, MANU/BH/0225/1933 : AIR 1933 Pat 708, this Court has also considered the effect of a recital made in a deed in view of Section 115 Evidence Act has held as follows:--

"........There can be no dispute as to what the law is on this point, and it was settled as far back as 1850 when the case of Stroughill v. Buck (5) was decided. Pateson, J., in that case stated the law in these terms:

"When a recital is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But, when it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the instrument."

14. In this regard, it would also be fruitful to notice the general effect of recital in a deed as mentioned in Halsbury's law of England, IV edition, Vol. 13, para-57 as follows:

"The General Effect:-- By executing a deed in accordance with all the requirements for such execution, the party whose act and deed it is becomes, as a general rule, conclusively bound by what he is stated in the deed to be effecting, undertaking or permitting. He is, in general, so bound even though another party has not executed the deed, or he has himself executed it in a false name. He is, as a rule, estopped from averring and proving by extrinsic evidence that the contents of the deed did not in truth express his intentions or did not correctly express them, or that there are reasons why he should not be obliged to give effect to the duty. This is equally the case whether the deed is expressed to operate as a conveyance of property or as a contract or otherwise....................................

But to all these general principles there are exceptions, cases, where the deed may be a nullity or may be avoided or corrected".

15. The concept of estoppel by deed has also been dealt with in paragraph-954 Volume 16 Halsbury's Law of England IV edition, as follows:

"....Estoppel by deed. Where there is a statement of fact in a deed made between the parties and verified by their seals, an estoppel results, and is called "estoppel by deed". If upon the true construction of the deed the statement is that of both or all the parties, the estoppel is binding on each party; if otherwise, it is only binding on the party making it..."

16. As aforementioned there is no relief by the plaintiff in the suit to avoid the deed (Ext. B) nor there is relief that the recital in the said deed requires correction.

17. The said deed (Ext. B) was admittedly executed by the plaintiff along with other co-sharers accepting the fact of partition of the joint family properties. The said deed did not include the suit property of village-Meharpur. The plaintiff has come out with the case that a fraudulent recital was got in the said deed regarding the suit property being the self-acquired property of Fulchand Rai and Chandramani Rai. But even if the said allegation of the plaintiff is accepted, there is no pleading or evidence alliunde that the plaintiff and the other co-sharers knowingly and purposely left out the suit property from partition and therefore it was not made subject-matter of partition. The conspicuous absence of such a case by the plaintiff substantially dents the case of fraud as endeavored to be made out. As such, in view of the principles in this regard as mentioned above, there cannot be escape for the plaintiff from the binding effect of the recitals including the disputed recital in the deed (Ext. B) in question.

IN THE HIGH COURT OF PATNA

Second Appeal No. 197 of 2013

Decided On: 01.07.2017

 Punam Devi and Ors. Vs. Jai Narayan Rai and Ors.

Hon'ble Judges/Coram:

Vijayendra Nath, J.

Citation: AIR 2017 Patna 175

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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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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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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 elder brother can be treated as karta of hindu joint family if father is alive?

The next question that arises for consideration is that
whether defendant No.1 was acting as the manager and ‘Karta’ of
the joint family. Ordinarily, the senior most male member of a
Hindu joint family, who takes up the responsibility of the joint
family property and manages it, is called the ‘Karta’ or sometimes
‘Manager’. The Manager of a Hindu joint family is called a ‘Karta’
(paragraph-234 of Mula’s Hindu Law 21st edition). Now, coming to
the case at hand, it is the admitted case of the parties that the
defendant No.1 is much older that is to say 16-17 years older than
the plaintiffs and defendant No.1 took charge of educating the
plaintiffs at Angul even during life time of their father. The plaintiffs
were allowed to stay in the suit house. It was brought out from the
mouth of defendant No.1 that he had repaid the loan of his father
by selling out property of his father at Hakimpada. The plaintiffs
also pleaded and laid evidence to establish that defendant No.1 was
managing the affairs of the family, as their father was incapable of
doing so. To establish the same, the plaintiffs examined PW-7, who
deposed that defendant No.1 was looking after them as guardian.
Defendant No.1 was even managing the affairs of the family. PW-10
(plaintiff No.1) in his evidence also supported the same and 
deposed that defendant No.1 was looking after all the affairs on
behalf of his father, who was ‘Karta’ of the joint family. The
plaintiffs also relied upon evidence of defendant No.1, who deposed
that plaintiff No.1 came to Angul in 1949-50 and plaintiff No.2
came to Angul two years thereafter. They were staying at Badagudia
Hotel. After the suit land was purchased, the defendant No.1
repaired the thatched house standing over the suit land and stayed
there with his wife and plaintiffs. He also deposed that apart from
Hindustan Hotel, he constructed seven rooms with tin roof on a
piece of leasehold land he acquired in the Angul bus stand for the
purpose of running another Hotel. As plaintiff No.1 was
unemployed and wasting his time after completion of his studies,
the defendant No.1, in order to keep him engaged, instructed him
to start a Hotel in the rooms constructed over the leasehold land.
Thus, plaintiff No.1 started the business in the name and style of
‘Jayabharat Hotel’. As plaintiff No.1 was not aware of managing
affairs of the Hotel, defendant No.1 guided him for some years in
the management of the hotel and for that purpose he (the
defendant No.1) was also maintaining the accounts of Jayabharat
Hotel. The entire family stayed in the thatched house over the suit
land till the marriage of plaintiff No.2 in the year 1970. By then,
their parents were staying at Matagajpur and they had come to
Angul to attend the marriage ceremony of plaintiff No.2. After their
parents came to Angul, the house at Matagajpur remained under 
lock and key and the defendant No.1 also allowed Aru and Karuna,
the cognates of the plaintiffs, to use the said house. He also
deposed in his evidence that he took the responsibility of educating
the plaintiffs 1 and 2 at Angul. Thus, Mr.Rath, learned counsel for
the plaintiffs/respondents 1 and 2 submitted that defendant No.1
was the ‘Karta’ of the family and thus, the suit properties acquired
by him in the capacity of ‘Karta’ or Manager of the family, are
nothing but joint family properties.
12. Mr.Mukherji, learned counsel for defendant No.1
submitted that even if it is presumed that the defendant No.1 was
looking after the affairs of the family in some way or the other,
those are only act of generosity and kindness on the part of
defendant No.1 and cannot be regarded as his legal obligation.
Thus, he cannot be treated to be the ‘Karta’ of the family at least
during the life time of his father who died in the year 1975. Per
contra, Mr.Rath relying upon a decision in the case of
Narendrakumar J. Modi vs Commissioner Of Income Tax,
Gujarat-II, Ahamedabad, reported in AIR 1976 SC 1953
submitted that a senior member may give up his right and junior
member of the family can act as the ‘Karta’ with consent of all other
members. He relied upon paragraph-10 of the said decision, which
reads as follows:-
“10. In these circumstances he appears to have
acted as the karta with consent of all the other
members. A junior member of the family could 
do so. See Mulla's Hindu Law 296, fourteenth
edn. Where occurs the following passage:
So long as the members of a family remain
undivided, the senior member of the family is
entitled to manage the family properties,
including even charitable properties and is
presumed to be the manager until the contrary
is shown. But the senior member may give up
his right of management, and a junior member
may be appointed manager."
A similar view is taken in the case of M/S Nopany Investments (P)
Ltd. vs Santokh Singh (HUF), reported in AIR 2008 SC 673. This
Court in the case of Harihar Sethi and Anr. vs Ladukishore
Sethi and Ors., reported in AIR 2002 Orissa 110 at paragraph 10
held as under:-
“However, it is no more res integra that a senior
member of the family may give up his right and
a junior member of the family can act as Karta
with consent of all the other members. In the
present case, the defendants who putforth a
claim that the plaintiff acted as Karta of the
family, though he is not the eldest member, have
totally failed to prove the said fact by adducing
cogent evidence. In the absence of any evidence,
it is not possible to accept the contention raised
by the appellants that the plaintiff, though he
was not the senior member of the family, acted
as the Karta….”
Needless to mention here that by the time of death of their father,
namely, Jayakrushna, the suit land had already been purchased
and the construction of the house was completed. Thus, it can’t be
held that the defendant No.1, as a ‘Karta’ or Manager of the family
or acting on behalf of his father, purchased the suit land and
constructed the suit house. Further, the generosity shown by the 
defendant No.1, as discussed above, cannot lead to the conclusion
that he was the ‘Karta’ of the family at least during life time of
Jayakrushna, more particularly when the plaintiffs have led
evidence to the effect that Jayakrushna was in the helm of affairs of
the family. Further, there is no evidence on record to come to a
conclusion that Jayakrushna at any point of time during his life
time had relinquished his right to act as the ‘Karta’ of the family
with expressly or impliedly or by his consent. 
HIGH COURT OF ORISSA: CUTTACK
F.A. NO. 8 of 1990

Rasananda Sahoo 
V
Prafulla Kumar Sahu
and others 

Dated: 11.03.2016

P R E S E N T:
 THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2017(NOC)81 ORISSA

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When property purchased by coparcener shall be treated as joint family property?

The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property In the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. (Vide Amritlal Sen & ors., v. Surath Lal Sen & others(1) Appalaswami v. Suryanarayanamurthy & others(2).
The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs. 2/6/-. The net income, after payment of the kist and debiting the expenses of cultivation etc., may be placed there-fore at about Rs. 500 It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendant's hands from the D Schedule property. On this calculation the first defendant appears to have had in his hands about Rs. 1,5001 during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939. It is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.

Supreme Court of India

K. V. Narayanaswami Iyer vs K. V. Ramakrishna Iyer And Ors on 26 March, 1964

Equivalent citations: 1965 AIR 289, 1964 SCR (7) 490

Bench: Gupta, K.C. Das

BENCH:
GUPTA, K.C. DAS
SUBBARAO, K.
DAYAL, RAGHUBAR

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