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2003(6) Supreme 540
SUPREME COURT OF INDIA
(From Karnataka High Court)
Y.K. Sabharwal & B.N. Agrawal, JJ.
D.S. Lakshmaiah & Anr. -Appellants
versus
L. Balasubramanyam & Anr. -Respondents
Civil Appeal No. 2089 of 2000
Decided on 27-8-2003
Counsel for the Parties :
For the Appellants : S.K. Kulkarni, M. Gireesh Kumar, Ms. Sangeeta Kumar, Advocates.
For the Respondents : Ms. Kiran Suri, Advocate.
Held : In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item No. 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item No.1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents claim of Item No.1 to be joint family property would fail as rightly held by the first appellate court. 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. (Paras 17 & 18)
(ii) Hindu Law-Joint family property-Law on aspect of blending of self acquired property into joint family property-It has to be voluntarily thrown by owner into common stock with intention of abandoning his separate claim.
Held : The law on the aspect of blending is well settled that property separate or self-acquired of a member of joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilized out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation (Para 19)
Key Points: - There is no presumption that property is joint family property solely due to existence of a Joint Hindu Family; the burden lies on the claimant to prove the property is joint family property. (!) (!) - If there is evidence of a nucleus from joint family property, there is a presumption of joint ownership and the onus shifts to the claimant of self-acquired property to prove purchase with separate funds. (!) (!) - Blending of self-acquired property into joint family property requires a clear intention to abandon separate rights; mere use, generosity, or failure to maintain separate accounts does not prove abandonment. (!) (!)
JUDGMENT
Y.K. Sabharwal, J.-Appellant No.1 and respondent No.2 are husband and wife respectively. Respondent No.1 is their son. The second appellant purchased the property in question from the first appellant.
2. The respondents in this appeal are original plaintiffs. They filed a suit for declaration of their 2/3rd share, partition and possession thereof in respect of two properties described as Item No.1 and Item No.2. According to them, Schedule Item No.2 property came to appellant No.1 (original defendant No.1 in the suit) in partition between him and his brothers and it is an ancestral property. The Item No.1 property, according to the averments in the plaint, was acquired by plaintiffs and the first defendant out of joint Hindu family funds and the first defendant was trying to alienate the suit property for his self benefit and not for the benefit of the members of the family. When, during the pendency of the suit, it came to notice of the plaintiffs that Item No.1 property had been sold by the first appellant, on their application, appellant No.2 was impleaded as defendant No.2 in the suit.
3. The trial court decreed the suit holding that the respondents are entitled to 2/3rd share in the properties as also possession thereof and also granting other consequential reliefs.
4. The first appellate court, however, allowed two separate appeals that had been filed by each of the appellant and the suit was ordered to be dismissed. It was held that the respondents have failed to prove that Item No.1 property was joint Hindu family property. The said property was held to be the self acquired property of the first appellant. It further held that respondent No.1 has failed to prove that any amount of income was available in the hands of the first appellant to purchase Item No.1 property noticing that except 15 guntas of land (Item No.2 property), there was no ancestral property with the first appellant and that the trial court was not correct in observing that it was for the first appellant to show that no nucleus of ancestral property was available with him to purchase Item No.1 property.
5. The judgment and decree of the first appellate court was challenged by the respondents before the High Court in a second appeal (Regular Second Appeal No. 213/91). That appeal was filed by son and mother. On a memo filed by respondent No.1 who was first appellant before the High Court, his second appeal was dismissed and only the claim of his mother who prosecuted the second appeal was examined by the High Court. The High Court by the impugned judgment restored the judgment and decree of the trial court, setting aside that of the first appellate court.
6. The High Court has held that Item No.2 property has been proved to be joint Hindu family property and the respondents have share in it. The finding in respect of Item No.2 property has not been challenged before us. Even otherwise, there is no ground to upset the said finding of fact. The only controversy that has been raised before us is in respect of Item No.1 property. The said property was purchased by the first appellant in the year 1970-71. It was sold by him in favour of the second appellant in the year 1987 after filing of the suit. The only question to be examined is whether Item No.1 property was self-acquired property of the first appellant or it was joint Hindu family property in which the respondents/plaintiffs had 2/3rd share. Answering this question in favour of the respondents, the High Court has held that the second appellant could only be entitled to purchase 1/3rd share from the first appellant who had no right to sell the remaining 2/3rd share in Item No. 1 property.
7. 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.
8. There was evidence and it has been established that Item No.2 measuring 15 guntas of land was joint Hindu fami
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