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2023 Supreme(Del) 3206
IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmohan, Mini Pushkarna, JJ.
Devender Kumar Since Deceased Through Lrs. – Appellant
Versus
Aruna Bakshi & Ors. – Respondents
RFA(OS) 5 of 2023 & CM APPL.15754 of 2023
Decided On : 04-08-2023
Mr.Arun K.Chauhan, Advocate (through VC), for the Appellant.
None, for the Respondents.
The burden of proof lies with the party asserting the property as Hindu joint family, and bald assertions about the existence of an HUF are not sufficient to establish the existence of a Hindu undivided family.
Headnote:
Presumption - Hindu Undivided Family - Court discusses the presumption of joint family business and the burden of proof in establishing Hindu joint family property.
Fact of the Case:
The appeal challenges the order of a preliminary decree of partition of suit properties. The appellants argue that they were not given an opportunity to lead evidence and that they could prove the existence of a Hindu Undivided Family (HUF) with the help of relatives.
Finding of the Court:
The court found that there is no presumption that a business standing in the name of any member of the joint family is a joint family business. It also emphasized that the party asserting the property as Hindu joint family has to prove it. The court noted that the appellants' father had ample opportunity to place evidence during his lifetime and that the witnesses intended to be produced cannot depose contrary to the record or prove documents not on record. The court dismissed the appeal as bereft of merits.
Issues: Opportunity to lead evidence, existence of Hindu Undivided Family (HUF), burden of proof.
Ratio Decidendi: The party asserting the property as Hindu joint family has to prove it. The court emphasized that bald assertions about the existence of an HUF are not sufficient to establish the existence of a Hindu undivided family.
Final Decision: The appeal along with the application is dismissed with no order as to costs.
JUDGMENT
Manmohan, J. (Oral)
1. Present appeal has been filed challenging the order dated 14th February, 2023 passed by a learned Single Judge in CS(OS) 3443/2015 whereby the learned Single Judge has passed a preliminary decree of partition of the suit properties.
2. Learned counsel for the appellants states that the learned Single Judge failed to appreciate that no such order or preliminary decree could be passed without giving the appellants-defendants an opportunity to lead evidence. He further states that due to sad demise of the father of the appellants in 2021, the appellants-defendants are not in possession of any documents to show the existence of an HUF. He, however, reiterates that in the event an opportunity is given to lead evidence, the appellants will be able to summon some relatives to show the existence of HUF.
3. Having heard learned counsel for the appellants as well as having perused the paper book, this Court is of the view that there is no presumption that a business standing in the name of any member of the joint family is a joint family business. [See: P.S. Sairam Vs. P.S. Rama Rao Pissey, (2004)11 SCC 320, G. Narayana Raju (Dead) by his Legal Representative Vs. G. Chamaraju, AIR 1968 SC 1276 & Bhuru Mal Vs. Jagannath, AIR 1942 PC 13]
4. Though there is a presumption that every Hindu family which is joint in food and worship is a Hindu joint family, yet there is no presumption that the estate is joint or the property is the Hindu joint family property. The party who asserts that the property is Hindu joint family has to prove it. [See: Makhan Singh (Dead) By LRs. Vs. Kulwant Singh, (2007)10 SCC 602 and Ravi Shankar Sharma Vs. Kali Ram Sharma, (2014)I AD (Delhi) 609]
5. The appellants' father in the present case had admittedly passed away in 2021, whereas the suit in the present instance had been filed in 2015.Thus, during his life time, he had ample opportunity to place on record the evidence that was in his possession.
6. In any event the witnesses whom the appellants intend to produce cannot depose contrary to the record or prove documents which are not on record.
7. In the present case, there are only bald assertions about the existence of an HUF. Even if the averments are accepted in toto, then also it merely establishes existence of a joint family and not a Hindu undivided family. Consequently, the present appeal along with application being bereft of merits is dismissed but with no order as to costs.
