COULD HAVE BEEN MADE
THE HON'BLE MR. JUSTICE AJIT J.GUNJAL AND THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA of Karnataka High Court in the case of K T Venkatappa vs K N Krishnappa Decided on 27 September, 2012
It is settled law that the proof of existence of a Joint Family does not lead to the presumption that it possesses joint family property. The property held by a member of a Joint Family cannot be presumed to be a Joint Family Property. In a Joint family, if a person claims that it is a Joint Family property, the burden of proving that it is so, rests on the party who asserts it. However, in the case where it is established that the Joint Family possesses some joint family properties, which from its nature and relative value appears to
be joint family property, the presumption arises that it is a joint family property and the burden shifts on the defendants alleging that the property was acquired without the aid of the Joint family. The legal position would be that the joint and undivided family is the normal condition of Hindu society. An undivided . family is not only joint in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. The presumption of union is the general presumption in the case of father and sons. The strength of presumption necessarily varies in every case. But the presumption is strong in the case of brothers. This is also well settled that where on the date of the acquisition of a particular property, the Joint Family had nucleus for acquiring the property in the name of any member of the Joint Family, should be presumed and was to form the part of the joint Family property unless it is shown to the contrary. It is more so in the case of a kartha of the Joint Family proving that he acquired with the independent funds without aid of the joint family funds. An important ingredient, which is required to be considered is the income of the nucleus family. …………. Once the evidence adduced by the plaintiff is sufficient to shift the burden, which initially rested on them of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income, which the nucleus yields. A building in the occupation of the members of a family and yielding no income cannot be considered as a nucleus out of which acquisitions could have been made even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which might form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. Where the finding of the Courts is that the income from the ancestral lands was not sufficient enough for the maintenance of the members and the houses in dispute are substantial, burden is on the plaintiff, who alleges the houses to have been acquired out of the Joint Family Funds to establish it. ……….. To render the property joint, the plaintiff must prove that the family was possessed of some property, out of which income, other property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property, or that it was purchased from the Joint Family funds such as the proceeds of sale of ancestral property, or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to cognizance of a Court in the same way as any other fact, namely, by evidence. There is at times un-discriminated use of the expression `presumption' in the context. It is to be understood to indicate those presumptions of fact, which may be said to arise in considering whether the burden of proof has or has not been discharged by a party. It is not as if there is any general rule for all cases. …. Where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmatively, that the property was acquired without the aid of the joint family. However, no such presumption would arise, if the nucleus is such that with its help, the property claimed to be joint could not have been acquired…. Having regard to the principles laid down as to the concept of Joint Family Property, the nucleus and the acquisition of the properties, one is required to examine whether the suit schedule
properties are the Joint Family properties or at least some of the properties are the self- acquisitions of the defendant.