J

D.S. LAKSHMAIAH AND ANR. A

v.

L. BALASUBRAMANY AM AND ANR.

AUGUST 27, 2003

[Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.)

B

Hindu Law:

Husband sold certain properties-Declaratory suit jointly filed by the

wife and her son against husband for their share in the properties/joint

c

family properties-Trial Court decreed the suit-Reversed by the first

appellate Court holding certain part

of the property as self acquired by

the husband

and the

rffspondents-wife/son having failed to prove that the

properties wer.:! purchased from nucleus of joint family property -On

appeal, High Court restored the order of the trial Court holding the

D

property as joint family property-Blending of property-Burden to prove-

Held: since no evidence of nucleus as to purchase of the property from the

joint family having been led by the wife and son, the presumption that the

property being joint family could not be

drawn-In the absence of clear

.,.,

intention of abandonment of right of ownership by the husband/blending

of self-acquired property into joint family property, abandonment of such E

right/blending the property into joint family account could not be infe"ed

from mere use of the property by other members-Hence, the property

cannot be held

to be joint family property-Interpretation of Statutes.

Words and

Phrases:

F

'nucleus', 'blending of -Meaning of in the context of Hindu Law,

joint family property.

Appellant No.I-husband sold a portion of certain property in

favour of appellant No.2. The respondents-wife and son filed a G

declaratory suit for 2/3rd share and possession thereof claiming the

same to be joint family property. Trial Court decreed the

suit

On

appeal, the first appellate Court dismissed the suit holding that the

respondents had failed to prove that the property

in question was joint

family property and not self acquired property.

On appeal, High

H

1•

>

14 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A Court restored the judgment and decree of the trial Court. Hence the

present appeal.

The main issue that arose

in the appeal was as to whether the

property transferred by appellant No.I

in favour of appellant No.2 was

B self acquired property or joint Hindu family property, in which

respondent had 2/3rd share.

Allowing the appeal, the Court

HELD:

I.I. In the present case, onus remained on the respondents

C and since they have failed to adduce evidence of nucleus of the

property, it could not lead to any presumption of the property being

"joint family property. (21-EJ

Appalaswami v. Suryanarayanamurti & Ors., AIR (1947) PC 189;

D Srinivas Krishnarao Kango v. Narayan Devji Kango & Ors., AIR (1954)

SC 379; Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda

Sankh, (1969) l SCC 386; Baikuntha Nath Paramanik (dead) by His L.Rs.

& Heirs v. Sashi Bhusan Pramanik (dead) by his Lrs. & Ors., (1973) 2

SCC 334; and Surendra Kumar v. Phoo/chand (dead) through Lrs. &

E Anr., (1996) 2 sec 491, relied on.

Mal/esappa Bandeppa Desai & Anr. v. Desai Mallappa alias

Maliesappa

& Anr., AIR (1961)

SC. 1268; Achuthan Nair v. Chinnammu

Amma & Ors., AIR (1966) SC 411 and Malappa Girimallappa Detgeri

F & Ors. v. R. Yellappagouda Patil & Ors., AIR (1959) SC 906,

distinguished.

1.2. The legal principle 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

G 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

H joint family nucleus that was available. (22-C-D)

'

'

D.S. LAKSHMAIAH v. L. BALASUBRAMANY AM 15

1.3. The law on the aspect of blending is well settled that property A

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 B

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 C

act of generosity or kindness

will not ordinarily be regarded as an

admission

of a

legal obligation. Since the respondents have not led any

evidence on these aspects, it cannot be held that the first appellant

blended the property into the joint family account. Hence, property

in question cannot be held to be joint family property. The impugned ,

judgment of the High Court is set aside and the judgment and decree D

of the first appellate Court is restored. [22-E-F-G, 23-A-B)

Lakkireddi Chinna Venkata Reddy v. Lakkireddi Lakshamama, [1964)

2 SCR 172 and K. V. Narayanan v. K. V. Ranganadhan & Ors., [1977) 1

sec 244, relied on. E

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2089 of

2000.

From the Judgment and Order dated 27.5.98 of the Karnataka High F

Court. in R.S.A. No. 213 of 1991.

S.K. Kulkarni, M. Gireesh Kumar and Ms. Sangeeta Kumar for the

Appellants.

Ms. Kiran

Suri for the Respondents.

The Judgment

of the Court was

delivered by

G

Y .K. SABHARWAL J. : Appellant No. 1 and respc,dent No. 2 are

husband and wife respectively. Respondent No. 1 is their

son. The second H

16 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

·-

~ ,

A appellant purchased the property in question from the first appellant.

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.

B

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

c

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. I property had been sold by the

first appellant, on their application, appellant No. 2 was impleded as

defendant No. 2 in the suit.

D 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.

The first appellate court, however, allowed two separate appeals that

E

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

F

available in the hands of the first appellant to purchase Item No. 1 property

noticing that except

15 guntas ofland (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.

G

1 property.

The judgment and decree

of the first appellate court was challenged

by the respondents before the High

Court in a second appeal (Regular

I'"'

Second Appeal No. 213/91. That appeal was fited by son and mother. On

a memo filed by respondent No. I who was first appellant before the High

H Court, his second appeal was dismissed and only the claim of his mother

.,

D.S. LAKSHMAIAH v. L. BALASUBRAMANYAM [SABHARWAL. J) 17

who prosecuted the second appeal was examined by the High Court. The A

High Court by the impugned judgment restored the judgment and decree

of the trial court, setting aside that of the first appellate court.

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 B

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 1970-7 L It was sold by him in favour of the second appellant in C

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

D

be entitled to purchase I/3rd share from the first appellant who had no right

to sell the remaining 2/3rd share in Item No. 1 property.

· The question to be detennined 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. E

There was evidence and it has been established that Item No. 2

measuring

15 guntas of land was joint Hindu family property but,

admittedly, no evidence has been led that the said joint Hindu family

property was yielding any income or that any nucleus was available with

F

the aid whereof Item No. 1 property could be purchased by the first

appellant. Admittedly, no evidence has been

led on behalf of the respondents/

plaintiffs to show income from Item No. 2 property or value

of the

property. At the same time no evidence has also been

led by the first

appellant to prove that he had any separate income so as

to acquire Item G

No. 1 property. In absence of evidence either way which party would

succeed and which fail,

is the question. The legal position is well settled

as we will presently notice.

In

Appalaswami v. Suryanarayanamurti & Ors., AIR (1947)

PC 189, H

18 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R. .. ....,

A in a partition suit filed against their father by minor sons from the first

marriage, the father claimed the properties

in question were his self-

acquired properties and denied that the plaintiffs had any right to seek

partition. The High Court, reversing the judgment

of the trial court, held

that the view expressed by the trial court that only joint family property

B

was that which the father took under partition Exhibit. A was not correct

and further held that whole

of the property set out in

Schedule to the written

statement

of the appellant/father, which had been acquired after partition

Exhibit A was joint family property. The contention accepted by

the High

Court was that the share which the father took under Exhibit A formed the

•·

c

nucleus from which all his further acquisitions sprang. The plea of the

father that was accepted by the Privy Council was that the whole of the

property that came to him under Exhibit A was intact and unencumbered

except a small portion sold which amount had been debited against

household expenditure. The Privy Council held that the Hindu law upon

D

this aspect of the case is well settled. Proof of the existence of a joint family

does not lead to the presumption that property held by any member

of the

family is joint, and the burden rests upon anyone asserting that any item

of property is joint to establish the fact. But where it is established 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

..

E may have been acquired,. the burden shifts to the party alleging self-

acquisition to establish affirmatively that the property was acquired without

the aid

of the joint family property. In the case before the

Privy Council,

on facts, it was held that the burden had shifted to the father to prove self-

acquisition

as it was established that the family possessed joint property

F

which from is nature and relative value, may have formed the nucleus to

acquire the

proper"· in question. Those properties were large in number

and have been noticed

in

Privy Council decision. However, on further facts

found,

it was held that the father had discharged that burden. The properties

were held to be self-acquired properties

of the appellant.

..

G In Srinivas Krishnarao Kango v. Narayan Devji Kango & Ors., AIR

(1954) SC 379, the contention that was urged on behalf of the appellant

was that the burden was wrongly cast on the plaintiff

of proving that the

acquisition

of the properties were made with the aid of joint family funds,

the argument being that as the family admittedly possessed the ancestral

H Watan lands of the extent of 56 acres, it must be presumed that the

D.S. LAKSHMAIAH v. L. BALASUBRAMANYAM [SABHARWAL, J.] 19

acquisitions were made with the aid of joint family funds and, therefore, A

the burden lay on the defendants who claimed that they were self-acquired

acquisitions to establish that they were made without the aid

of joint family

funds and that the evidence adduced by them fell far short

of it and that

the presumption in favour

of the plaintiff stood unrebutted. It was noticed

by this

Court that on the question of the nucleus, the only properties which B

were proved to belong to the joint family were the Watan lands of the extent

of about 56 acres bearing an annual assessment of Rs. 49. There was no

satisfactory evidence about the income which these lands were yielding at

the material time. Under these circumstances, noticing with approval the

aforesaid Privy Council decision, it was held that whether the evidence C

adduced by the plaintiff was sufficient to shift the burden which initially

rested on him to establish that there was adequate nucleus out

of which

the acquisition could have made

is one of fact depending on the nature and

extent

of the nucleus. The important thing to consider is the income which

the nucleus yields. A building

in the occupation of the members ofa family

and yielding no income could not be a nucleus out

of which acquisitions D

could be made, even though it migh 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 may well form

the foundation

of the subsequent acquisitions.

In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda

Sankh,

[1969] l

SCC 386, noticing the observations of Sir John Beaumont

in

Appalaswami 's case (supra), it was reiterated that the burden of proving

E

that any particular property is joint family property in the first instance is

upon the person who claims it to be so. But if the possession of a nucleus

of the joint family property is either admitted or proved, any acquisition F

made by a member of the joint family is presumed to be joint family

property. This

is, however, subject to the limitation that the joint family

property must be such as with its aid the property in question could have

been acquired.

It is only after the possession of an adequate nucleus is

shown, that the onus shifts on to the person who claims the property as G

self-acquisition to affirmatively make out that the property was acquired

without any aid from the family estate. We are unable to accept the

contention

of learned counsel for the respondents that the aforesaid later

observations have been made without

re<.Sons or that the Privy Council's

decision does not hold so. The observation that only after possession of H

20 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A adequate nucleus is shown that the onus shifts also get support from

Srinivas Krishnarao Kango's case (case) where, while considering the

question of shifting of burden, it has been held that the important thing to

consider is the income which the nucleus yields.

B

In Baikuntha Nath Paramanik (dead) by His L.Rs. & Heirs v. Sashi

Bhusan Pramanik (dead) by his L.Rs & Ors., [1973] 2 SCC 334, this Court

again held that when a joint family is found to be in possession of nucleus

sufficient to make the impugned acquisitions then a presumption arises that ..

the acquisitions standing in the names of the person who were in the

c

management of the family properties are famil:' acquisitions.

In Surendra Kumar v. Phoolchand (dead) through LRs & Anr.,

(1996] 2 SCC 491, this Court held that where it is established or admitted

that the family which possessed joint property which from its nature and

D

relative value may have formed sufficient nucleus from whic'1 the property

in question may have been acquired, the presumption arises that is was the

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 funds.

..

E We may now refer to three decisions whereupon reliance has been

placed by learned counsel for the respondents. In Mallesappa Bandeppa

Desai & Anr. v. Desai Mallappa alias Mallesappa & Anr., AIR (1961) SC

1268, this Court held that where a manager claims that any immovable

property has been acquired by him with his own separate funds and not

F with the help of the joint family funds of which he was in possession and

charge, it is for ti;., to prove by clear and satisfactory evidence his plea

that the purchase money proceeded from his separate fund. The onus of

proof in such a case has to be placed on the manager and not on his

coparceners. It is difficult to comprehend how this decision lends any

"

G support to the contention of the respondents that in absence of leading any

evidence, the claim of appellant No. I of the property being self-acquired

has to fail. In the cited decision, the manager was found to be in possession

and in charge of joint family funds and, therefore, it was for him to prove

that despite it he purchased the property from his separate funds. In the

H present case, admittedly, no evidence has been led by the respondents that

D.S. LAKSHMAIAH v. L BALASUBRAMANYAM [SABHARWAL, J.) 21

the first appellant was in possession of any such joint family funds or as A

to value or income, if any, of Item No. 2 property.

lnAchuthan Nairv. Chi'!nammuAmma& Ors., AIR (1966) SC 411,

it was noticed that there were number of properties owned by joint family

which were received at the time

of separate under a deceree passed in a

B

partition suit. The claim of the defendants in the written statement was that

the property

in question had been purchased from the private funds of

defendant No. 1 and her son defendnat No. 4. In this decision too, it was "'

reiterated that when it is proved or admitted that a family possessed

sufficient nucleus with the aid

of which the member might have made the

c

acquisition, the law raises a presumption that it is a joint family property

and the onus

is shifted to the individual member to establish that the

property was acquired

by him without the aid of the said nucleus. After

noticing this settled propositions, it was observed that

if a property is

acquired in the mane of a karanvan, there is a strong presumption that is

is a tarwad (joint Hindu family) property and the presumption must hold

D

good unless and until it is rebutted by acceptable evidence. This Court did

not hold that if a property

is acquired in the name of karta, the law as to

presumption or shifting

of onus would be different. The question of

•

presumption would depend upon the

0

facts established in each case. In the

E

present case, no evidence of nucleus having been led, onus remained on

the respondents and, therfore, there could be no question

of presumption

about the property being joint family property.

The last decision relied upon

is Malappa Girimallappa Betgeri &

F

Ors. v. R. Yel/appagouda Patil & Ors., AIR (I 959)

SC 906. It cites with

approval the earlier decision

in the case of Srinivas Krishnarao Kango

(supra).

On facts, it was noticed that the courts below had held that the

property provided a sufficient nucleus

of joint family property out of which

the properties

in question might have been acquired and the sufficiency of

f nucleus is again a question of fact. In view of those circumstances, there G

was presumption of the properties being properties of joint family and the

said presumption had not been displaced.

In view

of the aforesaid discussion, the respondents having failed

to discharge the initial burden

of establishing that there was any nucleus H

22 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

•

A in the fonn 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. I 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

B

is concerned.

Under these circumstances, for failure to lead evidence, the

respondents' claim

of Item No.

I 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

•

c 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

D

purchased the property with his own funds and not out of joint family

nucleus that was available.

Another contention urged for the respondents was that assuming

Item No. I property to

be self-acquired property of appellant No.

I, he

E

blended the said property with the joint family property and, therefore, it

•

has become the joint family property. Assuming the respondents can be

pennitted to raise such a plea without evidence in support thereof, the law

on the aspect

of blending is well settled that property separate or self-

acquired

of a member joint Hindu family may be impressed with the

character

of joint family property if it is voluntarily thrown by the owner

F 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

G

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 (see lakkireddi Chinna Venkata Reddy v.

Lakkireddi Lakshamama, [1964] 2

SCR 172 and K. V. Narayanan v. K. V.

H

Ranganadhan & Ors., [I 977] I SCC 244.

..

•

D.S. LAKSHMAIAH v. L. BALASUBRAMANY AM [SABHARWAL, J.] 23

In the present case, respondents have not Jed any evidence on the A

aforesaid aspects and, therefore, it cannot be held that the first appellant

blended Item No. I property into the joint family account.

In view of aforesaid discussion, Item No. I property cannot be held

to be joint family property. The impugned judgment of the High Court is, B

therefore set aside and the appeal allowed and the judgment and decree

of the first appellate court is restored. In the circumstances of the case,

parties are left to bear their own costs.

S.K.S . Appeal allowed .