2013 (9) TMI 252 - HC - Indian Laws

HUF - Partition - Nature of property - Onus to prove - Held that - Proof of the existence of a joint family does not lead to the presumption that the properties held by any member of the family is joint. Burden is on the person who ascertain that any item of the property was joint to establish the fact. There is no presumption that any property whether moveable or immoveable held by the member of a joint Hindu family is joint family property. If such person proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, burden shifts to the member of family making a claim that it was his personal property and was acquired without any assistance with joint family property. If it is proved or is admitted that family possesses sufficient nucleus with the aid of which the member might have made that acquisition, it arises presumption that it is joint family property. Such presumption is however presumption of fact and rebuttable. Whether a person is governed by school of Hindu law under Dayabhaga or Mitakshra, a joint Hindu family, normally joint in food, worship and estate and property of such joint family may consist of ancestral, joint acquisition and self acquired but thrown into a common stock. If one or more more of the family start a business or acquire property without the aid of joint family property, such business or acquisition would be his or their acquisition. It can be however thrown into a common stock or blend with the joint family property in which case the said property becomes the estate of the joint family. If if it not done, the said property would be his or their self acquisition and succession of such property will not be governed by the law of joint family but only by the law of inheritance rights inter se between the members who have acquired such property and would be subject to the terms of the agreement whereunder it was acquired. There is distinction between the joint family property and property acquired by the joint efforts. Court has to see whether it is a jointly acquired property or not. There is no presumption that business carried out by a member of the joint family with the stranger is joint family business. It is a matter for evidence. In case of immoveable property standing in the name of the individual member, there would be presumption that the same belongs to joint family provided it is proved that the joint family had sufficient nucleus at the time of its acquisition but no such presumption can be applied to business. There is no presumption under Hindu law that a business standing in the name of any member of joint family is a joint family business even if that member is a manager of the joint family. Unless it is shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. Such question is a question of fact. A person who asserts a particular property to be a joint family property, onus is on him to establish that fact and unless such person who asserts such fact discharges his onus cast upon him, such burden is not shifted to the other party who claims the said property as self acquired property. Plaintiff is unable to establish any rights in respect of any of the properties to the plaint as the properties of Hindu undivided family. Plaintiff is unable to show any nucleus by demonstrating before this Court even prima facie, that the income generated by his father prior to 1969 was used by father in starting the partnership business in the name of M/s Kanayalal Rameshkumar in 1969 and thereafter by defendant No.1 and others by use of such income generated out of such firm in other businesses started by defendants. In my prima facie view, the plaintiff has failed to discharge such initial burden on the plaintiff to prove that all such businesses and properties of Hindu undivided family businesses and properties. The defendant no. 1, 2, 4, 5, 7 and 8 state that in so far as properties and businesses which are standing in the name of the plaintiff, his wife and his son are concerned or firms and companies in which those defendants are not partners/shareholders, all such properties and businesses are the properties of the plaintiff, his wife and his son and are not Hindu undivided family properties and/or businesses. All these defendants have also made statement that they do not make claim in respect of any of those properties and/or businesses. Statements made by the contesting defendants are accepted - Decided against Appellant.

Summary

Issues Involved:
1. Whether the properties and businesses described in the plaint are joint Hindu family properties and businesses.
2. Whether the plaintiff has demonstrated sufficient joint family nucleus for acquiring the properties.
3. Whether the businesses started by the defendants were out of the joint family funds.
4. Whether the plaintiff is entitled to 1/10th share in the properties and businesses.

Issue-wise Analysis:

1. Joint Hindu Family Properties and Businesses:
The plaintiff claimed that the properties and businesses described in the plaint were joint Hindu family properties. The court analyzed whether the properties held by any member of the family were joint family properties. It was established that the burden of proof lies on the person asserting that any item of property was joint family property. The court concluded that there was no presumption that the properties and businesses were joint family properties. The plaintiff failed to demonstrate that the properties and businesses were acquired from the joint family nucleus.

2. Sufficient Joint Family Nucleus:
The court examined whether the plaintiff had shown sufficient joint family nucleus from which the properties could have been acquired. The plaintiff's case was based on the assertion that the father started the firm M/s. Kanayalal Rameshkumar in 1969 with joint family funds. However, the court found that the father was declared insolvent in 1973 and had no assets or income to start the business. The court concluded that the plaintiff failed to show any nucleus of income from the father's past business that could have been used to start the firm M/s. Kanayalal Rameshkumar.

3. Businesses Started by Defendants:
The court analyzed whether the businesses started by the defendants were out of the joint family funds. The court found that various businesses started by the defendants since 1982 were independent and self-acquired. The plaintiff failed to demonstrate that any profit or loss from these businesses was shared among the family members as joint family income. The court also noted that the plaintiff did not offer inspection of his income tax returns, which could have shown whether any of the properties were claimed as joint family properties.

4. Plaintiff's Entitlement to 1/10th Share:
The court examined the plaintiff's claim for a 1/10th share in the properties and businesses. The court found that the plaintiff's claim was not supported by evidence. The plaintiff had not shown any distribution of profit or loss from the businesses to the family members. The court also noted that the plaintiff had claimed equal share with the first defendant in some businesses, which contradicted his claim of 1/10th share. The court concluded that the plaintiff was not entitled to the claimed share.

Conclusion:
The court dismissed the notice of motion filed by the plaintiff, concluding that the plaintiff failed to demonstrate that the properties and businesses described in the plaint were joint Hindu family properties and businesses. The court found that the plaintiff did not show sufficient joint family nucleus or that the businesses were started with joint family funds. The court also noted that the plaintiff did not prove his entitlement to a 1/10th share in the properties and businesses. The ad interim order was continued for four weeks.