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TMI Blog2020 (4) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... is left two branches in the family of Mangat Ram, one being Madhav Prashad and his descendants through his son Hari Ram, the other branch consisted of Umrao Lal and his three sons viz., Brij Mohan, Rameshwar and Radha Krishan. The plaintiff Bhagwat Sharan, who filed the suit is the son of Radha Krishan and grandson of Umrao Lal. 2. The above facts are not disputed. The parties are also ad idem that Madhav Prashad shifted from his native village and came to Ashok Nagar, about 70 years prior to the filing of the suit. The suit was filed in 1988. Thus, Madhav Prashad must have shifted in or around 1918. It is also not disputed that Madhav Prashad started working as munshi of the then zamindar of the area and was thereafter known as munshi Madhav Prashad. The dispute basically starts hereinafter. The plaintiff claims that his grandfather Umrao Lal also came to Ashok Nagar at about the same time and started doing grain business. Thereafter, Madhav Prashad left the work of munshi and both the brothers started grain business in the name of "Munshi Madhav Prashad", by setting up a shop. The case of the plaintiff is that both Madhav Prashad and Umrao Lal lived together and carried on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to a closure position almost all the people started carrying on their separate business and the immovable properties of the joint family remained undivided so far. Late Hari Ram sold the house properties mentioned in para No.9(1) (c) (d) (e) (f) of the plaint during his life time, which are liable to be reduced from there share" This suit was contested by some of the defendants who were either in the line of descendants of Hari Ram or his beneficiaries. Transfer documents were executed in their favour. It would be pertinent to mention that none of the other heirs from the lineage of Umrao Lal filed a written statement. In the written statement filed by the contesting respondents the main objection taken was that the properties mentioned in para 9 of the plaint were not properties of the HUF and it was denied that there ever was any such HUF. 6. The defendants denied the fact that the business being run under the name of "Munshi Madhav Prashad" was a joint family business. It was denied that Umrao Lal was a member of this business or the said shop was a joint shop. With regard to all the properties mentioned in para 9 of the plaint, it was stated that all the houses had been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior counsel, for the contesting respondents. 10. At the outset we may note that a lot of arguments were addressed and judgments were cited on the attributes of HUF and the manner in which it can be constituted. In view of the facts narrated above, in our view, a large number of these arguments and citations need not be considered. The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal vs. Reoti Devi AIR 1962 SC 287 Both the parties have placed reliance on the this judgment. In this case this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he family being karta. Some property has to be the nucleus for this joint family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. But assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the plaintiff to prove that the two of them joined together to form an HUF. To prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together. 12. From the facts stated above it is apparent that there is no pleading that Mangat Ram and Sons constituted a HUF. There is no allegation that this family had some property as its nucleus. Since there is no allegation that Mangat Ram and his four sons constituted a HUF, the fact that Lal Chand left the family to live by himself, would not in any manner mean that there was a disruption of the joint family status. A disruption would arise only if there was an allegation that earlier there was a HUF. 13. It is also an admitted case of the parties that Madhav Prashad and Umrao Lal came separately to Ashok Nagar. Madhav Prashad initially worked as a munshi with a zamindar. Therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no co-parcener and co-sharer". This mortgage deed was signed by Hari Ram, Brij Mohan, Rameshwar Lal, Radha Krishan as mortgagors. This would indicate that these properties were owned by them. 16. However, there is no material on record to show that the properties belonged to an HUF. They may have been joint properties but merely on the basis of the recitals in the mortgage deed they cannot be said to be a joint family property. It appears that by another mortgage deed dated 26.11.1946, the value of the mortgaged properties was enhanced to Rs. 45,000/-, and in addition to the 5 houses, one oil mill at Pachhar was also mortgaged. Seth Budhmal filed a suit (Exh.P.4) against Hari Ram, Brij Mohan, Rameshwar Lal, Radha Krishan, Nathu Lal etc., for realisation of the mortgage money under the said mortgage deed. In para 6 and 8 of the plaint it was averred as follows :- "6. That, the defendants at the time of execution of aforesaid documents constituted a Trading Joint Hindu Family and of which all major members personally and minor members through their head of the branch were represented in the execution of mortgage deeds. 8. That, minors mentioned in the documents ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, it is clear that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. In our opinion, this has not been proved in the present case. Merely because the business is joint would not raise the presumption that there is a Joint Hindu Family. As far as paragraph 8 is concerned in our view there is no clear-cut admission. The allegation made was that the minors were represented by defendant nos. 1-3, who were head of their respective branches. In reply to this it was stated that defendant nos.1-3 were neither the head or the karta, nor the mortgage transaction was made in that capacity. This admission cannot be said to be an unequivocal admission of there being a joint family. 20. In Nagubai Ammal and Ors. vs. B. Shama Rao and Ors. (1956) 1 SCR 451 which is the locus classicus on the subject it was held as follows:- "An admission is not conclusive as to the truth of the matters stated therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may have happened much earlier. We have to read the sale deeds in conjunction with the averments made in the plaint quoted hereinabove wherein the plaintiff has stated that the business came to a closure and then almost all the people started carrying on their separate business. Though it is averred that the immovable properties remained the properties of the joint family the fact that separate branches started doing separate business is indicative of the fact that some separation, if not, a formal partition had taken place between the parties. 23. The other important document is the Will of Hari Ram (Exh. P-3). In this Will, Hari Ram gives details of the remaining 3 houses and mentions that these were owned by his father Madhav Prashad and that he (Hari Ram) has been doing business in the name of his father Munshi Madhav Prashad Agarwal. Out of the 6 houses, 3 had already been sold by Hari Ram and he has bequeathed the remaining 3 houses to various persons. It would be relevant to refer to the portion of the Will where Hari Ram states that he had 3 cousins Brij Mohan, Rameshwar Lal and Radha Krishan. Out of these, Radha Krishan died and was survived by his widow and 3 sons and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .'' This view has been accepted to be the correct view in Karam Kapahi and Ors. vs. Lal Chand Public Charitable Trust and Ors. 2010) 4 SCC 753 The plaintiff having elected to accept the Will of Hari Ram, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the averments made by Hari Ram that the property was his personal property, is incorrect. 26. As far as the agricultural lands are concerned the trial court decreed the suit in respect of the agricultural lands on the basis that Madhav Prashad and his brother Umrao Lal and their successors constituted an HUF. The said lands having been bought out of the funds of the HUF would be treated to be the property of the HUF, even though they may have been entered in the name of any other person. In view of the above discussion, and the fact that we have held that the plaintiff has failed to prove that there is an HUF, we are not inclined to agree with the finding of the trial court. 27. We now deal with each of the agricultural property separately. The properties described in paragraph 9(2)(a) of the plaint were earlier recorded in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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