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TMI Blog2003 (8) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty 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. 1 property had been sold by the first appellant, on their application, appellant No. 2 was impleaded as defendant No. 2 in the suit. 3. 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. 4. The first appellate court, however, allowed two separate appeals that 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 available in the hands of the first appellant to purchase Item No. 1 property noticing that accept 15 guntas of land (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime no evidence has also been led by the first appellant to prove that he had any separate income so as to acquire Item 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. 9. In Appalaswami v. Suryanarayanamurti and Ors. AIR 1947 PC 189, 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 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 nucleus from which all his further acquisitions sprang. The plea of the father that was accepted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 of a family and yielding no income could not be a nucleus out of which acquisitions could be 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 may well form the foundation of the subsequent acquisitions. 11. In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh [1969] 3 SCR 245 , noticing the observations of Sir John Beaumont in Appalaswami's case (supra), it was reiterated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Anr. [1961] 3 SCR 779 , this Court held that where a manager claims that any immovable properly has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him 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 support to the contention of the respondents that in absence of leading any evidence, the claim of appellant No. 1 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 present case, admittedly, no evidence has been led by the respondents that the first appellant was in possession of any such joint family funds or as to value or income, if any, of Item No. 2 property. 15. In Achuthan Nair v. Chinnammu Amma and Ors. [1966] 1 SCR 454 , it was noticed that there were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is concerned. Under these circumstances, for failure to lead evidence, the respondents claim of Item No. 1 to be joint family property would fail as rightly held by the first appellate court. 18. 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 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 purchased the property with his own funds and not out of joint family nucleus that was available. 19. Another contention urged for the respondents was that assuming Item No. 1 property to be self-acquired property of appellant No. 1, he blended the said property with the joint family property and, therefore, it has become the joint fami ..... X X X X Extracts X X X X X X X X Extracts X X X X
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