CASE LAW ON PROPERTIES OF JOINT FAMILY, ANCESTRAL,

COPARCENARY, SELF ACQUIRED

The mere fact that the properties were not separately entered by the coparcener in the book of account or that he
did not maintain a separate account of earnings from these properties would not deprive the properties of their
character of self acquired properties. AIR 19! "# 11$.
%here ancestral property which is sold in e&ecution of decree against the karta is subsequently acquired by a
coparcener with the aid of his own funds' the property would be treated as the self acquired property of the co(
parcener. Revappa case AIR 19!) *ys 9.
The burden of proving that any particular property is +oint family property is on person who on first instance
claims it as so. AIR 19!) "# ,,$. -nly after the possession of adequate nucleus is shown' the onus shifts on to the
person who claims the property as self acquired' affirmatively to make out that the property was acquired without
any aid from the +oint family estate. AIR 19!9 "# 1)!. -ne of the tests in determination of the adequacy of the
nucleus is the income which yields. AIR 19./ "# 111.
%here the manager of 012 claims that what is acquired is his separate property he should prove that he acquired
it with his separate funds. AIR 19!1 "# 13!.' AIR 19!9 "# 1)!. %here there is an acquisition by the manager in
his own name and there is no independent source of income' the presumption arises that the new acquisition was
+oint family property. AIR 19$/ "# ,9' AIR 19$9 "# 9)!.
If the admissions are made by a member' then the onus shifts on him to prove that what he admitted is not true.
AIR 19!1 "# 13!..
The principle of *itakshara 4aw that sons have independent co(parcenary rights in the ancestral estate and that
father is sub+ect to their control in he alienation of family property has been almost destroyed by the principle
which has been established by the decisions that sons cannot setup their rights against their fathers alienation for
an antecedent debt or against his creditors remedies for their debts' if not tainted with immorality' though not
incurred for the family necessity or benefit. AIR 19$3 "# 1). The concurrence of all the adult members is
conclusive presumption of law. AIR 19$1 *ys ,..25.
The settled law through decisions of 6rivy council and various 0igh courts is that 7 A sale or mortgage of family
property by the managing member is valid on the ground of +ustifying family necessity where it is8 9a: 2or the
payment of decree debts and other debts binding on the family. 9b: To pay off the claims of ;ovt on account of
4and Revenue' cesses' ta&es and other dues. 9c: 2or the payment of rents due to the landlord or the payment of
decrees for arrears of rent obtained by land lord against family. 9d: 2or the maintenance of members of the
family. 9e: 2or the purpose of defraying the e&penses of the first marriage of the co(parcener and of daughters
born in the family. 9f: 2or the e&penses of the necessary family ceremonies including funeral and annual shradha.
9g: 2or the e&penses of necessary litigation in connection with the recovery or protection of the +oint estate or the
establishment of adoption of his minor son. 9h: 2or the e&penses of defending the head of the family or any
member against a serious criminal charge. 9i: 2or the purpose of carrying on an ancestral trade or business. 9+: To
raise money to avert a sale or destruction of the whole or any part of the family property. 9k: 2or the e&penses of
necessary repairs to the family residential house or family properties and for the protection of fields and lands
belonging to the family from floods etc.'
*anagers discretion regarding legal necessity or benefit of the estate can be sub+ected to +udicial review. AIR 19!/
"# 1,.$.
It is not open for a coparcener to sue for in+unction restraining the manager from alienating on the ground that it
is not for legal necessity or benefit. 5.#.Ray' <ustice however observed that in+unction may be granted in case of
waste or ouster. "unil kumar case8 AIR 19.. "# $!.
;ift by a manager even of a small e&tent of <oint family property to a relative out of love and affection is void as it
is not a gift for pious purposes 9 i.e religious and charitable purposes : within the meaning of that e&pression in
0indu 4aw. ;uramma v=s *allappa AIR 19!/ "# $1). see also AIR 19! "# $!9. A gift to a concubine or stranger
is void. AIR 19.) "# 3$,.
In >rishnamurthy v=s Abdul khadar case AIR 19$! *ys 1/ %here the property is acquired by the managing
member and all the members of the family are in possession of the family property' it could very well be
presumed that the new acquisition is family property.
0indu 4aw8( 0usband' wife and children living together constitute +oint family. 6roperty acquired by members of
such +oint family is presumed to be +oint family property or coparcenary property not withstanding fact that it was
acquired without the aid of ancestral nucleus' unless contrary is proved. 6arties by their conduct and treatment of
property in their hands' can impress self acquired property with character of +oint family property with character
of +oint family property. >rishnamurthy case before >0# reported in 3))$9,: >ar4< /3).
Presumption of Joint Hindu Family : The Law
Justice A.K. Mathur
Supreme Court of India
The Supreme Court in Appasaheb Peerappa Chandgade vs evendra Peerappa Chandgade has
ruled on the presumption regarding !oint family property under the Hindu law" The Supreme Court
after #onsidering various pre#edents on the sub!e#t$ held that there is no presumption of !oint family
property$ and whoever alleges the e%isten#e of the same must prove it through eviden#e" The
Supreme Court further added that if it is shown that the properties were a#&uired out of the family
nu#leus$ the initial burden is dis#harged by the person who #laims !oint Hindu family$ and the burden
shifts to the party alleging self'a#&uisition to establish affirmatively that the property was a#&uired
without the aid of the !oint family property by #ogent and ne#essary eviden#e" The relevant e%tra#ts
from the !udgment are reprodu#ed hereinbelow(
)" *e have gone through the re#ords and heard learned Counsel for the parties at length" So far the
legal proposition is #on#erned$ there is no gain saying that whenever a suit for partition and
determination of share and possession thereof is filed$ then the initial burden is on the plaintiff to show
that the entire property was a !oint Hindu family property and after initial dis#harge of the burden$ it
shifts on the defendants to show that the property #laimed by them was not pur#hased out of the !oint
family nu#leus and it was pur#hased independent of them" This settled proposition emerges from
various de#isions of this Court right from +,-. onwards"
/" 0n the #ase of Srinivas 1rishnarao 1ango v" 2arayan evli 1ango and 3rs" $ their Lordships held
that proof of the e%isten#e of a !oint family does not lead to the presumption that property held by any
member of the family is !oint$ and the burden rests upon anyone asserting that any item of property
was !oint to establish the fa#t" 4ut where it is established that the family possessed some !oint
property whi#h from its nature and relative value may have formed the nu#leus from whi#h the
property in &uestion may have been a#&uired$ the burden shifts to the party alleging self'a#&uisition to
establish affirmatively that the property was a#&uired without the aid of the !oint family property"
Therefore$ so far as the proposition of law is #on#erned$ the initial burden is on the person who #laims
that it was !oint family property but after initial dis#harge of the burden$ it shifts to the party who #laims
that the property has been pur#hased by him through his own sour#e and not from the !oint family
nu#leus" Same proposition has been followed in the #ase of 5st" 6u7hmabai v" Lala La%minarayan
and 3rs"wherein it was observed as follows:
There is a presumption in Hindu Law that a family is !oint" There #an be a division in status among the
members of a !oint Hindu family by definement of shares whi#h is te#hni#ally #alled 8division of
status8$ or an a#tual division among them by allotment of spe#ifi# property to ea#h one of them whi#h
is des#ribed as 8division by metes and bounds8" A member need not re#eive any share in the !oint
estate but may renoun#e his interest therein( his renun#iation merely e%tinguishes his interest in the
estate but does not affe#t that status of the remaining members vis'a'vis the family property" A
division in status #an be effe#ted by an unambiguous de#laration to be#ome divided from the others
and that intention #an be e%pressed by any pro#ess" Though prima fa#ie a do#ument #learly
e%pressing the intention to divide brings about a division in status$ it is open to a party to prove that
the said do#ument was a sham or a nominal one not intended to be a#ted upon but was #on#eived
and e%e#uted for an ulterior purpose" 4ut there is no presumption that any property$ whether
moveable or immoveable$ held by a member of a !oint Hindu family$ is !oint family property" The
burden lies upon the person who asserts that a parti#ular property is !oint family property to establish
that fa#t" 4ut if he proves that there was suffi#ient !oint family nu#leus from and out of whi#h the said
property #ould have been a#&uired$ the burden shifts to the member of the family setting up the #laim
that it is his personal property to establish that the said property has been a#&uired without any
assistan#e from the !oint family property"
Similarly$ in the #ase of A#huthan 2air v" Chinnammu Amma and 3rs" $ their Lordships held as
follows:
9nder Hindu law$ when a property stands in the name of a member of a !oint family$ it is in#umbent
upon those asserting that it is a !oint family property to establish it" *hen it is proved or admitted that
a family possessed suffi#ient nu#leus with the aid of whi#h the member might have made the
a#&uisition$ the law raises a presumption that it is a !oint family property and the onus is shifted to the
individual member to establish that the property was a#&uired by him without the aid of the said
nu#leus" This is a well settled proposition of law"
Similarly$ in the #ase of 4hagwant P" Sula7he v" igambar :opal Sula7he and 3rs"$ their Lordships
have held that the #hara#ter of any !oint family property does not #hange with the severan#e of the
status of the !oint family and a !oint family property #ontinues to retain its !oint family #hara#ter so long
as the !oint family property is in e%isten#e and is not partitioned amongst the #o'sharers" 4y a
unilateral a#t it is not open to any member of the !oint family to #onvert any !oint family property into
his personal property"
;" 0n the #ase of Surendra 1umar v" Phool#hand <dead= through L6s and Anr" their Lordships held as
follows:
0t is no doubt true that there is no presumption that a family be#ause it is !oint possessed !oint property
and therefore the person alleging the property to be !oint has to establish that the family was
possessed of some property with the in#ome of whi#h the property #ould have been a#&uired" 4ut
su#h a presumption is a presumption of fa#t whi#h #an be rebutted> 4ut where it is established or
admitted that the family whi#h possessed !oint property whi#h from its nature and relative value may
have formed suffi#ient nu#leus from whi#h the property in &uestion may have been a#&uired$ the
presumption arises that it was the !oint property and the burden shifts to the party alleging self'
a#&uisition to establish affirmatively that the property was a#&uired without the aid of the !oint family"
Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption
of a joint Hindu family but on the evidence if it is established that the property was joint Hindu
family property and the other properties were acquired out of that nucleus, if the initial burden
is discharged by the person who claims joint Hindu family, then 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 by cogent and necessary evidence.
' See more at: http:>>www"legalblog"in>?@++>+@>presumption'of'!oint'hindu'family'law"htmlAsthash"r+BC3D!T"dpuf