Chattisgarh High Court
Laxmi Narayan Sahu vs Smt Dhelabai And Others on 28 February, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 03-01-2022
Pronounced on 28-02-2022
FA No. 134 of 2009
1. Laxmi Narayan Sahu S/o Chamroolal Sahu, r/o House No. 26/378
Jorapara, ward of Raipur, Tah. And Dist. Raipur
---- Appellant
Versus
1. Smt Dhelabai widow of Chamroolal Sahu, r/o Jorapara Ward Of Raipur,
Meena Kirana Stores, Tah. And Distt.-Raipur.
2. Gendalal S/o Chamroolal Sahu, r/o Jorapara Ward Of Raipur, Meena
Kirana Stores, Tah. And Distt.-Raipur.
3. Tulendra S/o Chamroolal Sahu, r/o Jorapara Ward Of Raipur, Meena
Kirana Stores, Tah. And Distt.-Raipur.
4. Nemichand S/o Chamroolal Sahu, r/o Jorapara Ward Of Raipur, Meena
Kirana Stores, Tah. And Distt.-Raipur.
5. Smt. Chandabai (D/o. Chamroolal Sahu) wife of Sudama Ram Sahu R/o
Hudco quarter, in front of Holicross School, Room No. 3 Raipur, Tah. And
Dist. Raipur
Present Address - Smt. Chndabai Sahu W/o Sudamaram Sahu (Police
Constable), R/o Prem Nagar, C.G. Hospital, Ahead the Higher Secondary
School, Pakka House (Mova) Raipur, C.G.
6. Smt. Meenabai (D/o Chamroolal Sahu) wife of Sunderlal Sahu R/o Lal
Khadan (Ahead Rly Crossing), Bilaspur Tah. And Dist. Bilaspur, C.G.
Present Address - Meenabai Sahu W/o Sunarlal Sahu (Tailor Master), R/o
Ahead the Railway Phatak, Lal Khadan, Near Tank, Dist - Bilaspur, C.G.
7. Smt. Kamlabai Sahu (D/o Chamroolal Sahu) wife of Ram Kumar Sahu R/o
near New Police Station of Village Khamhariya P.O. Bagbahara Dist.
Raipur (C.G.) At present residing in Jorapara Ward of Raipur, Tah. And
Dist. Raipur
Present Address - Smt. Kamla Bai Sahu w/o Lal Kumar Sahu, (D/o
Samaroo Lal Sahu), Near Gayatri Mandir Munna Kirana Dukan, Khriyar
Road (Orrisa).
8. Tulsi S/o Gendlal Sahu R/o Jorapara Ward of Raipur Tah. And Dist. Raipur
9. State of Chhattisgarh Through the Collector Raipur
---- Respondents
For Appellant : Shri Viprasen Agrawal, Advocate
For Respondents No. 1 to 4 : Shri Ram Kumar Tiwari and Shri
Shyam Sundar Agrawal, Advocate
For State : Shri Sanjeev Kumar Agrawal, Panel
Lawyer
2
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1) The appellant has filed present appeal challenging the judgment and decree passed by the learned Second Additional District Judge, Raipur in Civil Suit No. 1A/2008 by which the learned trial Court has partly allowed the suit and held that the plaintiff is entitled to get 1/8th share of the house belonging to the joint Hindu family situated at Jorapara, Raipur. The plaintiff's claim for rest of the property mentioned in para 5 of the plaint has been negated by the trial Court.
2) For the sake of convenience parties would be referred to as per their status shown in the suit filed before the trial Court.
3) The brief facts as reflected from the plaint averments is that the plaintiff is son of defendant No. 1, defendants No. 2 to 4 are brothers of the plaintiff, defendants No. 5 to 7 are sisters and defendant No. 8 is son of defendant No. 2. The plaintiff's father Chamroolal expired on 07.01.1993 and the plaintiff and defendants have received the property which is described in the tabular format in the foregoing paragraph as joint Hindu family property. It has been further contended that the plaintiff's father was suffering from long illness and expired on 07.01.1993. It has been further contended that his father was doing grocery business in the name and style of 'Meena Kirana Store'. He was also working as commission agent for food grains. The plaintiff and defendants were also assisting their father. The plaintiff's father purchased the property being manager of the joint Hindu family property from the earnings of Meena Kirana Store. As such, the deceased, plaintiff and defendants had equal share on that shop. Details of the joint Hindu family property are shown below:-
Place Details of land/property 1. Jorapara 14/378 14/176 14/126 Meena Kirana Store 2. Shankarnagar 933 29911 3731 724102 3. Village Kota A house 4. Changorbhata Open plot 3
4) It has been further contended that the plaintiff's father became ill for last five to six years, he was unable to take any decision, therefore, defendant No. 2 who is elder son of the deceased started managing the shop. Other defendants and plaintiff were also sitting in the shop. Due to family dispute as per family settlement the plaintiff started living in House No. 378/1 which is part of 378 situated at Jorapara without any partition of the property, therefore, the plaintiff has demanded share of the joint Hindu family property on 15.01.1993. As per the family settlement, he started living separately from the family members, but they were working as joint Hindu family. The plaintiff has demanded for his share on the joint Hindu property which was denied. He issued notice through his counsel on 09.07.1993, but, no reply was given, but it has been orally informed that their father has executed a will, as such, he is not entitled for any share over the suit land. This necessitated the plaintiff to file the present suit for declaration, partition, possession as well as mesne profit. It has been further contended that in the lifetime of Late Chamroolal there was no information with regard to execution of will. The will is forged and fabricated document and even the property is not self acquired property but it is joint Hindu family property, as such, Late Chamroolal has no right to execute will with regard to joint Hindu Family property. The plaintiff is also entitled for 1/8th share over the joint Hindu family property, as such, he has prayed for partition and declaration of the property described in para 5 of the plaint and also claimed mesne profit for last three years from the date of filing of the suit.
5) The defendants have filed their written statement denying the allegation in the plaint contending that their father was not seriously ill but expired on 07.01.1993 due to heart attack. It is emphatically denied that in the business of late Chamroolal plaintiff and defendants No. 2 to 4 were providing any assistance or were managing stocks of the Meena Kirana Store. It is also denied that the stocks in the Meena Kirana were procured from the financial assistance of the plaintiff and defendants No. 2 to 4. It is also denied that the plaintiff and defendants No. 2 to 4 have share over the income from Meena Kirana Store. Defendant No. 2 Gendlal was the commission agent of the food grains and from his 4 income he has started shop in the year 1992 and the whole stocks in the store were procured from his income only. It has also been stated that the plaintiff was quarrelsome in nature and used to create unpleasant situation in the family, as such, he was separated in the year 1978 after taking share in the House No. 378/1 and Rs. 10,000/- as cash and started his own business. It is denied that Late Chamroolal was manager of the shop and owned the property of Joint Hindu Family property. It has also been stated that only house situated at Jorapara No. 14/378 is joint Hindu family property. House No. 14/176 was purchased by late Chamroolal from his own income. House No. 14/126 was purchased by Defendant No. 1 from Smt. Dhela Bai. Therefore, House Nos. 14/176 and 14/126 were not owned by Late Chamroolal as manager of joint Hindu family property. It is also denied that property situated at Shankarnagar, Raipur, house at village Kota and open plot at Changorabhata were joint Hindu family property. In fact the plot situated at Changorabhata was gifted to wife of defendant No. 2 Mahetrin Bai from her maternal side which was subsequently sold out. It has also been stated that the shop Meena Kirana was started by defendant No. 2 from his own income and it is not a joint Hindu family property. Late Chamroolal was hale and hearty and was capable to understand, therefore, he has executed the registered will on 09.02.1987 in presence of two witnesses. The will was for self acquired of Chamroolal which is binding on all his legal representatives. No joint family property has been executed on will. Therefore, the plaintiff is neither entitled for any share nor any mesne profit. The suit has been on vexatious ground just to harass the defendants, therefore, prayed for dismissal of the suit.
6) On the pleadings of the parties, learned trial Court framed as many as 7 issues. The issues which are required for determination of the points raised in this appeal are as under :-
(i) Whether the properties described in para 5 of the plaint are joint Hindu family property?;
(ii) Whether will dated 09.01.1987 is forged and fabricated? and
(iii) Whether plaintiff is entitled to get 1/8th share of joint Hindu family property?
7) The plaintiff to substantiate his averments exhibited documents Ex.P.1 -
Death Certificate of Late Chamroolal, Ex.P.2- receipt of tax paid before 5 the Municipal Corporation, Ex.P3- Letters given to some Government organisation with regard to application moved by him, Ex.P4- complaint to Superintendent of Police, Ex.P5- information given by the police regarding non-congnizable offence, Ex.P6 - certified copy of Khasra Panchsala dated 09.04.1995, Ex. P7 certified copy of mutation register, Ex.P8- Kistbandi Khatoini for the year 96-97, Ex.P-9,10 - copy of tax register of revenue department of Municipal Corporation. Ex.P11- copy of mutation register, Ex.P12 Kistbandi Khatoini dated 22.06.93. The plaintiff to substantiate his averments made in the plaint has examined himself.
8) Defendant No. 1 has examined the sale deed of land bearing Khasra No. 293, 299, 373 situated at Shankarnagar, Raipur, Ex.D-2 sale deed of House at Jorapara, Raipur dated 06.03.1961, Ex.D-3 Sale deed dated 05.04.1985, Ex.D-4 Sale deed dated 05.06.1975 with regard to open plots bearing No. 14/176, Ex.D-5 property tax receipt of Nagar Nigam, Ex.D-6 Power of Attorney of Late Chamroolal dated 09.01.1987. The defence has examined DW/1 Gandlal Sahu, DW/2 Smt. Dhela Bai, DW/3 Dudhnath Soni who was the attesting witness to the will.
9) The trial Court after appreciating the evidence and materials on record has recorded the finding that plaintiff has failed to establish that property described in paragraph No. 5 of the plaint is joint Hindu family property except House No. 378/1 in which the plaintiff has been given 1/8th share. Being aggrieved by the judgment and decree the appellant has preferred the first appeal before this Court.
10)Learned counsel for the appellant would submit that learned Court below has committed material irregularity and illegality in appreciating the facts and evidence on record. The plaintiff has categorically deposed before the learned trial Court that it is a joint property and he would further submit that proof of existence of a joint family does not lead to presumption that property held by any member of the family is joint property, burden rests upon anyone asserting that any item of the property is joint, but where it is established that family possessed some joint property which form its nature and relative value may have formed the nucleus from which the property in question 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 6 the joint family property and would refer to judgment passed by the Privy Council in Appalaswami vs. Suryanarayanamurti and Others 1. He would further submit that the Hon'ble Supreme Court in case of Srinivas Krishnarao Kango vs. Narayan Devji Kango and Others 2 has held that if it is established that the family possessed some joint property which nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition and he would submit that the plaintiff in his evidence has categorically stated that entire property was owned by their father as manager of the joint Hindu family property. He would highlight the evidence and would submit that father, elder son Gendlal and plaintiff all were jointly running the shop and from that income his father had purchased property No. 14/176 and house has been constructed on that plot, shop has been shifted to new house wherein his father, elder brother Gendlal and plaintiff himself used to work in the shop, therefore, he has also share in the property. He has further stated that since there was no partition of the property and after death of his father the joint family property is divided as such he has rightly filed the suit for getting his share. He would further submit that during evidence before the trial Court plaintiff has categorically stated that plaintiff's father has not executed the will as he was ill since 1985, he was suffering from blood sugar, ulcer and the defendants have also not got the probate which is required for getting fruits of the will, therefore, on the basis of will the defendants cannot claim any advantage. The witness was extensively cross-examined by the defendants wherein he has admitted that his father was doing work of commission agent of food grains from very beginning whereas shop was started in the year 1974. He has also admitted in the cross examination that he was unaware whether in the sales tax registration documents and licence, name of the owner has been shown as Gendlal Sahu. He has admitted the fact that he has not mentioned in the affidavit that the property at Shankar Nagar has been purchased from the rent received from the parental house No. 14/378. He has also admitted that the house situated at Kota has been purchased by his elder brother Gendlal in his name. He has also admitted that he has never raised objection 1 AIR (34) 1947 Privy Council 189 2 AIR 1954 SC 379 7 with regard to purchase of property in particular name of defendant. He has also admitted that during the life time of his father in 1978 itself he has started living in house No. 14/378 and would submit that learned trial Court has recorded a perverse finding with regard to the fact that property mentioned in paragraph 5 of the plaint is not joint Hindu family property which is illegal and is liable to be set aside by this Court.
11) The defendant-Gendlal was examined before the trial Court and stated in his evidence that properties except house No. 14/378 situated at Jorapara all the properties are self acquired property of his father. His father has purchased the house situated at village Kota from his own income and plot at Changorbhata has been given by his in-laws which has subsequently been sold by him. He has also stated in his examination in chief that his father has executed a will on 09.06.1987 which is a registered will. Thereafter, neither any will has been executed nor the will has been cancelled. He has also stated the stock, furniture and other materials available in Meena Kirana Store are owned by him only. He has categorically stated that property mentioned in paragraph 5 of the plaint is not property of joint Hindu family. In cross-examination he has reiterated that his father used to work as agent in food grains market. He has also admitted that in the house where he is residing was purchased by his father in the name of mother of plaintiff and defendants. It was denied that this house was purchased by his grandfather. It was denied that his father has started Meena Kirana Store, in the name of his daughter, from the commission received by him while working as agent in the food grain market. It was also denied by him that his father and his brothers were sitting in the shop. It is emphatically denied that before writing of the will his father was regularly ill, but admitted that he has undergone operation and after that he was fit. It is also stated that he is aware that a person who is owner of the property can only execute the will. It has been denied that his father was an alcoholic and also consuming opium. He has admitted that his father had gone to work even two days prior to his death. He has admitted that in 1986 there was partition between his father and his brother. The house situated at Jorapara was subjected to partition and house No. 14/378 was received by his father on partition. He has emphatically denied that his father has purchased the property at Shankarnagar, 8 Raipur from the income of joint Hindu family property. He has also denied that the shop Meena Kirana was opened in 1974 and the ownership registration document was in the name of his father or his father was involved in such transaction.
12)The defendant has also examined witness Smt. Dhelabai (DW-2), mother of the plaintiff and defendants and she has admitted in cross- examination that defendant Gendlal has purchased the property from the income of Meena Kirana Store. The defendant has also examined the attesting witness Dudhnath Soni who has admitted in his cross- examination that Ex.D/6 was executed when he has gone to his sister- in-laws house and on the instruction of his sister, he had put signature in Ex.D/6.
13)The trial Court while deciding issue No. 1 whether the suit land belongs to joint Hindu family property, has recorded its finding that at paragraph 16 that late Chamroolal had received ancestral property in partition which is house No. 14/378 situated at Jorapara and this fact has been admitted by the plaintiff and defendant No. 2. The plaintiff has not led any evidence to substantiate that the property mentioned in clause 5 of the plaint has been purchased from the income of the joint Hindu family property. The plaintiff has also not discharged his burden to prove that the suit land has been purchased from the income of the joint Hindu family property. Learned trial Court has recorded a specific finding that only house No. 14/378 has been received by their father from the partition. As such, it is also incumbent on part of the plaintiff to prove that his father has inherited properties from his grandfather and the Meena Kirana Store was opened with the income from the joint Hindu family property.
14)Learned counsel for the defendants would submit that not only jointness of the family has to be proved but burden lies upon a person alleging existence of a joint family property unless there is material on record to show that property is the nucleus of the joint Hindu Family and it was purchased from the funds generated from nucleus. The plaintiff should have established that Meena Kirana Store was started from the funds coming out of the nucleus i.e. house No. 14/378 which was the only joint property received by the plaintiff's father on partition in year 1966. On the contrary, the defendants have established that Meena Kirana Store 9 was started by Gendlal and his father was doing work of commission agent in the food grain market, the licence of the shop is in the name of Gendlal and the plot which was given by parents of Gendlal's wife has already been sold. In the written statement the defendants have categorically stated that his father has purchased the house No. 14/176, 14/126 from his own income. Similarly, with regard to property situated at Shankarnagar measuring about 0.46 Ha. it has been stated that the property at Shankarnagar, Raipur was purchased from self acquired income of his father. This witness has further stated that land situated at Kota has been purchased from his father's self income. There was no material cross-examination on this issue, where as it is incumbent on part of the plaintiff to establish that the fund generated from the nucleus is quite enough to purchase other properties.
15)Learned counsel for the plaintiff / appellant to substantiate his submission relied upon the judgment of Appalaswami (supra) and would refer to para 11 of the judgment which is extracted below:-
"It has been argued before the Board that the share which the appellant took under exhibit A formed the nucleus from which all his further acquisitions sprang. The learned District Judge found that under exhibit A the appellant had got six acres of land, a house and site at Rajahmundry valued then at Rs. 2,000, 1/4th of a 0/16th share in the Radhakrislma Rice Mills, outstandings valued at Rule 3,500, gold articles worth Rs. 446 and some utensils worth Rs. 70. The whole property was stated to be worth Rs. 7,220. These findings have not been challenged. The evidence of the appellant, which was not contradicted upon this point, was that the whole of this property was intact and unencumbered except for a godown on the Rajahmundry site which he had sold for Rs. 1,100, which sum he had debited against household expenditure. From the figures which the appellant gave in evidence, which again were not disputed, it is clear that his family expenses far exceeded the income derived from the joint property which he acquired under exhibit A. Between 1918 and 1934 the appellant acquired various properties at a total expenditure of some Rs. 55,000 and it was conceded in the judgment of the High Court that the defendant was a man of enterprise and that it was largely due to his energy and labour that a large fortune had been acquired. The Hindu law upon 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 may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property 10 was acquired without the aid of the joint family property : see Babubhai Girdharlal v. Ujamlal Hargovandas [1937] Bom. 708 : S.C. 39 Bom. L.R. 846, Venkataramayya v. Seshamma [1937] Mad. 1012, Vythianatha v. Varadaraja [1938] Mad. 696 In the present case their Lordships think that the acquisition by the appellant of the property under exhibit A, which as between him and his sons was joint family property, cast upon the appellant the burden of proving that the property which he possessed at the time of the plaint was his self- acquired property, but they agree with the District Judge in thinking that this burden has been discharged. The evidence establishes that the property acquired by the appellant under exhibit A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is no evidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule to the written statement. Consequently there is no force in the suggestion that the appellant improperly claimed as his own property which belonged to the joint family, and that is the only ground now relied upon to show that this suit was filed in the interest of the minors."
16) Learned counsel for the appellant relied on judgment of Hon'ble Supreme Court in case of Srinivas Krishnarao Kango (supra) and would refer to para 8 which is extracted below:-
"(8) Coming next to the acquisitions, on 21st May, 1871, Siddopant purchased under Exhibit D-36 a house for Rs.200 from his mother-in-
law. On 11th May,1885, he purchased under Exhibit D-61 S. No. 23 Ukamnal village for a sum of Rs. 475. On 23rd July, 1890, he purchased under Exhibit D- 64 lands bearing S. Nos. 2025 and 2140 for Rs. 2,400. In this suit, we are concerned only with S. No. 2025. Apart from these purchases, he constructed two houses, one on S. Nos. 639, 640 and 641, and another on S.Nos. 634 and 635. D.Ws. 2 and 3 have deposed that these constructions would have cost between Rs. 20,000 and Rs. 25,000, and both the Courts have accepted this evidence. It was argued for the appellant that these witnesses had no first-hand knowledge of the constructions, and that their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on S. Nos. 642, 644 and 645 at a cost estimated between Rs. 2,000 and 4,000. Thus, sums amounting to about Rs. 30,000 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from ? The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower Courts came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the Foundation for the latter, and on 11 the authority of the decision of the Privy Council in Appalaswami v. Suryanarayanamurti (1) held -that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged. The law was thus stated in that case:
" The Hindu law upon 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 was 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 may (1) I.L.R. 1948 Mad. 440 at 447, 448 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."
17) Learned counsel for the appellant further relied on judgment of Hon'ble High Court of Allahabad in case of Patram Singh vs. Bahadur Singh 3 and would refer to paragraph 10 of the judgment which is extracted below:-
"10. If the evidence had been appraised from the proper viewpoint, the lower appellate court ought to have taken into consideration the facts that the parties were living joint in the year 1941 when the land was purchased and having been purchased in the joint names of the parties, it was for the defendant to establish that the consideration for the purchase of the land was advanced by him entirely from his own resources and self acquired funds with the intention of purchasing the property as separate property and the name of the plaintiff as a co-purchaser was no better than that of a Benamidar. In the absence of any such plea the joint family being there, the joint family lands which yielded some income in some form being there, and the land having been acquired in the joint names of the two brothers by the defendant who was the elder of the two and was presumably the Karta of the family, the land so acquired could only be deemed to be coparcenary property between the brothers. It seems to me that being conscious of this position, the defendant set up the case that the plaintiff's name had been joined as a purchaser at the instance of the mother and on the assurance that the plaintiff will contribute his share of the price, but he did not do so. Assuming that it was so, the land must be deemed to have been purchased as joint property on the plaintiffs assurance that he would contribute his share of the price. Not keeping the promise to contribute towards the share of the price by the plaintiff will not make the land which was purchased as joint property, the separate property of the defendant on the plaintiffs' failure to contribute his share of the purchase price. At best the defendant could claim recovery of 3 AIR 1983 Allahabad 348 12 ½ of the purchase price of the land from the plaintiff, but on no theory could the land which was purchased as the joint property of the parties become the separate property of the defendant on non-payment of his share of the price by the plaintiff."
18) On the other hand learned counsel for the defendants has submitted written synopsis wherein he has reiterated the stand already taken in the written statement submitted before the trial Court and would submit that the plaintiff has already obtained his share of joint Hindu family property and is residing in House No. 378/1 and also received 10,000/- as cash in the year 1978. Therefore, he is no more member of the joint Hindu family and he would refer to paras 10 and 12 of judgment passed by the Hon'ble Supreme Court in case of Bhagwat Sharan vs Prushottam and Others 4 which are extracted below:-
"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 Devi1. 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 1 AIR 1962 SC 287 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 to note that this Court in Bhagwati Prasad Sah and Ors. vs. Dulhin Rameshwari Kuer and Ors.2, it held as follows:-
".... Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law."
12. In D.S. Lakshmaiah and Ors. v. L. Balasubramanyam and Ors.5 this Court held as follows:
"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 4 (2020) 6 SCC 387 13 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."
Similar view was taken in Mst Rukhmabai v. Lala Laxminarayan and Others.6 and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade7. The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same."
19) From appreciation of the evidence, materials on record and the law on the subject that burden lies upon the person who alleges existence of Hindu undivided family to prove the same and from the nucleus of the joint Hindu family property the suit properties have been purchased which he wants partition, and considering the evidence available on record, it is quite clear that the plaintiff failed to establish that Meena Kirana Shop was started from the income generated from nucleus of the joint Hindu family property, in absence of any such cogent evidence, material on record, the trial Court has rightly allowed the suit in part and granted only 1/8th share of the joint Hindu family property describing as House No. 14/378 situated at Jorapara, Raipur and negated the claim for rest of the property as he failed to prove that it is joint Hindu family property. As such, there is no perversity or illegality in the judgment and decree passed by the trial Court warranting any interference by this Court.
20) Accordingly, the first appeal being devoid of merit is liable to be and is hereby dismissed.
21) Decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Deshmukh