Allahabad High Court
Kunj Bihari & Others vs Ganga Sahai Pandey & Another on 3 July, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 16.04.2013 Delivered on 03.07.2013 Court No. - 34 Case :- SECOND APPEAL No. - 935 of 1995 Petitioner :- Kunj Bihari & Others Respondent :- Ganga Sahai Pandey & others Petitioner Counsel :- R.B. Tripathi, R.P. Goyal, S.K.Misra,Vivek Kumar Singh Respondent Counsel :- S.M. Misra, A.K. Agrawal, C.K. Parikh, Haroon Ahmad,S.C. Jaiswal, Satyendra Kumar Singh, Sharfuddin Ahmad Hon'ble Sudhir Agarwal, J.
1. This is plaintiffs' appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as "CPC"). Original Suit No.7 of 1965 was instituted by plaintiffs i.e. Kunj Bihari Agarwal and 14 others, impleading defendants no.1 and 2 (first set), defendants no.3 to 9 (second set), defendants no.10 to 21 (third set); and defendant no.22 (fourth set).
2. This Court while hearing appeal under Order 41, Rule 11 C.P.C. by its order dated 15.9.1995, formulated following substantial question of law :
"Whether in the facts and circumstances of the case there was a presumption of jointness and the burden was on the defendants that H.U.F. had disrupted and whether the lower appellate court has mis-placed the burden?"
3. Sri B.P. Singh, learned Senior Advocate assisted by Sri Vivek Kumar Singh, Advocate has advanced submissions on behalf of plaintiff-appellants (hereinafter referred to as "appellants") while Sri Satyendra Kumar Singh, Advocate has advanced submissions on behalf of defendant-respondents (hereinafter referred to as "respondents").
4. After hearing the parties I find three more substantial questions of law arising in this appeal which also need be considered :
ii Whether the suit in question was barred by limitation?
iii. Whether Lower Appellate Court (hereinafter referred to as "LAC") has failed to comply requirement of Order 41, Rule 31 C.P.C. and reversed findings of Trial Court (hereinafter referred to as "TC") without meeting or considering the reasons given by TC?
iv. Whether a "Firm" and "Hindu Undivided Family" (hereinafter referred to as "HUF") are one and the same thing or different units?
5. In the original suit there had been impleaded, 15 plaintiffs and 22 defendants. Pedigree of the family is given in para 1 of the plaint which commenced from Jagan Ram, who had two sons, Bhagwan Dass and Laxmi Narain. Both the sons of Jagan Ram had four sons each. The sons of Bhagwan Dass were Sita Ram, Mathura Prasad, Madan Lal and Banshi Dhar, while that of Laxmi Narain were Jamuna Prasad, Govind Ram, Hari Prasad and Baijnath.
6. The plaintiff no.4 comes from the branch of Sita Ram, being the only son but himself had six sons namely, Vishwanath Prasad (plaintiff 5), Mahavir Prasad (plaintiff 6), Krishna Murari (plaintiff 7), Anand Kumar (plaintiff 8), Kunj Bihari (plaintiff 1) and Shyam Bihari. Sita Ram's brother Mathura Prasad had four sons namely Parmeshwar Prasad, Ratan Prasad (plaintiff 3), Satya Narain and Kailash Prasad. Parmeshwar Prasad had two sons namely Jai Prakash (plaintiff 11) and Vinod Kumar (plaintiff 12). Similarly Ratan Prasad also had two sons namely Jagdish (plaintiff 13) and Satish. The third son Satya Narain of Mathura Prasad had three sons namely Bal Mukund, Kashi Prasad and Rajeev Lochan.
7. The other plaintiffs are the descendent of Banshi Dhar, inasmuch as Banshi Dhar had two sons namely Ram Avtar and Sarvan Prasad (plaintiff 10). Ram Avtar had four sons namely Santosh Kumar (plaintiff 14), Arun Kumar (plaintiff 15), Bal Mukund and Geema. In the same manner, some of the defendants also belong to the same family tree descending from its route namely Jagan Ram.
8. Defendants no.3 to 9 (second set) and defendants 10 to 21 (third set) are descendents of Bhagwan Dass and Laxmi Narain.
9. The plaint case set up is that plaintiffs along with defendants (third set) were members of Joint Hindu family and there was joint family business in the name of M/s Bhagwan Das Laxmi Narain. The property was acquired from joint family funds and therefore, sale deeds, dated 26.12.1954, executed by Sri Laxmi Narain, his sons and the sons of Bhagwan Das; and that dated 30.12.1954, are fictitious and forged. Decree in suit under Section 59/61 of U.P. Tenancy Act, was obtained without jurisdiction as the property included house property also. It was also pleaded that property in dispute was an agricultural land, originally, acquired by Laxmi Narain and Bhagwan Das, under a Patta Istmarari, from erstwhile Zamindars, having right of transfer. With the passage of time, the land acquired nature of a grove.
10. Laxmi Narain and Bhagwan Das were real brothers. The defendants, (second and third set), were to be benefited by suit and therefore they did not contest. The defendants (first and fourth set), filed their separate written statements, contesting suit and denying plaint assertions. It was denied that defendants, (second and third set), constituted Joint family. They were separate. Plaintiffs were also not coparcener, having no joint interest and therefore have no right to challenge the sale deeds. The disputed property did not belong to firm M/s Bhagwan Das Laxmi Narain, and, plaintiffs had no share therein. There are other averments also which I shall discuss at appropriate stage.
11. The TC formulated 24 issues. For the purposes of present appeal, relevant issues are 1, 2 (a) and 2 (b) which read as under :
"1. Whether the branches of Bhagwan Dass and Lachmi Narain separated in the year 1953?
2-(a) Whether plot no. 455 situate in Babhni and plot no. 405 in village Pindra were acquired by Bhagwan Dass and Lachmi Narain with their joint family assets as their joint Hindu family property and the same became their joint Hindu family property?
(b) Whether the aforesaid plots were acquired by Bhagawan Dass and Lachmi Narain as cotenants and it became their personal property?"
12. Issues no.1, 2, 2 (a) and 2 (b) were decided by TC in negative, i.e., in favour of plaintiffs. The suit was consequently decreed in part, vide judgment and order dated 31.5.1983. The TC read the instrument dated 26.12.1954 as a mortgage deed and not a sale deed and, therefore directed defendants 1 and 2, for its redemption, in favour of plaintiffs and defendants (second and third set), and thereafter said that instrument dated 26.12.1954 would stand cancelled. No relief was granted against defendant no.22.
13. Aggrieved thereto, two appeals were filed, one by plaintiffs, being Civil appeal No.65 of 1992 and another by aggrieved defendants, being civil appeal no.66 of 1992.
14. The LAC, i.e., IIIrd Additional District Judge, Deoria vide judgment and decree dated 31st July, 1995 dismissed plaintiff's appeal no.65 of 1992 and allowed defendants' appeal no.66 of 1992. As a result thereof, TC's judgment dated 31.5.1983 was set aside and plaintiffs' suit stood dismissed.
15. Learned Senior Advocate drew my attention to averments made in paras 2 and 3 of the plaint, stating that it was specifically pleaded that plaintiffs and defendants, (second and third set), were members of Joint Hindu Family and during that period, besides other property, the one mentioned in para 2 was also acquired by joint family. The disputed property, therefore, is the property of joint family and was acquired/possessed from the funds available from joint family. It had also pleaded in para 4 of the plaint that plaintiffs and defendants, (second and third set), were having ancestral joint family firm in the name and title of M/s Bhagwan Das Laxmi Narain, running business at Deoria and in the aforesaid firm and property, defendant, (second and third set), had common legal rights. These facts were disputed by contesting defendants.
16. The TC framed issues no.1, 2(a) and 2(b), as noted above. It held that burden to prove issue no.1 lie upon plaintiffs. In this regard statements of counsels of both the parties under Order 10 Rule 2 C.P.C. were recorded. On paper No.92Ka/2 and 93/2 the plaintiffs' counsel said that there was no separation between Bhagwan Das and Laxmi Narain in 1953. The counsel for defendants no.1 and 2 and that of defendants (4th set) stated on 19.11.1965 that property in dispute was acquired by Bhagwan Dass and Laxmi Narain as their individual private property, though both were members of Joint Hindu Family at that time. He also relied on a decision of Civil Judge, Deoria in O.S.No.17 of 1957, Allahabad Bank Vs. Banshi Dhar and others (Exhibit 13) and said that it is evident from the aforesaid judgment that both branches constituted a joint family and they were members thereof, which status continued till 1959. This fact he found corroborated from another judgment (Ex 14) in Case No.3687 of 1958 (Gulab Singh and Ors. Vs. Mathura Prasad and others). In view thereof and also observing that defendants no.1 and 2 did not adduce any evidence to show that both the branches separated in 1953, decided issue no.1 in negative, i.e. in favour of plaintiffs.
17. Though from certified copy of judgment it is not discernible that issue no.2 was formulated separately but TC has considered issue no.2 separately holding that burden to prove thereof lie upon plaintiffs. That issue probably appears to be whether plaintiffs and defendants no.3 and 4 constituted a Joint Hindu Family. Referring to the copy of plaint (Exhibit 31) in Suit no.25 (Ganga Sahai Vs. Govind Ram) under Section 59/61 U.P. Tenancy Act it held, therefrom it is evident that plaintiffs and defendants, (second and third set), were members of Joint Hindu Family on 28.9.1955. This fact, he (TC), also got supported from Exhibit 32 (copy of plaint in Suit no.26 under Section 59/61 U.P. Tenancy Act); Exhibit 21 (Copy of plaint in Suit No.371 of 1957) (Suraj Mal Janki Prasad Vs. Firm Bhagwan Das Laxmi Narain); paper no. 211C (Power of Attorney written by Vishesar and others on 4.12.1929) and paper no.212C, (indenture bond written in favour of Bank); and, held, that these documents show that family of Mathura etc. was undivided. Besides that, oral depositions of PW-1, 2, 3, 4 and 5 were also relied by TC to hold that plaintiffs and defendants' (second and third set) were members of joint Hindu Family.
18. Coming to issues no.2(a) and (b), the TC said that former has to be proved by plaintiffs and later by defendants. Referring to various sale deeds dated 16.8.1905, 15.12.1906, 18.6.1907, 20.7.1907 and Khatauni of 1326 fasli, Mauja Babhni in respect of Arazi No.455/2 (Exhibits 1, 2 and 3) and Khatauni of 1324 Fasli of Mauja Pindra, it held that Bhagwan Das and Laxmi Narain obtained property jointly. These documents show that family of Bhagwan Das and Laxmi Narain was joint. The said joint family acquired disputed property. In para 3 he held that it admitted that M/s Bhagwan Das Laxmi Narain was a joint family firm and therefore it is proved that disputed property was purchased from common funds of joint family. Observing that defendants no.1 and 2 failed to adduce any evidence otherwise, issues no.2 (a) and (b) were decided in favour of plaintiffs.
19. The LAC, however, has reversed findings on issue no.1, 2 (a) and 2 (b) and held that there was a co-tenancy with right of transfer and it was not a joint Hindu family property. LAC noticed that issues 14 to 18 were not pressed by defendants which basically relate to maintainability or otherwise deficiency in the institution of the suit and, therefore, stood returned in favour of appellants. He considered rest of issues as formulated by TC independently and correctness of the findings, recorded in respect thereto in purported compliance of Order 41 Rule 31 C.P.C.
20. The TC discussed issues 6 and 14 separately but has answered both in favour of appellants by interpreting the nature of documents dated 26.12.1954 and 30.12.1954. While discussing Issue 6, TC considered instrument dated 26.12.1954 as sale-deed and document dated 30.12.1954 as an agreement but has also recorded a finding that both the documents were actually executed on 30.12.1954 itself though different dates were mentioned thereon and has construed the agreement dated 30.12.1954 as a mortgage deed with conditional redemption and observed that status of defendants (first set) was that of licensee. LAC, however, has discussed both these issues together. It has noticed that document dated 26.12.1954 was actually got registered on 30.12.1954 though stamp papers were purchased on 24.12.1954. There is no recital of re-sale/re-purchase of the disputed property and the instrument is pure and simple sale-deed. The agreement dated 30.12.1954 contains stipulation giving time of five years for re-transfer of property. LAC has said that both the instruments are independent and different in nature and, therefore, ought to have been considered in the light of proviso to Section 58-C of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") which has been missed by TC.
21. The LAC has noticed that plaintiffs themselves did not set up the case that both the documents were actually written on the same date and, therefore, findings recorded by TC on this aspect are beyond the plaint case set up by plaintiffs. A document, even if registered subsequently, would be effective from the date of its execution and, therefore, the sale deed dated 26.12.1954, even though registered on 30.12.1954, would be effective from the date of its execution, i.e., 26.12.1954. It is in these circumstances, LAC held that both the documents cannot be held to supplant each other and reversed findings of TC in respect to both the aforesaid issues.
22. Then coming to Issue No. 9 relating to limitation, TC though held that both the documents, supplement each other, thus rendered status of defendants (first set) that of a licensee, the appellants' cause of action to get possession of property back is a continuous one, and, therefore, suit is not barred by limitation, but LAC found it erroneous and referring to Article 53 of Limitation Act, 1963 (hereinafter referred to as "Act, 1963") it has found that period of limitation was only three years and even if the contracted period of five years is given due credit, still limitation would have expired in 1962 though suit was filed in April 1965, hence it is barred by time.
23. Before this Court, on construction of two documents, no issue has been raised and it is for this reason, this Court did not formulate any question in respect to construction of these two documents. In this backdrop, I propose to consider and answer the questions formulated above.
Question.-1:
24. In India and, particularly among Hindus, the family bonds are not only very strong but they have given right to a society who believe in a joint family, even going to the extent of concept of village community. In the concept of property, there have been three layers, i.e., Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. The joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situations in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and make a self acquired fortune by dint of his own labour, capacity and merits and is absolute owner of estate but in a couple of generations his offspring would ramify in a joint family, like a banian tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.
25. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."
26. The "joint family" is normally a transition form from "patriarchal family". At the death of common ancestors or head of house, if the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joint, not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as, at least, ordinary household articles which they would enjoy in common.
27. The intention to break joint family by effecting partition in respect of joint family property has always been considered, with great respect where amicably and peacefully, intacting love and affection, the members of joint family have settled their rights mutually. It can be given effect, orally, as also in writing.
28. In Appovier Vs. Ramasubba Aiyan (1866) 11 MIA 75 Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai Vs. Sadashiv Dhundiraj (1916) 43 IA 151. When the members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with; and in the estate, each member has, thenceforth, a definite and certain share which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided.
29. In Raghubir Singh Vs. Moti Kumar (1913) 35 I.A. 41 PC and Anurago Kuer Vs. Darshan Raut, AIR 1938 PC 65 the partition by agreement was explained by observing, that, if there be a conversion of joint-tenancy of an undivided family into a tenancy of common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., the subject to agreement and that is a separation, in interest and in right, although not immediately followed by a de facto actual division of subject matter. This may, at any time, be claimed by virtue of separate right. This was also held so in Amrit Rao Vs. Mukundrao (1919) 15 Nag LR 165 PC.
30. The "family arrangements" also stand and enjoy same status. It is an agreement arrived by members of family, either by compromising doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result, not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate, though it may not partition the estate. Among all the coparceners, now it has been held, that, an agreement between all of them is not essential so as to result in disruption of joint status though it is required for actual division and distribution of property, held jointly. A definite and unambiguous indication of intention by one member to separate himself from family and to enjoy his share in severalty will amount to a division in status. (See: Ram Narain Sahu Vs. Musammat Makhana ILR (1939) All. 680 (PC) and Puttrangamma and Ors., Vs. M.S. Ranganna and Ors. AIR 1968 SC 1018).
31. Further whenever there is a partition, the presumption is that it was a complete one, both as to parties and property. There is no presumption that any property was excluded from partition. On the contrary, it has been held that burden lies upon him who alleges such exclusion to establish his assertion.
32. In order to answer question no. 1, this Court had to look into the concept of joint family or coparcener. The Court has to see, first, who are its members; second, what is coparcenary property; third, separate property including self acquisition; fourth, the mode in which this joint property is maintained and enjoyed; and, fifth trading families.
33. The joint undivided family is the normal condition of Hindu society as observed in Raghunadha Vs. Brozo Kishroe (1876) 3 IA 154 and Neelkisto Deb Vs. Beerchunder (1989) 12 MIA 523. An HUF is ordinarily joint not only in estate but in food and worship. Unless contrary is established, the presumption is that the members of a Hindu family are living in a state of union (see: Govind Dass Vs. Kuldip Singh AIR 1971 Delhi 151 and Bhagwan Dayal Vs. Mst. Reoti Devi AIR 1962 SC 287). If, however, one of the coparceners is admittedly living separately from other members of the family, neither it can be said that other members do not constitute a Hindu joint family nor the member living separately, who has stripped his relation with the joint family, can be said to be still a coparcener or member of joint family. Simultaneously, merely if some members are working and living at different places, though own a joint family in common, it cannot be said that they do not form a joint Hindu family. Since it is only a presumption, the strength thereof necessarily varies in every case. The presumption of union is stronger in the case of brothers than in the case of cousins and farther one goes from the founder of the family, the presumption becomes weaker and weaker.
34. Brothers may be presumed to be joint but conclusion of jointness with collaterals must be affirmatively proved. The presumption lies strongly in favour of father and son that they are living jointly unless proved otherwise.
35. This presumption, however, does not apply in respect of property. There is no presumption that a family, because it is joint, possess joint property. As per Mitakshara law, the possession of property is not a necessary requisite for the constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive that they are possessing no property whatever, such as ordinary household articles which they would enjoy in common.
36. In Sher Singh Vs. Gamdoor Singh 1997 (2) HLR 81 (SC), the Court said that once existence of a joint family is not in dispute, necessarily the property held by family assumed the character of a coparcenary property and every member of family would be entitled, by birth, to a share in coparcenary property, unless any one of the coparcener pleads, by separate pleadings and proves, that some of the properties or all the properties are his self-acquired properties and cannot be blended in coparcenary property. Merely because the family is joint, there is no presumption of joint property. A Hindu, even if he be joint may possess separate property. Such property belongs exclusively to him. Neither member of the coparcenary, nor his male issue, acquires any interest in it by birth. On his death (intestate), it passes by succession to his heirs and not by survivorship to the surviving coparcener. The existence of joint family does not raise presumption that it owns properties jointly. But once joint family nucleus is either proved or admitted so as to draw inference that such property could have been acquired out of joint family funds, the burden shifts to the party alleging self acquisition, to establish affirmatively, that such property was acquired without aid of joint family. Initial burden always lies upon the party asserting that any item of property is joint family property.
37. There may be a situation, where a property may be joint property without having been ancestral. Where the members of a joint family acquire property, by or with the assistance of joint funds, or by their joint labour, or in their joint business, or by a gift or, a grant made to them, as a joint family, such property is the coparcenary property of persons who have acquired it, whether it is an increment to ancestral property, or whether it has arisen without any nucleus of descended property. In other words, when members of a joint family, by their joint labour or in their joint business, acquire property, that property, in absence of a clear indication of a contrary intention, would be owned by them as joint family property and their male issues would necessarily acquire a right by birth in such property. Where the business is carried on and property is acquired jointly during subsistence of joint status, the presumption is that the property, so acquired, is joint family property, even if it was acquired without the aid of ancestral nucleus. This presumption may be rebutted by leading evidence indicative of acquirers' intention to own property as co-owners between themselves. Property acquired by joint labour without the aid of joint family property is the joint property of the acquirers. The issues of acquirers do not take any interest by birth. So long as a family remains an undivided family, two or more members of it, whether they be members of different branches or of the one and the same branch of family, can have no legal existence as a separate independent unit, but all the members of a branch, or of a sub-branch, can form a distinct and separate corporate unit within the larger corporate family and hold property as such. Such property will be joint family property of the members of the branch inter se, but will be separate property of that branch in relation to the larger family. Property acquired by members of different branches cannot partake the character of joint family property as the members will be in the position of co-sharers and the said property will devolve by inheritance and not by survivorship. A property, originally self-acquired, may become joint family property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it.
38. From the above discussion, it cannot be doubted that question no. 1 has to be answered partly in affirmative to the extent that vis-a-vis jointness of the family, there is a presumption in favour of jointness and burden lies upon the defendant to prove that the HUF has disrupted, particularly, when both the parties had not disputed this fact that family was a joint family, but with respect to its disruption, a time factor has been provided, meaning thereby once a joint family's existence from initial is not in dispute, the time when such jointness ceased would have to be proved, who asserts such disruption. LAC, however, has not placed burden upon the appellants in regard to the status of joint family but the relevant issues have been considered in the context of property which was claimed to be joint family property. As already discussed above, the "joint family" and "joint family property" are two different things. There lies a presumption in favour of former but not so in respect to later. LAC while placing burden upon appellants to prove that property in dispute was a joint family property, has not committed any error inasmuch jointness in respect of family status is one thing, but there is no such presumption in respect of property. With respect to joint Hindu family and the question as to on whom burden to prove would lie, I may refer certain decisions of Apex Court being law of the land, and binding on this Court.
39. In Appalaswami Vs. Suryanarayanamurti and Ors., AIR 1947 PC 189, it was held that Hindu law is very clear. Proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon one who asserts that an item of property is joint, to establish that 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 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 joint family property/fund.
40. Again in Srinivas Krishnarao Kango Vs. Narayan Devji Kango AIR 1954 SC 379, it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. 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 form its nature and relative value, may have formed the nucleus, from which 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 joint family property.
41. The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund.
42. In Rukhmabai Vs. Lala Laxminarayan AIR 1960 SC 335, the Court said:
"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..." (emphasis added)
43. In Achuthan Nair v. Chinnammu Amma and Ors. AIR 1966 SC 411, their Lordships said:
"Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law."
44. In Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh (1969) 1 SCC 386, the Court noticed the observation of Sir John Beaumont in Appalaswami (supra) and reiterated that burden of proving that any particular property is joint family property, in the first instance, is, upon the person who claims it as coparcenary property. But, if possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of joint family is presumed to be joint family property. This is however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate.
45. In Baikuntha Nath Paramanik Vs. Sashi Bhusan Pramanik and Ors. (1973) 2 SCC 334, this Court again held, when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions, then a presumption arises that the acquisitions standing in the names of the person who were in the management of the family properties, are family acquisitions.
46. In Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe AIR 1986 SC 79, the Court observed that character of any joint family property does not change with the severance of status of joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of joint family to convert any joint family property into his personal property.
47. In Surendra Kumar Vs. Phoolchand (1996) 2 SCC 491, the Court said:
"It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted."
48. In Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade (2007) 1 SCC 521, the Court said:
"... 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."
49. In D.S. Lakshmaiah and Anr. Vs. L. Balasubramanyam and Anr. (2003) 10 SCC 310, in para 18 of the judgment the Court, after a retrospect of various earlier decisions, said:
"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."
50. In the suit, dispute relates to immovable property. Therefore, presumption of jointness in respect of such property did not exist. Initial burden lay upon plaintiffs who assert that the property in dispute was a joint family property. In such a case, unless this initial burden is discharged by plaintiffs, it cannot be said that there is a presumption in their favour and burden to prove otherwise would lie upon defendants. It is in this context, I answer the question, holding that LAC did not commit any mistake in placing burden upon plaintiffs and reversing finding of TC taking another view. There is no error on the part of LAC and also there is no misplacement of burden on his part on this aspect. The question 1 is answered accordingly and against the plaintiffs-appellants.
51. Now coming to question no. 2, I find that a relief of possession of property in dispute, which stood transferred as long back as in December, 1954, was sought. Nothing has been argued to show as to how the suit instituted in September, 1965 was within the period of limitation and counsel for appellant could not show anything so as to dislodge findings of LAC on Issue 9 that the suit in question is barred by limitation. I, therefore, return question 2 against plaintiff-appellants.
52. Now I come to question no. 4. It cannot be doubted that a firm is not something as that a HUF or a trading concern of HUF. One of the basic distinction between the two comes from the fact that genesis of a firm is an agreement between the two or more persons to carry on a business for profit etc., while the joint Hindu family comes into existence with the relationship of members of family and by birth.
53. Section 5 of Indian Partnership Act, 1932 (hereinafter referred to as "Act, 1932") makes it clear that relation of partnership arises from contract and not status. In respect of members of HUF, it further says that while carrying on a family business, they are not partners in such business. It cannot be doubted that the members of Hindu joint family by an agreement may constitute a partnership business but while carrying on their family business as member of HUF by status, they are not partners in business, unless a firm is created through a contract.
54. HUF is the creation of Hindu law and is not based on any contract. Under Hindu law, as already discussed, every member of HUF holds a status in the family, by birth, and not by contract. Expression "HUF Firm" is a technical expression having a special meaning. In common law, a firm does not become a Hindu family firm merely because coparceners of a Hindu undivided family, or some of them, are its partners. In case of HUF business, there is no need of a partnership agreement because such business comes to family from its ancestors. It is for this reason, an HUF business as such does not satisfy the term "Firm" as defined in Section 4 of Act, 1932. The essence of joint Hindu family property is unity of ownership and community of interest, and the shares of members are not defined. Similarly, the pattern of accounts of a joint Hindu family business maintained by karta is different from that of a partnership. In the case of former, shares of individual members in the profits and losses are not worked out while they have to be worked out in the case of partnership accounts as observed in Nanchand Gangaram Shetji Vs. Mallappa Mahalingappa Sadalge AIR 1976 SC 835.
55. A joint family trading partnership broadly differs from ordinary partnership in two respects, namely, (i) it is not dissolved by the death of any member, and (ii) a member of family becomes a coparcener by operation of law.
56. In Mahabir Ram Vs. Ram Kishen Ram AIR 1936 All. 855, another distinction was pointed out between a partnership firm and a joint Hindu family. It was held that "partnership" deals with a relation which subsists between persons, i.e., there must be more persons than one. A joint Hindu family is a single person, and it cannot have a partnership by itself so long as it remains a joint Hindu family. A joint Hindu family is a unit to which no outsider can be admitted by agreement, since it is a status which can only be acquired by birth or adoption.
57. In Commissioner of Income-tax, Madhya Pradesh, Nagpur and Bhandara Nagpur Vs. Seth Govindram Sugar Mills AIR 1966 SC 24, it was held that an HUF, as such, cannot be a partner in a partnership firm, but it may, through its karta, enter into a valid partnership with a stranger or with the karta of another HUF or with coparcener of its own family with respect to his separate property. Except as provided in statute, HUF, as such, is not a juristic person for all purposes .
58. The above discussion leaves no manner of doubt that "HUF" and "Firm" are two different units. Question no. 4, therefore, is answered by holding that a "Firm" and "HUF" are different units, concepts and entities.
59. Now coming to question no. 3, though it has been vehemently argued that LAC has reversed findings of TC without meeting reasons given by it and there is a complete non-compliance of Order 41 Rule 31 C.P.C., but I find no substance in the argument for the reason that except issues no. 14 to 18, LAC has taken up all other issues, treating the same to be the point of determination in the appeal, and, has discussed and decided the same with elaborate discussion. There is no provision or principle that LAC must chalk out separate points than what have been formulated and decided by TC. It is always open to LAC to formulate points to be determined by it on its own, depending on the issues raised before it by respective parties or to adjudicate various issues as formulated by TC in the light of pleadings and evidence available on record and thereupon assess and to find out whether findings and view taken by TC is justified or not and decide the same accordingly. In the present case, LAC has followed this methodology. I do not find any patent illegality therein. The question no. 3, therefore, is answered in negative and against the appellants.
60. In the result, the appeal fails and is, accordingly, dismissed with cost throughout.
Dt. 3.7.2013 KA/PS