Mrs. Jyotika D/O. Late Shri Jayant Lal vs Shri Anil Lal S/O. Shri Parshotam Lal, ... on 16 May, 2003
8. There is indeed a legal presumption that Hindu father and sons form a joint Hindu family. But is equally well settled that there is no presumption that every property owned by the members of the Hindu undivided family is also a joint family property. On this proposition, counsel for the defendants has cited Shashi Kapoor v. Subhash Kapoor (supra), Mudi Gowda Gowdappa Sankh v. Ram Chander Ravagowds Sankh (supra). The Supreme Court in the later judgment has held that there was no presumption that merely because Hindu family was joint, they had joint property also and further that the person who alleges the property to be coparcenary property must have to prove it. The Supreme Court further laid down that if it was shown that there was a nucleus of the joint family property then any acquisition by its aid by a member is joint property to be self-acquired has to prove it to be so. In the instant case, the defendant No. 2 was Joint Secretary in the Government. He was a member of a housing society. The land was allotted to him on perpetual sub lease. The perpetual sub lease deed of the land was executed in his favor. He got the name of his wife associated and the alternative plot was then executed in his name and in the name of his wife Smt. Sushil Kumari. The defendant No. 2 has also placed on record the statement of the expenditure incurred by him on the construction of the house which he had duly informed the Government as per service rule. It also shows that he had arranged the money from house building advance from his office and also from other sources. Even according to the allegation made in the plaint prior to 1968, Jayant Lal, father of the plaintiff was not earning. Though, the petitioner alleged that between 1968 and 1970, he was working with Kirloskar and was getting a salary of Rs. 1200/- and from 1970 to 1973 when he died he was employed with Indian Oil Corporation and was drawing salary of Rs. 1400 per month but she has not been able to produce any documentary evidence to that effect. Conversely the case of the defendant No. 2 is that Jayant Lal was an Apprentice working with Kirloskar at Pune in 1969 when he was getting a stipend of Rs. 175/- which was not even sufficient to meet his expenses, therefore, he was giving financial help to him and he also him gave money to buy a motor cycle. He further submitted that between 1970 and 1973 Jayant Lal was employed with Indian Oil Corporation at Delhi and he was getting Rs. 400/- per month. He also filed documentary evidence to show that a colleague of Jayant Lal was getting only Rs. 400/- per month as salary. Therefore, prima, it appears that Jayant Lal was not getting Rs. 1200/- per month as salary from Kirloskar or Rs. 1400/- from Indian Oil Corporation and further that his income was not even sufficient to meet his own expenses. Jayant Lal suffered from incurable paralytic infection and during this period he must be required to incur huge expenditure on his medical treatment. No evidence has been placed on record to show that entire expense were re-imbursed by his employer Indian Oil Corporation. The petitioner has not been able to obtain a certificate of the Indian Oil Corporation or even Kirloskar to show that income of her father between 1968 to 1970 was Rs. 1200/- per month and between 1970 to 1973 was Rs. 1400/- per month or that he was making contribution to the funds for raising construction of the house. Conversely the evidence which has been placed on record by the defendant prima facie showed that the construction of the land and the expenditure on the construction raised thereon were met by defendant No. 2.