Hindu Law – Property of Hindu Undivided Family (HUF) – Burden to prove – Person had four sons – 2 sons severed and had no connection with property of the family – Two branches left in the family – Suit filed by descendant of one of the son for partition of plaint properties claiming them to be of HUF – Decreed by trial court – Set aside by High Court – On appeal, held: Not only jointness of the family has to be proved but also that the property belongs to the joint Hindu family – Merely because the business is joint would not raise the presumption that there is a Joint Hindu Family – Burden is on the person alleging that the property is a joint property of an HUF to prove the same – Plaintiff failed to prove that there is an HUF – Doctrines.
Evidence – Admission – Held: An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein.
Estoppel – Doctrine of election – Discussed.
Dismissing the appeals, the Court
HELD: 1.1 The burden is on the person alleging that the property is a joint property of an HUF to prove the same. Normally, an HUF can only comprise of all the family members with the head of the family being karta. Some property has to be the nucleus for this joint family. There is no pleading that ‘MR’ and Sons (‘MP’, ‘LC’, ‘RC’ and ‘UL’) constituted a HUF. There is no allegation that this family had some property as its nucleus. It is the admitted case of the parties that both ‘RC’ and ‘LC’ severed connections with the family and had no connection with the property of the family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. But assuming that such a joint family could have been formed by ‘MP’ and ‘UL’, the burden lies heavily on the plaintiff to prove that the two of them joined together to form an HUF. To prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together. Since there is no allegation that ‘MR’ and his four sons constituted a HUF, the fact that ‘LC’ left the family to live by himself, would not in any manner mean that there was a disruption of the joint family status. A disruption would arise only if there was an allegation that earlier there was a HUF. [Paras 1, 10-12][586-H; 588-D-G]
1.2 The plaintiff is the grandson of ‘UL’. The parties are ad idem that ‘MP’ shifted from his native village and came to Ashok Nagar, about 70 years prior to the filing of the suit. It is also an admitted case of the parties that ‘MP’ and ‘UL’ came separately to Ashok Nagar. ‘MP’ initially worked as a munshi with a zamindar. Thereafter, as per the defendants, ‘MP’ started a business which was his own but later his brother ‘UL’ joined in the business. It is, however, contended that this business was not a business of a HUF. On the other hand, the case of the plaintiff is that it was ‘UL’ who started the business and ‘MP’ joined him later on but since ‘MP’ was the elder brother, the business was started in the name of ‘MP’. There is no evidence to support the claim either way. The plaintiff places great reliance on the mortgage deed by which 5 houses were mortgaged on 01.12.1944 and 26.11.1946. It is not disputed that there were 6 houses, some single storeyed and some double storeyed in Ashok Nagar which have been described in the plaint. There is no material on record to show that the properties belonged to an HUF. They may have been joint properties but merely on the basis of the recitals in the mortgage deed they cannot be said to be a joint family property. [Paras 2, 13-16][583-H; 588-G; 590-A-B]
2. An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. Not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. This has not been proved in the present case. Merely because the business is joint would not raise the presumption that there is a Joint Hindu Family. There is no clearcut admission with regard to the existence of an HUF. At best, from the recitals in the mortgage deed and averments in the written statement, all that can be said is that at the relevant period of time the property was treated to be a joint property. [Para 19, 20][591-C-E; 592-B-C]
Nagubai Ammal and Ors. v. B. Shama Rao and Ors. [1956] 1 SCR 451; Himani Alloys Ltd. v. Tata Steel Ltd. (2011) 15 SCC 273 : [2011] 7 SCR 60 – relied on.
3. Out of the 6 houses, 5 were mortgaged and one is admittedly a dharamshala. Out of these 5 houses, 3 were sold by ‘HR’ (son of ‘MP’) during his life time and during the life time of the predecessors of the plaintiff, nobody objected to the sales of the properties. Sale deeds and the recitals were never challenged by the plaintiff or his predecessors. This would indicate that the jointness of the property if any had ceased because of some family arrangement or partition which may have happened much earlier. The sale deeds will have to be read in conjunction with the averments made in the plaint wherein the plaintiff stated that the business came to a closure and then almost all the people started carrying on their separate business. Though it is averred that the immovable properties remained the properties of the joint family the fact that separate branches started doing separate business is indicative of the fact that some separation, if not, a formal partition had taken place between the parties. The other important document is the Will of ‘HR’ (Exh. P-3). A party cannot be permitted to approbate and reprobate at the same time. This principle is based on the principle of doctrine of election. In respect of Wills, this doctrine means that a person who takes benefit of a portion of the Will cannot challenge the remaining portion of the Will. The doctrine of election is a facet of law of estoppel. Any party which takes advantage of any instrument must accept all that is mentioned in the said document. The plaintiff having elected to accept the Will of ‘HR’, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by ‘HR’, cannot now turn around and say that the averments made by ‘HR’ that the property was his personal property, is incorrect. [Paras 21-25][592-C-D, F-G; 593-A-B, G; 594-A, B, D]
The Rajasthan State Industrial Development and Investment Corporation and Anr. v. Diamond and Gem Development Corporation Ltd. and Anr AIR 2013 SC 1241 : [2013] 4 SCR 331; Karam Kapahi and Ors. v. Lal Chand Public Charitable Trust and Ors. (2010) 4 SCC 753 : [2010] 4 SCR 422; Bhagwan Dayal v. Reoti Devi AIR 1962 SC 287; D.S. Lakshmaiah and Ors. v. L. Balasubramanyam and Ors. (2003) 10 SCC 310 : [2003] 3 Suppl. SCR 13; Mst Rukhmabai v. Lala
Laxminarayan and Others. [1960] 2 SCR 253;
Appasaheb Peerappa Chamdgade v. Devendra
Peerappa Chamdgade (2007) 1 SCC 521; – relied on. Bhagwati Prasad Sah and Ors. v. Dulhin Rameshwari Kuer and Ors. [1951] 2 SCR 603; Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors. [1955] 1 SCR 1– referred to.
Appalaswami v. Suryanarayanamurti I.L.R. 1948
Mad.440– referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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