The Karnataka High Court has held that the presumption of jointness of a Hindu family is not an “immutable rule of evidence” and becomes progressively weaker as relationships become remote, particularly when disputes arise between members belonging to the third generation or beyond.

Referring to the principles stated by Mulla on Hindu Law, Justice Sachin Shankar Magadum said,

“The normal condition of a Hindu family is jointness. The presumption of jointness, however, is essentially a presumption arising from the normal state of affairs and is not an immutable rule of evidence. The further the members are removed from the common ancestor and the longer the period during which they have lived and dealt with their properties separately, the weaker the presumption becomes.”

The Court added, “In other words, the presumption of jointness is not of uniform strength irrespective of the degree of relationship. It becomes progressively weaker as the relationship becomes remote, particularly when the dispute is between members belonging to the third generation or beyond and the surrounding circumstances establish prolonged separation in residence, possession and enjoyment.”

Justice Magadum was hearing a second appeal filed by the plaintiffs, representing the branch of Bharmappa @ Bheema, against the defendants, representing the branch of Sanna Bheemappa. The plaintiffs had claimed that both branches constituted an undivided Hindu joint family, that the suit schedule properties were ancestral, and that their branch was entitled to a one-half share. The Trial Court dismissed the plaintiff's suit, and the decision was upheld by the first appellate court. Aggrieved by the order, the plaintiffs preferred the second appeal before the High Court.

The High Court noted that the parties were not immediate descendants, rather the dispute was between “descendants of the respective branches extending into the third generation.” It observed that the proximity between the descendants was important, as presumption of jointness becomes weaker with remoteness of the relationship.

“The law does not presume perpetual jointness merely because persons can trace their descent to a common ancestor. If such a proposition were accepted, a Hindu family could be treated as joint in perpetuity notwithstanding generations of separate residence, separate possession, separate cultivation and independent dealings with properties. Such a conclusion would be contrary to both the principles of Hindu law and ordinary human experience,” the Court said.

The Court further noted that the admission of PW1 that both the plaintiffs and defendants had been residing separately and cultivating their own lands for over 70 years. Additionally, documentary evidence showed that the properties were dealt with independently by respective branches, and that it was sold as far back as on March 19, 1946 by fathers of defendants 1 to 5 and 10 to 12, and were repurchased in 1948, the Court noted.

“These transactions, read along with the long-standing separate possession and enjoyment admitted by PW.1, constitute circumstances which cannot be ignored while determining whether the plaintiffs have discharged the burden of establishing subsisting jointness,” the Court said.

Drawing a distinction between initial presumption of jointness and ultimate burden of establishing a subsisting right to partition, the Court observed, “A plaintiff who approaches the Court seeking partition cannot succeed merely by establishing that the parties have a common ancestor. The plaintiff must establish the existence of a joint family property available for partition and a subsisting right therein. Where the defendants specifically plead prior partition or severance and place material before the Court showing long-standing separate possession and enjoyment, the plaintiff cannot rest his case merely on the abstract presumption of jointness.”

Holding that the appellants failed to establish that the branches formed an undivided Hindu joint family and that the schedule properties were joint family property, the High Court dismissed the second appeal.

“Consequently, the findings recorded by the Trial Court and affirmed by the First Appellate Court are neither perverse nor contrary to the settled principles of Hindu law,” the High Court held.

Case: Yellamma & others vs. Ramappa & others

REGULAR SECOND APPEAL NO. 2461 OF 2011 (PAR)

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