The Supreme Court has observed that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same.
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, the bench comprising Justices L. Nageswara Rao and Deepak Gupta observed while considering an appeal arising out of suit for partition.
Referring to the plaint, the court noted that there is no plea that the the family constituted a HUF. and there is no allegation that this family had some property as its nucleus. The bench referred to Privy council judgment in Appalaswami v. Suryanarayanamurti and early Supreme Court judgments in Shrinivas Krishnarao Kango v. Narayan Devji Kango and D.S. Lakshmaiah and Ors. v. L. Balasubramanyam and Ors. It referred to following observations made in D.S. Lakshmaiah:
""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"
Referring to evidence on record, the bench said that 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, it added.
The court also observed that merely because the business is joint would not raise the presumption that there is a Joint Hindu Family.
Case no.: CIVIL APPEAL NO. 6875 OF 2008Case name: BHAGWAT SHARAN Vs. PURUSHOTTAM Coram: Justices L. Nageswara Rao and Deepak GuptaCounsel: Sr. Advocates Sushil Kumar Jain & Harin P. Raval,Counsel: Sr. Advocates Guru Krishna Kumar, Vikas Singh & Anupam Lal Das
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