Civil revision against rejection of defendant's Order VII Rule 11 application in a joint family property suit. The court, relying on Supreme Court precedents on the nucleus presumption, held the question of Hindu Undivided Family character of the property is a matter of evidence and dismissed the revision.
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2024:CGHC:35070
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CR No. 145 of 2024
... Applicant
versus
... Respondents
(Cause Title is taken from Case Information System)
| For Applicant |
: Mr. Siddharth Shukla , Advocate |
|---|---|
| For State/Respondent No. 7 | : Mr . Atanu Ghosh, Dy. Government Advocate |
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
0 9.09.2024
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“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-
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acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.”
6. The Hon’ble Supreme Court in the matter of Mudi Gowda Gowdappa
Sankh (supra) in para 6 held as under:-
“6. We pass on to consider the next question arising in this appeal, viz. whether the High Court was right in holding that the 12 pieces of lands were joint family properties and were not the self acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties. The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either 'admitted or proved, any acquisition made by a member of the 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 the 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. In Appcdaswami v. Suryanarayanamurti I.L.R. (1948) Mad. 440. (P.C.), Sir John Beaumont observed as follows : The Hindu law upon this aspect of the case is well settled.' Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the 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 the 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 the joint family property. See Babubhai Girdharlal v. Ujamlal Har-govandas I.L.R. [1937] Bom. 708, Venkataramayya v. Seshamma I.L.R. [1937] Mad. 1012 and Vythianatha v. Varadaraja I.L.R. [1938] Mad. 696.”
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Family can be ascertained after recording evidence, and therefore, the learned Court below is justified in rejecting the application. Hence, I do not find any good ground to entertain the instant Civil Revision. Accordingly, the instant Civil Revision is hereby dismissed .
Sd/- (Rakesh Mohan Pandey) Judge
$iddhant
1 issue framed by the court
Whether the plaint disclosed a cause of action and pleadings sufficient to sustain a suit claiming property as joint family property, justifying rejection under Order VII Rule 11 CPC.
Colour shows how this judgement treated each authority
DS. Lakshmaiah and another Vs. Balasubramanyam and anotherRelied on¶5
(2003) 10 SCC 310 · Who else cites this
Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda SankhRelied on¶6
(1969) 1 SCC 386 · Who else cites this
1 provisions across 1 enactments
Dwarika Prasad Gupta
Gangotri Lehmore
Bhagwat Prasad Lemore
Smt. Shanti Devi
Arvind Lehmore
Ashish Lehmore
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
