How to decide plea of karta of joint hindu family that property purchased by him was his self acquired property?
Ramkrushna was Karta of the joint family and so, the income was coming in to his hands from the Joint Hindu Family Properties. Though ordinarily, Karta is not expected to maintain accounts and he is expected to spend on the members of the Joint Hindu Family, at the time of partition and when there are circumstances like present one like Karta purchasing property in the name of his wife, it becomes necessary for Karta to explain as to what was the income from Joint Hindu Family Properties, what was spent and how families were maintained. In this behalf, it needs to be kept in mind that both Ramkrushna and Shivram were in service. Shivram was living in Mumbai. Though his son has given admission that Ramkrushna was giving income to Shivram, this admission cannot be used as it is not the case of defendants that right from the beginning these two brothers were dividing the income from agriculture and the income, which was coming in to hands of Ramkrushna from agriculture was used for purchasing the suit properties. The plaintiffs have come with the case that Shivram was giving money to Ramkrushna by way of help.
17) Ramkrushna was getting entire income of Joint Hindu Family Properties. He had married two wives. Apparently, he was keeping two wives in separate houses. Thus, from his salary income, he was required to spend for his two families, from two wives. There was no reason for him to spend for the family of Shivram. In view of these circumstances, the burden was heavy on the defendants to show that Shivram had a separate source of income and from that income, he purchased properties described in plaint para 1A and 1C.
18) Both the sides placed reliance on the observations made by Apex Court in the cases reported as AIR 1969 SUPREME COURT 1076 [Mudigowda Gowdappa Sankh and Ors. Vs. Ramchandra Revgowda Sankh (dead) by his L.Rs.
and Anr.] and 2003 SAR (Civil) 817 [D.S. Lakshmaiah and Anr. Vs. L. Balasubramanyam and Anr.]. The Apex Court has laid down as follows :-
"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 a 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 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."
19) There cannot be dispute over the proposition made by the Apex Court in the case cited supra. Purchasing of property by one coparcener, when he was living in joint family, is different thing than purchasing a property by Karta in the name of his wife when he was getting income from Joint Hindu Family Properties.
The burden is more on Karta and his successors to show that Karta had separate source of income and from that income, he purchased the properties in the names of his wife or children. In view of peculiar facts and circumstances of the present case, this Court holds that the initial burden was discharged by the plaintiffs and it was up to the defendants to show that Ramkrushna had separate source of income, which was sufficient for purchasing the properties described in plaint para 1A and 1C and that he could have done that after spending on his families from two wives. Thus, it is not possible to believe in this case that properties described in plaint para 1A and 1C were self-acquired properties of Ramkrushna and they were acquired without any aid from the joint family estate.
20) From the evidence of parties, it can be said that plaintiffs had no personal knowledge as everything was being done behind their back and witness examined by the defendants has also no personal knowledge. When there is the record of aforesaid nature and there is evidence to show that there was a nucleus and Ramkrushna was required to spend much on his two families, there was no other alternative than to hold that the properties were purchased from the income of joint family estate. Thus, the first appellate Court has not committed any error in giving decree in favour of plaintiffs. The first appellate Court has considered the aforesaid material. On pre-ponderance of probabilities, the decision is given.
Bombay High Court
Anusaya Ramkrushna Sathe & Ors vs Surekha Shashikant Sathe & Ors on 20 October, 2015
Bench: T.V. Nalawade
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 1408 OF 2005 WITH CIVIL APPLICATION NO. 9083 OF 2005
CORAM : T.V. NALAWADE, J.
DATED : 20th October, 2015.
Citation:2016(2) MHLJ 930
https://www.lawweb.in/2016/06/how-to-decide-plea-of-karta-of-joint.html
