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WHEN PLAINTIFF WAS EXCLUDED FROM THE FAMILY PROPERTIES AND CONSEQUENTLY THE EXCLUSION IS RIGHTLY HELD TO BE PROVED – SUIT IS BARRED

THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR of HIGH COURT OF KARNATAKA in the case of Smt. Nagamani vs Sri Subbraya Decided on 6 November, 2012 On the basis of such admission on record to the effect that the plaintiff went along with her mother deserting the defendant about more than 30 years prior to the filing of the suit and that the plaintiff was excluded from the joint family about 30 years prior to the filing of this suit, the Courts below have rightly held that the suit is barred by limitation under Article 110 of the Limitation Act, under which, suit for partition shall be filed within 12 years from the date of exclusion. In the matter on hand, admittedly the plaintiff went along with her mother voluntarily when she was aged about six years and since then she is residing separately from the defendant. Moreover, the plaintiff has issued notice to the defendant through one Ramesh claiming partition and such request of the plaintiff was refused by the defendant. Inspite of the same, no suit is filed by the plaintiff for partition. Thus it is clear that the plaintiff was excluded from the family properties and consequently the exclusion is rightly held to be proved by the courts below. From the above, it is clear that the Courts below are justified in dismissing the suit as barred by limitation.

EXISTENCE OF SUFFICIENT NUCLEUS SHALL BE PROVED BY DIRECT EVIDENCE WITH CLEAR UNEQUIVOCAL AND CLINCHING

SUFFICIENCY OF NUCLEUS CAPABLE OF YIELDING INCOME – NO PRESUMPTION CAN BE DRAWN
Krishna Gowda v. Ningegowda. ILR 1987 KAR 2883 At para 7, the Bench observed : "Of course in the case of acquisition by a junior member of a joint family in fact that the joint family possessed considerable nucleus capable of yielding income sufficient to enable acquisition of property is not by itself sufficient to hold that acquisition by a junior member of such joint family is with the aid of the joint family and the presumption to that effect cannot also be drawn. It shall have to be proved either by showing that it was acquired by the joint family funds or by proving that such junior member was in charge or management of the joint family property or business, though not the kartha of the family, capable of yielding income so as to enable him to purchase the property. In the latter case, if such junior member was not able to show that he had independent source of income or the consideration to the acquisition of the property had flown from the particular source not connected with joint family property, a presumption shall have to be drawn that such acquisition of property was with the aid of joint family funds inasmuch as in such a case the junior member being in possession and management of the joint family property or business, his position be akin to that of kartha."


INITIAL BURDEN IS ON PLAINTIFF TO PROVE EXISTENCE OF JOINT FAMILY AND JOINT NUCLEUS:-

Dandappa Rudrappa Hampali And ... vs Renukappa Alias Revanappa AIR 1993 Kant 148, ILR 1993 KAR 1182, 1993 (1) KarLJ 138 All properties inherited by a male Hindu from his father, father's father or father's paternal grand father, is 'ancestral property'. A person may possess ancestral property as well as his self acquired property; it is permissible for a coparcener to blend his self acquired property with that of the ancestral or joint family property. A property acquired with the aid of the joint family property also becomes joint family property. The person acquiring a property if has command over sufficient joint family property, with the aid of which the new property could be acquired, there is a presumption that the acquired property belongs to the joint family. In such a case the acquieser has to show that his acquisition was without the aid of any joint family assets. However the initial burden is on the person who asserts, that the newly acquired asset is of the joint family to prove, that the acquieser had command over sufficient joint family assets with the aid of which he could have acquired the new asset.

EXISTENCE OF A JOINT FAMILY DOES NOT LEAD TO THE INFERENCE THAT PROPERTY HELD BY ANY MEMBER OF THE FAMILY IS JOINT

Dandappa Rudrappa Hampali And ... vs Renukappa Alias Revanappa AIR 1993 Kant 148, ILR 1993 KAR 1182, 1993 (1) KarLJ 138 Existence of a joint family does not lead to the inference that property held by any member of the family is joint. In Appala-swami v.Suryanarayanamurti, AIR 1947 PC 189 the Privy Council held at p. 192: "Proof of the existence of a joint family does not lead to ihe presumption that properly half by any member of the family is joint, and the burden rests upon any one asserting that any item of property is joint to establish the fact. But there 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."

MEMBER WHO ACQUIRED NEW ASSET SHOULD BE IN A POSITION TO USE SUCH JOINT NUCLEUS

Dandappa Rudrappa Hampali And ... vs Renukappa Alias Revanappa AIR 1993 Kant 148, ILR 1993 KAR 1182, 1993 (1) KarLJ 138 Therefore the initial burden is to establish the existence of some joint family property, capable of being the nucleus from which new property or asset could have been acquired; it is not sufficient to show that the joint family possessed some assets; it is necessary to prove that the assets of the joint family may have formed the nucleus from which the disputed assets may have been acquired. Whether joint family assets could have formed the nucleus, again, depends upon their nature and relative value. Existence of such joint family property which could have formed the nucleus for the acquisition of new assets, by itself would not lead that the new assets acquired by any member of the family would be joint family property, because, such a member may not have control or command over the joint family assets. The idea is that the member who acquired the new assets may have utilised the joint family assets to acquire further assets; this is possible only if the said member was in a position to utilise the joint family asset to acquire further asset or assets.

IF THERE IS JOINT NUCLEUS BURDEN IS ON HIM TO SHOW IT IS NOT ACQUIRED OUT OF JOINT FUNDS

Dandappa Rudrappa Hampali And ... vs Renukappa Alias Revanappa AIR 1993 Kant 148, ILR 1993 KAR 1182, 1993 (1) KarLJ 138 In the case of the manager of the joint family or any other member who was in management of the family affairs or in possession of sufficient joint family assets, it is likely that the joint family property or part thereof, formed the nucleus from which he acquired other assets and in such a case, burden will be on him to prove that the acquisition by him was without the aid of the joint family property. …………… The initial burden to prove the existence of sufficient family property which could form a nucleus for other acquisition or for the business carried on by the brothers, is on the plaintiff.

EXISTENCE OF SUFFICIENT NUCLEUS SHALL BE PROVED BY DIRECT EVIDENCE WITH CLEAR UNEQUIVOCAL AND CLINCHING

Dandappa Rudrappa Hampali And ... vs Renukappa Alias Revanappa AIR 1993 Kant 148, ILR 1993 KAR 1182, 1993 (1) KarLJ 138 Existence of sufficient family asset so as to form a nucleus for further acquisition is a question of fact. Such a fact can be proved by direct evidence should be clear, unequivocal and clinching, as otherwise, there is every danger of the self acquisitions of a person being lost to another who claims a share in it, based on the past prosperity of the family".

PARTITION OF FAMILY PROPERTY UNDER THE HINDU LAW IS NOT A MERE DIVISION OR DISTRIBUTION OF PROPERTIES OR A MERE ENFORCEMENT OF WHAT MAY BE STRICTLY DESCRIBED AS LEGAL RIGHTS.

Division Bench of Court in the case of Veerabhadrappa v. Lingappa, AIR 1963 Mysore 5 wherein it is held : "It is well to remember that a partition of family property under the Hindu Law is not a mere division or distribution of properties or a mere enforcement of what may be strictly described as legal rights. The nature of right in respect of joint family properties, its management and its enjoyment by the several members of the family are such that it cannot possibly be equated to considerations appropriate to English law ideas of joint tenancy or tenancy in common nor as the position of joint family Manager one comfortably assimilated in English Law ideas of trusteeship, agency or mere managership."

WHICH PARTITION DEED REQUIRES REGISTRATION 1988 SC

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In Roshan Singh v. Zile Singh 1988 AIR 881, 1988 SCR (2)1106 it is held that-- "It is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of Will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and docs not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1)A partition may be effected orally; but it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it is not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition." It is further held that : "It is also well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document in the instant case can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document was a mere list of properties allotted to the shares of the parties."

TO SUM UP THE LEGAL POSITION
(I)A family arrangement can be made orally.
(II)If made orally, there being no document, no question of registration arises.
(III)If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
(IV)Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.
(V)However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
(VI)Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.
(VII)If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
(VIII)Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.
(IX)A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section-35 of the Indian Stamp Act.

In Maturi Pullaiah and another v. Maturi Narasimham and others AIR 1966 SC 1836, the Hon'ble Supreme Court was dealing with a document marked as Ex.B.1, similar to Ex.A.6 in this case. It provided for devolution of shares upon parties to it, on a future date. The Hon'ble Supreme Court extracted the relevant part of the document; as under: " The operative part of Ex.B-1 reads thus: "Therefore out of our family property, i.e., property which belongs to us at present and the property which we may acquire in future, the 1st party of us and his representatives shall take two shares while the 2nd party of us and his representatives shall take three shares. We both parties, having agreed that whenever any one of us or any one of our representatives desires at any time that the family properties should be partitioned according to the above mentioned shares and that till such time our family shall continue to be joint subject to the terms stipulated herein entered into this agreement." ….. "It is common case that this document did not bring about a division by metes and bounds between the parties. It did not also affect the interest of the parties in immovable properties in praesenti. What in effect it is said was that the parties would continue to be members of the joint Hindu family and that Narasimha would manage the family properties as before, and that when they effect a partition in future Venkatramaiah would get 2 shares and Narasimha would get 3 shares in the properties then in existence or acquired thereafter. There was neither a division in status nor a division by metes and bounds in 1939. Its terms relating to shares would come into effect only in the future if and when division took place. If so understood, the document did not create any interest in immovable properties in praesenti in favour of the parties mentioned therein. If so, it follows that the document was not hit by S.17 of the Indian Registration Act."

COMPROMISE IN THE SUIT REGARDING FAMILY SETTLEMENT NEED NOT BE REGISTERED 1976 SC

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In the decision reported in Kale v. Dy. Director of Consolidation, AIR 1976 SC 807, it was held that the compromise need not require any registration. In Ram Charan v. Girja Nandini, AIR 1966 SC 323, it was held that the compromise between parties in a previous suit was family settlement and was binding on them and that every party who takes benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground, as say affection.

HINDU FATHER’S RIGHT TO PARTITION ANCESTRAL PROPERTY WITHOUT CONSENT OF SONS

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Justice A Sen, Justice D Desai, Justice V Tulzapurkar of Supreme court of India in the case of Kalyani (Dead) By Lrs. vs Narayanan And Ors. Reported in AIR 1980 SC 1173, 1980 Supp (1) SCC 298, 1980 2 SCR 1130 There was some controversy whether a Hindu father governed by Mitakshara law has a right to partition ancestral properties without the consent of his sons. After referring to Mitakshara, I, ii, 2, Mayne in 'Hindu Law & Usage', 11th Edn. p. 547, states that a Hindu father under the Mitakshara Law can effect a partition between himself and his sons as also between his sons inter se without their consent and that not only can he partition the property acquired by himself but also the ancestral property. The relevant text may be extracted: The father has power to effect a division not only between himself and his sons but also between the sons inter se. The power extends not only to effecting a division by metes and bounds but also to a division of status. Similarly, in Mulla's Hindu Law, 14th Edn., p. 410 (para 323), it is stated that the father of a joint family has the power to divide the family property at any moment during his life time provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se. The consent of the sons is not necessary for the exercise of that power. It, therefore, undoubtedly appears that Hindu father joint with his sons governed by Mitakshara law has the power to partition the joint family property at any moment during his life time.

KARNATAKA LAND LAWS