CUSTOM SEARCH

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".

No comments:

KARNATAKA LAND LAWS