Lakshmi Saran Agarwal & Others vs Guru Saran Agarwal, & Others
2015 Latest Caselaw 4703 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 18.08.2015 
 
Delivered on  27.11.2015
 
Court No. - 34
 
(1)	Case :- FIRST A0PPEAL No. - 90 of 2004
 

 
Appellant :- Laxmi Saran Agarwal & Others
 
Respondent :- Guru Saran Agarwal, & Others
 
Counsel for Appellant :- Dhruv Narayana, A.K. Narayan
 
Counsel for Respondent :- Pankaj Agarwal
 
(2)	Case :- FIRST APPEAL No. - 1082 of 2003
 

 
Appellant :- Laxmi Saran Agarwal And Others
 
Respondent :- Guru Saran Agarwal
 
Counsel for Appellant :- Anadi Krishna Narayan, Dhurva Narayana
 
Counsel for Respondent :- Manoj Kumar, Pankaj Agarwal, Sharad Kumar Pandey
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Brijesh Kumar Srivastava-II,J.

1. Heard Sri Dhruva Narayana, learned Senior Advocate, assisted by Sri Namit Srivasava, Advocate, for appellants; and, Sri Anuj Agarwal, Advocate, holding brief of Sri Pankaj Agarwal, Advocate, for respondents.

2. These two appeals filed under Section 96 of Code of Civil Procedure have arisen from judgment dated 9.10.2003 and decree dated 23.10.2003 passed by Sri N.A. Zaidi, Additional District Judge, Court No. 4, Moradabad dismissing Original Suit No. 696 of 1991 instituted by Laxmi Saran Agarwal etc. and simultaneously decreeing Original Suit No. 975 of 1991 instituted by Sri Guru Saran Agarwal, respondent no. 1 in both the appeals.

3. Since these appeals have arisen from a common judgment dated 9.10.2003, therefore, we have heard both together and the same are being decided by this common judgment.

4. Original Suit No. 696 of 1991 (hereinafter referred to as "First Suit") was instituted by three brothers, Laxmi Saran Agarwal, Vipin Saran Agarwal and Sudhir Saran Agarwal, sons of Sri Amar Nath Agarwal, against their fourth brother Guru Saran Agarwal, who was impleaded as defendant no. 1. In the aforesaid suit, father Amar Nath Agarwal and fifth brother Shiv Saran Agarwal, were also impleaded as defendants no. 2 and 3 but as formal defendants.

5. The suit was instituted vide Plaint dated 7.8.1991 in the Court of Civil Judge, Moradabad. The three plaintiffs (hereinafter referred to as "appellants") sought a declaration that House No. B-680, Lajpat Nagar, Moradabad, registered and transferred by sale by U.P. Awas Evam Vikas Parishad (hereinafter referred to as "Housing Board") in the name of defendant no. 1 (hereinafter referred to as "Respondent-1") be declared a joint family property, that he is not the sole owner thereof but appellants and Respondent-1 all are joint owners of the said property, and appellants are in possession of the said house in that capacity. Appellants further sought a decree of permanent injunction, restraining respondents 1 and 2 from transferring aforesaid property, themselves or through their agent or servant, in any manner, and not to execute any deed in this regard. Further a decree of permanent injunction was prayed against Respondent-1 that he should not interfere through himself, agent or servant etc. in appellants' possession of house in dispute.

6. Plaint case set up by appellants is that appellants and respondents constitute a Joint Hindu Family/Hindu Undivided Family (hereinafter referred to as "HUF") in which they are members and defendant no. 2, i.e., Amar Nath Agarwal is Karta thereof. In the year 1971 plaintiffs and defendants including defendant no. 2 were residing in a tenanted house which was in Mohalla Katra Banshidhar, Moradabad. At the end of 1971, there arose some dispute between parties of the suit and landlord of tenanted house, on account whereof, defendant no. 2, for the benefit of HUF, decided to purchase a residential house. Co-incidentally Housing Board advertised a residential scheme for allotment of residential houses and invited applications. Appellants' grandfather Late Suraj Mal Agarwal was owner of a residential house. After his death, defendant no. 2, in consultation with all his sons and daughters including the appellants and Respondent-1, sold out that house for a consideration of Rs. 14,000/- whereof defendant no. 2 received his share as Rs. 2800/-. The share of appellants and Respondent-1 was equal in the aforesaid consideration. Defendant no. 2 deposited Rs. 3,000/-, i.e., Rs. 2800/- which he received as share in consideration of the sold out house and Rs. 200/- he had taken from his wife, Smt. Chunni Devi, i.e. mother of appellants out of her Streedhan, with the Housing Board, for allotment of a Low Income House for benefit of all the members of HUF. Since at that time, defendant no. 2 was a tenant in a residential house and one residential house was registered in the record of Nagar Palika, in his name, therefore, defendant no. 2 gave the name of defendant no. 1, the eldest son, as proposed allottee, though the house was sought to be acquired for benefit of all the members of HUF. The house was allotted and registered in the name of defendant no. 1. The house was in hire purchase scheme. Monthly installments and other amount was paid by defendant no. 2 from joint income of HUF. Defendant no. 1 on account of his service resided outside Moradabad since 1972 along with his family and stayed at different places, like Pithoragarh, Bijnor, Rampur, Muzaffar Nagar, Etawah, Kalsi Barkot, Saharanpur etc. At the time of filing of suit he was posted at Meerut, but residing at Saharanpur with his family and used to come to Moradabad, time to time. On 25.6.1979, defendant no. 2 got possession of disputed house from Housing Board. It was a HUF property and defendant no. 1 was also aware that it was purchased from the funds of HUF and not his solely owned house. Though it was registered and allotted in his name, but as a representative of HUF. Since the date of taking possession, defendant no. 2 and appellants are residing in the disputed house and continuously in possession thereof. Defendant no. 2 from income of HUF and in his capacity as Karta, got construction on first floor of the house in dispute and also got made several other changes and alteration from HUF income. Defendant no. 1 became dishonest and got a sale-deed executed from Housing Board in his name on 19.07.1991. Now he wants to sell out the said house and eject appellants and defendants no. 2 forcibly and that has given rise to cause of action for filing the aforesaid suit.

7. The First Suit was contested by defendant no. 1 by filing written statement dated 19.8.1991/14.9.1991. While admitting the fact that earlier appellants were residing in a residential accommodation in Mohalla Katra Banshidhar, rest allegations in respect to HUF property of disputed house are denied. It is, however, not disputed that an ancestral house was sold out on 23.8.1971 for a total consideration of Rs. 14,000/- but the version regarding its division is denied. Defendant no. 1 admitted allotment and registration of disputed house with Housing Board in his favour and also execution of sale-deed in his name. In additional pleas, it is contended that status of HUF property came to an end in the lifetime of grandfather Sri Suraj Mal Agarwal and all his sons started living separately having their separate kitchen etc. Late Sri Suraj Mal Agarwal did not leave any HUF property at the time of his death. The existence of HUF, of which Sri Amar Nath Agarwal, defendant no. 2, said to be Karta, is also denied. Respondent-1 had been residing separately from his father and brothers and defendant no. 2 was never a Karta of HUF. All the sons of defendant no. 2, as and when got engaged in their own business and service, earned their own income and kept it separately. All had their separate kitchens. The story of HUF has been concocted just to grab the disputed house. It is further said that initially defendant no. 2 and the appellants were residing in a tenanted accommodation at Mohalla Katra Banshidhar, Moradabad but after leaving that accommodation, they started living in a tenanted accommodation at Kuwan Sheetaldas, Mandi Bans, Moradabad which was owned by one Shankar Lal Tandon. At the time of death of Sri Suraj Mal Agarwal, the grandfather, his daughter Seeta Agarwal and one son Dinesh Chandra Agarwal were unmarried. His two sons Ram Nath Agarwal and Gopi Nath Agarwal were residing in separate house, therefore, all heirs of Late Suraj Mal Agarwal decided to sell ancestral house and from consideration thereof solemnize marriage of Seeta Agarwal. Consequently, ancestral house was sold for a consideration of Rs. 14,000/- on 23.8.1971 and from that amount, as also from the gift and other money received from relatives, marriage of Seeta Agarwal was solemnized. No amount from Rs. 14,000/- was taken either by defendant no. 2 or any other defendant. It is stated, if there would have been any division, there was no question of receiving Rs. 2800/- by defendant no. 2 as his share. Respondent-1 used to work as Tutor teaching students of primary classes. With the passage of time, he obtained higher education and number of tutions also increased. Besides, he also used to draw housing maps and had sufficient income therefrom. He was appointed in 1970-71 as Apprentice Overseer in U.P. Public Works Department wherefrom his monthly income got ensured. Defendant no. 2 had a very little income, barely sufficient to meet his regular expenses. Respondent-1, being eldest son, looked into difficulties of his father and supported him realizing his own responsibilities. Therefore, from his own income, he used to spend some money on the requirements of members of family, i.e., brothers etc. and some amount used to be spent as saving. In 1972, since Respondent-1 used to visit Lucknow regularly, came to know about a housing scheme to be launched by Housing board to allot Houses at Moradabad. He made efforts therefor and made Application No. 22863 dated 15.3.1972 with Housing Board depositing Rs. 3,000/- by Bank Draft. The registration number allotted to Respondent-1 was MRD/L-19 dated 9.5.1972. Housing Board allotted disputed house on 25.6.1979. It is specifically denied that any payment was made by defendant no. 2 in respect of the said House. Since Respondent-1 was residing outside Moradabad on account of his Government Service, defendant no. 2 desired, since allotted house would remain vacant and for that reason, may suffer damage and since defendant no. 2 and other members were residing in a tenanted accommodation, they may stay in the said house. Giving honor to the desire of father and also considering the fact that allotted house would remain safe if close relatives would reside therein, Respondent-1 granted such permission, and, accordingly, appellants started residing thereat. Their status is only that of licensee and they have no interest as owner in the said House. Respondent-1 got further construction at first floor in the disputed house, after getting map sanctioned from Nagar Palika, Moradabad in 1985 and kept that newly constructed rooms on first floor in his own possession. In 1987, he found that appellants 2 and 3 have illegally taken possession of two rooms constructed on the first floor, by breaking open locks. He took exception but when appellant 2 explained that since appellant 3 is now married, there was a lot of scarcity of space at ground floor, and, therefore, possession of rooms at first floor has been obtained and he (Respondent-1) was assured that whenever demanded, accommodation shall be vacated, he took no action. Since Respondent-1 was not in the need of house at that time being in service, he condoned the said act of appellant 2. Since Respondent-1 was staying out of Moradabad, installments were paid by defendant no. 2 but from the money given by Respondent-1. Since defendant no. 2 used to deposit money, the receipts of such deposits also remained with him. Respondent-1 never thought that his father will ever deceive him. On 20.6.1991 Respondent-1 cleared all the balance amount in lump-sum and got sale deed dated 19.7.1991 executed from Housing Board, in his favour which was well within the knowledge of appellants and defendant 2. The house in dispute is not a HUF property and has not been purchased from the funds of alleged HUF. There was another house allotted by Nagar Palika, Moradabad to defendant 2 which was never used for residence by defendant 2. Respondent-1 later on found that for the purpose of higher education of his children, it was necessary for wife and children to stay at Moradabad, hence requested for vacating the rooms at first floor but appellants 2 and 3 refused to do so and as a peshbandi thereafter, suit in question has been filed.

8. Defendant 2 also filed a separate written statement dated 16.7.1992 wherein he supported plaint case.

9. Similarly defendant 3 filed a separate written statement dated 2.8.2002 wherein he had also supported plaint case.

10. Appellants have filed Replica dated 12.8.2002 in reply to the written statement of Respondent-1.

11. In support of plaint case, Sri Laxmi Saran Agarwal and Kalicharan Agarwal were examined as PW-1 and PW-2, and, Sri Amar Nath Agarwal and Shiv Saran Agarwal were examined as DW-1 and DW-2. Contesting the suit, Respondent-1 got himself examined as DW-3 and Sri Prem Prakash Bansal as DW-4.

12. Original Suit No. 975 of 1991 (hereinafter referred to as "Second Suit") was instituted by Guru Saran (Respondent-1) impleading all the three appellants and defendants 2 and 3 of First suit as defendants. The suit was filed vide plaint dated 23.10.1991 seeking eviction of defendants from House No. B-680 situate at Lajpat Nagar Moradabad, i.e., same house which was subject matter of dispute in First Suit. He also claimed damages pendente lite and expenses of suit.

13. The plaint case set up by Respondent 1 in Second Suit was simple. House in dispute belongs to him and defendants were allowed to reside therein as licensee. Now disputed house is required by Respondent 1 for the purpose of his children and wife and since appellants are not ready to vacate the same, they were served with a notice dated 19.9.1991 and thereafter Second Suit was filed.

14. The Second Suit was contested by appellants filing a combined written statement dated 26.2.1993 and therein the defence taken is the same as in the plaint in First Suit. The defendant 2 in the First Suit who was impleaded as defendant no. 5 in the Second Suit, i.e., father of appellants and Respondent-1 filed a separate written statement dated 4.12.1995 contesting the suit and supporting case of appellants.

15. Both the suits were clubbed together. The evidence was recorded collectively. Issues, however, were framed separately and are as under:

Issues (First Suit):

^^1- D;k mHk; i{k la;qDr fgUnw ifjokj ds lnL; gSa tSlk fd okn i= esa O;Dr fd;k x;k\^^

"1. Whether both the parties are the members of the Hindu Undivided Family, as stated in the plaint?"

2- D;k izfroknh la0&2 us izfroknh la0&1 ds uke fookfnr lEifRr la;qDr fgUnw ifjokj ds /ku ls [kjhnh\^^

"2. Whether defendant no 2 purchased the disputed property in the name of defendant no. 1 from the money of the Hindu Undivided Family?"

3- D;k okn cSukeh VªkaltSD'ku izksgschVs'ku ,DV ds izkfo/kkuksa ls okf/kr gS\^^

"3. Whether the suit is barred by the provisions of the Benami Transactions (Prohibition) Act?"

^^4- vuqrks"k\^^

"4. Relief?"

^^5- D;k izfroknh la0&2 vfoHkkftr fgUnw ifjokj ds :i esa fookfnr edku ds Åijh ry dk fuekZ.k o ifjorZu vfoHkkftr fgUnw ifjokj ds /ku ls djk;k tSlk iSjk la0 okn i= esa of.kZr gS] izHkko\^^

"5. Whether the defendant no 2 got upper story of the disputed house constructed and alteration made from the fund of Hindu undivided family, as mentioned in para no. of the plaint? Its effect?

^^6- D;k izfroknh la0&1 us cnfu;rh ls fookfnr edku cSukek vius uke fu"ikfnr djk fy;k gS tSlk fd iSjk 10 esa oknh i= esa of.kZr fd;k x;k ;fn gkWa rks bldk izHkko\^^

"6. Whether the defendant no 1 has got executed sale deed of the disputed house in his favour with malafide intentions, as mentioned in para 10 of the plaint? If so, its effect?"

^^7- D;k fookfnr edku oknhx.k rFkk izfroknhx.k dh lgnkf;dk lEifRr gS tSlk fd iSjk ua0 8 okn i= esa of.kZr fd;k x;k gS\**

"7. Whether the disputed house is the coparcenary property of the plaintiffs and the defendants, as mentioned in para 8 of the plaint?"

(English Translation by the Court)

Issues (Second Suit):

^^1- D;k oknh fookfnr lEifRr dk Lokeh gS\^^

"1. Whether the plaintiff is the owner of the disputed property?"

^^2- D;k izfroknhx.k fookfnr lEifRr ij oknh ds vuqefr izkIr v/;klh gS\^^

"2. Whether the defendants are the licensee of the disputed property authorised by the plaintiff?"

^^3- D;k izfroknhx.k fookfnr lEifRr ij lg va'knk;h gS tSlk izfrokn i= ds izLrj 16 esa O;Dr gS\^^

"3. Whether the defendants are the coparceners of the disputed property, as mentioned in page 16 of the written statement?"

^^4- D;k fookfnr lEifRr izfroknh la0 5 oknh ds uke ls la;qDr ifjokj ds dks"k ls dz; fd;k\^^

"4. Whether the defendant no 5 purchased the disputed property in favour of the plaintiff, from the funds of the Hindu Undivided Family?"

^^5- D;k okn /kkjk 10 n0iz0l0 ds izkfo/kkuksa ds varjer LFkkfir gksus ;ksX; gS\^^

"5. Whether the suit is maintainable under the provisions of Section 10 Cr.P.C.?"

^^6- D;k okn vYiewY;kafdr gS\^^

"6. Whether the suit is under-valued?"

^^7- D;k okn esa vi;kZIr U;k;'kqYd iznku fd;k x;k\^^

"7. Whether the court fee paid is insufficient?"

^^8- vuqrks"k\**

"8. Relief?"

(English Translation by the Court)

16. Trial Court dealt with the Issues 1, 2, 5, 6, and 7 of First Suit and Issues 1, 3 and 4 of Second Suit, together, since all are overlapping and connected. It answered all the issues of First Suit and Issues no. 3 and 4 of Second Suit against appellants and Issue 1 of Second Suit in favour of Respondent-1. Thereafter Issue 3 of First Suit has been answered in favour of appellants. Issue 2 of Second Suit has been answered in favour of Respondent-1. Issues 5, 6 and 7 of Second Suit were already decided vide order dated 27.7.2000 in favour of Respondent-1, which was made part of impugned judgment. As a result thereof, while considering Issue 8 of Second Suit and Issue 4 of First Suit, Court below held that suit instituted by appellants was liable to be dismissed and suit instituted by Respondent-1 was liable to be decreed, hence passed judgment accordingly.

17. Before this Court, points for determination for deciding these appeals are:

(i) Whether Trial Court was justified in holding that disputed property was not HUF property?

(ii) Whether Court below was justified in holding that there was no HUF status between the parties of two suits in 1971 and 1972?

18. It is admitted from record that form of allotment of disputed house was deposited with Housing Board by Guru Saran (Respondent-1). House-Tax was paid in his name, sale-deed was executed in his name and even a telephone connection, obtained in the house, was in the name of Respondent-1. It is admitted by Sri Amar Nath Agarwal, DW-1, who has supported the case of appellants that application for telephone connection was submitted by Guru Saran and payment was also made by him. Earlier, even electric connection in the disputed house was in the name of Guru Saran, but now, Amar Nath Agarwal has got a new connection in his own name. The electric connection in the name of Guru Saran was disconnected on account of non payment whereafter Guru Saran neither made payment nor sought re-connection, hence, Amar Nath Agarwal, got electric connection in his name.

19. Sri Dhruva Narayana, learned Senior Advocate, contended that there is always a presumption in favour of HUF unless proved otherwise. There has to be a presumption of existence of HUF in 1971-72 when application for allotment of residential accommodation was submitted to Housing Board. Since Respondent-1 has failed to prove otherwise, Court below has erred in law in recording a finding otherwise.

20. It is true that none has claimed HUF of which grandfather Late Sri Suraj Mal was Karta inasmuch the case set up by Respondent-1 is that HUF of Sri Suraj Mal stood dissolved in his lifetime since all his sons separated and HUF came to an end. On all these aspects, we do not find any stand taken by appellants or respondents 2 and 3 otherwise. What is claimed is that there came into existence another HUF of Amar Nath Agarwal consisting of himself as Karta and his sons, i.e., appellants and the respondents 1 and 3. This fact has been admitted by Respondent-1, who was examined as DW-3, in cross examination where he has said as under:

^^lu~ 1971 dks esjk o esjs Hkkb;ksa dk o firk dk [kkunku la;qDr fgUnw ifjokj FkkA^^

"In the year 1971, my family as also of my brothers and father was a Hindu Undivided Family."

(English Translation by the Court)

21. Regarding death of grandfather, Respondent-1 said that he died in 1968. The existing HUF of which grandfather, Suraj Mal, was Karta, thus, came to an end before his death, i.e., 1968 for the reason that it is the common case set up by all the parties that HUF of Suraj Mal ceased during his lifetime. There is no hindrance in having a HUF of next branch, i.e., in the present case, Amar Nath Agarwal and his sons. This HUF existed, as is the admitted case of Respondent-1, i.e., Guru Saran Agarwal, and, as noticed above.

22. Further, there was an ancestral house in which all the heirs of Late Sri Suraj Mal were joint owners. After death of Suraj Mal Agarwal, the said ancestral house was sold on 23.8.1971. Respondent 2, i.e., Sri Amar Nath Agarwal claims to have received Rs. 2800/- towards his share, which comprises Amar Nath Agarwal and all coparceners. It is also admitted that on 1.4.1966 a residential house situate at Asalatpura was allotted by Nagar Palika, Moradabad in the name of Amar Nath Agarwal. It has also come on record that Amar Nath Agarwal had four brothers and four sisters, i.e., Ram Nath, Gopi Nath, Kali Charan, Dinesh Kumar, Smt. Vidyawati, Munni Devi, Kiran Devi and Seeta. Besides, it has also come on record that Shiv Saran, Vipin, Laxmi Saran and Amar Nath had separate houses in their own name. One House No. V-611, Buddhi Vihar was purchased in 1971-72 by Shiv Saran, DW-3, but he claimed that it was purchased by him alone and was not a HUF property. Vipin also purchased House No. 2/513, Buddhi Vihar. Further ancestral house sold for Rs. 14,000/- could not have resulted in giving Rs. 2800/- to Sri Amar Nath as his share in property for the reason that there being five brothers and four sisters, only 1/9 part of sale consideration could have come to his share which comes to around Rs. 1555/-. Hence, his claim that he received Rs. 2800/- is apparently false. This discrepancy has not been explained at all. It is also not shown as to what was otherwise income of alleged HUF of Amar Nath Agarwal so as to have the necessary funds for depositing allotment money of Rs. 3000/- of disputed house. Even Rs. 200/- he has claimed to have received from his wife from her Streedhan which shows that Amar Nath Agarwal had no HUF income as such in a regular manner so as to have a financial capacity to purchase disputed house. On the contrary, it is admitted that Respondent-1 got appointment as Apprentice Overseer in 1970 and was confirmed as Overseer (present designation is "Junior Engineer") on 15.07.1972 in U.P. Public Works Department. He was married on 29.04.1977 and had four daughters. Since 1972, he is continuously residing outside Moradabad in connection with his service. At another place, Respondent-1 has said that he himself had separated from joint family of Sri Amar Nath Agarwal in 1964 and is not sure till upto which time joint family continued.

23. It is also the admitted case of appellants as also Sri Amar Nath Agarwal, who was supporting appellants, that money which was received after sale of ancestral house was spent in the marriage of Seeta, sister of Amar Nath Agarwal, i.e., respondent no. 2. It can, thus, safely be held that appellants miserably failed to prove that money deposited along with allotment application to Housing Board was arranged by Amar Nath Agarwal from HUF or it was subscribed either from any ancestral income or by other members of HUF. Respondent-1, being already a Government servant, had the capacity to deposit said amount. Since the amount has been deposited in his name, there cannot be a presumption that deposit was made from HUF fund unless proved by those who are claiming that such deposit was made from HUF fund. The money which was received after sale of ancestral house was spent out in the marriage of Seeta Agarwal, sister of respondent 2. We may notice hereat that even if there is a HUF, still the members can have their separate or individual property earned or owned by their individual income.

24. At this stage, it would be appropriate to consider law relating to HUF in India.

25. In India and, particularly among Hindus, the family bonds are not only very strong but they have given right to a society who believe in a joint family, even going to the extent of concept of village community. In the concept of property, there have been three layers, i.e., Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. The joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situations in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and make a self acquired fortune by dint of his own labour, capacity and merits and is absolute owner of estate but in a couple of generations his offsprings would ramify in a joint family, like a banian tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.

26. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."

27. The "joint family" is normally a transition form from "patriarchal family". At the death of common ancestors or head of house, if the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joint, not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as, at least, ordinary household articles which they would enjoy in common.

28. The intention to break joint family by effecting partition in respect of joint family property has always been considered, with great respect where amicably and peacefully, intacting love and affection, the members of joint family have settled their rights mutually. It can be given effect, orally, as also in writing.

29. In Appovier Vs. Ramasubba Aiyan (1866) 11 MIA 75 Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai Vs. Sadashiv Dhundiraj (1916) 43 IA 151. When the members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with; and in the estate, each member has, thenceforth, a definite and certain share which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided.

30. In Raghubir Singh Vs. Moti Kumar (1913) 35 I.A. 41 PC and Anurago Kuer Vs. Darshan Raut, AIR 1938 PC 65 the partition by agreement was explained by observing, that, if there be a conversion of joint-tenancy of an undivided family into a tenancy of common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., the subject to agreement and that is a separation, in interest and in right, although not immediately followed by a de facto actual division of subject matter. This may, at any time, be claimed by virtue of separate right. This was also held so in Amrit Rao Vs. Mukundrao (1919) 15 Nag LR 165 PC.

31. The "family arrangements" also stand and enjoy same status. It is an agreement arrived by members of family, either by compromising doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result, not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate, though it may not partition the estate. Among all the coparceners, now it has been held, that, an agreement between all of them is not essential so as to result in disruption of joint status though it is required for actual division and distribution of property, held jointly. A definite and unambiguous indication of intention by one member to separate himself from family and to enjoy his share in severalty will amount to a division in status. (See: Ram Narain Sahu Vs. Musammat Makhana ILR (1939) All. 680 (PC) and Puttrangamma and Ors., Vs. M.S. Ranganna and Ors. AIR 1968 SC 1018).

32. Further whenever there is a partition, the presumption is that it was a complete one, both as to parties and property. There is no presumption that any property was excluded from partition. On the contrary, it has been held that burden lies upon him who alleges such exclusion to establish his assertion.

33. In order to decide a question whether property in dispute constitute a Joint Hindu Family property, it has first to look into the concept of joint family; and, coparceners, i.e., who are the members, i.e., coparcenary property. Thirdly, whether there is any separate property self acquired; and, fourthly, the mode in which the alleged joint property is maintained and enjoyed; and, lastly, trading families.

34. The joint undivided family is the normal condition of Hindu society as observed in Raghunadha Vs. Brozo Kishroe (1876) 3 IA 154 and Neelkisto Deb Vs. Beerchunder (1989) 12 MIA 523. An HUF is ordinarily joint not only in estate but in food and worship. Unless contrary is established, the presumption is that the members of a Hindu family are living in a state of union (see: Govind Dass Vs. Kuldip Singh AIR 1971 Delhi 151 and Bhagwan Dayal Vs. Mst. Reoti Devi AIR 1962 SC 287). If, however, one of the coparceners is admittedly living separately from other members of the family, neither it can be said that other members do not constitute a Hindu joint family nor the member living separately, who has stripped his relation with the joint family, can be said to be still a coparcener or member of joint family. Simultaneously, merely if some members are working and living at different places, though own a joint family in common, it cannot be said that they do not form a joint Hindu family. Since it is only a presumption, the strength thereof necessarily varies in every case. The presumption of union is stronger in the case of brothers than in the case of cousins and farther one goes from the founder of the family, the presumption becomes weaker and weaker.

35. Brothers may be presumed to be joint but conclusion of jointness with collaterals must be affirmatively proved. The presumption lies strongly in favour of father and son that they are living jointly unless proved otherwise.

36. This presumption, however, does not apply in respect of property. There is no presumption that a family, because it is joint, possess joint property. As per Mitakshara law, the possession of property is not a necessary requisite for the constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive that they are possessing no property whatever, such as ordinary household articles which they would enjoy in common.

37. In Sher Singh Vs. Gamdoor Singh 1997 (2) HLR 81 (SC), the Court said that once existence of a joint family is not in dispute, necessarily the property held by family assumed the character of a coparcenary property and every member of family would be entitled, by birth, to a share in coparcenary property, unless any one of the coparcener pleads, by separate pleadings and proves, that some of the properties or all the properties are his self-acquired properties and cannot be blended in coparcenary property. Merely because the family is joint, there is no presumption of joint property. A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. Neither member of the coparcenary, nor his male issue, acquires any interest in it by birth. On his death (intestate), it passes by succession to his heirs and not by survivorship to the surviving coparcener. The existence of joint family does not raise presumption that it owns properties jointly. But once joint family nucleus is either proved or admitted so as to draw inference that such property could have been acquired out of joint family funds, the burden shifts to the party alleging self acquisition, to establish affirmatively, that such property was acquired without aid of joint family. Initial burden always lies upon the party asserting that any item of property is joint family property.

38. There may be a situation, where a property may be joint property without having been ancestral. Where the members of a joint family acquire property, by or with the assistance of joint funds, or by their joint labour, or in their joint business, or by a gift or, a grant made to them, as a joint family, such property is the coparcenary property of persons who have acquired it, whether it is an increment to ancestral property, or whether it has arisen without any nucleus of descended property. In other words, when members of a joint family, by their joint labour or in their joint business, acquire property, that property, in absence of a clear indication of a contrary intention, would be owned by them as joint family property and their male issues would necessarily acquire a right by birth in such property. Where the business is carried on and property is acquired jointly during subsistence of joint status, the presumption is that the property, so acquired, is joint family property, even if it was acquired without the aid of ancestral nucleus. This presumption may be rebutted by leading evidence indicative of acquirers' intention to own property as co-owners between themselves. Property acquired by joint labour without the aid of joint family property is joint property of acquirers. The issues of acquirers do not take any interest by birth. So long as a family remains an undivided family, two or more members of it, whether they be members of different branches or of the one and the same branch of family, can have no legal existence as a separate independent unit, but all the members of a branch, or of a sub-branch, can form a distinct and separate corporate unit within the larger corporate family and hold property as such. Such property will be joint family property of members of the branch inter se, but will be separate property of that branch in relation to the larger family. Property acquired by members of different branches cannot partake the character of joint family property as members will be in the position of co-sharers and the said property will devolve by inheritance and not by survivorship. A property, originally self-acquired, may become joint family property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it.

39. From the above discussion, it cannot be doubted that vis-a-vis jointness of the family, there is a presumption in favour of jointness and burden lies upon the defendant to prove that HUF has disrupted, particularly, when both the parties had not disputed this fact that family was a joint family, but with respect to its disruption, a time factor has been provided, meaning thereby once a joint family's existence from initial is not in dispute, the time when such jointness ceased would have to be proved, who asserts such disruption.

40. Further, the "joint family" and "joint family property" are two different things. There lies a presumption in favour of former but not so in respect to later. The Court below has not drawn any presumption in the case in hand of jointness in respect of property in question, and, in our view, it has rightly done so. While there is a presumption with respect to joint family, no such presumption is available in respect to property, particularly, when there is a dispute that disputed property whether a joint family property or not.

41. In Appalaswami Vs. Suryanarayanamurti and Ors., AIR 1947 PC 189, it was held that Hindu law is very clear. Proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon one who asserts that an item of property is joint, to establish that 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 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 joint family property/fund.

42. Again in Srinivas Krishnarao Kango Vs. Narayan Devji Kango AIR 1954 SC 379, it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value, may have formed the nucleus, from which 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 joint family property.

43. The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund.

44. In Rukhmabai Vs. Lala Laxminarayan AIR 1960 SC 335, the Court said:

"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..."

(emphasis added)

45. In Achuthan Nair v. Chinnammu Amma and Ors. AIR 1966 SC 411, their Lordships said:

"Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law."

46. In Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh (1969) 1 SCC 386, the Court noticed the observations of Sir John Beaumont in Appalaswami (supra) and reiterated that burden of proving that any particular property is joint family property, in the first instance, is, upon the person who claims it as coparcenary property. But, if possession of a nucleus of the joint family is either admitted or proved, any acquisition made by a member of 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 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.

47. In Baikuntha Nath Paramanik Vs. Sashi Bhusan Pramanik and Ors. (1973) 2 SCC 334, Court again held, when a joint family is found to be in possession of nucleus sufficient to make impugned acquisitions, then a presumption arises that the acquisitions standing in the names of the person who were in the management of the family properties, are family acquisitions.

48. In Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe AIR 1986 SC 79, the Court observed that character of any joint family property does not change with the severance of status of joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of joint family to convert any joint family property into his personal property.

49. In Surendra Kumar Vs. Phoolchand (1996) 2 SCC 491, the Court said:

"It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted."

50. In D.S. Lakshmaiah and Anr. Vs. L. Balasubramanyam and Anr. (2003) 10 SCC 310, in para 18 of the judgment the Court, after a retrospect of various earlier decisions, said:

"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-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."

51. In Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade (2007) 1 SCC 521, the Court said:

"... there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then 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 by cogent and necessary evidence."

52. In the Division Bench decision of this Court in Mangal Singh Vs. Harkesh (supra), this Court in para 10 has referred to the decision in Srinivas Krishnarao Vs. Narayan Devji AIR 1954 SC 379 wherein the Court has quoted with approval some observations of Privy Council in Appalaswami Vs. Suryanarayanamurti AIR 1947 PC 189 stating the law as under:

"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."

53. This Court in para 11 then said:

"... mere existence of a nucleus is not enough to raise a presumption that all the properties possessed by its various members are joint. The presumption arises only if the nucleus is substantial and is such that its yield could provide in whole or at any rate in considerable part the money necessary for acquiring the property in question."

54. The Court has also quoted certain extracts from various authorities of Hindu Law on the subject, i.e., Manu, Mayne, Mulla, S.V. Gupta etc.

55. Manu lays down:

vuqi?uu~ fir`nzO;a Jes.k ;nqikt±;sr~ A

Lo;ehfgryC/ka p ukdkeks nkrqegZfr AA

What one member acquires by his exertions without using paternal wealth, with acquisition, of his own effort, he shall not share unless by his own will. (Manu, Ch. IX, Versa 208).

56. Jimuta Vahana in his Daya Bhag lays down:

"Manu and Vishnu declare indivisible what is gained without expenditure. What a brother has acquired by his labour, without using patrimony, he need not give up without his assent; for it was gained by his own exertion.

Since the patrimony is not used, there is no exertion on the side of others through the means of the common property; and, since it was obtained by the man's own labour, there is no corporal effort on the part of the rest. It is, therefore, the separate property of the acquirer alone for the phrase 'it was gained by his own exertion's' is stated as a reason." (Ch. VI, Section I, Verses 3 and 4, Ghosh's Translation)."

57. Mulla in "Principles of Hindu Law", 10th Edition at page 241, says:

"Property jointly acquired by the members of a joint family with the aid of ancestral property is joint family property."

58. Mayne in "Hindu Law and Usage, 10th Edition on page 352 after referring to the texts some of which have been referred to above, stated:

"The test of self-acquisition is that it should be without detriment to the lather's estate. Accordingly all acquisitions made by co-parcener or co-parceners with the aid of the joint estate becomes joint family property."

59. S.V. Gupte in his "Hindu Law in British India", at page 70 and 72, observed:

"Property which is acquired (1) with the aid or assistance of joint family property, or (2) without the aid or assistance of joint family property provided it is acquired jointly by two or more co-parceners is joint family property."

"Property acquired with the aid of joint family property is necessarily joint family property whether (1) it is a mere increment or accretion to it by way of income or profits; or (2) it is acquired through the exertions of a single member or by joint labour of the whole family or of some of its members for the test of self-acquisition (separate property) is that it should be without detriment to the father's estate, that is, family property ..... Property acquired with the aid of joint family property is necessarily joint family property in all cases."

60. Ghose, in his Book on Hindu Law, 3rd Edition, Vol. I, at page 404 says:

"Property purchased with the income of the proceeds of the sale of ancestral property or with the ancestral moveables or with money borrowed on the security of ancestral property as well as any accretion to or improvement to an ancestral property by the efforts of one member have all the incidents of ancestral property attached to it."

61. Therefore, before an acquisition can be claimed to be separate property it must be shown that it was made without any aid or assistance from the ancestral or family property. If the aid of the family property was employed for acquiring the property it must be shared by all the members of the family. The extent of the contribution by different members is wholly irrelevant, but if the funds have been made available from joint family nucleus, it will be a joint family property. However, if no contribution has been made by members of Joint Family or Joint Family nucleus, and an individual member has acquired the property from its own self acquired funds, the position would be different.

62. In the present suits, dispute relates to immovable property. Therefore, presumption of jointness in respect of such property did not exist. Initial burden lay upon plaintiffs who assert that the property in dispute was a joint family property. In such a case, unless this initial burden is discharged by plaintiffs-appellants, it cannot be said that there is a presumption in their favour and burden to prove otherwise would lie upon Respondent-1.

63. Sri Dhruva Narayana, learned counsel appearing for appellants, has placed heavy reliance on the commentary on Hindu Law by Mulla, 21st Edition (2010) Revised by Satyajit A. Desai, Pages 345 and 346. It says, where property has been acquired in business by persons constituting a Joint Hindu family by their joint labour, the question arises whether the property so acquired is joint family property, or whether it is merely the joint property of joint acquirers, or whether it is ordinarily partnership property. If it is joint family property, it will pass by survivorship, but the male issue of the acquirers do not take interest in it by birth. If it is partnership property, it would be governed by the provisions of the Indian Partnership Act,1932 (hereinafter referred to as "Act, 1932"), so that the share of each of the joint acquirers will pass on his death to his heirs, and not by survivorship.

64. If the property acquired is with the aid of joint family property, it becomes joint family property. Similarly, property developed with the joint efforts of father and sons is joint family property, which is amenable to partition.

65. If the property so acquired is acquired without the aid of joint family property, the presumption is that it is joint property of the joint acquirers but this presumption may be rebutted by proof that the persons constituting the joint family acquired the property not as members of a joint family, but as members of an ordinary trade partnership resting on contract, in which case the property will be deemed to be partnership property.

66. In absence of any proof of partnership, property jointly acquired by the members of a joint family without the aid of joint family property is, as stated above, to be presumed to be joint family property.

67. It further says that as long as a family remains an undivided family, two or more members of it, whether they are members of different branches, or of one and the same branch of the family, can have no legal existence as a separate independent unit; but all the members of a branch or of a sub-branch can form a distinct and separate corporate unit within the larger corporate family and hold property as such. However, the law does not recognize some of the members of a joint family belonging to different branches or even to a single branch, as a corporate unit. Any acquisition of property by some such persons could be held by them only as co-sharers or co-tenants and the property will pass by inheritance and not survivorship.

68. Having gone through the aforesaid commentary of learned Author, as noticed above, however, we find nothing therein so as to help the appellants in the case in hand.

69. Reliance is also placed on the decision in Chowdhary Ganesh Dutt Thakur and others Vs. Mussummat Jewach Thakoorain Indian Appeals 1903 (Vol. XXXI) 10, Mangal Singh Vs. Harkesh AIR 1958 All. 42, Haridas Narayandas Bhatia Vs. Devkuvarbai Mulji AIR 1926 Bom. 408, Mst. Marjadi Devi Vs. Jagarnath Singh AIR 1983 Patna 129, Indranarayan Vs. Roop Narayan 1971 AIR 1971 SC 1962, Girijanandini Devi Vs. Bijendra Narain Choudhary AIR 1967 SC 1124, Shankarrao Dajisaheb Shinde Vs. Vithalrao Ganpatrao Shinde AIR 1989 SC 879.

70. The proposition of law laid down therein, however, we find is of no help to the appellants in the case in hand. The basic facts, as evident from record, are very relevant. It is not disputed by the parties that on or before the death of Suraj Mal, who died in 1968, HUF, in which Suraj Mal was karta, had already ceased. Then comes the question of individual HUF of the branches of Sri Suraj Mal. Amar Nath Agarwal claimed to constitute HUF of himself and his five sons. The existence of this HUF till 1971 has been admitted by Respondent-1, Guru Saran Agarwal, in his deposition, as noticed above. We, therefore, find no reason but to hold that after the death of Suraj Mal, there existed and continued an HUF consisting of Amar NathAgarwal and his sons in which Amar Nath Agarwal was Karta.

71. Now the question arises about the nucleus of joint family. In 1971 or before that, there was an ancestral house owned by Amar Nath Agarwal and his brothers and sisters which admittedly was sold vide sale-deed dated 23.8.1971 for a total consideration of Rs. 14,000/-. It was pleaded by appellants and supported by defendant 2, i.e., Amar Nath Agarwal, that out of the total sale consideration, Amar Nath Agarwal got his share constituting Rs. 2800/-.

72. It has come on record that one of the witnesses supporting claim of appellants stated that Rs. 14000/- were deposited in Bank and spent in the marriage of Km. Seeta, the unmarried daughter of Late Suraj Mal and sister of Amar Nath Agarwal. This fact shows that even the alleged share of Amar Nath Agarwal was not available to him as joint family nucleus but the entire sale consideration of ancestral house remained in tact and ultimately utilized in marriage of unmarried daughter Km. Seeta. We also find that in the sale-deed of ancestral house, this fact is clearly mentioned that the house is being sold for the purpose of utilizing the sale consideration for marriage of Km. Seeta. The apparent discrepancy about source of Rs. 3000/- claimed to be joint family nucleus has not been explained either by any of the witnesses supporting appellants' case or by any other document.

73. Moreover, Trial Court has found this fact to be patently erroneous and incorrect inasmuch there were nine share-holders in ancestral house, i.e., five brothers and four sisters. Counsel for appellants did not dispute before this Court that Late Suraj Mal left five sons and four daughters (three were already married). Therefore, there were nine share-holders in the consideration of ancestral house. Each one, therefore, could get about Rs. 1555/- only, though Amar Nath claimed that his share came to Rs. 2800/- which he received and this amount constituted joint family nucleus. Despite repeated query, it could not be explained as to how Amar Nath Agarwal got Rs. 2800/- while each share-holder could have get only Rs. 1555/-. It is admitted that Sri Amar Nath Agarwal, Karta of the family, had no other nucleus to purchase disputed house, or, to deposit application along with money of Rs. 3000/- inasmuch even Rs. 200/- which according to the appellants, was short, and managed from Stridhan of his wife. If their claim of Rs. 2800/- of share of Amar Nath Agarwal is taken to be incorrect and was not available in joint family nucleus, then nothing could be made available by Amar Nath Agarwal from any other source. If we take actual share of Amar Nath Agarwal, i.e., Rs. 1555/- plus Rs. 200/-, the total comes to Rs. 1755/-. Hence, there could not have been any occasion to deposit Rs. 3000/- from joint family nucleus for allotment of house in dispute.

74. Therefore, we are of the view that Court below rightly disbelieved the case set up by appellants that the money deposited with Housing Board for allotment of house in question was from the joint family nucleus.

75. So far as the funds of Guru Saran Agarwal is concerned, it is admitted that he was already employed as an Overseer (now called "Junior Engineer") in U.P. Public Works Department and Rs. 3000/- along with application form were deposited by Bank Draft in March' 1992 with Housing Board by Respondent-1.

76. Moreover, for the purpose of further acquisition of joint family property nucleus, nothing has been shown as to how funds were available to the alleged karta of HUF so as to deposit subsequent installments etc. Existence of HUF by itself does not mean that there existed a joint family nucleus or that property acquired by individual members from their own sources would constitute a joint family property. In this regard we have already discussed the law above and find nothing otherwise in the judgment relied on by Sri Dhruva Narayana, learned counsel appearing for appellants.

77. Counsel for appellants stressed that there is nothing to show that there was a partition and, therefore, the joint family had not come to an end. To our mind, this question by itself would not determine the issue for the reasons that even if joint family continued in 1972, still there is no presumption that any property purchased by a member of joint family would be a joint family property, unless it is shown that acquisition is from the joint family nucleus or as a joint family property or contributed by members of Joint Family. Quantity is irrelevant. We have no manner of doubt that law presumes that the members of a Joint Family are joint as observed in Indranarayan Vs. Roop Narayan (supra), Girijanandini Devi Vs. Bijendra Narain Choudhary (supra) and Shankarrao Dajisaheb Shinde Vs. Vithalrao Ganpatrao Shinde (supra). That presumption will be strong in the case of a father and his sons. It is for a party who plead that the member of a Joint Family has separated, to prove it satisfactorily. Any disagreement between the father and his son does not mean that there is a cessation of Joint Family. This principle of law is well established but by itself would not help the appellants in respect of property in dispute unless it is further shown that disputed house was acquired from joint family nucleus.

78. It is then argued that even installments receipts are possessed by Sri Amar Nath Agarwal since he has deposited the installments. Here also no evidence has come on record to show that Amar Nath Agarwal had means to deposit installments himself or from any alleged joint family nucleus. On the contrary, Respondent-1, being already employed as a Government Servant, not only has stated that sum of Rs. 3000/- was deposited by him from his own source which he has proved by adducing other original evidence. This submission is also supported with the fact that application for allotment was submitted in his own name, possession was given to him, sale-deed was executed in his name, telephone connection and electricity connection was taken in the house in dispute in the name of Respondent-1 etc. To rebut this overwhelming evidence, we find nothing otherwise on record and, therefore, find no reason to hold that the Court below has erred in recording a finding in favour of Respondent-1 and against the appellants. Therefore, we find no reason to interfere with the impugned judgment. Sitting in appeal, a decree of reversal is not to be passed on mere asking and on the contrary, the Appellate Court must have sufficient material to record a finding demonstrating that the finding recorded by Court below is erroneous.

79. In S.V.R. Mudaliar (Dead) by Lrs. and Ors. Vs. Rajabu F.Buhari (Mrs) (Dead) by Lrs. and Ors. AIR 1995 SC 1607, the Court in paras 14 and 15 of the judgment has upheld the contention that though the appellate court is within its right to take a different view on the question of fact, but that should be done after adverting to the reasons given by trial court in arriving at the findings in question. The Appellate Court before reversing a finding of fact has to bear in mind the reasons ascribed by Trial Court. The Apex Court relied and followed earlier decision of Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, 10 CWN 630 and in para 15 of the judgment said:

"There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate court has to bear in mind the reasons ascribed by the trial court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, (1906) 10 Cal.W.N. 630, wherein, while regarding the appellate judgment of the High Court of judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge."

80. Following the above decision Hon'ble B.L.Yadav, J. in Smt. Sona Devi Vs. Nagina Singh and Ors. AIR 1997 Patna 67 observed that whenever judgment of Appellate Court is a judgment of reversal, it is the primary duty of Appellate Court while reversing the findings of Trial Court to consider the reasons given by Trial Court and those reasons must also be reversed. Unless that is done, judgment of lower Appellate Court cannot be held to be consistent with the requirement of Order XLI, Rule 31, which is a mandatory provision.

81. The above view has also been followed recently in Jaideo Yadav Vs. Raghunath Yadav & Anr., 2009(3) PLJR 529 wherein the Court said that Trial Court recorded its findings but lower Appellate Court had not reversed the said findings and rather on the basis of some findings of its own, title appeal was allowed by lower Appellate Court without appreciating findings of Trial Court on the concerned issue. The court then said :

"The law is well settled in this regard that where the judgment of the lower appellate court is a judgment of reversal it is primary duly of the appellate court to consider the reasons given by the trial court and those reasons must also be reversed."

82. This court has also followed the same view in Doodhnath and another Vs. Deonandan AIR 2006 Allahabad 3.

83. Since in the present case, we are satisfied that appellants have miserably failed to prove that property in dispute was a joint family property having been acquired from joint family nucleus, we find no merit in these appeals, and answer both the questions against appellants.

84. In the result, both the appeals fail and are dismissed with cost.

85. Interim order, if any, stands vacated.

Dt. 27.11.2015

PS