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2013 (9) TMI 252 - BOMBAY HIGH COURTHUF - Partition - Nature of property - Onus to prove - Held that:- Proof of the existence of a joint family does not lead to the presumption that the properties held by any member of the family is joint. Burden is on the person who ascertain that any item of the property was joint to establish the fact. There is no presumption that any property whether moveable or immoveable held by the member of a joint Hindu family is joint family property. If such person proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, burden shifts to the member of family making a claim that it was his personal property and was acquired without any assistance with joint family property. If it is proved or is admitted that family possesses sufficient nucleus with the aid of which the member might have made that acquisition, it arises presumption that it is joint family property. Such presumption is however presumption of fact and rebuttable. Whether a person is governed by school of Hindu law under Dayabhaga or Mitakshra, a joint Hindu family, normally joint in food, worship and estate and property of such joint family may consist of ancestral, joint acquisition and self acquired but thrown into a common stock. If one or more more of the family start a business or acquire property without the aid of joint family property, such business or acquisition would be his or their acquisition. It can be however thrown into a common stock or blend with the joint family property in which case the said property becomes the estate of the joint family. If if it not done, the said property would be his or their self acquisition and succession of such property will not be governed by the law of joint family but only by the law of inheritance rights inter se between the members who have acquired such property and would be subject to the terms of the agreement whereunder it was acquired. There is distinction between the joint family property and property acquired by the joint efforts. Court has to see whether it is a jointly acquired property or not. There is no presumption that business carried out by a member of the joint family with the stranger is joint family business. It is a matter for evidence. In case of immoveable property standing in the name of the individual member, there would be presumption that the same belongs to joint family provided it is proved that the joint family had sufficient nucleus at the time of its acquisition but no such presumption can be applied to business. There is no presumption under Hindu law that a business standing in the name of any member of joint family is a joint family business even if that member is a manager of the joint family. Unless it is shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. Such question is a question of fact. A person who asserts a particular property to be a joint family property, onus is on him to establish that fact and unless such person who asserts such fact discharges his onus cast upon him, such burden is not shifted to the other party who claims the said property as self acquired property. Plaintiff is unable to establish any rights in respect of any of the properties to the plaint as the properties of Hindu undivided family. Plaintiff is unable to show any nucleus by demonstrating before this Court even prima facie, that the income generated by his father prior to 1969 was used by father in starting the partnership business in the name of M/s Kanayalal Rameshkumar in 1969 and thereafter by defendant No.1 and others by use of such income generated out of such firm in other businesses started by defendants. In my prima facie view, the plaintiff has failed to discharge such initial burden on the plaintiff to prove that all such businesses and properties of Hindu undivided family businesses and properties. The defendant no. 1, 2, 4, 5, 7 and 8 state that in so far as properties and businesses which are standing in the name of the plaintiff, his wife and his son are concerned or firms and companies in which those defendants are not partners/shareholders, all such properties and businesses are the properties of the plaintiff, his wife and his son and are not Hindu undivided family properties and/or businesses. All these defendants have also made statement that they do not make claim in respect of any of those properties and/or businesses. Statements made by the contesting defendants are accepted - Decided against Appellant.
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