Client Counseling:

SUBMITTED BY

NAYAN SINGH
ROLL NO. 1417

5TH YEAR, 10TH SEMESTER, B.B.A.LL.B (HONS.)

SUBMITTED TO:

DR. ANSHUMAN PANDEY

(FACULTY OF MOOT COURT)

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

Party info:

Sudhanshu Kumar (herein after- the party), S/o Late Karu Prasad, aged 58 years, Hindu by
religion

Business by profession, resident of- West Boring Canal Road, Chandan Bhawan, P.O. Shri
Krishna Puri, Patna, 800001, Bihar.

Facts:

The party is one of three brothers living in a joint family at Patna. The family jointly owns 4
types of property (movable and immovable)-

a) Ancestral land property along with other landed properties purchased in the name of all the 3
brothers.

b) Landed property in the name of various members of the family located in Patna, Lucknow and
Ranchi.

c) Flats purchased in the name of different members of the family.

d) Family business that is being run in the name of some members of the family but is being run
by different members.

That the father of the party (Late Karu Prasad) looked after the entire movable property and in
this he was assisted by the youngest brother.

That after the demise of the father (Late Karu Prasad) in 2002, the youngest brother started
looking after the family and for this reason he was in possession of

a) The whole property,

b) Business documents,

c) Insurance policies,

d) Books of Accounts, etc.

That after the death of Late Karu Prasad, the properties purchased were bought mainly from the
joint fund.

That in 2014, the 3 brothers reached a settlement on the share to be held by each.
That in 2018 the party requested his brothers to honour the settlement but even after repeated
reminders and legal notices, neither was the settlement honoured nor was any reply furnished.

That party is suffering a hard economic crisis and over the harassment faced seeks claim over
1/3rd of the property.

Applicable Law:

Hindu Succession Act 1955.

Section 8. General rules of succession in the case of males.―The property of a male Hindu
dying intestate shall devolve according to the provisions of this Chapter:― (a) firstly, upon the
heirs, being the relatives specified in class I of the Schedule;

THE SCHEDULE (See section 8) HEIRS IN CLASS I AND CLASS II Class I Son; daughter;
widow; mother; son of a pre-deceased son; etc.

Section 10. Distribution of property among heirs in class I of the Schedule.―The property of an
intestate shall be divided among the heirs in class I of the Schedule in accordance with the
following rules:― Rule 1.―The intestate’s widow, or if there are more widows than one, all the
widows together, shall take one share. Rule 2.―The surviving sons and daughters and the
mother of the intestate shall each take one.

Section 19. Mode of succession of two or more heirs.―If two or more heirs succeed together to
the property of an intestate, they shall take the property,― (a) save as otherwise expressly
provided in this Act, per capita and not per stirpes; and (b) as tenants-in-common and not as
joint tenants.
Course of Action:

A) Whether the party needs to discharge the initial burden of proof that the
client has relevant interest in the property:

Under the Indian Evidence Act, 1872: section 103. Burden of proof as to particular fact.—The
burden of proof as to any particular fact lies on that person who wishes the Court to believe in
its existence, unless it is provided by any law that the proof of that fact shall lie on any
particular person. 

However, it is a settled principle of Hindu law that there lies a legal presumption that every
Hindu family is joint in food, worship and estate and in the absence of any proof of division,
such legal presumption continues to operate in the family. 1 Hence unless the contrary is proven
by the two brothers, law would prima facie hold that the party was cohabitating in a joint home
with his brothers.

A.1.Whether the party has a claim in the capacity of a co-parcener in the

joint family.

The essentials of “Hindu Undivided Family” are

(1) One should be Hindu, Jains, Sikhs and Buddhists are considered as Hindus  but not
Muslims or Christians: As per the submissions of the party this claim stands satisfied.

(2) There should be a family i.e group of persons – more than one

(3) They should be undivided i.e living jointly and having commonness amongst  them:
The factual submissions of the party suggest that the family cohabitated together. 

All these three essentials are cumulative.  It is a body consisting of persons lineally
descended from a common ancestor and includes their wives and unmarried daughters,
who are living together, joint in food, estate and, worship (not now necessary).  The
daughter, on her marriage, ceases to be a member of her father’s HUF and becomes a
member of her husband’s HUF.2 Therefore a coparcener is a person who acquires interest
in the joint family property by birth. The essential difference between a 'coparcener' and a
'member' of an HUF is that a coparcener can enforce partition of the HUF, while a
member cannot.
1
Adiveppa & Ors. Vs. Bhimappa & Anr.  11220 OF 2017 (ARISING OUT OF SLP (C) No.5664/2012).
2
Hindu Succession Act, 2005;
 Hence the party only needs to prove that it had been living with the other co-parceners
jointly. The court would hold him as a co-parcener by viryue of him being a linear
descendant and he would have a prima facie claim in the impugned property and it would
be the burden upon the two brothers to prove the contrary.

B. Whether the party enjoys a valid claim over all the immovable properties.

Section 8 when read with section 10 of the Hindu Succession Act, 1955 states that the property
of any male Hindu dying intestate would devolve onto his heirs classified under class 1 of the
Schedule.3 Class 1 comprises of sons, hence by reason of a Father-Son relationship that exists
between the deceased and the party, the later enjoys a valid claim over the properties 4 equivalent
to that of the other surviving sons.5

Section 19 of the act holds that, when there are two or more heirs, as is the case in the instant
matter, they shall take the property in stripes and as tenants-in-common.6 Hence the three
brothers are entitled to equal share in the joint property. Therefore the party would be entitled to
an equivalent claim, i.e. 1/3rd as that of his brothers.

C. Whether the manifestation of an intention is suffice to initiate partition.

Severance of the joint and undivided status of an HUF can be brought about by a partition. Such
a Partition can be initiated by one or all of the coparceners together. Partition of an HUF which is
joint in food, worship and estate can be effected both as regards persons and properties. Such a
partition could be either complete or partial.

A complete partition of an HUF would involve a partition of all of the constituents and of all of
its properties. It is not necessary that partition should be effected by a registered partition deed.
In Girja Bai v. Sadashiv Dhundiraj7 the Judicial Committee observed that the manifested

3
Schedule. The Hindu Succession Act, 1955.
4
Section 8, The Hindu Succession Act, 1955: General rules of succession in the case of males.―The property of a
male Hindu dying intestate shall devolve according to the provisions of this Chapter:― (a) firstly, upon the heirs,
being the relatives specified in class I of the Schedule;
5
Section 10, The Hindu Succession Act, 1955: Distribution of property among heirs in class I of the
Schedule.―The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance
with the following rules:― Rule 1.―The intestate’s widow, or if there are more widows than one, all the widows
together, shall take one share. Rule 2.―The surviving sons and daughters and the mother of the intestate shall each
take one.
6
Section 19, The Hindu Succession Act, 1955: Mode of succession of two or more heirs.―If two or more heirs
succeed together to the property of an intestate, they shall take the property,― (a) save as otherwise expressly
provided in this Act, per capita and not per stirpes; and (b) as tenants-in-common and not as joint tenants.
7
Girja Bai v. Sadashiv Dhundiraj, (1916) 18 BOMLR 621.
intention must be "clearly intimated" to the other coparceners. Sir George Lowndes in
Balkrishna v. Ram krishna,8 took it as settled law that a separation may be effected by clear and
unequivocal declaration on the part of one member of a joint Hindu family to his coparceners of
his desire to separate himself from the joint family'.

The party hence in the instant matter just needs to furnish a notice manifesting his intentions of
wanting to severe his interest from the impugned set of properties. It is immaterial whether the
other co-parceners approve of this or not.

D. Whether the party has claims over the property registered under the name of different
members.

Any property earned by an individual whether on account of own exertion or  out of individual
fund without investment of the HUF funds, earning of  learning, service, personal qualifications,
etc. is separate and individual  property of a Hindu.9 However the party enjoys claims over all the
other properties. All the family joint business and properties purchased from the family joint
business/funds are joint ones.10

D.1. Where the property is owned in the name of a member of the family.

InP.N. Venkatasubramania Iyer And ... vs P.N. Easwara Iyer, the Madras High court has
opined, that "Except in the case of properties purchased in the name of individual
members for convenience out of moneys found in the joint family business account books,
the other properties standing in the names of individual members are their private
(Swakaryam) properties and are not liable for division". 11Hence even though some of the
properties may have been procured in the name of a member, this fact itself does not strip
the property off the status of joint family property.

D.2. Where an existing joint property serves as the nucleus for the
procurement of a new property.

In Srinivas Krishnarao Kango v. Narayan Devji Kango & Ors.,12the court recognized that
there existed a burden on the defendants who claimed that any property was a self-
acquired acquisitions to establish that they were made without the aid of joint family

8
Balkrishna v. Ram Krishna, (1931) 33 BOMLR 1280.
9
K.S Suffiah Pillai vs. CIT (1999) 237 ITR 11(SC).
10
Sh. Surender Kumar Khurana vs Sh. Tilak Raj Khurana & Ors on 18 January, 2016
11
P.N. Venkatasubramania Iyer And ... vs P.N. Easwara Iyer And Ors., AIR 1966 Mad 266
12
In Srinivas Krishnarao Kango v. Narayan Devji Kango & Ors. AIR 1954 SC 379.
 funds. In the present context the burden is on the two brothers to show that any property
procured in their name was not bought out of the funds of the joint family.

In Achuthan Nair v. Chinnammu Amma and Ors. , the court held as follows: 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.13

In Rajendra Nath Majhi vs Tustu Charan Das, the Calcutta High court observed that,
where it is found that the family possessed some joint property which from its nature and
relative value may have formed the nucleus from which that property may have been
acquired, the burden shifts to the party alleging that it was a self-acquired property.14

Hence where any ancestral property which from its relative value served as the nucleus
for the procurement of any of the above listed property, in that case the party enjoys a
valid claim over the said property.

D.3. Where a policy is procured in the name of a member.

In Prabati Kuer v. Sarangdhar15 to the effect that "there is no proposition of law by which
the insurance policies must be regarded as the separate property of the coparceners on
whose lives the insurance is effected by a coparcenary." Hence until contrary is proven,
the claim of the party extends to insurance policies too.

E. Probability of result:

Based on the factual and legal submissions, the party enjoys an advantageous position against his
brothers. The law has put a heavy burden on them to prove how any of the listed property should
not be partitioned equally amongst the parties to the partition suit and hence in all probability the
party is going to gain a verdict in his favour.

13
Achuthan Nair v. Chinnammu Amma and Ors. AIR 1966 SC 411.
14
Rajendra Nath Majhi vs Tustu Charan Das And Anr, AIR 1979 Cal 105.
15
Smt. Prabati Kuer v. Sarangdhar, AIR 1960 SC 403.
F. Next course of action:

A claim of damages would be forwarded before the court on account of the harassment and
economic distress suffered by the party owing to the ignorant and oblivious response from his
bothers.