The above presumption is mainly available when the question arises as to whether a specific property which was admittedly joint in the past, has continued to be joint by virtue of a separation. In such cases, the burden would lie upon the member who claims it as his separate property to prove that there was a partition, and that the property came to him at such a partition.
Secondly, there is no presumption that just because a family is joint, it therefore possesses joint property or even any property at all. (Shrinivas v. Narayan, 1955 S.C.R. I). In a suit for partition, if a party claims that a particular item of the property is joint family property, the burden of proving this rests on the person asserting it to be so. Thus, mere proof of the existence of a joint family does not lead to the presumption that property held by any member is joint; the burden rests on the person asserting it to be joint, to establish this fact. (Srinivas Kango v. Narayan Kango, A.I.R. 1954 S.C. 379)
Similarly, the mere fact that some members of the family lived together and dined together would not raise the presumption that the property acquired by them was joint family property. (Reoti Devi v. Bhagwan Dayal A.I.R. 1954 All. 801)
If, however, it is established that the family possessed some joint property which formed the nucleus from which the property in question was acquired, the presumption will be that it was joint property, and the burden shifts to the party alleging self-acquisition, to establish that the property was acquired without the aid of the joint family property. But a mere existence of a nucleus is not sufficient to raise a presumption that property purchased by a member of a joint family is the property of the joint family. Only the existence of an adequate nucleus will give rise to such a presumption. It must be shown that the nucleus was such as could have reasonably formed the basis of the acquisition.
Thirdly, a member of a joint family who engages in trade can make separate acquisitions of property for his own benefit, and such acquisitions remain his self-acquired property; – unless it can be shown that the business grew from a nucleus of joint family property or that the earnings were blended with joint family estate. Once, however, it is proved that the old family firm was joint or that it was started with a nucleus of joint property, it is for the person who alleges it to be separate to prove that it is so.
Fourthly, where it is proved that a partition has already taken place the burden will lie on him who alleges that a portion of the family property is still joint.
Lastly, onus, as a determining factor of the whole case, can only arise if the Court finds the evidence on both sides so evenly balanced that it cannot come to any definite conclusion. In other words, the question of onus becomes important only if the circumstances are so ambiguous that it is not possible to arrive at a definite conclusion without resorting to it.