Hindu Joint Family Property — Suit for Partition — Burden of Proof — Proof of Nucleus — Admissions — Scope.
In a suit for partition, there is no presumption that property is joint family property merely because a joint Hindu family exists. The initial burden lies upon the plaintiff to establish that the property is joint family property or that there existed sufficient nucleus from which acquisitions could have been made. Upon proof of nucleus, the burden shifts to the person asserting self-acquisition.
Admission of a party in pleadings or evidence is not conclusive proof but is a substantive piece of evidence and must be weighed with other material on record.
Relied on:
D. S. Lakshmaiah v. L. Balasubramanyam
Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade
Angadi Chandranna v. Shankar
Bhagwat Sharan v. Purushottam
Held, the trial Court failed to consider material admissions of DW-1 and did not properly determine existence of joint family nucleus or apply settled burden-shifting principles. Findings on Issue Nos.2 to 5 held unsustainable.
Co-ownership — Joint Possession — Ouster — Court Fee.
In law, possession of one co-owner is possession of all, unless clear ouster is pleaded and proved. Mere non-residence or separate employment does not amount to exclusion from joint possession. Absence of actual physical possession does not disentitle a coparcener from seeking partition nor justify adverse inference regarding court fee.
Relied on:
Annasaheb Bapusaheb Patil v. Balwant
Neelavathi v. N. Natarajan
Held, finding of trial Court that plaintiff was not in joint possession solely because he was residing elsewhere was contrary to settled law.
Hindu Succession — Property standing in name of father/mother — Intestate death — Right of legal heirs.
Where property stands in the name of the father and/or mother and death is intestate, legal heirs succeed in accordance with statutory succession. Trial Court erred in holding that property recorded in individual name could not be subject matter of partition without applying principles under succession law.
Held, non-consideration of statutory rights under succession amounted to error of law.
Will — Proof — Suspicious Circumstances — Amendment to plead Will.
A Will must be proved in accordance with Section 63 of the Succession Act and Section 68 of the Evidence Act. Execution after institution of suit is not per se a ground to refuse amendment seeking to plead such Will. Amendment cannot be rejected merely because document is subsequent to filing of suit.
Relied on:
Meena Pradhan v. Kamla Pradhan
Shivakumar v. Sharanabasappa
Held, rejection of amendment relating to Will was unsustainable.
Amendment of Pleadings — Order VI Rule 17 CPC — Scope — Due Diligence — Court not to decide merits at amendment stage.
At the stage of considering amendment, the Court must examine whether amendment is necessary for effective adjudication of real controversy. Merits or correctness of proposed plea are not to be adjudicated at that stage. Delay alone is not a ground for rejection. Even after commencement of trial, amendment may be allowed if due diligence is shown.
Relied on:
Rajesh Kumar Aggarwal v. K. K. Modi
Andhra Bank v. ABN Amro Bank N. V.
J. Samuel v. Gattu Mahesh
Chander Kanta Bansal v. Rajinder Singh Anand
Basavaraj v. Indiara
Held, trial Court conducted a mini-trial at amendment stage and rejected applications on unsustainable grounds; Orders set aside.
RATIO DECIDENDI
The trial Court failed to apply fundamental principles governing partition of joint Hindu family property, burden of proof regarding nucleus, evidentiary value of admissions, co-ownership possession, proof of Will, and scope of amendment under Order VI Rule 17 CPC. Material evidence, including admissions of DW-1, was not properly appreciated. Findings (except on Issue No.1) suffered from legal infirmity and perversity.
FINAL ORDER
Appeal allowed. Judgment and decree dated 22-11-2017 in O.S. No.94 of 2010 set aside except finding on Issue No.1. Matter remanded for fresh decision in accordance with law.
C.R.P. No.3813 of 2017 and C.R.P. No.5818 of 2017 allowed; impugned orders in I.A. Nos.492 of 2014 and 986 of 2017 set aside and applications restored for fresh consideration.
C.R.P. No.5836 of 2017 dismissed as infructuous.
No order as to costs. Trial Court directed to dispose of suit expeditiously within one year.
