Hindu Law - Partition suit - Presumption of Joint family -Exclusion of property from partition- burden lies on whom once the partition was proved - Trial court and High court found that there was a partition by metes and bounds in the year 1985 itself - then the burden lies on the plaintiff who wants to claim certain property still in joint status as it was excluded from partition but not on the defendants - Apex court held that .Therefore, the presumption would be that there was complete partition of all the properties. Consequently, the burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property. Therefore, in our opinion, the High Court clearly committed an error in placing the burden of proof on the petitioners, who were defendants in the suit to prove that the Nageshwarwadi property at Aurangabad was a self-acquired property of Eknathrao. In view of the aforesaid, we allow the appeal and set aside the findings recorded by the trial court on Issue No. III.=
The plaintiffs filed a suit for partition and separate
possession of half share of the plaintiffs in the following
properties :-
(I) Agricultural land Gat No.453 whose survey number is 210
adms. 19 acre 1 guntha situated at village Chikalthana Tq.
Kannad.
(II) Land bearing Gat No.146 of whose survey number is 65 adms.
27 acre 39 gunthas situated at Nimdongri Tq. Kannad.
(III) House property bearing No.725 adms. 26.39 sq. meters
situated at Chikalthana Tq. Kannad.
(IV) Open plot bearing CTS No.709 adms. 64.3 squ. meter known
as ‘Girnichi Jaga’ situated at Chikalthana Tq. Kannad.
(V) House bearing No.4.13.78 of whose CTS No. is 4705 adms.
138.2 sq. meters along with house structure standing
thereon situated at Nageshwarwadi Aurangabad.=
After the death of
Prabhakarrao, the plaintiffs claimed to have requested the
petitioners i.e. defendants to undo the injustice done to
Prabhakarrao at the time of the family arrangement. Instead
of partitioning the joint properties equitably, it was
claimed that after the death of Eknathrao, defendant No.1 to
12, which include petitioner No.1 and 2, were trying to enter
their names in the revenue records with regard to the
Nageshwarwadi Property at Aurangabad. Since the defendants
had declined the request for partition, the plaintiffs were
constrained to file the suit.=
Writtenstatement
It was also claimed that the partition of
the suit property had taken place on 22nd April, 1985, the
respective shares were allotted, and final distribution of
the property was made. It was contended that the partition
having been completed, the suit ought to be dismissed.=
The trial court records the issues and the findings
as follows:-
ISSUES FINDINGS
1. Do plaintiffs prove that the suit
Properties are the joint family
Properties? In Negative
2. Do defendants prove that there
Was already partition on 22.4.85
And all shares holders are in
Possession of their respective
Shares? In affirmative
3. Do they further prove that suit
Property mention at Sr.No.5 is
self acquired property of deceased
Eknath? In affirmative
4. Whether suit is maintainable? In affirmative
5. Whether the suit is barred by
limitation? In negative
6. Whether plaintiffs are entitled to
partition and possession of half
share in the suit properties? In negative
7. Whether plaintiffs are entitled to
future mesne profit? In negative
8. What decree and order? As per final order.
On the basis of the aforesaid findings, the suit of the
plaintiffs was dismissed with costs.
The High Court formulated the points for consideration
in appeal which are as follows:
(i) Whether the property at Nageshwarwadi, Aurangabad is self-
acquired property of Eknathrao and as such is not liable
for partition?
(ii) Whether the transaction entered into on 22.4.1985 by
Eknathrao, Trimbakrao and Prabhakarrao was family
arrangement not amounting to partition?
(iii) Whether Civil Application No.10005 of 2007 filed for
filing additional evidence should be allowed and in case it
is allowed can the partition list dated 22.4.1985 be
admitted in evidence?
9. Upon consideration of the entire material, the High Court has
answered point No.(i) in the negative and Point Nos.2 and 3
in the affirmative. As a result of the aforesaid findings,
the suit in respect of agricultural lands and house property
at Chikalthan and Neem Dongri has been dismissed.
However,
the plaintiffs/respondent Nos. 1 to 3 are held to be entitled
to partition of Nageshwarwadi House at Aurangabad. It has
been further directed that the respondents who are legal
representatives of deceased Prabhakarrao are entitled to half
share on the one hand and the remaining half share is to be
divided equally by the petitioners and respondent No.1 to 6
on the other.
Apex court held that
It
is a settled principle of law that once a partition in the
sense of division of right, title or status is proved or
admitted, the presumption is that all joint property was
partitioned or divided. Undoubtedly the joint and undivided
family being the normal condition of a Hindu family, it is
usually presumed, until the contrary is proved, that every
Hindu family is joint and undivided and all its property is
joint. This presumption, however, cannot be made once a
partition (of status or property), whether general or
partial, is shown to have taken place in a family.
Bhagwati Prasad Sah & Ors. Vs. Dulhin Rameshwari Kuer &
Anr.[1], wherein it was inter alia observed as under:
“8. Before we discuss the evidence on the record, we desire to
point out that on the admitted facts of this case neither party
has any presumption on his side either as regards jointness or
separation of the family. The general principle undoubtedly is
that a Hindu family is presumed to be joint unless the contrary
is proved, but where it is admitted that one of the coparceners
did separate himself from the other members of the joint family
and had his share in the joint property partitioned off for him,
there is no presumption that the rest of the coparceners
continued to be joint. There is no presumption on the other side
too that because one member of the family separated himself,
there has been separation with regard to all. It would be a
question of fact to be determined in each case upon the evidence
relating to the intention of the parties whether there was a
separation amongst the other co-parceners or that they remained
united. The burden would undoubtedly lie on the party who
asserts the existence of a particular state of things on the
basis of which he claims relief.”
20. This principle has been reiterated by this Court in Addagada
Raghavamma & Anr. Vs. Addagada Chenchamma & Anr.[2]
21. In this case, the trial court as well as the High Court has
held that there was a complete partition in the year 1985.
Therefore, the presumption would be that there was complete
partition of all the properties. Consequently, the burden of
proof that certain property was excluded from the partition
would be on the party that alleges the same to be joint
property. Therefore, in our opinion, the High Court clearly
committed an error in placing the burden of proof on the
petitioners, who were defendants in the suit to prove that
the Nageshwarwadi property at Aurangabad was a self-acquired
property of Eknathrao.
22. In view of the aforesaid, we allow the appeal and set aside
the findings recorded by the trial court on Issue No. III.
The judgment of the Trial Court is confirmed on Issue No. III
also. Consequently, the suit filed by the plaintiffs
(respondents herein) shall stand dismissed.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41325
SURINDER SINGH NIJJAR, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3867 OF 2014
(Arising out of SLP (C) No.27916 of 2009)
Kesharbai @ Pushpabai Eknathrao
Nalawade (D) by LRs. & Anr. …Appellants
VERSUS
Tarabai Prabhakarrao Nalawade & Ors. ...Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. This appeal has been filed against the judgment and decree
dated 23rd March, 2009 of the High Court of Bombay
(Aurangabad Bench) rendered in First Appeal No.468 of 2004
whereby the High Court has partly allowed the First Appeal of
the plaintiffs/respondent Nos. 1 to 3. The High Court has
dismissed the suit of the plaintiffs in respect of the
agricultural lands and house property at Chikalthan and Neem
Dongri. At the same time, the High Court has set aside the
judgment of the trial court on Issue No.3 relating to the
question as to whether house bearing No.4.13.78 bearing CTS
No.4705 admeasuring 138.2 sq. meters alongwith house
structure standing therein situated at Nageshwarwadi,
Aurangabad is the self acquired property of deceased
Eknathrao.
3. The admitted facts are that plaintiff Nos. 1 and 2 to 4 are
the wife and children of deceased Prabhakarrao s/o Saluba
respectively. Defendant Nos. 7 and 8 to 12 are the wife and
children of deceased Trimbakrao s/o Deorao respectively.
Defendant Nos. 13 to 15 are the subsequent purchasers of land
from the plaintiff. For better understanding of the inter-se
relationship between the parties, it would be appropriate to
reproduce here the genealogy table of the family, as noticed
by the trial court:
Mahipati
Deorao (son) died on
Sauba (son) died
15.7.1974
on 6.10.1980
Shewantabai (wife) died
Ansabai (wife) died
Prabhakar (son) died
Eknathrao (Son) Trimbakrao (son)
Tarabai Santosh Satish Manisha
Died on /11/97 died on 31.5.86
(P-1) (P-2) (P-3) (P-4)
Indubai (wife) D-1 Kamlabai (wife) D-7
Kiran Kranti Asha Jyoti Bharti
D-2 D-3 D-4 D-5 D-6
Pramod Vinod Rajendra
Vidya Vijaya
D-8 D-9 D-10
D-11 D-12
4. The plaintiffs filed a suit for partition and separate
possession of half share of the plaintiffs in the following
properties :-
(I) Agricultural land Gat No.453 whose survey number is 210
adms. 19 acre 1 guntha situated at village Chikalthana Tq.
Kannad.
(II) Land bearing Gat No.146 of whose survey number is 65 adms.
27 acre 39 gunthas situated at Nimdongri Tq. Kannad.
(III) House property bearing No.725 adms. 26.39 sq. meters
situated at Chikalthana Tq. Kannad.
(IV) Open plot bearing CTS No.709 adms. 64.3 squ. meter known
as ‘Girnichi Jaga’ situated at Chikalthana Tq. Kannad.
(V) House bearing No.4.13.78 of whose CTS No. is 4705 adms.
138.2 sq. meters along with house structure standing
thereon situated at Nageshwarwadi Aurangabad.
5. It was claimed that property at Sl.Nos.I and II were jointly
purchased by deceased Deorao and deceased Saluba in the name
of Deorao. The house at Sl.No.III was said to have been
constructed on a plot jointly purchased by the two brothers.
Both the brothers were residing in the same house during
their life time. With regard to property at Sl.No.V, it was
stated that both the brothers had purchased the plot on which
the house is constructed. It was further claimed that the
plot was purchased in the name of Eknathrao and his family
was residing in that house. In short, it was claimed that
during the life time of Deorao and Saluba, all the properties
were jointly cultivated and were jointly enjoyed by all the
family members. Trimbakrao was residing at Kannad and
Eknathrao was residing at Aurangabad due to their employment.
Similarly, Prabhakarrao was in service at different places.
It was also the case of the plaintiffs that there was a
family arrangement between Eknath, Trimbak and Prabhakarrao.
Property at Sl.No.I was allotted to Trimbakrao and
Prabhakarrao to the extent of half share each. Similarly,
land at Sl.No.II was allotted to Trimbakrao (7 acres) and to
Prabhakarrao (6 acres and 39 gunthas). Eknathrao was
allotted 14 acres. After the family arrangement, it was
alleged that everyone was in possession of the respective
parts of land and their names were entered in the revenue
record. It is the further claim of the plaintiffs that in the
same family arrangement house at Sl.No.III was given in
possession of Trimbakrao and Prabhakarrao to the extent of
half share each. Eknathrao was put in possession of the
entire open space known as ‘Girnichi Jaga’. It was
specifically pleaded that house at Sl.No.V (hereinafter
referred to as Nageshwarwadi Property) was not part of the
family arrangement. It was exclusively in possession of the
deceased Eknathrao and now in possession of petitioners
herein, defendant Nos. 1 and 2 in the suit.
6. The plaintiffs also claimed that Prabhakarrao during his life
time did not raise any objection with regard to the unequal
allotment in the share of the joint properties in the family
arrangement. It was stated that Prabhakarrao was an alcoholic
and, therefore, remained under the domination of the
petitioners. It is also admitted in the plaint that after the
death of Prabhakarrao, out of necessity to survive, certain
agricultural lands are sold by the plaintiffs to defendant
No.13 to 16. This was necessary to clear up the dues of the
co-operative societies and hand loan of other relatives taken
by the deceased Prabhakarrao. After the death of
Prabhakarrao, the plaintiffs claimed to have requested the
petitioners i.e. defendants to undo the injustice done to
Prabhakarrao at the time of the family arrangement. Instead
of partitioning the joint properties equitably, it was
claimed that after the death of Eknathrao, defendant No.1 to
12, which include petitioner No.1 and 2, were trying to enter
their names in the revenue records with regard to the
Nageshwarwadi Property at Aurangabad. Since the defendants
had declined the request for partition, the plaintiffs were
constrained to file the suit.
7. In the written statements filed by the defendants, it was
pointed out that there was no ancestral joint family nucleus
to purchase the agricultural lands and the house at
Sl.No.III. It is further claimed that the suit properties are
not coparcenery properties in which Deorao and Saluba had
equal shares. It was contended that at the most property can
be deemed as a joint property of Deorao, Saluba, Eknathrao
and Prabhakarrao. It was also claimed that the partition of
the suit property had taken place on 22nd April, 1985, the
respective shares were allotted, and final distribution of
the property was made. It was contended that the partition
having been completed, the suit ought to be dismissed. On the
basis of the pleadings of the parties, the trial court framed
8 issues. The trial court records the issues and the findings
as follows:-
ISSUES FINDINGS
1. Do plaintiffs prove that the suit
Properties are the joint family
Properties? In Negative
2. Do defendants prove that there
Was already partition on 22.4.85
And all shares holders are in
Possession of their respective
Shares? In affirmative
3. Do they further prove that suit
Property mention at Sr.No.5 is
self acquired property of deceased
Eknath? In affirmative
4. Whether suit is maintainable? In affirmative
5. Whether the suit is barred by
limitation? In negative
6. Whether plaintiffs are entitled to
partition and possession of half
share in the suit properties? In negative
7. Whether plaintiffs are entitled to
future mesne profit? In negative
8. What decree and order? As per final order.
On the basis of the aforesaid findings, the suit of the
plaintiffs was dismissed with costs.
8. Aggrieved by the aforesaid judgment and decree, the
plaintiffs filed First Appeal No.468 of 2004 before the High
Court. The High Court formulated the points for consideration
in appeal which are as follows:
(i) Whether the property at Nageshwarwadi, Aurangabad is self-
acquired property of Eknathrao and as such is not liable
for partition?
(ii) Whether the transaction entered into on 22.4.1985 by
Eknathrao, Trimbakrao and Prabhakarrao was family
arrangement not amounting to partition?
(iii) Whether Civil Application No.10005 of 2007 filed for
filing additional evidence should be allowed and in case it
is allowed can the partition list dated 22.4.1985 be
admitted in evidence?
9. Upon consideration of the entire material, the High Court has
answered point No.(i) in the negative and Point Nos.2 and 3
in the affirmative. As a result of the aforesaid findings,
the suit in respect of agricultural lands and house property
at Chikalthan and Neem Dongri has been dismissed. However,
the plaintiffs/respondent Nos. 1 to 3 are held to be entitled
to partition of Nageshwarwadi House at Aurangabad. It has
been further directed that the respondents who are legal
representatives of deceased Prabhakarrao are entitled to half
share on the one hand and the remaining half share is to be
divided equally by the petitioners and respondent No.1 to 6
on the other.
10. Aggrieved by the aforesaid judgment of the High Court, the
petitioners who were defendants in the suit have filed the
S.L.P. (C) No.27916 of 2009 giving rise to the present
appeal.
11. We have heard the learned counsel for the parties.
12. Mr. Shekhar Naphade, learned senior counsel appearing for the
appellants submitted that in Paragraph 25 of the impugned
judgment, the High Court has accepted the fact that there was
a complete partition between the parties. The High Court has
held that the family arrangement amounts to final
distribution of property amongst sharers. Plaintiffs
themselves have also treated the property allotted to them as
their exclusive property. Treating the property allotted to
their share as their exclusive property, they have sold some
portions of the land to respondent Nos. 13 to 16. The High
Court also held that the plaintiffs are estopped from
challenging the existence and validity of the partition
effected in the year 1985. The High Court even held that
they are not entitled to fresh partition of the properties
which were admittedly covered by the partition of 1985. Mr.
Naphade submitted that having held that there was a final
partition between the parties, the High Court committed an
error of jurisdiction in reversing the findings recorded by
the trial court on Issue No.III. According to Mr. Naphade,
the High Court has wrongly placed the burden of proof on the
petitioners, who were defendants in the suit to prove that
Nageshwarwadi property was self-acquired property of
Eknathrao. Learned senior counsel also submitted that the
High Court ignored the evidence produced by the parties,
which would establish that the parties had always treated
the Nageshwarwadi property as the self-acquired property of
Eknathrao.
13. On the other hand, learned counsel appearing for the
respondents has submitted that the trial court had wrongly
decided the Issue No.III against the plaintiffs. The
defendants (petitioners herein) have failed to prove that
Eknathrao had sufficient independent income to have acquired
the Nageshwarwadi property. It is submitted that although
the defendants had claimed that Eknathrao was employed with
the Indian Army, no proof with regard to the employment was
produced.
14. We have considered the submissions made by the learned
counsel for the parties.
15. Mr. Naphade is quite correct in his submission that the High
Court having accepted the findings of the trial court that
there was completed partition between the parties, has
committed an error of jurisdiction in putting the burden of
proof on the defendants on Issue No. III.
16. The trial court on appreciation of the entire evidence had
concluded that “the evidence on record discloses that as
contended, family arrangement alleged to have taken place in
the year 1985 in presence of three brothers and by accepting
it, every one took possession of their respective shares and
was enjoying the same. Not only this but their names were
mutated to revenue records. Everything was done in presence
of deceased brother.”
17. The trial court also finds that mutation entry bearing No.726
and No. 1116 were effected on the strength of the partition
deed dated 22nd April, 1985. Furthermore, the mutation
entries were confirmed by issuing notices to the parties. It
was specifically noticed on the mutation entries that no
objection was taken by any of the parties. The trial court,
in our opinion, has rightly concluded that no objections
having been taken at the time when the mutation entries were
confirmed, the plaintiffs are estopped from saying that these
entries are effected on wrong basis of partition. Noticing
the conduct of the parties, even further, the trial court
held that the plaintiffs by selling the land allotted to
them, treating the same to be their exclusive property. This
property was sold without the consent of defendant Nos. 1 to
12. Thus treating the same to be their exclusive property
and not coparcenary property.
18. On Issue No.III, the trial court has held that there is no
evidence except the bare words of the plaintiffs to show that
Nageshwarwadi property is purchased by the deceased Deorao
and deceased Saluba in the name of Eknathrao. The trial
court, in our opinion, has correctly held that all the other
joint property had been purchased either in the name of
Deorao or deceased Saluba. There was no explanation as to
why the property at Nageshwarwadi was purchased by them
exclusively in the name of Eknathrao. On the basis of the
evidence, the trial court found that Eknathrao was residing
exclusively in the aforesaid property. At that time
Prabhakarrao himself was living in rented premises. No
explanation is given as to why Prabhakarrao was not living in
the aforesaid house, in case, it was joint property of
Eknathrao and Prabhakarrao. The trial court also noticed
that it was not only Nageshwarwadi property, which was not
made part of the partition but also the house of Trimbakrao
at Kannad was kept outside partition. The trial court also
held that Eknathrao had independent means to purchase
Nageshwarwadi property. He was employed with the Military as
a Head Clerk from 1944 to 1956. On the basis of the entire
evidence, the trial court came to the conclusion that
Nageshwarwadi property was the self-acquired property of
Eknathrao. The High Court had reversed the aforesaid
findings on the basis that the petitioners, who were
defendants in the civil suit had not led any evidence to show
that Eknathrao had independently purchased Nageshwarwadi
property at Aurangabad. The High Court has reversed the
findings of the trial court on the basis that petitioners
have failed to prove that Eknathrao was working in the
Ammunition Factory, Khadki, Pune from 1944 to 1956. The High
Court further held that in this case, a presumption would
arise that Nageshwarwadi property was joint property,
purchased from the income derived from the other joint
property, which form the nucleus. Therefore, it was for the
petitioner to prove that Nageshwarwadi property was acquired
without the aid of the joint family.
19. In our opinion, the aforesaid presumption is wrong in law in
view of the fact that the High Court has affirmed the
findings of the trial court that in 1985, there was a
complete partition and the parties had acted on the same. It
is a settled principle of law that once a partition in the
sense of division of right, title or status is proved or
admitted, the presumption is that all joint property was
partitioned or divided. Undoubtedly the joint and undivided
family being the normal condition of a Hindu family, it is
usually presumed, until the contrary is proved, that every
Hindu family is joint and undivided and all its property is
joint. This presumption, however, cannot be made once a
partition (of status or property), whether general or
partial, is shown to have taken place in a family. This
proposition of law has been applied by this court in a number
of cases. We may notice here the judgment of this Court in
Bhagwati Prasad Sah & Ors. Vs. Dulhin Rameshwari Kuer &
Anr.[1], wherein it was inter alia observed as under:
“8. Before we discuss the evidence on the record, we desire to
point out that on the admitted facts of this case neither party
has any presumption on his side either as regards jointness or
separation of the family. The general principle undoubtedly is
that a Hindu family is presumed to be joint unless the contrary
is proved, but where it is admitted that one of the coparceners
did separate himself from the other members of the joint family
and had his share in the joint property partitioned off for him,
there is no presumption that the rest of the coparceners
continued to be joint. There is no presumption on the other side
too that because one member of the family separated himself,
there has been separation with regard to all. It would be a
question of fact to be determined in each case upon the evidence
relating to the intention of the parties whether there was a
separation amongst the other co-parceners or that they remained
united. The burden would undoubtedly lie on the party who
asserts the existence of a particular state of things on the
basis of which he claims relief.”
20. This principle has been reiterated by this Court in Addagada
Raghavamma & Anr. Vs. Addagada Chenchamma & Anr.[2]
21. In this case, the trial court as well as the High Court has
held that there was a complete partition in the year 1985.
Therefore, the presumption would be that there was complete
partition of all the properties. Consequently, the burden of
proof that certain property was excluded from the partition
would be on the party that alleges the same to be joint
property. Therefore, in our opinion, the High Court clearly
committed an error in placing the burden of proof on the
petitioners, who were defendants in the suit to prove that
the Nageshwarwadi property at Aurangabad was a self-acquired
property of Eknathrao.
22. In view of the aforesaid, we allow the appeal and set aside
the findings recorded by the trial court on Issue No. III.
The judgment of the Trial Court is confirmed on Issue No. III
also. Consequently, the suit filed by the plaintiffs
(respondents herein) shall stand dismissed.
……………………………….J.
[Surinder Singh Nijjar]
………………………………..J.
[A.K.Sikri]
New Delhi;
March 14, 2014.
-----------------------
[1] [1951] 2 SCR 603
[2] AIR 1964 SC 136
-----------------------
17
The plaintiffs filed a suit for partition and separate
possession of half share of the plaintiffs in the following
properties :-
(I) Agricultural land Gat No.453 whose survey number is 210
adms. 19 acre 1 guntha situated at village Chikalthana Tq.
Kannad.
(II) Land bearing Gat No.146 of whose survey number is 65 adms.
27 acre 39 gunthas situated at Nimdongri Tq. Kannad.
(III) House property bearing No.725 adms. 26.39 sq. meters
situated at Chikalthana Tq. Kannad.
(IV) Open plot bearing CTS No.709 adms. 64.3 squ. meter known
as ‘Girnichi Jaga’ situated at Chikalthana Tq. Kannad.
(V) House bearing No.4.13.78 of whose CTS No. is 4705 adms.
138.2 sq. meters along with house structure standing
thereon situated at Nageshwarwadi Aurangabad.=
After the death of
Prabhakarrao, the plaintiffs claimed to have requested the
petitioners i.e. defendants to undo the injustice done to
Prabhakarrao at the time of the family arrangement. Instead
of partitioning the joint properties equitably, it was
claimed that after the death of Eknathrao, defendant No.1 to
12, which include petitioner No.1 and 2, were trying to enter
their names in the revenue records with regard to the
Nageshwarwadi Property at Aurangabad. Since the defendants
had declined the request for partition, the plaintiffs were
constrained to file the suit.=
Writtenstatement
It was also claimed that the partition of
the suit property had taken place on 22nd April, 1985, the
respective shares were allotted, and final distribution of
the property was made. It was contended that the partition
having been completed, the suit ought to be dismissed.=
The trial court records the issues and the findings
as follows:-
ISSUES FINDINGS
1. Do plaintiffs prove that the suit
Properties are the joint family
Properties? In Negative
2. Do defendants prove that there
Was already partition on 22.4.85
And all shares holders are in
Possession of their respective
Shares? In affirmative
3. Do they further prove that suit
Property mention at Sr.No.5 is
self acquired property of deceased
Eknath? In affirmative
4. Whether suit is maintainable? In affirmative
5. Whether the suit is barred by
limitation? In negative
6. Whether plaintiffs are entitled to
partition and possession of half
share in the suit properties? In negative
7. Whether plaintiffs are entitled to
future mesne profit? In negative
8. What decree and order? As per final order.
On the basis of the aforesaid findings, the suit of the
plaintiffs was dismissed with costs.
The High Court formulated the points for consideration
in appeal which are as follows:
(i) Whether the property at Nageshwarwadi, Aurangabad is self-
acquired property of Eknathrao and as such is not liable
for partition?
(ii) Whether the transaction entered into on 22.4.1985 by
Eknathrao, Trimbakrao and Prabhakarrao was family
arrangement not amounting to partition?
(iii) Whether Civil Application No.10005 of 2007 filed for
filing additional evidence should be allowed and in case it
is allowed can the partition list dated 22.4.1985 be
admitted in evidence?
9. Upon consideration of the entire material, the High Court has
answered point No.(i) in the negative and Point Nos.2 and 3
in the affirmative. As a result of the aforesaid findings,
the suit in respect of agricultural lands and house property
at Chikalthan and Neem Dongri has been dismissed.
However,
the plaintiffs/respondent Nos. 1 to 3 are held to be entitled
to partition of Nageshwarwadi House at Aurangabad. It has
been further directed that the respondents who are legal
representatives of deceased Prabhakarrao are entitled to half
share on the one hand and the remaining half share is to be
divided equally by the petitioners and respondent No.1 to 6
on the other.
Apex court held that
It
is a settled principle of law that once a partition in the
sense of division of right, title or status is proved or
admitted, the presumption is that all joint property was
partitioned or divided. Undoubtedly the joint and undivided
family being the normal condition of a Hindu family, it is
usually presumed, until the contrary is proved, that every
Hindu family is joint and undivided and all its property is
joint. This presumption, however, cannot be made once a
partition (of status or property), whether general or
partial, is shown to have taken place in a family.
Bhagwati Prasad Sah & Ors. Vs. Dulhin Rameshwari Kuer &
Anr.[1], wherein it was inter alia observed as under:
“8. Before we discuss the evidence on the record, we desire to
point out that on the admitted facts of this case neither party
has any presumption on his side either as regards jointness or
separation of the family. The general principle undoubtedly is
that a Hindu family is presumed to be joint unless the contrary
is proved, but where it is admitted that one of the coparceners
did separate himself from the other members of the joint family
and had his share in the joint property partitioned off for him,
there is no presumption that the rest of the coparceners
continued to be joint. There is no presumption on the other side
too that because one member of the family separated himself,
there has been separation with regard to all. It would be a
question of fact to be determined in each case upon the evidence
relating to the intention of the parties whether there was a
separation amongst the other co-parceners or that they remained
united. The burden would undoubtedly lie on the party who
asserts the existence of a particular state of things on the
basis of which he claims relief.”
20. This principle has been reiterated by this Court in Addagada
Raghavamma & Anr. Vs. Addagada Chenchamma & Anr.[2]
21. In this case, the trial court as well as the High Court has
held that there was a complete partition in the year 1985.
Therefore, the presumption would be that there was complete
partition of all the properties. Consequently, the burden of
proof that certain property was excluded from the partition
would be on the party that alleges the same to be joint
property. Therefore, in our opinion, the High Court clearly
committed an error in placing the burden of proof on the
petitioners, who were defendants in the suit to prove that
the Nageshwarwadi property at Aurangabad was a self-acquired
property of Eknathrao.
22. In view of the aforesaid, we allow the appeal and set aside
the findings recorded by the trial court on Issue No. III.
The judgment of the Trial Court is confirmed on Issue No. III
also. Consequently, the suit filed by the plaintiffs
(respondents herein) shall stand dismissed.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41325
SURINDER SINGH NIJJAR, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3867 OF 2014
(Arising out of SLP (C) No.27916 of 2009)
Kesharbai @ Pushpabai Eknathrao
Nalawade (D) by LRs. & Anr. …Appellants
VERSUS
Tarabai Prabhakarrao Nalawade & Ors. ...Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. This appeal has been filed against the judgment and decree
dated 23rd March, 2009 of the High Court of Bombay
(Aurangabad Bench) rendered in First Appeal No.468 of 2004
whereby the High Court has partly allowed the First Appeal of
the plaintiffs/respondent Nos. 1 to 3. The High Court has
dismissed the suit of the plaintiffs in respect of the
agricultural lands and house property at Chikalthan and Neem
Dongri. At the same time, the High Court has set aside the
judgment of the trial court on Issue No.3 relating to the
question as to whether house bearing No.4.13.78 bearing CTS
No.4705 admeasuring 138.2 sq. meters alongwith house
structure standing therein situated at Nageshwarwadi,
Aurangabad is the self acquired property of deceased
Eknathrao.
3. The admitted facts are that plaintiff Nos. 1 and 2 to 4 are
the wife and children of deceased Prabhakarrao s/o Saluba
respectively. Defendant Nos. 7 and 8 to 12 are the wife and
children of deceased Trimbakrao s/o Deorao respectively.
Defendant Nos. 13 to 15 are the subsequent purchasers of land
from the plaintiff. For better understanding of the inter-se
relationship between the parties, it would be appropriate to
reproduce here the genealogy table of the family, as noticed
by the trial court:
Mahipati
Deorao (son) died on
Sauba (son) died
15.7.1974
on 6.10.1980
Shewantabai (wife) died
Ansabai (wife) died
Prabhakar (son) died
Eknathrao (Son) Trimbakrao (son)
Tarabai Santosh Satish Manisha
Died on /11/97 died on 31.5.86
(P-1) (P-2) (P-3) (P-4)
Indubai (wife) D-1 Kamlabai (wife) D-7
Kiran Kranti Asha Jyoti Bharti
D-2 D-3 D-4 D-5 D-6
Pramod Vinod Rajendra
Vidya Vijaya
D-8 D-9 D-10
D-11 D-12
4. The plaintiffs filed a suit for partition and separate
possession of half share of the plaintiffs in the following
properties :-
(I) Agricultural land Gat No.453 whose survey number is 210
adms. 19 acre 1 guntha situated at village Chikalthana Tq.
Kannad.
(II) Land bearing Gat No.146 of whose survey number is 65 adms.
27 acre 39 gunthas situated at Nimdongri Tq. Kannad.
(III) House property bearing No.725 adms. 26.39 sq. meters
situated at Chikalthana Tq. Kannad.
(IV) Open plot bearing CTS No.709 adms. 64.3 squ. meter known
as ‘Girnichi Jaga’ situated at Chikalthana Tq. Kannad.
(V) House bearing No.4.13.78 of whose CTS No. is 4705 adms.
138.2 sq. meters along with house structure standing
thereon situated at Nageshwarwadi Aurangabad.
5. It was claimed that property at Sl.Nos.I and II were jointly
purchased by deceased Deorao and deceased Saluba in the name
of Deorao. The house at Sl.No.III was said to have been
constructed on a plot jointly purchased by the two brothers.
Both the brothers were residing in the same house during
their life time. With regard to property at Sl.No.V, it was
stated that both the brothers had purchased the plot on which
the house is constructed. It was further claimed that the
plot was purchased in the name of Eknathrao and his family
was residing in that house. In short, it was claimed that
during the life time of Deorao and Saluba, all the properties
were jointly cultivated and were jointly enjoyed by all the
family members. Trimbakrao was residing at Kannad and
Eknathrao was residing at Aurangabad due to their employment.
Similarly, Prabhakarrao was in service at different places.
It was also the case of the plaintiffs that there was a
family arrangement between Eknath, Trimbak and Prabhakarrao.
Property at Sl.No.I was allotted to Trimbakrao and
Prabhakarrao to the extent of half share each. Similarly,
land at Sl.No.II was allotted to Trimbakrao (7 acres) and to
Prabhakarrao (6 acres and 39 gunthas). Eknathrao was
allotted 14 acres. After the family arrangement, it was
alleged that everyone was in possession of the respective
parts of land and their names were entered in the revenue
record. It is the further claim of the plaintiffs that in the
same family arrangement house at Sl.No.III was given in
possession of Trimbakrao and Prabhakarrao to the extent of
half share each. Eknathrao was put in possession of the
entire open space known as ‘Girnichi Jaga’. It was
specifically pleaded that house at Sl.No.V (hereinafter
referred to as Nageshwarwadi Property) was not part of the
family arrangement. It was exclusively in possession of the
deceased Eknathrao and now in possession of petitioners
herein, defendant Nos. 1 and 2 in the suit.
6. The plaintiffs also claimed that Prabhakarrao during his life
time did not raise any objection with regard to the unequal
allotment in the share of the joint properties in the family
arrangement. It was stated that Prabhakarrao was an alcoholic
and, therefore, remained under the domination of the
petitioners. It is also admitted in the plaint that after the
death of Prabhakarrao, out of necessity to survive, certain
agricultural lands are sold by the plaintiffs to defendant
No.13 to 16. This was necessary to clear up the dues of the
co-operative societies and hand loan of other relatives taken
by the deceased Prabhakarrao. After the death of
Prabhakarrao, the plaintiffs claimed to have requested the
petitioners i.e. defendants to undo the injustice done to
Prabhakarrao at the time of the family arrangement. Instead
of partitioning the joint properties equitably, it was
claimed that after the death of Eknathrao, defendant No.1 to
12, which include petitioner No.1 and 2, were trying to enter
their names in the revenue records with regard to the
Nageshwarwadi Property at Aurangabad. Since the defendants
had declined the request for partition, the plaintiffs were
constrained to file the suit.
7. In the written statements filed by the defendants, it was
pointed out that there was no ancestral joint family nucleus
to purchase the agricultural lands and the house at
Sl.No.III. It is further claimed that the suit properties are
not coparcenery properties in which Deorao and Saluba had
equal shares. It was contended that at the most property can
be deemed as a joint property of Deorao, Saluba, Eknathrao
and Prabhakarrao. It was also claimed that the partition of
the suit property had taken place on 22nd April, 1985, the
respective shares were allotted, and final distribution of
the property was made. It was contended that the partition
having been completed, the suit ought to be dismissed. On the
basis of the pleadings of the parties, the trial court framed
8 issues. The trial court records the issues and the findings
as follows:-
ISSUES FINDINGS
1. Do plaintiffs prove that the suit
Properties are the joint family
Properties? In Negative
2. Do defendants prove that there
Was already partition on 22.4.85
And all shares holders are in
Possession of their respective
Shares? In affirmative
3. Do they further prove that suit
Property mention at Sr.No.5 is
self acquired property of deceased
Eknath? In affirmative
4. Whether suit is maintainable? In affirmative
5. Whether the suit is barred by
limitation? In negative
6. Whether plaintiffs are entitled to
partition and possession of half
share in the suit properties? In negative
7. Whether plaintiffs are entitled to
future mesne profit? In negative
8. What decree and order? As per final order.
On the basis of the aforesaid findings, the suit of the
plaintiffs was dismissed with costs.
8. Aggrieved by the aforesaid judgment and decree, the
plaintiffs filed First Appeal No.468 of 2004 before the High
Court. The High Court formulated the points for consideration
in appeal which are as follows:
(i) Whether the property at Nageshwarwadi, Aurangabad is self-
acquired property of Eknathrao and as such is not liable
for partition?
(ii) Whether the transaction entered into on 22.4.1985 by
Eknathrao, Trimbakrao and Prabhakarrao was family
arrangement not amounting to partition?
(iii) Whether Civil Application No.10005 of 2007 filed for
filing additional evidence should be allowed and in case it
is allowed can the partition list dated 22.4.1985 be
admitted in evidence?
9. Upon consideration of the entire material, the High Court has
answered point No.(i) in the negative and Point Nos.2 and 3
in the affirmative. As a result of the aforesaid findings,
the suit in respect of agricultural lands and house property
at Chikalthan and Neem Dongri has been dismissed. However,
the plaintiffs/respondent Nos. 1 to 3 are held to be entitled
to partition of Nageshwarwadi House at Aurangabad. It has
been further directed that the respondents who are legal
representatives of deceased Prabhakarrao are entitled to half
share on the one hand and the remaining half share is to be
divided equally by the petitioners and respondent No.1 to 6
on the other.
10. Aggrieved by the aforesaid judgment of the High Court, the
petitioners who were defendants in the suit have filed the
S.L.P. (C) No.27916 of 2009 giving rise to the present
appeal.
11. We have heard the learned counsel for the parties.
12. Mr. Shekhar Naphade, learned senior counsel appearing for the
appellants submitted that in Paragraph 25 of the impugned
judgment, the High Court has accepted the fact that there was
a complete partition between the parties. The High Court has
held that the family arrangement amounts to final
distribution of property amongst sharers. Plaintiffs
themselves have also treated the property allotted to them as
their exclusive property. Treating the property allotted to
their share as their exclusive property, they have sold some
portions of the land to respondent Nos. 13 to 16. The High
Court also held that the plaintiffs are estopped from
challenging the existence and validity of the partition
effected in the year 1985. The High Court even held that
they are not entitled to fresh partition of the properties
which were admittedly covered by the partition of 1985. Mr.
Naphade submitted that having held that there was a final
partition between the parties, the High Court committed an
error of jurisdiction in reversing the findings recorded by
the trial court on Issue No.III. According to Mr. Naphade,
the High Court has wrongly placed the burden of proof on the
petitioners, who were defendants in the suit to prove that
Nageshwarwadi property was self-acquired property of
Eknathrao. Learned senior counsel also submitted that the
High Court ignored the evidence produced by the parties,
which would establish that the parties had always treated
the Nageshwarwadi property as the self-acquired property of
Eknathrao.
13. On the other hand, learned counsel appearing for the
respondents has submitted that the trial court had wrongly
decided the Issue No.III against the plaintiffs. The
defendants (petitioners herein) have failed to prove that
Eknathrao had sufficient independent income to have acquired
the Nageshwarwadi property. It is submitted that although
the defendants had claimed that Eknathrao was employed with
the Indian Army, no proof with regard to the employment was
produced.
14. We have considered the submissions made by the learned
counsel for the parties.
15. Mr. Naphade is quite correct in his submission that the High
Court having accepted the findings of the trial court that
there was completed partition between the parties, has
committed an error of jurisdiction in putting the burden of
proof on the defendants on Issue No. III.
16. The trial court on appreciation of the entire evidence had
concluded that “the evidence on record discloses that as
contended, family arrangement alleged to have taken place in
the year 1985 in presence of three brothers and by accepting
it, every one took possession of their respective shares and
was enjoying the same. Not only this but their names were
mutated to revenue records. Everything was done in presence
of deceased brother.”
17. The trial court also finds that mutation entry bearing No.726
and No. 1116 were effected on the strength of the partition
deed dated 22nd April, 1985. Furthermore, the mutation
entries were confirmed by issuing notices to the parties. It
was specifically noticed on the mutation entries that no
objection was taken by any of the parties. The trial court,
in our opinion, has rightly concluded that no objections
having been taken at the time when the mutation entries were
confirmed, the plaintiffs are estopped from saying that these
entries are effected on wrong basis of partition. Noticing
the conduct of the parties, even further, the trial court
held that the plaintiffs by selling the land allotted to
them, treating the same to be their exclusive property. This
property was sold without the consent of defendant Nos. 1 to
12. Thus treating the same to be their exclusive property
and not coparcenary property.
18. On Issue No.III, the trial court has held that there is no
evidence except the bare words of the plaintiffs to show that
Nageshwarwadi property is purchased by the deceased Deorao
and deceased Saluba in the name of Eknathrao. The trial
court, in our opinion, has correctly held that all the other
joint property had been purchased either in the name of
Deorao or deceased Saluba. There was no explanation as to
why the property at Nageshwarwadi was purchased by them
exclusively in the name of Eknathrao. On the basis of the
evidence, the trial court found that Eknathrao was residing
exclusively in the aforesaid property. At that time
Prabhakarrao himself was living in rented premises. No
explanation is given as to why Prabhakarrao was not living in
the aforesaid house, in case, it was joint property of
Eknathrao and Prabhakarrao. The trial court also noticed
that it was not only Nageshwarwadi property, which was not
made part of the partition but also the house of Trimbakrao
at Kannad was kept outside partition. The trial court also
held that Eknathrao had independent means to purchase
Nageshwarwadi property. He was employed with the Military as
a Head Clerk from 1944 to 1956. On the basis of the entire
evidence, the trial court came to the conclusion that
Nageshwarwadi property was the self-acquired property of
Eknathrao. The High Court had reversed the aforesaid
findings on the basis that the petitioners, who were
defendants in the civil suit had not led any evidence to show
that Eknathrao had independently purchased Nageshwarwadi
property at Aurangabad. The High Court has reversed the
findings of the trial court on the basis that petitioners
have failed to prove that Eknathrao was working in the
Ammunition Factory, Khadki, Pune from 1944 to 1956. The High
Court further held that in this case, a presumption would
arise that Nageshwarwadi property was joint property,
purchased from the income derived from the other joint
property, which form the nucleus. Therefore, it was for the
petitioner to prove that Nageshwarwadi property was acquired
without the aid of the joint family.
19. In our opinion, the aforesaid presumption is wrong in law in
view of the fact that the High Court has affirmed the
findings of the trial court that in 1985, there was a
complete partition and the parties had acted on the same. It
is a settled principle of law that once a partition in the
sense of division of right, title or status is proved or
admitted, the presumption is that all joint property was
partitioned or divided. Undoubtedly the joint and undivided
family being the normal condition of a Hindu family, it is
usually presumed, until the contrary is proved, that every
Hindu family is joint and undivided and all its property is
joint. This presumption, however, cannot be made once a
partition (of status or property), whether general or
partial, is shown to have taken place in a family. This
proposition of law has been applied by this court in a number
of cases. We may notice here the judgment of this Court in
Bhagwati Prasad Sah & Ors. Vs. Dulhin Rameshwari Kuer &
Anr.[1], wherein it was inter alia observed as under:
“8. Before we discuss the evidence on the record, we desire to
point out that on the admitted facts of this case neither party
has any presumption on his side either as regards jointness or
separation of the family. The general principle undoubtedly is
that a Hindu family is presumed to be joint unless the contrary
is proved, but where it is admitted that one of the coparceners
did separate himself from the other members of the joint family
and had his share in the joint property partitioned off for him,
there is no presumption that the rest of the coparceners
continued to be joint. There is no presumption on the other side
too that because one member of the family separated himself,
there has been separation with regard to all. It would be a
question of fact to be determined in each case upon the evidence
relating to the intention of the parties whether there was a
separation amongst the other co-parceners or that they remained
united. The burden would undoubtedly lie on the party who
asserts the existence of a particular state of things on the
basis of which he claims relief.”
20. This principle has been reiterated by this Court in Addagada
Raghavamma & Anr. Vs. Addagada Chenchamma & Anr.[2]
21. In this case, the trial court as well as the High Court has
held that there was a complete partition in the year 1985.
Therefore, the presumption would be that there was complete
partition of all the properties. Consequently, the burden of
proof that certain property was excluded from the partition
would be on the party that alleges the same to be joint
property. Therefore, in our opinion, the High Court clearly
committed an error in placing the burden of proof on the
petitioners, who were defendants in the suit to prove that
the Nageshwarwadi property at Aurangabad was a self-acquired
property of Eknathrao.
22. In view of the aforesaid, we allow the appeal and set aside
the findings recorded by the trial court on Issue No. III.
The judgment of the Trial Court is confirmed on Issue No. III
also. Consequently, the suit filed by the plaintiffs
(respondents herein) shall stand dismissed.
……………………………….J.
[Surinder Singh Nijjar]
………………………………..J.
[A.K.Sikri]
New Delhi;
March 14, 2014.
-----------------------
[1] [1951] 2 SCR 603
[2] AIR 1964 SC 136
-----------------------
17
