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Hindu Law – Partition suit – Presumption of Joint family -Exclusion of property from partition-burden lies on whom- 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.= Kesharbai @ Pushpabai Eknathrao Nalawade (D) by LRs. & Anr. …Appellants VERSUS Tarabai Prabhakarrao Nalawade & Ors. …Respondents= 2014 (March. Part ) judis.nic.in/supremecourt/filename=41325

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

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