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.”
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
...
VERSUS
Tarabai Prabhakarrao Nalawade & Ors.
SURINDER SINGH NIJJAR, J.
Dated;March 14, 2014.
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
15.7.1974
Sauba (son) died
on 6.10.1980
Shewantabai (wife) died
Prabhakar (son) died
Eknathrao (Son)
Manisha
Died on /11/97
Ansabai (wife) died
Trimbakrao (son)
died on 31.5.86
Tarabai Santosh Satish
(P-1)
(P-2)
(P-3)
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
D-8
D-9
D-10
D-11
Vijaya
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
(P-
4
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?
4. Whether suit is maintainable?
In affirmative
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
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?
for
(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.
Eknathrao
had
The trial court also held that
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:
1
[1951] 2 SCR 603
“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
2
AIR 1964 SC 136
Page 18
1
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.
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