Holding

The Supreme Court upheld the concurrent findings of the lower courts that the plaintiffs failed to prove self‑acquired ownership of Schedules B and C and that Schedule D had already been partitioned, and therefore dismissed the appeal.

Summary

The appellants, nephews of the deceased family head, sued their uncle and aunt seeking a declaration that certain agricultural lands (Schedules B and C) were self‑acquired and a partition of other lands (Schedule D) claimed to be ancestral. The respondents contended that all the lands were ancestral and that an oral partition had been effected in 1993, allocating shares to each family member. The trial court found the appellants failed to produce documentary evidence of purchase for Schedules B and C and held that Schedule D had already been partitioned, dismissing the suit; the High Court affirmed this decision. On appeal, the Supreme Court examined whether the plaintiffs had discharged the burden of proof and whether the lower courts' concurrent factual findings were perverse. It reiterated that the initial burden lies on the plaintiff to prove self‑acquired status and that, absent proof, the presumption of joint family ownership prevails. Finding no evidence to rebut this presumption and noting that the lower courts' findings were not perverse, the Court upheld the earlier judgments and dismissed the appeal.

Issues considered

Whether the plaintiffs proved that the properties in Schedules B and C were self‑acquired and not part of the joint family estate.
Whether a partition of the properties in Schedule D had taken place and was acted upon.
Whether the legal presumption of joint family ownership under Hindu law shifts the burden of proof to the plaintiff asserting self‑acquired title.
Whether the concurrent factual findings of the trial court and High Court are binding on the Supreme Court.

Subjects

Hindu lawjoint familyself‑acquired propertyburden of proofpresumption of co‑parcenarypartitioncivil suitdeclaration

Judgment

[2017) 9 S.C.R. 505

ADIVEPPA & ORS .. A
v.
BHIMAPPA & ANR.
(Civil Appeal No. 11220 of2017)
SEPTEMBER 06, 2017 B
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.)
Suit - Suit by appellants-plaintiffs against respondents-
defenda/lfs (appellant's paternal uncle and aunt) - Declaration was
.wught in relation to properties described in Schedule 'B' & 'C' as C
plaintiffs' self-acquired properties - However, partition was sought
in relation to the properties described in Schedule 'D' alleging the
same to be ancestral - Suit dismissed by tria/cour{- First appeal
also dismissed by High Court - On appeal, held: In the instant.
case, the plaintiffs could n_ot prove that 'the suit properties described
in Schedule 'B' and 'C' were their self-acquired properties anti that D
t~e partition did not take place _in respect of Schedule 'D 'properties
and it continued to remaili ancestral in the hands offamily members
- On the other hand~ the defendants were able to prove that the
partition took place and was acted upon - Such concurrent findings
of facts, which were not perverse, recorded by the two Courts are E
binding Oil Supreme Court - Concurrent findings of the two courts
. below are upheld.
Hindu Law-Joint Family-Presumption of- Burden to prove
othenvise - Discussed.
Dismissing the appeal, the Court F
HELD: 1. The two Courts below, on appreciating the entire .
·evidence, had came to a conclusion that the plaintiffs failed to . -
prove their case in relation to both the suit properties. The
concurrent findings of facts recorded by the two Courts, which
do n.ot involve any question of law much less substantial question G
of law, are binding on this Court. Unless the findings of facts,
though concurrent, are found to be extremely perverse so· as to
affect the judicial conscious of a judge, they would be binding on
the Appellate Court. [Paras 17, 18)(509-H; 510-A)

H
505
506 SUPREME COURT REPORTS [2017] 9 S.C.R.

A 2.1 It is a settled principle of law that the initial burden is
always on the plaintiff to prove his case by proper pleading and
adequate evidence (oral and documentary) in support thereof.
The plaintiffs in this case could not prove with any documentary
evidence that the suit properties described in Schedule 'B' and
'C' were their self-acquired properties and that the partition did
B
not take place in respect of Schedule 'D' properties and it
continued to remain ancestral in the hands of family members.
On the other hand, the defendants were able to prove that the
partition took place and was acted upon. [Para 19][510-D)
2.2 In order to prove that the suit properties described in
c Schedule 'B' and 'C' were their self-acquired properties, the
plaintiffs could have adduced the best evidence in the form of a
sale-deecl showing their names as purchasers of the said
properties and also could have adduced evidence of payment of
sale consideration made by them to the vendee. It was, however,
D not clone. Not only that, the plaintiffs also failed to adduce any
other kind of documentary evidence to prove their self-acquisition
of the Schedule 'B' and 'C' properties nor they were able to prove
the source of its acquisition. [Paras 20, 21 ][510-E-FJ
2.3 It is a settled principle of Hindu law that there lies a
E legal presumption that every Hindu family is joint in food, worship
and estate and in the absence of any proof of division, such legal
presumption continues to operate in the family. The burden,
therefore, lies upon the member who after admitting the existence
of jointness in the family properties asserts his daim that some
properties out of entire lot of ancestral properties arc his sclf-
F acquired property. !Para 22)(510-G-HJ
2.4 The legal presumption of the suit properties comprising
in Schedule 'B' and 'C' to be also the part and parcel of the
ancestral one (Schedule 'D') could easily be drawn for want of
any evidence of such properties being self-acquired properties
G of the plaintiffs. It was also for the reason that the plaintiffs
themselves had based their case by admitting the existence of
joint family nu.cleolus in respect of schedule 'D' properties and
had sought partition by demanding 4/911' share. [Para 23][511-BJ

H
ADIVEPPA & ORS. v. BHlMAPPA & ANR. 507

2.5 It was obligatory upon the plaintiffs to prove that despite A
existence of jointness in the family, properties described in
Sched11le 'B' and 'C' was not part of ancestral properties but
• were their self-acquired properties. The plaintiffs failed to prove
this material fact for want of any evidence. [Para 24]1511-C-D)
Mui/a - Hindu Lmv, 22nd Edition pages 346 and 347 ---. B
referred to .
. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11220
of2017. · ·· -
From the Judgment and final Order dated 22.08.2011 passed by
the High Court of Karnataka, Circuit Bench at Dharwad in Regular C
First Appeal No.1793 of2006.
Ms. Kiran Suri, Sr. Adv. S. J. Amith, Dr. (Mrs.) Vipin Gupta,
Advs. for the Appellants
Anand SanjayM. Nuli, Dharm Singh(forM/sNuli & Nuli), Radha 0
Shyam Jena, Haris Beeran, Mushtaq Salim, Usman .Ghani Khan', Dev
Prakash, Advs. for the Respondents
The Judgment of the Court was delivered by
... ABHAY MANOHAR SAPRE, J. I. Leave granted.
2. This appeal is filed by the plaintiffs against the final judgment E
and order dated 22.08.2011 passed by the High Court of Karnataka
Circuit Bench at Dharwad, fo RFA No. 1793 of2006 whereby-the High
Court dismissed the appeal and affirmed the judgment and decree passed
by the Court of Principal Civil Judge (Senior Division). Bagalkot in O.S.
No.85 of20.9 l. F
3. In order to appreciate the short controversy involved in this
appeal, it is necessary to state the relevant facts.
4. The appellants are the plaintiffs whereas the respondents.are
the defendants in a civil suit out of which this appeal arises. ·
G
5. The dispute is between the members of one family, i.e., uncle,
aunt and nephews. It pertains to ownership and paitition of agricultural
lands.
6. In order to understand the dispute between the parties, family
tree of the parties needs to be mentioned hereinbelow:
.H
508 SUPREME COURT REPORTS [2017) 9 S.C.R.

A GENEALOGICAL TREE

Adiveppa (Died about 3-35 years back)

Yan11navva (Died about 10 years back)

Adiveppa
·s
Yallllll8wa
(Wife)

l i
c Hanan11ppa Bhin11ppa Gunda\~'8
(Son-Died 6 years ago) (Son-Defendant No.I) (Daughter-Defendant No.2)

~
Mangalavva
(Wafe-Plaintift'No.3)

D I
l +
. Adiveppa Yaimnappa
(Son- PlaintitTNo.l) (Son- Plaintift'No.2)

E 7. As would be clear from the family tree, Adiveppa was the head
of the family. He married to Yamanavva. Out of the wedlock, two sons
and one daughter were born, namely, Hanamappa, Bhimappa and
Gundavva. Hanamappa had two sons, namely,Adiveppa and Yamanappa.
8. Adiveppa • the head of family owned several acres of
agricultural land. He died intestate. The dispute started between the two
F . sons of Hanamappa and their uncle-Bhimappa and Aunt-Gundavva
after the death of Adiveppa and Hanamappa. The disputes were
regarding ownership and extent of the shares held by each of them in
.the agricultural lands.
9. Adiveppa and Yamanappa (appellants herein) filed a suit (0. S.
G No,85 of200 I) against - Bhimappa and Gundavva (respondents herein)
and sought declaration and pai1ition in relation to the suit properties
described in Schedule '8', 'C', and 'D'.
I 0. The declaration was sought in relation to the suit properties in
Schedule 'B' and 'C' that these properties be declared as plaintiffs'
H self-acquired properties,
ADIVEPPA & ORS. v. BHIMAPPA & ANR. 509
[ABHAY MANOHAR SAPRE, J.]

11. So far as the properties specified in Schedule 'D' were A
concerned, it was alleged that these properties were ancestral and hence
the plaintiffs have 4/9'h share in them as members of the family. It was
alleged that since so far partition has not taken place by meets and
bound amongst the family members, the suit to seek for partition.
12. The respondents (defendants) denied the plaintiffs' claim and B
averred inter alia'that the entire suit properties comprising in Schedule
'B', 'C' and 'D' were· ancestral properties. It was alleged that during
the lifetime ofHanamappa, oral partition had taken place amongst the
family members on 28. I0.1993 in relation to the entire suit properties
(Schedule 'B', 'C' and 'D'), pursuant to which all family members were
placed in possession of their respective shares. It was alleged that the C
partition was acted upon by all the family members including the plaintiffs'
father (Hanamappa) without any objection from any member. It is on
these averments, the respondents contended that the plaintiffs' claim
. was misconceived.
13. The Trial Court framed the issues and parties adduced their D
evidence. By judgment/decree dated 15.07.2006, the Trial Court
dismissed the suit. It was held that the plaintiffs failed to prove the suit
properties specified in Schedule 'B' and 'C' to be their self-acquired
properties. It was also held that so far as the properties specified in
schedule 'D' are concerned, though they were ancestral but were E
partitioned long back pursuant to which, the plaintiffs through their father-
Hanamappa got their' respective shares including other members~·
. .
14. The plaintiffs felt aggrieved and filed first appeal before the
High Court. By impugned judgment, the High Court dismissed the appeal
and affirmed the judgment/decree of the Trial Court giving rise to filing p
of this appeal by way of special leave before this 'com1 by the plaintiffs.
15. Heard Ms.Kiran Suri, learned senior counsel, for the appellants
and Mr. Anand Sanjay M. Nuli and Mr. R.S. Jena, learned counsel for
the respondents.
I 6. Having heard the learned counsel for the parties and on perusal G
of the record of the case including the written submissions filed by the
learned counsel for the appellants, we find no merit in this appeal.
17. Here is a case where two Courts below, on appreciating the'
entire evidence, have come to a conl<lusion that the plaintiffs failed to
510 · SUPREME COURT REPORTS [2017] 9 S.C.R.

A prove their case in relation to both the ·suit properties. The concurrent
findings of facts recorded by the two Courts. which do not involve any
question of law much less substantial question of law, are binding on this
Court.
18. It is more so when these findings are neither against the
B pleadings nor against the evidence and nor contrary to any provision of
Iiiw. They are also not perverse to the extent that no suth findings could
ever be recorded by any judicial person. In other words, unless the findings
of facts, though concurrent, are found to be extremely perverse so as to
affect the judicial conscious of a judge, they would be binding on the
Appellate Court.
c
19. It is a settled principle of law that the initial burden is always
on the plaintiff to prove his case by proper pleading and adequate evidence
(oral and documentary) i.n support thereof. The plaintiffs in this case
could not prove with any documentary evidence that the suit properties
described in Schedule 'B' and 'C' were their self-acquired properties
D and that the partition did not take place in respect of Schedule 'D'
properties and it continued to remain ancestral in the hands of family I
members. On the other hand, the defendants were ab le to prove that t.~~.....
partition took place and was acted upon.. ·
20. In order to prove that the suit properties described in Schedule
E 'B' and 'C' were their self-acquired properties, the plaintiffs could have
adduced the best evidence in the form of a sale-deed showing their
names as purchasers of the said properties and also could have adduced
evidence of payment of sale consideration made by them to the vendee.
It was, however, not done.
F 21. Not only that, the plaintiffs also failed to adduce any other
kind of documentary evidence to prove their self-acquisition of the
Schedule 'B' and 'C' properties nor they were able to prove the source
ofits acquisition.
22. It is a settled principle of Hindu law that there lies a legal ·
G presumption that every Hindu family is joint in food, worship and estate
and in the absence of any proof of division, such legal presumption
continues to operate in the family. The burden, therefore. lies upon the
member who after admitting the existence of jointness in the family
properties asserts his claim that some properties out of entire lot of
H ancestral properties are his self-acquired property. (See-Mulla - Hindu
ADIVEPPA & ORS. v. BHIMAPPA & ANR. 511
[ABHAY MANOHAR SAPRE, J.J

Law, 22nd EditiOn Article 23 "Presumption as to co-parcenary A
and self acquired property"- pages 346 and 347).
23. In our considered opinion, the legal presumption of the suit
properties comprising in Schedule 'B' and 'C' to be also the part and
parcel of the ancestral one (Schedule 'D') could easily be drawn for
want of any evidence of such properties being self-acquireQ properties B
of the plaintiffs. It was also for the reason that the plaintiffs themselves
had based their case by admitting the existence ofjoint family nucleolus
in respect of schedule 'D' properties and had sought partition by
demanding 4/91h share:
24. In our considered opinion, it was, therefore, obligatory upon C
the plaintiffs to have proved that despite existence of jointness in the
family, properties described in Schedule 'B' and 'C' was not part of
ancestral properties but were their self-acquired properties. As held
above, the plaintiffs failed to prove this material fact for want of any
evidence. ·
D
25. We have, therefore, no hesitation in upholding the concurrent
findings of the two Courts, which in our opinion, are based on proper
appreciation of oral evidence.
26. Learned counsel for the appellants took us through tlfe evidence ..
We are afraid we cannot appreciate the evidence at this state in the light E
of what we have held above. It is not permissible.
27. It was also her submissionthat the Trial Co'urt has recorded
some findings against the defendants in relation to their rights in the suit
properties and the same having -been upheld by the High Court, the
appellants are entitled to get its benefit in the context of these findings, F
28. We have considered this submission but find no merit in the
light of what we have held above. At the cost of repetition, we may
observe that if the plaintiffs failed to prove their main case set up in the
plaint and thereby failed to discharge the burden, we cannot accept their
any alternative submission which also has no substance.
G
29. In the result, we find no merit in the appeal. It fails and is
accordingly dismissed.

Divya Pandey Appeal dismissed.