KESHARBAI @ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. & ANR.versusTARABAI PRABHAKARRAO NALAWADE & ORS.

                     [2014] 3 S.C.R. 765


 KESHARBAI @ PUSHPABAI EKNATHRAO NALAWADE                         A
              (D) BY LRS. & ANR.
                              v.
    TARABAI PRABHAKARRAO NALAWADE & ORS.
           (Civil Appeal No. 3867 of 2014)
                                                                  B
                      MARCH 14, 2014

    [SURINDER SINGH NIJJAR AND A.K. SIKRI, JJ.]

    PARTITION:
                                                                  c
     Hindu undivided family - Partition -- Effect of -- Held:
Once a partition in the sense. of division of right, title or status
is proved or admitted, presumption is that all joint property·
was partitioned or divided -- In the instant case, High Court
has affirmed the findings of the trial court that in 1985, there 0
was a complete partition and the parties had acted on the
same -- Therefore, the presumption would be that there was
complete partition of all the properties -- Burden of proof that
certain property was excluded from the partition would be on
the party that alleges the same to be joint property - High E
Court committed an error in placing the burden of proof on
the appellants, who were defendants in the suit, to prove that
the property at SI. No. V was a self-acquired property of their
predecessor-in-interest - Findings recorded by High Court on •
Issue No. Ill is set aside - Consequently, suit filed by the
plaintiffs-respondents shall stand dismissed - Evidence - F
Burden of proof.

    HINDU LAW·

    HUF - Partition - Presumption -- Explained.                   G
    A suit for partition between the parties was dismissed
by the trial court holding that a family arrangement had
taken place in the year 1985, and every one took
possession in their respective shares and was enjoying
                             765                                  H
   766      SUPREME COURT REPORTS             [2014] 3 S.C.R.


A the same. However, in appeal the High Court held that the
  plaintiffs were entitled to partition of property at SI. No.
  V, and set aside the finding of the trail court with regard
  to issue no.Ill that the suit property at SI. No.V was the
  self acquired property of the predecessor-in-interest of
B the defendants concerned.

         Allowing the appeal, the Court

       HELD: 1.1 The High Court having accepted the
  findings of the trial court that there was completed
C partition between the parties, has committed an error of
  jurisdiction in putting the burden of proof on the
  defendants on Issue No. Ill. [para 15] [775-A-B]

       1.2 The trial court on appreciation of the entire
0 evidence had concluded that the evidence on record
   disclosed that the 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. Their
E names were also mutated in revenue records. The trial
   court 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 the
 • said entries are effected on wrong basis of partition.
F Further, the plaintiffs sold the land allotted to them,
   without the consent of defendant Nos. 1 to 12, treating
   the same to be their exclusive property, and not
   coparcenary property. [para 16-17] [775-8-C, E-G]
       1.3 On Issue No.Ill, the trial court has held that
G property at SI. No. V was the self-acquired property of the
  predecessor in interest of the defendants concerned. The
  High Court has reversed the said findings on the basis
  that the appellants, who were defendants in the civil suit,
  had not led any evidence to show that their predecessor-
H in-interest(ER) had independently purchased property at
  KESHARBAI @ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. v.   767
             TARABAI PRABHAKARRAO NAL.AWADE

SI. No. V. The High Court further 'held that in this case, a A
presumption would arise that property at SI. No. V was
joint property, purchased from the income derived from
the other joint property, which form the nucleus. The said
presumption is wrong in law in view of the fact that the
High Court has affirmed the findings of trial court that in B
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 c
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), .
                                                               0
whether general or partial, is shown to have taken place
in a family. [para 18-19] [775-G; 776-D-H; 777-A-B]

     Bhagwati Prasad Sah & Ors. Vs. Du/hin Rameshwari
Kuer & Anr. [1951] 2 SCR 603; Addagada Raghavamma &
Anr. Vs. Addagada Chenchamma & Anr. 1964 SCR 933             =E
AIR 1964 SC 136 = referred to.

     1.4 In the instant 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             F
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. High Court
clearly committed an error in placing the burden of proof         G
on the appellants, who were defendants in the suit to
prove that the property at SI. No. V was a self-acquired
property of ER. Consequently, the suit filed by the
plaintiffs-respondents shall stand dismissed. [para 21-22]
[778-A-D]                                               .
                                                                  H
    768      SUPREME COURT REPORTS                 (2014) 3 S.C.R.

A                         Case Law Reference:
          [1951] 2 SCR 603         referred to            para 19
          1964 SCR 933             referred to            para 20

B       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3867 of 2014.

        From the Judgment and Order dated 23.03.2009 of the
    High Court of Bombay at Aurangabad in FA No. 468 of 2004.

C       Shekhar Naphade, Sanjay Kharde, Shubhangi Tuli,
    Chandan Ramamurthi for the Appellants.

       Rahul Jain, Shitakshi Talukdar, Shivaji M. Jadhav, Naresh
    Kumar for the Respondents.
D
          The Judgment of the Court was delivered by

          SURINDER SINGH NIJJAR, J. 1. Leave granted.

       2. This appeal has been filed against the judgment and
E 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
F 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
G 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
H
  KESHARBAI @ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. v.    769
  TARABAI PRABHAKARRAO NALAWADE [SURINDER SINGH NIJJAR, J]

respectively. Defendant Nos. 7 and 8 to 12 are the wife and        A
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       B
by the trial court:

                              Mahipati

 Deorao (son) died on           Sauba (son) died
 15.7.1974                      on 6.10.1980                       c
 Shewantabai (wife) died
 Ansabai (wife) died

 Prabhakar (son) died
                                                                   D
 Eknathrao Trimbakrao Tarabai Santosh Satish Manisha
 (Son) (son)

 Died on died on (P-1) (P-2) (P-3) (P-4)
 /11/97 31.5.86
                                                                   E
 lndubai (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           F
                                      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 :-
                                                                   G
     (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        H
    770           SUPREME COURT REPORTS              [2014] 3 S.C.R.


A                  65 adms. 27 acre 39 gunthas situated at Nimdongri
                   Tq. Kannad.

          (Ill)    House property bearing No.725 adms. 26.39 sq.
                   meters situated at Chikalthana Tq. Kannad.
B         (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
c                  4705 adms. 138.2 sq. meters along with house
                   structure standing thereon situated at
                   Nageshwarwadi Aurangabad.

        5. It was claimed that property at SI.Nos.I and II were jointly
  purchased by deceased Deorao and deceased Saluba in the
D name of Deorao. The house at SI.No.Ill 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
E 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
F 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 SI.No.I was allotted to
G Trimbakrao and Prabhakarrao to the extent of half share each.
  Similarly, land at SI.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
H and their names were entered in the revenue record. It is the
  KESHARBAI@ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. v. .    771
  TARABAI PRABHAKARRAO NALAWADE [SURINDER SINGH NIJJAR, J.]

further claim of the plaintiffs that in the same family arrangement   A
house at SI.No.Ill 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 Nageshwal"Wadi Property) Was not          B
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 C
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 D
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. 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 F
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     G
pointed out that there was no ancestral joint family nucleus to
purchase the agricultural lands and the house at SI.No.Ill. 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
                                                                      H
    772       SUPREME COURT REPORTS                 [2014] 3 S.C.R.

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
B 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
c         1. Do plaintiffs prove that the suit
           Properties are the joint family
           Properties?                            In Negative

          2. Do defendants prove that there
D          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
E          Property mention at Sr.No.5 is
           self acquired property of deceased
           Eknath?                                In affirmative

          4. Whether suit is maintainable?        In affirmative
F
          5. Whether the suit is barred by
           limitation?                            In negative
          6. Whether plaintiffs are entitled to
           partition and possession of half
G          i;hare 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.
H
    KESHARBAI @ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. v.    773
   TARABAI PRABHAKARRAO NALAWADE [SURINDER SINGH NIJJAR, J)

      On the basis of the aforesaid findings, the suit of the         A
 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       8
  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?
                                                                      c
       (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
                                                                      0
               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, th-e High Court
 has answered point No.(i) in the negative and Point Nos.2 and E
 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 F
 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.                                                          .G

      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.          H
    774      SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A       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
B 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
c 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
0
  an error of jurisdiction in reversing the findings recorded by the
  trial court on Issue No.Ill. 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
E 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.
F        13. On the other hand, learned counsel appearing for the
   respondents has submitted that the trial court had wrongly
   decided the Issue No.Ill against the plaintiffs. The defendants
   (petitioners herein) have failed to prove that Eknathrao had
   sufficient independent income to have acquired the
G 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
H learned counsel for the parties.
  KESHARBAI@ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. v.           775
  TARABAI PRABHAKARRAO NALAWADE [SURINDER SINGH NIJJAR, J.] ·

     15. Mr. Naphade is quite correct in his submission that the           A
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. Ill.
                                                                           B
      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               C
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                  D
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               E
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         F
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.Ill, the trial court has held that there is no
evidence except the bare words of the plaintiffs to show that              G
Nageshwarwadi property is purchased by the deceased
Deorao and deceased Saluba in the name of Eknathrao. The
trial court, in our opinion, has eorrectly 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                    H
    776      SUPREME COURT REPORTS                  [2014] 3 S.C.R.

A property at Nageshwarwad1 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
B 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
C 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
0
   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
t= 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,
F 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
G 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
H the joint and undivided family being the normal condition of a
     KESHARBAI @ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. v.      777
     TARABAI PRABHA\SARRAO NALAWADE [SURINDER SINGH NIJJAR, J.]

Hindu family, it is usually presumed, until the contrary is proved,     A
that every Hindu family is joint and undivided and all its prop~rty
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             B
notice here the judgment of this Court in Bhagwati Prasad Sah
& Ors. Vs. Du/hin Rameshwari Kuer & Anr. 1, wherein it was
inter alia observed as under:

      "8. Before we discuss the evidence on the record, we              C
      desire to point out that on the a_Q_mitted 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         D
      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,          E
      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                    F
      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              G
Addagada Raghavamma & Anr. Vs. Addagada
Chenchamma & Anr. 2

1.    (1951) 2 SCR 603.
2.    AIR 1964 SC 136.                                                  H
    778      SUPREME COURT REPORTS                   [2014] 3 S.C.R.


A       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
B 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.
c        22. In view of the aforesaid, we allow the appeal and set
    aside the findings recorded by the trial court on Issue No. Ill.
    The judgment of the Trial Court is confirmed on Issue No. Ill also.
    Consequently, the suit filed by the plaintiffs (respondents herein}
    shall stand dismissed.
D
    R.P.                                             Appeal allowed.