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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.  

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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:

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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  

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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  

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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  

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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  

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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  

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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

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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?

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(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  

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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  

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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  

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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.  

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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.

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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  

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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.   

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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

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“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

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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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