LexADIVEPPA & ORS versus BHIMAPPA & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2017) 9 S.C.R. 505
ADIVEPPA & ORS ..
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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 of family 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
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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
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
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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
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 9 S.C.R.
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
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
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,
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
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-
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
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ADIVEPPA & ORS. v. BHlMAPPA & ANR.
507
2.5 It was obligatory upon the plaintiffs to prove that despite
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existence of jointness in the family, properties described in
Sched11le 'B' and 'C' was not part of ancestral prExcerpt shown. Read the full judgment & AI analysis in Lexace.