LexKESHARBAI @ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. & ANR. versus TARABAI PRABHAKARRAO NALAWADE & ORS.
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[2014] 3 S.C.R. 765 KESHARBAI @ PUSHPABAI EKNATHRAO NALAWADE (D) BY LRS. & ANR. v. TARABAI PRABHAKARRAO NALAWADE & ORS. (Civil Appeal No. 3867 of 2014) MARCH 14, 2014 [SURINDER SINGH NIJJAR AND A.K. SIKRI, JJ.] PARTITION: Hindu undivided family - Partition -- Effect of -- Held: Once a partition in the sense. of division of right, title or status A B c 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 p
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