KONDIRAM BIKHU KIRDAT versus KRISHNA BIKHU KIRDAT

Citation: [1994] SUPP. 4 S.C.R. 213 · Decided: 04-10-1994 · Supreme Court of India · Bench: K. RAMASWAMY, S.C. AGRAWAL, N. VENKATACHALA · Disposal: Case Partly allowed
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Judgment (excerpt)

KONDIRAM BIKHU KIRDAT 
v. 
KRISHNA BIKHU KIRDAt 
OCTQBER 4, 1994 
[K.RAMASWAMY, S.C. AGRAWAL AND 
N. VENKATACHALA, JJ.] 
Hindu law-l'aTtition of joint family property-Brothers remaining in 
joint possession till severance of status-Held, they had joint family nucleus 
and properties must be deemed to be joint family properties. 
The Plaintiff filed a suit claiming equal share of joint family proper-
ties. The trial court decreed the suit only in respect of two items and held 
that the other Items had already been partitioned between the plaintiff and 
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his brother the defendant. The appellate court found that the plaintiff was 
entitled for partition or all the suit properties subject to contributing half D 
the consideration paid by the defendant for purchase of three Items. The 
defendant contended before the Supreme Court that except three items 
already partitioned the remaining were self-acquired properties. 
Partly allowing the appeal, this Court 
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HELD : The brothers bad joint family nucleus and continued to 
acquire the respective properties. So the properties must be deemed to be 
joint family properties. Except three items or self-acquired properties of 
the defendant, for which there was no question or the plaintifl's contribu-
tion, 11ll other properties are liable to be partitioned in equal moiety. 
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[217-A, CJ 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. l381l of 
1990. 
From the Judgment aod Order dated 16.1.90 of the Bombay High G 
Court in S.A. No. 33 of 1990. 
G. Vishwaoath Iyer aod A.S. Bhasme for the Appellaot. 
Ms, Suruchi Agarwal for Ms. Manik Karaojawala for the Respon-
dents. 
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213 
214 
SUPREME COURT REPORTS· [1994] SUPP. 4 S.C.R. 
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The following Order of the Court was delivered : 
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c 
D 
E 
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Unsuccessful defendant No.1, Kondiba, is the appellant before us. 
The original plaintiff, Krishna, the appellant's real brother laid Suit No. 135 
of 1976 in the trial court, namely, Civil Judge, Senior Division, Satara for 
partition of the properties by metes and bounds in equal share and for 
separate possession thereof. The trial court decreed the suit only in respect 
of two items, the land bearing Survey Nos. 131/3 and 218/7-B while declar-
ing that items 1, 3 and 6 have already been partitioned between the 
defendant and Krishna, the original plaintiff. On appeal, at the instance of 
Krishna the appellate court, on evaluation of evidence recorded the finding 
in paragraphs 12 and 13 of the judgment (pages 82-85 of the paper book) 
thus : 
"12. Thus, the evidence on record and the strong presumption in 
favour of joint family leads me to hold that the joint family 
comprised of deceased plaintiff Krishna and defendant Kandi 
existed till upto 10.11.1964 and all the suit houses, suit open plot 
purchased during the period from 29.11.1945 till upto 22.4.1960 
were joint family properties having 1/2 share to deceased plaintiff 
Krishna and the defendant. The perusal of 7 x 12 extract of the 
suit lands at serial Nos. 1 to 8 clearly discloses that many of them 
have facility of canal water and well water and capable to provide 
cash crops like rice, chilly kardai, Dhana and ground-nuts. 
Moreover, even the tenanted lands at serial Nos. 9 to 12 described 
in para lB were also in the possession and cultivation of plaintiff 
and defendant till upto 1963. The said yield surely enabled theft 
after severance of the joint family to purchase the erstwhile"family 
tenanted lands on 27.1.1967 under the sale deed Exh. 131. So far 
the suit lands at serial Nos. 7, 8 are concerned. The deceased 
plaintiffs after severance of joint family effected on 10.11.1964 has 
filed the instant suit on 26.4.1976 namely within 12 years for his 
1/2 share for all those suit properties in general and more and 
more particularly the suit lands bearing revision survey No. 221/4B 
and 152/5 which have been purchased for Rs. 2,500 by the defen-
dant as a tenant in common brother Krishna on 27.1.1967. In such 
state of affairs, the plaintiffs are surely entitled to 1/2 share even 
out of the lands described at serial Nos. 5, 7, 8 in para lB of the 
plaint of course subject to payment of Rs. 1,250 as contribution 
K.B. KIRDATv. KRISHNAB. KIRDAT 
215 
towards their price paid by the defendant. 
13. The suit houses and plot are part and parcel of erstwhile big 
building (wada) belonged to Patluba Kirdat and the map in respect 
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of said Wada available from the Reg. Civil Suit No. 930 of 1940 
instituted b
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