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 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.

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. The High
Court has dismissed the suit of the plaintiffs in respect of
the agricultural lands and house property at Chikalthan
1
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:

2
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
situated at Nimdongri Tq. Kannad.
(III) House property bearing No.725 adms. 26.39
sq. meters situated at Chikalthana Tq.
Kannad.
3
(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 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
4
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 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
5
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 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,
6
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 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
7
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
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
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?
(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
9
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 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.
10
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 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
11
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
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.
12
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. 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
13
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.
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.
14
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 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
15
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.
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
16
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:
“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.”
1
[1951] 2 SCR 603
17
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
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
2
AIR 1964 SC 136
18
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.
19
ITEM NO.1-A COURT No.7 SECTION IX
(For judgment)
S U P R E M E C O U R T O F I N D I
RECORD OF PROCEEDINGS
CIVIL APPEAL NO.3867/2014 @ SLP(C) No.27916/2009
Kesharbai @ Pushpabai Eknathrao Nalawade (D) Appelant(s)
by Lrs. And Anr.
Versus
Tarabai Prabhakarrao Nalawade & Ors. Respondent(s)
DATE :14/03/2014 This matter was called
on for pronouncement of judgment today.
For Appellant(s) Mrs. Chandan Ramamurthi, Adv.
For Respondent(s) Mr. S.M. Jadhav, Adv.
Mr. Naresh Kumar, Adv.
Hon’ble Mr. Justice Surinder Singh Nijjar
pronounced the judgment of the Bench comprising His
Lordship and Hon’ble Mr. Justice A.K. Sikri.
Leave granted.
The appeal is allowed in terms of the signed
reportable judgment.
(Usha Bhardwaj) (Indu Bala Kapur)
(A.R.-cum-P.S.) (Court Master)
[Signed reportable judgment is placed on the file ]

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