Partition – It was obligatory upon the plaintiffs to have proved that despite existence of jointness in the family, properties was not part of ancestral properties but were their self-acquired properties – the plaintiffs failed to prove this material fact for want of any evidence.
Held:- The initial burden is always on the plaintiff to prove his case by proper pleading and adequate evidence (oral and documentary) in support thereof. 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 claim that some properties out of entire lot of ancestral properties are his self-acquired property.
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CIVIL APPELLATE JURISDICTION
[R.K. AGRAWAL] AND [ABHAY MANOHAR SAPRE] JJ.
September 06, 2017
CIVIL APPEAL No. 11220 OF 2017
(ARISING OUT OF SLP (C) No.5664/2012)
Adiveppa & Ors. …Appellant(s)
Bhimappa & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the plaintiffs against the final judgment and order dated 22.08.2011 passed by the High Court of Karnataka Circuit Bench at Dharwad, in RFA No. 1793 of 2006 whereby the High Court dismissed the appeal and affirmed the judgment and decree passed by the Court of Principal Civil Judge (Senior Division), Bagalkot in O.S. No.85 of 2001.
3) In order to appreciate the short controversy involved in this appeal, it is necessary to state the relevant facts.
4) The appellants are the plaintiffs whereas the respondents are the defendants in a civil suit out of which this appeal arises.
5) The dispute is between the members of one family, i.e., uncle, aunt and nephews. It pertains to ownership and partition of agricultural lands.
6) In order to understand the dispute between the parties, family tree of the parties needs to be mentioned hereinbelow:
7) As would be clear from the family tree, Adiveppa was the head of the family. He married to Yamanavva. Out of the wedlock, two sons and one daughter were born, namely, Hanamappa, Bhimappa and Gundavva. Hanamappa had two sons, namely, Adiveppa and Yamanappa.
8) Adiveppa – the head of family owned several acres of agricultural land. He died intestate. The dispute started between the two sons of Hanamappa and their uncle-Bhimappa and Aunt-Gundavva after the death of Adiveppa and Hanamappa. The disputes were regarding ownership and extent of the shares held by each of them in the agricultural lands.
9) Adiveppa and Yamanappa (appellants herein) filed a suit (O. S. No.85 of 2001) against – Bhimappa and Gundavva (respondents herein) and sought declaration and partition in relation to the suit properties described in Schedule ‘B’, ‘C’, and ‘D’.
10) The declaration was sought in relation to the suit properties in Schedule ‘B’ and ‘C’ that these properties be declared as plaintiffs’ self-acquired properties.