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1928 Supreme(SC) 71
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD BLANESBURGH, AND SIR JOHN WALLIS.
YELLAPPA RAMAPPA - Appellant
Versus
TIPPANNA - Respondents
On Appeal from the High Court at Bombay.
Decided On : Nov. 16. 1928.
Solicitors for appellants : T. L. Wilson & Co.
The presumption of jointness in a Hindu family weakens as the relationship between parties becomes more distant. Where one branch has exclusively possessed property for generations, the burden is not on them to prove partition against a distant relative who shows no evidence of jointness.
Headnote:(A) Indian Limitation Act, 1908 - Sch. I, art. 127 - Suit for share in joint family property - Limitation period of twelve years - Exclusion of a co-sharer to their knowledge bars the suit after the prescribed period.
(B) Hindu Law - Presumption of jointness - The presumption that a Hindu family continues joint varies based on the relationship; it is stronger among brothers and weakens as the descent from the common ancestor increases - Where property has been possessed exclusively by one branch for generations and the claimant is a distant cousin providing no evidence of jointness, such as shared residence, food, or worship, the presumption of jointness is countered by the facts of separate enjoyment.
(C) Onus Probandi - Burden of proof - It is improper to place the burden on the party in sole possession of property for generations to prove partition or exclusion when the claimant fails to establish facts of jointness.
Facts of the case:
A suit was filed for a half share in police service land and mesne profits. The property had been in the exclusive possession of one branch of the family for over fifty years. The plaintiff, a distant cousin, had never possessed the land, paid quit rent, or shared a household with the defendants. The plaintiff had previously been appointed to a service office based on a nomination but did not claim ownership during subsequent administrative changes.
Findings of Court:
The court found that the plaintiff never possessed the property or shared the commonalities of a joint family. The presumption of jointness was too weak given the distant relationship and the long history of separate possession.
Issues: Whether the burden of proof lies on the party in exclusive possession to prove partition or exclusion when the claimant is a distant relative and there is no evidence of jointness.
Ratio Decidendi: The presumption of jointness in a Hindu family weakens with each stage of descent from the common ancestor. When a single line has possessed property for generations, the burden does not shift to them to prove a partition from a distant line that shows no evidence of jointness. Such facts override the presumption, and the suit is barred by the twelve-year limitation period if exclusion is established.
Result: Appeal sustained with the restoration of the decree of the Subordinate Judge.
Legal Category Hierarchy
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family law
-
hindu law
-
joint family property
- jointness and partition
-
joint family property
-
hindu law
-
practice and procedure
-
evidence
- burden of proof
-
limitation
- indian limitation act
-
evidence
Judgement
Appeal (No. 87 of 1926) from a decree of the High Court (February 29, 1924) reversing a decree of the Subordinate Judge of Belgaum.
The suit was brought by the respondent to recover a half share in the joint property of the appellants, who were his distant kinsmen, and for mesne profits.
The facts appear from the judgment of the Judicial Committee.
The trial judge held that the plaintiff was not a member of the joint family and dismissed the suit.
Upon appeal to the High Court a decree was made in the plaintiffs favour. The learned judges held that as the two branches of the family had once owned the property jointly, the burden was on the defendants to prove that the family had been divided, or to prove an exclusion of the plaintiff and his father to their knowledge, so as to bar the suit under the Indian Limitation Act, 1908, Sch. I., art. 127. In their view the evidence failed to establish either a partition or such an exclusion.
1928. Oct. 16, 18. Sir George Lowndes K.C., E. B. Raikes and McNair for the appellants. The burden of proving that the plaintiff was a member of the joint family was upon him, and he did not discharge it. Having regard to the circumstances of the case there was no such onus upon the defendants as justified the High Court in holding that the plaintiff was a member Moro Vishvanath v. Ganesh . (( 1865) 10 Bom. H. C. 444, 453.) Even if the onus was upon the defendants they discharged it. But the question of onus is really academic, as the evidence necessary to determine the question was before the Court Robins v. National Trust Co. ([ 1927] A. C. 515, 520.); Sivaprakasa v. Veerama Reddi . (( 1922) L. R. 49 I. A. 286, 303.) In any case the suit was barred by the Indian Limitation Act, 1908, Sch. I., art. 127. There was an exclusion of the plaintiff to his knowledge in 1895, when the defendants ancestor claimed the exclusive right to the office of patil, even if there was not an exclusion in 1862. The respondent did not appear.
Nov. 16. The judgment of their Lordships was delivered by
LORD SHAW. This is an appeal from a decree of the High Court of Judicature at Bombay. It was dated February 29, 1924, and it reversed a decree of the Court of the First Class Subordinate Judge of Belgaum dated August 28, 1919.
The suit was brought by the respondent for a half share in property possessed by the appellants for
many years as after mentioned.
The appellants were distant kinsmen of the respondent.
The family genealogy is thus set out—
Kenchi Hemi Naik
|
| |
Hamappa Lakshmappa
| |
Lakshmappa Junior Branch of
| whom 10
| descendants
were living in
1862
||
Ramappa Krishmappa
| |
| |
Topanna Hanmappa
(Topi Naik) |
|
| Laxmanna (d. 1880)
Venkappa m. |
Irawa (d.
8-12- 1872)
|
| |
| Tippanna (Plaintiff)
| | |
Ramappa Appu (d. 1878) Bhima (d.
(Defendant | 1878)
No. 1) m. |
Mallava (died |
pending |
hearing in |
High Court. |
Adopted |
Defendant |
No. 2) |
Ellappa (alias
rftsWidthA3 Yellappa)
Defendant No. 2
(adopted by
Defendant No. 1,
27-5- 1897)
|
||| Venkappa Appa (Defendant Balapa (Defendant No. 5) Given in (Defendant No. 3.) adoption to another No. 4) family.
The suit was brought in 1916. The case was most carefully tried by the Subordinate Judge. One cannot peruse his judgment and the relative evidence without being struck by the accuracy and minuteness of his exposition and the apparent correctness of his conclusions.
Had the case been considered by the High Court as one to be determined merely upon the facts proved, their Lordships do not doubt that that Court would have reached the same conclusion as the Subordinate Judge. The High Court, however, in a brief deliverance, reversed the judgment substantially upon the ground of their view as to the onus probandi in allegations as to joint family property.
First as to the facts. Their Lordships agree in substance with the Subordinate Judges narrative and only add this brief summary. The property is naiki watan (police service land) in the village of Many
