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1970 Supreme(AP) 162
Andhra Pradesh High Court
Judges : PARTHASARATHI
Mareddi Ramireddi - Appellant
Versus
Mareddi Venkateswara Reddy - Respondent
Decided On : 07-20-70
The burden of proof lies on the plaintiff to prove that the prior partition was partial and that after the separation of the eldest son, the father and the other sons retained their joint status.
Headnote:
PARTITION - DIVISION OF JOINT FAMILY PROPERTY - BURDEN OF PROOF - PRESUMPTION OF JOINT STATUS - INFERENCE FROM CONDUCT OF PARTIES - EVIDENCE OF PAYMENT OF TAXES, POSSESSION AND ENJOYMENT OF PROPERTY - ABSENCE OF EVIDENCE TO COUNTER PLAINTIFF'S CASE - DISMISSAL OF APPEAL.
Fact of the Case:
The plaintiff, a younger brother, filed a suit for partition of the joint family property against his elder brother and mother. The elder brother pleaded that the father had effected a division among his three sons in 1949, when the eldest of them wanted to secede from the family. The trial court upheld the plaintiff's case that the division in 1949 brought about only the severance of the eldest son, and the father and the two younger sons lived in commensality as before and the father died as an undivided coparcener in 1951.
Finding of the Court:
The court held that there is no presumption of law governing a situation like the one in the instant case and that the plaintiff is subject to the normal rule as to burden of proof prescribed by section 101 of the Evidence Act. The court further held that the plaintiff was able to rely on the evidence as to how the parties had conducted themselves, and that on the inferences that flow out of such conduct he can rest his case; and the onus probandi is satisfied if he is able to point to clear and unmistakable inferences bearing on joint status.
Issues: 1. Whether the burden of proof lies on the plaintiff to prove that the prior partition was partial and that after the separation of the eldest son, the father and the other sons retained their joint status? 2. Whether the separation of one coparcener when it resulted in the division of the joint estate necessarily involves the definition of the shares of the others and is tantamount to a division inter se among them?
Ratio Decidendi: 1. The court held that there is no presumption of law governing a situation like the one in the instant case and that the plaintiff is subject to the normal rule as to burden of proof prescribed by section 101 of the Evidence Act. 2. The court held that the separation of one coparcener when it resulted in the division of the joint estate does not necessarily involve the definition of the shares of the others and is not tantamount to a division inter se among them.
Final Decision: The court dismissed the appeal with costs.
( 2 ) THE trial Judge upheld the case of the plaintiff that the division in the year 1949 brought about only the severance of Linga reddi, and the father and the two younger sons lived in commensality as before and the father died as an undivided coparcener in 1951.
( 3 ) THE first issue settled by the Court, therefore related to the dispute whether the father and the two younger sons remained joint after Linga Reddi got divided from the joint family. It has been strenuously urged by learned Counsel for the appellant, Mr. B. Lakshmi narayana, that the burden of proving that the earlier division was partial is on the plaintiff and that the evidence adduced by him is insufficient to establish the averment of partial division. Nor, counsel contends, does the evidence warrant an inference that the admitted division of 1949 did not embrace the entire coparcenary property. He has advanced the contention that the division of one of several coparceners, if admitted or proved, has the consequence of virtually being a division among all of them inter se. Therefore, it is argued, the person making the assertion has to make out affirmatively the partial nature of the prior division.
( 4 ) HE proceeded to cite several decisions which may now be examined. The decision of the Privy Council in Balabux ladhuram v. Rukhmabai, lays down that there is no presumption when one coparcener separates from the others that the latter remain united. The facts were that Girdhari Lall, Ladhuram and Kunyaram lived together as an undivided family and owned a shop which has been founded by their father. There was clear evidence that Kunyaram took out his share amounting to Rs. 10,000 and started a new shop of his own. Of his secession from the family, there was no dispute. It is to be remembered that the coparcenary property consisted of only the shop and the business assets. The evidence as to whether the other two brothers also got divided, was too slight to form a satisfactory decision. There being no presumption of law applicable to such a situation, their lordships of the Privy Council said: "in many cases, it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other coparceners are or would be entitled to, and in this sense the separation of one is said to be a virtual separation of all. And their Lordships think that an agreement amongst the remaining members of a joint family to remain united or to reunite must be proved like any other fact. They agree, therefore, with the Judicial Commissioner on this part of the case, and they think that his inference of a partnership between Girdhari Lall and lakdhuram and afterwards the appellant, either by express agreement or by operation of law, is the hypothesis which best reconciles all the proved facts in the case. "
( 5 ) IT will be observed that the Privy council endorsed the validity of the inferences drawn by the Judicial Commissioner that the business was continued by the brothers in partnership. This inference was held to have been properly drawn on the proved facts of the case. The principle dcducible from this decision is that there is no presumption in favour of continuous joint status an
