Parties must prove their title to property in partition suits; mere denials without evidence are insufficient.

Sathish Ninan, J.

The suit for partition was dismissed by the trial court. The plaintiff is in appeal.

2. The plaintiff is the mother and the defendant is the wife of one late Renjith. He died on 22.02.2017. The plaintiff and the defendant are the only legal heirs, no issues having been born in the wedlock. According to the plaintiff, the properties sought to be partitioned belonged to late Renjith. The properties are described in schedule ‘A’ to ‘E’ of the plaint. Plaint ‘A’ and ‘B’ schedule are immovable properties. Schedule ‘C’ consists of a scooter, the contents of a safe deposit locker, and deposits in Banks and Kerala State Financial Corporation (KSFE). Schedule ‘D’

is the amounts covered under various insurance policies and schedule ‘E’ is the provident fund amount. The plaintiff and the defendant are entitled to 1/2 shares each, is the claim.

3. Though the defendant filed a written statement, denying the plaint claim, she remained ex parte during the trial.

4. The trial court dismissed the suit on the failure of the plaintiff to adduce evidence to prove the title of late Renjith.

5. We have heard Shri.B.J. Bhaskar, the learned counsel for the appellant and Shri.T.K. Sandeep, the learned counsel for the respondent.

6. Shri.B.J. Bhaskar, the learned counsel for the appellant, argued that the trial court has overlooked the fact that admitted facts need not be proved. The claim for partition was sought to be challenged by the defendant, claiming that the immovable properties were purchased utilising her funds. Therefore, it was for the defendant to prove her exclusive title over the property. In the absence of any evidence on the part of the defendant to establish her independent title, the suit ought to have been decreed, it is argued.

7. In the written statement filed by the defendant, at paragraph 3, it is contended thus:

“It is not correct to say that the entire properties described in the schedules to the plaint belonged to the late husband of the defendant. It is submitted that the plaintiff has wrongly included items of properties in the schedule to the plaint that belong to the defendant and are not liable for partition.”

The defendant denied the claim that the entire scheduled properties belonged to late Renjith. At paragraph 4 of the written statement, the defendant has admitted that the property described in schedule A to the plaint is liable to be partitioned. The partibility of the schedule B property is denied. With regard to two items of properties described in schedule B, it is claimed that they were purchased utilising the money of the defendant. The defendant has not admitted that the property stands in the name of late Renjith. In the background of such contention, it is for the plaintiff to prove that the property belonged to late Renjith and is available for partition. In the absence of any evidence that the B schedule properties stand in the name of late Renjith the mere failure of the defendant to adduce evidence to prove her case is not of any consequence. As noticed earlier, there is no admission by the defendant that the said property stands in the name of late Renjith.

8. While Section 58 of the Indian Evidence Act provides that admitted facts need not be proved, the proviso thereto says that the Court may in its discretion require even the admitted facts be proved independent of such admission. Similarly, though Order VIII Rule 5 of the Code of Civil Procedure provides that factual allegations in the plaint if not specifically denied, shall be deemed to be admitted, the proviso thereto empowers the Court to require any fact so admitted, to be proved by other evidence. In C. N.

Vijayan v. C. T. Rajeswari [2002 Supreme (Ker) 49 : 20