1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.732 OF 2003 Shri Suresh Ramchandra Patil .... Appellants & Ors. Vs. Smt.Bhagiratibai B. Patil & Anr..... Respondents Mr.R.S. Apte i/by Mr.A.G. Damle Advocate for the appellants. Mr.P.K. Dhakephalkar i/by Mr. Sandesh Deshpande Advocate for respondent no.1. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 5th October, 2009 P.C. 1. This Second Appeal arises out of the judgment and order dated 27th November 2002 passed by the District Court, Thane in Civil Appeal No.114 of 2002 arising out of the judgment and decree of the trial Court dated 20th March 2002. By the impugned order of the appellate court, the decree of the trial court in dismissing the partition suit is reversed. The respondents are the original plaintiffs and the appellants are the original defendants. 2. One Ladku Dundu Patil, the ancestor of the parties was the owner of several properties. He died in the year 1948 leaving behind three sons namely Babaji, Shiva and Ramchandra. Respondents are the legal heirs of Babaji being his widow and daughter. The appellants are the legal heirs of Ramchandra being his widow and children. Shiva died issueless. Respondents filed suit for partition of the ancestral properties claiming therein one half 2 share and for separate possession. They contended in the plaint that after the death of Ladku, his three sons lived jointly for about 6-7 years. In the year 1955, they separated in residence alone. They had jointly sold some of the properties for the need of the family. The consideration received under the sale transactions were distributed amongst the three brothers. Babaji was the exclusive owner of the land at Gat No.132-A, 132-G, Gat No. 96, 94, 92, 2, 17 and 378, which properties after the death of Babaji have fallen to the share of respondents. 3. The appellants in the written statement do not dispute the relationship between the parties and that the suit properties were the ancestral properties. However, according to them, partition had taken place between three brothers in the year 1955. Thereafter both Babaji and Shiva sold their respective properties and shifted elsewhere. As regards the sale of several properties by the three brothers, the appellants do not dispute the transactions, but claim that the transactions were in fact, in respect of sale of properties falling to the share of Babaji and Shiva. The signatures of the other two brothers on the agreements were only as consenting parties. In other words, they deny that the three brothers had jointly sold parts of the ancestral properties. The appellants do not dispute that the revenue records in respect of all the properties has remained unchanged since the year 1955. 3 4. On the pleadings between the parties, the trial Court framed issues, which essentially put the burden on the respondents to establish that there was no partition of joint family properties. The issue was answered in the negative and the suit was dismissed. 5. The appeal court considered the pleadings of the parties, the evidence therein and the judgment of the trial court. It noted that the appellants do not dispute the genealogy and the relationship interse the parties. The appellants in the written statement had admitted that the suit properties were ancestral properties. Once existence of the joint family is admitted, there is presumption of jointness of the family and if any family member claims severance of the joint family and partition of joint family properties, entire burden of proving the same lies upon that party. The appellate court observed that the manner of the trial Court in framing the negative issue casting burden of proving that partition had not taken place on the respondents was not correct. If further noted that though the appellants at paragraph 11 of the written statement had contended that partition was effected in the year 1955, the written statement was devoid of the necessary particulars of partition. The details like the date of partition, the manner in which the partition took place, the persons in the presence of whom the same had taken place, the distribution of the lands and the house properties between the three brothers are completely missing from the written statement. After showing latitude towards the 4 defect in drafting, the learned appellate court observed that there is also no evidence of partition. The evidence available in fact indicates otherwise. The evidence shows that the names of all the parties appear in the revenue records as owners and possessors of the properties. Had partition taken place in the year 1955 as alleged by the appellants, the necessary applications for change in the revenue records would have been made and the change effected. As regards the joint transactions of sale by the three brothers, in respect of some of the ancestral properties, there is nothing to indicate that the sale was actually by only one of the brothers and the other brothers had put their signatures as consenting parties. In fact all the documents describe, the three brothers i.e. Babaji, Shiva and Ramchandra as the joint vendors of the property, described as ancestral property. As regards the separate residence of the three brothers, which is the admitted fact, the learned Judge has observed that mere separate residence cannot be equated with partition. Lastly the learned appellate Judge considered sale of two of the lands by the respondents and held that even if the contention of the appellants that the property sold was not individual property of Babaji is to be accepted, there is no bar for the co-owner and co-sharer to alienate his undivided share in the property. 6. No fault can be found with any of the observations of the appellate court. There is no dispute as regards the relationship 5 between the parties. There is also no dispute that the suit properties were ancestral properties. In view of admission of existence of the joint family and the joint family properties, legal presumption arises that the joint family continued until it is established that the same was severed. The appellants have made a bald averment in the written statement that the joint family was severed in the year 1955, when the brothers separated in residence. However, no particulars of partition are pleaded in the written statement. During the course of the evidence, the appellants sought to claim that the partition was oral partition. They examined couple of witnesses to establish oral partition. However, in the absence of pleadings of particulars of partition, there could be no evidence to establish the same. The evidence produced by the appellants also falls much short of satisfaction. The witnesses have not been able to state as to when and where had the partition taken place. One of the witnesses have merely given the names of persons in whose presence the partition had taken place. There is no evidence as regards the actual distribution of the properties by giving description of the properties going to the share of each of the brothers. In these circumstances, it is impossible to hold that partition of the joint family and their properties are taken place at any point of time. The trial Court was patently wrong in framing the negative issue putting burden upon the respondents of establishing that no partition of the joint family and the property had taken place. Having regard to the 6 circumstances, it is the opinion of this court that no substantial question of law arises for consideration in the Second Appeal. Hence, the Second Appeal is dismissed in limine. 7. In view of the dismissal of the Second Appeal, the Civil Appeal No.1071 of 2003 does not survive, the same is accordingly disposed off. (SMT.R.P. SONDURBALDOTA,J)