1 WP 6202.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6202 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. D.L.Agrawal, Advocate for the Petitioner. Mr. K.B.Choudhari, Addl.Govt. Pleader for State. ............................... CORAM :S.V. GANGAPURWALA, J. DATE :24/08/2011 PER COURT : 1. The present petitioner is the original plaintiff, who had filed Suit for partition and separate possession. The defendants resisted the said Suit by filing Written Statement. In view of the pleadings of the parties, the Court has framed the issues. Some of the issues cast burden on the plaintiff and some of the issues cast burden on the defendants. The plaintiff filed an application [ Exh. 100 ] seeking direction that the defendants should lead evidence first. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 2. Mr. D.L.Agrawal, the learned counsel for the Petitioner submits that Section 102 of the Indian Evidence 2 WP 6202.2011 Act has not been considered by the Court. When there is joint family property, then in such circumstances, there is presumption that the property in the name of an individual is the property of joint family and the burden is upon the defendant to prove that it is his self-acquired property. In such circumstances, the burden lay upon the defendants to prove the said fact. As such, it was incumbent upon the defendants to adduce evidence first. The trial Court has committed an error in this regard. The learned counsel relies on the Judgment of the Division Bench of the Madhya Pradesh High Court in the case of Smt. Ramkunwarbai V/s Ranibahu and others reported in AIR 1985 Madhya Pradesh – 73 to contend that a member claiming the property as a separate property, burden lies upon him to establish the claim. According to the learned counsel, even as per the principles of Hindu Law when the joint family exists and if any member claims to be the owner of separate property, then burden will lie upon him to prove that the property being the joint property. 3. I have gone through the issues. Some of the issues cast burden on the plaintiff and Some of the issues cast burden on the defendants. When there are several issues, the burden of which lies on the plaintiff as well as defendant, then as per Order XVIII Rule 3 of the Code of Civil Procedure [ For short, ‘ the Code ’ ], the plaintiff has to lead evidence first reserving his right of rebuttal in respect of those issues of which the burden lies upon the 3 WP 6202.2011 defendant. The arguments that if there is joint family, there is presumption of the property standing in the name of an individual to be the joint family property, is not in consonance with law. There is presumption of the family being joint, but there is no presumption that the property in the name of an individual is a joint family property. The Apex Court in the case of Mudigaoda Gowdappa Sankh and others V/s Ramchandra Revgowda Sankh ( dead ) by his legal representatives and another reported in AIR 1969 SUPREME COURT – 1076 has held that, “ There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property ”. It is only if the nucleus of the joint family property is either admitted or proved, then only any acquisition made by the member of the joint family is presumed to be the joint family property. As such, unless and until the plaintiff proves the nucleus i.e. the existence of the ancestral property and the fact that the said ancestral property was yielding income, then only the burden will shift upon the defendant to prove that the property acquired was his self acquired property, till then the presumption would be that the person in whose name the property stands, is the owner. 4 WP 6202.2011 4. In light of the above, when there are several issues and as per the mandate of Order XVIII Rule 3 of the Code, the plaintiff will have to lead his evidence first. 5. The Writ Petition is accordingly dismissed. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 6207.2011