Case Note & Summary
The case involves a second appeal arising from a partition suit. The original plaintiff, Bhagirathibai, claimed that her father Tukaram died in or about 1960, after the Hindu Succession Act, 1956 came into force, and thus she was entitled to a share in his property. The defendant, Rajaram, contended that Tukaram died in 1955, before the Act, and therefore the plaintiff had no right. The trial court and the lower appellate court both found that the plaintiff failed to prove that Tukaram died after 1956. The High Court, while admitting the appeal, framed a substantial question of law regarding the burden of proof. However, upon hearing the matter, the court held that the finding of fact by the lower appellate court was not perverse and did not warrant interference in a second appeal. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The court framed a substantial question of law regarding the burden of proof on the plaintiff to show that Tukaram died after the Hindu Succession Act, 1956 came into force. The lower appellate court held that the plaintiff failed to discharge this burden. The High Court, in second appeal, declined to interfere with the concurrent finding of fact, as it was not shown to be perverse or based on no evidence. (Paras 1-4)
B) Hindu Law - Succession - Burden of Proof - In a suit for partition, the plaintiff claiming inheritance under the Hindu Succession Act, 1956 must prove that the deceased died after the Act came into force. The burden lies on the plaintiff to establish that the death occurred after 1956. The court held that the evidence adduced by the plaintiff was unconvincing and unsatisfactory, and thus the finding of fact was upheld. (Paras 1-4)
Issue of Consideration
Whether the finding of the District Court that the plaintiff failed to prove that Tukaram died after the advent of the Hindu Succession Act, 1956, is perverse or based on no evidence, and whether such finding can be interfered with in a second appeal.
Final Decision
The appeal is dismissed. No order as to costs.
Law Points
- Burden of proof
- Hindu Succession Act
- 1956
- Second appeal
- Substantial question of law
- Finding of fact
Case Details
2005 LawText (BOM) (01) 113
Second Appeal No.319 of 1987
Mr. V.A. Thorat, Senior Advocate for the Appellants; Mr. B.G. Vaidya for the Respondent Nos.1(B) to 1(Q), 2 to 5.
Rajaram Vithu Shinde (since deceased by heirs and L.Rs.) 1. Dnyandeo Rajaram Shinde 2. Nathuram Rajaram Shinde
(1) Bhagirathibai Kesu Jadhav (since deceased through heirs) (A) Keshav Sayaji Jadhav (B) Ravji Keshav Jadhav (C) Ankush Keshav Jadhav (D) Baban Keshav Jadhav (E) Jaysing Keshav Jadhav (F) Popat Keshav Jadhav (G) Mahipati Keshav Jadhav (2) Indubai Ankush Nipane (3) Chandrakant Gangaram Nipane (4) Kamal Govindrao Pawar (5) Gangaram Laxman Nipane
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Nature of Litigation
Second appeal against the judgment and decree of the District Court in a partition suit.
Remedy Sought
The appellant (original defendant) sought to challenge the finding of the lower appellate court that the plaintiff failed to prove that Tukaram died after the Hindu Succession Act, 1956.
Filing Reason
The appellant contended that the lower appellate court erred in holding that the burden of proof lay on the plaintiff and that the evidence was unconvincing.
Previous Decisions
The trial court and the lower appellate court both held that the plaintiff failed to prove that Tukaram died after 1956.
Issues
Whether the finding of the District Court that the plaintiff failed to prove that Tukaram died after the advent of the Hindu Succession Act, 1956, is perverse or based on no evidence?
Whether such finding can be interfered with in a second appeal?
Submissions/Arguments
The appellant argued that the lower appellate court erred in placing the burden of proof on the plaintiff and that the evidence was sufficient.
The respondent supported the findings of the lower appellate court.
Ratio Decidendi
In a second appeal, the High Court will not interfere with a finding of fact unless it is shown to be perverse or based on no evidence. The burden of proving that a person died after the Hindu Succession Act, 1956 came into force lies on the person claiming inheritance under that Act.
Judgment Excerpts
Having held that the burden of proving that Tukaram died in 1955 (before the advent of the Hindu Succession Act), lay on the deceased Plaintiff and further holding that the decree adduced by her on this issue was unconvincing and unsatisfactory, is the finding of the District Court in her favour before that Tukaram died before the advent of the aforesaid Act.
The Appellant is the unsuccessful Defendant No.1. The Respondent No.1 is the original Plaintiff.
Procedural History
The original plaintiff filed a suit for partition and separate possession. The trial court dismissed the suit. The plaintiff appealed to the District Court, which dismissed the appeal. The defendant then filed a second appeal to the High Court, which was admitted on a substantial question of law. The High Court heard the appeal and dismissed it.
Acts & Sections
- Hindu Succession Act, 1956:
