Bombay High Court
MOHAN VISHNU MATRE AND OTHERSversusVISHNU GOPINATH MATRE AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The trial court correctly framed the issue, and the burden of proving the ancestral nature of the property remains on the plaintiffs.
Summary
The petitioners, who are plaintiffs in a partition suit, challenged the trial court's framing of Issue No.1 which placed on them the burden of proving that the suit property is ancestral. They argued that, because the defendants claimed the property is self‑acquired, the burden should shift to the defendants to prove that claim. The court examined the provisions of Order XIV of the Code of Civil Procedure, which governs issue‑framing, and noted that in a partition suit the plaintiff must initially establish that the property is joint or ancestral. Once that is proved, the burden may shift to the defendant for a specific defence, but the trial court was not required to frame a separate issue at the pleading stage. The judge held that the trial court correctly framed the issue and did not err. Consequently, the writ petition was dismissed.
Issues considered
- Whether the trial court erred in framing Issue No.1 by placing the burden on the plaintiffs to prove the ancestral nature of the suit property.
- Whether, under Order XIV of the Code of Civil Procedure, the court must frame an issue shifting the burden to defendants when they allege the property is self‑acquired.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XIV
Subjects
- partition suit
- burden of proof
- ancestral property
- self‑acquired property
- framing of issues
- Order XIV CPC
- civil procedure
Judgment
2026:BHC-AUG:38512
(1) 21 Wp 4073 OF 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
21 WRIT PETITION NO. 4073 OF 2024
1. Mohan s/o Vishnu Matre
Age: 34 Years, Occu: Labour,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed,
At present Longaon Tq. Majalgaon Dist. Beed.
2. Yogesh s/o Vishnu Matre
Age: 31 Years, Occu: Education,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed,
At present Longaon Tq. Majalgaon Dist. Beed.
3. Sau. Sangita w/o Vishnu Matre
Age: 54 Years, Occu: Household,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed,
At present Longaon Tq. Majalgaon Dist. Beed. ….PETITIONERS
VERSUS
1. Vishnu s/o Gopinath Matre
Age: 57 Years, Occu: Agri,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed.
2. Shivaji s/o Gopinath Matre
Age: 55 Years, Occu: Agri,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed.
3. Gopinath s/o Bhau Matre
Age: 82 Years, Occu: Agri,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed.
4. Annapurnabai w/o Gopinath Matre
Age: 79 Years, Occu: Household,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed.
5. Sanjivanibai w/o Purushottamrao Dhapate
Age: 55 Years, Occu: Household,
R/o. Manjrath road, Bank Colony Majalgaon
Tq. Majalgaon, Dist. Beed.
(2) 21 Wp 4073 OF 2024
6. Ramesh s/o Babasaheb Matre
Age: 43 Years, Occu: Agri,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed.
7. Mahadev s/o Babasahabe Matre
Age: 48 Years, Occu: Agri,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed.
8. Jayshri Vishnu Matre Age: 37 Years,
Occu: Household,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed.
9. Abhishek Vishnu Matre
Age: 15 Years, Minor, Under Guardian mother
Jayshri Vishnu Matre
Age: 37 Years, Occu: Household,
R/o. Chinchwan, Tq. Wadwani, Distt. Beed.
10. Rushikesh Vishnu Matre
Age: 13 Years, Minor, Under Guardian mother
Jayshri Vishnu Matre
Age: 37 Years, Occu: Household,
R/o. Chinchwan, Tq. Wadwani, Dist. Beed. ….RESPONDENTS
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Mr. M. P. Kale, Advocate for Petitioners
Mr. A. V. Lavte, Advocate for Respondent Nos.1 to 5
Mr. S. J. Naik, Advocate for Respondent Nos.6 and 7
Mr. K. S. Solanke, Advocate for Respondent Nos.8 and 9
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CORAM : AJIT B. KADETHANKAR, J.
DATE : 24.08.2026
ORAL JUDGMENT :-
. Rule. Rule made returnable forthwith. Considering the short issue
involved in the matter, the Writ Petition is heard for final disposal at the
instance of the parties.
(3) 21 Wp 4073 OF 2024
2. Debate is on framing of proper issues u/o XIX of the Code of Civil
Procedure. Petitioners – plaintiffs in a suit for partition are aggrieved by the
issues framed by the Trial Court. The grievance is firstly about casting burden
on the plaintiffs to prove that the suit property is an ancestral property, and
secondly about not levying the burden on the defendants to prove that the suit
property is their self acquired property. The Petitioners relies upon the
pleadings of the parties in the Trial Court.
3. A suit for partition opens with first pleading of the Plaintiff(s) that the
suit property is his/her/their ancestral property. In reply, the
respondents/defendants, in their written statement dispute such contention.
Ordinarily, the defense is that already partition has taken place, or the suit
property is self-acquired property of the defendant. On the basis of the
material facts leading to controversy, the Trial Court frames issues.
4. Order XIV of the Code of Civil Procedure provides of framing of issues,
which reads thus :
1. Framing of issues.—(1) Issues arise when a material proposition
of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions arc those propositions of law or fact
which a plaintiff must allege in order to show a right to sue or a
defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by
the other shall form the subject of distinct issue.
(4) 21 Wp 4073 OF 2024
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the
plaint and the written statements if any, and 1[after examination
under rule 2 of Order X and after hearing the parties or their
pleaders], ascertain upon what material propositions of fact or of
law the parties are at variance, and shall thereupon proceed to
frame and record the issues on which the right decision of the case
appears to depend.
(6) Nothing is this rule requires the Court to frame and record
issued where the defendant at the first hearing of the suit makes no
defence.
5. In the case in hand, Petitioners/plaintiffs averred that the suit property
is ancestral property of the plaintiffs and the defendants. The defendants
disputed the contention and submitted that it is their self acquired property.
On the basis of the material controversy arising between the parties, the Trial
Court while framing issues under Order XIV of the Code of Civil Procedure
framed various issues wherein at Serial No.1, the burden was cast on the
plaintiffs to prove that the suit property is an ancestral property.
6. Mr. Mahesh P. Kale, learned Advocate for the petitioners would submit
that since the defendants have stated in the written statement that the suit
property is their self-acquired property, the Trial Court ought to have framed
such an issue. His further contention is that the Trial Court wrongly framed
issue casting burden on them to prove that the suit property is an ancestral
(5) 21 Wp 4073 OF 2024
property.
7. Mr. Kale submits that since it is a specific case of the defendants that the
suit property is their self acquired property, burden must be on the defendants
to prove the special defense. Thus, an application for modification in issues
was filed on behalf of the plaintiffs. However, the Trial Court declined to
modify the issues referring to the pleadings of the parties and Issue No.1.
Thus, Mr. Kale, learned Advocate for the petitioners prays for allowing the writ
petition.
8. The petition is strongly opposed by the defendants. Learned Advocate
for the defendants/respondents would submit that the petition is contrary to
the spirit of the Order XIV of the Code of Civil Procedure, and the settled
position of law in respect of a suit for partition. He would submit that the
defendants are bound to contend that the property is their self-acquired
property or partition has already taken place, as the case may be. That,
accordingly in the case in hand the defendants have rightly replied that the
suit property is his self acquired land. It does not thereby mean that the
burden is initially cast on the defendants to prove that the suit property is
their self-acquired property. Thus, the learned Advocate for the respondents
prays for dismissal of the writ petition.
(6) 21 Wp 4073 OF 2024
9. I have heard the learned Advocates for the parties at length. It is not in
dispute that in a suit for partition, the defendants have raised an objection to
the contentions raised by the plaintiffs about the nature of the suit property.
The very first averment in a suit for partition is that the suit property is
ancestral property/joint family property of the plaintiffs and the defendants.
On this averment alone, the suit begins. The cause of action to file the suit
arises only because the other side has disputed the plaintiffs' claim and denied
the right claimed by the plaintiffs over the suit property as if it is an ancestral
property. Obviously, such controversy is placed before the Court through the
pleadings of the defendants.
10. It is trite law that one who seeks partition of joint family property or
ancestral property has to prove that the property is ancestral property/joint
family property. However, the presumption of jointness of property
fundamentally varies corresponding to the defense raised by the defendants as
to whether it is claimed that the suit property is self acquired property or the
partition has already taken place. In the former, the principle burden is on the
plaintiffs to prove that the suit property is a joint family property or ancestral
property. Once they prove it, the onus shifts on the defendants to prove that it
is their self acquired property. In the later, once the plaintiffs primarily proves
that the suit property is joint or ancestral property, the burden heavily rests on
the defendants who claims that already partition has taken place.
(7) 21 Wp 4073 OF 2024
11. For the reasons recorded above, I do not comprehend the submission of
Mr. Kale, learned Advocate for the petitioners that Issue No.1 was wrongly
framed. The Trial Court has not committed any error while passing the
impugned order. I do not find any infirmity in the view expressed by the Trial
Court.
12. In view of this, the Writ Petition fails and is accordingly dismissed.
13. Rule stands discharged.
[AJIT B. KADETHANKAR, J.]
PRW
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