Evidence Law: Baldev Upadhyaya v. Gita Bhattarai & others, NKP 2049, No.6, DN: 4554
Case: Presumption of joint property and Burden of Proof
Plaintiff: Baldev Upadhyaya
Defendant: Gita Bhandari
Decision Number: 4554
The case is related with Presumption of joint property and Burden of proof.
Fact of the case:
The plaintiff and defendant are married to each other; they are not separated and are living together. They bought land from Dev Kumari Gurung Seni in Lalitpur Municipality Ward No. (Ga), Plot No. 358 of land ropanis 1-8-0-2 in Rs. 40,000 in the name of defendant Geeta Bhandari.
Among the land they bought, the defendant gifted the land of area 0-5-2-2 to Mahila Maharjan without the consent of the plaintiff. The plaintiff so filed the case against the defendant to void the registration letter of the gifted land.
The district court, zonal court, and central regional court gave the verdict against the plaintiff, which was inverted by the Supreme Court.
Lalitpur District Court:
Defendant does not need to take the permission of the plaintiff in selling, disposing of, or gifting the property (land) that is self-earned by any individual. The evidence of the plaintiff doesn’t prove the registration void.
Bagmati Zonal Court:
Here is no proof to prove that the property is not her sole property, or we can say that there is no evidence to prove that the property is joint property of the plaintiff and defendant.
Hence, there is no question over the gifted land and its registration to void.
Central Regional Court:
It supported the decision of the district and zonal courts; hence, it did not accept the appeal of the plaintiff.
Supreme Court:
According to sec. 6(a) of the Evidence Act, 2031, “The property, in the name of any co-partner of a joint family, shall be presumed by the court that such property is a joint property.” And sec. 29 stated, “If a party to a case wishes to refuse the presumption made by the court as to any fact pursuant to this act, the burden of proving such fact shall lie on such party.”
Plaintiff and defendant are not divorced, nor is there the partition of property between them. There is no evidence to prove that the property is self-earned property of the defendant.
Hence, the property cannot be gifted without the concern, and thus the registration of the deed is declared void, and the plaintiff also has his right over that land is declared.
Legal principle Established:
1. Presumption of Court: the Court presumes the property bought by a co-partner in a joint family is regarded as joint property. (6)
2. Burden of Proof: Anyone who wants to refute the presumption of the court, he/she must prove it. Sec. (29).
