Baldev Upadhyaya vs.

Gita Bhattarai
Case: Cancellation of Deed
N.K.P. : 2049
D.N. : 4554
Hon’ble justice: Trilok Pratap Raana
Krishna Jung Rayamajhi
(Division bench)

Prepared by: Tseten dolma

Aarati aryal
Aakriti niraula
 Facts
• To make a house both the applicant and
defendant bought a land of area 1-8-0-2
of plot no. 110 from Dev kumari seni
through their common property.
• Of that land, defendant Gita Bhattarai
passed the deed of land of area 0-5-3-2
to Mahila Maharjan without taking
consent of Applicant Baldev Upadhyaya.
 Facts in issue
• According to number 10 of chapter on
transaction, applicant filed his petition
claiming that the deed shall be cancelled since
even he has half of the right over that passed
property.
• Defendant Mahila Maharjan filed his
submission prayer according to number 1 of
chapter on charity and gift which provides ‘ A
person can donate or gift a property over
which he/she has exclusive right’………
 Cont’d
• ………So claimed that Gita Bhattarai used her
right in accordance to no.1 of the chapter on
donation and gift. Thus, she does not need to
ask with any one before passing the deed.
 Relevant laws
• Section 6 (a) of 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.”
• Section 29 (a) of Evidence act, 2031.
(Burden of proof to refute the presumption
of the court)
 Cont’d
• ‘If a party to a case wishes to refute 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’.
 Ratio decidendi
1) Any property in the name of any co-partner of a
joint family is presumed by the court to be the
joint property of the family. In such a case if
liability or burden of proof to prove the fact is
given to applicant then it will be the violation of
section 6 (a) of the Evidence Act.
2) Section 29 of Evidence Act provides, ‘if a party
to a case wishes to refute 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’ and here the court has to presume the
property as joint property as per the section 6 (a)
but according to the defendant’s claim…
 Cont’d
……the burden of proving his claim (that the
property passed by Gita Bhattarai was her own
property) lies on him.
3) Any property bought in the name of any co-
partner while living in the joint family cannot
be called as private property.
4) In the absence of valid evidence, the property
in issue (though) bought from self earning
cannot be called as one’s private property.
 Legal principles

1. Presumption of the court

2. Burden of proof
3. Facts to be proved and not to be proved.
 .

Thank you for your

attention.