Law Web: Whether person who has taken benefit of part of will can dispute its remaining part?

It is also not disputed that the plaintiff and defendant nos.

1-3 herein filed suit for eviction of an occupant in which he claimed

that the property had been bequeathed to him by Hari Ram.

According to the defendants the plaintiff having accepted the Will

of Hariram and having taken benefit of the same, cannot turn

around and urge that the Will is not valid and that the entire

property is a joint family property. The plaintiff and defendant nos.

1-3 by accepting the bequest under the Will elected to accept the

will. It is trite law that a party cannot be permitted to approbate

and reprobate at the same time. This principle is based on the

principle of doctrine of election. In respect of Wills, this doctrine

has been held to mean that a person who takes benefit of a portion

of the Will cannot challenge the remaining portion of the Will. In

The Rajasthan State Industrial Development and Investment

Corporation and Anr. vs . Diamond and Gem Development

Corporation Ltd. and Anr 11 AIR 2013 SC 1241, this Court made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose"

or "approbate and reprobate". Where one party knowingly accepts

the benefits of a contract or conveyance or an order, it is estopped

to deny the validity or binding effect on him of such contract or

conveyance or order.

25. The doctrine of election is a facet of law of estoppel. A party

cannot blow hot and blow cold at the same time. Any party which

takes advantage of any instrument must accept all that is

mentioned in the said document. It would be apposite to refer to

the treatise 'Equity-A course of lectures' by F.W. Maitland,

Cambridge University, 1947, wherein the learned author

succinctly described principle of election in the following terms:-

“The doctrine of Election may be thus stated: That he who

accepts a benefit under a deed or will or other instrument

must adopt the whole contents of that instrument, must

conform to all its provisions and renounce all rights that

are inconsistent with it....’’

This view has been accepted to be the correct view in Karam

Kapahi and Ors. vs. Lal Chand Public Charitable Trust and

Ors(2010) 4 SCC 753. The plaintiff having elected to accept the Will of Hari Ram,by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the averments made by Hari Ram that

the property was his personal property, is incorrect.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6875 OF 2008

BHAGWAT SHARAN Vs PURUSHOTTAM

Dated:April 3, 2020

Deepak Gupta, J.

Citation: 2021(1) MHLJ 485

1. One Mangat Ram was a resident of Village Narnaul in

Rajasthan. He had four sons viz., Madhav Prashad, Lal Chand,

Ram Chand and Umrao Lal. Ram Chand was adopted by one Shri

Gauri Mal of Gwalior. Lal Chand had four sons viz., Sri Ram, Hari

Ram, Govind and Laxmi Narayan. Madhav Prashad had no issues.

Therefore, he adopted Hari Ram, the son of Lal Chand. Ram

Chand also had no issues and he adopted Shriram, son of Lal

Chand. It is the admitted case of the parties that both Ram Chand

and Lal Chand severed connections with the family and had no

connection with the property of the family. This left two branches

in the family of Mangat Ram, one being Madhav Prashad and his

descendants through his son Hari Ram, the other branch

consisted of Umrao Lal and his three sons viz., Brij Mohan,

Rameshwar and Radha Krishan. The plaintiff Bhagwat Sharan,

who filed the suit is the son of Radha Krishan and grandson of

Umrao Lal.

2. The above facts are not disputed. The parties are also ad idem

that Madhav Prashad shifted from his native village and came to

Ashok Nagar, about 70 years prior to the filing of the suit. The suit

was filed in 1988. Thus, Madhav Prashad must have shifted in or

around 1918. It is also not disputed that Madhav Prashad started

working as munshi of the then zamindar of the area and was

thereafter known as munshi Madhav Prashad. The dispute

basically starts hereinafter. The plaintiff claims that his

grandfather Umrao Lal also came to Ashok Nagar at about the

same time and started doing grain business. Thereafter, Madhav

Prashad left the work of munshi and both the brothers started grain

business in the name of “Munshi Madhav Prashad”, by setting up

a shop. The case of the plaintiff is that both Madhav Prashad and

Umrao Lal lived together and carried on the business jointly and

purchased various properties described in para 9 of the plaint. Six

properties comprise of six different houses. The properties at para

9(2) comprised of various agricultural lands in different villages.

The case of the plaintiff is that all these houses have been

constructed jointly by Madhav Prashad and Umrao Lal, and

Madhav Prashad being the elder brother was the karta and was

running the joint family in this capacity. It was further alleged in

the plaint that Madhav Prashad being the karta managed to get

some of the joint family property recorded in his own name. It was

also alleged that after the death of Madhav Prashad and Umrao

Lal, Hari Ram, adopted son of Madhav Prashad (who had died by

the time the suit was filed in 1988) was the karta of the joint Hindu

family and in this capacity some of the properties of the Joint

Hindu Family were recorded in his name.

3. It is not disputed that Madhav Prashad died some time in the

year 1935, Umrao Singh died some time in 1941-42 and Hari Ram

died in the year 1978.

4. In respect of agricultural lands it was pleaded that all these

agricultural lands were under the joint cultivation of the family

and the full accounts of the cultivation was kept by late Madhav

Prashad and Umrao Lal, and after their death by Hari Ram. After

the death of Hari Ram, his widow Rajjo Devi (Def.no.6), used to

look after cultivation on behalf of the family. It was further alleged

in the plaint that Hari Ram had transferred some of the

agricultural lands in the name of his brother-in-law, son, son-inlaw

and other relatives as benami transactions, which was obvious

from the fact that the General Power of Attorney was executed by

the beneficiaries of these transactions in favour of Hari Ram.

However, this fact was not revealed to the branch of the family who

were descendants of Umrao Lal. Basically, the allegation was that

all the properties mentioned in para 9 of the plaint were properties

of the Hindu Undivided Family (for short HUF) and, therefore, the

plaintiff sought partition of the same by metes and bounds as per

his share.

5. For the sake of convenience it would be appropriate to extract

para 18 of the plaint which reads as follows:-

“(18) That the business of the plaintiff and defendant Nos.

1 to 18 was almost joint till the year 1954. Thereafter, on

account of the loss in the business and the business coming to

a closure position almost all the people started carrying on their

separate business and the immovable properties of the joint

family remained undivided so far. Late Hari Ram sold the house

properties mentioned in para No.9(1) (c) (d) (e) (f) of the plaint

during his life time, which are liable to be reduced from there

share”

This suit was contested by some of the defendants who were either

in the line of descendants of Hari Ram or his beneficiaries.

Transfer documents were executed in their favour. It would be

pertinent to mention that none of the other heirs from the lineage

of Umrao Lal filed a written statement. In the written statement

filed by the contesting respondents the main objection taken was

that the properties mentioned in para 9 of the plaint were not

properties of the HUF and it was denied that there ever was any

such HUF.

6. The defendants denied the fact that the business being run

under the name of “Munshi Madhav Prashad” was a joint family

business. It was denied that Umrao Lal was a member of this

business or the said shop was a joint shop. With regard to all the

properties mentioned in para 9 of the plaint, it was stated that all

the houses had been purchased/constructed by Madhav Prashad

alone and that the agricultural lands were purchased by Hari Ram

from his own income.

7. In the written statement the defendants also placed reliance

on the Will of late Hari Ram and made reference to a suit filed by

the plaintiff and defendant nos.1-3 in which they had stated that a

portion of the house had been bequeathed to them by Hari Ram by

his Will. It was therefore urged that the plaintiff having elected to

accept the bequest under the Will cannot now turn around and say

that the description of the properties given by Hari Ram in the Will

showing them to be his personal properties was not correct. It was

also alleged that as admitted in the plaint itself 3 out of 6 houses

were sold by Hari Ram in his lifetime.

8. On the basis of the pleadings of the parties various issues

were framed but according to us only the following issues are

relevant which are extracted below :-

1. Whether the properties mentioned in para No.9 of the plaint

are the properties of the joint family both the sides or whether

the same are the self acquired properties as per the averments

made by the defendants?

2. Whether the plaintiff in Civil Suit No.94-A/86 filed in the

Court of Civil Judge Class-II, Ashok Nagar, has mentioned the

Will dated 6.2.1987 executed by Hari Ram as the basis of the

suit?

3. If yes, Whether the plaintiff is stopped from alleging the said

Will as null and void?

4. Whether the Will dated 6.2.1987 executed by Hari Ram in

connection with the disputed property is Null and void?

The trial court decided all these issues in favour of the plaintiff and

decreed the suit holding that all the properties were joint family

properties and that plaintiff had 2.38% share in the same. The

contesting defendants filed an appeal in the High Court of Madhya

Pradesh, and the decree of partition by the trial court was set aside.

The plaintiff approached the High Court for review. The High Court

dismissed the application for condonation of delay, the application

for review and the application under Order XLI Rule 27 of the Code

of Civil Procedure, 1908. Hence this appeal before us.

9. We have heard Shri Sushil Kumar Jain, learned senior

counsel for the appellant, Shri Harin P. Raval, learned senior

counsel for those respondents who support the appellant and Shri

Guru Krishna Kumar, Shri Vikas Singh, and Shri Anupam Lal Das,

learned senior counsel, for the contesting respondents.

10. At the outset we may note that a lot of arguments were

addressed and judgments were cited on the attributes of HUF and

the manner in which it can be constituted. In view of the facts

narrated above, in our view, a large number of these arguments

and citations need not be considered. The law is well settled that

the burden is on the person who alleges that the property is a joint

property of an HUF to prove the same. Reference in this behalf

may be made to the judgments of this Court in Bhagwan Dayal

vs. Reoti Devi AIR 1962 SC 287. Both the parties have placed reliance on the this judgment. In this case this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in

Bhagwati Prasad Sah and Ors. vs. Dulhin Rameshwari Kuer

and Ors (1951) 2 SCR 603, it held as follows:-

“…. Except in the case of reunion, the mere fact that

separated coparceners chose to live together or act jointly

for purposes of business or trade or in their dealings with

properties, would not give them the status of coparceners

under the Mitakshara law.”

The Privy Council in Appalaswami v.

Suryanarayanamurti I.L.R. 1948 Mad.440 held as follows:

"The Hindu law upon this aspect of the case is well settled.

Proof of the existence of a joint family does not lead to the

presumption that property held by any member of the

family is joint, and the burden rests upon anyone asserting

that any item of property was joint to establish the fact.

But where it is established that the family possessed some

joint property which from its nature and relative value may

have formed the nucleus from which the property in

question may have been acquired, the burden shifts to the

party alleging self-acquisition to establish affirmatively

that the property was acquired without the aid of the joint

family property”

The aforesaid view was accepted by this Court in Shrinivas

Krishnarao Kango v. Narayan Devji Kango and Ors.4 In D.S.

Lakshmaiah and Ors. v. L. Balasubramanyam and Ors.5 this

Court held as follows:

“The legal principle, therefore, is that there is no

presumption of a property being joint family property only

on account of existence of a joint Hindu family. The one

who asserts has to prove that the property is a joint family

property. If, however, the person so asserting proves that

there was nucleus with which the joint family property

could be acquired, there would be presumption of the

property being joint and the onus would shift on the

person who claims it to be self-acquired property to prove

that he purchased the property with his own funds and

not out of joint family nucleus that was available.”

Similar view was taken in Mst Rukhmabai v. Lala

Laxminarayan and Others.6 and Appasaheb Peerappa

Chamdgade v. Devendra Peerappa Chamdgade7. The law is

thus well settled that the burden lies upon the person who alleges

the existence of the Hindu Undivided Family to prove the same.

11. Normally, an HUF can only comprise of all the family

members with the head of the family being karta. Some property

4 (1955) 1 SCR 1

5 (2003) 10 SCC 310

6 (1960) 2 SCR 253

7 (2007) 1 SCC 521

has to be the nucleus for this joint family. There is cleavage of

opinion as to whether two brothers of a larger group can form a

joint family. But assuming that such a joint family could have been

formed by Madhav Prashad and Umrao Lal the burden lies heavily

on the plaintiff to prove that the two of them joined together to form

an HUF. To prove this, they will have to not only show jointness

of the property but also jointness of family and jointness of living

together.

12. From the facts stated above it is apparent that there is no

pleading that Mangat Ram and Sons constituted a HUF. There is

no allegation that this family had some property as its nucleus.

Since there is no allegation that Mangat Ram and his four sons

constituted a HUF, the fact that Lal Chand left the family to live by

himself, would not in any manner mean that there was a disruption

of the joint family status. A disruption would arise only if there

was an allegation that earlier there was a HUF.

13. It is also an admitted case of the parties that Madhav Prashad

and Umrao Lal came separately to Ashok Nagar. Madhav Prashad

initially worked as a munshi with a zamindar. Thereafter, as per

the defendants, Madhav Prashad started a business which was his

own but later his brother Umrao Lal joined in the business. It is,

however, contended that this business was not a business of a

HUF.

14. On the other hand, the case of the plaintiff is that it was

Umrao Lal who started the business and Madhav Prashad joined

him later on but since Madhav Prashad was the elder brother, the

business was started in the name of Madhav Prashad. There is no

evidence to support the claim either way. The witnesses who have

appeared were all born much later and they have not given any

evidence with regard to the joint business. The plaintiff Bhagwat

Sharan was born in the year 1951. The contesting defendants 4

and 8 are younger to him by 5 and 11 years. Therefore, the oral

testimony of these witnesses is not of any use as rightly held by the

trial court.

15. The plaintiff places great reliance on the mortgage deed by

which 5 houses were mortgaged in favour of Seth Budhmal on

01.12.1944 and 26.11.1946. It is not disputed that there were 6

houses, some single storeyed and some double storeyed in Ashok

Nagar which have been described in the plaint. Out of these

houses, one was used as dharamshala and the remaining 5 were

mortgaged on 01.12.1944 vide mortgage deed (Exh.P.28). This

mortgage deed was executed by Hari Ram, S/o Madhav Prashad,

and Brij Mohan, Rameshwar Das and Radha Krishan, S/o Umrao

Lal and Pop Chand and Babu Lal @ Deep Chand, minor sons of

Brij Mohan through their father and Nathu Lal minor S/o Hari

Ram, through his father and they are shown as proprietors of firm

M/s Madhav Prashad Agarwal. In the mortgage deed after

description of the 5 houses it is mentioned that these properties

are “owned and possessed by us”. Further it is mentioned that the

properties are free from all encumbrances and there are no other

sharers, and the mortgagees have full right to alienate the same.

The 5 houses were accordingly mortgaged with Seth Budhmal.

This was done with a view to pay off the loan of Krishna Ram Baldeo

Bank, with which the properties were already mortgaged. The

amount which they obtained by mortgaging the property was

transferred to the Bank and fresh mortgage was created in favour

of Seth Budhmal. In para 5 of the mortgage deed it was mentioned

that the mortgaged property is free from all encumbrances and, “we

are the absolute owners of the same and there is no co-parcener

and co-sharer”. This mortgage deed was signed by Hari Ram, Brij

Mohan, Rameshwar Lal, Radha Krishan as mortgagors. This

would indicate that these properties were owned by them.

16. However, there is no material on record to show that the

properties belonged to an HUF. They may have been joint

properties but merely on the basis of the recitals in the mortgage

deed they cannot be said to be a joint family property. It appears

that by another mortgage deed dated 26.11.1946, the value of the

mortgaged properties was enhanced to Rs. 45,000/-, and in

addition to the 5 houses, one oil mill at Pachhar was also

mortgaged. Seth Budhmal filed a suit (Exh.P.4) against Hari Ram,

Brij Mohan, Rameshwar Lal, Radha Krishan, Nathu Lal etc., for

realisation of the mortgage money under the said mortgage deed.

In para 6 and 8 of the plaint it was averred as follows :-

“6. That, the defendants at the time of execution of

aforesaid documents constituted a Trading Joint Hindu

Family and of which all major members personally and

minor members through their head of the branch were

represented in the execution of mortgage deeds.

8. That, minors mentioned in the documents have

now attained majority. Therefore, they have been

impleaded in person as defendants. Their liability is

limited to the extent of property of Joint Hindu Family and

personal dealing. Defendant No.1 to 3 are personally and

in the capacity of head of their branch are made in as

defendants.”

17. A written statement was filed on 09.10.1955 (Ex.P-5) on

behalf of the aforesaid Hari Ram, Brij Mohan, Rameshwar Lal,

Radha Krishan and Nathu Lal, and reply to paras 6 and 8 of the

mortgage deed, read as follows:-

“6. That as regards paragraph 6 of the plaint there is

no objection.

8. That, as regards paragraph 8 of the plaint the

reply is that the defendant No.6 is still minor. He has not

attained majority. It is not admitted that defendant No.1

to 3 are Head (KARTA) being wrong, nor they are the Head,

nor the mortgage transaction was made in such a capacity

and the plaintiff has no right to sue in such a manner.”

On the basis of the aforesaid pleadings in the earlier suit it is

submitted that Hari Ram had admitted that there was a joint

family business when this written statement was filed and,

therefore, there is proof that the business was a joint family

business and there is no material to show that this joint family

status was ever disrupted.

18. It is submitted on behalf of the contesting respondent that

since the family members of Hari Ram were residing in the

mortgaged house, by way of abundant precaution they may have

been made to sign the mortgage deed. In our view, that may not

be true because the mortgage deed clearly reflects that all the

family members including the minors were shown to be owners of

the properties by mortgaging the same. Therefore, this property

which was mortgaged in the year 1944 and then re-mortgaged in

1946 would prima facie appear to be joint property though at this

stage we are not deciding whether the property is a joint property

or the property of HUF.

19. An admission made by a party is only a piece of evidence and

not conclusive proof of what is stated therein. It is in this light

that we have to examine the admission made by Hari Ram and his

brothers while filing the written statement to the suit filed by Seth

Budhmal. In paragraph 6 the averment was that the defendants

constituted trading Joint Hindu Family. It is obvious that the

admission was with regard to a trading family and not HUF. In

view of the law cited above, it is clear that not only jointness of the

family has to be proved but burden lies upon the person alleging

existence of a joint family to prove that the property belongs to the

joint Hindu family unless there is material on record to show that

the property is the nucleus of the joint Hindu family or that it was

purchased through funds coming out of this nucleus. In our

opinion, this has not been proved in the present case. Merely

because the business is joint would not raise the presumption that

there is a Joint Hindu Family. As far as paragraph 8 is concerned

in our view there is no clear-cut admission. The allegation made

was that the minors were represented by defendant nos. 1-3, who

were head of their respective branches. In reply to this it was

stated that defendant nos.1-3 were neither the head or the karta,

nor the mortgage transaction was made in that capacity. This

admission cannot be said to be an unequivocal admission of there

being a joint family.

20. In Nagubai Ammal and Ors. vs. B. Shama Rao and Ors.8

which is the locus classicus on the subject it was held as follows:-

“An admission is not conclusive as to the truth of the

matters stated therein. It is only a piece of evidence, the

weight to be attached to which must depend on the

circumstances under which it is made. It can be shown to

be erroneous or untrue, so long as the person to whom it

was made has not acted upon it to his detriment, when it

might become conclusive by way of estoppel.”

It would be pertinent to mention that in Himani Alloys Ltd. vs.

Tata Steel Ltd.,10 it was also held that the admission should be

categorical, should be conscious and deliberate act of the party

making it. As far as the present case is concerned we do not find

any clear-cut admission with regard to the existence of an HUF.

At best, from the recitals in the mortgage deed and averments in

the written statement, all that can be said is that at the relevant

period of time the property was treated to be a joint property.

8 (1956) 1 SCR 451

9 This view has been consistently followed by this Court in a large number of cases including Bharat Singh and

Anr. vs. Bhagirathi 1966 SCR (1) 606; Uttam Singh Dugal and Co. vs. Union of India and Ors. (2000) 7 SCC 120;

Himani Alloys Ltd. vs. Tata Steel Ltd. (2011) 15 SCC 273.

10 (2011) 15 SCC 273

21. On the other hand, there are many other documents relied

upon by the defendants. Out of the 6 houses, 5 were mortgaged

and one is admittedly a dharamshala. Out of these 5 houses, 3

were sold by Hari Ram during his life time and during the life time

of the predecessors of the plaintiff, nobody objected to the sales of

the properties and in the sale deeds Hari Ram is described as the

sole owner of the property. One such sale deed is Exh.D-4 wherein

it is mentioned that the double storey house is the property of the

trading firm Madhav Prashad Agarwal and that Hari Ram is the

owner of the firm and in order to repay the loan, sold the house

to two persons. This sale deed was witnessed by Seth Budhmal.

Though it is not stated so in the sale deed it appears that the

amount of consideration must have been paid to Seth Budhmal.

This document was executed on 12.09.1967, and this read with

the other two sale deeds clearly indicate that Hari Ram claimed

that he was the sole proprietor of the business of the trading firm

Madhav Prashad Agarwal.

22. These sale deeds and the recitals were never challenged by

the plaintiff or his predecessors. This would indicate that the

jointness of the property if any had ceased because of some family

arrangement or partition which may have happened much earlier.

We have to read the sale deeds in conjunction with the averments

made in the plaint quoted hereinabove wherein the plaintiff has

stated that the business came to a closure and then almost all the

people started carrying on their separate business. Though it is

averred that the immovable properties remained the properties of

the joint family the fact that separate branches started doing

separate business is indicative of the fact that some separation, if

not, a formal partition had taken place between the parties.

23. The other important document is the Will of Hari Ram

(Exh. P-3). In this Will, Hari Ram gives details of the remaining 3

houses and mentions that these were owned by his father Madhav

Prashad and that he (Hari Ram) has been doing business in the

name of his father Munshi Madhav Prashad Agarwal. Out of the

6 houses, 3 had already been sold by Hari Ram and he has

bequeathed the remaining 3 houses to various persons. It would

be relevant to refer to the portion of the Will where Hari Ram states

that he had 3 cousins Brij Mohan, Rameshwar Lal and Radha

Krishan. Out of these, Radha Krishan died and was survived by

his widow and 3 sons and they were living in the 2nd and 3rd floor

in building No.2. Hari Ram bequeathed certain portions of the

immovable property to the widow and children of Radha Krishan.

It would be pertinent to mention that the plaintiff Bhagwat Sharan

is the son of Radha Krishan. He also bequeathed certain

properties in favour of his cousins Brij Mohan and Rameshwar Lal.

24. It is also not disputed that the plaintiff and defendant nos.