BHAGWAT SHARAN (DEAD THR. LRS. versus PURUSHOTTAM & ORS. on 3 April 2020

BHAGWAT SHARAN (DEAD THR. LRS.)

v.

PURUSHOTTAM & ORS.

(Civil Appeal No. 6875 of 2008)

APRIL 03, 2020

[L. NAGESWARA RAO AND DEEPAK GUPTA, JJ.]

Hindu Law – Property of Hindu Undivided Family (HUF) –Burden to prove – Person had four sons – 2 sons severed and hadno connection with property of the family – Two branches left in thefamily – Suit filed by descendant of one of the son for partition ofplaint properties claiming them to be of HUF – Decreed by trialcourt – Set aside by High Court – On appeal, held: Not only jointnessof the family has to be proved but also that the property belongs tothe joint Hindu family – Merely because the business is joint wouldnot raise the presumption that there is a Joint Hindu Family – Burdenis on the person alleging that the property is a joint property of an–HUF to prove the same Plaintiff failed to prove that there is anHUF – Doctrines.

Evidence – Admission – Held: An admission made by a partyis only a piece of evidence and not conclusive proof of what isstated therein.

Estoppel – Doctrine of election – Discussed.

Dismissing the appeals, the Court

HELD: 1.1 The burden is on the person alleging that theproperty is a joint property of an HUF to prove the same. Normally,an HUF can only comprise of all the family members with thehead of the family being karta. Some property has to be thenucleus for this joint family. There is no pleading that ‘MR’ andSons (‘MP’, ‘LC’, ‘RC’ and ‘UL’) constituted a HUF. There isno allegation that this family had some property as its nucleus. Itis the admitted case of the parties that both ‘RC’ and ‘LC’ severedconnections with the family and had no connection with theproperty of the family. There is cleavage of opinion as to whethertwo brothers of a larger group can form a joint family. Butassuming that such a joint family could have been formed by ‘MP’

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Aand ‘UL’, the burden lies heavily on the plaintiff to prove that thetwo of them joined together to form an HUF. To prove this, theywill have to not only show jointness of the property but alsojointness of family and jointness of living together. Since there isno allegation that ‘MR’ and his four sons constituted a HUF, thefact that ‘LC’ left the family to live by himself, would not in anyBmanner mean that there was a disruption of the joint family status.A disruption would arise only if there was an allegation that earlierthere was a HUF. [Paras 1, 10-12][586-H; 588-D-G]

1.2 The plaintiff is the grandson of ‘UL’. The parties are adidem that ‘MP’ shifted from his native village and came to AshokCNagar, about 70 years prior to the filing of the suit. It is also anadmitted case of the parties that ‘MP’ and ‘UL’ came separatelyto Ashok Nagar. ‘MP’ initially worked as a munshi with a zamindar.Thereafter, as per the defendants, ‘MP’ started a business whichwas his own but later his brother ‘UL’ joined in the business. It Dis, however, contended that this business was not a business of aHUF. On the other hand, the case of the plaintiff is that it was‘UL’ who started the business and ‘MP’ joined him later on butsince ‘MP’ was the elder brother, the business was started in thename of ‘MP’. There is no evidence to support the claim eitherway. The plaintiff places great reliance on the mortgage deed byEwhich 5 houses were mortgaged on 01.12.1944 and 26.11.1946.It is not disputed that there were 6 houses, some single storeyedand some double storeyed in Ashok Nagar which have beendescribed in the plaint. There is no material on record to showthat the properties belonged to an HUF. They may have beenFjoint properties but merely on the basis of the recitals in themortgage deed they cannot be said to be a joint family property.[Paras 2, 13-16][583-H; 588-G; 590-A-B]

2. An admission made by a party is only a piece of evidenceand not conclusive proof of what is stated therein. Not onlyGjointness of the family has to be proved but burden lies upon theperson alleging existence of a joint family to prove that theproperty belongs to the joint Hindu family unless there is materialon record to show that the property is the nucleus of the jointHindu family or that it was purchased through funds coming outof this nucleus. This has not been proved in the present case.H

Merely because the business is joint would not raise thepresumption that there is a Joint Hindu Family. There is no clear-cut admission with regard to the existence of an HUF. At best,from the recitals in the mortgage deed and averments in thewritten statement, all that can be said is that at the relevant periodof time the property was treated to be a joint property. [Para 19,20][591-C-E; 592-B-C]

Nagubai Ammal and Ors. v. B. Shama Rao and Ors.[1956] 1 SCR 451; Himani Alloys Ltd. v. Tata Steel Ltd.(2011) 15 SCC 273 : [2011] 7 SCR 60 – relied on.

3. Out of the 6 houses, 5 were mortgaged and one isadmittedly a dharamshala. Out of these 5 houses, 3 were sold by‘HR’ (son of ‘MP’) during his life time and during the life time ofthe predecessors of the plaintiff, nobody objected to the sales ofthe properties. Sale deeds and the recitals were never challengedby the plaintiff or his predecessors. This would indicate that thejointness of the property if any had ceased because of some familyarrangement or partition which may have happened much earlier.The sale deeds will have to be read in conjunction with theaverments made in the plaint wherein the plaintiff stated that thebusiness came to a closure and then almost all the people startedcarrying on their separate business. Though it is averred thatthe immovable properties remained the properties of the jointfamily the fact that separate branches started doing separatebusiness is indicative of the fact that some separation, if not, aformal partition had taken place between the parties. The otherimportant document is the Will of ‘HR’ (Exh. P-3). A party cannotbe permitted to approbate and reprobate at the same time. Thisprinciple is based on the principle of doctrine of election. Inrespect of Wills, this doctrine means that a person who takesbenefit of a portion of the Will cannot challenge the remainingportion of the Will. The doctrine of election is a facet of law ofestoppel. Any party which takes advantage of any instrument mustaccept all that is mentioned in the said document. The plaintiffhaving elected to accept the Will of ‘HR’, by filing a suit foreviction of the tenant by claiming that the property had beenbequeathed to him by ‘HR’, cannot now turn around and say thatthe averments made by ‘HR’ that the property was his personalproperty, is incorrect. [Paras 21-25][592-C-D, F-G; 593-A-B, G;594-A, B, D]

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AThe Rajasthan State Industrial Development andInvestment Corporation and Anr. v. Diamond and GemDevelopment Corporation Ltd. and Anr AIR 2013 SC1241 : [2013] 4 SCR 331; Karam Kapahi and Ors. v.Lal Chand Public Charitable Trust and Ors. (2010) 4SCC 753 : [2010] 4 SCR 422; Bhagwan Dayal v. ReotiBDevi AIR 1962 SC 287; D.S. Lakshmaiah and Ors. v.L. Balasubramanyam and Ors. (2003) 10 SCC 310 :[2003] 3 Suppl. SCR 13; Mst Rukhmabai v. LalaLaxminarayan and Others. [1960] 2 SCR 253;Appasaheb Peerappa Chamdgade v. DevendraCPeerappa Chamdgade (2007) 1 SCC 521; – relied on.Bhagwati Prasad Sah and Ors. v. Dulhin RameshwariKuer and Ors. [1951] 2 SCR 603; Shrinivas KrishnaraoKango v. Narayan Devji Kango and Ors. [1955] 1 SCR1– referred to.

DAppalaswami v. Suryanarayanamurti I.L.R. 1948Mad.440– referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6875of 2008.

From the Judgment and Order dated 05.05.2004 of the High Courtof Madhya Pradesh, Bench at Gwalior in M.C.C. No 26 of 2003.

With

C.A. Nos. 6876-6877 of 2008.

Harin P. Raval, Sushil Kumar Jain, Vikas Singh, Guru KrishanKumar, Anupam Lal Das, Sr. Advs., Nipun Saxena, Ms. Serena Sharma,Ms. Sukanya Singh, Kartikey Kanojiya, Siddharth H. Raval, VinodDahiya, B.K.Satija, Puneet Jain, B.K. Agarwal, Ms. Christi Jain, HarshJain, Ms. Ankita Gupta, Abhinay Deshwal, Ms. Pratibha Jain, PramodSharma, Ms. Deepika Kalia, Sumit Kumar Sharma, Vishal Lashkari,Niraj Sharma, Ajay Aggarwal, Ms. Mallika Joshi, Saurabh Kumar, S.R.Joshi, Arindam Ghose, Vikrant Singh Bais, Yash Pal Dhingra, S. K. Verma,Arjun Garg, Buddy A.Ranganadhan, Pravin Bahadur, Amit Agarwal,Ms. Manjeet Kirpal, Suhaas Ratna Joshi, Advs. for the appearing parties.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. One Mangat Ram was a resident of Village Narnaul inRajasthan. He had four sons viz., Madhav Prashad, Lal Chand, RamChand and Umrao Lal. Ram Chand was adopted by one Shri Gauri Malof Gwalior. Lal Chand had four sons viz., Sri Ram, Hari Ram, Govindand Laxmi Narayan. Madhav Prashad had no issues. Therefore, headopted Hari Ram, the son of Lal Chand. Ram Chand also had no issuesand he adopted Shriram, son of Lal Chand. It is the admitted case of theparties that both Ram Chand and Lal Chand severed connections withthe family and had no connection with the property of the family. Thisleft two branches in the family of Mangat Ram, one being MadhavPrashad and his descendants through his son Hari Ram, the other branchconsisted of Umrao Lal and his three sons viz., Brij Mohan, Rameshwarand Radha Krishan. The plaintiff Bhagwat Sharan, who filed the suit isthe son of Radha Krishan and grandson of Umrao Lal.

2. The above facts are not disputed. The parties are also ad idemthat Madhav Prashad shifted from his native village and came to AshokNagar, about 70 years prior to the filing of the suit. The suit was filed in A

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A1988. Thus, Madhav Prashad must have shifted in or around 1918. It isalso not disputed that Madhav Prashad started working as munshi ofthe then zamindar of the area and was thereafter known as munshiMadhav Prashad. The dispute basically starts hereinafter. The plaintiffclaims that his grandfather Umrao Lal also came to Ashok Nagar atabout the same time and started doing grain business. Thereafter, MadhavBPrashad left the work of munshi and both the brothers started grainbusiness in the name of “Munshi Madhav Prashad”, by setting up ashop. The case of the plaintiff is that both Madhav Prashad and UmraoLal lived together and carried on the business jointly and purchased variousproperties described in para 9 of the plaint. Six properties comprise ofCsix different houses. The properties at para 9(2) comprised of variousagricultural lands in different villages. The case of the plaintiff is that allthese houses have been constructed jointly by Madhav Prashad andUmrao Lal, and Madhav Prashad being the elder brother was the kartaand was running the joint family in this capacity. It was further alleged inthe plaint that Madhav Prashad being the karta managed to get some ofDthe joint family property recorded in his own name. It was also allegedthat after the death of Madhav Prashad and Umrao Lal, Hari Ram,adopted son of Madhav Prashad (who had died by the time the suit wasfiled in 1988) was the karta of the joint Hindu family and in this capacitysome of the properties of the Joint Hindu Family were recorded in hisEname.

3. It is not disputed that Madhav Prashad died some time in theyear 1935, Umrao Singh died some time in 1941-42 and Hari Ram diedin the year 1978.4. In respect of agricultural lands it was pleaded that all theseFagricultural lands were under the joint cultivation of the family and thefull accounts of the cultivation was kept by late Madhav Prashad andUmrao Lal, and after their death by Hari Ram. After the death of HariRam, his widow Rajjo Devi (Def.no.6), used to look after cultivation onbehalf of the family. It was further alleged in the plaint that Hari RamGhad transferred some of the agricultural lands in the name of his brother-in-law, son, son-in-law and other relatives as benami transactions, whichwas obvious from the fact that the General Power of Attorney wasexecuted by the beneficiaries of these transactions in favour of HariRam. However, this fact was not revealed to the branch of the familywho were descendants of Umrao Lal. Basically, the allegation was thatH

BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM[DEEPAK GUPTA, J.]

all the properties mentioned in para 9 of the plaint were properties of theHindu Undivided Family (for short HUF) and, therefore, the plaintiffsought partition of the same by metes and bounds as per his share.

5. For the sake of convenience it would be appropriate to extractpara 18 of the plaint which reads as follows:- “(18) That the business of the plaintiff and defendant Nos. 1 to 18was almost joint till the year 1954. Thereafter, on account of theloss in the business and the business coming to a closure positionalmost all the people started carrying on their separate businessand the immovable properties of the joint family remained undividedso far. Late Hari Ram sold the house properties mentioned inpara No.9(1) (c) (d) (e) (f) of the plaint during his life time, whichare liable to be reduced from there share”

This suit was contested by some of the defendants who wereeither in the line of descendants of Hari Ram or his beneficiaries. Transferdocuments were executed in their favour. It would be pertinent to mentionthat none of the other heirs from the lineage of Umrao Lal filed a writtenstatement. In the written statement filed by the contesting respondentsthe main objection taken was that the properties mentioned in para 9 ofthe plaint were not properties of the HUF and it was denied that thereever was any such HUF.

6. The defendants denied the fact that the business being rununder 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 saidshop was a joint shop. With regard to all the properties mentioned inpara 9 of the plaint, it was stated that all the houses had been purchased/constructed by Madhav Prashad alone and that the agricultural landswere purchased by Hari Ram from his own income.

7. In the written statement the defendants also placed reliance onthe Will of late Hari Ram and made reference to a suit filed by theplaintiff and defendant nos.1-3 in which they had stated that a portion ofthe house had been bequeathed to them by Hari Ram by his Will. It wastherefore urged that the plaintiff having elected to accept the bequestunder the Will cannot now turn around and say that the description ofthe properties given by Hari Ram in the Will showing them to be hispersonal properties was not correct. It was also alleged that as admittedin the plaint itself 3 out of 6 houses were sold by Hari Ram in his lifetime.

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A8. On the basis of the pleadings of the parties various issues wereframed but according to us only the following issues are relevant whichare extracted below :-

1. Whether the properties mentioned in para No.9 of the plaintare the properties of the joint family both the sides or whether theBsame are the self acquired properties as per the averments madeby the defendants?

2. Whether the plaintiff in Civil Suit No.94-A/86 filed in the Courtof Civil Judge Class-II, Ashok Nagar, has mentioned the Will dated6.2.1987 executed by Hari Ram as the basis of the suit?

C3. If yes, Whether the plaintiff is stopped from alleging the saidWill as null and void?

4. Whether the Will dated 6.2.1987 executed by Hari Ram inconnection with the disputed property is Null and void?

DThe trial court decided all these issues in favour of the plaintiffand decreed the suit holding that all the properties were joint familyproperties and that plaintiff had 2.38% share in the same. The contestingdefendants filed an appeal in the High Court of Madhya Pradesh, andthe decree of partition by the trial court was set aside. The plaintiffapproached the High Court for review. The High Court dismissed theEapplication for condonation of delay, the application for review and theapplication 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 counselfor the appellant, Shri Harin P. Raval, learned senior counsel for thoseFrespondents who support the appellant and Shri Guru Krishna Kumar,Shri Vikas Singh, and Shri Anupam Lal Das, learned senior counsel, forthe contesting respondents.

10. At the outset we may note that a lot of arguments wereaddressed and judgments were cited on the attributes of HUF and theGmanner in which it can be constituted. In view of the facts narratedabove, in our view, a large number of these arguments and citationsneed not be considered. The law is well settled that the burden is on theperson who alleges that the property is a joint property of an HUF toprove the same. Reference in this behalf may be made to the judgmentsH

of this Court in Bhagwan Dayal vs. Reoti Devi[1]. Both the parties haveplaced reliance on the this judgment. In this case this Court held that thegeneral principle is that a Hindu family is presumed to be joint unless thecontrary is proved. It was further held that where one of the coparcenersseparated himself from other members of the joint family there was nopresumption that the rest of coparceners continued to constitute a jointfamily. However, it was also held that at the same time there is nopresumption that because one member of the family has separated, therest of the family is no longer a joint family. However, it is important tonote that this Court in Bhagwati Prasad Sah and Ors.vs. DulhinRameshwari Kuer and Ors.[2], it held as follows:- “…. Except in the case of reunion, the mere fact that separatedcoparceners chose to live together or act jointly for purposes ofbusiness or trade or in their dealings with properties, would notgive them the status of coparceners under the Mitakshara law.”

The Privy Council in Appalaswami v. Suryanarayanamurti[3]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 thepresumption that property held by any member of the family isjoint, and the burden rests upon anyone asserting that any item ofproperty was joint to establish the fact. But where it is establishedthat the family possessed some joint property which from its natureand relative value may have formed the nucleus from which theproperty in question may have been acquired, the burden shifts tothe party alleging self-acquisition to establish affirmatively thatthe property was acquired without the aid of the joint familyproperty.”

The aforesaid view was accepted by this Court in ShrinivasKrishnarao Kango v. Narayan Devji Kango and Ors.[4 ]In D.S.Lakshmaiah and Ors. v. L. Balasubramanyam and Ors.[5 ]this Courtheld as follows:

1 AIR 1962 SC 2872 (1951) 2 SCR 6033 I.L.R. 1948 Mad.4404 (1955) 1 SCR 15 (2003) 10 SCC 310

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A“The legal principle, therefore, is that there is no presumption of aproperty being joint family property only on account of existenceof a joint Hindu family. The one who asserts has to prove that theproperty is a joint family property. If, however, the person soasserting proves that there was nucleus with which the joint familyproperty could be acquired, there would be presumption of theBproperty being joint and the onus would shift on the person whoclaims it to be self-acquired property to prove that he purchasedthe property with his own funds and not out of joint family nucleusthat was available.”

Similar view was taken in Mst Rukhmabai v. LalaCLaxminarayan and Others.[6 ]and Appasaheb Peerappa Chamdgadev. Devendra Peerappa Chamdgade[7]. The law is thus well settled thatthe burden lies upon the person who alleges the existence of the HinduUndivided Family to prove the same.

11. Normally, an HUF can only comprise of all the family membersDwith the head of the family being karta. Some property has to be thenucleus for this joint family. There is cleavage of opinion as to whethertwo brothers of a larger group can form a joint family. But assuming thatsuch a joint family could have been formed by Madhav Prashad andUmrao Lal the burden lies heavily on the plaintiff to prove that the twoEof them joined together to form an HUF. To prove this, they will have tonot only show jointness of the property but also jointness of family andjointness of living together.

12. From the facts stated above it is apparent that there is nopleading that Mangat Ram and Sons constituted a HUF. There is noFallegation that this family had some property as its nucleus. Since thereis 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 anymanner mean that there was a disruption of the joint family status. Adisruption would arise only if there was an allegation that earlier therewas a HUF.G13. It is also an admitted case of the parties that Madhav Prashadand Umrao Lal came separately to Ashok Nagar. Madhav Prashad initiallyworked as a munshi with a zamindar. Thereafter, as per the defendants, 6 (1960) 2 SCR 253H7 (2007) 1 SCC 521

Madhav Prashad started a business which was his own but later hisbrother Umrao Lal joined in the business. It is, however, contended thatthis business was not a business of a HUF.

14. On the other hand, the case of the plaintiff is that it was UmraoLal who started the business and Madhav Prashad joined him later onbut since Madhav Prashad was the elder brother, the business was startedin the name of Madhav Prashad. There is no evidence to support theclaim either way. The witnesses who have appeared were all born muchlater and they have not given any evidence with regard to the jointbusiness. The plaintiff Bhagwat Sharan was born in the year 1951. Thecontesting 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 asrightly held by the trial court.

15. The plaintiff places great reliance on the mortgage deed bywhich 5 houses were mortgaged in favour of Seth Budhmal on 01.12.1944and 26.11.1946. It is not disputed that there were 6 houses, some singlestoreyed and some double storeyed in Ashok Nagar which have beendescribed in the plaint. Out of these houses, one was used asdharamshala and the remaining 5 were mortgaged on 01.12.1944 videmortgage deed (Exh.P.28). This mortgage deed was executed by HariRam, S/o Madhav Prashad, and Brij Mohan, Rameshwar Das and RadhaKrishan, 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/oHari Ram, through his father and they are shown as proprietors of firmM/s Madhav Prashad Agarwal. In the mortgage deed after descriptionof the 5 houses it is mentioned that these properties are “owned andpossessed by us”. Further it is mentioned that the properties are freefrom all encumbrances and there are no other sharers, and the mortgageeshave full right to alienate the same. The 5 houses were accordinglymortgaged with Seth Budhmal. This was done with a view to pay off theloan of Krishna Ram Baldeo Bank, with which the properties werealready mortgaged. The amount which they obtained by mortgaging theproperty was transferred to the Bank and fresh mortgage was createdin favour of Seth Budhmal. In para 5 of the mortgage deed it wasmentioned that the mortgaged property is free from all encumbrancesand, “we are the absolute owners of the same and there is no co-parcenerand co-sharer”. This mortgage deed was signed by Hari Ram, Brij Mohan,Rameshwar Lal, Radha Krishan as mortgagors. This would indicatethat these properties were owned by them.

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A16. However, there is no material on record to show that theproperties belonged to an HUF. They may have been joint properties butmerely on the basis of the recitals in the mortgage deed they cannot besaid to be a joint family property. It appears that by another mortgagedeed dated 26.11.1946, the value of the mortgaged properties wasenhanced to Rs. 45,000/-, and in addition to the 5 houses, one oil mill atBPachhar was also mortgaged. Seth Budhmal filed a suit (Exh.P.4) againstHari Ram, Brij Mohan, Rameshwar Lal, Radha Krishan, Nathu Lal etc.,for realisation of the mortgage money under the said mortgage deed. Inpara 6 and 8 of the plaint it was averred as follows :- “6. That, the defendants at the time of execution of aforesaidCdocuments constituted a Trading Joint Hindu Family and of whichall major members personally and minor members through theirhead of the branch were represented in the execution of mortgagedeeds.

8. That, minors mentioned in the documents have now attainedDmajority. Therefore, they have been impleaded in person asdefendants. Their liability is limited to the extent of property ofJoint Hindu Family and personal dealing. Defendant No.1 to 3 arepersonally and in the capacity of head of their branch are made inas defendants.”E17. A written statement was filed on 09.10.1955 (Ex.P-5) on behalfof the aforesaid Hari Ram, Brij Mohan, Rameshwar Lal, Radha Krishanand Nathu Lal, and reply to paras 6 and 8 of the mortgage deed, read asfollows:-“6. That as regards paragraph 6 of the plaint there is no objection.F8. That, as regards paragraph 8 of the plaint the reply is that thedefendant No.6 is still minor. He has not attained majority. It isnot admitted that defendant No.1 to 3 are Head (KARTA) beingwrong, nor they are the Head, nor the mortgage transaction wasmade in such a capacity and the plaintiff has no right to sue inGsuch a manner.”

On the basis of the aforesaid pleadings in the earlier suit it issubmitted that Hari Ram had admitted that there was a joint familybusiness when this written statement was filed and, therefore, there isproof that the business was a joint family business and there is no materialHto show that this joint family status was ever disrupted.

18. It is submitted on behalf of the contesting respondent thatsince the family members of Hari Ram were residing in the mortgagedhouse, by way of abundant precaution they may have been made to signthe mortgage deed. In our view, that may not be true because themortgage deed clearly reflects that all the family members including theminors were shown to be owners of the properties by mortgaging thesame. Therefore, this property which was mortgaged in the year 1944and then re-mortgaged in 1946 would prima facie appear to be jointproperty though at this stage we are not deciding whether the propertyis a joint property or the property of HUF.

19. An admission made by a party is only a piece of evidence andnot conclusive proof of what is stated therein. It is in this light that wehave to examine the admission made by Hari Ram and his brotherswhile filing the written statement to the suit filed by Seth Budhmal. Inparagraph 6 the averment was that the defendants constituted tradingJoint Hindu Family. It is obvious that the admission was with regard to atrading family and not HUF. In view of the law cited above, it is clearthat not only jointness of the family has to be proved but burden lies uponthe person alleging existence of a joint family to prove that the propertybelongs to the joint Hindu family unless there is material on record toshow that the property is the nucleus of the joint Hindu family or that itwas purchased through funds coming out of this nucleus. In our opinion,this has not been proved in the present case. Merely because the businessis 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-cutadmission. The allegation made was that the minors were representedby defendant nos. 1-3, who were head of their respective branches. Inreply to this it was stated that defendant nos.1-3 were neither the heador the karta, nor the mortgage transaction was made in that capacity.This admission cannot be said to be an unequivocal admission of therebeing 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 mattersstated therein. It is only a piece of evidence, the weight to beattached to which must depend on the circumstances under which AB

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Ait is made. It can be shown to be erroneous or untrue, so long asthe person to whom it was made has not acted upon it to hisdetriment, when it might become conclusive by way of estoppel.”[9]

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,Bshould be conscious and deliberate act of the party making it. As far asthe present case is concerned we do not find any clear-cut admissionwith regard to the existence of an HUF. At best, from the recitals in themortgage deed and averments in the written statement, all that can besaid is that at the relevant period of time the property was treated to bea joint property.C

21. On the other hand, there are many other documents reliedupon by the defendants. Out of the 6 houses, 5 were mortgaged and oneis admittedly a dharamshala. Out of these 5 houses, 3 were sold byHari Ram during his life time and during the life time of the predecessorsof the plaintiff, nobody objected to the sales of the properties and in theDsale 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 doublestorey house is the property of the trading firm Madhav Prashad Agarwaland that Hari Ram is the owner of the firm and in order to repay theloan, sold the house to two persons. This sale deed was witnessed byESeth Budhmal. Though it is not stated so in the sale deed it appears thatthe amount of consideration must have been paid to Seth Budhmal. Thisdocument was executed on 12.09.1967, and this read with the other twosale deeds clearly indicate that Hari Ram claimed that he was the soleproprietor of the business of the trading firm Madhav Prashad Agarwal.

F22. These sale deeds and the recitals were never challenged bythe plaintiff or his predecessors. This would indicate that the jointness ofthe property if any had ceased because of some family arrangement orpartition which may have happened much earlier. We have to read thesale deeds in conjunction with the averments made in the plaint quotedhereinabove wherein the plaintiff has stated that the business came to aGclosure and then almost all the people started carrying on their separate 9 This view has been consistently followed by this Court in a large number of casesincluding Bharat Singh and Anr. vs. Bhagirathi 1966 SCR (1) 606; Uttam Singh Dugaland Co. vs. Union of India and Ors. (2000) 7 SCC 120; Himani Alloys Ltd. vs. TataSteel Ltd. (2011) 15 SCC 273.H10 (2011) 15 SCC 273

business. Though it is averred that the immovable properties remainedthe properties of the joint family the fact that separate branches starteddoing separate business is indicative of the fact that some separation, ifnot, 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 andmentions that these were owned by his father Madhav Prashad and thathe (Hari Ram) has been doing business in the name of his father MunshiMadhav Prashad Agarwal. Out of the 6 houses, 3 had already been soldby Hari Ram and he has bequeathed the remaining 3 houses to variouspersons. It would be relevant to refer to the portion of the Will whereHari Ram states that he had 3 cousins Brij Mohan, Rameshwar Lal andRadha Krishan. Out of these, Radha Krishan died and was survived byhis widow and 3 sons and they were living in the 2[nd] and 3[rd] floor inbuilding No.2. Hari Ram bequeathed certain portions of the immovableproperty to the widow and children of Radha Krishan. It would bepertinent to mention that the plaintiff Bhagwat Sharan is the son of RadhaKrishan. He also bequeathed certain properties in favour of his cousinsBrij Mohan and Rameshwar Lal.

24. It is also not disputed that the plaintiff and defendant nos. 1-3herein filed suit for eviction of an occupant in which he claimed that theproperty had been bequeathed to him by Hari Ram. According to thedefendants the plaintiff having accepted the Will of Hariram and havingtaken benefit of the same, cannot turn around and urge that the Will isnot valid and that the entire property is a joint family property. The plaintiffand defendant nos. 1-3 by accepting the bequest under the Will electedto accept the will. It is trite law that a party cannot be permitted toapprobate and reprobate at the same time. This principle is based on theprinciple of doctrine of election. In respect of Wills, this doctrine hasbeen held to mean that a person who takes benefit of a portion of theWill cannot challenge the remaining portion of the Will. In The RajasthanState Industrial Development and Investment Corporation and Anr.vs. Diamond and Gem Development Corporation Ltd. and Anr[11],this Court made an observation that a party cannot be permitted to “blowhot and cold”, “fast and loose” or “approbate and reprobate”. Whereone party knowingly accepts the benefits of a contract or conveyance A

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Aor an order, it is estopped to deny the validity or binding effect on him ofsuch contract or conveyance or order.

25. The doctrine of election is a facet of law of estoppel. A partycannot blow hot and blow cold at the same time. Any party which takesadvantage of any instrument must accept all that is mentioned in the saidBdocument. It would be apposite to refer to the treatise’ Equity-A courseof lectures’ by F.W. Maitland, Cambridge University, 1947, wherein thelearned author succinctly described principle of election in the followingterms:- “The doctrine of Election may be thus stated: That he who acceptsCa benefit under a deed or will or other instrument must adopt thewhole contents of that instrument, must conform to all its provisionsand renounce all rights that are inconsistent with it....’’

This view has been accepted to be the correct view in KaramKapahi and Ors. vs. Lal Chand Public Charitable Trust and Ors.[12].DThe plaintiff having elected to accept the Will of Hari Ram, by filing asuit for eviction of the tenant by claiming that the property had beenbequeathed to him by Hari Ram, cannot now turn around and say thatthe averments made by Hari Ram that the property was his personalproperty, is incorrect.

E26. As far as the agricultural lands are concerned the trial courtdecreed the suit in respect of the agricultural lands on the basis thatMadhav Prashad and his brother Umrao Lal and their successorsconstituted an HUF. The said lands having been bought out of the fundsof the HUF would be treated to be the property of the HUF, even thoughthey may have been entered in the name of any other person. In view ofFthe above discussion, and the fact that we have held that the plaintiff hasfailed to prove that there is an HUF, we are not inclined to agree withthe finding of the trial court.

27. We now deal with each of the agricultural property separately.The properties described in paragraph 9(2)(a) of the plaint were earlierGrecorded in the name of Hari Ram and later in the names of his sonsPurushottam and Vinod. The property at paragraph 9(2)(b) was alsorecorded in the name of Hari Ram and he had given cultivation rights toSri Ram who is stated to have become the owner thereof. Similarly, theland described in paragraph 9(2)(c) also was shown in the name of HariH12 (2010) 4 SCC 753

Ram and this was given to Kahiya Lal on tenancy. The land described inparagraph 9(2)(d) was also recorded in the name of Hari Ram and wastransferred to Shiv Charan, and now stands in the name of his legalheirs. The land described in paragraph 9(2)(e) which stood in the nameof Hari Ram was also transferred by him in the name of his wife RajjoDevi in 1969.

28. As far as the lands described in 9(2)(f) and 9(2)(g) areconcerned these lands were taken on lease by Nathu Lal, S/o Hari Ramfrom the zamindar of Ashok Nagar. According to the plaintiffs theselands were also lands of the joint family but that version cannot be believedin view of the patta granted in favour of Nathu Lal. It may be true thatconsideration for grant of patta may have been paid but there is nomaterial on record to show that this payment was made out of the fundsof HUF. It may be pertinent to mention here that the plaintiffs havealleged that in 1951 Nathu Lal was a minor and the amount was paid byHari Ram. However, no proof has been led in this regard. In fact, fromthe material on record it appears that Nathu Lal was about 21 years oldat that time. He was definitely more than 18 years old and thus not aminor. These lands were never shown to be owned by Madhav Prashador Umrao Lal. It is also pertinent to mention that various parts of theland were transferred to various other persons and these transfers werenever challenged by the plaintiff at the relevant time. It would also bepertinent to mention that both the courts below have come to theconclusion that the plaintiffs have failed to prove that they were gettingany proceeds from the income of the agricultural land. This also indicatesthat the said land was not joint.

29. In view of the above discussion we find no merit in the appealsfiled by the appellant(s) and the same are dismissed with no order as tocosts. Pending application(s) if any, shall accordingly stand disposed of.

Divya Pandey

Appeals dismissed.

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