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TMI Blog2001 (8) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... Brahm Wati and Raj Kumar were impleaded as defendants 2 and 3 and the heirs of Brahm Dutt were impleaded as defendants 4 to 6. It was alleged that Bal Mukand constituted a joint Hindu family with the plaintiff and defendant No. 1. In his life time Bal Mukand made a declaration on affidavit dated 4.3.1963 and on that day threw his property 8/10 and 8/11, Western Extension Area, Karol Bagh, new Delhi into the common hotch potch of his Hindu undivided family comprising himself and his two sons. Bal Mukand was also assessed in income tax and wealth tax as head of Hindu undivided family owning the aforesaid property. In addition to the aforementioned property, which Bal Mukand had thrown into common hotch potch, he also held other properties in his individual capacity. The plaintiff alleged that on the death of Bal Mukand on 27.6.1973 a notional partition of the joint Hindu family property took place and in that notional partition the plaintiff and defendant No. 1 got 1/3rd share each whereas remaining 1/3rd share was left with deceased, which was inherited in equal share by the plaintiff, defendant No. 1, defendants 2 and 3 and the heirs of Brahm Dutt, namely defendants 4, 5 and 6. Lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff refuted the averments made by defendant No. 1 and reiterated his stand. The plaintiff denied that any Will was left by Lala Bal Mukand or that a copy of the Will was given to him by the plaintiff. he denied any Will having been made by Bal Mukand during his life time and pleaded that defendant No. 1 never spoke of any Will till filing of the suit. He denied that the alleged Will bears signatures of Bal Mukand or was made by him while he was in a sound and disposing state of mind. He further pleaded that the alleged Will appears to have been fabricated by defendant No. 1 in order to non suit him. 6. On the aforementioned pleadings of the parties following issues were framed:- 1. Whether L. Balmukand constituted a joint Hindu Family defendant No. 1 only? OPD 2. Whether the plaintiff separated from the joint Hindu family as alleged in the written statement? OPD 3. Was late L. Bal Mukand owner of one half share of the joint Hindu family property? 4. What is the property available for partition as owned by the joint Hindu family headed by L. Bal Mukand? OPP 5. To what shares are the parties entitled and in which properties? OPP 6. Has any Will been made by L. Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in so far as properties 8/10 and 8/11, Western Extension Area, Karol Bagh are concerned the plaintiff is entitled to only 1/3rd share in the two properties and defendant No. 1 is entitled to remaining 1/3rd share. He was also held entitled to the 1/3rd share of the property held by the deceased Bal Mukand on the basis of the Will and property No. 8/11 was held to go to the share of Ms. Shashi, daughter of defendant No. 1 for her life and on her death to the two sons of defendant No. 1. 8. Feeling aggrieved against this judgment and decree plaintiff/appellant filed RFA (OS) 31/76 praying for deciding issue No. 6 against the defendant whereas defendant has field RFA (OS) 37/76 praying for setting aside those findings by which it was held that the plaintiff was a member of joint Hindu family or that properties 8/10 and 8/11, Western Extension Area were thrown by the deceased in common stock. 9. Shri P.P. Malhotra, learned Sr. Advocate appearing for plaintiff/appellant took us through the oral and documentary evidence and vehemently contended that defendant No. 1, who had set up Will Ex.D-4 dated 5.6.1971 had failed to discharge the onus which lay upon him. It was not proved that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of his submissions also referred to the statement of D.W.2, 3 and 4 and tried to bring home his point that there are material discrepancies as regards the time of execution Will and typing of the Will and thus will has not been validly proved. 10. Mr. L.R. Gupta, learned Sr. Advocate appearing for defendant No. 1 refuted the submissions made by Shri Malhotra contending that none of the alleged circumstances can be said to be suspicious circumstances attending the due execution of Will. Defendant No. 1 was expected to satisfactorily explain those circumstances, which would be the attending circumstances about the execution of Will and not any other circumstances. It was urged by him that each of the circumstances brought to the notice of the Court by Shri Malhotra had been specifically dealt with by learned Single judge and by reasoned judgment it was held that defendant No 1 had been successful in removing the alleged suspicious circumstances, if any. He also referred to the oral and documentary evidence and urged that when by one common process similar documents are prepared and each one of them is signed and each one of them is duly executed, namely, signed by the testato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu family, alleged to be comprising the deceased with his two sons had any joint family property, in the absence of which, it was not possible to blend the self acquired property by Bal Mukand with the character of Joint Family property. Circumstances on record, including the recitals made in document Ex.D-3 do suggest that Ex.P.W.1/3 was a sham document by which the deceased never intended to blend his self acquired property with the character of joint Hindu family property. 12. These submissions were rebutted by Shri Malhotra contending that Ex.P.W.1/3 in clear terms expressed the will and desire of the deceased and this document is sufficient to establish that he had intention and had in fact characterised the property to be joint Hind family property. 13. Learned counsel for the parties also placed reliance upon a number of decisions. The same will be dealt with at relevant stages during the course of the judgment. 14. Before taking up the other points, the foremost point, which in our view requires consideration is the correctness of the findings of the learned Single Judge on issue No. 6 that whether any Will has been made by Lala Bal Mukand, as alleged. The law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribe by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainly. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. 15. In the aforementioned decision the Supreme Court further held that there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks form the death of the testator, and so, when it is propounded or produced before a Court the testator who has already departed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opposite party opposes due execution of the Will alleging exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the opposite party, but, even without such pleas, the circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus on the part of the propounder to remove any such legitimate doubts in the matter. 17. After having laid down the aforementioned tests the Apex Court held that generally the propounder of the Will has to prove due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It was lastly said that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. 18. The aforementioned principles were reiterated by Supreme Court in a latter decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider whether the appellants have succeeded in establishing that the Will was duly executed and attested. 20. In Surendra Pal and Ors. v. Saraswati Arora and Anr [1975]1SCR687 , while approving the principles laid down in the aforementioned judgemnts, as regards the requirements, which a propounder of the Will must satisfy it was held that:- The propounder has to show that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these element are established,, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed the powerful minds interest in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cion inherent in the transaction itself which is challenged and cannot be a suspicion arising out of a mere conflict of testimony. 23. We need not multiply decisions of the point. Suffice it to say that the principles have universally been applied in all cases of Wills and even reiterated in later decisions of Supreme Court such as Kalyan Singh v. Chhoti and Ors. AIR1990SC396 , Ram Piari v. Bhagwant and Ors. [1990]1SCR813 , Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar and Ors. AIR1995SC2086 and Gurdial Kaur and Ors. v. Kartar Kaur and Ors. [1998]2SCR486 . 24. In a nutshell the law seems to be now well settled that it is the conscience of the Court which must be satisfied that the Will in question was not only executed and attested in the manner required under Indian Succession Act, 1925 but it should also be found that the said Will was the produce of free volition of the executant who had voluntarily executed the same, after knowing and understanding the contents of the Will. Whenever there is any suspicious circumstances there is an obligation on the propounder of the Will to dispel the same. It is in the light of these principles that the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harding Hospital and was also known to Bal Mukand also because of his relation with Thapar. 26. Shri Thapar also deposed that he had advised Bal Mukand to have the Will registered but Bal Mukand turned down the suggestion since he apprehended that in case plaintiff would come to know of making of the Will by him he (Dr. Kewal Krishan, plaintiff) will beat him in bazaar and for that reason Bal Mukand suggested that he would keep one copy of the Will with him, one copy with Punjab National Bank, one copy with Thapar and that one copy of the Will be handed over the defendant No. 1 in a sealed cover. It is also deposed by the Thapar that after the Will had been duly executed one copy was handed over to him (Thapar) in addition one more copy, which was to be delivered to defendant No. 1 by Thapar. It was that copy of the Will, which was sent by Shri Thapar to defendant No. 1 by post. He further deposed that as far as he remembers the copy which was sent to defendant No. 1 was the first impression of the typing but he was unable to state whether Ex.D-4 was the first impression or the carbon impression of the Will. As per his version all four copies were duly signed by Bal Mukand and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Will so far and if any Will is set up by anyone, the same must be held to be a forgery. However, Lala Bal Mukand told me that he had not executed any Will earlier. 30. Will Ex.D-3 was also proved on record which was produced by defendant No. 1. Its execution is not denied by the plaintiff. It was because of the recitals in Ex.D-4 that Lala Bal Mukand had not made any Will earlier and if any Will is set up by anyone the same must be held to be a forgery, learned counsel for the plaintiff/appellant vehemently urged that this being a wrong recital is a suspicious circumstance which has not been specifically explained by the defendant. 20. It is not shown in evidence, nor has been shown to us the defendant No. 1 took any part in the execution of Will. It is also not shown that the deceased was of feeble mind, which was likely to be influenced. By the testimony of Shri Thapar and Dr. Malik it stands duly proved that have Will was duly signed by the testator and that at the relevant time the testator was in a sound disposing state of mind and he fully understood the nature and effect of the dispositions. There is no plea of any Undue influence, coercion etc. raised by the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bar, we are of the view that there is no scope of interference with the findings of the learned Single Judge that Will Ex.D-4 has ben proved to be the last Will of deceased. 24. As regards the other point about the deceased having thrown his two properties in common pool of the alleged joint Hindu family, learned Judge proceeded on the assumption that the law does not lay down that a separate property could not be impressed with the character of joint Hindu family in the absence of the existence of joint family or co-parcenary property. He further proceeded on the assumption that the existence of joint family property is not necessary before a member of the family throws his self acquired property in the joint stock. It is this erroneous assumption of law by the learned Single Judge, which in our view led him to incorrect conclusions. 25. Under the Hindu Law property may be divided under the two classes, namely, (a) Joint family property and (b) separate property. Joint family property may be further sub divided according to the source for which it comes into, namely, (a) ancestral property (b) separate property of co-parceners thrown into the common coparcenary stock and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention of benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener. [Emphasis supplied.] 28. On blending of separate property with joint property, in a subsequent decision in Lakkireddi Chinna Venkata Reddi and Ors. v. Lakkireddi Lakshmama [1964]2SCR172 , the Supreme Court held:- Law relating to blending of separate property with joint family property is well-settled. Property separate on self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act. In such a case thee is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises. 30. Same principles was reiterated in K.V. Narayanan v. K.V. Ranganadhan and Ors. [1976]3SCR637 and in Pushpa Devi v. The Commissioner of Income Tax, New Delhi [1977]109ITR730(SC) . 31. Thus the pre-requisite of the doctrine on blending being existence of coparcenary or coparcener property as well as the existence of separate property, in case of any one of the basic requirement lacking there would be no question of applicability of the doctrine of blending. It was the case set up by the plaintiff and according to the plaintiff's deposition, who appeared as P.W.2, only two properties, 8/10 and 8/11, Western Extension Area were thrown into common hotch potch of the joint Hindu Family. Rest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by passage of time. 33. Admittedly Brahm Dutt had ben separated. There is no presumption that when one member separates from the others that the latter remain united; whether the letter remain united or not must be decided on the facts of each case. Admittedly the plaintiff did his Medicine in 1945 and stated his separate practice. He had his separate mess. There was no sharing of income. In case that was the position can it be said that mere act of Lala Bal Mukand having executed document Ex. P.W.1/3 will have the effect of Constituting joint Hindu family in the year 1963. It is the case of plaintiff that HUF headed by Lala Bal Mukand was formed in 1963. A Hindu family is nota creation of a contract. It cannot be so created. Circumstances on the record would suggest otherwise. 34. It has come in the evidence of P.W.1, Income Tax Practitioner that it was his suggestion to Lal Bal Mukand to make a declaration Ex.P.W.1/3 to avoid tax liability. The plaintiff has not led any other evidence about the intention of Bal Mukand apart from the fact that admittedly there was no other joint family property. Whether a property was voluntarily thrown into the common stock with he intent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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