B.R. Dube, J.
1. This is defendant's appeal against the judgment and decree passed by the learned Second Additional District Judge, Raipur. in civil suit No. 4-A of 1966, allowing respondent's claim for possession of the land described in Schedule 'C' of the plaint and. for partition and separate possession of one-half share in the property as shown in Schedule 'A' of the plaint, together with mesne profits.
2. Chhotmal Dassani and Kewalchand Dassani were brothers. These two brothers separated in the year 1912, and a registered partition deed was executed on 4-10-1912. Chhotmal Dassani had no issue. He, therefore, adopted the appellant Kasturchand, who was the eldest son of Kewalchand. The respondent Kapurchand is the younger son of Kewalchand. The parties are governed by the Banaras School of Hindu Law. After the partition, the branches of Kewalchand and Chhotmal became separate in all respects. Chhotmal executed a document dated 9-6-1952, styled as 'Vyavastha Patra'. He died a few days thereafter, leaving his widow Sonibai and adopted son (the appellant). These facts are not disputed.
3. Chhotmal, at the time of his death, left 81.71 acres of land in village Rawanguda, district Raipur and two houses, one in the village Rawanguda and another in village Pipariya. as mentioned in Schedule 'A' of the plaint. Chhotmal had executed a Patta dated 20-2-1948. in the name of his wife, Soni Bai, in occupancy rights with respect to 29.60 acres of land situated in village Rawanguda. district Raipur. The said land is shown in Schedule 'B' of the plaint. The case of the respondent (plaintiff) was that the property described in Schedule 'A' was the self-acquired property of Chhotmal. He executed a will dated 9-6-1952. styled as 'Vvavasta Patra' according to which the property mentioned in Schedule 'A' was bequeathed in equal shares to the respondent and the appellant. The bequest was to take effect after the death of Chhotmal as well as the death of his widow. Sonibai, if she surviyed. As Chhotmal died in June. 1952, leaving his widow. Soni Bai. she entered into possession of the said property. Accordingly, she remained in possession of the said property till her death which took place on 30-6-1961. Thus, under the said will, executed by Chhotmal Dassani, the respondent claimed one-half share in the property shown in Schedule 'A'. In the alternative, the respondent claimed 36.00 acres of land out of 81.71 acres of land shown in Schedule 'A' on the ground that Mst. Soni Bai had made a gift of that land under a registered gift deed dated 25-1-1961. It was averred that Soni Bai. being the widow of late Chhotmal Dassani, succeeded to the property of her husband and her right, title and interest having become absolute, on the coming into force of the Hindu Succession Act. 1956, she was competent to make a gift of her share in those lands. It was further averred that Mst. Soni Bai, by virtue of the above gift-deed, also gifted 19.06 acres of land shown in Schedule 'C' out of the land shown in Schedule 'B' which she was separately holding under Bhumiswami rights. The respondent, therefore, claimed one-half share in the agricultural land and the two houses shown in Schedule 'A' or in the alternative, 36 acres of land out of the land shown in Schedule 'A', plus 19.06 acres of land as shown in Schedule 'C'. total 55.06 acres, and mesne profits.
4. The appellant contested the suit on the grounds that the property in the hands of Chhotmal was not his self-acquired property but it was a coparcenary property and, therefore, he had no right to execute the will dated 9-6-1952, which was styled as 'Vyavastha Patra'. It was further averred that as the said document gave only a life estate to Mst. Soni Bai, she had no right to make a gift of any property which she got from Chhotmal. As regards 29.60 acres of land at Rawanguda standing in the name of Mst. Soni Bai, the appellant's case was that Chhotmal executed a nominal patta in favour of Soni Bai to save the land from the mischief of Abolition of Proprietary Rights Act, which was likely to come into force in near future and, therefore, she did, not acquire Bhumiswami rights. It was further averred that Mst. Soni Bai executed the gift-deed under undue influence of the respondent and as such it was not binding On the appellant. The appellant, therefore, claimed that after the death of Soni Bai, he became the sole owner of all the property in suit.
5. The trial Court came to the finding's that the property shown in Schedule 'A' was not coparcenary property but separate property of Chhotmal, that Chhotmal was competent to bequeath the said property, that on 9-6-1952. Chhotmal executed the will out of his free will and the said document havine been signed even by the appellant, was binding on him, that Mst. Soni Bai was the absolute owner of 29.60 acres of land as shown in Schedule 'B', that she executed the gift-deed without any undue influence and that she was competent to make a valid gift with respect to 19.06 acres of land out of her separate land of Bhumiswami rights. The trial Court, however, held that Mst. Soni Bai had no right to transfer 36 acres of land out of 81-71 acres of land shown in Schedule 'A' by way of gift. Thus, on the basis of the will, executed by Chhotmal, the trial Court allowed the respondent's claim for one-half share in the property shown in Schedule 'A' and decree for partition to that effect was passed. On the basis of the gift-deed executed by Mst. Soni Bai on 25-1-1961, the trial Court also allowed the respondent's claim for possession of 19.06 acres of land. Consequently, mesne profits from the date of suit till delivery of possession of the suit land were also allowed.
6. The appellant has, therefore, come to this Court in appeal praying for reversal of the trial Court's decree, reiterating the pleas taken by him in the lower Court. The root cause of the dispute between the parties is the document. Ex. P-12. executed by deceased Chhotmal Dassani on 9-6-1952, styled as 'Vyavastha Patra'. The respondent (Plaintiff) relied on this document as a will. At the stage of arguments before this Court it is urged on behalf of the respondent, in the alternative, that the said document is a family arrangement. The appellant challenges this document in both these characters. As regards the will, the contention on behalf of the appellant is that the property with respect to which Chhotmal Dassani made the disposition was a joint Hindu family property and as such Chhotmal had no right of bequest. As regards the document being in the nature of family arrangement, the contention is that the branches of Chhotmal and Kewalchand having been separated, the respondent was not a member of the family of Chhotmal, that there was no occasion to make such a family arrangement, that it was not for the benefit of the family and it having created interest with respect to immovable property in favour of the respondent, who was a stranger, it required registration.
7. The main question which arises for consideration is whether the suit property was the self-acquired property of Chhotmal or it was a joint family property. There is no presumption that a Hindu family, merely because it is joint, possesses joint family property. The burden of proving that any particular property, is joint family property, is therefore, in the first instance upon the person who claims it as coparcenary property. But, if the possession of a nucleus of the joint family propertt is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This presumption is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. See Mudieowda Gowdappa Sankh v. Ramachandra Revsowda Sankh. AIR 1969 SC 1076 and Appalaswami v. Surva-narayana Murti, AIR 1947 PC 189.
8. As regards presumption as to business carried on by a member, it is stated in Mulla's Principles of Hindu Law. (13th Edition) at page 266 as under :--
'(4) Presumption as to business carried on by a member.--
There is no presumption that a business carried on by a member of a joint family, is joint family business. Nor is there any presumption that a business carried on by such a member in partnership with a stranger is joint family business. There is no presumption that a business standing in the name of or started by even a manager is joint family business, but if the joint family funds are utilised in opening a new branch then the new branch will be regarded as part of the old business ''
It is not disputed that Kewalchand had executed the document Ex. D-6 on 4-10-1912, styled as 'Batwaranama' evidencing the factum of partition between himself and his brother Chhotmal. The question is whether these two brothers, Kewalchand and Chhotmal, who were the members of the joint family, jointly acquired the property which they divided or whether that property was acquired out of joint family ancestral nucleus. The determination of this question would depend upon the interpretation of the document Ex. D-6. It is urged on behalf of the respondent that according to the said document, the two brothers got a sum of Rs. 575/- only from their rather and the said money was kept by them separately and, therefore, there is nothing to show that the property which was divided by the document. Ex. D-6, was the joint family property of the two brothers. Reliance was placed on the khata entries, Ex. D-9 and Ex. D-10. from the account books of Chhotmal Agarchand Shop, Rai-pur in which the item of Rs. 581/12/6 was credited as 'Shri Sopana Khata Puiva Babu Ji Shrichand Ji Dassani'. In our opinion, the said entries would not help the respondent in any maner. In the first place it Is not shown how the amount of Rs. 575/- left by Shrichand was turned into the sum of Rs. 581/12/6. Moreover. after- the division between Kewalchand and Chhotmal. why the full amount of Rs. 575/- left by Shrichand was allotted to Chhotmal only. That apart, from the khata entries, it appears that Chhotmal did utilize the said amount in his business and hence it could not be said that the nucleus of Rs. 575/- which Chhotmal pot from his father was not used for developing the business.
8-A. Reverting back to the document, Ex. D-G, it would be convenient to reproduce the relevant Hindi version for its proper appreciation, which reads thus--
'Man Ke Kewalchand Wald Shrichand Dassani Oswal Marwadi Sakin Khas Shahar Raipur Sadar Bazar Ka Hoon Jo Ki Ham Log Donow Hakiki Bhai Yane Kewalchand Wo Chhotmal Pisran Shrichand Dassani Oswal Marwadi Sakin Rai-pur Sadar Bazar Ke Hain Aur Shuru Se Yane Barbakt Aapne Walid Ke Wakt Se Aai Tak Shamil Shank The. Kul Kam Karbar Ke Lena Dena Wagerah Karte Chale Aave Hain Aur Aab Tak Shamil Sharik Me Hain Lekin Aab Darmivan Dono Bhai Ke Aayanda Kisi Kism Ke Tanta Bakheda Na Hone Ki Garai Se Jaydad Jo Hamare Walid Mutwali Ke Wakt Ke Mublig 575 Rupiya Sirf Jo Ham Logo Ke Pas Me The Wo Mublig 1100 Rupiya Kimat Ke Sona Ke Jewar Jo 200 Rupiye Ke Kimat Ke Chandi Ke Jewar Wo 300 Rupai Ke Kimat Ke Disar Chil-har Mankula Saman Mankula Wo Mublig 2830 Rupive Ke Aasamivan Kaeii Jar Nagad Wo Digar Saman Mankula Dukan Pipariya Riyasat Kawardha Ke Wo 240 Rupai Ke Gadi Bail Raipur Dukan Ke We 400 Rupai Ki Aasamiyan Wake Raipur Dukan Ke Karj Jar Nakad Wo Wa-sool Hone Ki Ummaid Nahi Wo 400 Rupai Jo Hiriya Bai Ke Taraf Hai Wo 1955 Rupai Nakdi Kul Jumla 8000 Rupai Jo Ham Dono Bhai Ke Kabie Me Hai.....'
The trial Court, agreeing with the interpretation made by the respondent, held that according to the said document, out of the property amounting to Rs. 8,000/-, as shown in this document, the two brothers Kewalchand and Chhotmal got only a sum of Rs. 575/- from their father Shrichand Dassani. while rest of the property amounting to Rs. 7,425/- was jointly acquired by them from their separate business. On a careful reading of the document, it may be said that the use of the words 'JAYDAD JO HAMARE WALID MUTWALI KE WAKT KE .....' followed by the details of the property could be interpreted to mean that the whole property worth Rs. 8,000/- including the amount of Rs. 575/- was received by these two brothers from their father. Even presuming that the above interpretation is not correct and if it were to be conceded that the two brothers got only Rs. 575/-from their father, the said amount in the year 1912 was Quite a bis amount so as to constitute an adequate nucleus out of which the property worth Rs. 8,000/-could be developed. Out of the said amount, and the rest of the immovable property which these two brothers sot from Hiriva Bai and for which there is no dispute, Kewalchand took cash and ornaments in all amounting to Rs. 3,500/-and gave the rest of the property to Chhotmal. Thus. Chhotmal, on account of the said partition, got a share out of the joint family ancestral property, which formed an adequate nucleus, and as such, the further acquisition made by Chhotmal would be presumed to be the joint family property of Chhotmal's branch. In view of this aspect of the matter, the burden had shifted to the respondent to prove that the suit property was the self-acquired property of Chhotmal. He was not able to discharge that burden. Thus, disagreeing with the finding of the trial Court, we hold that the property in the hands of Chhotmal with respect to which he executed the document, Ex. P-12. was the joint family property in which the appellant, being the adopted son. had a right as a coparcener.
9. In view of the above finding, the legal position is quite clear that Chhotmal had no right to make a will with respect to the coparcenary property or any part thereof because the property had passed by survivorship to the appellant on the death of Chhotmal and, therefore, the will. Ex. P-12. could not operate. This view gets support from the decision in M. N. Aryamurthi v. M. L. Subbarava Settv, AIR 1972 SC 1279.
10. It is contended by the learned counsel for the respondent that in case the document, Ex. P-12, were not to be treated as a will, it may be taken to be a family arrangement. The learned counsel for the appellant, on the other hand, seriously contended that the respondent, having not pleaded the case of family arrangement, cannot be allowed to base his claim on that. There seems to be sufficient force in the contention of the learned counsel for the appellant. It may be noted that the appellant, in the amended written statement at para. 4 (b), had stated that the alleged 'Vyavastha Patra' dated 9-6-1952 was only a Vvayastha Patra and not a will and as the said 'Vvavastha Patra' was unregistered, it was not admissible in evidence and that the plaintiff did not get any right under it. The respondent, while making consequential amendment in the plaint, stated in para. 4 (b) of the plaint as under :--
'That the allegations contained in the amended para. 4 (b) of the written statement are denied as false. As already averred by the plaintiff in para. 4 (a) of the plaint, the said Vvavastha Patra is will. As a will is not required to be registered the said Vvavastha Patra dated 9-6-1952 being a will is admissible in evidence and is competent to confer title.'
It is thus clear that the respondent made specific averment in the plaint that the document, Ex. P-12, is nothing but a will. He cannot now be allowed to say that the said document is not a will but a family arrangement.
11. It may be said that the appellant himself having interpreted the document as a 'Vyavastha Patra' and not a will, no prejudice will be caused in case the respondent is allowed to develop his case on the ground that the said document is a family arrangement. Examining the document in this aspect, it may be pointed out at the outset, that the said document purported to create an interest in house No. 2, situate at Raipur in praesenti in favour of Kasturchand and hence it required registration. See, Maturi Pullaiah v. Maturi Narasimham, AIR 1966 SC 1836. It is true that the said document imposed a condition on Kapur-chand that he could not alienate the said house by way of sale, mortgage or gift. But such a condition was inoperative. Once the property was transferred, no such condition could be imposed.
12. The learned counsel for the respondent placed reliance on the decision in AIR 1972 SC 1279 in which their Lordships of the Supreme Court have said that a will executed by the father, in respect of a joint family property, though inoperative as a will, may operate as a valid family arrangement, provided the essential requisites for it are established. The three requisites required for family arrangement, pointed out by the Supreme Court, are these :
(1) There must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family.
(2) The agreement should be with the object either of compromising doubtful or disputed rights or for preserving the family property or the peace and security of the family by avoiding litigation or for saving its honour.
(3) Being an agreement, there is consideration for the same, the consideration being the expectation that such an agreement or settlement will result in establishing or ensuring amity and good will amongst the relations.
Relying on the decision in Ramcharandas v. Girja Nandini Devi, AIR 1966 SC 323, it was further contended that for family settlement, the word 'family' should not be construed narrowly. All that is necessary is that the parties must be related to one-another in some wav and have a possible claim to the property or even a semblance of claim on some other ground as, say, affection. It is urged that the respondent Kapurchand was Chhotmal's brother's son and he had a great affection for him as well. As Chhotmal wanted that there should not be any dispute with respect to the property acquired by him he thought it fit in the interest of the family to make the family arrangement and to give some portion of the property to respondent who was not totally a stranger.
13. In our opinion, the above contention has got no force. The facts of the case in AIR 1966 SC 323 (supra) are quite distinguishable. In brief, they are as under :--
The property covered by the family settlement deed in that case belonged to one Kanhaiyalal, who died on 10-6-1922 without leaving a widow or any issue. The said property originally belonged to Kanhaiyalal's grandfather, Chunnilal. After Kanhaiyalal's death, Kadma Kaur, his mother, entered into possession of the entire property which was in possession of Kanhaiyalal. Kadma Kaur died on 4-10-1937 and shortly thereafter the suit which went up to the Supreme Court was filed by Ramcharandas, who was the sixth son of Diwan Madan Gopal. The said Diwan Madan Gopal was one of the two sons of Brijlal, and Brillal was the only son of Deoki Nandan, who was elder brother of Chunnilal. Thus Chunnilal was plaintiff's great-grand-father's brother and a collateral of Kanhaiyalal. The plaintiff and his brothers were the next reversioners entitled to succeed to Kanhaiyalal's property after the death of his mother Kadma Kaur. The defendant No. 1 in that case was Girja Nandini Devi who was the widow of Gopinath. The said Gopinath was. Kanhaiyalal's and Madhoprasad's sister's son. It was said by some of the contesting parties that in the year 1881, Chunnilal had executed a will whereby the propertv was divided between Kanhaiyalal and his brother Madhoprasad. Madhoprasad died during the lifetime of Ranhaiyalal leaving a daughter Maheshwari Bai. This Maheshwari Bai laid a claim to the property which had been bequeathed by Kanhaiyalal on the around that the two brothers Kanhaiyalal and Madhoprasad took the property of Chunnilal by will not as joint tenants but tenants-in-common. That claim was examined by Court of Wards, who was then in the management of that property. The Court of Wards released half of the estate which was the share of Madho Prasad. During the lifetime of Kadma, three suits were instituted. One suit was filed by Gopinath, who claimed to be the next reversioner, on the ground that he being Kanhaiya Lal's sister's son, was a preferential heir as against Ramcharandas because of the Hindu Law of Inheritance (Amendment Act, 1929). In that suit, Maheshwari Bai. Kadma Kaur and the Court of Wards were made defendants. That suit was for declaration that the Court of Wards had no right to release half-share in favour of Maheshwari Bai. That suit was however, withdrawn. Thereafter, second and third suits were filed. In the second suit. Ramcharandas (appellant before the Supreme Court) was himself the plaintiff, while in the third suit, his brother Hanumanprasad was the plaintiff. They claimed to be the nearest reversioners on the ground that the Act of 1929 did not affect their right to the property left by Kanhaiyalal. They, therefore, sought declaration that Maheshwari Bai and Gopinath had no right of any kind in respect of those properties. Gopinath. Maheshwari Bai, Kadma Kaur and the Court of Wards were made parties in that suit. The claims in these two suits were compromised. Under the first compromise, the dispute with Maheshwari Bai was settled. Under the second compromise, the dispute with Gopinath and Kadma Kaur was settled, vide agreement Ex. Y/13, according to which Kadma Kaur renounced all her claims in favour of Gopinath and Ramcharandas and his brothers. To this document, the appellant Ramcharandas, Gopinath and Kadma Kaur were parties. Later on, this document was challenged by Ramcharandas appellant on the ground that it was neither a surrender deed nor a family arrangement. The Supreme Court held that document to be a family arrangement and binding on the parties, because it was made to effect a compromise of the conflicting claims of Gopinath on the one hand and that of the appellant (plaintiff) Ramcharandas and his brother on the other, with respect to the estate of Kanhaiyalal, notwithstanding the fact that they were not the members of the same family, but were related to each other and they had a possible claim or a semblance of a claim with respect to the propertv in question,
14. In the instant case, Chhotmal and Kewalchand had separated long back. The appellant Kasturchand was the adopted son of Chhotmal and thus the branch of Chhotmal and Kewalchand constituted separate coparcenaries. Therefore, the respondent Kapurchand had neither a claim nor a semblance of claim, in the propertv held, by Chhotmal. There was no question of any dispute with respect to the property between Chhotmal and the respondent Kapurchand. There was, therefore, no occasion or necessity which compelled Chhotmal to make the family arrangement. The document. Ex. P-12, was executed by Chhotmal on 9-6-1952 and after a few days he died. It is urged that Chhotmal, foreseeing the end of his life, wanted to make the family settlement with a view that after his death. the family members may live in peace and harmony and that the family property may be maintained properly for the good of the family. The said document gives an interesting reading as to how Chhotmal envisaged the minutest contingencies for which he provided a scheme. It may be that Chhotmal died in peace with the subjective satisfaction that with the consent of all the parties, he had made the best arrangement with respect to the property which he was going to leave, little knowing that he was sowing the seeds of discontent in his family by depriving the rightful claim of the surviving coparcener.
15. It is true that the appellant has also put his signature on the document, Ex. P-12. However, his explanation is that his father Chhotmal was very old and weak and he did not want to hurt his sentiments by making an opposition at the time of the execution of that document. This explanation may not be improbable. Moreover, it is certain that the document was neither for the benefit of the family of Chhotmal nor it was executed with the object of compromising doubtful or disputed claims. As the appellant and the respondent were to get the propertv by inheritance in their respective brandies, there was no chance of any litigation, for the avoidance of which, necessity of the family arrangement was felt. As by the. said document, the legitimate rights of the appellant were going to be affected, it could not be said that the consideration for the said document was to ensure amity and good will amongst the parties. Therefore, the family arrangement does not fulfil the essential requisites as laid down by the, Supreme Court, in AIR 1972 SC 1279 (supra),
16. The Supreme Court, in Sahu Madho Das v. Mukand Ram. AIR 1955 SC 481 has said as under :--
'It is well settled that a compromise Or family arrangement is based on the assumption that there is antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is. each partv relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had alwavs resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.'
In Potti Lakshmi Perumalla v. Potti Krishnavanamma, AIR 1965 SC 825 it was held that a family arrangement which is for the benefit of the family generally can be enforced in a Court of law. But before the Court would do so it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon.
17. It may be said that the family arrangement in the instant case was acted upon in the sense that the house at Raipur having been given to the respondent Kapurchand, a notice Ex. P-13 was given by Kasturchand. Kapurchand and Soni Bai to the tenant informing him that Kapurchand alone had become the owner of that house and that he could be treated as such by the tenant. Later on, Kapurchand got vacant possession of the said house from the tenant. It is urged by the learned counsel for the respondent that the notice, Ex. P-13 shows complete confirmation of the deed. Ex. F-12. by the appellant and Soni Bai.
18. In our opinion the above passion does not in any wav improve the case of the respondent. As already stated earlier, in case the document. Ex. P-12, created an interest in praesenti in favour of the respondent with respect to any immovable property, it required registration and, therefore, without that no rights could be conferred on him. It is true that the appellant has not put any claim with respect to that house. Nevertheless, simply because the respondent cot possession of this house, it cannot be said that the deed of family arrangement was acted upon treating it to be a valid document. The said document was, therefore. not operative either as a family arrangement or as a will and it did not confer any title on the respondent. We, therefore, hold that the respondent is not entitled tq claim any share in the property shown in Schedule 'A' of the plaint on the basis of the document, Ex. P-12.
19. The respondent, in the alternative, has relied on the gift deed, Exhibit P-9. executed by Mst. Soni Bai on 25-1-1961, according to which, she gifted 36.29 acres of land out of 81.71 acres, situate in village Rawanguda, left by her husband and which is shown in Schedule 'A' of the plaint. She also gifted 19.06 acres of land out of 29.06 acres of Bhumiswami land shown in Schedule 'B' of the plaint. Thus, on the basis of the said document, the respondent claimed total area of 55.35 acres of land. The point for consideration is whether the document, Ex. P-9. is valid and whether Mst. Soni Bai had any right to gift the property mentioned therein. As regards 81.71 acres of land left by Chhotmal, it has already been held that it was a coparcenary property and, therefore. Mst. Soni Bai had no right to make a gift of any part of that property. In the gift deed. Ex. P-9. Mst. Soni Bai stated that on the death of her husband Chhotmal, she got the said land by virtue of the will. Ex. P-12. styled as 'Vyavastha Patra' which was executed by Chhotmal. It has already been held above that this will. Ex. P-12. is not valid. Besides that in the said document, Mst. Soni Bai was given a limited right It was devised that after the death of Chhotmal. Kasturchand and Kapurchand shall do the management of the villages in the same way, which wag being done in his lifetime and after the death of Soni Bai, Kasturchand and Kapurchand shall equally divide the land, houses and the other property. Mst. Soni Bai was not given the right to alienate any property. She was authorised to spend money only for religious purposes and at the time of her death, she could give the ornaments and the cash amount to any relation of her as mentioned in the said document Therefore, even on the basis of the will Ex. P-12, Soni Bai had no right to gift away any part of 81.71 acres of land of village Rawanguda.
20. As regards 29.06 acres of land mentioned in Schedule 'B', Soni Bai had acquired Bhumiswami rights and, therefore, she had the right to gift away the said land or any part of it. However, this would depend upon the validity of the said document. It may be pointed out that Mst. Soni Bai was the adoptive mother of the appellant Kasturchand. It is not disputed that at the time of the execution of the said gift deed. Mst. Soni Bai was about 75 years of age and she was suffering from Cancer. The appellant Kasturchand has deposed that about a month and half before her death, Soni Bai had gone to stay with the respondent. He has also deposed in the cross-examination that even 2 or 3 months prior to that also, Soni Bai had gone to the place of the respondent and he does not know when she executed the gift deed. It is admitted by respondent's witness, Sohanlal (P. W. 1). who is the attesting witness to Ex. P-9, that Soni Bai executed this document when she was residing with the respondent. As a matter of fact, this position has not been disputed by the respondent. It is thus clear that Soni Bai. a Pardah nashin lady, of about 75 years of age and a patient of cancer, at or about the time of the execution of the said document, went to live with the respondent, and without taking into confidence her adopted son, executed the document. Ex. P-9, having no independent advice except that' of the respondent. It may be noted that the respondent Kapurchand was the best witness to show under what circumstances. Mst. Soni Bai executed the gift deed. Ex. P-9, but he has not come in the witness box. Reiving on the decisions in Gurubux Singh v. Gurdial Singh. AIR 1927 PC 230 it was held in Martand v. Radhabai, AIR 1931 Bom 97 that it is the bounden dutv of a party personally knowing the facts and circumstances to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case. In the instant case, non-appearance of the respondent in the witness box would be a circumstance against him and, therefore, it can be said that the sift deed. Ex. P-9, was not executed by Mst. Soni Bai out of free will and without any undue influence.
21. Now. examining the evidence with respect to the execution of the gift deed, P-9. it may be pointed out that Sohanlal (P. W. 11 is one of the attesting witnesses to the said document. This witness in the cross-examination, has stated that the document, Ex. P-9. was not written in his presence, but it was simply read over before him. This witness could not say why Mst. Soni Bai executed the said document. On perusal of the document, Ex. P-9, it is clear that it contains the survey numbers, area and the amount of land revenue with respect to the land which was given in gift to the respondent. Mst. Soni Bai, an aged woman of 75 years, could not have herself collected this information. Sohanlal (P. W. 1) says that he does not know on whose information, the survey numbers of the lands were recorded in the gift deed. The other witness Sheodaval (P. W. 2) is the scribe pf the document. Ex. P-9. This witness, in the cross-examination, denies that respondent Kapurchand had called him to write the said document; although he does not know who was the person who had called him for that purpose. According to this witness. Mst. Soni Bai had given him a niece of paper on which the survey numbers of the land in question were recorded. He does not know who supplied the said information to Soni Bai. In the cross-examination, this witness further deposed that before writins the document. Exhibit P-9, he might have seen the 'Vvavas-tha Patra' Ex. D-6. As already stated earlier, in Ex. D-6. Mst. Soni Bai was not given any right to alienate the property. There is no evidence on record to show that Mst. Soni Bai was explained, before executing the document, Ex. P-9, that the will executed by her husband did not give her any right to make a gift of the said property.
22. In order to appreciate the point whether Mst. Soni Bai executed the document out of free will and without any undue influence, the conduct of Mst. Soni Bai, subsequent to the execution of the said document, may also be examined. It may be noted that the document. Ex. P-9, was executed on 25-1-1961, and she died On 30-6-1961. Just 15 davs prior to her death, Mst. Soni Bai donated a sum of Rs. 5,001/- to Jain Chhatrawas for construction of Oswal Bhawan, as evidenced from the document. Ex. P-10. The said amount was deposited through the respondent Kapurchand. Ex. P-11 is another gift deed executed on 22-5-1961, i. e. 8 davs Prior to her death, in which it was stated that she had become very old and there was no certaintv of her life and, therefore, she wanted to divide the ornaments received by her from her husband between his adopted son Kasturchand and her nephew Kapurchand. It was further stated that for making the distribution of the ornaments, she had called both the sons, Kapurchand and Kasturchand, but Kasturchand, i. e. the appellant having not turned up, the ornaments of his share were melted into gold, which was sold on 13-5-1961, and the sale price of that gold was donated to lain Chhatrawas, while the ornaments, falling to the share of the respondent, were handed over to him. In this way, she gave 45 tolas gold ornaments to the respondent and gave away the rest in charity at the cost of the appellant's share. There is nothing on record to suggest or to show that the appellant did not go to see his mother Mst. Soni Bai when she had called him for distribution of the ornaments. That shows that the respondent, taking advantage of the old age and infirmity of Soni Bai, was advising her in such a manner that the appellant may not Ret even his legitimate share.
23. The learned counsel for the respondent relied on the decision in Sub-hash Chandra Das v. Ganga Prasad Das. AIR 1967 SC 878 in which it was held that--
'The Court trying a case of undue influence must consider two things to start with:
(1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and
(2) has the donee used that position to obtain an unfair advantage over the donor. Upon the determination of these issues, a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
Merely because the parties were nearlv related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise.....'
It may be noted that the aforesaid decision does not help the respondent. Admittedly, Soni Bai aged 75 years and a patient of cancer was living with and in the care of respondent and. therefore, he was in a position to dominate the will of Mst. Soni Bai. Now, whether the respondent used that position to obtain that advantage over Mst. Soni Bai or not could have been established by the evidence of respondent himself. As he did not appear in the witness-box, an adverse inference will have to be drawn against him. Therefore, it can be said that he used his position to obtain an unfair advantage from Mst. Soni Bai. Prima facie, the document, Ex. P-9, appears to be unconscionable and the burden shifted on the respondent to prove that the said document was executed by Mst. Soni Bai without being induced by undue influence.
24. In Suryanarayan Murthi v. Suramma. AIR 1947 PC 169 it was held that it is for the party propounding a will to satisfy the conscience of the Court that the instrument propounded) is the last will of a free and capable testator and secondly, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court. There is also a decision of the Privy Council in Mst. Gomati Bai v. Kanchhedilal. AIR V949 PC 272 in which it was said that a person propounding will must prove capacity of and facts of execution by testator. If a will is executed in suspicious circumstances, the pro-pounder must also prove affirmatively, that the testator knew and approved of its contents. Burden then shifts on the party, who alleges that it was executed under undue influence. Similarly in Vellaswamy Servai v. L. Sivaraman Servai, AIR 1930 PC 24 it was held that where the propounder of a will is the principal beneficiary under it and has taken a leading part in giving instructions for the execution of the will and procuring its registration and execution, the circumstances are such as would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great yigilence and scrutiny, and the propounder is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the will. In Satish Chandra Chateriee v. Kumar Satish Kantha Roy, AIR 1923 PC 73 it was held as under :--
'Charges of fraud and collusion must no doubt be proved by those who make them by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjectures are not permissible substitutes for those facts or those inferences but that by no means reauires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape.'
In view of the above case law it may be observed that the appellant has placed on record; whatever material as was available to draw inference that the gift deed, Ex. P-9, was executed by Mst. Soni Bai under the undue influence of the respondent. The burden, therefore, shifted on the respondent to prove that the said document was executed by Mst. Soni Bai by her free will and not under any undue influence. This could have been done, had the respondent appeared in the witness box and stood the test of cross-examination. As the respondent failed to discharge the burden cast upon him we hold that Mst. Soni Bai executed the gift deed under undue influence and, therefore, it is not valid and binding on the appellant.
25. For the above reasons, the respondent cannot have any claim to the property in suit either under the will, Ex. P-12, made by Chhotmal, or under the gift deed, Ex. P-9, executed by Mst. Soni Bai. As after the death of Soni Bai, the appellant alone remains the sole surviving coparcener, he becomes absolute owner of the suit property and the respondent has got no claim in it.
26. In the result, this appeal is allowed with costs. The decree passed by the trial Court is reversed and the respondent's suit is hereby dismissed with costs. Counsel's fee be taxed as per Schedule, if certified.