1. This is an appeal by the plaintiff in a partition suit, from the judgment of dismissal on the ground that some 15 year before the suit there was already a severance of the status of jointness between the plaintiff on the one side and the rest of the joint family, i.e., his father and brother (defendant No. 1), on the other. Accordingly, the trial Court held that defendant No. 1 continued in a state of jointness and excluded the plaintiff, who on the date of his father's death was separate. Besides defendant-respondent No. 1, the only other successor to the estate of their father, the plaintiff has also impleaded the defendant-respondent No. 2, wife of defendant No. 1, because ha claims that the sum of Rs. 50,000 gifted by his rather to her some months before his death was really no gift but a holding in benami, which must accordingly be treated as part of the property to be partitioned.
2. The suit as well as the appeal have been fought elaborately, with the unrelenting keenness of a civil war but the problems that arise for decision are comparatively simple and can be formulated us:
(1) The identity of the property that is sought to be partitioned.
(2) All the properties being self-acquired by Section II. Pandit, the father of these two brothers, whether both of them would inherit equally irrespective of either having been joint or separate from him on the principle set out in Badrinath v. Hardeo, AIR 1930 Oudh 77.
3. Whether there was a severance of the status of jointness without any partition of property on 6-3-1936 when the doctor wrote to the son studying in England 'You may return, you may not return has nothing to do with me. But on your return you can't stay so long as I live in our family and (I) wish to disinherit you from all your claims in future from that little share you could have' (Ex. D. 122) and further that severance not having been cured by a subsequent reunion, it continued till the 6th April 1949, when Dr. Pandit died.
The following questions would arise in case it is found that: the plaintiff and his father were still joint when the latter died.
4. Whether the gift of Rs. 50,000 made by Dr. Pandit to his daughter-in-law (defendant No. 2) and completed by handing over to her the deposit receipt was really a gift or was only a device to evade possible income-tax claims and thus the amount continued to be part of the said Dr. Pandit's estate on the date of his death.
5. Similarly, whether the gift by cheque of Rs. 25,000 made on 25-3-1949 by Dr. Pandit to its son, defendant No. 1, was really a gift or was only an Inconsequential device to enable his friend R. D. Joshi to acquire some ready money.
6. Finally, whether the conversion of five fixed deposits totalling Rs. 91,000 (to be detailed in time) from the sole ownership of Dr. Pandit, to 'either or survivor' in his name and that of his son, has the effect of completely vesting these amounts in the latter, or at only to be held by him in trust for the legal successors-in-interest of his father.
After giving the sequence of events in thiscase in Paras 3 to 16, Their Lordships in Paras 17and 18 dealt with the question of identity of property that was sought to be partitioned and theJudgment proceeded:]
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19. Ground No. (2): The plaintiff has set up an ingenious short cut in contending that joint or separate, every son inherits equally the self-acquired property of his father on the basis of propinquity. The principle that the joint son takes his father's properly to the exclusion of the son who is separate applies, according to the plaintiff, only to the property that is ancestral in the hands of the father, because in regard to it alone is succession a case of survivorship. In the instant case, all the properties of Dr. Pandit are admittedly self-acquired, even the houses in Jaora being given by will by his own father Hariram. To those familiar with the basic doctrines of Hindu Law this theory is altogether unacceptable. Still, it has in fact been propounded with a certain amount of ingenuity by the Oudh Chief Court in AIR 1930 Oudh 77 (Supra). It starts with the assumption that succession to the father's self-acquired property is by inheritance properly so called and not by survivorship. Once this position is taken, propinquity is the only guiding principle and jointness does not coma in. The theory is, no doubt, ingenious and quite consistent with modern notions of equity and reasonableness. Still it suffers from a basic fallacy, which has been cleared by the rulings of other High Courts and of the Supreme Court itself. For example in Arunachale Mudaliar v. Muruganatha Mudaliar, AIR 1953 SC 495:
'According to Mitakshara, the son has a right by birch in his father's and grandfather's estate, but a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfather's property in the hands of the father, the son has equal right with his father, while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same.'
The principle is that the son gets a right by birth in the father's property, whether it is ancestral or self-acquired. However while the son's right actually to dispose of the share is unobstructed when the father's properly is ancestral, it is obstructed when it is self-acquired by the father's full rights of disposal. But this distinction does not affect the factum of the son's getting a right at the very moment of his birth in all the property owned by the father. Once this is understood, succession, even to the father's self-acquired property, is by survivorship, properly called, and not by inheritance, Confusion is sometimes created by the loose use of the word 'inheritance' as also by some passages cited out of context from old Privy Council judgments, and also in some of the translations of the old texts, where the word 'pitriam' is translated without clear reference to whether it is 'pitriam' in respect of the son who may succeed, or in respect of the father who owns the property, In the one case, it would mean allthe property of the father, while in the other only that property which is ancestral in the father's hand. Be that as it may, the pronouncement of the Supreme Court makes the principle underlying the Oudh ruling quite untenable. Actually, even in Oudh the 1930 ruling is no more sound law. The later decision of the Allahabad High Court in Mt. Ram Dei v. Mt. Gyarsi, AIR 1949 All 545 clearly lays down: 'The self-acquired property of a Hindu father which his sons who were joint with him get on his death is in their hands joint family properly.'
20 The same problem has been discussed at some length in Girdharilal v. Fatehchand, (S) AIR 1955 Madh B 148:
'It is settled that a son has a right by birth in the father's self-acquired property. It follows as a necessary consequence that the property is unobstructed heritage devolving by survivorship and that if the self-acquired properly has been not disposed of by the father during his lifetime on his death, the undivided sons and grandsons would take the property to the exclusion of the separated sons or grandsons.'
The Oudh principle has been closely examined and dissented from in the Patna ruling reported in Satruhan Prasad v. Sudip Narain, (S) AIR 1955 Fat 408.
21. No doubt, the doctrine contained in theOudh ruling is not without some attraction, butthe Hindu Law as now applied by our Courts isdefinitely against it and obviously we cannot starton a new line, however, attractive it might seemon broad ethical grounds. That would be for thelegislature and not the law Courts. There is noforce, therefore, in this contention of the plaintiff.
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32. The foregoing discussion (contained in Paras 22 to 31 which is not reported here-Ed.) is based upon a complete examination of the course of events and the whole of voluminous correspondence, instead of appraising individual passages and momentary outbursts of temper on either side. The two had certainly been in a state of quarrel, but in intimate relationships of this nature a state of quarrel is not necessarily a state of separateness as the parties do go on for years in that condition. If it is permissible to take an analogy from another field of equally intimate relationship, the fact that husband and wife go on quarrelling is not by it-sell an indication that they have judicially separated or divorced. Continuous quarrels may lead to such an event, but that event is separate from the quarrels themselves, and its happening will have to be proved by additional material. The plaintiff and his father can be properly described as having been ambivalent towards each other, but with nothing like a formal severance of status or a disinheritance by the father having taken place.
33. While at it, it has been urged on behalf of defendant No. 1 that the plaintiff himself on a few occasions relinquished his interest in the father's property. The reference is to what he had stated on two or three occasions in his letters to his brother that he did not want to take anything not even a brass button from the father and could therefore afford to be bold and outspoken. It it difficult at all to derive any relinquishment from this. Apart from the fact that the context it merely an emotional outburst, appropos of other matters, one cannot relinquish what he cannot transfer. The property being self-acquired the right of the plaintiff in the father's lifetime is what has been called a dormant right, certainly something more than a mere expectation or spes, but something much more restricted than a transferable interest. A relinquishment cannot be in rem but has to be in favour of somebody. If a member of a joint family relinquishes his interest it means that he is transferring it to the rest of the coparcenary. If the right is such that it cannot be transferred at that stage certainly it cannot be relinquished. Possibly, by relinquishment is meant merely an acknowledgment of the position that the maker of the statement does not in his opinion have any right. From this view point, whatever has been said about the other outbursts applies to it. These statements do not show severance.
34. Our attention has also been drawn to a letter written by the plaintiff after his father's death. This is Ex. D-113 of 24-5-1949 beginning with 'My dear Huzur Gareeb Farwar', the bantering tone in which the plaintiff addresses his brother-in-law Mr. Kamat, husband of the daughter Shanti, already referred to. The following passage occurs;
'It has never been my Intention to encroach upon his (Roop's) prerogative. He is most welcome to everything the old man had left him, for I covet nothing from him that he has inherited from the old man, or anything else for that matter. Good luck to him. However, I was curious to know all that was going on after I left. I myself did not think father sane enough, but that is only a personal opinion'.
We do not know the circumstances in which this was written; nor from the peculiar beginning already noted how much was to be taken seriously and how much as mere effusion. Again, even this passage refers to what Roop has inherited from the old man, and may or may not include what the writer himself might be inheriting at the same time. There is also an indication of the disapproval of the secret doings and the readiness to challenge them, if necessary on the ground of the old man's mental condition. Anyway, a relinquishment to be effective has to be made in unequivocal terms and to the party receiving the goods or in a formal document like a registered deed. Actually, an occasion came for this when one month later defendant No. 1 was trying to persuade the plaintiff to give a formal relinquishment. This, of course, he bluntly refused.
In the result we would hold that there was no severance of status at any time between the plaintiff and his father.
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48. Ground No. 5i--Coming to the sum of Rs. 25,000 paid by cheque to defendant No. 1, we have two problems : (1) generally speaking, whether during that period Dr. Pandit was in a condition in which he could sign papers and understand what he was doing and (a) whether In the instant case he did actually sign the cheque with the intention that a sum of Rs. 28,000 out of his estate shall go at a gift, without condition, to his second son.
48. On the first question we have the expert evidence of a general nature coming from some of the doctors who attended on Dr. Pandit at about that time and at against it the statements of the witnesses like R. D. Joshi and K. C. Pandit and circumstantially of N. D. Joshi (D. W. 6). The medical evidence is that persons suffering from lung cancer of the kind that Dr. Pandit was ailing from might develop secondary symptoms among which prolonged unconsciousness is one. Therefore, it might not have been possible for the patient during most of the time, either to have signed papers or to have understood what they were about. However, it might not be always a case of continued unconsciousness without lucid intervals. Lucid intervals there might be, though no definite rule could be laid down by medical witnesses. The net result of the medical evidence, which no doubt comes from highly competent doctors, who have no axe to grind in the domestic controversy between the Pandits, is that it would be improbable for the patient to have had lucid intervals for any length of time. At the same time, lucid intervals are not altogether excluded.
As against it, in regard, at all events, to the happenings on the 25th March, when the cheque for Rs. 25,000 was drawn by Dr. Pandit in favour of his son, we have the direct evidence, one which is beyond controversy, that he endorsed payment on the cheque for Rs. 25,000 that R. D. Joshi gave him in satisfaction of the debt. There is no doubt about It. Similarly, he also drew the cheque for the same amount in favour of his son. This he did twice over because the signature being shaky on the first cheque the Bank agent N. D. Joshi wanted either that it should be personally verified before one of the Bank's assistants, or preferably a fresh cheque should be drawn in his presence. Accordingly, this was done in the presence of K. G. Pandit, one of the Bank's officers. Normally a bank would not care to send its officer to the client's house, Just to verify a signature; but in the instant case Dr, Pandit was a well-known resident of Indore and the Bank of itself was a sort of local affairs and the dealings with this client had been considerable and over years. Thus, we have the direct evidence of at least two independent witnesses, i.e. R. D. Joshi and K. G. Pandit, and if N. D. Joshi is also included, three witnesses. There is, of course, defendant No. 1. But in view of his interest we may just ignore his evidence. We have gone through their evidence, and we note that there are no serious allegations of partiality, and they are men of some position in life and of Integrity; nor is it even suggested at any time that they are taking sides.
44. A situation like this often arises, where on the one hand, the opinion-evidence of experts points to the improbability of a certain happening and on the other the direct evidence is to the effect that it did actually happen. Where the opinion-evidence excludes the happening either as impossible or as so highly improbable as to be a practical impossibility, then, of course, one should hesitate to accept even the direct evidence, for the simple reason that miracles do not happen. Certainly, where the direct evidence Itself is doubtful and is rendered Improbable by the expert evidence, then also one should hesitate to accept it, But the present situation is one when the direct evidence is quite convincing & the witnesses are Intelligent and independent, and further the expert evidence does not exclude It. We would therefore hold that Dr. Pandit did actually draw the cheque for Rs. 25,000 in favour of defendant No. 1 and handed it over to him without putting any conditions.
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46. In regard to this Rs. 25,000, as in regard to Rs. 50,000 given to defendant No. 2, the plaintiff's argument centres to a great extent on the assumption that every gift by a father to a son or by one relation to another intimate one should be presumed to be a benami affair. Authority for this is sought from the pronouncement in Gopeekrist Gosain v. Gungapersaud Gosain, 6 Moo Ind App 53 (PC) that there is:
'A widespread and persistent practice prevailing among the natives of India, whether Mahomedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the done any beneficial interest in the property.'
47. Taken out of the context, this passage in the judgment of the Privy Council delivered about a century ago might almost indicate that everybody in this country is anxious, without any purpose, to enter into benami transactions. Even assuming that benami transactions are as common as is suggested by this quotation, still before deciding whether a particular grant is genuine or benami one has to see all the circumstances. Here, for example, we have a rich old man in his last illness, obviously anxious to do something for his son, especially the one out of the two, who has throughout been with him, and has not given him cause for irritation or disappointment. The cheque is handed over, so that he could open an account in his own name, and no condition imposed as to what he should do with it. It is not as if the appropriate instrument is retained by the donor as the beneficiary; but it is parted with. In these circumstances, we cannot assume that it was benami when every indication is that it was an absolute gift. Accordingly, we would hold that fin's amount of Rs. 25,000 is not liable to partition and should therefore be excluded.
48. Ground No. 6; In regard to the five fixed deposits totalling Rs. 91,000 there is on facts, the question whether on the respective debts Dr. Pandit was in a position to understand what he was doing. But the real question is one of law regarding the implications of a deposit in joint names, with drawnable by 'either or survivor'.
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53. This problem is practically concluded by the Privy Council decision in Guran Ditta v. T. Ram Ditta, AIR 1928 PC 172 which is still good law. The facts of that case were broadly similar to those in the instant one, but the main point is that the doctrine of advancement, which is recognized by the English law, has no place in India. Accordingly, when the owner of the property directs that another's name should be included, he does not give him anything by way of advancement. He continues to be the owner, and if the other nominal holder does take the money he is answerable as a trustee to the heirs of the original owner:
'The general principle of equity, applicable both in England and in India, is that in the case of a voluntary conveyance of property by a grantor, without any declaration or trust, there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. An exception has, however, been made in English law, and a gift to a wife is presumed, where money belonging to the husband is deposited at a bank in the name of a wife, or where a deposit is made, in the joint names of both husband and wife. The exception has not, however, been admitted in Indian law.
Where money was deposited by a husband in a bank in the name of himself and his wife 'payable to either or survivor'.
Held: That the money belonged to the estate of the husband: F. J. R. Kerwick v. K. M. Kervick, AIR 1921 PC 50 Ref.'
The judgment speaks of this transaction being benami, using the word, of course, in a loose and generalized sense. 'Benami', property so called, is not a case of both the names, i.e. of the real owner and the resultant trustee appearing together, but of the latter alone being shown while the former stays in the background. In such a situation it is always X, the nominal holder, and Y, who is not named but who is the real holder or the beneficiary, finis, it is never intended in a benami transaction that the nominal holder should at all take the property. However, in certain circumstances it might turn out that he has taken the properly. In that event he will hold it as a trustee. In the case of 'either or survivor' deposits, it is directly intended that the survivor should take it. In fact, this is often the purpose of making such a deposit, enabling somebody on behalf of the real owner's estate to collect the moneys without the delay or difficulty that might otherwise he experienced. But it is equally clear that when he does take it he takes it as a trustee and nothing more.
54. It has been staled at the Bar that in an unreported case decided by this High Court it was held that in an 'either or survivor' joint deposit each of them was entitled to a half. But it is admitted that the position there was that the origin of the money was quite unknown, and there was nothing on record, except that the two names appeared. Here the origin is clear and beyond doubt, and that principle cannot be applied, The principle to be applied is what is contained in the Privy Council decision noted above.
55. On behalf of defendant No. 1, it is urged that the circumstances of this case justify a departure from that principle. It is said that there was a real intention on the part of Dr. Pandit that the money should go to his son just as if it were a gift. It is pointed out that the instructions themselves mention a desire that he should be able to collect, and further that even in Dr. Pandit's lifetime one of the deposits was collected as it matured. The others were collected and put in the separate name of defendant No. 1. One fails to see how the collection would make any difference. It was of course included that defendant No. 1 should collect, but the real question is whether having collected these deposits, he should appropriate them solely to his own use or hold it as a trustee of the successors to the estate of the original owner Dr. Pandit. Support for this contention has been sought in the ruling reported in Mohemed Sadiq Ali Khan v. Fakr Jahan Begum, AIR 1932 PC 13. There the Court was dealing with an allegation of benami property so called. Certain properties had been purchased by one of the parties in the name of his daughter. It was contended on the one hand that the daughter was only a henamidar and it was not intended that the properly should pass to her, and on the other that she was the owner and there was no benami. The evidence being considered, it was found that the title deeds were shown to the daughter's father-in-law, which itself was held to be a clear proof that the property was really to vest in her and was not to be held by her as a benamidar. But that principle has no application to a case of 'either or survivor' joint deposit. Here, the real owner has not retired to the background. He is always there, and the question is whether under our law we are going to treat this as property given for the advancement of the joint holder. On 'that AIR 1928 PC 172 (supra) is a clear answer.
56. The result of the foregoing discussion is that on a consideration of the legal implications, all these five deposits shall be liable to partition as part of the estate of the late Dr. Pandit. Assuming that instructions transferring them to 'either or survivor' deposits have really been issued by Mm, still the survivor, defendant No. 1 is nothing more than a resultant trustee and he is answerable to the estate for these sums plus interest at the rate they were carrying at that time.
57. This disposes of all the points in controversy. We therefore set aside the judgment of dis-missal passed by the lower Court and allow the appeal, and direct that a preliminary partition decree be drawn giving the plaintiff and defendant No. 1 one-half share each in the estate of their father, the late Dr. Pandit. All the immoveable properly enlisted, and the moveables covered either by inventories or by identifiable Bank deposits shall be liable to partition with the following exceptions:
(1) The sum of Rs. 50,000 gifted to defendant No. 2 shall not be brought in for partition.
(2) The sum of Rs. 23,000 given to defendant No. 1 shall also be excluded.
It may be added that the contents of the strong box in the bank of Indore should be examined in the light of what is said in paragraph 18 above; and those items, if any, alone should be brought in for partition after the exclusion of the stridhan of defendant No. 2 in the manner set out there.
58. As the plaintiff has won over the larger part of the suit, he shall get costs of both theCourts plus pleader's fee as certified.