S.S. Chadha, J.
(1) This is a suit for partition of properties andhas arisen in the following circumstances.The plaintiff, Dr. Kewal Krishan Mayor, and defendant No. 1,Shri Kailash Chand Mayor, are the sons of late L. Bal Mukand whowas the son of Shri Dina Nath. The said L. Bal Mukand, besides theplaintiff and defendant No. 1, had one son named Shri Brahm Duttwho died during the life time of L. Bal Mukand. L. Bal Mukand hadtwo daughters, defendant No. 2 Smt. Brahm Wad Sood and defendantNo. 3 Smt. Raj Kumari Dhanda. Shri Brahm Dutt who died duringthe life time of L. Bal Mukand, left behind his son Shri Anil Mayor,defendant No. 4, and a daughter Smt. Neelam Sood, defendant No. 5and a widow Smt. Parkash Mayor, defendant No. 6. Smt. Lal Deviwas the wife of L. Bal Mukand and the mother of the plaintiff anddefendant No. 1 Smt. Lal Devi died on 9th of November, 1965.L. Bal Mukand died at Delhi on 27th of June, 1973.
(2) The case set up by the plaintiff in the plaint of the suit is thatL. Bal Mukand constituted a joint Hindu family wih the plaintiff anddefendant No. 1, that L. Bal Mukand in his life time attested anaffidavit dated 4th of March, 1963 and on that date threw the property known as 8/lO and 8/11, W.E.A., Karol Bagh, New Delhiinto the common hotch potch of his Hindu undivided family constituted by him and his two sons Dr. Kewal Krishan, plaintiff andKailash Chand, defendant No. 1, that on the death of L. Bal Mukand on 27th of June, 1973 on notional partition of the above-mentionedjoint Hindu family property, l/3rd undivided share in the said property was owned by the plaintiff and the remaining l/3rd undividedshare was owned by defendant No. 1, that besides the said jointHindu family properties L. Bal Mukand had immovable property onthe plot 11-A, Factory Area at Faridabad, one thousand shares inM/s. Laldee (P) Ltd and tenancy rights in two premises, that theparties to the suit are joint owners and also in joint possession of theentire property in suit, that the shares of the parties in the propertyin suit are as specified in para 13 of the plaint, and that the defendantswere requested several times to partition the property in suit accordingto the shares held by the parties but the defendants have failed todo so, hence the suit for partition of the property in suit.
(3) The suit is being contested only by defendant No. 1- The relationship between the parties is admitted. It is, however, pleaded that thelate L. Bal Mukand constituted a joint Hindu family with defendantNo. 1 only, that the plaintiff had been separated from his father afterthe plaintiff passed his Medicine in 1945 and has always lived andmessed separately and kept his income separate, that the plaintiff hasnothing to do with the joint Hindu family consisting of late L. BalMukand and defendant No. 1, that defendant No. 1 was the onlyco-parcener in the joint: Hindu family, that the plaintiff misbehavedwith his father and mother when they came to India as poor refugeesand started from a scratch, that the declaration alleged to have beenmade on 4th of March, 1963 throwing the two properties into common hotch potch of Hindu undivided family is denied, that the plaintiffwas not a member of the joint Hindu family of late L. Bal Mukandand defendant No. 1 and did not inherit anything nor did the otherdefendants inherit any share in the estate of the deceased, that inorder to secure the entire estate to defendant No. 1 late L. BalMukand made a will on 5th of June, 1971 bequeathing all the properties to defendant No. 1 except house No. 8/10, W.E.A., KarolBagh, New Delhi which was bequeathed in favor of Miss ShashiBala, daughter of defendant No.1 for life and on her death to thetwo sons of defendant No. 1 and that the plaintiff is not entitled toclaim partition to any of the property in suit.
(4) In the replication, it is pleaded that it is wrong and deniedthat any Will was left behind by late L. Bal Mukand, that it is deniedthat the alleged Will bears the signature of L. Bal Mukand or wasmade by him while he was of sound disposing mind and that it isclear that the alleged Will has been fabricated by defendant No. 1'in order to meet the suit of the plaintiff. The plaintiff also deniedthat there was any partition at any time between the plaintiff and hisfather and defendant No. 1. The other plcas in the written statementwere traversed and those of the plaint reaffirmed.
(5) On the pleadings of the parties, the following issues wereframed:-
1. Whether L. Bal Mukand constituted a joint Hindu familywith defendant No. 1 only O.P.D.
2.Whether the plaintiff separated from the joint Hindu familyas alleged in the written statement O.P.D.
3.Was late L. Bal Mukand owner of one half share of the-joint Hindu family property Was defendant No. 1owner of the other half of the joint Hindu family property O.P.D.
4.What is the property available for partition as owned bythe joint Hindu family headed by L. Bal Mukand O.P.P.
5.To what shares are the parties entitled and in which properties O.P. Parties.
6.Has any Will been made by L. Bal Mukand as alleged ?If so, what is its effect
(6) ISSUENO. 1.-Whether L. Bal Mukand constituted a jointHindu family with defendant No. 1 only O.P.D.
ISSUENO. 2.-Whether the plaintiff separated from the jointHindu family as alleged in the written statement O.P.D.
These two issues can conveniently be taken up together. The caseset up by the plaintiff in the plaint is that L. Bal Mukand constituteda joint Hindu family with the plaintiff and defendant No. 1. Theanswer to this case by defendant No. 1 is that L. Bal Mukand constituted a joint Hindu family with defendant No. 1 only, that theplaintiff has been separate from his father after he passed his medicinein 1945 and has always lived and messed separately and kept hisincome separate and that the plaintiff has nothing to do with thejoint Hindu family consisting of late L. Bal Mukand and defendantNo. 1.
(7) In Hindus the general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved. Theburden of providing partition lays heavily on defendant No. 1 who hasset up a partial partition or separation of the plaintiff from the restof the joint Hindu family. It is the admitted case of the parties thatoriginally till 1945, L. Bal Mukand constituted a joint Hindu familywith the plaintiff and defendant No. 1. P.W.2 Dr. Kewal Krishanstated on oath that there was never any partition between him andhis father, that he never separated from his father and that theallegations of defendant No. 1 that the plaintiff misbehaved with hisfather are baseless. He further stated that they have been joint inPuja and filed copies of photographs taken on the occasion ofMundans etc. Shri Kailash Chand Mayor, defendant No. 1 appearedas D.W.6 and stated on oath that they were three brothers, the eldestwas Shri Brahm Dutt, the second is Dr. Kewal Krishan and he isthe youngest, that when they were being educated they were all jointwith their father, that Shri Brahm Dutt separated from the familyin the year 1937, that the plaintiff passed his M.B.B.S. Examinationin the year 1945, that the plaintiff came back from his studies andhis father gave money to start the practice, that the plaintiff startedhis practice and that after the money had been given by his father,the plaintiff separated from the family. This is the only evidence inthe suit relating to the alleged partition or separation of the plaintifffrom the family. D.W.6 admitted in cross-examination that he hadnever seen any partition deed executed between his father and theplaintiff, that no body ever told him that any partition deed wasexecuted between his father and the plaintiff, and that no documenwas ever executed between his father and the plaintiff after the partition of the country evidencing any partition or settlement of familyaffairs between the plaintiff and the defendants. Thus there is nowriting at all either executed in 1945 or thereafter evidencing thealleged partition. In such a case the question arises as to whetherthere was in fact a partition or not in 1945, and this can only beinferred from the acts of the parties after 1945.
(8) One member of a joint Hindu family can separate himself,whether there was severance in status as regards all members or itwas only one member that got himself separated has to be establishedlike any other fact. There is no presumption that when one memberseparates from the others that the latter remain united. In the casebefore me it is not pleaded that on the separation of the plaintiffL. Bal Mukand and defendant No.1 reunited and constituted thejoint Hindu family. Such is not the case set up in the defense. InBhagwan Dayal vs . Mst. Reoti Devi, : 3SCR440 , it was held :-
'THEgeneral principle is that every Hindu family is presumedto be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course' ofconduct. It is also settled that there is no presumptionthat when one member separates from others that thelatter remain united; whether the latter remain united ornot must be decided on the facts of each case.'
An agreement amongst remaining members of a joint family toremain united or reunite must be proved like any other fact. DefendantNo, 1 has admitted the existence of the joint Hindu family headed byL. Bal Mukand and now claims to be sole surviving co-parcener.If no agreement to reunite in 1945 between L. Bal Mukand anddefendant No. 1 is pleaded, a reasonable inference that can be drawnis that there was no partial partition.
(9) The two grounds given by defendant No. 1 in the written statement to show that the plaintiff had been separate from his father after 1945 are: (1) has always lived and messed separately and(2) kept his income separate. Cesser of commensality is not a conclusive proof of partition. It is admitted by defendant No. 1 thatthe plaintiff was residing at Lyallpur in the same building in whichL. Bal Mukand and defendant No. 1 and other members of thefamily resided but was having a separate mess. After the partition ofthe country in the year 1947, all member of this family, includingL. Bal Mukand, plaintiff and defendant No. 1 migrated together toDelhi and started living at Jaina Building, Roshan Ara Road, Delhi.It is in evidence that L. Bal Mukand had acquired tenancy premisesat Tola Ram Building, that the accommodation in Jaina Building wasonly of two rooms and not sufficient accommodation and a numberof members of the family were living there, that the plaintiff washaving his clinic in Sadar Bazar near Tola Ram Building and thatthe plaintiff requested his father to allow the plaintiff to use thefirst floor of the Tola Ram Building and it is thereafter that theplaintiff shifted to that place. The reason given by the plaintiff inhis statement for shifting is that the clinic was nearby and. thereforee,he shifted the residence to Tola Ram Building. It is thus reasonableto hold that the plaintiff may have become separate in food andresidence merely for his convenience. Separate residence of the members of joint family do not show separation or partition. Cessor ofcommensality is thus not due to the alleged partition of 1945.
(10) Keeping of income separate by the plaintiff is also not indicative of the alleged partition of 1945. By the Hindu Gains of Learning Act it is provided that notwithstanding any custom, rule or interpretation of the Hindu Law, no gains of learning shall be held not tobe the exclusive and separate property of the member of the jointfamily who acquires them merely by reason of his learning. Learningis defined in the Act as meaning education, including scientific whichis usually intended to enable a person to pursue any profession oravocation in life. The income of the plaintiff from his professionthus constituted the self-acquired property and could validly bekept by the plaintiff.
(11) The only document signed by L. Bal Mukand is the declaration dated 4/03/1963, Ext.PW-3/1, containing an admission thathe constituted a Hindu undivided family with his wife, Smt. LalDevi and two sons Mr. Kailash Chand and Dr. Kewal Krishan. Thisdeclaration was made by L. Bal Mukand when he threw the propertyknown as 8/10 and 8/11, W.E.A., Karol Bagh, New Delhi into thecommon hotch potch of his Hindu undivided family, the constituentswhereof stood embodied in paragraph 2 of Ext.PW-3/1. An assessment order was made by the Income-tax Officer for the assessmentyear 1963-64, for the assessment of L. Bal Mukand under the GiftTax Act, but the date of the assessment order is not given. Theassessment order, Ext. PW-1/2, states that Shri R. C. Sood hasattended on behalf of the assessed and it is learnt that in the previousyear the assessed has transferred the immovable property belongingto him to a Hindu Undivided Family consisting of himself, his wifeand two sons. It was contended by Mr. Sood there that the impressing of the property with the character of H.U.F. does not amount toa transfer. The property transferred to H.U.F. was, however, subjectedto Gift Tax, An appeal was preferred against the said assessmentorder. The grounds of Appeal are marked for identification purposesas 'Y'. The Grounds of Appeal have not been proved in accordancewith law as the original was not produced in the Court. It is contendedthat the grounds of appeal are quasi-judicial records and the meretendering of the certified copy is sufficient. The consensus ofthe judicial opinion, however, is that the pleadings and grounds ofappeal are not public documents and have to be proved by summoningthe original and by proof of the signatures on the original. Documentmarked 'Y' is thus not proved. The certified copy of the order of theIncome-tax Appellate Tribunal passed on 11th of June, 1970 is Ext.PW-1/1. It is stated therein' that L. Bal Mukand is an individualwho is also a member of Hindu undivided family consisting of himself, his wife and two sons. The position that the Hindu undividedfamily comprised of the plaintiff, defendant No. 1 and the deceasedwas accepted by L. Bal Mukand on 11th of June, 1970, when the order Ext. PW-I/I was passed.
(12) Mr. T. N. Sethi, the learned counsel for defendant No. 1 relied on the admission of the plaintiff that the house, namely, K-106,Haus Khas and half of the bungalow at Bungalow Road, JawaharNagar, Delhi belongs to the Hindu undivided family created by theplaintiff. An argument is built on this admission that if the plaintiffhad a separate Hindu undivided family owning separate immovableproperty, then he separated in the year 1945 and an inference shouldbe drawn to that effect. This argument proceeds on the ignoranceof a well recognised principle in Hindu Law. The plaintiff along withhis sons could in law form a self-sufficient and corporate entity withintheir family. In Bhagwan Dayal (since deceased) and thereafter hisheirs and legal representatives Bansgopal Dubey and another vs . Mst.Reoti Devi (deceased) and after her death Mst. Davavati her daughter, : 3SCR440 , it was pointed out by their Lordshipsof the Supreme Court that Coparcenary is a creature of Hindu Lawand cannot be created by agreement of parties except in the case ofreunion. It is acorporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. Thesaid family unit, whether the larger one or the subordinate one, canacquire, hold and dispose of family property subject to the limitationslaid down by law. Their Lordships quoted with approval fromMayne's Hindu Law, 11th edn., the legal position as follows :
'SOlong as a family remains an undivided family, two ormore members of it, whether they be members of differentbranches or of one and the same branch of the family,can have no legal existence as separate independent unit;but all the members of a branch, or of a sub-branch, canform a distinct and separate corporate unit within the larger corporate family and hold property as such. Suchproperty will be joint family property of the members ofthe branch inter se, but will be separate property of thatbranch in relation to the larger family.'
(13) In view of the document, Ext. PW-3/1 and the assessment orders, Exts. PW-1/2 and PW-1/1 dated 11th of June, 1970, I amnot pursuaded to place any reliance on the solitary oral statement ofdefendant No. 1 that there was a separation of the plaintiff from thefamily in the year 1945. The Joint Hindu Family headed by L. BalMukand thus constituted of the plaintiff and defendant No. 1 bothand not defendant No. 1 alone. I, thereforee, hold issues Nos. 1 and 2against defendant No. 1.
(14) Issue NO. 3.-Was late L. Bal Mukand owner of one half share of the joint Hindu family property? Was defendant No. 1 ownerof the other half of the joint Hindu family property O.P.D.By sale deed dated 2nd of December, 1947, copy Ext. D-8, L. BalMukand acquired 8/11, W.E.A., Karol Bagh, New Delhi. By sale-deeddated 2nd of December, 1947, copy Ext. D-9, L, Bal Mukand acquired8/10, W.E.A., Karol Bagh, New Delhi. The sale-deeds are in favorof L. Bal Mukand in his individual and separate name. This propertyis not acquired by L. Bal Mukand as Karta of Joint Hindu family oron behalf of the joint Hindu family. It is nobody's case that theseproperties were acquired with any assets of the joint Hindu family.The aforesaid properties were, however, being enjoyed by defendantNo. 1 Along with L. Bal Mukand. A member of the joint Hindu family who acquires immovable properties in his own name may allow theother members of that family to enjoy the property or income arisingout of it. There is nothing unusual in a joint Hindu family for itsmembers to utilise the entire income from individual properties solong as they are joint. Even in that event those properties will stillconstitute self-acquired property of a co-parcener. The only questionfor consideration is whether property No. 8/10, W.E.A., KarolBagh, New Delhi and property No. 8/11, W.E.A., Karol Bagh, NewDelhi, which were separate and exclusive properties of L. BalMukand, were thrown into common stock and formed a part of thejoint Hindu family property, and if so what were the shares at thenotional partition.
(15) Fortunately, in this case, there is a declaration made by L. Bal Mukand throwing the said two properties into the commonhotch potch. Doctrine of blending consists in throwing into the common hotch potch by a positive act or conduct on the part of theowner which act or conduct would operate to deprive him of hisseparate rights and constitute self-acquired property as the familyproperty. The legal concept of blending is embodied in the idea thatthere should be a conscious act of throwing the property into thejoint stock. The question is whether Ext. PW-3/1 indicates thatL. Bal Mukand intended to throw the said two properties in the common stock and not to claim at any stage separate title thereof. Thereal intention behind the act of executing Ext. PW-3/1 has to begathered. In my opinion, a clear intention of L. Bal Mukand to waivethe separate and exclusive right has been brought out in the declaration.The declaration of the intention of L. Bal Mukand is in clear and unequivocal terms when he states that he has wholly voluntarily andof his own free will shifted his all separate rights in the aforesaid immovable property which shall hence-forth be the property of hisHindu Undivided Family constituted of himself, his wife Smt. LalDevi and his two sons Shri Kailash Chand and Dr. Kewal Krishan.The property has been thrown in the common hotch potch of Hinduundivided family with the intention of abandoning and relinquishingall separate claims therein as is catagorically stated in the declarationExt. PW-3/1. The conduct thereafter is consistent with it, as theincome from the property is not shown as the individual incomeof L. Bal Mukand. As it was below the taxable limit no income-tax was paid on the income with joint Hindu family on thetwo said properties. Mr. Sethi contends that it some times happensthat persons make statements which serve their purpose, and in thiscase. L. Bal Mukand made the declaration with the sole purpose ofavoiding the tax liabilities as is evidenced by the statement of P.W.1.The declaration made by L. Bal Mukand was accepted by the Income Tax authorities and in fact Gift Tax was wrongly levied treating it as a gift to H.U.F. L. Bal Mukand pursued the case up to Appellate Tribunal where it was held as not subject to Gift Tax. L. BalMukand, thereforee, did not express his intention by a solitary act ofdeclaration but in series of proceedings that the two properties werethrown into the common stock. From the year 1963 to 1973, theincome was not included in the personal income of L. Bal Mukand.The expression of the intention to treat his said properties as jointfamily property is not negatived merely by treating the said propertiesas his separate properties' in the Will dated 4th of May, 1963, Ext.D-3 and in the impugned Will. Once having expressed a desire totreat the said properties as the property of the joint Hindu familyand in fact having impressed the said properties with the characterof joint family property by making a clear and unequivocal declaration, it could not be divested of that character by L. Bal Mukandwhether expressly or impliedly. The fact that the said two propertieswere thrown into the common stock and were being treated as coparcenery properties is writ-large in the written statement of defendantNo. 1. In para 9 of the plaint the plaintiff claimed that on the deathof L. Bal Mukand on 27th of June, 1973, on notional partition of thesaid two joint Hindu family properties, l/3rd undivided share in thesaid two properties was owned by L. Bal Mukand and l/3rd undivided share was owned by the plaintiff and the remaining l/3rdundivided share was owned by defendant No. 1 Kailash Chand. Inpara 9 of the written statement defendant No. 1 claims as the solesurviving co-parcener and states that late L. Bal Mukand was the ownerof 1/2 share in the joint Hindu family and defendant No. 1 wasowner of the other half. Again in para 12 of the written statement,defendant No. 1 states that he is alone in occupation of the said twoproperties which were rented out by him as a co-parcener with lateL. Bal Mukand and tenants are in possession under him. DefendantNo. 1 always treated the two properties as co-parcenery properties.These facts are, thereforee, sufficient to establish that there is an unequivocal declaration or the part of L. Bal Mukand giving up andabondoning his interest in the said two properties and throwing itin the common stock. The intention is clearly expressed to treat hisseparate property as the joint family property and thereafter disclaiming any separate interest in relation to the said two properties. Infact the present issue proceeds on the basis that the said two properties.are the joint Hindu family properties, but only the shares are disputed.
(16) Mr. T. N. Sethi submits that assuming that the declaration ofthe deceased of L. Bal Mukand amounts to abandoning his separaterights and investing the said two properties with the character ofjoint family property, even then in law there is no blending with thejoint Hindu family properties. The argument is that the basis of thedoctrine of blending is that there must be in existence the co-parcenary property as well as the separate property which is thrown intothe ancestral stock. It is urged that in the absence of the existence ofco-parcenary property, no individual or separate property of a coparcener could be impressed with the character of joint Hindu familyproperty. Reliance is placed on Mellesappa Bandeppa Desai and another vs . Desai Mallappa alias Mailesappa and another, : 3SCR779 wherein it was held :
'.. . .The rule of blending postulates that a coparcener whois interested in the coparcenary property and who ownsseparate property of his own may by deliberate and intentional conduct treat his separate property as formingpart of the coparcenary property. If it appears that property which is separately acquired has been deliberatelyand voluntarily thrown by the owner into the joint stockwith the clear intention of abandoning his claim on thesaid property and with the object of assimilating it tothe joint family property, then the said property becomesa part of the joint family estate; in other words, the separate property of a coparcener loses its separate characterby reason of the owner's conduct and get thrown intothe common stock of which it becomes a part. This doctrine, thereforee, inevitably postulates that the owner ofthe separate property is a coparcener who has an interest in the coparcenary property and desires to blend hisseparate property with the co-parcenary property.....'
(17) The argument of Shri R. M. Lal, the learned counsel for theplaintiff, on the other hand, is that under Hindu Law, there is nonecessity for joint Hindu family property to exist in order that theremay be a joint family. According to him, if the joint family consistsof a father and two sons, there is nothing to prevent the father fromimpressing upon any self-acquired property belonging to himthe character of joint Hindu family property. The counsel argues thatL. Bal Mukand may have started with no ancestral nucleus or otherjoint family property but there is no impediment for L. Bal Mukandin characterising his self-acquired property as family property. Relianceis placed in a number of authorities of the Supreme Court.
(18) The counsel firstly relied on Commissioner of Income-tax,Gujarat vs . Keshavlal Lallubhai Patel : 55ITR637(SC) . Inthat case the question referred to the High Court was whether on thefacts and circumstances of the case the throwing into the hotch potch ofthe self-acquired property and the subsequent partition among themembers of the Hindu undivided family is an indirect transfer of property so far as the wife and minor son are concerned within the meaning of Section 16(3)(a)(iii) and (iv) of the Income Tax Act. The High Court answered the question in favor of the assessed and the case came before the Supreme Court on a certificate under Section 66A(2) ofthe Income Tax Act, Thus the main question there was whether the partition of joint Hindu family property is a transfer. It was held thatwhen the joint Hindu family property was partitioned, there was notransfer of assets within Section 16(3)(a)(iii) and (iv) to the wifeor minor son. It was not a case where the absence of coparcenaryproperty was involved. Reliance is next placed on Commissioner ofIncome-tax, Madras vs . M. K. Stremann Manilal Virchand : 56ITR62(SC) , wherein it was held :
'............WHENinstructions are given that the self-acquiredproperty is to be treated as joint family property, in ouropinion, at that moment the property assumes the characterof joint family property. On execution, the deed becomesevidence of a pre-existing fact, i.e., of throwing the self-acquired property into the hotch-potch.'
In that case, however; the argument proceeded on the basisthat the self-acquired properties were made available for partition Along with the only item of joint family property. That itself constituted proofthat antecedent to the partition, there was blending of the self-acquiredproperties of the assessed with his ancestral joint family property. Thusit was found that there was in existence ancestral joint family property.Reliance is next placed on Lakkireddi Chinna Venkata Reddi andothers vs . Lakkireddi Lakshmama, : 2SCR172 (5), wherein it was held :
'............PROPERTYseparate or self-acquired of a member ofa joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown bythe owner into the common stock with the intention ofabandoning his separate claim therein: but to establishsuch abandonment a clear intention to waive separaterights must be established..........'
This view of the law proceeded on the assumption that therewas blending of separate property with joint family property. Relianceis next placed on G. Narayana Raju (dead) by his legal representative vs . G. Chamaraju and others, : 3SCR464 , wherein it was held:
'IT is a well established doctrine of Hindu Law that propertywhich was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcenerinto joint stock with the intention of abandoning allseparate claims upon it. The doctrine has been repeatedlyrecognised by the Judicial Committee......'
In that case the Supreme Court rejected the argument that the business of Ambika Stores became converted into joint family business atany subsequent stage by the conduct of M in throwing the businessinto the common stock or in blending the earnings of the business withthe joint family income. The existence of the joint family property orancestral property as a necessary ingredient for the blending was notdirectly involved or considered in any of these cases relied upon bythe counsel.
(19) Counsel for the parties have relied on Goli Eswariah v. Commissioner of Gift Tax, Andhra Pradesh, : 76ITR675(SC) where the question arose 'whether the declaration by whichthe assessed has impressed the character of joint Hindu family property on the self-acquired properties owned by him amounts to a'transfer' so as to attract the provisions of the Gift Tax Act'. Beforeconsidering the question it was held:
'TOpronounce on the question of law presented for our decision, we must first examine what is the true scope of thedoctrine of throwing into the 'common stock' or 'commonhotch-pot'. It must be remembered that a Hindu familyis not a creature of a contract. As observed by this Courtin Mellesappa Bandeppa Desai v. Desai Mallappa, : 3SCR779 that the doctrineof throwing into common stock inevitably postulates thatthe owner of a separate property is a coparcener whohas an interest in the coparcenary property. The existenceof a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self-acquiredproperties. The separate property of a member of ajoint Hindu family may be impressed with the characterof joint family property if it is voluntarily thrown by himinto the common stock with the intention of abandoninghis separate claim therein. The separate property of aHindu ceases to be a separate property 'and acquires thecharacteristic of a joint family or ancestral property notby any physical mixing with his joint family or hisancestral property but by his own volition andintention by his waiving and surrendering his separaterights in it as separate property. The act by which thecoparcener throws his separate property to the commonstock is a unilateral act. There is no question of eitherthe family rejecting or accepting it. By his individualvolition he renounces his individual right in that propertyand treats it as a property of the family. No longer hedeciarcs his intention to treat his self-acquired propertyas that of the joint family property, the property assumesthe character of joint family property. The doctrine ofthrowing into the common stock is a doctrine peculiarto the Mitakshara School of Hindu Law.'
(20) Mr. Sethi Submits that the law laid down by the SupremeCourt is clear when it was laid down that the doctrine of throwinginto common stock inevitably postulates that the owner of a separateproperty is the coparcener who has an interest in the coparcenaryproperly and desires to blend his separate property with the coparcenary property. However, in none of the two cases the question wasspecifically raised whether the separate property could be impressedwith the character of joint family property in the absence of an alreadyexisting joint family property or coparcenary property. It is, however,clearly laid down by the Supreme Court in Goli Eswariah's case(Supra) that the separate property of a Hindu ceases to be a separateproperty and acquires the characteristics of joint family or ancestralproperty not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving andsurrendering his separate rights in it as a separate property. As I understand the law laid down by the Supreme Court, it does not lay' downthat a separate property could not be impressed with the characterof joint Hindu family property in the absence of the existence of a joint family or co-parcenary property. The existence of joint familyproperty is not necessary before a member of the family throws hisself-acquired property in the common stock. The existence of a jointestate is not an essential requisite to constitute a joint family and afamily which does not own any property, movable or immovable,may, nevertheless be joint. If the existence of the co-parcenaryproperty is considered as a pre-requisite for throwing theproperty into the common hotch potch or common stock, then, onlythose joint families who are already possessed of ancestral property,can receive self-acquired properties of coparceners. If the argumentis taken to its logical conclusion, it will lead to absurdities or a situationthat no joint Hindu family which does not own any ancentral property, can ever acquire any property from any individual co-parcenerwho intends to impress the self-acquired property with the characterof a joint family property. The term 'blending' may suggest the existence of a nucleus but that does not mean that it is not possible toconceive of co-parceners impressing their self-acquired properties withthe status of the joint family property unless it is shown that thejoint Hindu family is already possessed of a nucleus or ancestral stockor ancestral property. There is no reason to limit the cases of blending to only those families owning co-parcenary property. Throwing theself-acquired property in the common stock or hotchpot is a well recognised incidence of the joint Hindu families. The joint Hindu familyis also a creature of law and cannot be created by actof parties except in case of reunion by some co-parceners or to theextent to which a stranger may be adopted in the family. But theabsence of an antecedent history of jointness between the father andhis ancestors is no impediment in the father informing a joint Hindufamily with his sons, wife or unmarried daughters. In such cases thefather may throw his self-acquired properties into the family hotchpotabandoning all separate claims to those properties. If the argument isaccepted that the family hotchpot was empty and there was nothing withwhich the self-acquired property could be blended, then it will lead to ananomolous situation, that is the joint Hindu families for ever existingwithout family properties even through the co-parceners intend to impressself-acquired properties with the character of family property. So longas there is a co-parcenary or joint Hindu family and there is the self-acquired property of a co-parcener, then that co-parcener must be heldto be able to throw his self-acquisitions into the joint family stock.All that is required to convert separate property of a co-parcener is theexistence of a co-parcenary or joint family and an unequivocal declaration which would indicate the intention to treat the self-acquiredproperty as that of a joint family. In the case before me there is a declaration of Lala Bal Mukand impressing upon the said properties belonging to him the character of joint family property. The intentionof Lala Bal Mukand to abandon his separate rights and invest it withthe character of the joint family property is clearly brought out from the document Ext. PW.1/3 coupled with the stand of defendant No. 1in treating the two properties as co-parcenary properties. Thus thereis no warrant for the contention that in law Lala Bal Mukand has notimpressed his said two properties with the character of joint familyproperty by throwing it voluntarily and intentionally into the commonstock of the family. It was open to Lala Bal Mukand to throw his seff-acquired property in the family hotch potch even though there was nojoint or ancestral property already existing. Thus Lala Bal Mukandwas owner of 1 /3rd share of the said two joint family properties.Plaintiff is the owner of 1/3rd and defendant No. 1 is the owner of1/3. I hold issue No. 3 accordingly.
(21) Issue NO. 4.-What is the property available for partitionowned by the joint Hindu family headed by L. Bal Mukand O.P.P.I have already held under issue No. 3 that the property 8/10,W.E.A., Karol Bagh, New Delhi and 8/11, W.E.A., Karol Bagh, NewDelhi which was separate and exclusive property of L. Bal Mukand,was thrown into common stock and formed a part of the joint Hindufamily property. Once having expressed a desire to treat the saidproperties as the property of the joint Hindu family and in fact havingimpressed the said property with the character of joint Hindu familyproperty by making a clear and unequivocal declaration, it could notbe divested of that character by L. Bal Mukand whether expressly orimpliedly. Thus these are the only two immovable properties availablefor partition as owned by the joint Hindu family headed by L. BalMukand. Issue No. 4 is held accordingly.
(22) Issue NO. 5.-To what shares are the parties entitled andin which properties O. P. Parties.action 6 of the Hindu Succession Act, 1956 recognises the principle of ordinary Hindu Law that in case of a co-parcenary, the interestof the deceased co-parcener would go by survivorship to the survivingco-parceners and not in accordance with Hindu Succession Act. But proviso to Section 6 modifies it by providing that if the deceased left behind him a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such femalerelative the interest of the deceased in the Mitakashara co-parcenaryproperty shall devolve by testamentary or intestate succession lender the Act and not survivorship. Section 30 read with Section 6 confers on co-parceners in Mitakashara family certain rights. Co-parcener's undivided interest as quantified by Section 6 can be disposedof by co-parceners by means of testamentary disposition. ExplanationnI to Section 6 assumes notional partition and though family continues undivided after death of a male member, property of undividedfamily gets diminished to the extent of the share of male memberdying. There is no dispute to the legal proposition that on a notionalpartition of the joint Hindu family property, 1/3rd undivided sharewas owned by L. Bal Mukand, 1/3rd undivided share was owned bythe plaintiff and the remaining 1/3rd by defendant No. 1 KailashChand. l/3rd share of the deceased goes to his heirs by testamentaryor intestate succession. The effect of the Will made by L. Bal Mukandis that it will affect the said two properties to the extent of his 1/3rdinterest which must be held to have been bequeathed under it. Considering the finding on issue No. 6, the plaintiff is only entitled to1/3rd share in the two properties, namely, 8/10 and 8/11, W.E.A.,Karol Bagh, New Delhi. Defendant No. 1 is entitled to the remainingl/3rd in the two properties. Defendant No. 1 is also entitled to l/3rdshare in property 8/11, W.E.A., Karol Bagh, New Delhi bequeathed inhis favor under the Will; l/3rd share in the house No. 8/10, W.E.A.,Karol Bagh, New Delhi goes to Miss Shashi. daughter of defendantNo. 1 for life and on hear death to the two named sons of defendantNo. 1. I hold issue No. 5 accordingly.
(23) Issue NO. 6.-Has any Will been made by L. Bal Mukandas alleged If so, what is its effect ?The case of defendant No. 1 in the written statement is that lateL. Bal Mukand made a Will on 5th of June, 1971 of which a copywas given by defendant No. 1 to the plaintiff and other defendantswho have been parties to the suit and were informed of the Will andits contents By Will dated 5th of June, 1971, late L Bal Mukandhad left the house No. 8/10, W.E.A., Karol Bagh, New Delhi toMiss Shashi Bala, daughter of defendant No. 1. for life and on death tothe two sons of defendant No. 1. The rest of the propertiesare alleged to have been bequeathed under the Will todefendant No. 1 including 8/11, W.E.A.. Karol Bagh, New Delhi.The case set up in the replication by the plaintiff is that it is wrongand denied that any Will was left by L. Bal Mukand, that no copy ofthe Will has been given to the plaintiff, that it is denied that anyWill was at any time made by the deceased L. Bal Mukand, thatit is significant to note that until the present suit was filed by theplaintiff, defendant No. 1 never spoke of any Will, that it is deniedthat the alleged Will bears the signatures of L. Bal Mukand deceasedor was made by him while he was of sound disposing mind, and thatit is clear that the alleged Will has been fabricated by defendant No.I in order to meet the suit of the plaintiff.
(24) Mr. R. M. Lal firstly contends that the proof of the Willalleged to have been made by L. Bal Mukand would necessarily meana Will which is subsisting and not revoked by the testator duringhis life time. The Will, Ex. D-4 records a note 'I have signed fourcopies of this Will, one of which has been put in the Punjab NationalBank, Naya Bazar, Delhi-6, one copy has been given to Shri K. S.Thapar, Advocate, one copy has been given to Shri K. C. Mayorand the fourth copy I have kept for myself'. Thus one copy of theWill was deposited with Punjab National Bank, Naya Bazar, Delhi,one copy was kept by late L. Bal Mukand himself, one was deliveredto Shri K. S. Thapar and one was delivered to defendant No. 1.Only one copy of the Will in possession of defendant No. 1 hasbeen placed on the record. The counsel submits a presumptionis raised in cases where a Will is traced in the possession of the testator and is not forthcoming after his death, that the Will has beendestroyed with the intention of revoking it. There is no evidence onthe record, according to the counsel, to repel it and thus that presumption must prevail. Reliance is placed on Harilal Chatterjee vs.Sarat Chandra Chatterjee & Ors., 43 C.W.N. Calcutta 824, (8)wherein it was held that when it is shown that the Will, afterexecution, was in the testator's possession and after his death theoriginal is not produced by the propounder, the presumption is thatthe testator had destroyed it for the purpose of revoking it. Relianceis placed also on Allan vs. Morrison and others, 1900 Appeal Cases604, (9) wherein it was held :-
'ITwas not denied that there is a presumption (to use THE language of Lord Wensleydale in Welch v. Phillips, (1836)1 Moo. PC. 299, 'that if a will traced to the possessionof the deceased and last seen there is not forthcoming onhis death, it is presumed to have been destroyed by himself : and that presumption must have effect unless thereis sufficient evidence to rebut it.' Whether this shouldbe called a presumption of law or fact does not seemmaterial. It may, of course, be rebutted, and (as saidby Cockburn C.J. in Sugden v. Lord St. Leonards, I P.D. 154 'the presumption will be more or less strongaccording to the character of the custody which thetestator had over the will'.'
Reliance is also placed on Pt. Devi Charan vs. Durga PorshadChhanu Lal and others, : AIR1967Delhi128 wherein it washeld that the presumption raised in such cases is that where a Willis traced to the possession of the testator and is not forthcoming afterhis death, the Will must be taken to have been destroyed by thetestator with the intention of revoking the same.24-A. I may point out that there is no assertion in the plaint orin the replication that the Will dated 5th of June, 1971 was revoked.The burden of proving that a Will has been revoked rests on theperson asserting so. The plaintiff did not state on oath that thelast Will dated 5th of June, 1971 was revoked. There is thus nooccasion to resort to the presumption on the facts of this case. Thereis positive evidence to show that two copies of the Will are available:one on the record of the suit and the other was brought by ShriK.. S. Thapar in the Court when he stated on oath that he hasbrought in the Court a copy of the Will that was kept by him. Defendant No. 1 was cross-examined with respect to the remaining twocopies of the Will when he stated that he did not know whetherhis father actually deposited a copy of the Will with Punjab NationalBank, Naya Bazar, Delhi, that he is also not aware whetherhis father withdrew the copy of the Will from Punjab National Bankand tore it out and that that Will might still be there with PunjabNational Bank. The plaintiff made no effort to summon any officialof the Punjab National Bank to show that the copy of the Will hadbeen withdrawn by the testator before his death. As regards thefourth copy, defendant No. 1 deposed that the note on the back onpage 3 of Ex. D-4 showing that his father had kept a copy of theWill must be correct, that that copy of the Will might be lying inthe papers of his father and that he did not search for that copyof the Will. Before the plaintiff can build an argument that the copyof the Will was not forthcoming from the possession of the testator atthe time of his death, defendant No. 1 should have been given anopportunity to search for that copy of the Will. The plaintiff onlyrest content by asking the question from defendant No. 1 that hedid not search the copy of the Will, left the matter there. No opportunity was given to defendant No. 1 to have it traced and place iton the record and as such no presumption can be drawn on the factsof this case. The Courts have to determine the case set up by theparties in the pleading's. The case of the revocation of the Will hasneither been set up nor put in any issue nor any evidence has beenled by the plaintiff to prove the revocation of the Will. In thesecircumstances, defendant No. 1 was not alive that he had to accountfor all the four copies of the Will executed by the testator. Thattakes me to the consideration of the question of proof of the Will.
(25) The mode of proving a Will does not ordinarily differ fromthat proving any other document except as to the special requirementof the attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. A propounder of a Will has, thereforee, to prove that the Will was executed by the testator in a sound and disposing state of mind. The counsel for the propounder invited my attention to the testimony ofthe two attesting witnesses to the Will. The first witness is Shri K.S. Thapar, Advocate who has stated on oath that two months before5th of June, 1971 when the Will was executed by L. Bal Mukand,he consulted the witness about the drafting of a Will, that the Willwas drafted by him, that the Will was signed by L. Bal Mukand atthe house of Dr. V. D. Malik, that at the time of the execution of theWill, L. Bal Mukand was in a fit state of health and disposingmind, that the Will was read over to L. Bal Mukand and understoodby him, that L. Bal Mukand signed the Will on all the pages andat the end of it, that when L. Bal Mukand signed this Will, thewitness and Dr. V. D. Malik were both present, that the witness.and Dr. V. D. Malik attested the Will in the presence ofL. Bal Mukand, that they were both present at the same time to attestthat, that the Will bears his signatures at point 'A' and the Willis Ex. D-4, that the signature of L. Bal Mukand are marked 'E-F'in Ex. D-4, that at the time of execution of Ex. D-4 three othercopies of the Will were also similarly executed and attested, thatone copy of the Will is with Punjab National Bank, Naya Bazar.Delhi, one copy was kept by late L. Bal Mukand himself and onewas delivered to the witness and one more copy of the Will was tobe sent to defendant No. 1 by him and he sent it by post, and thathe has brought in the Court a copy of the Will that was kept with him. Dr. Vishnu Dutt Malik, the other attesting witness, deposedthat he knew L. Bal Mukand who executed a Will in his presence.that at that time L. Bal Mukand was in a perfect disposing mind andhe could understand, that the Will was read over to the testator, thatthe Will is signed by the witness at two places 'H' and 'I' that Mr.Kishan Swarup Thappar was the other witness who signed the Will,that L. Bal Mukand signed all the pages of the Will after the Willwas read over to him, that the witness remembers there were fourcopies of the Will, that L. Bal Mukand signed all the copies of theWill first and thereafter the witness signed all the copies at two pages.that after the witness had signed all the four copies at two placeseach Shri Kishan Swarup Thappar signed all the four copies, thatL. Bal Mukand was present when he signed all the four copies ofthe Will, and that they both signed in the presence of each other andEx. D-4 is that Will. General cross-examination was directed againstDr. Malik about the age for loosing soundness of mind, but the witness answered that a person may be sound even at the age of 90years. Dr. Malik denied the suggestion that the Will was attestedlong after the death of L. Bal Mukand. There is nothing on therecord to show that Dr. V. D. Malik has any motive or cause tomake a false statement except that be is the brother-in-law (wife'ssister husband) of Shri K. S. Thappar, D.W. 2. No ground has beenbrought to my notice which may impel rejection of his clear andcogent testimony as to the execution of the Will by the testator,his sound disposing state of mind and as to the genuineness of theWill. A lot of cross-examination was directed to Shri K. S. Thapparto bring out that the witness was interested in the propounder. However, the counsel for the plaintiff has not been successful in bringingout any motive or cause compelling Shri Thappar to fabricate theWill and to make a false statement. It is in evidence that Mr. Thaparwas a retained counsel for M/s. Laldee (P) Ltd., a Company promotedby the testator in the year 1957, and was initially being paid a yearlyretainc of Rs. 3,600 and thereafter Rs. 1,800. It is, thereforee,reasonable to infer that Mr. Thapar was entrusted with the job ofdrafting the Will, its execution and later on its attestation. Mr.Thapar knew defendant No. 1 as a son of L. Bal Mukand. Hedenied the suggestion that he contributed in the fabrication of theWill. Ex. D-4, as he was under the obligation of L. Bal Mukand.Mr. Thapar admits that there are certain obligations of L. Bal Mukandon him, that his daughter was betrothed in a multi-millionaire familyand he did not have the resources to perform the marriage and at thattime L. Bal Mukand came to his rescue and helped him with financeand the marriage was performed. But obligation to L. Bal Mukandcould not be a cause to fabricate the Will in favor of defendantNo, 1. In fact soon after the death of L. Bal Mukand, Mr. Thaparis not even the retained counsel for M/s. Laldee (P) Ltd. No suggestionis put to Mr. Thapar as to why he fabricated the Will at the instanceof defendant No. 1 and in his favor or in the favor of the childrenof defendant No. 1. Thus there is clear and cogent testimony ofthe two attesting witnesses as to the execution of the Will by thetestator and his sound disposing mind.
(26) The counsel for the plaintiff contends that there are variouscircumstances and intrinsic evidence in the Will regarding forgerywhich cast suspicion on the execution of the Will and impel reiectionof the testimony of the attesting witnesses. Before dealing with allthose circumstances, it would be apposite to state the settled principlesto be applied for determining the genuineness of a Will, its executionand attestation.
(27) In H. Venkatachala Iyengar vs. B. N. Thimmajamma andothers, A.1.R. 1959 S C 443 Gajendragadkar J. whospoke for the Court, considered the law relating to the true legalposition in the matter of onus of proof of Wills, nature and appreciationof the evidence and the duty of the Court in considering the surrounding circumstances. It was pointed out that Sections 59 and 63 of the Indian Succession Act, 1925 are relevant. Section 59 provides that every person of sound mind, not being a minor, maydispose of his property by Will and the three illustrations to this sectionindicate what is meant by the expression 'a person of sound mind'in the context. Section 63 requires that the testator shall sign oraffix his mark to the Will or it shall be signed by some other personin his presence and by his direction and that the signatures are markedshall be so made that it shall appear that it was intended therebyto give effect to the writing as a Will This section also requires thatthe Will shall be attested by two or more witnesses as prescribed. Thusthe question as to whether the Will set up by the propounder is provedto be the last Will of the testator has to be decided in the light ofthese provisions. Has the testator signed the Will Did he understand the nature and effect of the disposition in the Will Did heput his signature to the Will knowing what is contained? Statedbroadly it is the decision of these questions which determines thenature of the finding on the question of the proof of Wills, It wasthen observed :-
'19.However, there is one important feature which distinguishes Wills from other documents unlike other documents the Will speaks from the death of the testator andso, when it is propounded or produced before a Court,the testator who has already departed the word cannotsay whether it is his Will or not ; and this aspect naturallyintroduces an element of solemnity in the decision of thequestion as to whether the document propounded isproved to be the last Will and testament of the departedtestator. Even so, in dealing with the proof of the Willsthe Court will start on the same enquiry as indicates ofthe proof of documents. The propounder would be called upon to show by satisfactory evidence that theWill was signed by the testator, that the testator at the relevant time was in sound and disposing stateof mind, that he understood the nature and effect of thedispositions and put his signature to the document of hisown free will. Ordinarily when the evidence adduced insupport of the Will is disintersted, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courtswould be justified in making a finding in favor of thepropounder. In other words the onus on the propoundercan be taken to be discharged on proof of the essentialfacts just indicated.
20.There may, however, be cases in which the execution ofthe Will may be surrounded by suspicious circumstances.The alleged signature of the testator may be very shakyand doubtful and evidence in support of the propounder'scase that the signature in question is the signature of thattestator may not remove the doubt created by the appearance of the signature; the condition of the testator'smind may appear to be very feeble and dibilitated; andevidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator, thedispositions made in the Will may appear to be unnatural,improbable or unfair in the light of relevant circumstances;or, the Will may otherwise indicate the said dispositions may not be the result of the testator's free will andmind. In such cases the Court would naturally expectthat all legitimate suspicious should be completely removedbefore the document is accepted as thelast Will of the testator. The presence of such suspiciouscircumstances naturally tends to make the initial onusvery heavy; and, unless it is satisfactorily discharged,Courts would be reluctant to treat the document as thelast Will of the testator. It is true that, if a caveat isfiled alleging the exercise of undue influence, fraud orcoercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators;but, even without such pleas circumstances may arisedoubt as to whether the testator was acting of his ownfree will in executing the Will, and in such circumstances,it would be a part of the initial onus to remove any suchlegitimate doubt in the matter.'
(28) In Shashi Kumar Banerjee and others vs. Subodh KumarBanerjee since deceased and after him his legal representatives andothers, : AIR1964SC529 the Supreme Courthad another occasion to consider the mode of proof of the Will andreiterated the principles laid down in H. Venkatachala Iyengar vs.B. N. Thimmajamma and others (supra). In Ramchandra Rambuxvs. Champabai and others. : 6SCR814 Mudholkar J., who spoke for the Court, quoted with approval thelaw laid down by the Privy Council in Sarat Kumar Bibi vs. SakhiChand A.I.R. 1929 Pc 45 where it has been statedthat in all cases in which a Will is prepared under circumstances whicharouse the suspicion of the Court that it does not express the mindof the testator, or that it wa.s prepared under highly suspicious circumstances, it is for the propounder of the Will to remove that suspicion. In order to judge the credibility of the witnesses, the Court isnot confind only to the way in which the witnesses have deposedor to the demeanour of witnesses, but it is open to it to look into thesurrounding circumstances as well as the probabilities, so that it maybe able to form a correct idea of the trustworthiness, of the witnesses.Again the principles laid down in H. Venkatachala Iyengar vs.B. N. Thimmajamma and others (supra) were reiterated.
(29) The various contentions of Shri R. M. Lal, the learnedcounsel for the plaintiff, as to the suspicious circumstances may nowbe considered in the light of the aforesaid settled principles. The firstcircumstance pointed out by the learned counsel is that the conditionof the testator's mind appeared to be very feeble and dibilitated andthe evidence on the record of this suit has not succeeded in removingthe doubt as to the mental capacity of the testator. 1. is urged thatthe Will propounded by defendant No. 1 cannot be as a result of thefree will of the testator who died in mysterious circumstances. TheWill, Ex. D-4, was executed on 5th of June, 1971. L. Bal Mukandwas the Managing Director of M/s. Laldee (P) Lid. at that timeand continued as such till his death. Mr. Thapar deposes that it isin the middle of March or April, 1971 when L. Bal Mukand instructedhim to draft the Will and the matter was discussed for 2 or 3 monthsbefore the final draft was prepared. Mr. Thapar states that he didnot consider the necessity of having a certificate from a doctor aboutthe health or disposing mind of L. Bal Mukand as the other attestingwitness is an eminent doctor. In my opinion, what the law requiresis that the testator must have sound disposing mind and possessed ofall his faculties and be aware of what he is doing. The degree ofcapacity which must be retained by the old is dealt with in Den vs.Vanclevc (2 Southard at p. 600 cited in Banks vs. Goodfellow.(1870) Lr 5 Ob 549 (15) wherein it was said :-
'BYthe terms 'a sound and disposing mind and memory', ithas not been understood that the testator must possessthese qualities of mind in the highest degree; otherwise,very few would make restaments at all : neither has it beenunderstood that he must possess them in as great a degreeas he may have formerly done, for even this would disable most men in the decline of life the mind may bein some degree dibilitated, the memory may have becomein some degree enfeebled, and yet there may be enoughleft clearly to discern and discreetly to judge of all thosethings and all those circumstances, which enter into thenature of a rational, fair, and just testament. But if theyhave so far failed as that these cannot be discerned andjudged of, then he cannot be said to be of sound and disposing mind and memory.'
(30) The testator discussed the matter with his counsel for two orthree months before the final draft was prepared and had two orthree sittings for preparing the Will. At that time the testator wasmanaging the affairs of M/s. Laldee (P) Ltd. as its ManagingDirector, and must be having a rational thinking and possessed ofall senses. The testator must. be aware and knew full well the implication of what he was doing indicating that he was possessed of hisfaculties. If the testator was able to discern and discreetly judge hisproperties and the persons he chose to benefit by the bequest, thenit can be said that the testator was of sound and disposing mind. Dr.V. D. Malik categorically states that L. Bal Mukand executed the Willin his presence and at that time L. Bal Mukand was in a perfectdisposing mind and he could understand. When the plaintiff comesin the witness box in the rebuttal, he does not have the courage tochallenge the mental capacity of the testator and merely states thathis father did not execute any Will in the year 1971. The plaintiffis also absolutely silent about the alleged mysterious circumstances ofthe death of the testator. Defendant No. 1 has stated on oath that aswas usual with his father, he went for the morning walk and didnot return and that they were informed by the Police that his deadbody was found. In the cross-examination, defendant No. 1 admitsthat it is true that his father died on the Jamuna bank at Okhla, thatit could be that the spot where the dead body was found, is about10 miles from their place at Western Extension Area and that The police gave the information on the evening of 27th of June, 1973about the dead body being found at Okhla. Defendant No. 1 stated thathe thought that his father died of heart attack a; Okhla and there wasno foul play and it is incorrect to suggest that his father was not happyand he died an unnatural death. On these facts, in my opinion, theplaintiff is only talking airily about this circumstance of suspicion.
(31) Another circumstance brought out by the counsel is that thedispositions made in the Will are unnatural, improbable and unfairand cannot be the resuit of the testator's free will. In Shashi KumarBanerjee and others vs. Subodh Kumar Banerjee since deceased andafter him his legal representatives and others (supra), the SupremeCourt laid down that if the propounder succeeds in removing the suspicious circumstances, the Court could grant probate, even if the Willmight be unnatural and might cut off wholly or in part near relations.It is established on the evidence on the record that the plaintiff hasbeen separate in mess and residence from L. Bal Mukand since 1948.The plaintiff has acquired various immovable properties, namely,K-106, Hauz Khas, New Delhi, 11-UB, Bungalow Road, JawaharNagar, New Delhi and another property in the name of his wife at24/13, Shakti Nagar, Delhi. Defendant No. 1 does not own anyimmovable property. After the partition of the country, defendantNo. 1 has been carrying on business earlier in the testator's sole proprietorship firm and thereafter in the company M/s. Laldee (P) Ltd.promoted by L. Bal Mukand. Defendant No. 1 and the testator hadbeen living together and there is nothing unnatural in the testatorbequeathing the entire property in favor of defendant No. 1 or hisheirs.
(32) It is next contended that the alleged signatures of the testatorare shaky and doubtful, thus casting a suspicion on defendant No. 1'scase. The testator made the Will on 5th of June, 1971 at the ripeage of about 80 years. There are certain contemporaneous documents admittedly signed by the testator which have been placed onthe record and were marked as Exts. D-1, D-2, D-3, D-5, D-6 andD-7. Mrs. R. K. Vijh, D. W. 5, handwriting expert examined thedisputed signatures of L. Bal Mukand in the Will, Ex. D-4 at 5places and compared it with the admitted signatures and expressedthe opinion that the disputed signatures on the Will arewritten by the writer of the admitted signature. This evidence isno doubt rebutted by the statement of Shri V. K. Sakhuja, the otherhandwriting expert produced by the plaintiff. Shri Ramesh ChandSood, P. W.1 is the Income Tax Practitioner and is nephew of L.Bal Mukand. From 1962-63 Mr. Sood has been the Income TaxAdviser to L. Bal Mukand. He deposes that 'I have seen the documents signed by L. Bal Mukand during the course of my dealings.To my eyes the signatures on Ex. D-4 appear to be the signatures ofL. Bal Mukand'. Mr. Sood is produced by the plaintiff and wouldnot support the propounder of the Will, unless the signatures arereally of L. Bal Mukand. Then there is the unimpeachable evidence' ofthe two attesting witnesses already discussed and accepted by me.This contention has no merit.
(33) It is next contended that having regard to the normal courseof events when the testator knew that his Will is bound to be contested, the testator would have presented it for registration before theSub-Registrar and got it registered. This contention does not impressme as it is not the requirement of the law that the Will must be compulsarily registered. It is not uncommon that when some membersof the family are sought to be discriminated against having regardto the circumstances which may appear to the testator to provide justification for it, the Will is always kept as a closely guarded secret.Mr. Thapar did not suggest to the testator that till the time the testator was alive, the Will could not be inspected by anyone. May be Mr.Thapar was not aware of such a provision in the Registration Act, orkeeping the unregistered Will in a sealed cover with the Sub-Registrardid not strike him as is stated by him. It is never in the interest ofthe testator that those who have been deprived of the benefit to knowof the execution of the Will or the contents thereof. This circumstance,therefore, does not invalidate the Will.
(34) Shri R. M. Lal further points out to the intrinsic evidence inthe Will establishing to the forgery. I may, thereforee, consider thenature and contents of the document itself. In the opening part, it isstated that 'I have not made any Will so far and if any other Will is putup by any one, the same must be held to be a forgery'. Ex. D-3 is theoriginal Will dated 4th of May, 1963 produced by defendant No. 1during the trial. Mr. Thapar who has drafted the impugned Will,stated that L. Bal Mukand told him that he had not executed any Willand that the statement made in Ex. D-4 that L. Bal Mukand had notmade any Will so far would be attributed to him as a lapseon his memory as L. Bal Mukand was about 78 years old at thattime. In preparing a Will at that ripe age, there is a circumstancewhich may indicate that the existence of the earlier Will has notbeen reflected in the document, but it can be on account of partial lossof memory and, thereforee, of no consequence. The Will further statesthat 'am now possessed of considerable moveable and immovableproperties in Delhi, Faridabad and Ballabhgarh'. The counsel contends that it is established on the record that the testator was notpossessed of any property at Ballabhgarh. There is no merit at all inthis aspect as it is specifically stated that a list signed by the testatorand the witnesses of all properties held is attached therewith asAnnexure 'A'. Annexure 'A' does not describe any property at Ballabgarh. Faridabad is in Bailabhgarh Tehsil. One factory of M/s. Laldee(P) Ltd. was at Ballabhgarh. Defendant No. 1 offers an Explanationn on oath that in the Will Ex. D-4i when L. Bal Mukand mentionsthat he owned properties at Ballabhgarh, he must be thinking of thatproperty. This Explanationn is very plausible. In the list of propertiesheld by L. Bal Mukand, houses Nos. 8/10 and 8/11, W.E.A., KarolBagh. New Delhi is mentioned. These properties were thrown into thecommon stock of the joint Hindu family by the declaration made on4th of March, 1963, Ex. PW-1/3. The counsel contends that theforger did not know of the declaration, as the testator would not haveincluded it as his personal property. The Will dated 4th of May, 1963,Ex. D-3, was shown to the plaintiff and he admitted that it is signedby his father at points 'A' and 'B' and that whatever is written in thisdocument is correct. In this Will made within two months of thedeclaration. Ex. PW-1/3, the testator is also staling the houses Nos.8/10 and 8/11, W.E.A., Karol Bagh, New Delhi as his self-acquiredproperties. This is factually incorrect as the two properties formedpart of the joint Hindu family property and could not be divested ofthat character. Similar factual incorrect statement is made in thedisputed Will, Ex. D-4. This circumstance is, thereforee, nothing anusual. In the Will it is further stated that 'my second son, Dr. KewalKrishan was educated by me and passed his L.M.S. in 1945 and hasbeen ever since practicing doctor in Delhi'. This statement could nothave been made. according to the counsel, by the testator as Dr. KewalKrishan started his practice in Delhi in 1947 after the partition of thecountry and this fact was within the knowledge of the testator. Thepropounder as well as all others, knew the fact that the testator Along with his sons and other family members shifted to Delhi in 1947. Therecould be no occasion for any one (including the alleged forger) toslate that the plaintiff started his practice in Delhi in 1945. The words'Ever Since' is by and large correct and it has reference to the periodof practice in Delhi. This inconsistency is, thereforee, of no substance-At page 2 of the Will, Ex. D-4. it is stated that 'My third son, KailashChander has all along been working with me and I have formed ajoint Hindu family with commosalty of mess and business'. Thecounsel submits that this statement is contrary to the declaration, Ex.PW-1/3 wherein it is stated that the testator constituted a HinduUndivided Family with his wife, Smt. Lal Devi and his two sons,Mr. Kailash Chander and Dr. Kewal Krishan. Mr. Thapar, draftsmanof the Will, states that the joint Hindu family was existing even beforepartition but the reference here is that they are living together since1947. This inconsistency is, thereforee, understandable. The word'commosalty' has been erroneously typed as it should read as'commonciality'. The word business also does not refer to the jointHindu family business in the technical sense. It refers to the businessof M/s. Laldee (P) Ltd. of which the testator was the Managing Directorand defendant No. 1 as a Director Later in the Will it is mentionedthat L. Bal Mukand and Kailash Chander had joint Hindu familyproperty, but none is shown, according to the counsel, to exist. Mr.Thapar deposes that regarding this statement he was talking of the property acquired by both of them working together. The possession as ajoint Hindu family obviously has reference to the movable assets inthe house such as household effects, furniture or ornaments etc. as allother tangible assets are included in Annexure 'A'. There is no inconsistency on this account. The counsel points out that if the testatorhad executed certain transfer deeds in respect of his shares in M/s.Laldee (P) Ltd. and the transfer deeds were defective turn lack of stampor for not being in proper form, it was natural for L. Bal Mukand tohave executed fresh transfer deeds for completion of the transfer. Itwas found only after the death of L. Bal Mukand that the transferdeeds are defective and that is the reason according to the counsel.why it was mentioned that 'it has been reported to me that some ofthese transfer deeds are defective, for lack of stamp, for not being inproper form. I stand by these transfers'. If the matter had been leftonly there, then it does raise a suspicion for there was no impedimentin L. Bal Mukand executing fresh transfer deeds. The last sentence,however, clears the doubt when the testator wrote that 'Shri KailashChander can get these transfers regularised or can have new documentsexecuted as the need may be'. This clearly indicates that the testatorwanted to execute fresh documents during his life time though indicatedit in the Will which had to take effect after his death. Such a provisionis unusual in a Will, but not one which would indicate any forgeryThe shares were in fact later on transferred by the company on thebasis of original transfer deeds. The Will further recites that only 400shares shall be inherited by Kailash Chander Mayor and the testatorhad executed a blank transfer deed to be completed after his death.The counsel contends that blank transfer deeds are prohibited by lawand a genuine Will would not contain such a provision. In myopinion, invalid recital in a Will cannot militate against its genuiness.The counsel last points out that it is mentioned in the Will that KailashChander is the sole heir, whereas in the Will itself house No. 8/10,W.E.A., Karol Bagh, New Delhi has been bequeathed to the granddaughter, Shashi Bala, daughter of Kailash Chander Mayor for herlife and after her death, this property will go to Sushil and Harish,sons of Kailash Chander Mayer or their heirs in equal shares. There isno contradiction in the Will for the testator has loosely used the wordas 'Sole heir' for Kailash Chander, as contradistinction to his othertwo sons Brahm Dutt and Dr. Kewal Krishan. The testator wantedto exclude the other two sons and benefit only Kailash Chander'andhis family.
(35) The result of the above discussion is that there is unimpeachable evidence that the testator executed the Will, Ex. D-4; at that timehe was of sound disposing mind; had read the contents of the Will andsigned it knowing fully well the implications of it. The signaturesrequired by law as to the execution have been established. The propounder has also been successful in explaining the circumstances alleged to have cast suspicion on the execution of the Will. Thus I holdthat L. Bal Mukand, the testator, had full testamentary capacity andhad in fact executed the Will, Ex. D-4, validly with a free will andmind. The Will was attested as required by law by two attesting witnesses. I hold that the Will made on 5th of June, 1971 is the last Willof L. Bal Mukand. Issue No. 6 is held accordingly.
(36) Issue NO. 7.-Relief.In view of my findings on the above issues, the plaintiff is declaredto be the shareholder to the extent of one third (1/3) in property No.8/10, Western Extension Area, Karol Bagh, New Delhi and 1/3rdin property No. 8/11, Western Extension Area, Karol Bagh, New Delhi.Defendant No. 1 is entitled to two third (2/3) share in the property No.S/11, Western Extension Area, Karol Bagh, New Delhi. DefendantNo. 1 is also entitled to one third (1/3) share in property No. 8/10,Western Extension Area, Karol Bagh, New Delhi. Shashi Bala,daughter of Kailash Chander is entitled to one third (1/3) share inproperty No. 8/10, Western Extension Area, Karol Bangh, New Delhifor her life. After her death, her share will go to Sushil and Harish,sons of Kailash Chander Mayor or their heirs in equal shares absolutely.The plaintiff has prayed that a decree for partition of the property in suitbe passed in favor of the plaintiff against the defendants and theplaintiff's share in the different properties be granted separately to theplaintiff. In my opinion a partition of the said two immovableproperties cannot conveniently be made without further enquiry. I, consider it a fit case to pass a preliminary decree for partition and appoint Shri P. Bose Advocate of this Court as a LocalCommissioner to suggest a mode of partition of the said two properties.The fees of the Local Commissioner are fixed tentatively at Rs. 1,000to be paid by the plaintiff in the first instance. The Commissioner tosubmit his report within six months from today. The suit of theplaintiff is decree only in part. The plaintiff has lost in the contestto the Will made on 5th of June, 1971 by the deceased. Consideringall the facts and circumstances of the case, I award only half of thecosts to the plaintiff and against defendant No. 1 alone.