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The pre-requisite of the doctrine on blending being existence of coparcenery or coparcener property as well as the existence of separate property

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(2002) 95 DLT 115

DELHI HIGH COURT

DIVISION BENCH

( Before : Mukul Mudgal, J; Devinder Gupta, J )

KEWAL KRISHAN MAYOR — Appellant

Vs.

KAILASH CHAND MAYOR AND OTHERS — Respondent

KAILASH CHAND MAYOR — Appellant

Vs.

KEWAL KRISHAN MAYOR — Respondent

Regular First Appeal (OS) 31 and 37/76

Decided on : 31-08-2001

Succession Act, 1925 – Section 45, Section 47, Section 59, Section 63, Section 67, Section 68
Succession Act, 1925 — Section — 45, 47 — Scope of interference — the pre-requisite of the doctrine on blending being existence of coparcenery or coparcener property as well as the existence of separate property, in case of any one of the basic requirement lacking there would be no question of applicability of the doctrine of blending.

Cases Referred

Kalyan Singh Vs. Smt. Chhoti and Others, AIR 1990 SC 396 : (1989) 4 JT 439 : (1989) 2 SCALE 1238 : (1990) 1 SCC 266 : (1989) 2 SCR 356 Supp
Goli Eswariah Vs. Commissioner of Gift Tax, Andhra Pradesh, AIR 1970 SC 1722 : (1970) 76 ITR 675 : (1970) 2 SCC 390 : (1971) 1 SCR 522
Gurdial Kaur and others Vs. Kartar Kaur and Others, (1998) 3 AD 603 : AIR 1998 SC 2861 : (1998) 3 JT 37 : (1998) 119 PLR 524 : (1998) 2 SCALE 649 : (1998) 4 SCC 384 : (1998) 2 SCR 486 : (1998) 1 UJ 677 : (1998) AIRSCW 1695 : (1998) 3 Supreme 504
Ram Piari Vs. Bhagwant and others, AIR 1990 SC 1742 : (1990) 1 JT 420 : (1990) 97 PLR 639 : (1990) 1 SCALE 427 : (1990) 3 SCC 364 : (1990) 1 SCR 813 : (1990) 2 UJ 71
K.V. Narayanan Vs. K.V. Ranganandhan and Others, AIR 1976 SC 1715 : (1977) 1 SCC 244 : (1976) 3 SCR 637 : (1976) 8 UJ 343
Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others, AIR 1995 SC 2086 : (1995) 7 JT 363 : (1995) 4 SCALE 271 : (1995) 5 SCC 215 : (1995) 2 UJ 360
H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 : (1959) 1 SCR 426 Supp
Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, AIR 1961 SC 1268 : (1961) 3 SCR 779
Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, AIR 1974 SC 1999 : (1974) 2 SCC 600 : (1975) 1 SCR 687
Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, AIR 1964 SC 529
Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, AIR 1962 SC 567 : (1962) 3 SCR 195
Lakkireddi Chinna Venkata Reddi Vs. Lakkireddi Lakshmama, AIR 1963 SC 1601 : (1964) 2 SCR 172
Bhagwan Dayal Vs. Mst. Reoti Devi, AIR 1962 SC 287 : (1962) 3 SCR 440
Pushpa Devi Vs. Commissioner of Income Tax, New Delhi, AIR 1977 SC 2230 : (1977) 109 ITR 730 : (1977) 4 SCC 184 : (1977) SCC 568 : (1978) 1 SCR 329 : (1977) 9 UJ 580
Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, AIR 1982 SC 133 : (1981) 3 SCALE 1766 : (1982) 1 SCC 20 : (1982) 1 SCR 1188 : (1982) 14 UJ 7
Prithi Chand Vs. State of Himachal Pradesh, AIR 1989 SC 702 : (1989) CriLJ 841 : (1989) 1 Crimes 384 : (1989) 1 JT 106 : (1989) 1 SCALE 74 : (1989) 1 SCC 432 : (1989) 1 SCR 123
Kruttivasa Padhy Vs. Malati Padhani and Others, AIR 1959 Ori 113

Counsel for Appearing Parties

P.P Malhotra and L.R. Gupta, Vineet Malhotra and J.N. Aggarwal, for the Appellant;

JUDGMENT

Devinder Gupta, J.—These two first appeals arise out of the judgment and decree passed on 27.5.1976 by learned Single Judge of this Court partly decreeing the suit of plaintiff. RFA (OS) 31/76 is by the plaintiff Dr. Kewal Krishan Mayor and RFA (OS) 37/76 is by defendant No. 1 Kailash Chand Mayor.

2. Bal Mukand Mayor s/o Dina Nath had three sons and two daughters, namely, Brahm Dutt, Dr. Kewal Krishan (plaintiff) and Kailash Chand (defendant No. 1), (sons); Brahm Wati and Raj Kumari (defendant 2 and 3), (daughters). Lal Devi wife of Bal Mukand died on 9.11.1965. Brahm Dutt is survived by his widow Smt. Prakash Mayor and two children, namely, Anil and Neelam (defendants 4 to 6). Bal Mukand died on 27.6.1973.

3. On 30.11.1973 Dr. Kewal Krishan (hereinafter referred to as the plaintiff of the property left by Shri Bal Mukand. Kailash Chand Mayor was imp leaded as defendant No. 1. Brahm Wati and Raj Kumar were imp leaded as defendants 2 and 3 and the heirs of Brahm Dutt were imp leaded as defendants 4 to 6. It was alleged that Bal Mukand constituted a joint Hindu family with the plaintiff and defendant No. 1. In his life time Bal Mukand made a declaration on affidavit dated 4.3.1963 and on that day threw his property 8/10 and 8/11, Western Extension Area, Karol Bagh, new Delhi into the common hotch potch of his Hindu undivided family comprising himself and his two sons. Bal Mukand was also assessed in income tax and wealth tax as head of Hindu undivided family owning the aforesaid property. In addition to the aforementioned property, which Bal Mukand had thrown into common hotch potch, he also held other properties in his individual capacity. The plaintiff alleged that on the death of Bal Mukand on 27.6.1973 a notional partition of the joint Hindu family property took place and in that notional partition the plaintiff and defendant No. 1 got 1/3rd share each whereas remaining 1/3rd share was left with deceased, which was inherited in equal share by the plaintiff, defendant No. 1, defendants 2 and 3 and the heirs of Brahm Dutt, namely defendants 4, 5 and 6. Likewise the individual properties of Brahm Dutt were inherited in equal shares by the plaintiff; defendant No. 1, 2 and 3 and by the heirs of Brahm Dutt, namely defendants were 6. The plaintiff alleged that the defendants were requested several times to have the property partitioned but they had failed to do so, Therefore, cause of action had arisen to him on 25.11.1973 to file the suit on failure of the defendants to have the partition. he accordingly prayed that the properties by partitioned in accordance with the shares mentioned in para 13 of the plaint.

4. The suit was contested by defendant Kailash Chand Mayor only. In addition to various preliminary objections he denied that Bal Mukand constituted a joint Hindu family with the plaintiff. Rather he pleaded that the plaintiff had been separated from his father after he passed his medicine in 1945 and had always lived separately and also kept his income separately. He had nothing to do with the joint Hindu family comprising late Bal Mukand and defendant No. 1. It was pleaded that defendant No. 1 was the only surviving coparcener in the joint Hindu family. Defendant No. 1 denied the deceased having sworn any declaration of throwing the two properties in common hotch potch and pleaded that if such a document exists the same is a sham document and there is evidence that such a statement made by the deceased was incorrect. he pleaded that no joint family could be created by such a document. Defendant No. 1 further pleaded that the plaintiff had in fact misbehaved with his father and the mother, when they came to India, as refugees, after partition of the country. he also pleaded that on the death of Bal Mukand he alone had succeeded as the sole surviving coparcener and also under the Will of Late Bal Mukand he alone was the owner of 1/2 share in the joint Hindu family property and the remaining half was owned by him. On 5.6.1971 Bal Mukand executed a Will, a copy of which was also given by defendant No. 1 to the plaintiff and to the other respondents soon after the death of Bal Mukand, after he had received the Will of deceased from Shri K.S. Thapar, Advocate. Under the said Will dated 5.6.1971 late Bal Mukand had left property 8/10, Western Extension Area, Karol Bagh to Ms. Shashi Bala, daughter of defendant No. 1 for life and on her death to the two sons of defendant No. 1.

5. In replication the plaintiff refuted the averments made by defendant No. 1 and reiterated his stand. The plaintiff denied that any Will was left by Lala Bal Mukand or that a copy of the Will was given to him by the plaintiff. he denied any Will having been made by Bal Mukand during his life time and pleaded that defendant No. 1 never spoke of any Will till filing of the suit. He denied that the alleged Will bears signatures of Bal Mukand or was made by him while he was in a sound and disposing state of mind. He further pleaded that the alleged Will appears to have been fabricated by defendant No. 1 in order to non suit him.

6. On the aforementioned pleadings of the parties following issues were framed:-

1. Whether L. Balmukand constituted a joint Hindu Family defendant No.1 only? OPD

2. Whether the plaintiff separated from the joint Hindu family as alleged in the written statement? OPD

3. Was late L. Bal Mukand owner of one half share of the joint Hindu family property?

4. What is the property available for partition as owned by the joint Hindu family headed by L. Bal Mukand? OPP

5. To what shares are the parties entitled and in which properties? OPP

6. Has any Will been made by L. Bal Mukand as alleged? If so, what is its effect?

7. Relief.

Defendant No. 1 in support of his case appeared as D.W.6 and examined Shri K.S. Thapar, Advocate, the scribe and an attesting witness of the Will as D.W.2. The other attesting witness Dr. Vishnu Dutt Malik was examined as D.W.3. R.K. Vijh, a hand writing expert was examined as D.W.5. In addition two other witnesses were examined by D.W.1, namely, Nand Lal as D.W.1 and P.L. Sharma as D.W.4. The plaintiff examined Shri Ramesh Chand Sood, Income Tax Practitioner as P.W.1; Shri V.K. Sakhuja, hand writing expert as P.W.3 and appeared as his own witness as P.W.2. The parties also relied upon documentary evidence. The Will dated 5.6.1971 was also proved as Ex.D-4.

7. Learned Single Judge on the basis of the evidence produced before him decided issues 1 and 2 against defendant No. 1 holding that the joint Hindu family headed by Lala Bal Mukand constituted of himself, the plaintiff and defendant No. 1 and not with defendant No. 1 alone. Issue No. 3 was thus decided in plaintiff’s favor that property 8/10 and 8/11, Western Extension Area, Karol Bagh, New Delhi, which earlier was separate and exclusive property of Bal Mukand and had been thrown by him into the common stock and formed a part of joint Hindu family property and on his death Bal Mukand held 1/3rd share whereas the plaintiff and defendant No. 1 held the remaining 1/3rd each. Under issue No. 4 it was decided that only two immovable properties were available for partition, as owned by the joint Hindu family headed by Lala Bal Mukand, namely, 8/10 and 8/11, Western Extension Area, Karol Bagh, New Delhi. Issue No. 6 was decided in defendants’ favor holding that there is unimpeachable evidence that Bal Mukand was of sound disposing mind, had read the contents of the Will and signed it knowing fully well the implications of it. The signatures required by law as to the execution have been established and the propounder had also been successful in explaining the circumstances, alleged to have cast suspicion on the due execution of the Will. It was held that Bal Mukand had full testamentary capacity and had validly with a free mind executed Will Ex.D-4, which was also attested as required by law by the two attesting witnesses and that Will made on 5.6.1971 was the last Will of Bal Mukand. In view of this finding issue No. 5 was decided that in so far as properties 8/10 and 8/11, Western Extension Area, Karol Bagh are concerned the plaintiff is entitled to only 1/3rd share in the two properties and defendant No. 1 is entitled to remaining 1/3rd share. He was also held entitled to the 1/3rd share of the property held by the deceased Bal Mukand on the basis of the Will and property No. 8/11 was held to go to the share of Ms. Shashi, daughter of defendant No. 1 for her life and on her death to the two sons of defendant No. 1.

8. Feeling aggrieved against this judgment and decree plaintiff/appellant filed RFA (OS) 31/76 praying for deciding issue No. 6 against the defendant whereas defendant has field RFA (OS) 37/76 praying for setting aside those findings by which it was held that the plaintiff was a member of joint Hindu family or that properties 8/10 and 8/11, Western Extension Area were thrown by the deceased in common stock.

9. Shri P.P. Malhotra, learned Sr. Advocate appearing for plaintiff/appellant took us through the oral and documentary evidence and vehemently contended that defendant No. 1, who had set up Will Ex.D-4 dated 5.6.1971 had failed to discharge the onus which lay upon him. It was not proved that Will Ex.D-3 was validly executed. Defendant No. 1 also failed to lead any evidence to satisfy the conscience of the court on various suspicious circumstances brought in evidence. It was vehemently contended that the circumstances as are apparent on record suggest that defendant No. 1 took a prominent part in the execution of Will, which had conferred substantial benefit on him. Signatures of Bal Mukand were suspicious. Deceased at the time of alleged execution of Will was of 80 years of age and died in suspicious circumstances. These and other suspicious circumstances according to Mr. Malhotra, defendant No. 1 had failed to dispel by leading cogent evidence. Other circumstances being various wrong recitals in Will Ex.D-4, namely, that the executant had not made any other Will prior to the said Will; plaintiff Dr. Kewal Krishan had always been separate from him; a copy of the Will was given to Shri K.S. Thapar; a copy of the Will was given to defendant No. 1, Kailash Chand Mayor and that he formed a joint Hindu family with Kailash Chand Mayor. It was also contended by Mr. Malhotra that as per recital made in the Will Ex.D-4, by one common process four Wills were prepared, one being the original, the remaining three being carbon copies thereof. Each one of them was stated to have been signed by the executant and attested by the two attesting witnesses. As per the endorsement made on Will Ex.D-4 one copy of the Will was stated to have been deposited with Punjab national Bank. No effort was made by defendant No. 1 to produce or get produced the said copy form Punjab National Bank. One of the copy was stated to have been kept by Lala Bal Mukand. No effort was made by defendant No. 1 to produce the same in Court. Ex.D-4 was a copy of the Will, which according to defendant No. 1 was received by him through post from Shri S.K. Thapar whereas during his evidence K.S. Thapar deposed that he had brought with him a copy of the Will which was kept by him. Thus defendant No. 1 had accounted for two Wills and had failed to account for the remaining two Wills and possibility cannot be ruled out that Bal Mukand might have even destroyed the original Will, which was retained by him. In case he had actually destroyed the same it would amount to destroying all the Wills. Therefore, it cannot be held that Ex.D-4 was the last Will executed by the deceased. Mr. Malhotra during course of his submissions also referred to the statement of D.W.2, 3 and 4 and tried to bring home his point that there are material discrepancies as regards the time of execution Will and typing of the Will and thus will has not been validly proved.

10. Mr. L.R. Gupta, learned Sr. Advocate appearing for defendant No. 1 refuted the submissions made by Shri Malhotra contending that none of the alleged circumstances can be said to be suspicious circumstances attending the due execution of Will. Defendant No. 1 was expected to satisfactorily explain those circumstances, which would be the attending circumstances about the execution of Will and not any other circumstances. It was urged by him that each of the circumstances brought to the notice of the Court by Shri Malhotra had been specifically dealt with by learned Single judge and by reasoned judgment it was held that defendant No 1 had been successful in removing the alleged suspicious circumstances, if any. He also referred to the oral and documentary evidence and urged that when by one common process similar documents are prepared and each one of them is signed and each one of them is duly executed, namely, signed by the testator and attested by witnesses, in the manner provided in law, in that case each one of them has to be taken as original. It was, Therefore,e not necessary for defendant No. 1 to have accounted for the remaining two copies. It was for the plaintiff to have made an effort in getting the other two copies produced, in case he had any doubt in his mind. Moreover, this point was not pleaded in the replication or taken by the plaintiff during the course of evidence but was taken up for the first time only during arguments before the learned Single Judge and was duly met in the impugned judgment. Neither Shri K.S. Thapar nor Dr. Vishnu Dutt Malik were in any manner interested witnesses. Both of them were most natural and independent witnesses. Sufficient and cogent evidence had been led to show that Will Ex.D-4 was duly signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signatures on the document of his own free will and that he signed in the presence of two witnesses, who attested it in his presence and in the presence of each other. Defendant No. 1 had also discharged thus onus by satisfying the conscience of the court even on the alleged suspicious circumstances.

11. In the appeal filed by defendant No. 1 Shri Gupta vehemently urged that the findings of learned Single Judge that the two properties (8/10 and 8/11, W.E.A. Karol Bagh) were thrown in common stock by the deceased or that the deceased constituted joint Hindu family with plaintiff and defendant No. 1 are erroneous in law and on facts. He urged that the theory of blending under the Hindu law inevitably postulates that the owner of the separate property is a coparcener, who has an interest in the coparcenery property and desires to blend his separate property with that of the coparcenery property. The existence of a coparcenery property is absolutely necessary before a coparcener can throw into the common stock his self acquired property. Declaration Ex.P.W.1/3, which is stated to have been made by the deceased is of no consequence and cannot confer any right on the plaintiff since it was made by the deceased with a view to gain an advantage of the tax laws, not with the intention to create any right of any other person in the separate property. It is not shown that the alleged joint Hindu family, alleged to be comprising the deceased with his two sons had any joint family property, in the absence of which, it was not possible to blend the self acquired property by Bal Mukand with the character of Joint Family property. Circumstances on record, including the recitals made in document Ex.D-3 do suggest that Ex.P.W.1/3 was a sham document by which the deceased never intended to blend his self acquired property with the character of joint Hindu family property.

12. These submissions were rebutted by Shri Malhotra contending that Ex.P.W.1/3 in clear terms expressed the will and desire of the deceased and this document is sufficient to establish that he had intention and had in fact characterised the property to be joint Hind family property.

13. Learned counsel for the parties also placed reliance upon a number of decisions. The same will be dealt with at relevant stages during the course of the judgment.

14. Before taking up the other points, the foremost point, which in our view requires consideration is the correctness of the findings of the learned Single Judge on issue No. 6 that whether any Will has been made by Lala Bal Mukand, as alleged. The law in the matter of proof of Wills is now well settled by catena of judgemnts. Will is required to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act, 1925. As in the case of other documents, so in the case of Wills, it would not be idle to expect proof with mathematical precision. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. As regards the requirements of due attestation of a Will, the Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, held:-

“The party propounding a Will or otherwise making a claim under a Will is not doubt seeking to prove a document and in deciding how it is to be proved, we must inevitable refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provision prescribed the requirements and the nature of proof which must be satisfied by that party who relies on a document in a Court of law. Similarly, sections 59 and 63 f the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall e so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribe by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainly. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.”

15. In the aforementioned decision the Supreme Court further held that there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks form the death of the testator, and so, when it is propounded or produced before a Court the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to the whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favor of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts.

16. The Apex Court in H. Venkatachala Iyengar’s case (supra) further held that there may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. in case the opposite party opposes due execution of the Will alleging exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the opposite party, but, even without such pleas, the circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus on the part of the propounder to remove any such legitimate doubts in the matter.

17. After having laid down the aforementioned tests the Apex Court held that generally the propounder of the Will has to prove due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It was lastly said that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties.

18. The aforementioned principles were reiterated by Supreme Court in a latter decision in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, . While reiterating that when there are suspicious circumstances the onus would be on the propounder the explain them to the satisfaction of the Court before the Will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court.

19. Again in Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, while reiterating the aforementioned principle it was held:-

“The mode of proving a Will does not ordinarily differ form that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by S. 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural improbable or unfair in the light of relevant circumstances or there might he other indication in the will to show that the testator’s mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the Will was duly executed and attested.”

20. In Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, , while approving the principles laid down in the aforementioned judgemnts, as regards the requirements, which a propounder of the Will must satisfy it was held that:-

“The propounder has to show that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these element are established,, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed the powerful minds interest in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator’s free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof mist be commensurate with the need to satisfy that conscience and remove and suspicion which is reasonable man may, in the relevant circumstances of the case, entertain.”

21. On the onus of proof the Court further held that where there are suspicious circumstances the onus will be on the propounder the explain them to the satisfaction of the Court before the Will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. It was further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the Will which may be unnatural or unfair or improbable, when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, a probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validity with a free will and mind.

22. Observations of Privy Council in Motibai Hormusjee v. Jamsetjee Hormusjee AIR 1924 PC 28 were approved in Surendra Pal’s case and it was held that if the various requirements of a valid Will are established the Court will not interfere with the exercise of volition of the testator since a man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing, the Court will not interfere. In Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, it was held that the suspicion must be a suspicion inherent in the transaction itself which is challenged and cannot be a suspicion arising out of a mere conflict of testimony.

23. We need not multiply decisions of the point. Suffice it to say that the principles have universally been applied in all cases of Wills and even reiterated in later decisions of Supreme Court such as Kalyan Singh Vs. Smt. Chhoti and Others, , Ram Piari Vs. Bhagwant and others, , Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others, and Gurdial Kaur and others Vs. Kartar Kaur and Others, .

24. In a nutshell the law seems to be now well settled that it is the conscience of the Court which must be satisfied that the Will in question was not only executed and attested in the manner required under Indian Succession Act, 1925 but it should also be found that the said Will was the produce of free volition of the executant who had voluntarily executed the same, after knowing and understanding the contents of the Will. Whenever there is nay suspicious circumstances there is an obligation on the propounder of the Will to dispel the same. It is in the light of these principles that the learned Single Judge examined the evidence and recorded his conclusions that Ex.D-4 was voluntarily executed and was the last Will of the deceased and that defendant No. 1 had been successful in removing the suspicious circumstances. In addition to the points which were urged before the learned Single Judge no other point was urged before us and we will have to again scrutinise and critically examine the evidence.

25. Shri K.S. Thapar, an advocate settled in Chandigarh is described as an attesting witness of Will Ex.D-4. According to his testimony he had known Bal Mukand since 1940-41 and from 1951 he had handled about 12 cases on his behalf. He was standing counsel of M/s. Laldee (P) Ltd. from 1963 onwards, which was a private company and had take over the individual business being run by BAl Mukand. Shri Thapar deposed that about two months prior to the date, when Will was executed, Bal Mukand consulted him about drafting of a Will. The matter was discussed for about 2-3 months before final draft was prepared. Draft of the Will was prepared by him in his own hand. After the draft was typed out the draft was destroyed. Before preparing the draft there were 2-3 sittings with Lala Bal Mukand. Draft was prepared in the office of Laldee (P) Ltd. of which Bal Mukand was the Managing Director. Defendant No. 1 was the other Director. However, defendant No. 1 was not present either at the time of preparation of the draft, typing out of the Will or even at the time of execution of the Will. By one mechanical process, on the typewriter, four copies of the Will were prepared simultaneously. One of these being the first impression and the other three being the carbon impression. After the Will had been typed out K.S. Thapar accompanied Bal Mukand to the residence of Dr. Vishnu Dutt Malik where they stayed for about an hour. In the presence of Dr. Vishnu Dutt Malik the Will was read out to Lala Bal Mukand, who after admitting and understanding the contents thereof signed in this presence and in the presence of Dr. Malik. Thereafter K.S. Thapar and Dr. Malik attested the Will by putting their respective signatures in the presence of each other and in the presence of Bal Mukand. it has also come in the deposition of Shri Thapar that Dr. Vishnu Dutt Malik is an eminent doctor and was also his close relative being married to his wife’s sister. At that time Dr. Malik was attached to Lady harding Hospital and was also known to Bal Mukand also because of his relation with Thapar.

26. Shri Thapar also deposed that he had advised Bal Mukand to have the Will registered but Bal Mukand turned down the suggestion since he apprehended that in case plaintiff would come to know of making of the Will by him he (Dr. Kewal Krishan, plaintiff) will beat him in bazaar and for that reason Bal Mukand suggested that he would keep one copy of the Will with him, one copy with Punjab National Bank, one copy with Thapar and that one copy of the Will be handed over the defendant No. 1 in a sealed cover. It is also deposed by the Thapar that after the Will had been duly executed one copy was handed over to him (Thapar) in addition one more copy, which was to be delivered to defendant No. 1 by Thapar. It was that copy of the Will, which was sent by Shri Thapar to defendant No. 1 by post. He further deposed that as far as he remembers the copy which was sent to defendant No. 1 was the first impression of the typing but he was unable to state whether Ex.D-4 was the first impression or the carbon impression of the Will. As per his version all four copies were duly signed by Bal Mukand and were duly attested by him and Shri Malik simultaneously.

27. Dr. Vishnu Dutt Malik appeared as D.W.3 and corroborated the testimony of Mr. Thapar as regards the execution and attestation of the Will Ex.D-4. He stated that Bal Mukand had no dealing with him and was only a friend of the family, primarily because of the relation of K.S. Thapar with Lala Bal Mukand and his relations with Thapar. According to him the Will Ex.D-4 was executed in his presence and Bal Mukand was in perfect disposing state of mind and he understood the contents of the Will. After having accepted the same to be correct he put his signatures in his presence and in the presence of Mr. Thapar. He and Mr. Thapar also put their respective signatures as attesting witnesses in presence of each other and in presence of the deceased.

28. Applying the aforesaid principles laid by the Supreme Court no exception can be taken to the manner in which the learned Single Judge came to his conclusions. On the evidence on record it is not possible for us to come to a different conclusion than the one arrived at by the learned Single Judge on each of the points urged before us and we need not discuss each and every point separately. Conflicting opinion of the handwriting experts have to be ignored from consideration since evidence on record, as discussed in detail by learned Single Judge is sufficient to enable the Courts to form its opinion. The mere fact that the deceased died in suspicious circumstances two years after the Will had been executed cannot be a suspicious circumstances attending the due execution of the Will. Even a wrong recital that no Will was made by him earlier cannot be a suspicious circumstances, which in any event in our view has otherwise been satisfactorily explained in the statement of Shri K.S. Thapar.

29. Testimony of Shri K.S. Thapar has been dealt with in extenso by the learned Single Judge observing that he was unshaken during cross examination but nothing substantial came out. Shri Thapar was confronted with the question of deceased having executed a Will (Ex.D-3) earlier and to the recital in Will Ex.D-4 that no Will had been executed earlier. Shri Thapar explained that he did not ask Bal Mukand if he had executed any Will earlier since he did not feel it necessary to ask. Though in the first page of Will Ex.D-4 it was written that Lal Bal Mukand had not made any Will so far and if any Will is set up by anyone, the same must be held to be a forgery. However, Lala Bal Mukand told me that he had not executed any Will earlier.

30. Will Ex.D-3 was also proved on record which was produced by defendant No. 1. Its execution is not denied by the plaintiff. It was because of the recitals in Ex.D-4 that Lala Bal Mukand had not made any Will earlier and if any Will is set up by anyone the same must be held to be a forgery, learned counsel for the plaintiff/appellant vehemently urged that this being a wrong recital is a suspicious circumstance which has not been specifically explained by the defendant.

20. It is not shown in evidence, nor has been shown to us the defendant No. 1 took any part in the execution of Will. It is also not shown that the deceased was of feeble mind, which was likely to be influenced. By the testimony of Shri Thapar and Dr. Malik it stands duly proved that have Will was duly signed by the testator and that at the relevant time the testator was in a sound disposing state of mind and he fully understood the nature and effect of the dispositions. There is no plea of any Undue influence, coercion etc. raised by the plaintiff in his replication. Rather the evidence on record do suggest that Bal Mukand put his signatures on the Will of his one from will and he signed it in the presence of Thapar and Dr. Malik, the two persons on him he had full and absolute faith. They also attested Will Ex.D-4 in his presence and in the presence of each other. It was not pleaded by the plaintiff that Bal Mukand had expressed his desire to cancel or annual his Will. No effort was made by the plaintiff to call any witness from the Punjab National Bank to show that one copy of the Will had not ben deposited there. We cannot accept what was urged by Mr.Malhotra that it was necessary for defendant No. 1 to have accounted for all the four copies since in law when documents are prepared by one mechanical process for example like the present case where by one mechanical process four prints were taken out, of which one was the first impression and the other were three carbon impressions, each one of them has to be treated as original. It is also proved on record that all were duly signed by the executant and were duly attested likewise by the two attesting witnesses. In such circumstances each one has to be considered to be an original document. We may refer in this behalf to a decision of Division Bench of Orissa High Court in Kruttivasa Padhy Vs. Malati Padhani and Others, . In the said case award was prepared in quadruplicate. Each was signed by the arbitrators and bore the signatures of scribe. Each one was taken to be as original and not a mere copy of the other.

21. Learned Single Judge of Allahabad High Court in Kamala Rajamanikkam v. Sushila Thakur Dass and Ors. AIR 1983 ALL 90 also held the same view. In the said case two Wills in identical languages were prepared by the process of typing i.e. the first impression and carbon impression. Both were executed by the testator and were also attested by the attesting witnesses, in accordance with law. Each one was held to be original. We fully agree with the ratio of the decision in Kruttivasa Padhy’s case and Kamala Rajamanikkam’s case (supra).

22. The Supreme Court in Prithi Chand Vs. State of Himachal Pradesh, held carbon copy, made by one uniform process to be primary evidence within the meaning of Explanation II of Section 62 of the Evidence Act.

23. Having considered the material on record and the submissions made at the bar, we are of the view that there is no scope of interference with the findings of the learned Single Judge that Will Ex.D-4 has ben proved to be the last Will of deceased.

24. As regards the other point about the deceased having thrown his two properties in common pool of the alleged joint Hindu family, learned Judge proceeded on the assumption that the law does not lay down that a separate property could not be impressed with the character of joint Hindu family in the absence of the existence of joint family or co-parcenary property. He further proceeded on the assumption that the existence of joint family property is not necessary before a member of the family throws his self acquired property in the joint stock. It is this erroneous assumption of law by the learned Single Judge, which in our view led him to incorrect conclusions.

25. Under the Hindu Law property may be divided under the two classes, namely, (a) Joint family property and (b) separate property. Joint family property may be further sub divided according to the source for which it comes into, namely, (a) ancestral property (b) separate property of co-parceners thrown into the common coparcenery stock and (c) property jointly acquired by members of a joint family with the aid of ancestral property. It is not the case of the plaintiff that the two properties were ancestral properties. His case is that these two properties (8/10 and 8/11 W.E.A. Karol Bagh, New Delhi) were separate properties of Lala Bai Mukand and were thrown by him into the common coparcenery stock by declaration (Ex. P.W.1/3) made by him. This is the case set up by him in the plaint and for that it is necessary for us to deal with the question that under what circumstances property, which originally is separate and self acquired property of a member of a joint Hindu family may become joint family property.

26. The law is now well settled that such a separate of self acquired property by operation of the doctrine of blending becomes joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to waive his separate rights must be established. The basis of the doctrine is the existence of coparcenery property as well as existence of separate property of a coparcener.

27. In Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, approving he opinion of Privy Council in AIR 1923 57 (Privy Council) it was held:-

The rule of blending postulates that a coparcener who is interested in the coparcenery property and who owns separate property of his own may be deliberate and intentional conduct treat hi separate property as forming part of the coparcenery property. If it appears that property which is separately acquired has ben deliberately and voluntary thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate; in other words, the separate property of a coparcener loses its separate character by reason of a coparcener of the owner’s conduct and get thrown into the common stock of which it becomes a part. The doctrine, Therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcener property and desires to blend his separate property with the coparcenery property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention of benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenery and coparcenery property as well as the existence of the separate property of a coparcener.

[Emphasis supplied.]

28. On blending of separate property with joint property, in a subsequent decision in Lakkireddi Chinna Venkata Reddi Vs. Lakkireddi Lakshmama, , the Supreme Court held:-

“Law relating to blending of separate property with joint family property is well-settled. Property separate on self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation.”

29. The basic requirements of the doctrine of blending namely, existence of coparcenery or coparcener property as well as existence of separate property were reiterated by the Supreme Court in Goli Eswariah Vs. Commissioner of Gift Tax, Andhra Pradesh, wherein it was held:-

“To pronounce on the question of law presented for our decision, we must first examine what is the true scope of h doctrine of throwing into the ‘common stock’ or ‘common hotchpotch’. It must be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenery property and desires to blend his separate property with the coparcenery property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of joint family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act. In such a case thee is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises.”

30. Same principles was reiterated in K.V. Narayanan Vs. K.V. Ranganandhan and Others, and in Pushpa Devi Vs. Commissioner of Income Tax, New Delhi, .

31. Thus the pre-requisite of the doctrine on blending being existence of coparcenery or coparcener property as well as the existence of separate property, in case of any one of the basic requirement lacking there would be no question of applicability of the doctrine of blending. It was the case set up by the plaintiff and according to the plaintiff’s deposition, who appeared as P.W.2, only two properties, 8/10 and 8/11, Western Extension Area were thrown into common hotch potch of the joint Hindu Family. Rest of the properties, owned by Bal Mukand were kept by him in his personal name. He deposed that there was no other property held or owned by the joint family. he further deposed that before 1963 the two properties belonged exclusively to Lala Bal Mukand and at the time when these were put in common hotch potch there was no other property of HUF existence. It has not been the case of plaintiff that there was any HUF headed by Lala Bal Mukand was formed in the year 1963. To be precise he stated that the return of income from HUF was not filed as the income from the HUF was not taxable. The HUF headed by Lal Bal Mukand was formed in the year 1963. Before 1963 the two properties belonged to Lala Bal Mukand. At the relevant time the said two properties were put in the common hotch potch, there were no other properties of HUF existing at that time.

32. It has come in evidence that the eldest son Brahm Dutt had separated and was living separately. There is no evidence adduced by the plaintiff that when Brahm Dutt separated or whether there was reunion thereafter. In case it was a family comprising Bal Mukand and his three sons, on separation of Brahm, Dutt, the family which will be presumed joint at the time Brahm Dutt separated and in the absence of any reunion presumption will be that they continued to be separate. This is the general principle of Hindu Law, which has been noticed in Bhagwan Dayal Vs. Mst. Reoti Devi, being:-

“The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but his presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter retrain united; whether the latter remain united or not must be decided on the fact of each case. To these it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time.”

33. Admittedly Brahm Dutt had ben separated. There is no presumption that when one member separates from the others that late remain united; whether the letter remain united or not must be decided on the fats of each case. Admittedly the plaintiff did his Medicine in 1945 and stated his separate practice. He had his separate mess. There was no sharing of income. In case that was the position can it be said that mere act of Lala Bal Mukand having executed document Ex. P.W.1/3 will have the effect of Constituting joint Hindu family in the year 1963. It is the case of plaintiff that HUF headed by Lala Bal Mukand was formed in 1963. A Hindu family is nota creation of a contract. It cannot be so created. Circumstances on the record would suggest otherwise.

34. It has come in the evidence of P.W.1, Income Tax Practitioner that it was his suggestion to Lal Bal Mukand to make a declaration Ex.P.W.1/3 to avoid tax liability. The plaintiff has not led any other evidence about the intention of Bal Mukand apart from the fact that admittedly there was no other joint family property. Whether a property was voluntarily thrown into the common stock with he intention of abandoning all separate claims had to be proved like a fact. There should be clear intention to save separate rights. Each case has to be judged having regard to the facts and the surrounding circumstances. Whether Bal Mukand intended to abandon his rights and made an unequivocal declaration also has to be inferred from the facts and circumstances of the case. Document Ex.P.W.1/3 is dated 4.3.1963 which is the basis of the plaintiff’s claim to the two properties. The plaintiff has not refuted the correctness and genuineness of document Ex.D-3, which is the Will of deceased dated 4.5.1963. In this Will the deceased within two months of declaration Ex.P.W.1/3 dated 4.3.1963 described the two properties, namely, 8/10 and 8/11, Western Extension Area, karol Bagh to be his separate and individual properties. The intention of the deceased as per the version of P.W.1 was clear that he was making declaration Ex.P.W.1/3, as was suggested by P.W.1, with a view of gain an advantage from the tax net. There was no joint Hindu family of the deceased with plaintiff and defendant No. 1 prior to 1963, nor it came into existence during the period document Ex.P.W.1/3 was executed. In these circumstances document Ex.P.W.1/3 cannot be said to have the effect of abandoning his individual rights in the property or creating any rights in favor of the plaintiff. This theory of having blended his separate property and characterised it s a joint Hindu Family property this must fall to the ground simply on the ground that as on the date there was no coparcenery or joint Hindu family property with which the two properties could have been blended. For this reason alone the findings of the learned Single Jude on issues 1 to 4 deserve to be set aside. It must be held that Lala Bal Mukand did not constitute joint Hindu family with the plaintiff and defendant No. 1 and that the properties 8/10 and 8/11, Western Extension Area, Karol Bagh continued to be individual properties and never became joint Hindu family properties. No other point was urged.

35. In view of the findings aforementioned the suit of plaintiff/appellant deserves dismissal. Consequently RFA (OS) 31/76 is dismissed and RFA (OS) 37/76 is allowed. Judgment and decree of the trial court is set aside as aforementioned. The suit of plaintiff/appellant is dismissed leaving the parties to bear their respective costs.

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