1998 Supreme(Del) 13

High Court Of Delhi
SANTOSH KAKKAR - Appellant
Versus
RAM PRASAD - Respondent
Suit 1346 of 1979
Decided On : 01/06/1998

A mere nomination made by the deceased member under Rule 35 had no effect of conferring on the nominee any beneficial interest in the plot in question.

Headnote:

INDIAN SUCCESSION ACT, 1925 - SECTION 213 - PROBATE - WILL - EXECUTION AND ATTESTATION - SUSPICIOUS CIRCUMSTANCES - ONUS OF PROOF - DISTRIBUTION OF ASSETS - JOINT HINDU FAMILY - NOMINATION - COOPERATIVE SOCIETY - MEMBERSHIP - TRANSFER - DELHI COOPERATIVE SOCIETIES ACT, 1972 - RULES AND BYE-LAWS - INTERPRETATION.

Fact of the Case:

Suit for partition of the movable and immovable properties left behind by the deceased Shri Badrinath Talwar who had died on 2.11.1976, and for rendition of accounts in respect of the income received by defendant No. 1.

Finding of the Court:

1. Probate or Letters of Administration is not required for basing claim on the basis of an un-probated Will by defendant No. 1. 2. The Will in question is signed by the testator, the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signatures to the document of his own free Will. 3. The deceased had declared a joint Hindu family with his son Shri Ram Prasad Talwar. By this Will he has given his share in house No. 18, Tagore Road, Kanpur Cantt., Kanpur, where he was living with the legatee and in his family, and shares of some Companies in respect of which he had already constituted joint Hindu family with his said son. 4. The residential house which was the only immovable property available and belonging to the testator has been bequeathed to defendant No. 1 who was living with him. 5. The attestation of the Will by a Notary on 31.7.1972 is not a suspicious circumstance. 6. The deceased had no jewellery at the time of his death. 7. The deceased had constituted a joint Hindu family with his son defendant No. 1 and had given declaration to that effect to the Income-Tax Officer concerned. 8. The plot of land had not been allotted to the deceased when he died. 9. Defendant No. 5 being a nominee acquired the same right and interest as a member of the society as the deceased Shri B.N. Talwar had, and not as an agent or trustee or otherwise on behalf of his legal heirs.

Issues: 1. Whether this Court has jurisdiction to try this suit? 2. Whether the deceased Sh. Badri Nath Talwar made the Will marked A dated 12th July 1972 and is in accordance with law? 3. Whether defendant No. 5 was nominated as a nominee by Shri Badri Nath Talwar regarding the membership of Burmah Shell Cooperative House Building Society to the exclusion of other legal heirs as alleged in para 3 of the written statement? If so to what effect? 4. If issue No. 1 is proved then what properties are available for partition between the legal heirs (plaintiffs and defendants) (Onus of proof on the plaintiffs) 5. Whether plaintiffs have no locus standi or causes of action to maintain the suit? 6. Whether the suit is not properly valued for the purposes of Court fee? 7. Whether the suit is bad for mis-joinder and non-joinder of necessary parties ?

Ratio Decidendi: 1. Section 213 (1) of the Indian Succession Act, 1925 does not apply to Wills made outside Bengal and the local limits of the ordinary original jurisdiction of the High Courts of Madras and Bombay except where such Wills relate to immovable properties situated within those territories. 2. 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 testamantory capacity and the signature of the testator as required by law is sufficient to discharge the onus. 3. Where the testator has executed the Will with full understanding and comprehension and with deliberations, it is not for the Court to find fault with the nature of disposition of the property. 4. Property separate or 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 to 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. 5. A mere nomination made by the deceased member under Rule 35 had no effect of conferring on the nominee any beneficial interest in the plot in question, relying on the Supreme Court decision in Smt. Sarbati Devi v. Smt. Usha Devi, AIR 1984 SC 346, as under: "thus, it is now well settled that a mere nomination, made in favour of a particular person, does not have the effect of conferring on the nominee any beneficial interest in property, after the death of the person concerned. The nomination only indicates the hand which is authorised to receive the amount or manage the property. The property or the amount, as the case may be, can be claimed by the heirs of the deceased, in accordance with law of succession, governing them."

Final Decision: 1. Issue No. 1 is decided in the affirmative and in favour of defendants 1 and 5 and against the plaintiffs. 2. Issue No. 2 is decided in the affirmative and in favour of defendants 1 and 5 and against the plaintiffs. 3. Issue No. 3 is decided accordingly. 4. Issue No. 4 is decided accordingly. 5. Issue No. 5 is decided against defendants No. 1 and 5. 6. Issue No. 6 is decided against defendants No. 1 and 5. 7. Issue No. 7 is decided against defendants No. 1 and 5. 8. A decree for recovery of Rs. 1,919.50 each in favour of each of the plaintiffs and against defendant No. 1 is passed.