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Madhya Pradesh High Court
H.R.KRISHNAN,K. L. PANDEY
Inder Narayan - Appellant
Versus
Rupnarayan Pandit - Respondent
Decided On : 03/24/1964
According to Mistakshra School of Hindu Law, the son gets a right by birth in the father's property, whether it is ancestral or self• acquired. However, while the son's right actually to dispose of the share is unobstructed when the father's property is ancestral, it is obstructed when it is self acquired by the father's full rights of disposal. But the distinction does not affect the factum of the son's getting a right at the very moment of his birth in all the property owned by the father Succession, therefore, even to the father's self-acquired property, is by survivorship, properly so called, and not by inheritance, and if the self-acquired property has been not disposed of by the father during his life-time on his death the undivided sons and grandsons would take the property to the exclusion of separated sons or grandsons: AIR 1930 Oudh 77 held not a good law. AIR 1953 SC 495 followed AIR 1949 All. 545 (FB) and 1955 MBLJ 534=AIR 1955 M.B. 148 and AIR 1955 Pat 408, relied on. [Para 19]
(2) Hindu Law-partition-continuous quarrels between father and son-state of quarrel may lead to separateness, but by itself it is not necessarily a state of separateness.
In an intimate relationship like that of father and son, a state of quarrel is rot necessarily a state of separateness as the parties do go on for years in that condition and though continuous quarrels may lead to servance that event is separate from the quarrels themselves, and its happening will have to be specifically proved. [Para 32]
(3) Hindu Law-joint family-self-acquired property of father-son has no right, during father's life time to transfer his interest in property and hence he cannot also relinguish it.
In the self-acquired property of the father. the right of the son in the father's life-time is what has been called a dormant right, certainly something more than a mere expectation or spes, but something much more restricted than a transferable interest. A relinguishment cannot be in rem but has to be in favour of somebody. If a member of a joint family relinguishes his interest it means that he is transferring it to the rest of the coparcenary. If the right is such that it cannot be relinguished Possibly, by relinguishment is meant merly an acknowledgment of the position that the maker of the statement does not in his opinion have any right. [Para 33]
(4) Hindu Law - joint family-right in property-relinguishment - relinguishment must be unequivocal or by formal document.
A relinguishment of the right in the Hindu joint family property, in order to be effective, has to be made in unequivocal terms and to the party receiving the goods or in a formal document like a registered deed. [Para 34]
(5) Evidence-appreciation of-expert evidence and direct evidence-value -direct evidence of event convincing and possibility of event not excluded by expert evidence-direct evidence must prevail.
When, on the one hand, the openion-evidence of experts points to the improbability of a certain happening and excludes the happening either as impossible, or as so highly improbable as to be a practical impossibility and on the other the direct evidence is to the effect that the event did actually happen, then the Court should besitate to accept direct evidence for the simple reason that miracles do not happen. Certainly where the direct evidence itself is doubtful and is readered improbable then also Court should hesitate to accept it. But where the direct evidence is quite convincing and the witnesses are intelligent and independent, and further, the expert evidence does not exclude it, then direct evidence has to be accepted. [Para 44]
(6) Hindu Law-gift-gift to son-whether gift is genuine or Benami depends upon circumstances.
Every gift made in favour of a son cannot be presumed to be Benami. Before deciding whether a particular grant is genuine or Benami, all the circumstances have to be seen: 6 MIA 53 referred to. [Para 47]
(7) Trust Act, 1882 – S. 82 - deposit in bank by father in name of himself and son payable to 'either or survivor' - principle of advancement does not apply in India-survivor is intended to take it merely as trustee- it is not benami transaction.
The doctrine of advancement, which is recognized by the English Law, has no place in India. Accordingly, when the owner of the property directs that another's name should be included, he does not give him anything by way of advancement. He continues to be the owner, and if the other nominal holder does take the money he is answerable as a trustee to the heirs of the original owners: AIR 1928 PC 172, followed AIR 1932 PC 13 distiguished. [Para 53]
In this case of 'either or survivor' deposits, it directly intended that the survivor should take it. In fact, this is often the purpose of making such a deposit, enabling somebody on behalf of the real owner's estate to collect the moneys without the delay or difficulty that might otherwise be experienced. But it is equally clear that when the does take it he takes it as a trustee and nothing more. [Para 53]
"Benami" properly so called, is not a case of both the names, i.e., of the real owner and the resultant trustee appearing together, but of the latter alone being shown while the former stays in the background In such a situation it is always X, the nominal holder, and Y, who is not named but who is the real holder the beneficiary. Thus, it is never in tended in a Benami transaction that the nominal holder should at all take property. However, in certain circumstances it might turn out that has taken the property. In that event he will hold it as a trustee. [Para 53]
JUDGMENT : This is an appeal by the plaintiff in a partition suit, from the judgment of dismissal on the ground that some 15 years before the suit there was already a severance of the status of jointness between the plaintiff on the one side and the rest of the joint family, i.e., his father and brother (defendant No. 1), on the other. Accordingly, the trial Court held that defendant No. 1 continued in a state of jointness and excluded the plaintiff, who on the date of his father's death was separate. Besides defendant-respondent No. 1, the only other successor to the estate of their father, the plaintiff has also impleaded the defendant-respondent No. 2, wife of defendant No. 1, because he claims that the sum of Rs. 50,000 gifted by his rather to her some months before his death was really no gift but a holding in benami, which must accordingly be treated as part of the property to be partitioned.
2. The suit, as well as the appeal, have been fought elaborately, with the unrelenting keenness of a civil war; but the problems that arise for decision are comparatively simple and can be formulated thus :
(1) The identity of the property that is sought to be partitioned.
(2) All the properties being self-acquired by S.H. Pandit, the father of these two brothers, whether both of them would inherit equally irrespective of either having been joint or separate from him on the principle set out in Badrinath v. Hardeo, AIR 1930 Oudh 77.
3. Whether there was a severance of the status of jointness without any partition of property on 6-3-1936 when the doctor wrote to the son studying in England "You may return, you may not return has nothing to do with me. But on your return you can't stay so long as I live in our family and (I) wish to disinherit you from all your claims in future from that little share you could have (Ex. D. 122) and further that severance not having been cured by a subsequent reunion, it continued tilt the 6th April 1949, when Dr. Pandit died.
The following questions would arise in case it is found that the plaintiff and his father were still joint when the latter died.
4. Whether the gift of Rs. 50,000 made by Dr. Pandit to his daughter-in-law (defendant No. 2) and completed by handing over to her the deposit receipt was really a gift or was only a device to evade possible income-tax claims and thus tin1 amount continued to be part of the said Dr. Pandit's estate on the date of his death.
5. Similarly, whether the gift by cheque of Rs. 25,000 made on 25-3-1949 by Dr. Pandit to his son, defendant No. 1, was really a gift or was only an inconsequential device to enable his friend B.D. Joshi to acquire some ready money.
6. Finally, whether the conversion of five fixed deposits totalling Rs. 91,000 (to be detailed in time) from the sole ownership of Dr. Pandit, to "either or survivor" in his name and that of the son, has the effect of completely vesting those amounts in the latter, or are only to be held by him in trust for the legal successors-in-interest of his father.
[After giving the sequence of events in this case in Paras 8 to 16, Their Lordships in Paras 17 and 18 dealt with the question of identity of property that was sought to be partitioned and the judgment proceeded :]
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19. Ground No. (2) : The plaintiff has set up an ingenious short cut in contending that joint or separate, every son inherits equally the self-acquired property of his father on the basis of propinquity. The principle that the joint son takes his father's property to the exclusion of the son who is separate applies, according to the plaintiff, only to the properly that is ancestral in the hands of the father, because in regard to it alone is succession a case of survivorship. In the instant case, all the properties of Dr. Pandit are admittedly self-acquired, even the houses in Jaora being given by will by his own father Hariram. To those familiar with the basic doctrines of Hindu Law this theory is altogether unacceptable. Still, it h
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