TMI Blog2020 (4) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... ands described in 9(2)(f) and 9(2)(g) are concerned these lands were taken on lease by Nathu Lal, S/o Hari Ram from the zamindar of Ashok Nagar. According to the plaintiffs these lands were also lands of the joint family but that version cannot be believed in view of the patta granted in favour of Nathu Lal. It may be true that consideration for grant of patta may have been paid but there is no material on record to show that this payment was made out of the funds of HUF. It may be pertinent to mention here that the plaintiffs have alleged that in 1951 Nathu Lal was a minor and the amount was paid by Hari Ram. However, no proof has been led in this regard. In fact, from the material on record it appears that Nathu Lal was about 21 years old at that time. There are no merit in the appeals filed by the appellant(s) and the same are dismissed. - L. Nageswara Rao And Deepak Gupta JJ. FOR THE PARTIES:- Ms. Pratibha Jain, AOR Mr. Niraj Sharma, AOR Mr. B. K. Satija, AOR Mr. Yash Pal Dhingra, AOR Mr. S. K. Verma, AOR Mr. Arjun Garg, AOR Ms. Manjeet Kirpal, AOR Mr. Suhaas Ratna Joshi, AOR Mr. Vikrant Singh Bais, AOR 1 JUDGMENT Deepak Gupta, J. 1. One Mangat Ram was a resident of Village N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Umrao Lal, Hari Ram, adopted son of Madhav Prashad (who had died by the time the suit was filed in 1988) was the karta of the joint Hindu family and in this capacity some of the properties of the Joint Hindu Family were recorded in his name. 3. It is not disputed that Madhav Prashad died some time in the year 1935, Umrao Singh died some time in 1941-42 and Hari Ram died in the year 1978. 4. In respect of agricultural lands it was pleaded that all these agricultural lands were under the joint cultivation of the family and the full accounts of the cultivation was kept by late Madhav Prashad and Umrao Lal, and after their death by Hari Ram. After the death of Hari Ram, his widow Rajjo Devi (Def.no.6), used to look after cultivation on behalf of the family. It was further alleged in the plaint that Hari Ram had transferred some of the agricultural lands in the name of his brother-in-law, son, son-inlaw and other relatives as benami transactions, which was obvious from the fact that the General Power of Attorney was executed by the beneficiaries of these transactions in favour of Hari Ram. However, this fact was not revealed to the branch of the family who were descendants of Umrao L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged that as admitted in the plaint itself 3 out of 6 houses were sold by Hari Ram in his lifetime. 8. On the basis of the pleadings of the parties various issues were framed but according to us only the following issues are relevant which are extracted below :- 1. Whether the properties mentioned in para No.9 of the plaint are the properties of the joint family both the sides or whether the same are the self acquired properties as per the averments made by the defendants? 2. Whether the plaintiff in Civil Suit No.94-A/86 filed in the Court of Civil Judge Class-II, Ashok Nagar, has mentioned the Will dated 6.2.1987 executed by Hari Ram as the basis of the suit? 3. If yes, Whether the plaintiff is stopped from alleging the said Will as null and void? 4. Whether the Will dated 6.2.1987 executed by Hari Ram in connection with the disputed property is Null and void? The trial court decided all these issues in favour of the plaintiff and decreed the suit holding that all the properties were joint family properties and that plaintiff had 2.38% share in the same. The contesting defendants filed an appeal in the High Court of Madhya Pradesh, and the decree of partition by the trial court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property The aforesaid view was accepted by this Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors. (1955) 1 SCR 1 In D.S. Lakshmaiah and Ors. v. L. Balasubramanyam and Ors. (2003) 10 SCC 310 this Court held as follows: The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 4 and 8 are younger to him by 5 and 11 years. Therefore, the oral testimony of these witnesses is not of any use as rightly held by the trial court. 15. The plaintiff places great reliance on the mortgage deed by which 5 houses were mortgaged in favour of Seth Budhmal on 01.12.1944 and 26.11.1946. It is not disputed that there were 6 houses, some single storeyed and some double storeyed in Ashok Nagar which have been described in the plaint. Out of these houses, one was used as dharamshala and the remaining 5 were mortgaged on 01.12.1944 vide mortgage deed (Exh.P.28). This mortgage deed was executed by Hari Ram, S/o Madhav Prashad, and Brij Mohan, Rameshwar Das and Radha Krishan, S/o Umrao Lal and Pop Chand and Babu Lal @ Deep Chand, minor sons of Brij Mohan through their father and Nathu Lal minor S/o Hari Ram, through his father and they are shown as proprietors of firm M/s Madhav Prashad Agarwal. In the mortgage deed after description of the 5 houses it is mentioned that these properties are owned and possessed by us . Further it is mentioned that the properties are free from all encumbrances and there are no other sharers, and the mortgagees have full right to alienate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat defendant No.1 to 3 are Head (KARTA) being wrong, nor they are the Head, nor the mortgage transaction was made in such a capacity and the plaintiff has no right to sue in such a manner. On the basis of the aforesaid pleadings in the earlier suit it is submitted that Hari Ram had admitted that there was a joint family business when this written statement was filed and, therefore, there is proof that the business was a joint family business and there is no material to show that this joint family status was ever disrupted. 18. It is submitted on behalf of the contesting respondent that since the family members of Hari Ram were residing in the mortgaged house, by way of abundant precaution they may have been made to sign the mortgage deed. In our view, that may not be true because the mortgage deed clearly reflects that all the family members including the minors were shown to be owners of the properties by mortgaging the same. Therefore, this property which was mortgaged in the year 1944 and then re-mortgaged in 1946 would prima facie appear to be joint property though at this stage we are not deciding whether the property is a joint property or the property of HUF. 19. An admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be conscious and deliberate act of the party making it. As far as the present case is concerned we do not find any clear-cut admission with regard to the existence of an HUF. At best, from the recitals in the mortgage deed and averments in the written statement, all that can be said is that at the relevant period of time the property was treated to be a joint property. 21. On the other hand, there are many other documents relied upon by the defendants. Out of the 6 houses, 5 were mortgaged and one is admittedly a dharamshala. Out of these 5 houses, 3 were sold by Hari Ram during his life time and during the life time of the predecessors of the plaintiff, nobody objected to the sales of the properties and in the sale deeds Hari Ram is described as the sole owner of the property. One such sale deed is Exh.D-4 wherein it is mentioned that the double storey house is the property of the trading firm Madhav Prashad Agarwal and that Hari Ram is the owner of the firm and in order to repay the loan, sold the house to two persons. This sale deed was witnessed by Seth Budhmal. Though it is not stated so in the sale deed it appears that the amount of consideration must have been paid to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is a joint family property. The plaintiff and defendant nos. 1-3 by accepting the bequest under the Will elected to accept the will. It is trite law that a party cannot be permitted to approbate and reprobate at the same time. This principle is based on the principle of doctrine of election. In respect of Wills, this doctrine has been held to mean that a person who takes benefit of a portion of the Will cannot challenge the remaining portion of the Will. In The Rajasthan State Industrial Development and Investment Corporation and Anr. vs . Diamond and Gem Development Corporation Ltd. and Anr AIR 2013 SC 1241, this Court made an observation that a party cannot be permitted to blow hot and cold , fast and loose or approbate and reprobate . Where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order. 25. The doctrine of election is a facet of law of estoppel. A party cannot blow hot and blow cold at the same time. Any party which takes advantage of any instrument must accept all that is mentioned in the said document. It would be apposite to refer to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these lands were taken on lease by Nathu Lal, S/o Hari Ram from the zamindar of Ashok Nagar. According to the plaintiffs these lands were also lands of the joint family but that version cannot be believed in view of the patta granted in favour of Nathu Lal. It may be true that consideration for grant of patta may have been paid but there is no material on record to show that this payment was made out of the funds of HUF. It may be pertinent to mention here that the plaintiffs have alleged that in 1951 Nathu Lal was a minor and the amount was paid by Hari Ram. However, no proof has been led in this regard. In fact, from the material on record it appears that Nathu Lal was about 21 years old at that time. He was definitely more than 18 years old and thus not a minor. These lands were never shown to be owned by Madhav Prashad or Umrao Lal. It is also pertinent to mention that various parts of the land were transferred to various other persons and these transfers were never challenged by the plaintiff at the relevant time. It would also be pertinent to mention that both the courts below have come to the conclusion that the plaintiffs have failed to prove that they were getting any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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