MANU/SC/0354/2020

Equivalent/Neutral Citation: AIR2020SC 2361, 2020(5)ALD1, 2020(3)ALT241, 2020(3)BLJ414, 2020 (2) C C C 261 , 2021(4)C GLJ162,
2020(3)C TC 111, 2020(II)C LR(SC )688, 2020(1)HLR810, ILR[2020]MP1795, 2020 INSC 327, 2020(2)J.L.J.R.361, 2020(3)JLJ95, 2021(1)MhLj485,
2021(1)MPLJ131, 2020(3)PLJR23, 2020(2)RC R(C ivil)515, 2020(6)SC ALE507, (2020)6SC C 387, [2020]10SC R579

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6875 and 6876-6877 of 2008
Decided On: 03.04.2020
Bhagwat Sharan (Dead) thr. L.Rs. Vs. Purushottam and Ors.
Hon'ble Judges/Coram:
L. Nageswara Rao and Deepak Gupta, JJ.
Counsels:
For Appearing Parties: Harin P. Raval, Sushil Kumar Jain, Vikas Singh, Guru Krishan
Kumar, Anupam Lal Das, Sr. Advs., Nipun Saxena, Serena Sharma, Sukanya Singh,
Kartikey Kanojiya, Siddharth H. Rawal, Vinod Dahiya, B.K. Satija, Puneet Jain, B.K.
Agrawal, Christi Jain, Harsh Jain, Ankita Gupta, Abhinay Deshwal, Pratibha Jain, Pramod
Sharma, Deepika Kalia, Sumit Kumar Sharma, Vishal Lashkari, Ajay Aggarwal, Mallika
Joshi, Saurabh Kumar, S.R. Joshi, Arindam Ghose, Vikrant Singh Bais, Yash Pal Dhingra,
S.K. Verma, Arjun Garg, Buddy A. Ranganadhan, Pravin Bahadur, Amit Agarwal, Manjeet
Kirpal, Niraj Sharma and Suhaas Ratna Joshi, Advs.
Case Category:
PERSONAL LAW MATTERS
Case Note:
Family - Partition - Joint family property - Plaintiff filed suit for partition in
joint family properties by metes and bounds as per his share - Trial court
decreed suit holding that all properties were joint family properties and
Plaintiff had share in same - Defendants filed appeal in High Court and decree
of partition by trial court was set aside - Plaintiff approached High Court for
review - High Court dismissed application for condonation of delay and
application for review - Hence, present appeal - Whether properties were joint
family properties and Plaintiff had share in same.
Facts:
The Plaintiff had filed suit for partition in joint family properties by metes and
bounds as per his share. The Defendants denied the fact that the business
being run under the name of grandfather of Plaintiff was a joint family
business. It was denied that brother of grandfather of Plaintiff was a member
of this business or the said shop was a joint shop. With regard to all the
properties, it was stated that all the houses had been purchased/constructed
by grandfather of Plaintiff alone and that the agricultural lands were
purchased by son of brother of grandfather of Plaintiff from his own income.
The trial court decreed the suit holding that all the properties were joint
family properties and that Plaintiff had share in the same. The contesting
Defendants filed an appeal in the High Court, and the decree of partition by
the trial court was set aside. The Plaintiff approached the High Court for
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review. The High Court dismissed the application for condonation of delay, the
application for review and the application under Order 46 Rule 27 of the Code
of Civil Procedure, 1908.
Held, while dismissing the appeal:
(i) From the facts it was apparent that there was no pleading that real owner
and his sons constituted a HUF. There was no allegation that this family had
some property as its nucleus. Since there was no allegation that real owner
and his four sons constituted a HUF, the fact that one of the sons left the
family to live by himself, would not in any manner mean that there was a
disruption of the joint family status. A disruption would arise only if there
was an allegation that earlier there was a HUF. [12]
(ii) An admission made by a party was only a piece of evidence and not
conclusive proof of what was stated therein. It was in this light that it had to
examine the admission made by son of brother of grandfather of Plaintiff and
his brothers while filing the written statement to the suit filed by mortgagee.
The averment was that the Defendants constituted trading Joint Hindu
Family. It was obvious that the admission was with regard to a trading family
and not HUF. It was clear that not only jointness of the family had to be
proved but burden lies upon the person alleging existence of a joint family to
prove that the property belongs to the joint Hindu family unless there was
material on record to show that the property was the nucleus of the joint
Hindu family or that it was purchased through funds coming out of this
nucleus. This had not been proved in the present case. Merely because the
business was joint would not raise the presumption that there was a Joint
Hindu Family. There was no clear-cut admission. The allegation made was
that the minors were represented by Defendant Nos. 1-3, who were head of
their respective branches. In reply to this it was stated that Defendant Nos. 1-
3 were neither the head or the karta, nor the mortgage transaction was made
in that capacity. This admission could not be said to be an unequivocal
admission of there being a joint family. [19]
(iii) As far as the agricultural lands were concerned the trial court decreed the
suit in respect of the agricultural lands on the basis that grandfather of
Plaintiff and his brother and their successors constituted an HUF. The said
lands having been bought out of the funds of the HUF would be treated to be
the property of the HUF, even though they may have been entered in the
name of any other person. The Plaintiff had failed to prove that there was an
HUF, this court were not inclined to agree with the finding of the trial court.
[26]

JUDGMENT
Deepak Gupta, J.
1 . One Mangat Ram was a resident of Village Narnaul in Rajasthan. He had four sons
viz., Madhav Prashad, Lal Chand, Ram Chand and Umrao Lal. Ram Chand was adopted
by one Shri Gauri Mal of Gwalior. Lal Chand had four sons viz., Sri Ram, Hari Ram,
Govind and Laxmi Narayan. Madhav Prashad had no issues. Therefore, he adopted Hari
Ram, the son of Lal Chand. Ram Chand also had no issues and he adopted Shriram, son
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of Lal Chand. It is the admitted case of the parties that both Ram Chand and Lal Chand
severed connections with the family and had no connection with the property of the
family. This left two branches in the family of Mangat Ram, one being Madhav Prashad
and his descendants through his son Hari Ram, the other branch consisted of Umrao Lal
and his three sons viz., Brij Mohan, Rameshwar and Radha Krishan. The Plaintiff
Bhagwat Sharan, who filed the suit is the son of Radha Krishan and grandson of Umrao
Lal.
2. The above facts are not disputed. The parties are also ad idem that Madhav Prashad
shifted from his native village and came to Ashok Nagar, about 70 years prior to the
filing of the suit. The suit was filed in 1988. Thus, Madhav Prashad must have shifted in
or around 1918. It is also not disputed that Madhav Prashad started working as munshi
of the then zamindar of the area and was thereafter known as munshi Madhav Prashad.
The dispute basically starts hereinafter. The Plaintiff claims that his grandfather Umrao
Lal also came to Ashok Nagar at about the same time and started doing grain business.
Thereafter, Madhav Prashad left the work of munshi and both the brothers started grain
business in the name of "Munshi Madhav Prashad", by setting up a shop. The case of
the Plaintiff is that both Madhav Prashad and Umrao Lal lived together and carried on
the business jointly and purchased various properties described in para 9 of the plaint.
Six properties comprise of six different houses. The properties at para 9(2) comprised
of various agricultural lands in different villages. The case of the Plaintiff is that all
these houses have been constructed jointly by Madhav Prashad and Umrao Lal, and
Madhav Prashad being the elder brother was the karta and was running the joint family
in this capacity. It was further alleged in the plaint that Madhav Prashad being the karta
managed to get some of the joint family property recorded in his own name. It was also
alleged that after the death of Madhav Prashad and 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-in-law 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 Lal. Basically, the allegation was that all the properties
mentioned in para 9 of the plaint were properties of the Hindu Undivided Family (for
short HUF) and, therefore, the Plaintiff sought partition of the same by metes and
bounds as per his share.
5. For the sake of convenience it would be appropriate to extract para 18 of the plaint
which reads as follows:
(18) That the business of the Plaintiff and Defendant Nos. 1 to 18 was almost
joint till the year 1954. Thereafter, on account of the loss in the business and
the business coming to a closure position almost all the people started carrying

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 on their separate business and the immovable properties of the joint family
remained undivided so far. Late Hari Ram sold the house properties mentioned
in para No. 9(1) (c) (d) (e) (f) of the plaint during his life time, which are
liable to be reduced from there share
This suit was contested by some of the Defendants who were either in the line of
descendants of Hari Ram or his beneficiaries. Transfer documents were executed in their
favour. It would be pertinent to mention that none of the other heirs from the lineage of
Umrao Lal filed a written statement. In the written statement filed by the contesting
Respondents the main objection taken was that the properties mentioned in para 9 of
the plaint were not properties of the HUF and it was denied that there ever was any
such HUF.
6 . The Defendants denied the fact that the business being run under the name of
"Munshi Madhav Prashad" was a joint family business. It was denied that Umrao Lal was
a member of this business or the said shop was a joint shop. With regard to all the
properties mentioned in para 9 of the plaint, it was stated that all the houses had been
purchased/constructed by Madhav Prashad alone and that the agricultural lands were
purchased by Hari Ram from his own income.
7. In the written statement the Defendants also placed reliance on the Will of late Hari
Ram and made reference to a suit filed by the Plaintiff and Defendant Nos. 1-3 in which
they had stated that a portion of the house had been bequeathed to them by Hari Ram
by his Will. It was therefore urged that the Plaintiff having elected to accept the bequest
under the Will cannot now turn around and say that the description of the properties
given by Hari Ram in the Will showing them to be his personal properties was not
correct. It was also alleged 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 was set aside. The
Plaintiff approached the High Court for review. The High Court dismissed the application
for condonation of delay, the application for review and the application Under Order XLI
Rule 27 of the Code of Civil Procedure, 1908. Hence this appeal before us.

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9. We have heard Shri Sushil Kumar Jain, learned senior Counsel for the Appellant, Shri
Harin P. Raval, learned senior Counsel for those Respondents who support the Appellant
and Shri Guru Krishna Kumar, Shri Vikas Singh, and Shri Anupam Lal Das, learned
senior Counsel, for the contesting Respondents.
10. At the outset we may note that a lot of arguments were addressed and judgments
were cited on the attributes of HUF and the manner in which it can be constituted. In
view of the facts narrated above, in our view, a large number of these arguments and
citations need not be considered. The law is well settled that the burden is on the
person who alleges that the property is a joint property of an HUF to prove the same.
Reference in this behalf may be made to the judgments of this Court in Bhagwan
Dayal v. Reoti Devi MANU/SC/0374/1961 : AIR 1962 SC 287. Both the parties have
placed reliance on the this judgment. In this case this Court held that the general
principle is that a Hindu family is presumed to be joint unless the contrary is proved. It
was further held that where one of the coparceners separated himself from other
members of the joint family there was no presumption that the rest of coparceners
continued to constitute a joint family. However, it was also held that at the same time
there is no presumption that because one member of the family has separated, the rest
of the family is no longer a joint family. However, it is important to note that this Court
i n Bhagwati Prasad Sah and Ors. v. Dulhin Rameshwari Kuer and Ors.
MANU/SC/0060/1951 : (1951) 2 SCR 603, it held as follows:
.... Except in the case of reunion, the mere fact that separated coparceners
chose to live together or act jointly for purposes of business or trade or in their
dealings with properties, would not give them the status of coparceners under
the Mitakshara law.
The Privy Council in Appalaswami v. Suryanarayanamurti MANU/PR/0051/1947 :
I.L.R. 1948 Mad. 440 held as follows:
The Hindu law upon this aspect of the case is well settled. Proof of the
existence of a joint family does not lead to the presumption that property held
by any member of the family is joint, and the burden 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. MANU/SC/0126/1954 : (1955) 1 SCR 1. InD.S.
Lakshmaiah and Ors. v. L. Balasubramanyam and Ors. MANU/SC/0639/2003 :
(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 purchased the property with his own
funds and not out of joint family nucleus that was available.

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Similar view was taken in Mst Rukhmabai v. Lala Laxminarayan and Ors.
MANU/SC/0186/1959 : (1960) 2 SCR 253 andAppasaheb Peerappa Chamdgade v.
Devendra Peerappa Chamdgade MANU/SC/8597/2006 : (2007) 1 SCC 521. The
law is thus well settled that the burden lies upon the person who alleges the existence
of the Hindu Undivided Family to prove the same.
11. Normally, an HUF can only comprise of all the family members with the head of the
family being karta. Some property has to be the nucleus for this joint family. There is
cleavage of opinion as to whether two brothers of a larger group can form a joint
family. But assuming that such a joint family could have been formed by Madhav
Prashad and Umrao Lal the burden lies heavily on the Plaintiff to prove that the two of
them joined together to form an HUF. To prove this, they will have to not only show
jointness of the property but also jointness of family and jointness of living together.
12. From the facts stated above it is apparent that there is no pleading that Mangat Ram
and Sons constituted a HUF. There is no allegation that this family had some property
as its nucleus. Since there is no allegation that Mangat Ram and his four sons
constituted a HUF, the fact that Lal Chand left the family to live by himself, would not in
any manner mean that there was a disruption of the joint family status. A disruption
would arise only if there was an allegation that earlier there was a HUF.
13. It is also an admitted case of the parties that Madhav Prashad and Umrao Lal came
separately to Ashok Nagar. Madhav Prashad initially worked as a munshi with a
zamindar. Thereafter, as per the Defendants, Madhav Prashad started a business which
was his own but later his brother Umrao Lal joined in the business. It is, however,
contended that this business was not a business of a HUF.
14. On the other hand, the case of the Plaintiff is that it was Umrao Lal who started the
business and Madhav Prashad joined him later on but since Madhav Prashad was the
elder brother, the business was started in the name of Madhav Prashad. There is no
evidence to support the claim either way. The witnesses who have appeared were all
born much later and they have not given any evidence with regard to the joint business.
The Plaintiff Bhagwat Sharan was born in the year 1951. The contesting Defendants 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 same. The 5 houses were
accordingly mortgaged with Seth Budhmal. This was done with a view to pay off the
loan of Krishna Ram Baldeo Bank, with which the properties were already mortgaged.
The amount which they obtained by mortgaging the property was transferred to the
Bank and fresh mortgage was created in favour of Seth Budhmal. In para 5 of the

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mortgage deed it was mentioned that the mortgaged property is free from all
encumbrances and, "we are the absolute owners of the same and there is no co-
parcener and co-sharer". This mortgage deed was signed by Hari Ram, Brij Mohan,
Rameshwar Lal, Radha Krishan as mortgagors. This would indicate that these properties
were owned by them.
16. However, there is no material on record to show that the properties belonged to an
HUF. They may have been joint properties but merely on the basis of the recitals in the
mortgage deed they cannot be said to be a joint family property. It appears that by
another mortgage deed dated 26.11.1946, the value of the mortgaged properties was
enhanced to Rs. 45,000/-, and in addition to the 5 houses, one oil mill at Pachhar was
also mortgaged. Seth Budhmal filed a suit (Exh. P. 4) against Hari Ram, Brij Mohan,
Rameshwar Lal, Radha Krishan, Nathu Lal etc., for realisation of the mortgage money
under the said mortgage deed. In para 6 and 8 of the plaint it was averred as follows:
6 . That, the Defendants at the time of execution of aforesaid documents
constituted a Trading Joint Hindu Family and of which all major members
personally and minor members through their head of the branch were
represented in the execution of mortgage deeds.
8 . That, minors mentioned in the documents have now attained majority.
Therefore, they have been impleaded in person as Defendants. Their liability is
limited to the extent of property of Joint Hindu Family and personal dealing.
Defendant No. 1 to 3 are personally and in the capacity of head of their branch
are made in as Defendants.
17. A written statement was filed on 09.10.1955 (Ex. P-5) on behalf of the aforesaid
Hari Ram, Brij Mohan, Rameshwar Lal, Radha Krishan and Nathu Lal, and reply to paras
6 and 8 of the mortgage deed, read as follows:
6. That as regards paragraph 6 of the plaint there is no objection.
8. That, as regards paragraph 8 of the plaint the reply is that the Defendant No.
6 is still minor. He has not attained majority. It is not admitted that 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.
1 8 . 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 admission made by a party is only a piece of evidence and not conclusive proof
of what is stated therein. It is in this light that we have to examine the admission made
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by Hari Ram and his brothers while filing the written statement to the suit filed by Seth
Budhmal. In paragraph 6 the averment was that the Defendants constituted trading Joint
Hindu Family. It is obvious that the admission was with regard to a trading family and
not HUF. In view of the law cited above, it is clear that not only jointness of the family
has to be proved but burden lies upon the person alleging existence of a joint family to
prove that the property belongs to the joint Hindu family unless there is material on
record to show that the property is the nucleus of the joint Hindu family or that it was
purchased through funds coming out of this nucleus. In our opinion, this has not been
proved in the present case. Merely because the business is joint would not raise the
presumption that there is a Joint Hindu Family. As far as paragraph 8 is concerned in
our view there is no clear-cut admission. The allegation made was that the minors were
represented by Defendant Nos. 1-3, who were head of their respective branches. In
reply to this it was stated that Defendant Nos. 1-3 were neither the head or the karta,
nor the mortgage transaction was made in that capacity. This admission cannot be said
to be an unequivocal admission of there being a joint family.
20. In Nagubai Ammal and Ors. v. B. Shama Rao and Ors. MANU/SC/0089/1956
: (1956) 1 SCR 451 which is the locus classicus on the subject it was held as follows:
An admission is not conclusive as to the truth of the matters stated therein. It is
only a piece of evidence, the weight to be attached to which must depend on
the circumstances under which it is made. It can be shown to be erroneous or
untrue, so long as the person to whom it was made has not acted upon it to his
detriment, when it might become conclusive by way of estoppel.1
It would be pertinent to mention that in Himani Alloys Ltd. v. Tata Steel Ltd.
MANU/SC/0817/2011 : (2011) 15 SCC 273, it was also held that the admission should
be categorical, should 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 Seth Budhmal. This document was executed on
12.09.1967, and this read with the other two sale deeds clearly indicate that Hari Ram
claimed that he was the sole proprietor of the business of the trading firm Madhav
Prashad Agarwal.
2 2 . These sale deeds and the recitals were never challenged by the Plaintiff or his
predecessors. This would indicate that the jointness of the property if any had ceased
because of some family arrangement or partition which may have happened much
earlier. We have to read the sale deeds in conjunction with the averments made in the
plaint quoted hereinabove wherein the Plaintiff has stated that the business came to a
closure and then almost all the people started carrying on their separate business.
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Though it is averred that the immovable properties remained the properties of the joint
family the fact that separate branches started doing separate business is indicative of
the fact that some separation, if not, a formal partition had taken place between the
parties.
23. The other important document is the Will of Hari Ram (Exh. P-3). In this Will, Hari
Ram gives details of the remaining 3 houses and mentions that these were owned by his
father Madhav Prashad and that he (Hari Ram) has been doing business in the name of
his father Munshi Madhav Prashad Agarwal. Out of the 6 houses, 3 had already been
sold by Hari Ram and he has bequeathed the remaining 3 houses to various persons. It
would be relevant to refer to the portion of the Will where Hari Ram states that he had 3
cousins Brij Mohan, Rameshwar Lal and Radha Krishan. Out of these, Radha Krishan
died and was survived by his widow and 3 sons and they were living in the 2nd and 3rd
floor in building No. 2. Hari Ram bequeathed certain portions of the immovable property
to the widow and children of Radha Krishan. It would be pertinent to mention that the
Plaintiff Bhagwat Sharan is the son of Radha Krishan. He also bequeathed certain
properties in favour of his cousins Brij Mohan and Rameshwar Lal.
24. It is also not disputed that the Plaintiff and Defendant Nos. 1-3 herein filed suit for
eviction of an occupant in which he claimed that the property had been bequeathed to
him by Hari Ram. According to the Defendants the Plaintiff having accepted the Will of
Hariram and having taken benefit of the same, cannot turn around and urge that the
Will is not valid and that the entire property 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. v. Diamond and
Gem Development Corporation Ltd. and Anr. MANU/SC/0116/2013 : 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
treatise 'Equity-A course of lectures' by F.W. Maitland, Cambridge University, 1947,
wherein the learned author succinctly described principle of election in the following
terms:
The doctrine of Election may be thus stated: That he who accepts a benefit
under a deed or will or other instrument must adopt the whole contents of that
instrument, must conform to all its provisions and renounce all rights that are
inconsistent with it....
This view has been accepted to be the correct view in Karam Kapahi and Ors. v. Lal
Chand Public Charitable Trust and Ors. MANU/SC/0240/2010 : (2010) 4 SCC 753.
The Plaintiff having elected to accept the Will of Hari Ram, by filing a suit for eviction of
the tenant by claiming that the property had been bequeathed to him by Hari Ram,
cannot now turn around and say that the averments made by Hari Ram that the property
was his personal property, is incorrect.
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26. As far as the agricultural lands are concerned the trial court decreed the suit in
respect of the agricultural lands on the basis that Madhav Prashad and his brother
Umrao Lal and their successors constituted an HUF. The said lands having been bought
out of the funds of the HUF would be treated to be the property of the HUF, even though
they may have been entered in the name of any other person. In view of the above
discussion, and the fact that we have held that the Plaintiff has failed to prove that there
is an HUF, we are not inclined to agree with the finding of the trial court.
2 7 . We now deal with each of the agricultural property separately. The properties
described in paragraph 9(2)(a) of the plaint were earlier recorded in the name of Hari
Ram and later in the names of his sons Purushottam and Vinod. The property at
paragraph 9(2)(b) was also recorded in the name of Hari Ram and he had given
cultivation rights to Sri Ram who is stated to have become the owner thereof. Similarly,
the land described in paragraph 9(2)(c) also was shown in the name of Hari Ram and
this was given to Kahiya Lal on tenancy. The land described in paragraph 9(2)(d) was
also recorded in the name of Hari Ram and was transferred to Shiv Charan, and now
stands in the name of his legal heirs. The land described in paragraph 9(2)(e) which
stood in the name of Hari Ram was also transferred by him in the name of his wife
Rajjo Devi in 1969.
28. As far as the lands 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. 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 proceeds from the income of
the agricultural land. This also indicates that the said land was not joint.
2 9 . In view of the above discussion we find no merit in the appeals filed by the
Appellant(s) and the same are dismissed with no order as to costs. Pending
application(s) if any, shall accordingly stand disposed of.

1 This view has been consistently followed by this Court in a large number of cases
including Bharat Singh and Anr. v. Bhagirathi MANU/SC/0362/1965 : 1966 SCR (1)
606; Uttam Singh Dugal and Co. v. Union of India and Ors. MANU/SC/0485/2000 :
(2000) 7 SCC 120; Himani Alloys Ltd. v. Tata Steel Ltd. MANU/SC/0817/2011 : (2011)
15 SCC 273.
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