Delhi High Court
Santosh Kakkar & Ors. vs Ram Prasad & Ors. on 6 January, 1998
Author: J.B. Goel
Bench: J.B. Goel
JUDGMENT J.B. Goel, J.
1. This is a suit for partition of the movable and immovable properties left behind by late 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.
2. Plaintiffs 1 to 3 and defendant No. 2 are the daughters whereas defendant Nos. 1, 3 and 4 are the sons of the deceased Shri Badri Nath Talwar whereas defendant No.5 is his daughter-in-law being the wife of defendant No.1. Plaintiffs claim 3/7th share in the properties left behind by the deceased.
3. According to the plaintiffs the deceased owned a plot of land measuring 500 sq. yds. in the Colony of Burma Shell Housing Cooperative Society situated at Ring Road, New Delhi (for short the 'Society') and a house situated at 18, Tagore Road, Kanpur Cantt., Kanpur. Besides, he had Bank accounts with M/s. Grindlays Bank Ltd., Parliament Street, New Delhi, Hindustan Commercial Bank, Kanpur, Bank locker with Hindustan Commercial Bank, Kanpur, gold jewellery household property including silver crockery, cutlery, furniture and furnishing etc., alleged to be in possession of defendant No. 1; defendant No. 1 is also realising rent of part of the property situated at Kanpur which has been let out. It is alleged that the defendant No. 1 has not rendered any account inspite of several demands. As regards the plot of land in the Society it is alleged that defendant No. 5 had been appointed as a nominee by the deceased and she is holding the property as a nominee, and this property also devolves on the plaintiffs and defendants 1 to 4 in equal share. The plaintiffs denied that the deceased has left behind a Will or had created a joint Hindu family in respect of his selfacquired property as claimed by the defendant No. 1 in reply notices as copies of documents were not supplied to them on demand being made. Accordingly, this suit for partition, separate possession and also rendition of accounts. Defendant Nos. 1 and 5 have filed joint written statement contesting the suit on various pleas both legal and on merit. It is alleged that the deceased during his lifetime had declared a joint Hindu family alongwith his son defendant No. 1 in respect of his self acquired properties which were also being so assessed; the deceased has also left behind a Will dated 12.7.1972 whereby he had bequeathed his interest in the said joint Hindu family properties including the house at Kanpur to defendant No. 1. As regards the plot of land in the Society it is stated that defendant No. 5 is the nominee appointed by the deceased transferring his share in it but the aforesaid Society has not so far allotted any land to her. It is denied that the deceased had left behind any jewellery, the Bank accounts were joint with defendant No. 5, and the balances in the Bank accounts belong to her; except some old furniture/household goods no other property was left behind by the deceased. Defendant No. 2 has filed separate written statement supporting the case of the defendants 1 and 5. After filing the written statement she has not appeared in the case. Plaintiffs have filed replications to the written statements denying the factum and validity of the Will as well as the creation of the joint Hindu family by the deceased with the defendant No. 1 and have reaffirmed the pleas taken in the plaint. Defendants 3 and 4 have not appeared and were proceeded ex parte. However, during the pendency of the proceedings defendants 3 and 4 had died and their legal representatives have been substituted and brought on record. They also remained ex parts.
4. The following preliminary issue was framed on May 13, 1980:
"Whether this Court has jurisdiction to try this suit?"
This issue was decided on 23.7.1980 in the affirmative and against the defendants.
5. On 23.7.1980 the following further issues were framed:
1. Whether the deceased Sh. Badri Nath Talwar made the Will marked 'A' dated 12th July 1972 and is in.accordance with law? (Onus of proof on, defendants 1 & 5)
2. Whether the deceased Sh. Badri Nath Talwar left any properties besides the one mentioned in para 2 of the plaint and para 2 of the affidavit dated 21.7.80 of Sh. Ram Parsad Talwar, defendant No. 1?
(Onus of proof on the plaintiffs)
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 ?
(Onus of proof on defendant No. 5)
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?
(Onus of proof on defendants 1 & 5)
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 ?
(Onus of proof on defendants 1 & 5)
8. Relief.
6. Plaintiffs and defendants 1 and 5 have led oral and documentary evidence. Plaintiffs have examined five witnesses. PW1 Shri M.L. Khanna has deposed about the deceased having a locker No. G-78 in Hindustan Commercial Bank, Kanpur in his name which on 29.1.72 was converted in the joint names by him with defendant No. 5 and proved copy of account Ex. DW1/1. PW-2 Shri lqbal Nath Chopra has deposed about the status of the deceased. PW-3 Smt. Santosh Kakkar is plaintiff No. 1, PW-4 Smt. Raj Narula is plaintiff No. 2 and PW-5, Shri D.K.Vajpyee is from the concerned office of the Income-Tax Office, Kanpur and has deposed about the income-tax returns filed by the deceased from 1972-73 to 1975-76 in the name of HUF showing certain properties and the income therefrom as HUF property alongwith defendant No. 1. Defendants have examined five witnesses. DW-1 Shri H.C.Khanna as an attesting witness of the Will Ex. D-3, has deposed about the execution of the Will in his presence; DW-2 Shri K.D.Sharma, the Honorary Secretary of the Society has deposed that the deceased was a Member of the Society and his having appointed defendant No. 5, his daughter-in-law as his nominee of his share and interest in the Society; DW-3, Shri R.K.Pandey, U.D.C. from the Income-Tax department of Kanpur has deposed about the income-tax returns of the deceased; DW-4, Shri K.L.Srivastava from the office of newspaper Delhi- Vishwamitra, Kanpur has proved public notice Ex. DW3/1 published in that newspaper on 24.4.72 at the instance of the deceased Shri B.N. Talwar. DW-5 is Smt. Pushpa Devi Talwar, defendant No. 5.
7. Learned Counsel for the plaintiffs and defendants 3 and 4 have addressed arguments disputing the validity of the Will and have taken an objection for the first time that the suit without obtaining probate as required under Section 213 of the Indian Succession Act is not maintainable for which reliance has been placed on Mrs. Hem Neolini Judah Vs. Mrs. Isolyne Sarojbashini Bose & Ors. and Kundan Lai Vs. Ban wari Lal, 1969 All. L.J. 946. Whereas learned Counsel for the defendant No. 1 has contended that Section 213(1) of the Act is not applicable because of subsection (2) of Section 213 read with Section 57 of the Act and no probate is required in Delhi. He has relied on the decision of this Court in Arjun Dass Vs. Madan Lal, 1970 DLT 260, Division Bench decision of Punjab & Haryana High Court in M/s. Bihari Lal Ram Charan Vs. Karam Chand and Others, and Bhaiyaji Vs. Jageshwar Dayal Bajaj, .
8. The relevant provisions of law as contained in Section 213 and Section 57 of the Indian Succession Act, 1925 read as under:
"Section 213. Right as executor or legatee when established (l) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted Letters of Administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made in by Muhammadans, and shall only apply:
(i) in case of Wills made by an Hindu, Budhist, Sikh or Jaina where such Wills are of the classes specified in Clauses (a) and (b) of Section 57; and
(ii) xxxxxxxxx "Section 57. The provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-
(a) to all Wills and codicils made by any Hindu, Budhist, Sikh or jaina, on or after the first day of September, 1870, within the territories which at the said date wire subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras, and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far as relate to immovable property situated within those territories or limits; and
(c) to all Wills and codicils made by any Hindu, Budhist, Sikh and jaina on or after the first day of January, 1927, to which these provisions are not applied by Clauses (a) and (b);
Provided that marriage shall not revoke any such Will or codicil."
A reading of these provisions make it clear that Section 213(1) requiring probate 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. This has also been so held by this Court in the case of Arjun Dass (supra), by the Punjab High Court in Ram Chand Vs. Sardara Singh AIR 1982 Pun. 382 and M/s. Bihari Lal Ram Charan (supra) and by Allahabad High Court in Bhaiji (supra).
9. In the case of Mrs. Hema Neolini Judha after reproducing only subsection (1) of Section 213 it was held that Section 213 creates a bar to the establishment of any right in Will by an executor or a legatee unless probate or Letters of Administration of the Will have been obtained, whether that right is claimed by the person as a plaintiff or defendant. Provisions of Subsection (2) of Section 213 and Section 57 were not referred to or considered. Moreover, the parties in that case were Christians to whom Section 57 does not apply. In that case reliance was placed on a Full Bench decision of the Madras High Court in Ghansham Dass Vs. Gulabi Bi AIR 1927 Madras 1054, where it was held that a defendant resisting a claim made by the plaintiff could not rely in defense on a Will executed in his favour at Madras in respect of property situated in Madras when the Will was not probated and no Letters of Administration with the Will annexed had been granted. This case was clearly in accordance with Section 213 read with Section 57 of the Act.
10. In the case of Kundan Lal Vs. Bihari Lal (supra) the question under consideration was about the applicability of Section 214 and not Section 213 of the Act and it was held that in view of Section 214 probate, Letters of Administration or succession certificate etc. was required in respect of the property mentioned under Section 214. That authority thus is not applicable. In these circumstances, I am in respectful agreement with the view taken by this Court in Arjun Dass (supra), and the Punjab and Allahabad High Courts, relied on behalf of defendant No. 1 and hold that probate or Letters of Administration is not required for basing claim on the basis of an un-probated Will by defendant No. 1. The objection taken thus has no merit.
Issue No. 1:
11. Learned Counsel for defendants 1 and 5 has contended that due execution and attestation of the Will has been properly and satisfactorily proved by DW-1 whose testimony has not been challenged in cross-examination or rebutted otherwise; the testator has himself given the reasons in the Will for distribution of his property in the manner which he thought just and proper in the circumstances; there are no suspicious circumstances surrounding the Will to cast any doubt on its validity; Whereas, learned Counsel for defendant No. 3 (who has not filed written statement) has contended that the Will has been attested by a Notary on 31.7.1972 and as such it cannot be said it was executed on 12.7.1972 and in the circumstances the testimony of DW-1 is not reliable and as such due execution and attestation is not proved. He has also contended relying on H. Venkatachala Vs. B.N. Thimmajamma & Ors, , that the onus is also on the propounder of the Will to explain the suspicious circumstances and in the present case almost whole of the property owned by the deceased has been bequeathed to one son only to the exclusion of his four daughters and the other two sons without any rhyme or reason and this circumstance has not been explained on the record and this Will cannot be relied. He has also relied on Meet Singh And Ors. Vs. Malkiat Singh and Ors. reported in 1984 Pun. L.R. 278. Learned Counsel for the plaintiffs has also supported these contentions.
12. The law about proof of Will is well established. 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. Ordinarily when the evidence 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 favour of the propounder. 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 and 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. (See: H. Venkatachala Vs. B.N. Thimmajamma & Ors., Rani Purnima Devi Vs. Khagudha Narayan Dev Shashi Kumar Bannerjee & Ors. Vs. Subhash Kumar Bannerjee through LRs. and Others, and Smt. Indu Bala Bose and Anr. Vs. Maninder Chand Bose and Anr., ).
14. In the case of H. Venkatachala (supra) regarding the nature of proof of Will, it has further been observed as under:
"It is obvious that for deciding material questions of fact which arise in applications for probate or inactions on Wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the Will has to prove the 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 is hardly necessary to add 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. It is quite true that, as observed by Lord Du Pareq in Harmes Vs. Hinkson, 50 Cal W N 895: (AIR 1946 PC 156) "where a Will is charged with suspicion, the rules enjoin a reasonable seepticism, not an obdurate persistence or disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
Coming to the Will, DW-1 Shri H.C. Khanna is an attesting witness to the execution of the Will. He has deposed that he knew deceased B.N. Talwar for 15 years before his death in 1976; Shri Talwar had signed the Will Ex. D-3 at each of its pages after going through the Will in his presence and in the presence of Shri Ram Lal, Advocate; he and Shri Ram Lal, Advocate had signed it as attesting witnesses in the presence of each other and in the presence of the testator, at that time Shri Talwar was in sound mind and excellent health, that Shri Ram Lal, Advocate has since died, that the Will had been prepared and got typed by Shri Ram Lal. Advocate and was executed at the house of Shri Ram Lal. Nothing of substance has been suggested to or is elicited in his cross-examination to challenge the veracity of his statement and the due execution of the Will. This witness is an independent and disinterested witness. His testimony is cogent, reliable and trustworthy. There is no reason to disbelieve him.
14. DW-5 is the daughter-in-law of the deceased and wife of defendant No. 1, the legatee of the Will. She has deposed that she with her family has been living jointly with the deceased and has also deposed that Shri B.N. Talwar, her father-in-law had executed the Will which was in custody of Shri. R.R. Mansingh. No suggestion has been put to her suggesting doubts about the due execution of the Will.
15. The propounder has been able to show by cogent and satisfactory evidence that 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.
16. Coming to the inherent probabilities of the Will. 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. When the testator had full right to alienate his property during his life time, he could as well dispose of the same by Will. The testator has given reasons for giving major portion of the property to one son only. In the Will inter alia it is recited as under:
"(iii) With my earnings I was able to bring up my children in a decent manner and celebrated their marriages according to the status of my family...
(iv) My sons Shri Pran Nath Talwar, Shri Nar Singh Dass Talwar have been and are keeping their respective earnings and the properties acquired therewith as their separate properties....
(v) My both the elder sons, by the grace of God are well to do and well placed. I have got full satisfaction about them. My third son Shri Ram Prasad Talwar is financially weak. He has not been able to show satisfactory results in the business he has been doing. I deemed it necessary to lend him some help to improve his lot so that he may also be able to lead a comfortable life with his wife and children."
He has also stated that he had earlier declared a joint Hindu family with his son Shri Ram Prashad 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.
17. And the remaining assets and properties have been given to all his heirs in equal shares.
18. Regarding the financial condition of the legatee, PW3 Smt. Santosh Kakkar, plaintiff No. 1 has stated as under:
".......My brother, defendant No. 1, Ram Prasad Talwar, was dependant on my father.... It is correct that my parents, my brother and his family were all living in the same house - 18, Tagore Road, Kanpur Cantt., Kanpur. My brother Ram Prasad Talwar has hardly earned anything in his life. His wife Mrs. Pushpa Talwar was running a little nursery school with 6 or 7 children to start with....... My two brothers Major P.N. Talwar and Mr. N.D. Talwar to some extent can be said to be well settled in life.... My father had to spend on the marriages of my brothers and sisters. My father was also giving some amounts in the form of presents when there was a marriage of his grand children. After my father's retirement 5 grand children were married.... (In Cross-examination) "I do not know whether my brother Major P.N. Talwar had lately bought a flat at Bombay. He may have done so. I do not know whether my other brother Mr. N.D. Talwar owns a plot at Dehradun. We sisters are well settled. In the year 1972, myself, my sisters and my two brothers, namely, Major P.N. Talwar and Mr. Nar Singh Das Talwar were sell settled."
And plaintiff No. 2, Mrs. Raj Nanda, PW-4, (in corss-examination) has stated:
....... It is correct that comparatively defendant No. 1 was not in as good a financial position as other brothers and sisters were at the time of my father's death and during his last years before death...
..... During the year 1960 my sister-in-law, Mrs. Pushpa Talwar started a very small nursery school .... May be my sister-in-law was earning Rs. 150/- per month in the year 1960. The amount of earning was quite nominal possibly by the year 1970, it was Rs. 300 to Rs. 400/- per month."
This testimony of PW3 and PW4, corroborates the recitals in the Will about the not very favourable financial position of the legatee and the better financial conditions of other heirs of the deceased. The testator himself has given reasons for giving major share of his property to one son. 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. In these circumstances, it cannot be said that the Will in favour of defendant No. 1 is surrounded by suspicious circumstances simply because the substantial part of the property has been bequeathed to one son.
19. The attestation of the Will by a Notary on 31.7.1972 also is not a suspicious circumstance. The testimony of DW-1 that the Will was duly signed and executed in his presence has been found to be disinterested, cogent and satisfactory. He has stated that seal of the Will (perhaps meaning seal of the Notary) was not put at that time. Apparently, the testator to lend more credibility to the Will might have thought to get it attested by a Notary later on. That circumstance cannot be said to be a suspicious circumstance in this case. This Will had been duly executed on 12.7.1972.
20. The case of Meet Singh (supra) relied on behalf of the plaintiffs is based on its own facts. Multiple suspicious circumstances have been noticed in the judgment which were not explained and as such that authority is of no help. In the circumstances, there is nothing to doubt the genuineness of the Will and it is, accordingly, held to have been duly signed and executed by the testator. Issue No 1 is thus, decided in the affirmative and in favour of defendants 1 and 5 and against the plaintiffs.
Issue No. 2:
21. The burden of this issue is on the plaintiffs. Plaintiffs in the plaint had alleged that the deceased possessed two immovable properties;
(i) a plot of land measuring 500 sq. yds. in the Colony of Burma Shell Cooperative House Building Society;
(ii) a constructed house situated at 18, Tagore Road, Kanpur Cantt., Kanpur; and Moveable properties consisting of:
(i) Bank account with M/s. Grindlays Bank Ltd., Parliament Street, New Delhi.
(ii) Bank account with M/s. Hindustan Commercial Bank, Birhana Road, Kanpur;
(iii) Locker with M/s. Hindustan Commercial Bank Birhana Road, Kanpur;
(iv) Gold jewellery belonging to the deceased; and
(v) Other movable properties belonging to the deceased details of which including household property such as silver and other crockery, cutlery, furniture and furnishings etc. etc.
22. Defendants 1 and 5 in the written statement had denied that plot of land measuring 500 sq. yds. had been allotted by the said Society. Deceased owning house situated at 18 Tagore Road, Kanpur Cantt., Kanpur was not disputed. It was denied that the deceased had any Bank account with M/s. Grindlays Bank Ltd., Parliament Street, New Delhi or with M/s. Hindustan Commercial Bank, Birhana Road, Kanpur; however it is admitted that the deceased had a joint account with defendant No. 5 in Hindustan Commercial Bank, Kanpur with a balance of Rs. 185.67p. at the time of his death; Locker in Hindustan Commercial Bank, Kanpur was a joint locker with defendant No. 5 which the deceased used for keeping his important papers and documents and no jewellery was kept there as none was possessed by the deceased at the time of his death which he had already disposed of and that all the property devolved on defendant No.1 by virtue of the Will of the deceased.
23. Subsequently on being directed by this Court defendant No. 1 had filed his affidavit dated 21.7.1980 where details of the assets have been given as under:-
MOVEABLE PROPERTIES
(i) 10 shares of Tarzan Hosiery of the face Rs.1000.00
(ii) 15 shares of Nawabaganj Sugar Mills Company Limited, Nawabganj, U.P. of the face value Rs. 1500.00
(iii) Cash in hand: Rs. 1000.00
(iv) Household goods: Rs. 2500.00 (Furniture & Wearing Apparels)
(v) Fixed Deposit: Rs. 6250.00 in Central Bank of India, Kanpur.
(vi) Balance in Saving Bank Rs. 3501.00
A/c No.4288, in Central
Bank of India, Kanpur.
(vii) Balance in Saving Bank Rs. 185.67
A/c No.10085 in Hindustan
Commercial Bank, Kanpur.
IMMOVABLE PROPERTIES
(viii) 18, Tagore Road, Cantt. Kanpur.
24. It is alleged that the fixed deposit and Saving Bank accounts at item No. (v) and (vi) were joint with defendant No. 5 and share of deceased was only half and that the shares and the house property at Kanpur were declared as joint Hindu family property on 24.3.1972 and by his Will the interest of the deceased has devolved on defendant No.1.
Regarding the contents of locker:
25. PW-1 Shri Moti Lal Khanna from the Bank concerned has deposed that locker No. Godrej-78 was hired by the deceased in the year 1972 in his name and on 29.1.1972 it was converted in joint names of the deceased with defendant No. 5; this locker was operated by defendant No. 5 on 8.2.1973, 22.7.74, 15.11.76 and 17.2.77 and by the deceased on 27.11.74 and 23.7.76. The locker was surrendered on 19.10.1979. He has proved its relevant account Ex. PW 3/1.
26. Details of the jewellery that may have been owned and possessed by the deceased have not been given in the plaint nor even in the replication. PW- 3 Smt. Santosh Kakkar, plaintiff has deposed that there was some jewellery in the locker which was left by her mother. No details or weight has been given in her statement-in-chief also. In cross-examination she for the first time of her own stated that her father while in hospital had told her that jewellery of her mother was lying in the Bank locker and he wished to give that jewellery to the daughters. A suggestion has been put to her that there was no jewellery left. These facts were not mentioned in the plaint nor in her statement-in-chief. PW 4 Smt. Raj Nanda (plaintiff) has deposed that her mother came from a well known family, after marrying four daughters and three sons she had 10/12 gold enameled bangles, a few chains, two sets of diamond tops, one ruby and diamond ring, one ordinary diamond ring, one golden arm band, a few golden clips, two long chains of Japanese pearls and a few golden rings. In her cross-examination she has stated that we, obviously meaning the plaintiffs, were always in knowledge of the details of the jewellery as deposed to by her and she had given these details to her Counsel. The non-mention of the jewellery items in the plaint cast doubt on the veracity of the testimony of PW3 and PW4. PW4 has also not been corroborated by PW3 about the items of jewellery. Daughters do visit their parents off and on and if the mother owned any jewelery that must have been known to the plaintiffs and the details would have been given in the plaint.
27. Defendant No. 5, Smt. Pushpa Talwar appeared as DW-5. She has deposed that her mother-in-law had died in 1971. Whatever little jewellery her mother-in-law possessed she had given it to her daughters and to the grand children at their respective marriages, she herself owns jewellery consisting of four bangles, two necklaces, broken chains which was received from her father-in-law. She had two diamond rings, one pendant, one pair of tops which was purchased after 1980, one ring was acquired in exchange for her broken diamond ring and the other ring was acquired in replacement of four bangles. It was suggested to her that her father-in-law had no jewellery at the time of his death to which she admitted. This suggestion itself Will demolish the case of the plaintiffs.
28. PW-3 had also stated that after retirement of her father his five grand children were married and he had given some amounts in the form of presents on those occasions. It has not been denied by PW-3 and PW-4 that jewellery was given as presents at the time of marriage of the grand children. The deceased had retired in 1959. Defendant No. 5 at the time of her marriage was a teacher and afterwards used to run a school. She enjoyed good status. She must be having jewellery given to her at the time of her boy marriage both by her parents and her in laws. She has given the details of the jewellery possessed by her. The plaintiffs have not claimed in the plaint or in cross-examination that this jewellery belonged to their mother or father and not to the defendant. The deceased must have given jewellery to his children, seven in number at the time of their marriages and also at the time of marriage of his five grand children. Details of the jewellery, if left behind by the mother would have been within the knowledge of the plaintiff and also defendants 2 to 4. Defendants 2 to 4 have not taken part in the proceedings. Defendant No. 5 has deposed that the deceased had no jewellery at the time if his death. The Bank locker was in the joint names of the deceased and defendant No. 5. That in itself does not prove that the deceased must have owned jewellery and kept it in that locker. The locker being in joint names was also being operated by defendant No. 5 which she might have used for keeping her own jewellery as well.
29. On the evidence led by the parties and taking into consideration the circumstances it is not proved that the deceased had left behind any jewellery.
If any HUF was created and what property is HUF property:
30. It is the case of the defendants 1 and 5 that the deceased had constituted a joint Hindu family with his son Shri Ram Prasad and had given declaration to that effect to the Income-Tax Officer concerned. DW-5 has so deposed. DW-4 Sh. K.L. Srivastava has proved a public notice Ex. DW3/1 published at the instance of the deceased in his newspaper 'Daily Vishwamitra' on 4.4.1972. DW-3 Shri R.K. Pandey, UDC, from Income Tax Department, Kanpur had deposed from the records which he has brought that alongwith return for the year 1973-74 the deceased had filed Ex. DW3/1 and his declaration dated 24.3.1972 to this effect. Plaintiffs have examined Shri D.K. Vajpayee, Stenographer from that department as PW-5. He has deposed that in his individual returns for the assessment years 1973-74, 1974-75 and 1975- 76, the deceased has inter alia shown income from HUF, dividend income and property as one half and he had in his letter dated 1.10.1973 informed having created a HUF with his son Shri Ram Prasad under the name of B.N. Talwar and son. In his Will Ex. D3 also the deceased has acknowledged having constituted this joint Hindu family and declaring his property No. 18, Tagore Road, Kanpur Cantt., Kanpur (2) 369 shares of six companies and one share of UTI, details of which have been given in the Will, as joint Hindu family property and also having filed a declaration to this effect in the Income-tax office concerned.
31. The factum and validity of the constitution of the HUF was not disputed in arguments on behalf of the plaintiffs. Their Lordships of the Supreme Court in Lakki Reddi Chinna Venkata Reddi Vs. Lakki Reddi Lakshmama, have pointed out the law relating to blending of self acquired separate property with the HUF as under:
"Law relating to blending of separate property with joint family property is well settled. 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."
His intention is clear from the declaration, sharing income therefrom, declarations made in the income-tax returns and the Will executed by him. From this material it is clearly proved that the deceased had declared a HUF with his son defendant No. 1 and had thrown the aforesaid properties in the common stock as joint Hindu family properties.
32. Section 64(2) of the Income Tax Act, 1961 relied by learned Counsel for the defendant No. 4 to the contrary does not invalidate the blending of properties as HUF though for the purpose of Income Tax Act its income is computed as the income of the individual concerned. By virtue of the Will Ex. D-3 also defendant No. 1 becomes the owner of these two properties having been bequeathed to him alone.
Other movable properties:
33. PW-3 has deposed that the deceased has left behind movable property such as silver crockery, beautiful Persian carpets and the furniture. However, particulars and value thereof have not been given in the plaint or in her statement. PW-4 has deposed that her father had left behind godrej Almirahs, a typewriter, carpets, few pieces of old antique furniture, very many sets of crockery, cutlery, silverware, valuable clothes belonging to her mother, utensils, boxes full of various articles, and furniture. She has also not given the details with particulars and the value of the goods. The deceased was a retired person having retired in the year 1959. He had income of pension, dividend, interest and from house property. At the same it is also proved that defendant No. 1 and his family was dependent on him. It is not the case of the plaintiffs that the deceased had purchased such goods in the recent past before his death. Furniture and household goods must be old ones. The plaintiffs had not given the details of the goods and their value. Defendant No. 1 in her affidavit had given the value of household goods at Rs. 2,500/-. The burden of proof is on the plaintiffs. In the absence of any cogent evidence, the valuation given by the defendant No. 1 is taken as the value of the goods left by the deceased.
34. Except the affidavit of defendant No. 1 there is no other evidence about the cash in hand left by the deceased and in the Bank accounts of the deceased. As per the affidavit of defendant the cash in hand and the amounts to the credit of the deceased in the three Bank accounts is Rs. 10,936.67. It is accordingly held that this amount belonged to the deceased. This issue is decided accordingly.
Issue No. 3:
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?
(Onus of proof on defendant No.5) It is the admitted case of the parties that Shri B.N. Talwar was a member of Burma Shell Cooperative House Building Society. DW-2, Shri K.D. Sharma, Honorary Secretary of the Society has also proved this fact. The plaintiffs had alleged in the plaint that the said Society had allotted a plot of land measuring 500 sq. yds. to the deceased during his life time and this plot is being held by defendant No. 5 which the defendant No. 5 had denied. DW-2 Shri K.D. Sharma in his statement made on March 31, 1981 has deposed that till then the Society had not allotted any plot of land to its members. To this there was no cross-examination. Thus, it is proved that the plot of land had not been allotted to the deceased when he died.
35. DW-2 Shri K.D. Sharma on the basis of the records available with him has deposed that the deceased Shri B.N. Talwar initially had nominated his wife Smt. Kartari Devi as his nominee but on her death, in May, 1972 vide nomination letter Ex. DW2/1 he had denominated Smt. Pushpa Talwar as his nominee, and accordingly this nomination was changed in records.
36. Ex.DW2/1 is the nomination letter dated 11th May, 1972 which reads as under:
"With the death of my beloved wife Smt. Kartari Devi, last year, I now nominate my daughter-in-law, Smt. Pushpa Talwar as my nominee in case of my death for all my rights, claims and assets in the society. Kindly acknowledge."
Factum of nomination is not disputed.
The question is what is the effect of this nomination?
37. Learned Counsel for the plaintiffs has contended that Smt. Pushpa Talwar is mere nominee and by nomination she has not acquired any right or interest in the membership of the Society or in the land allotted or to be allotted by the Society against this membership. According to him, the nomination only indicates the hand which is authorised to receive the amount or to deal with the Society and the nomination does not create a new rule of succession or confer any right or interest in the nominee qua the interest or right of the deceased member. He has relied on Smt. Sarbati Devi and Another v. Smt. Usha Devi, , Sushila Devi Bhaskar v. Ishwar Nagar Cooperative House Building Society Ltd. & Ors., Priya Nath Mehta v. Manju Aggarwal, and Gopal Vishnu Ghatnekar v. Madhukar Vishnu Ghatnekar, . Whereas learned Counsel for defendant No. 5 has contended that in the case of Smt. Sarbati Devi (supra) the question involved was not about the nomination by a member of a cooperative society but pertained to the nomination in respect of life insurance policy of the deceased under Section 39 of the Insurance Act, 1938 and it was held that the proceeds of the policy payable on death of the insured formed part of his assets to which ordinary law of succession Will apply and the other authorities relied on behalf of the plaintiffs have followed this authority. In all those cases the deceased had been allotted plot of land and in two cases flat or house had Un-reconstructed and those plots 3 and houses would also form part of the estate held by the deceased to which also normal law of succession Will be applicable. The scope and meaning of nomination in respect of membership only under the Delhi Cooperative Societies Act, 1972 (for short the 'Act'), the Delhi Cooperative Societies Rules (hereinafter called the 'Rules') and the Byelaws of the Society wherever land had not yet been allotted to the deceased member had not been considered. According to him nominee of the deceased members became a member of the Society for all intents and purposes in her own right in this case. He has relied on relevant provision of the Act, Rules and the Byelaws and also on Smt. Kusum Debi Jhinjhani v. Pushpa Devi Khurda, .
38. In the case of Smt. Sarbati Devi (supra) the question was whether a nominee under Section 39 of the Insurance Act, 1938 gets an absolute right to the amount payable under life insurance policy on the death of the assured. After referring to the provisions of Section 39 of the Act, the law in force in England on the question as summarised in Halsbury's Law of England (IVth Edition) Vol. 25, para 579 and the views of majority of the High Courts, it was held that Section 39 does not alter the course of succession under the law and the nominee acquires no sort of interest in the policy during the life time of the policy holder and as such on the death of the policy holder, the amount payable under the policy becomes part of his, estate which is governed by the law of succession applicable to him. The nomination only indicates the hand which is authorised to receive the amount and gives the insurer a valid discharge of its policy. Such amount belonged to the heirs of the assured in accordance with the law of succession governing them.
39. The proceeds of the life insurance policy payable on the death of the deceased obviously formed part of the estate of the deceased on his death which would devolve on his legal heirs.
40. In the case of Smt. Sushila Devi Bhaskar (supra) the facts were that deceased Shri R.N. Bhaskar, late husband of the petitioner was the founder member of the cooperative society and in his capacity as a member was allotted a plot by the Society and a perpetual sublease dated September 7, 1979 also between the President of India, the lessor, the Society and the deceased was also executed and duly registered. Shri R.N. Bhaskar died later on September 7, 1982 leaving behind the petitioner, his wife among other heirs. On her written request made to the Society, petitioner was informed that her son was the nominee with respect to the aforesaid plot. But the petitioner disputed the validity of any such nomination and requested to recognise her right as heir of the deceased. It appears that the allotment of the plot was cancelled and threat/attempt to take possession of the same was also made when the petitioner filed a writ petition. In the counter affidavit filed on behalf of the Society it was alleged that neither the nominee nor the heirs applied to the Society within the prescribed limit of one month from the date of the death of the deceased and as such nominee as well as heirs had forfeited their right in the matter and the membership of the late Shri R.N. Bhaskar automatically ceased on his death on 7.9.82. However, during arguments an objection was taken that the petitioner had no locus standi to file the petition, in view of the provisions of the Act and the relevant rules as in the register of the members of the Society Shri Rajbir Bhaskar son of the deceased member was the nominee in respect of the plot and under proviso (ii) to Section 26(1) of the Act the Society can transfer the share or interest of the deceased member to a nominee, in accordance with Rules and Byelaws for membership of the Society; the objection thus was that the nominee of the deceased got the exclusive right and interest in the plot. This objection was rejected and it was held that 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, , 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."
The principle applied is that the plot of land belonging to the deceased formed part of his estate and devolved on his heirs according to law of succession.
41. In the case of Priya Nath Mehta (supra) premises No. B-126, Sarvodaya Enclave, New Delhi were constructed on a plot of land leased by the President of India in favour of the Govt. Employees Sarvodaya Cooperative House Building Society and sublease by the Society granted to Shri B.L.Chaudhary, maternal grand father of respondent No.1. Petitioner was a tenant with effect from 1.7.1970. Shri B.L. Chaudhary had died on 20th June, 1975 survived by his wife Smt. Kesri Devi, who was nominated as a to succeed him, as a member of the Society. The said wife nominated Shri Arun Kumar respondent No. 7 as her nominee to succeed as member of the Society. Smt. Kesri Devi also died on 30.4.1976; after the death of kesri Devi the respondents (her heirs seven in number) inherited their interest in the property by operations of law. In oral partition respondents 1 to 4 became exclusive owners of the tenanted premises and Respondent No.1 had sought eviction of the petitioner tenant under Section 14-D of the Delhi Rent Control Act. An objection was taken by the petitioner that there was no relationship of landlord and tenant between the petitioner and respondent No. 1, as Mr. Arun Kumar respondent No. 7 was the recorded owner of the premises in question in the records of the Society. Obviously, the objection was that in the presence of the nominee respondent No. 1 though one of the heir, had acquired no rights in the property. After referring to Section 26 of the Act, Rule 35, Supreme Court decision in Smt. Sarbati Devi (supra) earlier judgment in Smt. Sushila Bhaskar (supra) and also the decision of the Bombay High Court in Gopal Vishnu Ghatnekar (supra) it was held that the nominee does not get beneficial interest in the property which goes by inheritance and not by mere nomination and respondent No. being an heir was entitled to claim eviction. Here also the house formed part of the estate of the deceased member and it devolved on his heirs by law of succession and not by nomination. Similar was the position in the case of Gopal Vishnu Ghatnekar (supra) decided by the Bombay High Court. However in the case of Smt. Kusum Devi Jhinjhani (supra) of the Calcutta High Court relied on behalf of the defendant No. 5 contrary view has been taken. That case related to the provisions of the West Bengal Cooperative Societies Act where the membership of the cooperative society and the flat allotted to the deceased member had been transfered in favour of the nominee. It was held that the nominee became the owner by virtue of the nomination by the deceased member.
42. But in the present case in hand, the position is not same inasmuch as land had not been allotted during the life time of the deceased member by the Society.
43. It would thus be relevant and proper to refer to the provisions of the Act, the Rules and Byelaws of the Society to ascertain what right, if any, is acquired by a nominee.
44. Section 2(k) of the Act defines the word 'member' as under:
"member" means a person joining in the application for the registration of a cooperative society and a person admitted to membership after such registration in accordance with this Act, the rules and the byelaws, and includes a nominal and an associate member and the Central Government when it subscribes to the share capital of a society;"
"Rules" according to Section 2(p) means the Rules made under the Act and under Section 2(a) "byelaw" means the registered byelaws for the time being in force. Section 20 of the Act prescribes the conditions to become a member of a cooperative society. Section 23 confers right to vote to the member. The share or interest of a member is transferable under Section 25 during his lifetime and Section 26 provides for transfer by nomination of share or interest of a member on his death. Subsections (1) and (3) of Section 26 reads as under:
26(1) On the death member of a cooperative society may transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is not person so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member, or pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member's share or interest as ascertained in accordance with the rules or byelaws:
Provided.....
(3) All transfers and payments made by a cooperative society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the society by any other person."
Rule 33 provides for maintenance by the Society of register of members with the particulars as prescribed Rule 34 provides for procedure for transfer of shares during the lifetime of the transferor and Rule 35 provides for nomination made by a member on his death and reads as under:
"35. Nomination of Persons:
(1) For the purpose of transfer of his share or interest under Subsection (1) of Section 26, a member of a cooperative society may, by a document signed by him or by making a statement in any book kept for the purpose by the society, nominate any person or person. Where the nomination is made by a document, such document shall be deposited with the society during the member's life time and where the nomination made by a statement, such statement shall be signed by the member and attested by one witness.
(2) The nomination made under Sub rule (1) may be revoked or varied by any other nomination made in accordance with that sub rule.
(3) The record of nomination shall be kept by a cooperative society in such manner as may be laid down in the byelaws.
(4) xxx xxx xxx (5) xxx xxx xxx (6) (i) Where a member of a cooperative society has not made any nomination, the society shall, on the member's death, by a public notice exhibited at the office of the society invite claims or objections for the proposed transfer of the share or interest of the deceased within the time specified in the notice.
(ii) After taking into consideration the claim or objections received in reply to the notice or otherwise, and after making such inquiries as the committee considers proper in the circumstances prevailing, the committee shall decide as to the person who in its opinion is the heir or the legal representative of the deceased member and proceed to take action under Section 26, subject to any appeal which may be filed to the Registrar by any person claiming the share or interest of deceased member within 30 days of the decision of the committee. The orders of the Registrar on such appeal shall be final and binding upon all concerned.
(7) If the committee refuses to transfer the share or interest of the deceased member to his nominee or his successor-in-interest, or fails to take a decision on the application of such nominee or the successor-in-interest as the case may be within 30 days of the date of such refusal or the date of such application, a nominee or any person claiming to be a successor-in-interest of the deceased member shall file an appeal to the registrar, who after hearing the society and the applicant or any other person interested, shall pass such order as he may deem fit and on such condition as he may impose and order made by the Registrar shall be final and binding on all concerned."
Rule 36 provides for expulsion of a member in case of default in payment of the dues to the society etc. Rule 37 provides for preparation of list of members of the society every year for the purpose of annual election of the society. Rules 38 and 39 prescribe that defaulting members have no right to vote. Rule 40 prescribes for cessation of membership of the society on resignation or on transfer of the whole of his share or interest in the society to another member or on his death, removal or expulsion or incurring any of the disqualification specified in the Act and the Rules. Byelaws of the Society are Ex. DW2/4. Byelaw 3 provides that the membership of the Society shall consist of :
(i) the persons who join the applicants for registration and
(ii) persons admitted in accordance with the byelaws.
Byelaws 4 and 5 prescribe the requisite conditions for becoming a member of the society. Byelaw 7 provides for termination of the membership in case of death etc. Byelaw 8 provides for nomination by a member.
45. Byelaw 13 provides that a member or a nominee or the successor of an exmember may transfer his shares to another member subject to the conditions mentioned therein. Byelaw 18 provides right to vote to a member. Clause 7 of the Rules of Business of the society provides for entitlement to get plot by a member for his dwelling purposes which reads as under:
"7. Members Will only be entitled to get plots mainly for dwelling purposes for his own benefit and for the benefit of the members of his family. In no case a member Will be entitled to acquire a plot and to participate in the Scheme for benefit of any one unconnected with the membership of the Society provided that every member shall have the right to let out a part or whole of his house. In case of death or retirement of member his decendants Will be entitled to the full benefit of the plot assigned in his name, who shall be member of the Society."
Rule 7A provides that no member can transfer the plot or construction raised thereon for a specified period and only to a member of the society thereafter.
46. The Scheme of the Act, Rules and the Byelaws of the Society show that a member of society can transfer his share during his lifetime. He can also nominate a person to succeed his membership on his death, transferring his share or interest as a member of the society which on his death stands transferred to his nominee and it is only when there is no nomination made that the share or interest of a deceased member would devolve upon his heir or legal representative. The right to membership of the Society is created by the Act, Rules and Byelaws and it could be regulated or taken away or otherwise transferred to anyone else in accordance with the same Act, Rules or Byelaws. Transfer of membership by nomination is one of the mode prescribed for transfer of share or interest of a member in the Society under Section 26 of the Act.
47. On the claim of the nominee being accepted by the society, he becomes a member of the society for all intents and purposes. Neither the Act nor the Rules or the Byelaws provide or contemplate that a nominee Will be a trustee or agent of the heirs of the deceased on his being accepted as a member of the society. As a member of the Society under Rule 7 of the Rules of Business of the Society he is entitled to get plot of land, for his own dwelling purposes and not for the benefit of anyone else. The cases relied on behalf of the plaintiffs related to estate of the deceased devolving on his death viz., the proceeds of the life insurance amount, or plot of land allotted to a member, or a house being constructed after the land having been allotted to him, during his life time and not to transfer of membership by nomination. In my view those cases are distinguishable on facts. In the present case, 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.
48. Defendant No. 5 has deposed that she as a nominee of her father-in-law was allotted a plot of 500 sq. yds. bearing No. 14, Aradhna Colony, Ring Road, New Delhi in November, 1982 and the possession thereof was delivered to her on 11.11.1983. Deceased Shri B.N. Talwar had died on 2.11.1976. The land, thus, was allotted after 6 years and the possession thereof delivered to her after 7 years of the death of Shri B.N. Talwar. Obviously, Shri B.N. Talwar did not own the allotted plot of land in question during his lifetime. This land had been allotted to defendant No.5 as a member of the society. She alone thus is the owner or lessee thereof, as the case may be. This issue is decided accordingly.
Issue No. 4:
49. In view of my findings on Issue Nos. 1, 2 and 3 the distributable assets of the deceased are Rs. 2,500/- as value of the household goods and Rs. 10,936.67 being the cash in hand and in the three Bank accounts. Thus the total value is Rs. 13,436.67.
Issue No.4 is decided accordingly.
Issue No. 5:
50. This issue was not pressed on behalf of defendants No. 1 and 5 and is, accordingly, decided against them.
Issue No. 6:
51. This issue was also not pressed on behalf of the defendants No. 1and 5 and is, accordingly, decided against them.
Issue No. 7:
52. This issue was also not pressed on behalf of the defendants No. 1 and 5 and is, accordingly, decided against them.
Issue No. 8:
The assets of the deceased to be distributed have been identified and their value determined. There are seven heirs of the deceased who are entitled to share in these assets. The three plaintiffs would get 1/7th share each i.e. Rs. 1,919.50 each. I accordingly pass a decree for recovery of Rs. 1,919.50 each in favour of each of the plaintiffs and against defendant No.1. The plaintiffs Will also get pendente lite and future interest @ 6% per annum thereon. Plaintiffs shall pay deficient Court fee within two weeks. In the circumstances the parties are left to bear their own costs.