Paragraph numbers below are the court’s original numbering, recovered from the source text.
18. It is submitted on behalf of the contesting respondent that since the family members of Hari Ram were residing in the mortgaged house, by way of abundant precaution they may have been made to sign the mortgage deed. In our view, that may not be true because the mortgage deed clearly reflects that all the family members including the minors were shown to be owners of the properties by mortgaging the same. Therefore, this property which was mortgaged in the year 1944 and then re-mortgaged in 1946 would prima facie appear to be joint property though at this stage we are not deciding whether the property is a joint property or the property of HUF.
19. An 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 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. vs.B. Shama Rao and Ors.8 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 8 (1956) 1 SCR 451 BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM [DEEPAK GUPTA, J.] 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.”9 It would be pertinent to mention that in Himani Alloys Ltd. vs. Tata Steel Ltd.,10 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.
22. 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 9 This view has been consistently followed by this Court in a large number of cases including Bharat Singh and Anr. vs. Bhagirathi 1966 SCR (1) 606; Uttam Singh Dugal and Co. vs. Union of India and Ors. (2000) 7 SCC 120; Himani Alloys Ltd. vs. Tata Steel Ltd. (2011) 15 SCC 273. 10 (2011) 15 SCC 273 business. 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. vs. Diamond and Gem Development Corporation Ltd. and Anr11, 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 11 AIR 2013 SC 1241 BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM [DEEPAK GUPTA, J.] 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. vs. Lal Chand Public Charitable Trust and Ors.12. 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.
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.
27. 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 12 (2010) 4 SCC 753 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.
29. 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. Divya Pandey Appeals dismissed. BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM [DEEPAK GUPTA, J.]