Case: Indranarayan Vs. Roop Narayan &amp; Anr

1. These appeals arise from a partition suit between two brothers. The plaintiff is the elder brother and the 1st defendant is his younger brother. The second defendant is the wife of the 1st defendant. The plaintiff and the 1st defendant are the sons of Dr. Sudarshan Pandit, a medical practitioner who practised at Indore. Dr. Pandit had extensive practice. He died on April 6, 1949 leaving behind him extensive properties. His wife had died in 1918. Dr. Pandit had three daughters. We are not concerned with them in this case. The contest is mainly between the plaintiff and the 1 st defendant. There is also a dispute as regards the ownership of a deposit of Rs. 50,000/made by Dr. Pandit in the name of the second defendant.2. The contention of the 1st defendant was that the plaintiff had separated himself from the rest of the family as far back as 1936 and therefore he is not entitled to any share in the suit properties. Further he took the plea that deposits of Rs. 41,000/in the Bank of Indore and Rs. 50,000/in Binod Mills which stood in the name of Dr. Pandit till about the third week of March, 1949 had been gifted to him. According to him Dr. Pandit gifted the four deposits totalling Rs. 41,000/in the Bank of Indore on March 25,1949 and the deposit of Rs. 50,000/in the Binod Mills on March 30, 1949. The deposit of Rs. 50,000/The properties with which we are concerned in this suit have been held to be theproperties of Dr. Pandit. That finding was not questioned before us.4. The trial court dismissed the plaintiffs suit on the sole ground that he had separated himself from his father as far back as 1936 whereas the 1st defendant continued to be joint with his father. It held that as he was separate from his father the plaintiff had no right in the properties left behind by Dr. Pandit. In appeal the High Court substantially reversed the decree of the trial court. The High Court came to the conclusion that there was no evidence to show that the plaintiff had separated himself from the family. It also came to the conclusion that the deposits of Rs. 91,000/referred to earlier are the properties of the joint family and hence divisible. But it upheld the claim of the 1st defendant in respect of a sum of Rs. 25,000/which had been made over to him by his father on March 21, 1949. In repect of the deposit of Rs. 50,000/in the name of the second defendant, the High Court came to the conclusion that it was her exclusive1st defendant has appealed against the High Courts decree to the extent it went against him and the plaintiff has appealed against the finding of the High Court that the sum of Rs. 25,000/given to the lst defendant on March 21, 1949 is his exclusive property. He also challenged the finding of the High Court that the deposit of Rupees 50,000/in the name of the second defendant is her exclusive property. Both the appeals were brought on the strength of the certificates issued by the High Court.

Reasoning:
It is clear from his letters that Dr. Pandit was under the impression that the plaintiff was lacking in efforts and he could make him to put in his best by an extra doze of rudeness. Plaintiffs reactions to his fathers biting letters was one of bitterness and hostility. He wrote to his father that he was a tyrant and that he was lacking in affection. He called him a worshipper of Memmon. He attributed his failures to his fathers unkindness. The correspondence that passed between Dr. Pandit and the plaintiff from 1936 to 1940 make a very sad reading. There is no doubt that Dr. Pandit was an affectionate father. His one all absorbing ambition was that his son should excel him. Things did not work out in the way he wanted. But he was not the person to reconcile him to the inevitable and chalk out a new path for his son. His obsession of making his son a good medical practitioner was such that he just ignored the realities and went on driving the plaintiff to desperation. The plaintiff was an obstinate type. He was blind to his fathers affection. He appears to have been unduly touched by his fathers harsh words. Possibly because of want of parental affection in the formative period of life he was insolent, resentful and insulting to his father. He repeatedly wrote to his father that his life was blasted by him. There is no doubt that the plaintiff was a highly sensitive type. He was no less rude than his father.6. It is unnecessary to refer in detail to the various letters that passed between the father and the son which have been produced into court. In the initial stages. Dr. Pandit was sending to his son about lb. 300 a year. Later on he cut it down to lb. 200 a year. Evidently Dr. Pandit thought that if the allowance of his son is cut down, he would give more attention to his studies. But that circumstance again appears to have had an adverse effect. The plaintiff was evidently unable to make two ends meet with the allowance that he was getting. From his letters it is clear that thereafter he was more worried about his dayliving than his studies. He began to send cables after cables to his father asking for more remitances but the father continued to be strict. Obviously Dr. Pandit was a very strong willed man.It is seen from that letter that the plaintiff had asked his father to give him at least an allowance of lb. 4/6 S a week. In 1936 Dr. Pandit made it clear to the plaintiff that he would provide him with funds only for three more years to complete his studies and thereafter all remittances would be stopped. The correspondence between Dr. Pandit and the plaintiff between 1936 to 1940 show that the war of words between the father and the son continued. Even after 1936 the plaintiff made little progress in his studies. In 1940 Dr. Pandit wanted the plaintiff to come back from England and for that purpose he deposited with Thomas Cooke and Co., sufficient amount for his passage home with instructions to them not to pay that amount to the plaintiff but only to provide him with the passage. The plaintiff refused to return to India. Thereafter Dr. Pandit is said to have stopped remittances to the plaintiff. But remittances to the plaintiff were made by the 1st defendant as well as by his sister Dr. Shanti Kamath. There is reason to believe that those remittances were made in the names of the 1st defendant and Dr. Shanti Kamath by Dr. Pandit himself. Ultimately the plaintiff came back to India in 1948. At that time the 1st defendant was working at Kolhapur. The plaintiff did not go to Indore where his father was living but he went to Kolhapur where his brother was stationed. Thereafter he got a job in Calcutta and he went to Calcutta. The plaintiffs relationship with the 1st defendant and his sisters were extremely cordial as disclosed by the letters that passed between the plaintiff and the 1st defendant and his sisters. When the plaintiff returned to India evidently Dr. Pandit was very anxious to meet him but he was unwilling to show to his son that he was the first to yield. He wanted that the plaintiff should repent and make amends. The plaintiff was too arrogant a person to submit to his father. The first defendant, evidently at the instance of his father tried to induce the plaintiff to meet his father. He wrote to him to say that mistakes had been made by both sides and the time has come for both of them to forget the past. But the plaintiff was not sure that his father had softened. He wanted to be satisfied that his father had in fact repented for his folly. When things stood thus Dr. Pandit fell ill with an attack of cancer of the lungs. He was shifted to Bombay for treatment in February 1949. The 1st defendant informed this fact to the plaintiff. The plaintiff took leave and went to Bombay and was by the side of his father till his father was in Bombay. In the middle of March 1949, the Doctors at Bombay advised the relations of Dr. Pandit that his end was near and it was best that they shifted him to Indore. Dr. Pandit was removed to Indore on March 14, 1949. The plaintiff, the 1st defendant and the other relations of Dr. Pandit went along with him. The plaintiff remained in Indore till about the last week of March and then returned to Calcutta. The condition of Dr. Pandit deteriorated day by day and he passed away on the early morning of April 6, 1949. The High Court was of the opinion that when the plaintiff was at Indore during the illness of his father he was treated as the paraiah of the family and it was because of that reason he did not come back to Indore after the death of his father.After the death of Dr. Pandit, 1st defendant wrote several letters to the plaintiff informing him about the state of affairs at Indore. He wrote to him about the various details connected with the affairs of the household but he did not inform him about the transfer of the deposits mentioned earlier. From those letters it is clear that the 1st defendant was keeping his brother informed about the family affairs. It appears that sometime after the death of his father, the plaintiff came to know that the 1st defendant was claiming that his father had left a Will bequeathing all his properties to him. It is likely that this information was given to him by hisKamath who was also stationed at Calcutta. The plaintiff was quite indifferent about the matter. At that stage his mood was such that he did not care to have even afrom his fathers estate. But yet he was curious to know whether in fact his father had left a Will. In about the end of May 1949, the 1st defendant sent a copy of the alleged Will to the plaintiff but the plaintiff was anxious to see the original Will. Evidently with the lapse of time, the plaintiff began to take more interest in his fathers estate. In June 1949, the 1st defendant and the second defendant went to Culcutta and showed to the plaintiff the Will alleged to have been executed by Dr. Pandit. The 1st defendant was insistent that the plaintiff should execute a deed of relinquishment but the plaintiff refused to walk into the trap. On April 4, 1950, the plaintiff caused a lawyers notice to be issued to the 1st defendant requiring him either to get the alleged Will of his father probated or refer the matter to the arbitration of some disinterested person. To this notice the 1 st defendant caused a reply to be sent on May 10, 1950.It is necessary to notice that in May 1950 i. e. about a year after the death of Dr. Pandit, the stand taken by the 1st defendant was that he was entitled to the entire estate left by Dr. Pandit because of the Will left by Dr. Pandit. In the registered reply notice, there is no reference to the separation of the plaintiff from the family; nor is there any reference to the gifts later on put forward by the 1st defendant.14. The plaintiff filed the suit from which these appeals arise on April 12, 1951. The 1st defendant filed his written statement on September 16, 1951. In this written statement, there is no reference to the Will left by Dr. Pandit. The alleged will completely disappeared from the scene. On the other hand the 1st defendant took the plea that the plaintiff is not entitled to any share in the properties left by Dr. Pandit as he had separated himself from Dr. Pandit as far back as 1936. The other plea taken up by him was that by transferring the fixed deposits that were standing in Dr. Pandits name to the joint names of Dr. Pandit and himself Dr. Pandit made a gift of the amounts covered by those deposits to him and therefore he is exclusively entitled to those amounts. The second defendant claimed that the deposit made by herin her name was a gift to her. At this stage we may mention that the alleged Will of Dr. Pandit was not produced into Court. As seen earlier in his reply to the registered notice the 1st defendant had asserted that the Will had been signed by Dr. Pandit and attested by respectable witnesses. But whenabout that Will the 1st defendant first stated that it was only a draft. When pressed further he stated that it was pencil draft with numerous erasions but all the same signed by Dr. Pandit and attested by respectable witnesses. There is hardly any doubt that the story of the Will is a faked one. It was evidently a ruse to get a relinquishment deed from the plaintiff who was at one time indifferent about his share in his fathers estate. But the story of the said Will has great significance when we come to examine the defence put up the 1stplea taken in the written statement is a somewhat curious one. There is no allegation that the plaintiff had separated from his family. On the other hand what was pleaded is that the plaintiff had separated from his father. No members of a Hindu family can separate himself from one member of the family and remain joint with others. He is either a member of the joint family or he is not. He cannot be joint with some and separate from others. It is true that for the existence of a joint family, the family need possess no property. The chord that knits the members of the family together is not property but the relationship. There is no gainsaying the fact that Dr. Pandit and his sons were members of a joint family though that family as such possessed no property. All properties possessed by Dr. Pandit were hisproperties. We agree with the finding of the High Court that there was no separation between the plaintiff and his family. The law presumes that the members of a Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily. There is not an iota of evidence in this case to show that the plaintiff had at any time made any unequivocal declaration that he had separated himself from his family much less there is any evidence that he communicated his intention to separate himself from the family either to the karta or to any of the members of the family. There is no doubt that there was great deal of disagreement between Dr. Pandit and the plaintiff. It is also true that as far back as 1936 Dr. Pandit had threatened tothe plaintiff but these facts by themselves do not prove the factum of separation. The fact that the plaintiff was now and then expressing that he was not interested in his fathers estate do not amount to a declaration of his intention to separate from the family. The High Court rightly considered these statements as emotional outbursts. We have earlier seen that in the reply notice sent on behalf of the 1st defendant there is not even a whisper of the plaintiffs separation from the family. Therefore the plea of the 1st defendant that the plaintiff had separated from the family is clearly an afterthought. It is based on no evidence. To prove that the plaintiff had separated himself from the family, reliance was placed on the testimony of Col. Madhav. His evidence is too vague and too slender to found a case of separation.Even if we accept the evidence of this witness as reliable, it is much too vague and inconclusive. Further it does not bear on the question of separation.Pandit was a highly educated man. He had the assistance of influential friends. He had even the assistance of a solicitor at Bombay. He knew that his end was near but yet he did not choose to make a Will. These circumstances generally speaking militate against the plea of gifts put forward by the 1st defendant. Further as seen earlier in the registered reply notice sent on behalf of the 1st defendant, there is no reference to these gifts. Therefore the evidence relating to those gifts will have to be examined very closely.18. Let us first take up the alleged gift of Rs.We have earlier seen that Dr. Pandit had four fixed deposits in the Bank of Indore. The first defendants case is that on March 25, 1949, with the intention of gifting the amounts covered by those deposits, Dr. Pandit instructed the bank to transfer the deposits to their joint names thereby making it possible to realise the amounts when they become due by either of them or by the survivor. The evidence relating to the letter said to have been sent by Dr. Pandit to the bank is somewhat suspicious. Medical evidence shows that Dr. Pandit was mostly unconscious during the last days of his life. It appears that the secondaries had affected his brain. Dr. Akbarali deposed that some days after his return from Bombay Dr. Pandit was found eatingin the bathroom. It may be as elicited from Dr. Akbarali that on some day he might have been conscious. Under these circumstances, we have to examine the evidence relating to transfer of deposits with great deal of caution. The evidence relating to transfer of deposits had not been examined by the trial Court. The trial Court dismissed the plaintiffs suit solely on the ground that he had separated himself from the family. After carefully examining the evidence bearing on the point, the High Court has not found it possible to accept the 1st defendants case as regards the gift of Rs.The request by Dr. Pandit to transfer the deposits in the Bank of Indore was said to have been made on March 25, 1949. The main witness examined to prove the letter said to have been sent by Dr. Pandit is R. D. Joshi (D. W. 8). According to him he wrote the letter in question. His version is that he had been to the Nursing Home in which Dr. Pandit was on March 21, 1949 in connection with the payment of the amount due from him to Dr. Pandit and it was on that occasion he under instructions from Dr. Pandit wrote out that letter and after getting it signed by him it was delivered at the bank. According to him that letter was sent on March 21, 1949. He goes further and says that after the 21st of March, he did not go to the Nursing Home nor did he see Dr. Pandit. The original letter that was alleged to have been sent to the bank of Indore is not forthcoming. Its genuineness is sought to be proved by the testimony of R. D. Joshi, the Accountant of the bank and its General Manager. The version given by the General Manager of the bank is that after receiving summons from Court, he picked out the letter and kept it in safe custody but he says that from safe custody the letter has disappeared. This is somewhat surprising. R. D. Joshis evidence throws a great deal of doubt on the genuineness of the letter. The letter referred to by R. D. Joshi is purported to have been sent to the bank on the 21st March But the copy of the letter that was produced before the Court bears the date 25th March. There is no explanation for this discrepancy.19. In view of the evidence of the bank officials, the High Court accepted the 1st defendants version that Dr. Pandit did send a letter to the bank on March 25, 1949 asking the bank to transfer the deposits to the joint names of himself and the 1st defendant but all the same it came to the conclusion that the evidence on record is not sufficient to show that Dr. Pandit wanted to make a gift of the amount covered by those deposits to the 1st defendant. We are unable to agree with the High Court that the evidence adduced in this case is satisfactory enough to prove that Dr. Pandit had sent any letter to the bank on March 25, as alleged by the 1st defendant.20. Assuming that Dr. Pandit had sent the letter in question yet from the evidence on record, we are unable to come to the conclusion that by doing so Dr. Pandit intended to make a gift of the amounts in question to the 1st defendant.The 1st defendant hasnot taken a consistent stand as regards the alleged gifts. In the registered reply sent, as seen earlier, there was no reference to these gifts. In the written statement the case taken is one of gifts but the care pleaded in Court is one of advancement. The distinction between gift, benami and advancement has not been clearly borne in mind by the High Court.21. The transfer with which we are concerned in this case cannot be gift because Dr. Pandit continued to be the owner of the amounts in question till his death.There is no presumption of advancement in this country but yet if there had been satisfactory evidence to show that the transfers in question are genuine and further that Dr. Pandit intended that the amounts it question should go to the 1st defendant exclusively after his death, we would have held that the advancement put forward had been satisfactorily proved and the presumption rebutted.22. It was for the 1st defendant to establish that there was a general intention on the part of Dr. Pandit to benefit him and in pursuance of that intention he transferred the deposits to the joint names of himself and the 1st defendant. If he had proved those facts, he would have made good his pleasee Young v. Sealey, (1949) 1 All ER 92; Mrs. Avis Fitzalan Cowdrey v. Imperial Bank of India, AIR 1956 Mad 56; D. Nagarajamma v. State Bank of India, Cuttapah, AIR 1962. But the difficulty in this case is firstly that there is no satisfactory proof of the alleged letter by Dr. Pandit to the Bank of Indore. Secondly there is no evidence of the general intention on the part of Dr. Pandit to give those amount exclusively to the 1st defendant. In the letter said to have been sent by Dr. Pandit to the bank all that is said is that he wanted to put the amount in the joint names of himself and the 1st defendant as he was seriously ill. There is nothing in that letter to show that he intended to make over that amount to the lst defendant. As noticed earlier Dr. Pandit was in his death bed. Therefore he might have thought it prudent to transfer the deposits to the joint names of himself and the 1st defendant to facilitate collection. That being so we are unable to uphold the plea of the 1st defendant regarding those deposits.25. Now coming to the deposit in the Binod Mills Ltd., the letter said to have been sent by Dr. Pandit has been produced in this case but the contention of the plaintiff is that the letter in question must have been typed on a blankof Dr. Pandit bearing his signature. There is some basis for this contention. The plaintiff has been able to produce two blankof Dr. Pandit bearing his signatures. There is reason to think that Dr. Pandit was signing on blankfor one reason or the other. The signature that is found on the letter sent to Binod Mills Ltd. shows trial the signatorys band was first and not shaky. This letter is said to have been sent on 30th March 1949, hardly six days before Dr. Pandits death. The medical evidence shows that at about that time Dr. Pandit was passing through critical days. At this juncture it is necessary to recall the fact that when Dr. Pandit sent the cheque given to him by R. D. Joshi on March 21, 1949, after endorsing the same to the bank along with his cheque to defendant No. 1, the Manager not being sure of the genuineness of those signatures as they appeared to have been made by a shaky hand sent his assistant to the Nursing Home to find out from Dr. Pandit as to whether those signatures were his.. Dr. Pandits hands could not have become mare firm nine days after the 21st of March. We have seen the signature on the letter said to have been sent by Dr. Pandit to the Binod Mills on the 30th of March. It appears to have been made by a perfectly firm hand. Further as seen from the medical evidence Dr. Pandits mental condition was likely to have been far from satisfactory on 30th March. Dr. Akbarali deposed that he would be surprised that if someone told him that Dr. Pandit signed any paper during the week before he died. Hence we are unable to pronounce in favour of the genuineness of that letter. Even if we had come to the conclusion that the letter the fact that Dr. Pandit wanted to make over the deposit to the 1st defendant. The letter says that the transfor to joint names is desired because of Dr. Pandits illness. Hence the case as regards the armed transfer of the deposit in question does not stand on a better footing than that relating to the transfer of the deposits in the bank ofis no doubt as regards the genuineness of that cheque. There is reliable evidence to show that on that day Dr. Pandit was quite conscious. The circumstances under which the transfer was made clearly indicate that Dr. Pandit wanted to give that amount to the 1st defendant. The High Court has come to the conclusion that it was a gift by Dr. Pandit to his son. The surrounding circumstances of the case to which reference has been made earlier support that conclusion. There is nothing surprising if Dr. Pandit wanted to give a sum of Rs. 25,000/to his son who has been very helpful to him.27. So far as the deposit in the name of the second defendant is concerned, the High Courts finding in our opinion is unassailable. It is clear from the evidence that Dr. Pandit was very fond of hisThe evidence of the second defendant has been believed by the High Court. Out of the amount received from the Nawab of Jaora, Dr. Pandit deposited Rs. 50,000/in his own name and Rs. 50,000/s name. Thereafter he wrote to her that he has made the deposit in question. Subsequently he handed over the deposit receipt to hisAll these circumstances show that Dr. Pandit wanted to give that money to hisfor whom he had great affection. The evidence of the second defendant that herhad made a present of Rs. 50,000/to her is clearly acceptable.28. There was some controversy in the High Court as regards the jewels but all that the plaintiffs Counsel wanted us was to correct an erroneous statement of fact in the judgment of the High Court to the effect that the second defendant had filed a list of jewels that were given to her. Beyond that no other change in the judgment of the High Court was sought. It is admitted that the second defendant had not filed any list of the jewels given to her. Subject to this correction, the High Courts decision on this point is affirmed.29. It was urged on behalf of the plaintiff that he had been kept out of the estate of his father for over 22 years and therefore we may direct the 1st defendant who is now in possession of the properties as Court receiver to pay to him at least half the cash amount that was there at the time of Dr. Pandits death. This request appears to us to be a reasonable one. It is not necessary to determine at this stage the exact cash amount that was there at the time of the death of Dr. Pandit.