Kewal Krishan Mayor vs Kailash Chand Mayor and Others

S.S. Chadha, J.

(1) This is a suit for partition of properties and has arisen in the following circumstances. The plaintiff, Dr. Kewal Krishan Mayor, and defendant No. 1,Shri Kailash Chand Mayor, are the sons of late L. Bal Mukand who was the son of Shri Dina Nath. The said L. Bal Mukand, besides the plaintiff and defendant No. 1, had one son named Shri Brahm Dutt who died during the life time of L. Bal Mukand. L. Bal Mukand had two daughters, defendant No. 2 Smt. Brahm Wad Sood and defendant No. 3 Smt. Raj Kumari Dhanda. Shri Brahm Dutt who died during the life time of L. Bal Mukand, left behind his son Shri Anil Mayor, defendant No. 4, and a daughter Smt. Neelam Sood, defendant No. 5and a widow Smt. Parkash Mayor, defendant No. 6. Smt. Lal Devi was the wife of L. Bal Mukand and the mother of the plaintiff and defendant No. 1 Smt. Lal Devi died on 9th of November, 1965.L. Bal Mukand died at Delhi on 27th of June, 1973.

(2) The case set up by the plaintiff in the plaint of the suit is that L. Bal Mukand constituted a joint Hindu family with the plaintiff and defendant No. 1, that L. Bal Mukand in his life time attested an affidavit dated 4th of March, 1963 and on that date threw the property known as 8/lO and 8/11, W.E.A., Karol Bagh, New Delhi into the common hotch potch of his Hindu undivided family constituted by him and his two sons Dr. Kewal Krishan, plaintiff and Kailash Chand, defendant No. 1, that on the death of L. Bal Mukand on 27th of June, 1973 on notional partition of the above-mentioned joint Hindu family property, l/3rd undivided share in the said property was owned by the plaintiff and the remaining l/3rd undivided share was owned by defendant No. 1, that besides the said joint Hindu family properties L. Bal Mukand had immovable property on the plot 11-A, Factory Area at Faridabad, one thousand shares in M/s. Laldee (P) Ltd and tenancy rights in two premises, that the parties to the suit are joint owners and also in joint possession of the entire property in suit, that the shares of the parties in the property in suit are as specified in para 13 of the plaint, and that the defendants were requested several times to partition the property in suit according to the shares held by the parties but the defendants have failed to do so, hence the suit for partition of the property in suit.

(3) The suit is being contested only by defendant No. 1- The relationship between the parties is admitted. It is, however, pleaded that the late L. Bal Mukand constituted a joint Hindu family with defendant No. 1 only, that the plaintiff had been separated from his father after the plaintiff passed his Medicine in 1945 and has always lived and messed separately and kept his income separate, that the plaintiff has nothing to do with the joint Hindu family consisting of late L. BalMukand and defendant No. 1, that defendant No. 1 was the only co-parcener in the joint: Hindu family, that the plaintiff misbehaved with his father and mother when they came to India as poor refugees and started from a scratch, that the declaration alleged to have been made on 4th of March, 1963 throwing the two properties into common hotch potch of Hindu undivided family is denied, that the plaintiff was not a member of the joint Hindu family of late L. Bal Mukand and defendant No. 1 and did not inherit anything nor did the other defendants inherit any share in the estate of the deceased, that in order to secure the entire estate to defendant No. 1 late L. BalMukand made a will on 5th of June, 1971 bequeathing all the properties to defendant No. 1 except house No. 8/10, W.E.A., Karol Bagh, New Delhi which was bequeathed in favor of Miss ShashiBala, daughter of defendant No.1 for life and on her death to the two sons of defendant No. 1 and that the plaintiff is not entitled to claim partition to any of the property in suit.

(4) In the replication, it is pleaded that it is wrong and denied that any Will was left behind by late L. Bal Mukand, that it is denied that the alleged Will bears the signature of L. Bal Mukand or was made by him while he was of sound disposing mind and that it is clear that the alleged Will has been fabricated by defendant No. 1''in order to meet the suit of the plaintiff. The plaintiff also denied that there was any partition at any time between the plaintiff and his father and defendant No. 1. The other plcas in the written statement were traversed and those of the plaint reaffirmed.

(5) On the pleadings of the parties, the following issues were framed:-

Whether L. Bal Mukand constituted a joint Hindu family with defendant No. 1 only ? O.P.D.

2.Whether the plaintiff separated from the joint Hindu family as alleged in the written statement ? O.P.D.

3.Was late L. Bal Mukand owner of one half share of the-joint Hindu family property ? Was defendant No. 1owner of the other half of the joint Hindu family property ? O.P.D.

4.What is the property available for partition as owned bythe joint Hindu family headed by L. Bal Mukand ? O.P.P.

5.To what shares are the parties entitled and in which properties ? O.P. Parties.

6.Has any Will been made by L. Bal Mukand as alleged ?If so, what is its effect ?

7.Relief.

(6) ISSUENO. 1.-Whether L. Bal Mukand constituted a joint Hindu family with defendant No. 1 only ? O.P.D.

ISSUENO. 2.-Whether the plaintiff separated from the joint Hindu family as alleged in the written statement ? O.P.D.

These two issues can conveniently be taken up together. The case set up by the plaintiff in the plaint is that L. Bal Mukand constituted a joint Hindu family with the plaintiff and defendant No. 1. The answer to this case by defendant No. 1 is that L. Bal Mukand constituted a joint Hindu family with defendant No. 1 only, that the plaintiff has been separate from his father after he passed his medicine in 1945 and has always lived and messed separately and kept his income separate and that the plaintiff has nothing to do with the joint Hindu family consisting of late L. Bal Mukand and defendant No. 1.

(7) In Hindus the general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved. The burden of providing partition lays heavily on defendant No. 1 who has set up a partial partition or separation of the plaintiff from the rest of the joint Hindu family. It is the admitted case of the parties that originally till 1945, L. Bal Mukand constituted a joint Hindu family with the plaintiff and defendant No. 1. P.W.2 Dr. Kewal Krishan stated on oath that there was never any partition between him and his father, that he never separated from his father and that the allegations of defendant No. 1 that the plaintiff misbehaved with his father are baseless. He further stated that they have been joint in Puja and filed copies of photographs taken on the occasion of Mundans etc. Shri Kailash Chand Mayor, defendant No. 1 appeared as D.W.6 and stated on oath that they were three brothers, the eldest was Shri Brahm Dutt, the second is Dr. Kewal Krishan and he is the youngest, that when they were being educated they were all joint with their father, that Shri Brahm Dutt separated from the family in the year 1937, that the plaintiff passed his M.B.B.S. Examination in the year 1945, that the plaintiff came back from his studies and his father gave money to start the practice, that the plaintiff started his practice and that after the money had been given by his father, the plaintiff separated from the family. This is the only evidence in the suit relating to the alleged partition or separation of the plaintiff from the family. D.W.6 admitted in cross-examination that he had never seen any partition deed executed between his father and the plaintiff, that no body ever told him that any partition deed was executed between his father and the plaintiff, and that no document was ever executed between his father and the plaintiff after the partition of the country evidencing any partition or settlement of family affairs between the plaintiff and the defendants. Thus there is no writing at all either executed in 1945 or thereafter evidencing the alleged partition. In such a case the question arises as to whether there was in fact a partition or not in 1945, and this can only be inferred from the acts of the parties after 1945.

(8) One member of a joint Hindu family can separate himself, whether there was severance in status as regards all members or it was only one member that got himself separated has to be established like any other fact. There is no presumption that when one member separates from the others that the latter remain united. In the case before me it is not pleaded that on the separation of the plaintiff L. Bal Mukand and defendant No.1 reunited and constituted the joint Hindu family. Such is not the case set up in the defense. In Bhagwan Dayal Vs. Mst. Reoti Devi, , it was held :-

"THE general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course'' of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remain united; whether the latter remain united or not must be decided on the facts of each case."

An agreement amongst remaining members of a joint family to remain united or reunite must be proved like any other fact. Defendant No. 1 has admitted the existence of the joint Hindu family headed by L. Bal Mukand and now claims to be sole surviving co-parcener. If no agreement to reunite in 1945 between L. Bal Mukand and defendant No. 1 is pleaded, a reasonable inference that can be drawn that there was no partial partition.

(9) The two grounds given by defendant No. 1 in the written statement to show that the plaintiff had been separate from his father after 1945 are: (1) has always lived and messed separately and(2) kept his income separate. Cesser of commensality is not a conclusive proof of partition. It is admitted by defendant No. 1 that the plaintiff was residing at Lyallpur in the same building in which L. Bal Mukand and defendant No. 1 and other members of the family resided but was having a separate mess. After the partition of the country in the year 1947, all member of this family, including L. Bal Mukand, plaintiff and defendant No. 1 migrated together to Delhi and started living at Jaina Building, Roshan Ara Road, Delhi. It is in evidence that L. Bal Mukand had acquired tenancy premises at Tola Ram Building, that the accommodation in Jaina Building was only of two rooms and not sufficient accommodation and a number of members of the family were living there, that the plaintiff was having his clinic in Sadar Bazar near Tola Ram Building and that the plaintiff requested his father to allow the plaintiff to use the first floor of the Tola Ram Building and it is thereafter that the plaintiff shifted to that place. The reason given by the plaintiff in his statement for shifting is that the clinic was nearby and. Therefore, he shifted the residence to Tola Ram Building. It is thus reasonable to hold that the plaintiff may have become separate in food and residence merely for his convenience. Separate residence of the members of joint family do not show separation or partition. Cesser of commensality is thus not due to the alleged partition of 1945.

(10) Keeping of income separate by the plaintiff is also not indicative of the alleged partition of 1945. By the Hindu Gains of Learning Act it is provided that notwithstanding any custom, rule or interpretation of the Hindu Law, no gains of learning shall be held not to be the exclusive and separate property of the member of the joint family who acquires them merely by reason of his learning. Learning is defined in the Act as meaning education, including scientific which is usually intended to enable a person to pursue any profession revocation in life. The income of the plaintiff from his profession thus constituted the self-acquired property and could validly be kept by the plaintiff.

(11) The only document signed by L. Bal Mukand is the declaration dated 4/03/1963, Ext.PW-3/1, containing an admission thathe constituted a Hindu undivided family with his wife, Smt. Lal Devi and two sons Mr. Kailash Chand and Dr. Kewal Krishan. This declaration was made by L. Bal Mukand when he threw the property known as 8/10 and 8/11, W.E.A., Karol Bagh, New Delhi into the common hotch potch of his Hindu undivided family, the constituents whereof stood embodied in paragraph 2 of Ext.PW-3/1. An assessment order was made by the Income Tax Officer for the assessment year 1963-64, for the assessment of L. Bal Mukand under the Gift Tax Act, but the date of the assessment order is not given. The assessment order, Ext. PW-1/2, states that Shri R. C. Sood has attended on behalf of the assessed and it is learnt that in the previous year the assessed has transferred the immovable property belonging to him to a Hindu Undivided Family consisting of himself, his wife and two sons. It was contended by Mr. Sood there that the impressing of the property with the character of H.U.F. does not amount to a transfer. The property transferred to H.U.F. was, however, subjected to Gift Tax, An appeal was preferred against the said assessment order. The grounds of Appeal are marked for identification purposes as ''Y''. The Grounds of Appeal have not been proved in accordance with law as the original was not produced in the Court. It is contended that the grounds of appeal are quasi-judicial records and the mere tendering of the certified copy is sufficient. The consensus of the judicial opinion, however, is that the pleadings and grounds of appeal are not public documents and have to be proved by summoning the original and by proof of the signatures on the original. Document marked ''Y'' is thus not proved. The certified copy of the order of the income tax Appellate Tribunal passed on 11th of June, 1970 is Ext.PW-1/1. It is stated therein" that L. Bal Mukand is an individual who is also a member of Hindu undivided family consisting of himself, his wife and two sons. The position that the Hindu undivided family comprised of the plaintiff, defendant No. 1 and the deceased was accepted by L. Bal Mukand on 11th of June, 1970, when the order Ext. PW-I/I was passed.

(12) Mr. T. N. Sethi, the learned counsel for defendant No. 1 relied on the admission of the plaintiff that the house, namely, K-106,Haus Khas and half of the bungalow at Bungalow Road, JawaharNagar, Delhi belongs to the Hindu undivided family created by the plaintiff .An argument is built on this admission that if the plaintiff had a separate Hindu undivided family owning separate immovable property, then he separated in the year 1945 and an inference should be drawn to that effect. This argument proceeds on the ignorance of a well recognised principle in Hindu Law. The plaintiff along with his sons could in law form a self-sufficient and corporate entity within their family. In Bhagwan Dayal Vs. Mst. Reoti Devi, , it was pointed out by their Lordships of the Supreme Court that Coparcenary is a creature of Hindu Lawand cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Their Lordships quoted with approval from Mayne''s Hindu Law, 11th edn., the legal position as follows :

"SO long as a family remains an undivided family, two or more members of it, whether they be members of different branches or of one and the same branch of the family, can have no legal existence as separate independent unit; but all the members of a branch, or of a sub-branch, can form a distinct and separate corporate unit within the larger corporate family and hold property as such. Such property will be joint family property of the members of the branch inter se, but will be separate property of that branch in relation to the larger family."

(13) In view of the document, Ext. PW-3/1 and the assessment orders, Exts. PW-1/2 and PW-1/1 dated 11th of June, 1970, I am not persuaded to place any reliance on the solitary oral statement of defendant No. 1 that there was a separation of the plaintiff from the family in the year 1945. The Joint Hindu Family headed by L. BalMukand thus constituted of the plaintiff and defendant No. 1 both and not defendant No. 1 alone. I, Therefore, hold issues Nos. 1 and 2against defendant No. 1.

(14) Issue NO. 3.-Was late L. Bal Mukand owner of one half share of the joint Hindu family property? Was defendant No. 1 owner of the other half of the joint Hindu family property ? O.P.D. By sale deed dated 2nd of December, 1947, copy Ext. D-8, L. BalMukand acquired 8/11, W.E.A., Karol Bagh, New Delhi. By sale-deed dated 2nd of December, 1947, copy Ext. D-9, L, Bal Mukand acquired8/10, W.E.A., Karol Bagh, New Delhi. The sale-deeds are in favor of L. Bal Mukand in his individual and separate name. This property is not acquired by L. Bal Mukand as Karta of Joint Hindu family or on behalf of the joint Hindu family. It is nobody''s case that these properties were acquired with any assets of the joint Hindu family. The aforesaid properties were, however, being enjoyed by defendant No. 1 Along with L. Bal Mukand. A member of the joint Hindu family who acquires immovable properties in his own name may allow the other members of that family to enjoy the property or income arising out of it. There is nothing unusual in a joint Hindu family for its members to utilise the entire income from individual properties so long as they are joint. Even in that event those properties will still constitute self-acquired property of a co-parcener. The only question for consideration is whether property No. 8/10, W.E.A., Karol Bagh, New Delhi and property No. 8/11, W.E.A., Karol Bagh, New Delhi, which were separate and exclusive properties of L. BalMukand, were thrown into common stock and formed a part of the joint Hindu family property, and if so what were the shares at the notional partition.

(15) Fortunately, in this case, there is a declaration made by L. Bal Mukand throwing the said two properties into the common hotch potch. Doctrine of blending consists in throwing into the common hotch potch by a positive act or conduct on the part of the owner which act or conduct would operate to deprive him of his separate rights and constitute self-acquired property as the family property. The legal concept of blending is embodied in the idea that there should be a conscious act of throwing the property into the joint stock. The question is whether Ext. PW-3/1 indicates that L. Bal Mukand intended to throw the said two properties in the common stock and not to claim at any stage separate title thereof. The real intention behind the act of executing Ext. PW-3/1 has to be gathered. In my opinion, a clear intention of L. Bal Mukand to waive the separate and exclusive right has been brought out in the declaration. The declaration of the intention of L. Bal Mukand is in clear and unequivocal terms when he states that he has wholly voluntarily and of his own free will shifted his all separate rights in the aforesaid immovable property which shall hence-forth be the property of his Hindu Undivided Family constituted of himself, his wife Smt. Lal Devi and his two sons Shri Kailash Chand and Dr. Kewal Krishan. The property has been thrown in the common hotch potch of Hindu undivided family with the intention of abandoning and relinquishing all separate claims therein as is categorically stated in the declaration Ext. PW-3/1. The conduct thereafter is consistent with it, as the income from the property is not shown as the individual income of L. Bal Mukand. As it was below the taxable limit no Income Tax was paid on the income with joint Hindu family on the two said properties. Mr. Sethi contends that it some times happens that persons make statements which serve their purpose, and in this case. L. Bal Mukand made the declaration with the sole purpose of avoiding the tax liabilities as is evidenced by the statement of P.W.1.The declaration made by L. Bal Mukand was accepted by the Income Tax authorities and in fact Gift Tax was wrongly levied treating it as a gift to H.U.F. L. Bal Mukand pursued the case up to Appellate Tribunal where it was held as not subject to Gift Tax. L. BalMukand, Therefore, did not express his intention by a solitary act of declaration but in series of proceedings that the two properties were thrown into the common stock. From the year 1963 to 1973, the income was not included in the personal income of L. Bal Mukand. The expression of the intention to treat his said properties as joint family property is not negatived merely by treating the said properties as his separate properties'' in the Will dated 4th of May, 1963, Ext.D-3 and in the impugned Will. Once having expressed a desire to treat the said properties as the property of the joint Hindu family and in fact having impressed the said properties with the character of joint family property by making a clear and unequivocal declaration, it could not be divested of that character by L. Bal Mukand whether expressly or impliedly. The fact that the said two properties were thrown into the common stock and were being treated as coparcenery properties is writ-large in the written statement of defendant No. 1. In para 9 of the plaint the plaintiff claimed that on the death of L. Bal Mukand on 27th of June, 1973, on notional partition of the said two joint Hindu family properties, l/3rd undivided share in the said two properties was owned by L. Bal Mukand and l/3rd undivided share was owned by the plaintiff and the remaining l/3rdundivided share was owned by defendant No. 1 Kailash Chand. In Para 9 of the written statement defendant No. 1 claims as the sole surviving co-parcener and states that late L. Bal Mukand was the owner of 1/2 share in the joint Hindu family and defendant No. 1 was owner of the other half. Again in para 12 of the written statement, defendant No. 1 states that he is alone in occupation of the said two properties which were rented out by him as a co-parcener with late L. Bal Mukand and tenants are in possession under him. Defendant No. 1 always treated the two properties as co-parcenery properties. These facts are, Therefore, sufficient to establish that there is an unequivocal declaration or the part of L. Bal Mukand giving up and abondoning his interest in the said two properties and throwing it in the common stock. The intention is clearly expressed to treat his separate property as the joint family property and thereafter disclaiming any separate interest in relation to the said two properties. Infact the present issue proceeds on the basis that the said two properties. are the joint Hindu family properties, but only the shares are disputed.

(16) Mr. T. N. Sethi submits that assuming that the declaration of the deceased of L. Bal Mukand amounts to abandoning his separate rights and investing the said two properties with the character of joint family property, even then in law there is no blending with the joint Hindu family properties. The argument is that the basis of the doctrine of blending is that there must be in existence the co-parcenary property as well as the separate property which is thrown into the ancestral stock. It is urged that in the absence of the existence of co-parcenary property, no individual or separate property of a coparcener could be impressed with the character of joint Hindu family property. Reliance is placed on Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, wherein it was held :

".. . .The rule of blending postulates that a coparcener whois interested in the coparcenary property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate; in other words, the separate property of a coparcener loses its separate character by reason of the owner''s conduct and get thrown into the common stock of which it becomes a part. This doctrine, Therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the co-parcenary property....."

(17) The argument of Shri R. M. Lal, the learned counsel for the plaintiff, on the other hand, is that under Hindu Law, there is no necessity for joint Hindu family property to exist in order that there may be a joint family. According to him, if the joint family consists of a father and two sons, there is nothing to prevent the father from impressing upon any self-acquired property belonging to him the character of joint Hindu family property. The counsel argues that L. Bal Mukand may have started with no ancestral nucleus or other joint family property but there is no impediment for L. Bal Mukand in characterising his self-acquired property as family property. Reliance is placed in a number of authorities of the Supreme Court.

(18) The counsel firstly relied on Commissioner of Income Tax, Gujarat Vs. Keshavlal Lallubhai Patel, . In that case the question referred to the High Court was whether on the facts and circumstances of the case the throwing into the hotch potch of the self-acquired property and the subsequent partition among the members of the Hindu undivided family is an indirect transfer of property so far as the wife and minor son are concerned within the meaning of Section 16(3)(a)(iii) and (iv) of the Income Tax Act. The High Court answered the question in favor of the assessed and the case came before the Supreme Court on a certificate u/s 66A(2) of the Income Tax Act, Thus the main question there was whether the partition of joint Hindu family property is a transfer. It was held that when the joint Hindu family property was partitioned, there was no transfer of assets within Section 16(3)(a)(iii) and (iv) to the wife or minor son. It was not a case where the absence of co-parcenary property was involved. Reliance is next placed on Commissioner of Income Tax, Madras Vs. M.K. Stremann, Madras, , wherein it was held :

"............WHEN instructions are given that the acquired property is to be treated as joint family property, in our opinion, at that moment the property assumes the character of joint family property. On execution, the deed becomes evidence of a pre-existing fact, i.e., of throwing the self-acquired property into the hotch-potch."

In that case, however; the argument proceeded on the basis that the self-acquired properties were made available for partition Along with the only item of joint family property. That itself constituted proof that antecedent to the partition, there was blending of the self-acquired properties of the assessed with his ancestral joint family property. Thus it was found that there was in existence ancestral joint family property. Reliance is next placed on Lakkireddi Chinna Venkata Reddi Vs. Lakkireddi Lakshmama, , wherein it was held :

"............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 bythe owner into 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.........."

This view of the law proceeded on the assumption that there was blending of separate property with joint family property. Reliance is next placed on G. Narayana Raju Vs. G. Chamaraju and Others, , wherein it was held:

"IT is a well established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the co-parcener into joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognised by the Judicial Committee......"

In that case the Supreme Court rejected the argument that the business of Ambika Stores became converted into joint family business at any subsequent stage by the conduct of M in throwing the business into the common stock or in blending the earnings of the business with the joint family income. The existence of the joint family property or ancestral property as a necessary ingredient for the blending was not directly involved or considered in any of these cases relied upon bythe counsel.

(19) Counsel for the parties have relied on Goli Eswariah Vs. Commissioner of Gift Tax, Andhra Pradesh, where the question arose "whether the declaration by which the assessed has impressed the character of joint Hindu family property on the self-acquired properties owned by him amounts to a ''transfer'' so as to attract the provisions of the Gift Tax Act". Before considering the question it was held:

"TO pronounce on the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the ''common stock'' or ''common hotch-potch''. It must be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self-acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property "and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the co-parcener throws his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer hedeciarcs his intention to treat his self-acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu Law."

(20) Mr. Sethi Submits that the law laid down by the Supreme Court is clear when it was laid down that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is the coparcener who has an interest in the co-parcenary properly and desires to blend his separate property with the coparcenary property. However, in none of the two cases the question was specifically raised whether the separate property could be impressed with the character of joint family property in the absence of an already existing joint family property or coparcenary property. It is, however, clearly laid down by the Supreme Court in Goli Eswariah''s case(Supra) that the separate property of a Hindu ceases to be a separate property and acquires the characteristics of joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as a separate property. As I understand the law laid down by the Supreme Court, it does not lay'' down that a separate property could not be impressed with the character of joint Hindu family property in the absence of the existence of a joint family or co-parcenary property. The existence of joint family property is not necessary before a member of the family throws himself-acquired property in the common stock. The existence of a joint estate is not an essential requisite to constitute a joint family and a family which does not own any property, movable or immovable, may ,nevertheless be joint. If the existence of the co-parcenary property is considered as a pre-requisite for throwing the property into the common hotch potch or common stock, then, only those joint families who are already possessed of ancestral property, can receive self-acquired properties of coparceners. If the argument is taken to its logical conclusion, it will lead to absurdities or a situation that no joint Hindu family which does not own any ancestral property, can ever acquire any property from any individual co-parcener who intends to impress the self-acquired property with the character of a joint family property. The term ''blending'' may suggest the existence of a nucleus but that does not mean that it is not possible to conceive of co-parceners impressing their self-acquired properties with the status of the joint family property unless it is shown that the joint Hindu family is already possessed of a nucleus or ancestral stock or ancestral property. There is no reason to limit the cases of blending to only those families owning co-parcenary property. Throwing the self-acquired property in the common stock or hotchpot is a well recognised incidence of the joint Hindu families. The joint Hindu family is also a creature of law and cannot be created by act of parties except in case of reunion by some co-parceners or to the extent to which a stranger may be adopted in the family. But the absence of an antecedent history of jointness between the father and his ancestors is no impediment in the father informing a joint Hindu family with his sons, wife or unmarried daughters. In such cases the father may throw his self-acquired properties into the family hotch-potch abandoning all separate claims to those properties. If the argument is accepted that the family hotchpot was empty and there was nothing with which the self-acquired property could be blended, then it will lead to an anomolous situation, that is the joint Hindu families for ever existing without family properties even through the co-parceners intend to impress self-acquired properties with the character of family property. So long as there is a co-parcenary or joint Hindu family and there is the self-acquired property of a co-parcener, then that co-parcener must be held to be able to throw his self-acquisitions into the joint family stock. All that is required to convert separate property of a co-parcener is the existence of a co-parcenary or joint family and an unequivocal declaration which would indicate the intention to treat the self-acquired property as that of a joint family. In the case before me there is a declaration of Lala Bal Mukand impressing upon the said properties belonging to him the character of joint family property. The intention of Lala Bal Mukand to abandon his separate rights and invest it with the character of the joint family property is clearly brought out from the document Ext. PW.1/3 coupled with the stand of defendant No. 1in treating the two properties as co-parcenary properties. Thus there is no warrant for the contention that in law Lala Bal Mukand has not impressed his said two properties with the character of joint family property by throwing it voluntarily and intentionally into the common stock of the family. It was open to Lala Bal Mukand to throw his self-acquired property in the family hotch potch even though there was no joint or ancestral property already existing. Thus Lala Bal Mukand was owner of 1 /3rd share of the said two joint family properties. plaintiff is the owner of 1/3rd and defendant No. 1 is the owner of1/3. I hold issue No. 3 accordingly.

(21) Issue NO. 4.-What is the property available for partition owned by the joint Hindu family headed by L. Bal Mukand ? O.P.P.I have already held under issue No. 3 that the property 8/10,W.E.A., Karol Bagh, New Delhi and 8/11, W.E.A., Karol Bagh, New Delhi which was separate and exclusive property of L. Bal Mukand, was thrown into common stock and formed a part of the joint Hindu family property. Once having expressed a desire to treat the said properties as the property of the joint Hindu family and in fact having impressed the said property with the character of joint Hindu family property by making a clear and unequivocal declaration, it could not be divested of that character by L. Bal Mukand whether expressly or impliedly .Thus these are the only two immovable properties available for partition as owned by the joint Hindu family headed by L. BalMukand. Issue No. 4 is held accordingly.

(22) Issue NO. 5.-To what shares are the parties entitled and in which properties ? O. P. Parties. action 6 of the Hindu Succession Act, 1956 recognises the principle of ordinary Hindu Law that in case of a co-parcenary, the interest of the deceased co-parcener would go by survivorship to the surviving co-parceners and not in accordance with Hindu Succession Act. But proviso to Section 6 modifies it by providing that if the deceased left behind him a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative the interest of the deceased in the Mitakashara co-parcenary property shall devolve by testamentary or intestate succession lender the Act and not survivorship. Section 30 read with Section 6 confers on co-parceners in Mitakashara family certain rights. Co-parcener''s undivided interest as quantified by Section 6 can be disposed of by co-parceners by means of testamentary disposition. Explanation to Section 6 assumes notional partition and though family continues undivided after death of a male member, property of undivided family gets diminished to the extent of the share of male member dying .There is no dispute to the legal proposition that on a notional partition of the joint Hindu family property, 1/3rd undivided share was owned by L. Bal Mukand, 1/3rd undivided share was owned bythe plaintiff and the remaining 1/3rd by defendant No. 1 KailashChand. l/3rd share of the deceased goes to his heirs by testamentary or intestate succession. The effect of the Will made by L. Bal Mukand is that it will affect the said two properties to the extent of his 1/3rdinterest which must be held to have been bequeathed under it. Considering the finding on issue No. 6, the plaintiff is only entitled to1/3rd share in the two properties, namely, 8/10 and 8/11, W.E.A., Karol Bagh, New Delhi. Defendant No. 1 is entitled to the remainingl/3rd in the two properties. Defendant No. 1 is also entitled to l/3rdshare in property 8/11, W.E.A., Karol Bagh, New Delhi bequeathed in his favor under the Will; l/3rd share in the house No. 8/10, W.E.A., Karol Bagh, New Delhi goes to Miss Shashi. daughter of defendant No. 1 for life and on hear death to the two named sons of defendant No. 1. I hold issue No. 5 accordingly.

(23) Issue NO. 6.-Has any Will been made by L. Bal Mukandas alleged ? If so, what is its effect ?The case of defendant No. 1 in the written statement is that late L. Bal Mukand made a Will on 5th of June, 1971 of which a copy was given by defendant No. 1 to the plaintiff and other defendants who have been parties to the suit and were informed of the Will and its contents By Will dated 5th of June, 1971, late L Bal Mukand had left the house No. 8/10, W.E.A., Karol Bagh, New Delhi to Miss Shashi Bala, daughter of defendant No. 1. for life and on death to the two sons of defendant No. 1. The rest of the properties are alleged to have been bequeathed under the Will to defendant No. 1 including 8/11, W.E.A.. Karol Bagh, New Delhi. The case set up in the replication by the plaintiff is that it is wrong and denied that any Will was left by L. Bal Mukand, that no copy of the Will has been given to the plaintiff, that it is denied that any Will was at any time made by the deceased L. Bal Mukand, that it is significant to note that until the present suit was filed by the plaintiff, defendant No. 1 never spoke of any Will, that it is denied that the alleged Will bears the signatures of L. Bal Mukand deceased or was made by him while he was of sound disposing mind, and that it is clear that the alleged Will has been fabricated by defendant No. I in order to meet the suit of the plaintiff.

(24) Mr. R. M. Lal firstly contends that the proof of the Will alleged to have been made by L. Bal Mukand would necessarily mean Will which is subsisting and not revoked by the testator during his life time. The Will, Ex. D-4 records a note "I have signed four copies of this Will, one of which has been put in the Punjab National Bank, Naya Bazar, Delhi-6, one copy has been given to Shri K. S. Thapar, Advocate, one copy has been given to Shri K. C. Mayor and the fourth copy I have kept for myself". Thus one copy of the Will was deposited with Punjab National Bank, Naya Bazar, Delhi, one copy was kept by late L. Bal Mukand himself, one was delivered to Shri K. S. Thapar and one was delivered to defendant No. 1.Only one copy of the Will in possession of defendant No. 1 has been placed on the record. The counsel submits a presumption is raised in cases where a Will is traced in the possession of the testator and is not forthcoming after his death, that the Will has been destroyed with the intention of revoking it. There is no evidence on the record, according to the counsel, to repel it and thus that presumption must prevail. Reliance is placed on Harilal Chatterjee vs. Sarat Chandra Chatterjee & Ors., 43 C.W.N. Calcutta 824, (8)wherein it was held that when it is shown that the Will, after execution ,was in the testator''s possession and after his death the original is not produced by the propounder, the presumption is that the testator had destroyed it for the purpose of revoking it. Reliance is placed also on Allan vs. Morrison and others, 1900 Appeal Cases604, (9) wherein it was held :-

"IT was not denied that there is a presumption (to use THE language of Lord Wensleydale in Welch v. Phillips, (1836)1 Moo. PC. 299, "that if a will traced to the possession of the deceased and last seen there is not forthcoming on his death, it is presumed to have been destroyed by himself : and that presumption must have effect unless there is sufficient evidence to rebut it." Whether this should be called a presumption of law or fact does not seem material. It may, of course, be rebutted, and (as said by Cockburn C.J. in Sugden v. Lord St. Leonards, I P.D. 154 ''the presumption will be more or less strong according to the character of the custody which the testator had over the will''."

Reliance is also placed on Devi Charan Vs. Durga Porshad Chhanu Lal and Others, wherein it was held that the presumption raised in such cases is that where a Willis traced to the possession of the testator and is not forthcoming after his death, the Will must be taken to have been destroyed by the testator with the intention of revoking the same.24-A. I may point out that there is no assertion in the plaint or in the replication that the Will dated 5th of June, 1971 was revoked. The burden of proving that a Will has been revoked rests on the person asserting so. The plaintiff did not state on oath that the last Will dated 5th of June, 1971 was revoked. There is thus no occasion to resort to the presumption on the facts of this case. There is positive evidence to show that two copies of the Will are available: one on the record of the suit and the other was brought by ShriK.. S. Thapar in the Court when he stated on oath that he has brought in the Court a copy of the Will that was kept by him. Defendant No. 1 was cross-examined with respect to the remaining two copies of the Will when he stated that he did not know whether his father actually deposited a copy of the Will with Punjab National Bank ,Naya Bazar, Delhi, that he is also not aware whether his father withdrew the copy of the Will from Punjab National Bank and tore it out and that that Will might still be there with Punjab National Bank. The plaintiff made no effort to summon any official of the Punjab National Bank to show that the copy of the Will had been withdrawn by the testator before his death. As regards the fourth copy, defendant No. 1 deposed that the note on the back on page 3 of Ex. D-4 showing that his father had kept a copy of the Will must be correct, that that copy of the Will might be lying in the papers of his father and that he did not search for that copy of the Will. Before the plaintiff can build an argument that the copy of the Will was not forthcoming from the possession of the testator at the time of his death, defendant No. 1 should have been given an opportunity to search for that copy of the Will. The plaintiff only rest content by asking the question from defendant No. 1 that he did not search the copy of the Will, left the matter there. No opportunity was given to defendant No. 1 to have it traced and place it on the record and as such no presumption can be drawn on the facts of this case. The Courts have to determine the case set up by the parties in the pleading''s. The case of the revocation of the Will has neither been set up nor put in any issue nor any evidence has been led by the plaintiff to prove the revocation of the Will. In these circumstances, defendant No. 1 was not alive that he had to account for all the four copies of the Will executed by the testator. That takes me to the consideration of the question of proof of the Will.

(25) The mode of proving a Will does not ordinarily differ from that proving any other document except as to the special requirement of the attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. A propounder of a Will has, Therefore, to prove that the Will was executed by the testator in a sound and disposing state of mind. The counsel for the propounder invited my attention to the testimony of the two attesting witnesses to the Will. The first witness is Shri K.S. Thapar, Advocate who has stated on oath that two months before5th of June, 1971 when the Will was executed by L. Bal Mukand, he consulted the witness about the drafting of a Will, that the Will was drafted by him, that the Will was signed by L. Bal Mukand at the house of Dr. V. D. Malik, that at the time of the execution of the Will, L. Bal Mukand was in a fit state of health and disposing mind, that the Will was read over to L. Bal Mukand and understood by him, that L. Bal Mukand signed the Will on all the pages and at the end of it, that when L. Bal Mukand signed this Will, the witness and Dr. V. D. Malik were both present, that the witness. and Dr. V. D. Malik attested the Will in the presence of L. Bal Mukand, that they were both present at the same time to attest that, that the Will bears his signatures at point ''A'' and the Willis Ex. D-4, that the signature of L. Bal Mukand are marked ''E-F''in Ex. D-4, that at the time of execution of Ex. D-4 three other copies of the Will were also similarly executed and attested, that one copy of the Will is with Punjab National Bank, Naya Bazar. Delhi, one copy was kept by late L. Bal Mukand himself and one was delivered to the witness and one more copy of the Will was to be sent to defendant No. 1 by him and he sent it by post, and thathe has brought in the Court a copy of the Will that was kept with him. Dr. Vishnu Dutt Malik, the other attesting witness, deposed that he knew L. Bal Mukand who executed a Will in his presence. that at that time L. Bal Mukand was in a perfect disposing mind and he could understand, that the Will was read over to the testator, that the Will is signed by the witness at two places ''H'' and ''I'' that Mr. Kishan Swarup Thappar was the other witness who signed the Will, that L. Bal Mukand signed all the pages of the Will after the Will was read over to him, that the witness remembers there were four copies of the Will, that L. Bal Mukand signed all the copies of the Will first and thereafter the witness signed all the copies at two pages. that after the witness had signed all the four copies at two places each Shri Kishan Swarup Thappar signed all the four copies, that L. Bal Mukand was present when he signed all the four copies of the Will, and that they both signed in the presence of each other and Ex. D-4 is that Will. General cross-examination was directed against Dr. Malik about the age for loosing soundness of mind, but the witness answered that a person may be sound even at the age of 90years. Dr. Malik denied the suggestion that the Will was attested long after the death of L. Bal Mukand. There is nothing on there cord to show that Dr. V. D. Malik has any motive or cause to make a false statement except that be is the brother-in-law (wife''s sister husband) of Shri K. S. Thappar, D.W. 2. No ground has been brought to my notice which may impel rejection of his clear and cogent testimony as to the execution of the Will by the testator, his sound disposing state of mind and as to the genuineness of the Will. A lot of cross-examination was directed to Shri K. S. Thappar to bring out that the witness was interested in the propounder. However, the counsel for the plaintiff has not been successful in bringing out any motive or cause compelling Shri Thappar to fabricate the Will and to make a false statement. It is in evidence that Mr. Thapar was a retained counsel for M/s. Laldee (P) Ltd., a Company promoted by the testator in the year 1957, and was initially being paid a yearly retains of Rs. 3,600 and thereafter Rs. 1,800. It is, Therefore, reasonable to infer that Mr. Thapar was entrusted with the job of drafting the Will, its execution and later on its attestation. Mr. Thapar knew defendant No. 1 as a son of L. Bal Mukand. He denied the suggestion that he contributed in the fabrication of the Will .Ex. D-4, as he was under the obligation of L. Bal Mukand. Mr. Thapar admits that there are certain obligations of L. Bal Mukand on him, that his daughter was betrothed in a multi-millionaire family and he did not have the resources to perform the marriage and at that time L. Bal Mukand came to his rescue and helped him with finance and the marriage was performed. But obligation to L. Bal Mukand could not be a cause to fabricate the Will in favor of defendant No, 1. In fact soon after the death of L. Bal Mukand, Mr. Thapar is not even the retained counsel for M/s. Laldee (P) Ltd. No suggestion is put to Mr. Thapar as to why he fabricated the Will at the instance of defendant No. 1 and in his favor or in the favor of the children of defendant No. 1. Thus there is clear and cogent testimony of the two attesting witnesses as to the execution of the Will by the testator and his sound disposing mind.

(26) The counsel for the plaintiff contends that there are various circumstances and intrinsic evidence in the Will regarding forgery which cast suspicion on the execution of the Will and impel rejection of the testimony of the attesting witnesses. Before dealing with all those circumstances, it would be apposite to state the settled principles to be applied for determining the genuineness of a Will, its execution and attestation.

(27) In H. Venkatachala Iyengar vs. B. N. Thimmajamma and others,A.1.R. 1959 S C 443 Gajendragadkar J. who spoke for the Court, considered the law relating to the true legal position in the matter of onus of proof of Wills, nature and appreciation of the evidence and the duty of the Court in considering the surrounding circumstances. It was pointed out that Sections 59 and 63 of the Indian Succession Act, 1925 are relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signatures are marked shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will ? Did he understand the nature and effect of the disposition in the Will ? Did he put his signature to the Will knowing what is contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills, It was then observed :-

"19.However, there is one important feature which distinguishes Wills from other documents unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a Court, the testator who has already departed the word cannot say whether it is his Will or not ; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of the Wills the Court will start on the same enquiry as indicates of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the Will 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 favor of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

20.There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of that testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and dibilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator, the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or ,the Will may otherwise indicate the said dispositions may not be the result of the testator''s free will and mind .In such cases the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators but, even without such pleas circumstances may arise doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubt in the matter."

(28) In Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, the Supreme Court had another occasion to consider the mode of proof of the Will and reiterated the principles laid down in H. Venkatachala Iyengar vs.B. N. Thimmajamma and others (supra). In Ramchandra Rambux Vs. Champabai and Others, Mudholkar J., who spoke for the Court, quoted with approval the law laid down by the Privy Council in Sarat Kumar Bibi vs. SakhiChand AIR 1929 Pc 45 where it has been stated that in all cases in which a Will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, or that it wa.s prepared under highly suspicious circumstances, it is for the propounder of the Will to remove that suspicion. In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it maybe able to form a correct idea of the trustworthiness, of the witnesses. Again the principles laid down in H. Venkatachala Iyengar vs.B. N. Thimmajamma and others (supra) were reiterated.

(29) The various contentions of Shri R. M. Lal, the learned counsel for the plaintiff, as to the suspicious circumstances may now be considered in the light of the aforesaid settled principles. The first circumstance pointed out by the learned counsel is that the condition of the testator''s mind appeared to be very feeble and debilitated and the evidence on the record of this suit has not succeeded in removing the doubt as to the mental capacity of the testator. 1. is urged that the Will propounded by defendant No. 1 cannot be as a result of the free will of the testator who died in mysterious circumstances. The Will, Ex. D-4, was executed on 5th of June, 1971. L. Bal Mukand was the Managing Director of M/s. Laldee (P) Lid. at that time and continued as such till his death. Mr. Thapar deposes that it is in the middle of March or April, 1971 when L. Bal Mukand instructed him to draft the Will and the matter was discussed for 2 or 3 months before the final draft was prepared. Mr. Thapar states that he did not consider the necessity of having a certificate from a doctor about the health or disposing mind of L. Bal Mukand as the other attesting witness is an eminent doctor. In my opinion, what the law require is that the testator must have sound disposing mind and possessed of all his faculties and be aware of what he is doing. The degree of capacity which must be retained by the old is dealt with in Den vs. Vanclevc (2 Southard at p. 600 cited in Banks vs. Good fellow .(1870) Lr 5 Ob 549 (15) wherein it was said :-

"BY the terms ''a sound and disposing mind and memory'', it has not been understood that the testator must possess these qualities of mind in the highest degree; otherwise, very few would make rest aments at all : neither has it been understood that he must possess them in as great a degree as he may have formerly done, for even this would disable most men in the decline of life the mind may bein some degree debilitated, the memory may have become in some degree enfeebled, and yet there may be enough left clearly to discern and discreetly to judge of all those things and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory."

(30) The testator discussed the matter with his counsel for two or three months before the final draft was prepared and had two or three sittings for preparing the Will. At that time the testator was managing the affairs of M/s. Laldee (P) Ltd. as its Managing Director, and must be having a rational thinking and possessed of all senses. The testator must. be aware and knew full well the implication of what he was doing indicating that he was possessed of his faculties. If the testator was able to discern and discreetly judge his properties and the persons he chose to benefit by the bequest, then it can be said that the testator was of sound and disposing mind. Dr. V. D. Malik categorically states that L. Bal Mukand executed the Will in his presence and at that time L. Bal Mukand was in a perfect disposing mind and he could understand. When the plaintiff comes in the witness box in the rebuttal, he does not have the courage to challenge the mental capacity of the testator and merely states that his father did not execute any Will in the year 1971. The plaintiff is also absolutely silent about the alleged mysterious circumstances of the death of the testator. Defendant No. 1 has stated on oath that as was usual with his father, he went for the morning walk and did not return and that they were informed by the Police that his deadbody was found. In the cross-examination, defendant No. 1 admits that it is true that his father died on the Jamuna bank at Okhla, that it could be that the spot where the dead body was found, is about10 miles from their place at Western Extension Area and that The police gave the information on the evening of 27th of June, 1973about the dead body being found at Okhla. Defendant No. 1 stated thathe thought that his father died of heart attack a; Okhla and there was no foul play and it is incorrect to suggest that his father was not happy and he died an unnatural death. On these facts, in my opinion, the plaintiff is only talking airily about this circumstance of suspicion.

(31) Another circumstance brought out by the counsel is that the dispositions made in the Will are unnatural, improbable and unfair and cannot be the result of the testator''s free will. In Shashi Kumar Banerjee and others vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others (supra), the Supreme Court laid down that if the propounder succeeds in removing the suspicious circumstances, the Court could grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. It is established on the evidence on the record that the plaintiff has been separate in mess and residence from L. Bal Mukand since 1948.The plaintiff has acquired various immovable properties, namely,K-106, Hauz Khas, New Delhi, 11-UB, Bungalow Road, JawaharNagar, New Delhi and another property in the name of his wife at24/13, Shakti Nagar, Delhi. Defendant No. 1 does not own any immovable property. After the partition of the country, defendant No. 1 has been carrying on business earlier in the testator''s sole proprietorship firm and thereafter in the company M/s. Laldee (P) Ltd. promoted by L. Bal Mukand. Defendant No. 1 and the testator had been living together and there is nothing unnatural in the testator bequeathing the entire property in favor of defendant No. 1 or his heirs.

(32) It is next contended that the alleged signatures of the testator are shaky and doubtful, thus casting a suspicion on defendant No. 1''scase. The testator made the Will on 5th of June, 1971 at the ripe age of about 80 years. There are certain contemporaneous documents admittedly signed by the testator which have been placed on the record and were marked as Exts. D-1, D-2, D-3, D-5, D-6 andD-7. Mrs. R. K. Vijh, D. W. 5, handwriting expert examined the disputed signatures of L. Bal Mukand in the Will, Ex. D-4 at 5places and compared it with the admitted signatures and expressed the opinion that the disputed signatures on the Will are written by the writer of the admitted signature. This evidence is no doubt rebutted by the statement of Shri V. K. Sakhuja, the other handwriting expert produced by the plaintiff. Shri Ramesh Chand Sood, P. W.1 is the Income Tax Practitioner and is nephew of L. Bal Mukand. From 1962-63 Mr. Sood has been the Income Tax Adviser to L. Bal Mukand. He deposes that "I have seen the documents signed by L. Bal Mukand during the course of my dealings. To my eyes the signatures on Ex. D-4 appear to be the signatures of L. Bal Mukand". Mr. Sood is produced by the plaintiff and would not support the propounder of the Will, unless the signatures are really of L. Bal Mukand. Then there is the unimpeachable evidence" of the two attesting witnesses already discussed and accepted by me. This contention has no merit.

(33) It is next contended that having regard to the normal course of events when the testator knew that his Will is bound to be contested, the testator would have presented it for registration before the Sub-Registrar and got it registered. This contention does not impress me as it is not the requirement of the law that the Will must be compulsorily registered. It is not uncommon that when some members of the family are sought to be discriminated against having regard to the circumstances which may appear to the testator to provide justification for it, the Will is always kept as a closely guarded secret. Mr. Thapar did not suggest to the testator that till the time the testator was alive, the Will could not be inspected by anyone. May be Mr. Thapar was not aware of such a provision in the Registration Act, or keeping the unregistered Will in a sealed cover with the Sub-Registrar did not strike him as is stated by him. It is never in the interest of the testator that those who have been deprived of the benefit to know of the execution of the Will or the contents thereof. This circumstance, therefore, does not invalidate the Will.

(34) Shri R. M. Lal further points out to the intrinsic evidence in the Will establishing to the forgery. I may, Therefore, consider the nature and contents of the document itself. In the opening part, it is stated that "I have not made any Will so far and if any other Will is put up by any one, the same must be held to be a forgery". Ex. D-3 is the original Will dated 4th of May, 1963 produced by defendant No. 1during the trial. Mr. Thapar who has drafted the impugned Will, stated that L. Bal Mukand told him that he had not executed any Will and that the statement made in Ex. D-4 that L. Bal Mukand had not made any Will so far would be attributed to him as a lapse on his memory as L. Bal Mukand was about 78 years old at that time. In preparing a Will at that ripe age, there is a circumstance which may indicate that the existence of the earlier Will has not been reflected in the document, but it can be on account of partial loss of memory and, Therefore, of no consequence. The Will further states that "am now possessed of considerable moveable and immovable properties in Delhi, Faridabad and Ballabhgarh". The counsel contends that it is established on the record that the testator was not possessed of any property at Ballabhgarh. There is no merit at all in this aspect as it is specifically stated that a list signed by the testator and the witnesses of all properties held is attached therewith as Annexure ''A''. Annexure ''A'' does not describe any property at Ballabgarh. Faridabad is in Bailabhgarh Tehsil. One factory of M/s. Laldee(P) Ltd. was at Ballabhgarh. Defendant No. 1 offers an Explanation on oath that in the Will Ex. D-4i when L. Bal Mukand mentions that he owned properties at Ballabhgarh, he must be thinking of that property .This Explanation is very plausible. In the list of properties held by L. Bal Mukand, houses Nos. 8/10 and 8/11, W.E.A., Karol Bagh. New Delhi is mentioned. These properties were thrown into the common stock of the joint Hindu family by the declaration made on4th of March, 1963, Ex. PW-1/3. The counsel contends that the forger did not know of the declaration, as the testator would not have included it as his personal property. The Will dated 4th of May, 1963,Ex. D-3, was shown to the plaintiff and he admitted that it is signed by his father at points ''A'' and ''B'' and that whatever is written in this document is correct. In this Will made within two months of the declaration .Ex. PW-1/3, the testator is also staling the houses Nos.8/10 and 8/11, W.E.A., Karol Bagh, New Delhi as his self-acquired properties. This is factually incorrect as the two properties formed part of the joint Hindu family property and could not be divested of that character. Similar factual incorrect statement is made in the disputed Will, Ex. D-4. This circumstance is, Therefore, nothing an usual. In the Will it is further stated that "my second son, Dr. Kewal Krishan was educated by me and passed his L.M.S. in 1945 and has been ever since practicing doctor in Delhi". This statement could not have been made. according to the counsel, by the testator as Dr. Kewal Krishan started his practice in Delhi in 1947 after the partition of the country and this fact was within the knowledge of the testator. The propounder as well as all others, knew the fact that the testator Along with his sons and other family members shifted to Delhi in 1947. There could be no occasion for any one (including the alleged forger) toslate that the plaintiff started his practice in Delhi in 1945. The words "Ever Since" is by and large correct and it has reference to the period of practice in Delhi. This inconsistency is, Therefore, of no substance-At page 2 of the Will, Ex. D-4. it is stated that "My third son, Kailash Chander has all along been working with me and I have formed a joint Hindu family with commonality of mess and business". The counsel submits that this statement is contrary to the declaration, Ex.PW-1/3 wherein it is stated that the testator constituted a Hindu Undivided Family with his wife, Smt. Lal Devi and his two sons, Mr. Kailash Chander and Dr. Kewal Krishan. Mr. Thapar, draftsman of the Will, states that the joint Hindu family was existing even before partition but the reference here is that they are living together since1947. This inconsistency is, Therefore, understandable. The word "commosalty" has been erroneously typed as it should read as "commonciality". The word business also does not refer to the joint Hindu family business in the technical sense. It refers to the business of M/s. Laldee (P) Ltd. of which the testator was the Managing Director and defendant No. 1 as a Director Later in the Will it is mentioned that L. Bal Mukand and Kailash Chander had joint Hindu family property, but none is shown, according to the counsel, to exist. Mr. Thapar deposes that regarding this statement he was talking of the property acquired by both of them working together. The possession as a joint Hindu family obviously has reference to the movable assets in the house such as household effects, furniture or ornaments etc. as all other tangible assets are included in Annexure ''A''. There is no inconsistency on this account. The counsel points out that if the testator had executed certain transfer deeds in respect of his shares in M/s. Laldee (P) Ltd. and the transfer deeds were defective turn lack of stamp or for not being in proper form, it was natural for L. Bal Mukand to have executed fresh transfer deeds for completion of the transfer. It was found only after the death of L. Bal Mukand that the transfer deeds are defective and that is the reason according to the counsel. why it was mentioned that "it has been reported to me that some of these transfer deeds are defective, for lack of stamp, for not being in proper form. I stand by these transfers". If the matter had been left only there, then it does raise a suspicion for there was no impediment in L. Bal Mukand executing fresh transfer deeds. The last sentence, however ,clears the doubt when the testator wrote that "Shri Kailash Chander can get these transfers regularised or can have new documents executed as the need may be". This clearly indicates that the testator wanted to execute fresh documents during his life time though indicated it in the Will which had to take effect after his death. Such a provision is unusual in a Will, but not one which would indicate any forgery The shares were in fact later on transferred by the company on the basis of original transfer deeds. The Will further recites that only 400shares shall be inherited by Kailash Chander Mayor and the testator had executed a blank transfer deed to be completed after his death. The counsel contends that blank transfer deeds are prohibited by lawand a genuine Will would not contain such a provision. In my opinion, invalid recital in a Will cannot militate against its genuiness. The counsel last points out that it is mentioned in the Will that Kailash Chander is the sole heir, whereas in the Will itself house No. 8/10,W.E.A., Karol Bagh, New Delhi has been bequeathed to the granddaughter, Shashi Bala, daughter of Kailash Chander Mayor for her life and after her death, this property will go to Sushil and Harish, sons of Kailash Chander Mayer or their heirs in equal shares. There is no contradiction in the Will for the testator has loosely used the word as "Sole heir" for Kailash Chander, as contradistinction to his other two sons Brahm Dutt and Dr. Kewal Krishan. The testator wanted to exclude the other two sons and benefit only Kailash Chander and his family.

(35) The result of the above discussion is that there is unimpeachable evidence that the testator executed the Will, Ex. D-4; at that time he was of sound disposing mind; had read the contents of the Will and signed it knowing fully well the implications of it. The signatures required by law as to the execution have been established. The propounder has also been successful in explaining the circumstances alleged to have cast suspicion on the execution of the Will. Thus I hold that L. Bal Mukand, the testator, had full testamentary capacity and had in fact executed the Will, Ex. D-4, validly with a free will and mind .The Will was attested as required by law by two attesting witnesses. I hold that the Will made on 5th of June, 1971 is the last Will of L. Bal Mukand. Issue No. 6 is held accordingly.

(36) Issue NO. 7.-Relief.In view of my findings on the above issues, the plaintiff is declared to be the shareholder to the extent of one third (1/3) in property No.8/10, Western Extension Area, Karol Bagh, New Delhi and 1/3rdin property No. 8/11, Western Extension Area, Karol Bagh, New Delhi. Defendant No. 1 is entitled to two third (2/3) share in the property No.S/11, Western Extension Area, Karol Bagh, New Delhi. Defendant No. 1 is also entitled to one third (1/3) share in property No. 8/10,Western Extension Area, Karol Bagh, New Delhi. Shashi Bala, daughter of Kailash Chander is entitled to one third (1/3) share in property No. 8/10, Western Extension Area, Karol Bangh, New Delhi for her life. After her death, her share will go to Sushil and Harish, sons of Kailash Chander Mayor or their heirs in equal shares absolutely. The plaintiff has prayed that a decree for partition of the property in suit be passed in favor of the plaintiff against the defendants and the plaintiff''s share in the different properties be granted separately to the plaintiff .In my opinion a partition of the said two immovable properties cannot conveniently be made without further enquiry. I, consider it a fit case to pass a preliminary decree for partition and appoint Shri P. Bose Advocate of this Court as a Local Commissioner to suggest a mode of partition of the said two properties. The fees of the Local Commissioner are fixed tentatively at Rs. 1,000to be paid by the plaintiff in the first instance. The Commissioner to submit his report within six months from today. The suit of the plaintiff is decree only in part. The plaintiff has lost in the contest to the Will made on 5th of June, 1971 by the deceased. Considering all the facts and circumstances of the case, I award only half of the costs to the plaintiff and against defendant No. 1 alone.