BHAGWAT SHARAN (DEAD THR. LRS.versusPURUSHOTTAM & ORS.

                        [2020] 10 S.C.R. 579                            579


            BHAGWAT SHARAN (DEAD THR. LRS.)                             A
                                 v.
                    PURUSHOTTAM & ORS.
                  (Civil Appeal No. 6875 of 2008)
                          APRIL 03, 2020                                B
     [L. NAGESWARA RAO AND DEEPAK GUPTA, JJ.]
       Hindu Law – Property of Hindu Undivided Family (HUF) –
Burden to prove – Person had four sons – 2 sons severed and had
no connection with property of the family – Two branches left in the
                                                                        C
family – Suit filed by descendant of one of the son for partition of
plaint properties claiming them to be of HUF – Decreed by trial
court – Set aside by High Court – On appeal, held: Not only jointness
of the family has to be proved but also that the property belongs to
the joint Hindu family – Merely because the business is joint would
not raise the presumption that there is a Joint Hindu Family – Burden   D
is on the person alleging that the property is a joint property of an
HUF to prove the same – Plaintiff failed to prove that there is an
HUF – Doctrines.
      Evidence – Admission – Held: An admission made by a party
is only a piece of evidence and not conclusive proof of what is         E
stated therein.
      Estoppel – Doctrine of election – Discussed.
      Dismissing the appeals, the Court
       HELD: 1.1 The burden is on the person alleging that the          F
property is a joint property of an HUF to prove the same. Normally,
an HUF can only comprise of all the family members with the
head of the family being karta. Some property has to be the
nucleus for this joint family. There is no pleading that ‘MR’ and
Sons (‘MP’, ‘LC’, ‘RC’ and ‘UL’) constituted a HUF. There is
no allegation that this family had some property as its nucleus. It     G
is the admitted case of the parties that both ‘RC’ and ‘LC’ severed
connections with the family and had no connection with the
property of the family. There is cleavage of opinion as to whether
two brothers of a larger group can form a joint family. But
assuming that such a joint family could have been formed by ‘MP’        H
                                 579
580            SUPREME COURT REPORTS                     [2020] 10 S.C.R.


A     and ‘UL’, the burden lies heavily on the plaintiff to prove that the
      two of them joined together to form an HUF. To prove this, they
      will have to not only show jointness of the property but also
      jointness of family and jointness of living together. Since there is
      no allegation that ‘MR’ and his four sons constituted a HUF, the
      fact that ‘LC’ left the family to live by himself, would not in any
B
      manner mean that there was a disruption of the joint family status.
      A disruption would arise only if there was an allegation that earlier
      there was a HUF. [Paras 1, 10-12][586-H; 588-D-G]
             1.2 The plaintiff is the grandson of ‘UL’. The parties are ad
      idem that ‘MP’ shifted from his native village and came to Ashok
C     Nagar, about 70 years prior to the filing of the suit. It is also an
      admitted case of the parties that ‘MP’ and ‘UL’ came separately
      to Ashok Nagar. ‘MP’ initially worked as a munshi with a zamindar.
      Thereafter, as per the defendants, ‘MP’ started a business which
      was his own but later his brother ‘UL’ joined in the business. It
D     is, however, contended that this business was not a business of a
      HUF. On the other hand, the case of the plaintiff is that it was
      ‘UL’ who started the business and ‘MP’ joined him later on but
      since ‘MP’ was the elder brother, the business was started in the
      name of ‘MP’. There is no evidence to support the claim either
      way. The plaintiff places great reliance on the mortgage deed by
E     which 5 houses were mortgaged on 01.12.1944 and 26.11.1946.
      It is not disputed that there were 6 houses, some single storeyed
      and some double storeyed in Ashok Nagar which have been
      described in the plaint. There is no material on record to show
      that the properties belonged to an HUF. They may have been
F     joint properties but merely on the basis of the recitals in the
      mortgage deed they cannot be said to be a joint family property.
      [Paras 2, 13-16][583-H; 588-G; 590-A-B]
            2. An admission made by a party is only a piece of evidence
      and not conclusive proof of what is stated therein. Not only
G     jointness of the family has to be proved but burden lies upon the
      person alleging existence of a joint family to prove that the
      property belongs to the joint Hindu family unless there is material
      on record to show that the property is the nucleus of the joint
      Hindu family or that it was purchased through funds coming out
      of this nucleus. This has not been proved in the present case.
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 BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM                          581


Merely because the business is joint would not raise the                 A
presumption that there is a Joint Hindu Family. There is no clear-
cut admission with regard to the existence of an HUF. At best,
from the recitals in the mortgage deed and averments in the
written statement, all that can be said is that at the relevant period
of time the property was treated to be a joint property. [Para 19,
                                                                         B
20][591-C-E; 592-B-C]
      Nagubai Ammal and Ors. v. B. Shama Rao and Ors.
      [1956] 1 SCR 451; Himani Alloys Ltd. v. Tata Steel Ltd.
      (2011) 15 SCC 273 : [2011] 7 SCR 60 – relied on.
      3. Out of the 6 houses, 5 were mortgaged and one is
admittedly a dharamshala. Out of these 5 houses, 3 were sold by          C
‘HR’ (son of ‘MP’) during his life time and during the life time of
the predecessors of the plaintiff, nobody objected to the sales of
the properties. Sale deeds and the recitals were never challenged
by the plaintiff or his predecessors. This would indicate that the
jointness of the property if any had ceased because of some family       D
arrangement or partition which may have happened much earlier.
The sale deeds will have to be read in conjunction with the
averments made in the plaint wherein the plaintiff stated that the
business came to a closure and then almost all the people started
carrying on their separate business. Though it is averred that
the immovable properties remained the properties of the joint            E
family the fact that separate branches started doing separate
business is indicative of the fact that some separation, if not, a
formal partition had taken place between the parties. The other
important document is the Will of ‘HR’ (Exh. P-3). A party cannot
be permitted to approbate and reprobate at the same time. This
principle is based on the principle of doctrine of election. In          F
respect of Wills, this doctrine means that a person who takes
benefit of a portion of the Will cannot challenge the remaining
portion of the Will. The doctrine of election is a facet of law of
estoppel. Any party which takes advantage of any instrument must
accept all that is mentioned in the said document. The plaintiff         G
having elected to accept the Will of ‘HR’, by filing a suit for
eviction of the tenant by claiming that the property had been
bequeathed to him by ‘HR’, cannot now turn around and say that
the averments made by ‘HR’ that the property was his personal
property, is incorrect. [Paras 21-25][592-C-D, F-G; 593-A-B, G;
594-A, B, D]                                                             H
582          SUPREME COURT REPORTS                  [2020] 10 S.C.R.


A          The Rajasthan State Industrial Development and
           Investment Corporation and Anr. v. Diamond and Gem
           Development Corporation Ltd. and Anr AIR 2013 SC
           1241 : [2013] 4 SCR 331; Karam Kapahi and Ors. v.
           Lal Chand Public Charitable Trust and Ors. (2010) 4
           SCC 753 : [2010] 4 SCR 422; Bhagwan Dayal v. Reoti
B
           Devi AIR 1962 SC 287; D.S. Lakshmaiah and Ors. v.
           L. Balasubramanyam and Ors. (2003) 10 SCC 310 :
           [2003] 3 Suppl. SCR 13; Mst Rukhmabai v. Lala
           Laxminarayan and Others. [1960] 2 SCR 253;
           Appasaheb Peerappa Chamdgade v. Devendra
C          Peerappa Chamdgade (2007) 1 SCC 521; – relied on.
           Bhagwati Prasad Sah and Ors. v. Dulhin Rameshwari
           Kuer and Ors. [1951] 2 SCR 603; Shrinivas Krishnarao
           Kango v. Narayan Devji Kango and Ors. [1955] 1 SCR
           1– referred to.
D          Appalaswami v. Suryanarayanamurti I.L.R. 1948
           Mad.440– referred to.
                          Case Law Reference
      [1951] 2 SCR 603              referred to      Para 10
E     [1955] 1 SCR 1                referred to      Para 10
      AIR 1962 SC 287               relied on        Para 10
      [2003] 3 Suppl. SCR 13        relied on        Para 10
      [1960] 2 SCR 253              relied on        Para 10
F     (2007) 1 SCC 521              relied on        Para 10
      [1956] 1 SCR 451              relied on        Para 20
      [2011] 7 SCR 60               relied on        Para 20
      [2013] 4 SCR 331              relied on        Para 24
G
      [2010] 4 SCR 422              relied on        Para 25




H
 BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM                                583


      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6875                      A
of 2008.
     From the Judgment and Order dated 05.05.2004 of the High Court
of Madhya Pradesh, Bench at Gwalior in M.C.C. No 26 of 2003.
      With
                                                                               B
      C.A. Nos. 6876-6877 of 2008.
       Harin P. Raval, Sushil Kumar Jain, Vikas Singh, Guru Krishan
Kumar, Anupam Lal Das, Sr. Advs., Nipun Saxena, Ms. Serena Sharma,
Ms. Sukanya Singh, Kartikey Kanojiya, Siddharth H. Raval, Vinod
Dahiya, B.K.Satija, Puneet Jain, B.K. Agarwal, Ms. Christi Jain, Harsh         C
Jain, Ms. Ankita Gupta, Abhinay Deshwal, Ms. Pratibha Jain, Pramod
Sharma, Ms. Deepika Kalia, Sumit Kumar Sharma, Vishal Lashkari,
Niraj Sharma, Ajay Aggarwal, Ms. Mallika Joshi, Saurabh Kumar, S.R.
Joshi, Arindam Ghose, Vikrant Singh Bais, Yash Pal Dhingra, S. K. Verma,
Arjun Garg, Buddy A.Ranganadhan, Pravin Bahadur, Amit Agarwal,
Ms. Manjeet Kirpal, Suhaas Ratna Joshi, Advs. for the appearing parties.       D
      The Judgment of the Court was delivered by
      DEEPAK GUPTA, J.
       1. One Mangat Ram was a resident of Village Narnaul in
Rajasthan. He had four sons viz., Madhav Prashad, Lal Chand, Ram               E
Chand and Umrao Lal. Ram Chand was adopted by one Shri Gauri Mal
of Gwalior. Lal Chand had four sons viz., Sri Ram, Hari Ram, Govind
and Laxmi Narayan. Madhav Prashad had no issues. Therefore, he
adopted Hari Ram, the son of Lal Chand. Ram Chand also had no issues
and he adopted Shriram, son of Lal Chand. It is the admitted case of the
                                                                               F
parties that both Ram Chand and Lal Chand severed connections with
the family and had no connection with the property of the family. This
left two branches in the family of Mangat Ram, one being Madhav
Prashad and his descendants through his son Hari Ram, the other branch
consisted of Umrao Lal and his three sons viz., Brij Mohan, Rameshwar
and Radha Krishan. The plaintiff Bhagwat Sharan, who filed the suit is         G
the son of Radha Krishan and grandson of Umrao Lal.
      2. The above facts are not disputed. The parties are also ad idem
that Madhav Prashad shifted from his native village and came to Ashok
Nagar, about 70 years prior to the filing of the suit. The suit was filed in
                                                                               H
584             SUPREME COURT REPORTS                            [2020] 10 S.C.R.


A     1988. Thus, Madhav Prashad must have shifted in or around 1918. It is
      also not disputed that Madhav Prashad started working as munshi of
      the then zamindar of the area and was thereafter known as munshi
      Madhav Prashad. The dispute basically starts hereinafter. The plaintiff
      claims that his grandfather Umrao Lal also came to Ashok Nagar at
      about the same time and started doing grain business. Thereafter, Madhav
B
      Prashad left the work of munshi and both the brothers started grain
      business in the name of “Munshi Madhav Prashad”, by setting up a
      shop. The case of the plaintiff is that both Madhav Prashad and Umrao
      Lal lived together and carried on the business jointly and purchased various
      properties described in para 9 of the plaint. Six properties comprise of
C     six different houses. The properties at para 9(2) comprised of various
      agricultural lands in different villages. The case of the plaintiff is that all
      these houses have been constructed jointly by Madhav Prashad and
      Umrao Lal, and Madhav Prashad being the elder brother was the karta
      and was running the joint family in this capacity. It was further alleged in
      the plaint that Madhav Prashad being the karta managed to get some of
D
      the joint family property recorded in his own name. It was also alleged
      that after the death of Madhav Prashad and Umrao Lal, Hari Ram,
      adopted son of Madhav Prashad (who had died by the time the suit was
      filed in 1988) was the karta of the joint Hindu family and in this capacity
      some of the properties of the Joint Hindu Family were recorded in his
E     name.
             3. It is not disputed that Madhav Prashad died some time in the
      year 1935, Umrao Singh died some time in 1941-42 and Hari Ram died
      in the year 1978.
             4. In respect of agricultural lands it was pleaded that all these
F     agricultural lands were under the joint cultivation of the family and the
      full accounts of the cultivation was kept by late Madhav Prashad and
      Umrao Lal, and after their death by Hari Ram. After the death of Hari
      Ram, his widow Rajjo Devi (Def.no.6), used to look after cultivation on
      behalf of the family. It was further alleged in the plaint that Hari Ram
G     had transferred some of the agricultural lands in the name of his brother-
      in-law, son, son-in-law and other relatives as benami transactions, which
      was obvious from the fact that the General Power of Attorney was
      executed by the beneficiaries of these transactions in favour of Hari
      Ram. However, this fact was not revealed to the branch of the family
      who were descendants of Umrao Lal. Basically, the allegation was that
H
 BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM                                 585
              [DEEPAK GUPTA, J.]

all the properties mentioned in para 9 of the plaint were properties of the     A
Hindu Undivided Family (for short HUF) and, therefore, the plaintiff
sought partition of the same by metes and bounds as per his share.
      5. For the sake of convenience it would be appropriate to extract
para 18 of the plaint which reads as follows:-
      “(18) That the business of the plaintiff and defendant Nos. 1 to 18       B
      was almost joint till the year 1954. Thereafter, on account of the
      loss in the business and the business coming to a closure position
      almost all the people started carrying on their separate business
      and the immovable properties of the joint family remained undivided
      so far. Late Hari Ram sold the house properties mentioned in              C
      para No.9(1) (c) (d) (e) (f) of the plaint during his life time, which
      are liable to be reduced from there share”
        This suit was contested by some of the defendants who were
either in the line of descendants of Hari Ram or his beneficiaries. Transfer
documents were executed in their favour. It would be pertinent to mention       D
that none of the other heirs from the lineage of Umrao Lal filed a written
statement. In the written statement filed by the contesting respondents
the main objection taken was that the properties mentioned in para 9 of
the plaint were not properties of the HUF and it was denied that there
ever was any such HUF.
                                                                                E
       6. The defendants denied the fact that the business being run
under the name of “Munshi Madhav Prashad” was a joint family business.
It was denied that Umrao Lal was a member of this business or the said
shop was a joint shop. With regard to all the properties mentioned in
para 9 of the plaint, it was stated that all the houses had been purchased/
constructed by Madhav Prashad alone and that the agricultural lands             F
were purchased by Hari Ram from his own income.
       7. In the written statement the defendants also placed reliance on
the Will of late Hari Ram and made reference to a suit filed by the
plaintiff and defendant nos.1-3 in which they had stated that a portion of
the house had been bequeathed to them by Hari Ram by his Will. It was           G
therefore urged that the plaintiff having elected to accept the bequest
under the Will cannot now turn around and say that the description of
the properties given by Hari Ram in the Will showing them to be his
personal properties was not correct. It was also alleged that as admitted
in the plaint itself 3 out of 6 houses were sold by Hari Ram in his lifetime.
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586            SUPREME COURT REPORTS                         [2020] 10 S.C.R.


A           8. On the basis of the pleadings of the parties various issues were
      framed but according to us only the following issues are relevant which
      are extracted below :-
            1. Whether the properties mentioned in para No.9 of the plaint
            are the properties of the joint family both the sides or whether the
B           same are the self acquired properties as per the averments made
            by the defendants?
            2. Whether the plaintiff in Civil Suit No.94-A/86 filed in the Court
            of Civil Judge Class-II, Ashok Nagar, has mentioned the Will dated
            6.2.1987 executed by Hari Ram as the basis of the suit?
C
            3. If yes, Whether the plaintiff is stopped from alleging the said
            Will as null and void?
            4. Whether the Will dated 6.2.1987 executed by Hari Ram in
            connection with the disputed property is Null and void?
D           The trial court decided all these issues in favour of the plaintiff
      and decreed the suit holding that all the properties were joint family
      properties and that plaintiff had 2.38% share in the same. The contesting
      defendants filed an appeal in the High Court of Madhya Pradesh, and
      the decree of partition by the trial court was set aside. The plaintiff
      approached the High Court for review. The High Court dismissed the
E
      application for condonation of delay, the application for review and the
      application under Order XLI Rule 27 of the Code of Civil Procedure,
      1908. Hence this appeal before us.
             9. We have heard Shri Sushil Kumar Jain, learned senior counsel
      for the appellant, Shri Harin P. Raval, learned senior counsel for those
F
      respondents who support the appellant and Shri Guru Krishna Kumar,
      Shri Vikas Singh, and Shri Anupam Lal Das, learned senior counsel, for
      the contesting respondents.
            10. At the outset we may note that a lot of arguments were
      addressed and judgments were cited on the attributes of HUF and the
G
      manner in which it can be constituted. In view of the facts narrated
      above, in our view, a large number of these arguments and citations
      need not be considered. The law is well settled that the burden is on the
      person who alleges that the property is a joint property of an HUF to
      prove the same. Reference in this behalf may be made to the judgments
H
    BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM                             587
                 [DEEPAK GUPTA, J.]

of this Court in Bhagwan Dayal vs. Reoti Devi1. Both the parties have          A
placed reliance on the this judgment. In this case this Court held that the
general principle is that a Hindu family is presumed to be joint unless the
contrary is proved. It was further held that where one of the coparceners
separated himself from other members of the joint family there was no
presumption that the rest of coparceners continued to constitute a joint
                                                                               B
family. However, it was also held that at the same time there is no
presumption that because one member of the family has separated, the
rest of the family is no longer a joint family. However, it is important to
note that this Court in Bhagwati Prasad Sah and Ors.vs. Dulhin
Rameshwari Kuer and Ors.2, it held as follows:-
                                                                               C
       “…. Except in the case of reunion, the mere fact that separated
       coparceners chose to live together or act jointly for purposes of
       business or trade or in their dealings with properties, would not
       give them the status of coparceners under the Mitakshara law.”
       The Privy Council in Appalaswami v. Suryanarayanamurti3
held as follows:                                                               D

       “The Hindu law upon this aspect of the case is well settled.
       Proof of the existence of a joint family does not lead to the
       presumption that property held by any member of the family is
       joint, and the burden rests upon anyone asserting that any item of      E
       property was joint to establish the fact. But where it is established
       that the family possessed some joint property which from its nature
       and relative value may have formed the nucleus from which the
       property in question may have been acquired, the burden shifts to
       the party alleging self-acquisition to establish affirmatively that
       the property was acquired without the aid of the joint family           F
       property.”
       The aforesaid view was accepted by this Court in Shrinivas
Krishnarao Kango v. Narayan Devji Kango and Ors. 4 In D.S.
Lakshmaiah and Ors. v. L. Balasubramanyam and Ors.5 this Court
held as follows:                                                               G

1
  AIR 1962 SC 287
2
  (1951) 2 SCR 603
3
  I.L.R. 1948 Mad.440
4
  (1955) 1 SCR 1
5
  (2003) 10 SCC 310
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588                SUPREME COURT REPORTS                         [2020] 10 S.C.R.


A              “The legal principle, therefore, is that there is no presumption of a
               property being joint family property only on account of existence
               of a joint Hindu family. The one who asserts has to prove that the
               property is a joint family property. If, however, the person so
               asserting proves that there was nucleus with which the joint family
               property could be acquired, there would be presumption of the
B
               property being joint and the onus would shift on the person who
               claims it to be self-acquired property to prove that he purchased
               the property with his own funds and not out of joint family nucleus
               that was available.”
            Similar view was taken in Mst Rukhmabai v. Lala
C     Laxminarayan and Others.6 and Appasaheb Peerappa Chamdgade
      v. Devendra Peerappa Chamdgade7. The law is thus well settled that
      the burden lies upon the person who alleges the existence of the Hindu
      Undivided Family to prove the same.
             11. Normally, an HUF can only comprise of all the family members
D     with the head of the family being karta. Some property has to be the
      nucleus for this joint family. There is cleavage of opinion as to whether
      two brothers of a larger group can form a joint family. But assuming that
      such a joint family could have been formed by Madhav Prashad and
      Umrao Lal the burden lies heavily on the plaintiff to prove that the two
E     of them joined together to form an HUF. To prove this, they will have to
      not only show jointness of the property but also jointness of family and
      jointness of living together.
             12. From the facts stated above it is apparent that there is no
      pleading that Mangat Ram and Sons constituted a HUF. There is no
F     allegation that this family had some property as its nucleus. Since there
      is no allegation that Mangat Ram and his four sons constituted a HUF,
      the fact that Lal Chand left the family to live by himself, would not in any
      manner mean that there was a disruption of the joint family status. A
      disruption would arise only if there was an allegation that earlier there
      was a HUF.
G
           13. It is also an admitted case of the parties that Madhav Prashad
      and Umrao Lal came separately to Ashok Nagar. Madhav Prashad initially
      worked as a munshi with a zamindar. Thereafter, as per the defendants,
      6
          (1960) 2 SCR 253
      7
H         (2007) 1 SCC 521
 BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM                                589
              [DEEPAK GUPTA, J.]

Madhav Prashad started a business which was his own but later his              A
brother Umrao Lal joined in the business. It is, however, contended that
this business was not a business of a HUF.
       14. On the other hand, the case of the plaintiff is that it was Umrao
Lal who started the business and Madhav Prashad joined him later on
but since Madhav Prashad was the elder brother, the business was started       B
in the name of Madhav Prashad. There is no evidence to support the
claim either way. The witnesses who have appeared were all born much
later and they have not given any evidence with regard to the joint
business. The plaintiff Bhagwat Sharan was born in the year 1951. The
contesting defendants 4 and 8 are younger to him by 5 and 11 years.
Therefore, the oral testimony of these witnesses is not of any use as          C
rightly held by the trial court.
       15. The plaintiff places great reliance on the mortgage deed by
which 5 houses were mortgaged in favour of Seth Budhmal on 01.12.1944
and 26.11.1946. It is not disputed that there were 6 houses, some single
storeyed and some double storeyed in Ashok Nagar which have been               D
described in the plaint. Out of these houses, one was used as
dharamshala and the remaining 5 were mortgaged on 01.12.1944 vide
mortgage deed (Exh.P.28). This mortgage deed was executed by Hari
Ram, S/o Madhav Prashad, and Brij Mohan, Rameshwar Das and Radha
Krishan, S/o Umrao Lal and Pop Chand and Babu Lal @ Deep Chand,                E
minor sons of Brij Mohan through their father and Nathu Lal minor S/o
Hari Ram, through his father and they are shown as proprietors of firm
M/s Madhav Prashad Agarwal. In the mortgage deed after description
of the 5 houses it is mentioned that these properties are “owned and
possessed by us”. Further it is mentioned that the properties are free
from all encumbrances and there are no other sharers, and the mortgagees       F
have full right to alienate the same. The 5 houses were accordingly
mortgaged with Seth Budhmal. This was done with a view to pay off the
loan of Krishna Ram Baldeo Bank, with which the properties were
already mortgaged. The amount which they obtained by mortgaging the
property was transferred to the Bank and fresh mortgage was created            G
in favour of Seth Budhmal. In para 5 of the mortgage deed it was
mentioned that the mortgaged property is free from all encumbrances
and, “we are the absolute owners of the same and there is no co-parcener
and co-sharer”. This mortgage deed was signed by Hari Ram, Brij Mohan,
Rameshwar Lal, Radha Krishan as mortgagors. This would indicate
that these properties were owned by them.                                      H
590             SUPREME COURT REPORTS                          [2020] 10 S.C.R.


A            16. However, there is no material on record to show that the
      properties belonged to an HUF. They may have been joint properties but
      merely on the basis of the recitals in the mortgage deed they cannot be
      said to be a joint family property. It appears that by another mortgage
      deed dated 26.11.1946, the value of the mortgaged properties was
      enhanced to Rs. 45,000/-, and in addition to the 5 houses, one oil mill at
B
      Pachhar was also mortgaged. Seth Budhmal filed a suit (Exh.P.4) against
      Hari Ram, Brij Mohan, Rameshwar Lal, Radha Krishan, Nathu Lal etc.,
      for realisation of the mortgage money under the said mortgage deed. In
      para 6 and 8 of the plaint it was averred as follows :-
            “6. That, the defendants at the time of execution of aforesaid
C           documents constituted a Trading Joint Hindu Family and of which
            all major members personally and minor members through their
            head of the branch were represented in the execution of mortgage
            deeds.
            8. That, minors mentioned in the documents have now attained
D           majority. Therefore, they have been impleaded in person as
            defendants. Their liability is limited to the extent of property of
            Joint Hindu Family and personal dealing. Defendant No.1 to 3 are
            personally and in the capacity of head of their branch are made in
            as defendants.”
E            17. A written statement was filed on 09.10.1955 (Ex.P-5) on behalf
      of the aforesaid Hari Ram, Brij Mohan, Rameshwar Lal, Radha Krishan
      and Nathu Lal, and reply to paras 6 and 8 of the mortgage deed, read as
      follows:-
            “6. That as regards paragraph 6 of the plaint there is no objection.
F
            8. That, as regards paragraph 8 of the plaint the reply is that the
            defendant No.6 is still minor. He has not attained majority. It is
            not admitted that defendant No.1 to 3 are Head (KARTA) being
            wrong, nor they are the Head, nor the mortgage transaction was
            made in such a capacity and the plaintiff has no right to sue in
G           such a manner.”
             On the basis of the aforesaid pleadings in the earlier suit it is
      submitted that Hari Ram had admitted that there was a joint family
      business when this written statement was filed and, therefore, there is
      proof that the business was a joint family business and there is no material
H     to show that this joint family status was ever disrupted.
    BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM                             591
                 [DEEPAK GUPTA, J.]

        18. It is submitted on behalf of the contesting respondent that        A
since the family members of Hari Ram were residing in the mortgaged
house, by way of abundant precaution they may have been made to sign
the mortgage deed. In our view, that may not be true because the
mortgage deed clearly reflects that all the family members including the
minors were shown to be owners of the properties by mortgaging the
                                                                               B
same. Therefore, this property which was mortgaged in the year 1944
and then re-mortgaged in 1946 would prima facie appear to be joint
property though at this stage we are not deciding whether the property
is a joint property or the property of HUF.
        19. An admission made by a party is only a piece of evidence and
not conclusive proof of what is stated therein. It is in this light that we    C
have to examine the admission made by Hari Ram and his brothers
while filing the written statement to the suit filed by Seth Budhmal. In
paragraph 6 the averment was that the defendants constituted trading
Joint Hindu Family. It is obvious that the admission was with regard to a
trading family and not HUF. In view of the law cited above, it is clear        D
that not only jointness of the family has to be proved but burden lies upon
the person alleging existence of a joint family to prove that the property
belongs to the joint Hindu family unless there is material on record to
show that the property is the nucleus of the joint Hindu family or that it
was purchased through funds coming out of this nucleus. In our opinion,
this has not been proved in the present case. Merely because the business      E
is joint would not raise the presumption that there is a Joint Hindu Family.
As far as paragraph 8 is concerned in our view there is no clear-cut
admission. The allegation made was that the minors were represented
by defendant nos. 1-3, who were head of their respective branches. In
reply to this it was stated that defendant nos.1-3 were neither the head       F
or the karta, nor the mortgage transaction was made in that capacity.
This admission cannot be said to be an unequivocal admission of there
being a joint family.
     20. In Nagubai Ammal and Ors. vs.B. Shama Rao and Ors.8
which is the locus classicus on the subject it was held as follows:-           G
         “An admission is not conclusive as to the truth of the matters
         stated therein. It is only a piece of evidence, the weight to be
         attached to which must depend on the circumstances under which

8
    (1956) 1 SCR 451                                                           H
592              SUPREME COURT REPORTS                              [2020] 10 S.C.R.


A            it is made. It can be shown to be erroneous or untrue, so long as
             the person to whom it was made has not acted upon it to his
             detriment, when it might become conclusive by way of estoppel.”9
             It would be pertinent to mention that in Himani Alloys Ltd. vs.
      Tata Steel Ltd.,10 it was also held that the admission should be categorical,
B     should be conscious and deliberate act of the party making it. As far as
      the present case is concerned we do not find any clear-cut admission
      with regard to the existence of an HUF. At best, from the recitals in the
      mortgage deed and averments in the written statement, all that can be
      said is that at the relevant period of time the property was treated to be
      a joint property.
C
             21. On the other hand, there are many other documents relied
      upon by the defendants. Out of the 6 houses, 5 were mortgaged and one
      is admittedly a dharamshala. Out of these 5 houses, 3 were sold by
      Hari Ram during his life time and during the life time of the predecessors
      of the plaintiff, nobody objected to the sales of the properties and in the
D     sale deeds Hari Ram is described as the sole owner of the property.
      One such sale deed is Exh.D-4 wherein it is mentioned that the double
      storey house is the property of the trading firm Madhav Prashad Agarwal
      and that Hari Ram is the owner of the firm and in order to repay the
      loan, sold the house to two persons. This sale deed was witnessed by
E     Seth Budhmal. Though it is not stated so in the sale deed it appears that
      the amount of consideration must have been paid to Seth Budhmal. This
      document was executed on 12.09.1967, and this read with the other two
      sale deeds clearly indicate that Hari Ram claimed that he was the sole
      proprietor of the business of the trading firm Madhav Prashad Agarwal.

F            22. These sale deeds and the recitals were never challenged by
      the plaintiff or his predecessors. This would indicate that the jointness of
      the property if any had ceased because of some family arrangement or
      partition which may have happened much earlier. We have to read the
      sale deeds in conjunction with the averments made in the plaint quoted
      hereinabove wherein the plaintiff has stated that the business came to a
G     closure and then almost all the people started carrying on their separate

      9
        This view has been consistently followed by this Court in a large number of cases
      including Bharat Singh and Anr. vs. Bhagirathi 1966 SCR (1) 606; Uttam Singh Dugal
      and Co. vs. Union of India and Ors. (2000) 7 SCC 120; Himani Alloys Ltd. vs. Tata
      Steel Ltd. (2011) 15 SCC 273.
H     10
         (2011) 15 SCC 273
     BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM                                593
                  [DEEPAK GUPTA, J.]

business. Though it is averred that the immovable properties remained              A
the properties of the joint family the fact that separate branches started
doing separate business is indicative of the fact that some separation, if
not, a formal partition had taken place between the parties.
       23. The other important document is the Will of Hari Ram (Exh.
P-3). In this Will, Hari Ram gives details of the remaining 3 houses and           B
mentions that these were owned by his father Madhav Prashad and that
he (Hari Ram) has been doing business in the name of his father Munshi
Madhav Prashad Agarwal. Out of the 6 houses, 3 had already been sold
by Hari Ram and he has bequeathed the remaining 3 houses to various
persons. It would be relevant to refer to the portion of the Will where
Hari Ram states that he had 3 cousins Brij Mohan, Rameshwar Lal and                C
Radha Krishan. Out of these, Radha Krishan died and was survived by
his widow and 3 sons and they were living in the 2nd and 3rd floor in
building No.2. Hari Ram bequeathed certain portions of the immovable
property to the widow and children of Radha Krishan. It would be
pertinent to mention that the plaintiff Bhagwat Sharan is the son of Radha         D
Krishan. He also bequeathed certain properties in favour of his cousins
Brij Mohan and Rameshwar Lal.
       24. It is also not disputed that the plaintiff and defendant nos. 1-3
herein filed suit for eviction of an occupant in which he claimed that the
property had been bequeathed to him by Hari Ram. According to the                  E
defendants the plaintiff having accepted the Will of Hariram and having
taken benefit of the same, cannot turn around and urge that the Will is
not valid and that the entire property is a joint family property. The plaintiff
and defendant nos. 1-3 by accepting the bequest under the Will elected
to accept the will. It is trite law that a party cannot be permitted to
approbate and reprobate at the same time. This principle is based on the           F
principle of doctrine of election. In respect of Wills, this doctrine has
been held to mean that a person who takes benefit of a portion of the
Will cannot challenge the remaining portion of the Will. In The Rajasthan
State Industrial Development and Investment Corporation and Anr.
vs. Diamond and Gem Development Corporation Ltd. and Anr11,                        G
this Court made an observation that a party cannot be permitted to “blow
hot and cold”, “fast and loose” or “approbate and reprobate”. Where
one party knowingly accepts the benefits of a contract or conveyance

11
     AIR 2013 SC 1241
                                                                                   H
594                SUPREME COURT REPORTS                          [2020] 10 S.C.R.


A     or an order, it is estopped to deny the validity or binding effect on him of
      such contract or conveyance or order.
             25. The doctrine of election is a facet of law of estoppel. A party
      cannot blow hot and blow cold at the same time. Any party which takes
      advantage of any instrument must accept all that is mentioned in the said
B     document. It would be apposite to refer to the treatise’ Equity-A course
      of lectures’ by F.W. Maitland, Cambridge University, 1947, wherein the
      learned author succinctly described principle of election in the following
      terms:-
                “The doctrine of Election may be thus stated: That he who accepts
C               a benefit under a deed or will or other instrument must adopt the
                whole contents of that instrument, must conform to all its provisions
                and renounce all rights that are inconsistent with it....’’
             This view has been accepted to be the correct view in Karam
      Kapahi and Ors. vs. Lal Chand Public Charitable Trust and Ors.12.
D     The plaintiff having elected to accept the Will of Hari Ram, by filing a
      suit for eviction of the tenant by claiming that the property had been
      bequeathed to him by Hari Ram, cannot now turn around and say that
      the averments made by Hari Ram that the property was his personal
      property, is incorrect.

E            26. As far as the agricultural lands are concerned the trial court
      decreed the suit in respect of the agricultural lands on the basis that
      Madhav Prashad and his brother Umrao Lal and their successors
      constituted an HUF. The said lands having been bought out of the funds
      of the HUF would be treated to be the property of the HUF, even though
      they may have been entered in the name of any other person. In view of
F     the above discussion, and the fact that we have held that the plaintiff has
      failed to prove that there is an HUF, we are not inclined to agree with
      the finding of the trial court.
            27. We now deal with each of the agricultural property separately.
      The properties described in paragraph 9(2)(a) of the plaint were earlier
G     recorded in the name of Hari Ram and later in the names of his sons
      Purushottam and Vinod. The property at paragraph 9(2)(b) was also
      recorded in the name of Hari Ram and he had given cultivation rights to
      Sri Ram who is stated to have become the owner thereof. Similarly, the
      land described in paragraph 9(2)(c) also was shown in the name of Hari
      12
H          (2010) 4 SCC 753
 BHAGWAT SHARAN (DEAD THR. LRS.) v. PURUSHOTTAM                                  595
              [DEEPAK GUPTA, J.]

Ram and this was given to Kahiya Lal on tenancy. The land described in           A
paragraph 9(2)(d) was also recorded in the name of Hari Ram and was
transferred to Shiv Charan, and now stands in the name of his legal
heirs. The land described in paragraph 9(2)(e) which stood in the name
of Hari Ram was also transferred by him in the name of his wife Rajjo
Devi in 1969.
                                                                                 B
       28. As far as the lands described in 9(2)(f) and 9(2)(g) are
concerned these lands were taken on lease by Nathu Lal, S/o Hari Ram
from the zamindar of Ashok Nagar. According to the plaintiffs these
lands were also lands of the joint family but that version cannot be believed
in view of the patta granted in favour of Nathu Lal. It may be true that
consideration for grant of patta may have been paid but there is no              C
material on record to show that this payment was made out of the funds
of HUF. It may be pertinent to mention here that the plaintiffs have
alleged that in 1951 Nathu Lal was a minor and the amount was paid by
Hari Ram. However, no proof has been led in this regard. In fact, from
the material on record it appears that Nathu Lal was about 21 years old          D
at that time. He was definitely more than 18 years old and thus not a
minor. These lands were never shown to be owned by Madhav Prashad
or Umrao Lal. It is also pertinent to mention that various parts of the
land were transferred to various other persons and these transfers were
never challenged by the plaintiff at the relevant time. It would also be
pertinent to mention that both the courts below have come to the                 E
conclusion that the plaintiffs have failed to prove that they were getting
any proceeds from the income of the agricultural land. This also indicates
that the said land was not joint.
       29. In view of the above discussion we find no merit in the appeals
filed by the appellant(s) and the same are dismissed with no order as to         F
costs. Pending application(s) if any, shall accordingly stand disposed of.


Divya Pandey                                                Appeals dismissed.

                                                                                 G




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