Delhi High Court
Devendra Shanker vs State & Anr. on 5 December, 2011
Author: V. K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 28.11.2011
Judgment Pronounced on: 05.12.2011
+ CS(OS) 985/2002
RAJENDRA SHANKER ..... Plaintiff
Through: Mr. M.M.Kalra, Advocate &
Mr. Kunal Kalra, Advocate
versus
DEVENDRA SHANKER ..... Defendant
Through: Mr. M.Z.Chaudhary &
Mr. Ashwani K.Dubey, Advocates
+ CS(OS) 1701/2006
DEVENDRA SHANKER ..... Plaintiff
Through: Mr. M.Z.Chaudhary &
Mr. Ashwani K.Dubey, Advocate
versus
STATE & ANR. ..... Defendants
Through: Mr. M.M.Kalra,
Advocate &
Mr. Kunal Kalra, Advocate
+ CS(OS) 1702/2006
DEVENDRA SHANKER ..... Plaintiff
Through: Mr. M.Z.Chaudhary &
Mr. K.Dubey, Advocate
versus
STATE & ANR. ..... Defendants
Through: Mr. M.M.Kalra,
Advocate & Mr. Kunal Kalra, Advocate
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
CS(OS) No.985/2002, CS(OS) No. 1701/2006 & CS(OS) No. 1702/2006 Page 1 of 32
V.K. JAIN, J
By this common judgment I shall dispose of all the
three Suits referred above two of which are Probate Petitions
(registered as suits) that were initially filed before the
District Judge, Delhi but were withdrawn to this Court vide
order dated 22nd August, 2005 to be tried along with the
suit CS(OS) No.985/2002. Vide order dated 6th July, 2007
all the three matters were consolidated and it was directed
that evidence will be read in all three matters.
2. Suit CS(OS) No. 985/2002 has been filed by Shri
Rajender Shanker against his brother Shri Devendra
Shanker seeking partition of the estate of their father late
Shri Damodar Dass Mathur alleged to be comprising of
house No.104, Jor Bagh, New Delhi, investments in FDRs,
Units, Shares, jewellery, goods etc. it is alleged in the plaint
that late Shri Damodar Dass Mathur died intestate on 7th
February, 1995 leaving the plaintiff and the defendant as
his class I legal heirs. It is also alleged that after the death
of Shri Damodar Dass Mathur the defendant took custody
of jewellery, household goods and documents relating to
investments made by him. It is further alleged that the
CS(OS) No.985/2002, CS(OS) No. 1701/2006 & CS(OS) No. 1702/2006 Page 2 of 32
plaintiff being co-owner is in constructive possession of the
house and has also been continuously in actual possession
of a part of that property. The plaintiff has therefore sought
a decree for partition of house No.104, Jor Bagh, New Delhi
as also the moveable properties belonging to his father late
Shri Damodar Dass Mathur. He has also sought rendition
of accounts calling upon the defendant to disclose
particulars of moveable assets of the deceased and render
accounts.
CS(OS) No. 1701/2006 is a petition filed by Shri
Davendra Shanker (defendant in Suit CS(OS) No. 985/2002)
seeking probate of the Will dated 26th April, 1994 alleged to
have been executed by late Shri R.D.Mathur (brother of his
father Shri Damodar Dass Mathur) whereas suit CS(OS)
No.1702/2006 is the petition filed also by Shri Devendra
Shanker seeking probate of Will alleged to have been
executed by his father late Shri Damodar Dass Mathur on
12th April, 1994.
3. In his objections to the petitions seeking probate,
Shri Rajender Shanker, plaintiff in suit CS(OS) No.
985/2002 disputed the Will set up by the petitioner and
claimed the same to be forged and fabricated documents. It
CS(OS) No.985/2002, CS(OS) No. 1701/2006 & CS(OS) No. 1702/2006 Page 3 of 32
has also been alleged by him that property bearing house
No.104, Jor Bagh, New Delhi as also the moveable
properties subject matter of the proceedings were properties
of the HUF comprising of Shri Damodar Dass Mathur, Shri
R.D.Mathur, Shri Devendra Shanker and he himself i.e.
Shri Rajender Shanker and therefore Shri R.D.Mathur could
not have executed the Will dated 26th April, 1994
propounded by the petitioner. In his objections to the
petition seeking probate of the Will alleged to have been
executed by late Shri Damodar Dass Mathur, it is alleged
that since the aforesaid properties were owned by the HUF
comprising of Shri Damodar Dass Mathur, Shri
R.D.Mathur, Devendra Shanker and Rajender Shanker, Shri
Damodar Dass Mathur could not have executed the Will set
up by the petitioner.
4. The following issues were framed on the pleadings
of the parties:
1.
Whether the suit of the plaintiff is barred under Order
2 Rule 2 of the CPC? - OPP
2. Whether the defendant is the owner of ground floor
and first floor of the suit property as per the Will dated
26th April, 1994 executed by late Shri R.D.Mathur and
Will dated 12th April, 1994 executed by Shri Damodar
Dass? - OPD
3. Whether the Will executed by Shri Damodar Dass and
late Shri R.D.Mathur are legal and valid and have been
executed in accordance with law? - OPD
4. Whether the plaintiff is entitled for a decree of partition
and rendition of accounts? - OPP
5. Relief.
5. In his Written Statement in suit CS(OS) No.
985/2002 Shri Devendra Shanker has taken a preliminary
objection that the suit is barred under Order 2 Rule 2 of
CPC since he has failed to sue for possession. On merits, it
is alleged that vide Will dated 12th April, 1994 late Shri
Damodar Dass Mathur had bequeathed house No.104, Jor
Bagh, New Delhi to late Shri R.D.Mathur who became its
owner on the death of Shri Damodar Dass Mathur. Shri
R.D.Mathur executed a Will on 26th April, 1994 whereby the
suit property devolved upon his (Shri R.D.Mathur‟s) wife
Smt. Sita Rani in her lifetime and thereafter ground floor,
first floor, lawn and the servant quarter fell to the share of
the defendant whereas second floor including terrace of
servant quarter and right to raise further construction fell to
the share of the plaintiff. In replication to the Written
Statement, the plaintiff sought leave of the Court to rely
upon the objections filed by him to the Wills propounded by
the defendant Shri Devendra Shanker and has alleged that
the testators did not have the testamentary capacity to
execute these Wills. It is also stated that the Testamentary
Court cannot go into the question of title with respect to
right of the testator to make a bequest since it has only to
decide whether the Will has been properly executed in terms
of requirement of law or not.
Issue No.1
6. No arguments were advanced on this issue. The
issue is therefore struck off.
7. The burden of proving that the Will was validly
executed and is a genuine document is no doubt on the
propounder of the Will. He is required to prove that the
Testator had signed the Will and had put his signature out
of his own free Will. He is also required to prove that the
Testator, at the time of execution of the Will, had a sound
disposition of mind and was in a position to understand the
nature and effect of what he was doing. If sufficient evidence
in this behalf is produced by the propounder of the Will, the
onus cast on him stands duly discharged.
Another requirement of law is that if there are
suspicious circumstances surrounding the execution of a
Will, the onus is on the propounder to explain those
circumstances to the satisfaction of the Court, before the
Will is accepted as a genuine document. The suspicious
circumstances may be many such as (i) the signature of the
Testator may be shaky and doubtful or different from his
usual signatures; (ii) the mental condition of the Testator
may be feeble and debilitated at the time of the execution of
the Will; (iii) the disposition may be such as is found to be
unnatural, improbable or unfair in the light of relevant
circumstances, such as exclusion of natural heirs without
any reason (iv) the propounder may take a prominent part
in the execution of the Will; (v) the Will may not see the light
of the day for long time; (vi) the Will may contain incorrect
recital of essential facts. Of course, the suspicious
circumstances, alleged by a person who disputes the
genuineness of the Will, ought to be real and germane and
not the imagination of a doubting mind amounting to
conjecture or mistrust.
It is also a settled proposition of law, fraud,
coercion or undue influence is alleged in execution of a Will,
the burden of proving the same would be on the person by
whom such a plea is set up. (Madhukar D. Shende v.
Tarabai Aba Shedage (2002) 2 SCC 85, Sridevi and Ors.
v. Jayaraja Shetty and Ors., (2005) 2 SCC 784.)
8. Exh. PW-1/2 in suit CS(OS) No. 1702/2006 is the
Will dated 12th April, 1994 alleged to have been executed by
late Shri Damoder Dass Mathur, father of the parties,
whereas Exh. PW-1/2 in CS(OS) No. 1701/2006 is the Will
alleged to have been executed by late Dr. R.D.Mathur on
26th April, 1994. Both the Will purport to be attested by two
common witnesses viz. Shri Rajiv Mathur and Shri Viresh
Shankar Mathur. Shri Rajiv Mathur, in his affidavit by way
of evidence, has stated that the Will by Shri Damodar Dass
Mathur was signed by him as an attesting witness.
According to him Shri Viresh Shankar Mathur was the other
attesting witness to the Will. He has stated that the Will
was signed first by the testator then by him and thereafter
by Shri Viresh Shankar Mathur and all of them signed it in
presence of each other. He has also stated that at the time
of execution of the Will the testator was in sound and
disposable state of mind. Similar deposition has been made
by Shri Rajiv Mathur in respect of Will purported to have
been executed by late Shri R.D.Mathur on 26 th April, 1994.
The deposition of Shri Rajiv Mathur has been corroborated
by the petitioner Shri Devendra Shanker who has also
identified the signature of the testators on the Wills. In his
affidavit by way of evidence Shri Rajender Shanker has
claimed that the Will set up by the petitioner are forged and
fabricated document.
9. I see no reason to disbelieve the testimony of Shri
Rajiv Mathur which could not be successfully impeached
during his cross examination. No reason has been assigned
by Shri Rajender Shanker for this witness to make a false
statement, prejudicial to his interest. The witness being the
nephew of late Shri Damodar Dass Mathur and Shri
R.D.Mathur, it was quite natural for the testators to request
him to be a witness to their Wills. This is more so when
both, Shri Devendra Shanker as well as Shri Rajender
Shanker being beneficiaries of the Will executed by them,
could not have been the attesting witness.
10. Section 73 of Evidence Act which provides that in
order to ascertain whether a signature, writing or seal is
that of the person by whom it purports to have been written
or made, any signature, writing or seal admitted or proved
to the satisfaction of the Court to have been written or made
by that person may be compared with the one which is to be
proved. It appears to me that both the signatures have been
made by one and the same person. The power of the Court
to make such a comparison was upheld in Sukhwinder
Singh & Others versus State of Punjab, 1994 (5) SCC
152, Ashok Kumar Uttam Chand Shah v. Patel Mohmad
Asmal Chanchad, AIR 1999 Guj. 108 and Satish
Jayanthilal Shah v. Pankaj Mashruwala, (1997) 2
Crimes 203 (Guj.). I have also compared the signature of
Shri R.D.Mathur with his signatures on Exh. RW-1/X2,
which is the income tax return filed by him for the
assessment year 1995-96 and Income Tax Challans Exh.
RW-1/X6 and RW-1/X7 which are the documents relied
upon by Shri Rajender Shanker himself and in my opinion
the author of the signature on the Will purported to be
executed by late Shri R.D.Mathur and the author on these
documents is one and the same person. Similarly, I have
also compared the signature on the Will purported to be
executed by late Shri Damodar Dass Mathur with the
signatures of Shri Damodar Dass Mathur on Exh. RW-1/X4
and RW-1/X5 which are income tax challans and also with
the signatures on Perpetual Lease Deed (Exh.RW-1/P1). In
my opinion, the author of signature on the Will purported to
be executed by late Shri R.D.Mathur and the author of the
signature on RW-1/X4, RW-1/X5 and RW-1/P1 are the one
and the same person.
11. There is no evidence of either late Shri Damodar
Dass Mathur or late Shri R.D.Mathur not being in sound,
disposing state of mind at the time these Wills purport to be
executed by them. No evidence has been led by the
Objector Shri Rajender Shanker to prove that either of them
was suffering from any such illness as could have impaired
their state of minds. Both of them have been signing in
English which indicates that they were well educated. In
fact late Shri (Dr.) R.D.Mathur was a doctor as is evident
from his name itself. I, therefore hold that the Will set up
by Shri Devinder Shanker stands duly proved. The issues
are decided accordingly.
12. It is not in dispute that house No.104, Jor Bagh,
New Delhi is jointly owned by both Shri Davendra Shanker
and Shri Rajender Shanker. The question for determination
is as to whether the property would devolve on them in
terms of Will executed by late Shri R.D.Mathur and Shri
Damodar Dass Mathur or it devolves on them by succession
or it devolves partly in terms of the Will and partly by
succession. If the property devolves solely in terms of the
Wills executed by late Shri R.D.Mathur and late Shri
Damodar Dass Mathur, Shri Rajender Shanker would get
only second floor including terrace of the servant quarter
whereas Shri Davindera Shanker would get ground floor
including lawn and the servant quarter as well as first floor
and in that case Shri Rajender Shanker would have full
right to make any additional construction on second floor
and above it. The land underneath the plot in that case
would be owned by Shri Davendra Shanker and Shri
Rajender Shanker in the ratio of 2:3 and 1:3 respectively.
On the other hand if the property devolves wholly by
succession, both of them will get equal share in the house,
they being the only legal heirs of late Shri R.D.Mathur.
13. Exh. RW-1/X2 is the copy of the income tax return
filed by M/s Damodar Dass Rameshwar Dayal (HUF)
through Shri R.D.Mathur for the assessment year 1995-96.
A perusal of return and the statement of income sheet
annexed to it would show that rental income from the first
floor of house No.104, Jor Bagh, New Delhi was shown as
the income of the HUF whereas the ground floor of the
house was shown as self occupied. It further shows that
the HUF also had income from certain investments,
including an FDR, debentures/bonds, shot term bonds and
the amounts lying saving bank accounts. Exh. RW-2/B are
the copies of income tax returns of M/s Damodar Dass
Rameshwar Dayal (HUF) filed through its karta Shri
Davinder Shanker, for the assessment years 2001-02, 2002-
03, 2004-05, 2005-06 and 2006-07. Income from house
property has been disclosed in the return for the
assessment year 2001-02. A perusal of statements of
income annexed to the returns for the assessment year
2004-05 and 2005-06 would show that the assessee
claimed benefit of house tax paid by it in respect of property
no. 104, Jor Bagh, New Delhi and consequently the income
from the aforesaid house was shown as „nil‟ in this year. It
would show that in these years also deduction of
Rs.52,670/- paid towards house tax and Rs.119/- paid
towards ground rent of plot No.104, Jor Bagh, New Delhi
was claimed by the assessee as a result of which there was
no net income from the aforesaid property. Same is the
position in respect of assessment year 2005-06. Income
from other sources has also been disclosed in these returns.
It would thus be seen that the income from house No.104,
Jor Bagh, New Delhi was being shown as income of M/s
Damodar Dass Rameshwar Dayal (HUF) not only in the
lifetime of Shri R.D.Mathur but even after his death. Shri
Davinder Shanker himself has been claiming benefit of the
house tax and ground rent paid in respect of property house
No.104, Jor Bagh, New Delhi in the income tax return of the
aforesaid HUF which he filed as its karta.
14. The concept of blending the self-acquired property
of the coparcener of a joint Hindu family with his self-
acquired property or throwing it into a common stock of the
HUF is an established doctrine of Hindu Law, duly
recognized by Courts in a number of cases. In Rajanikanta
Pal v. Jagmohan Pal: AIR 1923 PC 57, Privy Council held
that where a member of a joint Hindu family blends his self-
acquired property with property of the joint family, either by
bringing his self-acquired property into a joint family
account, or by bringing joint family property into his
separate account, the effect is that all the property so
blended becomes a joint family property. In Mallesappa
Bandeppa Desai and Ors. vs. Desai Mallappa and Ors.
AIR 1961, Supreme Court, 1268, Supreme Court, inter alia,
observed as under:-
"The rule of blending postulates
that a coparcener who is
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 coparcenary property.
There can be no doubt that the
conduct on which a plea of
blending is based must clearly
and unequivocally show the
intention of the owner of the
separate property to convert his
property into an item of joint
family property. A mere intention
to benefit the members of the
family by allowing them the use of
the income coming from the said
property may not necessarily be
enough to justify an inference of
blending; but the basis of the
doctrine is the existence of
coparcenary and coparcenary
property as well as the existence
of the separate property of a
coparcener."
In this regard, Supreme Court in Goli Eswariah v.
Commissioner of Gift Tax, Andhra Pradesh: AIR 1970 SC
"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
coparcener 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. As soon as
he declares his intention to treat
his self acquired property as that
of the joint family, 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.
No formalities are required in order to place the
self-acquired property into the common hotchpotch of the
HUF and the question in each case is of the intention on the
part of owner on separate property as to whether he
intended to abandon his separate right and give it the
property a character of joint family property. Each case
has to be considered having regard to its individual facts
and surrounding circumstances.
15. It was contended by the learned Counsel for Shri
Davendra Shanker that there is no evidence of the existence
of any HUF. In this regard he has relied upon the
deposition of Shri Rajender Shanker wherein he stated that
he did not remember whether he was a member of the HUF
or not and whether he signed any paper as a member of the
HUF or not. It was further contended by the learned
Counsel for Shri Davendra Shanker that even if existence of
any such HUF is believed, the income tax return would only
show that late Shri Damodar Dass Mathur and Shri
R.D.Mathur have been treating the rental income from the
house as the income of the HUF and there is no evidence of
the property itself having been thrown into the hotchpotch
of HUF. In my view, the contention has no merit. The
existence of HUF though disputed by Sh. Davendra Shankar
in the pleadings, M/s Damodar Dass Rameshwar Dayal
stands proved from the documents, authenticity of which
cannot be disputed. This is not the case of Shri Davendra
Shanker, anywhere during his deposition in the Court that
the income tax documents purported to be signed by Shri
(Dr.) R.D.Mathur did not bear their signatures and that the
purported signatures on these documents have been forged.
More importantly, this is not his case that the income tax
returns for the years 2001-02, 2002-03, 2004-05, 2005-06
and 2006-07 were not filed by him or his signatures on
these documents have been forged. The fact that Shri
Davendra Shanker himself kept on filing income tax returns
in the name of M/s Damodar Dass Rameshwar Dayal (HUF)
leaves no reasonable doubt about the existence of the HUF
and therefore I hold that there was an HUF under the name
and style of M/s Damodar Dass Rameshwar Dayalk which
continued not only after the death of Shri Damodar Dass
Mathur but also thereafter. The case of Shri Rajender
Shanker is that the aforesaid HUF comprised of Shri
Damodar Dass Mathur, Shri R.D.Mathur, he himself and
his brother Shri Davendra Shanker. This is nowhere the
case of Shri Davendra Shanker either in the pleadings or in
his deposition in the Court that the HUF comprised only
Shri Damodar Dass Mathur, Shri R.D.Mathur and he
himself. He denies the very existence of such an HUF at
any point of time.
16. As regards the contention that property house
No.104, Jor Bagh, New Delhi was never thrown into the
hotchpotch of HUF, though there is no direct evidence of the
aforesaid property having been thrown into the hotchpotch
of HUF, the documentary existence in the form of ITR
Returns clearly shows that it was actually thrown into the
hotchpotch of the HUF and was treated as an HUF property.
This is not the case of Shri Davendra Shanker either in the
pleadings or during his deposition in the Court that late
Shri R.D.Mathur and Shri Damodar Dass Mathur had only
treated the rental income from house No.104, Jor Bagh,
New Delhi as HUF property, with a view to save tax or to
give a limited benefit with respect to sharing of rental
income with other coparceners, without throwing the
property into the hotchpotch of HUF. Therefore, contention
to this effect, raised during the course of arguments, cannot
be accepted having no basis either in pleadings or in the
evidence of the parties. The income tax returns give no
indication that only the rental income was being treated as
HUF property without throwing the house itself into the
common hotchpotch of HUF. It would be pertinent to note
here that during the accounting years 2001-02, 2002-03,
2004-05, 2005-06 and 2006-07 (Exh. RW-2/A) to which the
returns were filed by Shri Davinder Shanker, there was no
actual rental income from house No.104, Jor Bagh, New
Delhi as is evident from the statement of income annexed to
the returns. Despite that benefit for the house tax and
ground rent paid during these years was claimed in the
income tax returns for these years. Had this property not
been thrown into the hotchpotch of HUF there would have
been no reason to take benefit of these payments in the
income tax returns of the HUF even during the years when
there was no rental income of the house.
17. In Gundlappli Mohan Rao and others, vs.
Gundlapalli Satyanarayana and Ors. AIR 1972, Andhra
Pradesh, 233, the first defendant who was the father of the
plaintiff and defendants No. 2 and 3 had filed income-tax
returns for two years showing the status of the family as
HUF. The declaration, however, was not accepted by the
Assessing Authority who assessed the first defendant as an
individual. It was claimed by the first defendant that a
statement made by him for the purpose of income-tax
returns cannot be taken as an unequivocal declaration of
his intention to impress business in question with the
character of a joint family property. Rejecting the
contention, the High Court observed that it was not a case
where declaration was made on ignorance of true position or
with the sole object of evading payment of higher income-
tax. Noticing that no explanation had been offered by him as
to why he had to make such a declaration not once, but in
two years if he did not really intend to impress the property
with the character of a joint family or coparcenery property,
the Court held the business to be a joint family property.
Noticing that this was not the case of the first
defendant that he had made the declaration with a view to
gain any advantage or for the reason that he was ignorant of
true position, the High Court observed that nothing
prevented him from putting forward such a defence and
considering his conduct, coupled with the statement made
by him, in the income-tax returns, it was a case of
abandoning the interest in the self-acquired property and
impressing it with the character of a joint family property.
Thus, despite the income-tax declaration having been not
accepted by the Assessing Officer, the High Court was of the
view that the first defendant had blended his self-acquired
property with that of the joint family property.
In the case before this Court, as noted earlier, there is
no evidence or even averment that late Shri Damodar Dass
Mathur /Dr R.D. Mathur had disclosed the income from
house No. 104 Jor Bagh, New Delhi with a view to earn
some income-tax benefit, without intending to blend the
property with the property of the joint family. The case set
up by Shri Davendra Shanker, on the other hand, is that
there was no HUF at all. Moreover, as noted earlier, Shri
Davendra Shanker himself has been claiming benefit of
house tax and ground rent paid in respect of this property
in the income-tax returns which he filed as the Karta of the
HUF, even after death of Shri Damodar Dass Mathur /Dr
R.D. Mathur.
In Pearey Lal Vs. Nanak Chand and Ors., AIR 1948
Privy Council, 108, the business of the father was assessed
to income-tax as a joint family business. There was no
explanation from the father as to why the business was got
assessed as joint family business. On a claim by the son
seeking partition of the business, Privy Council observed as
under:-
"Among these there is nothing
equal in importance to the
respondent's testimony in his
examination in chief that the
cycle business was assessed to
Income Tax as a joint Hindu
family business and that the
assessment notices were in the
appellant's possession. He was
not cross-examined on these
statements and he was not
contradicted. All that the
appellant said about them is that
the business had been assessed
for twenty years and that he had
not been keeping, the notices
received from the Income Tax
department. The necessary
conclusion is that the business
was assessed as a joint family
business. That may not be
conclusive in favour of the
respondent, because there might
be an advantage to the appellant,
though he was the true-owner of
the business, in having it
assessed to Income Tax as a joint
family concern. But as no-
explanation has been offered by
the appellant, the fact that the
assessment was made on the joint
family goes far to establish the
respondent's case."
18. It cannot be disputed that a necessary pre-
condition for application of the doctrine of blending is the
existence of coparcenery property. This doctrine postulates
that the owner of a separate property has a coparcenery
having an interest in the coparcenery property and desires
to amalgamate that property with the coparcenery property.
This is not the case of Shri Davendra Shanker that
Damodar Dass Rameshwar Dayal HUF had no other
property at all and, therefore, there was no occasion to
blend house No. 104 Jor Bagh, New Delhi with the common
property of the HUF. No such plea has been taken either in
the pleadings or in the deposition of Shri Davendra
Shanker. Moreover, a perusal of the income-tax return of
the HUF for the assessment year 1995-96 would show that
the HUF owned properties other than house No. 104, Jor
Bagh, New Delhi though they were not immovable
properties. The HUF had fixed deposits, debentures, bonds
as well as amounts lying in Saving Banks account.
Therefore, it cannot be said that no property of the joint
family was available for amalgamating house No. 104, Jor
Bagh, New Delhi with that property. It would be pertinent
to note here that blending does not require any physical
mixing of the self acquired property with the jointly held
property, the requirement being only to abandon the
individual right in the self-acquired property and share that
right with the properties of the HUF.
19. It was also contended by the learned Counsel for
Shri Davendra Shanker that in the plaint of CS(OS) No.
985/2002, Shri Rajender Shanker has not pleaded that
house No.104, Jor Bagh, New Delhi was thrown into the
hotchpotch of M/s Damodar Dass Rameshwar Dayal (HUF)
or was otherwise the property of HUF and therefore evidence
produced by him in this regard needs to be excluded from
consideration. I do not find merit in this contention. It is
true that in the plaint of suit CS(OS) No. 985/2002 Shri
Rajender Shanker did not plead either the existence of any
such HUF or house No.104, Jor Bagh, New Delhi being the
property of an HUF, but, in his objections to the Probate
Petitions, which he filed on 30th May, 2003, Shri Rajender
Shanker specifically alleged that property house No.104, Jor
Bagh, New Delhi as also other moveable properties refused
in petitions were properties of HUF comprising of he
himself, Dr. R.D.Mathur Shri Damodar Dass Mathur and
Shri Davendra Shanker and therefore, Shri Damodar Dass
Mathur and Shri R.D.Mathur could not have executed the
Wills propounded by the petitioner. In his replication in
CS(OS) No. 985/2002 Shri Rajender Shanker in para 01 of
the reply of preliminary objections referred to the objections
filed by him in Probate Petitions sought leave of the Court to
rely on those objections. He specifically alleged that the
testators did not have the testamentary capacity to execute
the Will and the Testamentary Court cannot go into the
question of title with respect to right of the testator to make
a bequest and it is the Civil Court alone which has full
jurisdiction to go into all questions, including testamentary
capacity of the testator. Obviously, by testamentary
capacity the plaintiff Shri Rajender Shanker meant the title
of Shri Damodar Dass Mathur and Shri R.D.Mathur with
respect to the properties which were subject matter of the
Wills executed by them. Thus, by incorporation Shri
Rajender Shanker has in the pleadings of suit CS(OS) No.
985/2002 pleaded not only existence of HUF, but also that
he, Shri Davendra Shanker, late Shri Damodar Dass
Mathur and late Shri R.D.Mathur were the members of that
HUF and house No. 104, Jor Bagh, New Delhi was the
property of that HUF. It would, therefore, not be
appropriate to say that evidence with respect to existence of
an HUF and the property being owned by HUF is beyond the
pleadings of the parties.
20. For the reasons given in the preceding paragraphs
I am of the considered view that house No.104, Jor Bagh,
New Delhi was thrown into the hotchpotch of HUF M/s
Damodar Dass Rameshwar Dayal consisting of Shri
Damodar Dass Mathur, Shri (Dr.) R.D.Mathur, Shri
Rajender Shanker (plaintiff in suit CS(OS) No. 985/2002)
and Shri Davendra Shanker, defendant in the same suit.
All of them had 1/4th share each in the aforesaid house.
Consequently, Shri Damodar Dass Mathur could have
bequeathed only 1/4th share in property house No.104, Jor
Bagh, New Delhi to Shri R.D.Mathur. The Will dated 12th
April, 1994 executed by him therefore would operate only to
the extent of 1/4th share in house No.104, Jor Bagh, New
Delhi. Shri R.D.Mathur who being a member of the HUF
also had 1/4th share in the aforesaid house thus, became
owner of half share in this house since 1/4th share in the
house was bequeathed to him by his brother Shri Damodar
Dass Mathur. The Will, executed by Shri R.D.Mathur,
therefore would operate to the extent of half share in
property house No.104, Jor Bagh, New Delhi. Since, being
members of HUF Shri Davendra Shanker and Shri
Rajender Shanker had 1/4 th share each in the aforesaid
house, their respective share in the house, on death of Shri
Damodar Dass Mathur and Shri R.D.Mathur would be as
follows:
(a) Undivided half of the ground floor, first
floor, lawn and servant quarter falls to
the share of Shri Davendra Shanker in
terms of Will executed by late Shri
R.D.Mathur. Since he owns 1/4th
share in the property in his capacity as
a member of the HUF, he now has a
total of 3/4th share in the ground floor,
first floor, lawn and servant quarter of
the house, whereas the remaining 1/4th
share in these portions of the property
comes to the share of Shri Rajender
Shanker.
(b) Half share in the second floor and
terrace of the servant quarter fell to the
share of Shri Rajender Shanker in
terms of the Will executed by late Shri
R.D.Mathur. Since he also had 1/4th
share in the property as a member of
the HUF his share in the second floor
and terrace of the servant quarter now
comes to 3/4th. He also has 3/4th share
in the right to make additional
construction permissible under the law
on the second floor and above it as well
as on the terrace of the servant quarter.
The remaining 1/4th share in the
aforesaid portions of the property
including 1/4th share in the right to
make additional construction now
belongs to Shri Davendra Shanker.
No arguments have been advanced, with respect to
any movable property and, therefore, no order needs to be
passed with respect to any movable property. The issues
are decided accordingly.
ORDER
In view of my findings on the issues, Probate of the
Will dated 12th April, 1994 executed by late Shri Damodar
Dass Mathur and Probate of the Will dated 26 th April, 1994
executed by late Shri (Dr.) R.D.Mathur with copy of the Will
annexed to it be issued to Shri Davendra Shanker,
petitioner in suits CS(OS) No. 1701/2006 and 1702/2006
and defendant in suit CS(OS) No. 985/2002. A preliminary
decree of partition is passed declaring the share of Shri
Davendra Shanker and Shri Rajender Shanker in property
house No.104, Jor Bagh, New Delhi as under:
a) Shri Devendra Shanker has 3/4th share in
the ground floor, first floor, lawn and
servant quarter, whereas Shri Rajender
Shanker has 1/4th share in these
portions.
b) Shri Rajender Shanker has 3/4th share in
the second floor of the property as also on
the terrace of the servant quarter. He
also has 3/4th share in the right to raise
construction on the second floor and
above it as well as on the terrace of the
servant quarter. Shri Davendra Shankar
has 1/4th share in these portions of the
house as well as in the right to raise
additional construction in the property.
Shri Naresh Chand Garg, an officer of this Court,
is appointed as Local Commissioner to suggest the partition
of house No.104 Jor Bagh, New Delhi by metes and bounds.
His fee is fixed at Rs.50,000/- which shall be contributed by
the parties in equal share. He shall be at liberty to take
help of an architect to assist him in giving report in terms of
this order and if an architect is engaged by him, his fee
would also be shared equally by the parties. The Local
Commissioner will submit his report to the Court within 08
weeks from today. The parties shall be at liberty to apply
for passing of final decree after the report of the Local
Commissioner is submitted.
(V.K. JAIN)
JUDGE
DECEMBER 05, 2011
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