Indranarayan Vs. Roop Narayan & ANR
 INSC 154 (7 May 1971)
CITATION: 1971 AIR 1962 1971 SCR 796
Hindu Joint family-Member separating
from-Presumptions and proof.
Transfer of Property-Gift-Amounts deposited in
fixed deposits in joint names of father and son-Property of father-If and when
gift in favour of son can be inferred.
The appellant filed a suit against the first
respondent for partition of their deceased father's properties. The suit was
partly decreed by the High Court in appeal. Both parties appealed to this
Court. The first respondent contended inter alia that: (1) the appellant had
separated himself from the family as far back as 1936 and therefore was not
entitled to any share; and (2) the amounts of the fixed deposits in a Bank and
a Company had been gifted away to him by the father since the father, a few
days before his death, instructed the Bank and the Company to transfer the
fixed deposit amounts from his single name to the joint names of himself and
the first respondent.
HELD:(1) The law presumes that the members of
a Hindu family are joint, a presumption which is stronger in the case of a
father and his sons, and it is for the party who pleads that a member of the
family had separated himself to prove it satisfactorily. For the existence of a
joint family, the family as such need not possess any property since it is not
property, but relationship, that knits the members of a family together.
In the present case, the appellant, the first
respondent, and their father were members of a joint family, though the family
possessed no property, all the properties being the self-acquired properties of
the father. There was a great deal of disagreement between the appellant and
his father, the former expressing now and then that he was not, interested in
his father's estate, and the latter threatening to disinherit the appellant.
But apart from such mere emotional outbursts there was no evidence at all to
show that he had at any time made any unequivocal declaration that the
appellant had separated himself from his family nor had he communicated any
such intention to separate himself either to the karta or to any of the members
of the family. [804E-G] (2) (a) There was no evidence to show the genuineness
of the letters alleged to have been written by the father requesting the Bank
and the Company to transfer the deposits in his name to the joint names of
himself and the first respondent.
(b) But even if such letters were in fact
written by the father, there was no evidence of the general intention on the
part of the father to give those amounts exclusively to the first respondent.
In fact about two months before his death the father executed a will
disinheriting the appellant but revoked it very soon thereafter. Therefore a
mere direction to the bank to put the amounts in the joint names to himself and
the 797 first respondent given by the father when he was seriously ill might be
only a prudent step for facilitating collection, and does not show an intention
to make over the amounts to the first respondent. Since the father continued to
be the owner till his death and there was nothing to show that the father
intended that the amounts should go to the first respondent exclusively and in
pursuance of such an intention transferred the deposits to the joint names of
himself and the first respondent, there was neither a gift nor an advancement.
[807F.] Guran Ditta v. Ram Datta, I.L.R. 55 Cal. 944(P.C.) Pandit Shambhit Nath
Shivpuri v. Pandit Pushkar Nath, L.R. 71 I.A.
197, Young Sealey,  1 All. E.R. 92,
Mrs. Avis Fitzalah Cowdrey v. Imperial Bank (1)If India, A.I.R. 1956 Mad. 56
and Dalvi Nagarajamma v. State Bank of India, A.I.R.
1962 A.P. 260, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 1096 and 1097 of 1969.
Appeals from the judgment and decree dated
March 24, 1964 of the Madhya Pradesh High Court, Indore Bench in first appeal
No. 36 of 1959.
M.V. Paranjpe, K. Rajendra Chodhary and K. R.
Chaudhuri, for the appellant (in C. A. No. 1096 of 1969) and the respondent (in
C.A. No. 1097 of 1969).
S.T. Desai, B. Datta, P. C. Bhartari and J.
B. Dadachanji, for the respondents (in C.A. No. 1096 of 1969) and appellants
(in C.A. No. 1097 of 1969).
The Judgment of the Court was delivered by Hegde
J,-These appeals arise from a partition suit between two brothers. The
plaintiff is the cider brother and the 1st defendant is his younger brother.
The second defendant is the wife of the 1st defendant. The plaintiff and the
1st defendant are the sons of Dr. Sudarshan Pandit, a medical practitioner who
practised at Indore. Dr. Pandit had extensive practice. He died on April 6,
1949 leaving behind him extensive properties. His wife had died in 1918. Dr.
Pandit had three daughters. We are not
concerned with them in this case. The contest is mainly between the plaintiff
and the 1st defendant. There is also a dispute as regards the ownership of a
deposit of Rs. 50,000 made by Dr. Pandit in the name of the second defendant.
The contention of the 1st defendant was that
the plaintiff had separated himself from the rest ;of the family as far back as
1936 and therefore he is not entitled to any share in the suit properties.
Further he took the plea that deposits of Rs. 41,000 in the Bank of Indore and
Rs. 50,000 in Binod Mills which stood in the name of Dr. Pandit till about the
third week of March, 1949 had been gifted to him.
According to him Dr. Pandit 'gifted the 798
four deposits totaling Rs. 41,000 in the Bank of Indore on March 25, 1949 and
the deposit of Rs. 50,000 in the Binod Mills on March 30, 1949. The deposit of
Rs. 50,000 made by Dr. Pandit in the name of the second defendant was claimed
by the second defendant as her exclusive property. She claimed that amount as a
gift from her father-in-law.
The properties with which we are concerned in
this suit have been held to be the self-acquired properties of Dr. Pandit.
That finding was not questioned before us.
The trial court dismissed the plaintiff's
suit on the sole ground that he had separated himself from his father as far
back as 1936 whereas the 1st defendant continued to be joint with his father.
It held that as he was separate from his father the plaintiff had no right in
the properties left behind by Dr. Pandit. In appeal the High Court substantially
reversed the decree of the trial court. The High Court came to the conclusion
that there was no evidence to show that the plaintiff had separated himself
from the family. It also came to the conclusion that the deposits of Rs. 91,000
referred to earlier are the properties of the joint family and hence divisible.
But it upheld the claim of the 1st defendant in respect of a sum of Rs. 25,000
which had been made over to him by his father on March 21, 1949.
In respect of the deposit of Rs. 50,000 in
the name of the second defendant, the High Court came to the conclusion that it
was her exclusive property. The 1st defendant has appealed against the High
Court's decree to the extent it went against him and the plaintiff has appealed
against the finding of the High Court that the sum of Rs. 25,000 given to the
1st defendant on March 21, 1949 is his exclusive property. He also challenged
the finding of the High Court that the deposit of Rs. 50,000 in the name of the
second defendant is her exclusive property. Both the appeals were brought on
the strength of the certificates issued by the High Court.
Dr. Pandit originally hailed from Jaora, an
He practised at Indore. He had extensive
practice in Central India. He lost his wife in 1918 leaving behind her three
daughters and two sons. The eldest son, the plaintiff in this case was hardly 7
years old when his mother died and the younger son was three years' old. Dr.
Pandit appears to have been extremely anxious that his eldest son should step
into his shoes and should become an eminent medical practitioner. In 1927, he
took the plaintiff, when hewas hardly 16 years old to England and put him to
school.. He gave him liberal allowance in the initial stages. It appears from
the record that he was sending him annually about pound 300. Unfortunately the
plaintiff did not make much progress 799 799 in his studies. Dr. Pandit was
disappointed. The evidence discloses that at first he tried to induce the
plaintiff to work hard. But the plaintiff showed no progress. It is clear from
the correspondence that passed between the father and the son that the father
was feeling that the son was not applying himself seriously to the studies but
the son was feeling that he is being goaded to do something for which he was
not cut out. Gradually Dr. Pandit began to adopt a stiffer attitude towards the
plaintiff. He was apprehending that his dreams were not coming true, but he was
not prepared to retrace his steps. Evidently he thought that what he could not
achieve by persuasion, he could do by adopting a stiffer attitude. Thereafter
the letters that he wrote to the plaintiff were couched in rude language. He
went on calling the plaintiff a waster, one lacking in efforts and in short a
wholly useless character. It is clear from his letters that Dr. Pandit was
under the impression that the plaintiff was lacking in efforts and he could
make him to put in his best by an extra doze of rudeness. Plaintiff's reactions
to his father's biting letters was one of bitterness and hostility. He wrote to
his father that he was a tyrant and that he was lacking in affection. He called
him a worshipper of Mammon. He attributed his failures to his father's
unkindness. The correspondence that passed between Dr. Pandit and the plaintiff
from 1936 to 1940 make a very sad reading. There is no doubt that Dr. Pandit
was an affectionate father. His one all absorbing ambition was that his soil
should excel him. Things did not work out in the way he wanted. 'But he was not
the person to reconcile him to the inevitable and chalk out a new path for his
son. His obsession of making his son a good medical practitioner was such that
he just ignored the realities and went ,on driving the plaintiff to
desperation. The plaintiff was an obstinate type. He was blind to his father's
affection' He appears to have been unduly touched by his father's harsh words.
Possibly because of want of parental affection in the formative period of life
he was insolent, resentful and insulting to his father. He repeatedly wrote to
his father that his life was blasted by him. There is no doubt that the
plaintiff was a highly sensitive type. He was no less rude. than his father.
It is unnecessary to refer in detail to the
various letters that passed between the father and the son which have been
produced into court. In the. initial stages Dr. Pandit was sending to his son
about pound 300 a year. Later on he cut it down to pound 200 a year. Evidently
Dr. Pandit thought that if the allowance of his son is cut down, he would give
'more attention to his studies. But that circumstance again appears to have had
an adverse effect. The plaintiff, wasevidently, unable to make two ends meet
with the allowance that he %us getting. From his letters it isclear that
thereafter he was more worried about his day today living than 800 his studies.
He began to send cables after cables to his father asking for more remittances
but the father continued to be strict. Obviously Dr. Pandit was a very strong
willed man. On March 6, 1936, Dr. Pandit in his letter (Ex. D122) to the
plaintiff wrote thus :
"You may return you may not return has
nothing to do with me. But on your return you cannot stay so long as I live in
our family and wish to disinherit you from all your claims in future from what
little share you could have-." It is seen from that letter that the
plaintiff had asked his father to give him at least an allowance of pound 4/6
S. a week. In 1936 Dr. Pandit made it clear to the plaintiff that he would provide
him with funds only for three more years to complete his studies and thereafter
all remittances would be stopped. The correspondence between Dr. Pandit and the
plaintiff between 1936 to 1940 show that the war of words between the father
and the son continued. Even after 1936 the plaintiff made little progress in
his studies. In 1940 Dr. Pandit wanted the plaintiff to come back from England
and for that purpose he deposited With Thomas Cook & Co., sufficient amount
for his passage home with instructions to them not to pay that amount to the
plaintiff but only to provide him with the passage. The plaintiff refused to
return to India. Thereafter Dr. Pandit is said to have stopped remittances to
the plaintiff. But remittances to the plaintiff were made by the 1st defendant
as well as by his sister Dr. Shanti Kamath. There is reason to believe that
those remittances were made in the names of the 1st defendant and Dr. Shanti
Kamath by Dr. Pandit himself. Ultimately the plaintiff came back to India in
1948. At that time the 1st defendant was working at Kolhapur. The plaintiff did
not go to Indore where his father was living but he went to Kolhapur where his
brother was stationed. Thereafter he got a job in Calcutta andhe went to
Calcutta. The plaintiff's relationship with the 1st defendant and his sisters were
extremely cordial as.
disclosed by the letter$ that passed between
the plaintiff and the 1st defendant and his sisters. When the plaintiff
returned to India evidently Dr. Pandit was very anxious to meet him but he was
unwilling to show to his son that he was the first to yield. He wanted that the
plaintiff should repent and make amends. The plaintiff was too arrogant a
person to submit to his father. The first defendant, evidently at the instance
of his father tried to induce the plaintiff to meet his father. He wrote to him
to say that mistakes had been 'made by both sides and the time has come for
both of them to forget the past. But the plaintiff was not sure that his father
had softened. He wanted to be satisfied that his father had in fact repented for
his folly. When things stood thus Dr. Pandit fell ill with an 801 attack of
Cancer of the lungs. He was shifted to Bombay for treatment in February 1949.
The 1st defendant informed this fact to the plaintiff. The plaintiff took leave
and went to Bombay and was by the side of his father till his father was in
Bombay. In the middle of March 1949, the Doctors at Bombay advised the
relations of Dr. Pandit that his end was near and it was best that they shifted
him to Indore. Dr. Pandit was removed to Indore on March 14, 1949. The
plaintiff, the 1st defendant and the other relations of Dr.
Pandit went along with him. The plaintiff
remained in Indore till about the last week of March and then returned to
Calcutta. The condition of Dr. Pandit deteriorated day by day and he passed
away on the early morning of April 6, 1949. The High Court was of the opinion
that when the plaintiff was at Indore during the illness of his father he was
treated as the paraiah of the family and it was because of that reason he did not
come back to Indore after the death of his father.
At Indore Dr. Pandit remained in a Nursing
Home till his death. Before proceeding to set out what happened at Indore
between the 14th of March and 6th of April, 1949, it is necessary to refer to
one circumstance. On February 21, 1949, Dr. Pandit executed a Will and
registered the same at Indore (Ex. P-13) under which he bequeathed to each of
his daughters Rs. 60,000 and the residue to the 1st defendant.
There is evidence to show that ever since he
executed the Will, Dr. Pandit was uneasy in mind and repenting. He was anxious
to revoke that Will. When he was in Bombay he got a revocation deed prepared by
a solicitor and executed it. He was not prepared to leave it unregistered. He
insisted that it should be registered and it was registered, This conduct of
his shows that despite the fact that he was wholly dissatisfied with the
conduct of the plaintiff, he was not prepared to cut him off. This shows the
innate affection of Dr. Pandit to his obstinate and wayward son, despite his
seeming hostility towards him. The 1st defendant's explanation that the Will in
question was brought about by the father-in-law of one of the widowed daughters
Pandit has not been accepted by the High,
Court nor are we convinced about It.
After Dr. Pandit was shifted to Indore many
things happened in quick succession. Everybody knew that Dr. Pandit's end was
near. His condition was deteriorating day by day.
Medical evidence adducedin the case shows
that there was gradual deterioration in the physical as well as in the mental
condition of Dr. Pandit. R. D. Joshi (D.W. 8) owed Dr. Pandit a sum of Rs.
25,000. It is said that Dr. Pandit wanted Joshi to return that money. On the
21st March 1949 Joshi gave him a cheque for Rs. 25,000. That she was sent to
the Bank of Indore for being cashed and credited to the account of Dr. Pandit.
On the same day Dr. Pandit issued a. cheque for Rs. 25,000 in favour of the
51-1 S. C. India/71 802 1st defendant. On that very day the first defendant opened
an account in the Bank of Indore and credited the amount covered by the cheque
into his account and thereafter on that day itself he issued a cheque for Rs.
15,000 to R. D. Joshi.
Dr. Pandit had four different fixed deposits
covering a sum of Rs. 4 1,000 in the Bank of Indore. On March 25, 1949, it is
said that Dr. Pandit wrote to the Bank of Indore to transfer all those fixed
deposits to the joint names of himself and the 1st defendant. We were told that
that direction was carried out. Dr. Pandit had a fixed deposit of Rs. 50,000 in
the Binod Mills Ltd. A letter was said to have been sent to the said Mills by
Dr. Pandit on March 30, 1949 requesting the Mills to transfer the fixed deposit
to the joint names of Dr. Pandit and the 1st defendant.
In 1948, Nawab of Jaora gave to Dr. Pandit
who was his family physician a sum of Rupees one lakh. Out of that he deposited
a sum of Rs. 50,000 in the name of his daughter-in-law, the second defendant
and the balance of Rs. 50,000 he deposited in his own name. According to the
evidence of the second defendant, she had accompanied her father-in-law to
Jaora when the amount in question was received. After the receipt of the amount
her father-in-law gave her Rs. 50,000 but she left that amount with him
requesting him to invest the same. Accordingly Dr. Pandit deposited that sum in
her name and informed her about that fact by means of a letter and sometime
thereafter when he went to Kolhapur, he gave that deposit receipt to her.
After the death of Dr. Pandit, 1st defendant
wrote several letters to the plaintiff informing him about the state of affairs
at Indore. He wrote to him about the various details connected with the affairs
of the household but he did not inform him about the transfer of the deposits
mentioned earlier. From those letters it is clear that the 1st defendant was
keeping his brother informed about the family affairs. it appears that sometime
after the death of his father, the plaintiff came to know that the 1st defendant
was claiming that his father had left a Will bequeathing all his properties to
him. It is likely that this information was given to him by his brother-in-law
Kamath who was also stationed at Calcutta 'Me plaintiff was quite indifferent
about the matter. At that stage his mood was such that he did not care to have
even a "brass-button' from his father's estate But yet he, was curious to
know whether in fact his father had left a Will. In about the end of May 1949,
the 1 st defendant sent a copy of the alleged Will to the plaintiff but the plaintiff
was anxious to see the original Will. evidently with the lapse of time, the
plaintiff began to take more interest in his father's estate. In June 1949, the
1st defendant and the second defendant went to Calcutta and showed to the
plaintiff the Will alleged to have been executed by Dr. Pandit. The ist
defendant was insistent that the plaintiff should execute a deed of
relinquishment but the plaintiff refused to walk into the trap. On April 4,
1950, the plaintiff caused a lawyer's notice to be issued to the 1st defendant
requiring him either to get the alleged Will of his father probated or refer
the matter to the arbitration of some disinterested person. To this notice the
1st defendant caused a reply to be sent on May 10, 1950.
The material portion of that reply reads
"My client firmly relies on the Will
made by his father. The original document has been inspected by Mr. 1. N.
Pandit. He has had opportunity of satisfying himself that the Will bears the
signature of the late Dr.
Pandit. It is attested by respectable persons
who could have no motive in conspiring to benefit my client. Under the
circumstances the effort in your letter to throw doubt on the genuineness of
the Will has no point. The late Dr. Pandit dealt with his cash and the Bank account
subsequent to the making of the Will and consistently with his intention to
exclude Mr. 1. N. Pandit which is writ large on the document." It is
necessary to notice that in May 1950 i.e. about a year after the death of Dr.
Pandit, the stand taken by the 1st defendant was that he was entitled to the
entire estate left by Dr. Pandit because of the Will left by Dr. Pandit. In the
registered reply notice, there is no reference to the separation of the
plaintiff from the family ; nor is there any reference to the gifts later on
put forward by the 1st defendant.
The plaintiff filed the suit from which these
appeals arise on April 12, 1951. The 1st defendant filed his written statement
on September 16, 1951. In this written statement, there is no reference to the
Will left by Dr. Pandit. The alleged Will completely disappeared from the
scene. On the other hand the 1st defendant took the plea that the plaintiff is
not entitled to any share in the properties left by Dr. Pandit as he had
separated himself from Dr.Pandit as far back as 1936. The other plea taken up
by him was that by transferring the fixed deposits that were standing in Dr.
Pandit's name to the joint names of Dr. Pandit and himself Dr. Pandit made a
gift of the amounts covered by those deposits to him and therefore he is
exclusively entitled to those amounts. The second defendant claimed that the
deposit made by boar fatherinlaw in her name was a gift to her. At this stage
we may mention that the alleged Will of Dr. Pandit was not produced into court.
As seen earlier in his reply to the
registered notice the 1st defendant had asserted that the Will had been signed
by Dr. Pandit and attested by respectable witnesses. But when cross. ,examined
about that will the 1st defendant first stated that it was 804 only a draft.
When pressed further he stated that it was pencil draft with numerous erasions
but all the same signed by Dr. Pandit and attested by respectable witnesses.
There is hardly any doubt that the story of the Will is a faked one. It was evidently
a ruse to get a relinquishment deed from the plaintiff who was at one time
indifferent about his share in his father's estate. But the story of the said
Will has great significance when we come to examine the defence put up by the
The first question that has to be decided is
whether there was a separation between the plaintiff and the members of his
family. The plea taken in the written statement is a,somewhat curious one.
There is no allegation that the plaintiff had separated from his family. On the
other hand what was pleaded is that the plaintiff had separated from his
father. No members of a Hindu family can separate himself from one member of
the family and remain joint with others. He is either a member of the joint
family or he is not. lie cannot be joint withsome and separate from others. It
is true that for the existence of a joint family, the family need possess no
property. The chord that knits the members of the family together is not
property but the relationship. There is no gainsaying the fact that Dr.
Pandit and his sons were members of a joint
family though that family as such possessed no property. All properties
possessed by Dr. Pandit were his self-acquired properties.
We agree with the finding of the High Court
that there was no separation between the plaintiff and his family. The law
presumes that the members of a Hindu family are joint. That presumption will be
stronger in the case of a father and his sons. It is for the party who pleads
that a member of a family has separated himself from the family to prove it
satisfactorily. There is not an iota of evidence in this case to show that the
plaintiff had at any time made any unequivocal declaration that he had
separated himself from his family much less there is any evidence that he
communicated his intention to separate himself from the family either to the
karta or to any of the members of the family. There is no doubt that there was
great deal of disagreement between Dr. Pandit and the plaintiff. It is also
true that as far back as 1936 Dr. Pandit had threatened to disinherit the
plaintiff but these facts by themselves do not prove the factum of separation.
The fact that the plaintiff was now and then expressing that he was not
interested in his father's estate do not amount to a declaration of his
intention to separate from the family.
The High Court rightly considered these
statements as emotional outbursts. We have earlier seen that in the reply
notice sent on behalf of the 1st defendant there is not even a whisper of the
plaintiffs separation from the family.
Therefore the plea of the 1st defendant that
the plaintiff had separated from the family is clearly ;in after thoughts' It
is based on no evidence. To prove 805 that the plaintiff had separated himself
from the family.
reliance was placed on the testimony of Col. Madhya
His evidence is too vague and too slender to found a case of separation. All
that he says in his deposition is:
"I was at Kolhapur about a month at that
He said about the finance of his younger
son's frame business. I do not know the details but I gathered that whatever he
possessed he was going to make in the joint name of himself and his younger
son." Even if we accept the evidence of this witness as reliable, it is
much to vague and inconclusive. Further it does not bear on the question of
Now coming to the question of gifts, it is
necessary to remember the fact that in February 1949, Dr. Pandit did make a
Will but within six days after making that Will, he revoked the same. Dr.
Pandit was a highly educated man. He had the assistance of influential friends.
He had even the assistance of a solicitor at Bombay. He knew that his end was
near but yet he did not choose to make a Will. These circumstances generally
speaking militate against the plea of gifts put forward by the 1st defendant.
Further as seen earlier in the registered reply notice sent on behalf of the
1st defendant, there is no reference to these gifts.
Therefore the evidence relating to those
gifts will have to be ,examined very closely.
Let us first,take up the alleged gift of Rs.
41,000. We have earlier seen that Dr. Pandit had four fixed deposits in the
Bank of Indore. The first defendant's case is that on March 25, 1949, with the
intention of gifting the amounts covered by those deposits, Dr. Pandit
instructed the bank to transfer the deposits to their joint names thereby
making it possible to realise the amounts when they become due by either of
them or by the survivor. The evidence relating to the letter said to have been
sent by Dr. Pandit to the bank is somewhat suspicious. Medical evidence shows
Pandit was mostly unconscious during the last
days of his life. It appears that the secondaries had affected his brain. Dr.
Akbarali deposed that some days after his return from Bombay Dr. Pandit was
found eating cotton-wool in the bathroom. It may be as elicited from Dr.
Akbarali that on some day he might have been conscious. Under these
circumstances, we have to examine the evidence relating to transfer of deposits
with great ,deal of caution. The evidence relating to transfer of deposits bad
not been examined by the trial court. The trial court dismissed the plaintiffs
suit solely on the ground that he had separated, himself from the family. After
carefully examining the evidence bearing on the point, the High Court has not
found it possible to 806 accept the 1st defendant's case as regards the gift of
Rs. 41,000. The request by Dr. Pandit to transfer the deposits in the Bank of
Indore was said to have been made on March 25, 1949. The main witness examined
to prove the letter said to have been sent by Dr. Pandit is R. D. Joshi (D.W. 8).
According to him he wrote the letter in question. His version is that he had
been to the Nursing Home in which Dr. Pandit was, on March 21, 1949 in
connection with the payment of the amount due from him to Dr. Pandit and it was
on that occasion he under instructions from Dr. Pandit wrote out that letter
and after getting it signed by him, it was delivered at the bank. According to
him that letter was sent on March 21, 1949. He goes further and says that after
the 21st of March, he did not go to the Nursing Home nor did he see Dr. Pandit.
The original letter that was alleged to have been sent to the bank of Indore is
Its genuineness is sought to be proved by the
testimony of R. D. Joshi, the Accountant of the bank and its General Manager.
The version given by the General Manager of the bank is that after receiving
summons from court, be picked out the letter and kept it in safe custody but he
says that from safe custody the letter has disappeared. This is somewhat
surprising. R. D. Joshi's evidence throws a great deal of doubt on the
genuineness of the letter. The letter referred to by R. D. Joshi is purported to
have been sent to the bank on the 21st March. But the copy of the letter that
was produced before the court bears the date 25th March.
There is no explanation for this discrepancy.
In view of the evidence of the bank
officials, the High Court accepted the 1st defendant's version that Dr. Pandit
did send a letter to the bank on March 25, 1949 asking the bank to transfer the
deposits to the joint names of himself and the 1st defendant but all the same
it came to the conclusion that the evidence on record is not sufficient to show
that Dr. Pandit wanted to make a gift of the amount covered by those deposits
to the 1st defendant. We are unable to agree with the High Court that the
evidence adduced in this case is satisfactory enough to prove that Dr. Pandit
had sent any letter to the bank on March 25, as alleged by the 1st defendant.
Assuming that Dr. Pandit had sent the letter
in question yet from the evidence on record, we are unable to come to the
conclusion that by doing so Dr. Pandit intended to make a gift of the amounts
in question to the 1st defendant. The 1st defendant has not taken a consistent
stand as regards the alleged gifts. In the registered reply sent, as seen
earlier, there was no reference to these gifts. In the written statement the
case taken is one of gifts but the case pleaded in court is one of advancement.
The distinction between gift, benami and advancement has not been clearly home
in mind by the High Court.
807 The transfer with which we are concerned
in this case cannot be gift because Dr. Pandit continued to be the owner of the
amounts in question till his death. There is no presumption of advancement in
this country but yet if there had been satisfactory evidence to show that the
transfers in question are genuine and further that Dr. Pandit intended that the
amounts in question should go to the 1st defendant exclusively after his death,
we would have held that the advancement put forward had been satisfactorily
proved and the presumption rebutted.
It was for the 1st defendant to establish
that there was a general intention on the part of Dr. Pandit to benefit him and
in pursuance of that intention he transferred the deposits to the joint names
of himself and the 1st defendant. If he had proved those facts, he would have
made good his plea-See Young and anr. v. Sealev(1) Mrs. Avis Fitzalah Cowdrew
v. Imperial Bank of India and anr.(2) Dalvia Nagarajamma v. State Bank of
India, Cuddapah and ors.
In Guran Ditta and anr v. Ram Ditta, (1) the
Judicial Committee held that the deposit made by a Hindu of his money in a bank
in the joint names of himself and his wife, and on the terms that it is to be
payable to either or the survivor, does not on his death constitute a gift by
him to his wife. There is a resulting trust in his favour in the absence of
proof of a contrary intention, there being in India no presumption of an
intended advancement in favour of a wife. The same view was expressed by the
Judicial Committee in Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath and
ors.(4) But the difficulty in this case is firstly that there is no
satisfactory proof of the alleged letter sent by Dr. Pandit to the Bank of
Indore. Secondly there is no evidence of the general intention on the part of
Dr. Pandit to give those amounts exclusively to the 1st defendant. In the
letter said to have been sent by Dr. Pandit to the bank all that is said is
that he wanted to put the amount in the joint names of himself and the 1st
defendant as he was seriously ill.
There is nothing in that letter to show that he
intended to make over that amount to the 1st defendant. As noticed earlier Dr.
Pandit was in his death bed. Therefore he might have thought it prudent to
transfer the deposits to the joints names of himself and this 1st defendant to
facilitate collection. That being so we are unable to uphold the plea of the
1st defendant regarding those deposits.
(1)  1, All. B. R. P. 92.
(2) A.I.R. 1956 Mad. 56.
(3) A.I.R. 1962 A. P. 260.
(4) I.L,R. 55, Cal. 944.
(5) I.L.R. 71, I.A. 197.
808 Now coming to the deposit in the Binod
Mills Ltd., the letter said to have been sent by Dr. Pandit has been produced
in this case but the contention of the plaintiff is that the letter in question
must have been typed on a blank letter-head of Dr. Pandit bearing his signature'
There is some basis for this contention. The plaintiff has beep able to produce
two blank letter-heads of Dr. Pandit bearing hall signatures. There is reason
to think that Dr. Pandit was signing on blank letter-heads for one reason or
the other. The signature that is found on the letter sent to Binod Mills Ltd.
shows that the signatory's hand was firm and not shaky. This letter is said to
have been sent on 30th March 1949, hardly six days before Dr. Pandit's death.
The medical evidence shows that at about that
time Dr.Pandit was passing through critical days. At this juncture it is
necessary to recall the fact that when Dr. Pandit sent the cheque given to him
by R. D. Joshi on March 21, 1949, after endorsing the same to the bank along
with his cheque to defendant No. 1, the Manager not being sure of the
genuineness of those signatures as they appeared to have been made by a shaky
hand sent his assistant to the Nursing Home to find out from Dr. Pandit as to
whether those signatures were his. Dr. Pandit's hands could not have become
more firm nine days after the 21st of March. We have seen the signature on the
letter said to have been sent by Dr. Pandit to the Binod Mills on the 30th of
March. It appears to have been made by a perfectly firm band. Further as seen
from the medical evidence Dr. Pandit's mental condition was likely to have been
far from satisfactory on 30th March. Dr. Akbarali deposed that he would be
surprised that if someone told him that Dr. Pandit signed any paper during the
week before he died. Hence we are unable to pronounce in favour of the
genuineness of that letter. Even if we had come to the conclusion that the
letter is genuine it affords no evidence of the fact that Dr. Pandit wanted to
make over the deposit to the 1st defendant. The letter says that the transfer
to joint names is desired because of Dr.
Pandit's illness. Hence the case as regards
the alleged transfer of the deposit in question does not stand on a better
footing than that relating to the transfer of the deposits in the bank of
Now coming to the appeal filed by the
plaintiff, we shall first take up the cheque issued by Dr. Pandit to the 1st
defendant on March 21, 1949 There is no doubt as regards the genuineness of
that cheque. There is reliable evidence to show that on that day Dr. Pandit was
quite conscious. The circumstances under which the transfer was made clearly
indicate that Dr. Pandit wanted to give that amount to the 1st defendant. The
High Court has come to the conclusion that it was a gift by Dr. Pandit to his
son. The surrounding circumstances of the case to which reference has been made
earlier support that conclusion. There 809 is nothing surprising if Dr. Pandit
wanted to give a sum of Rs. 25,000 to his son who has been Very helpful to him.
So far as the deposit in the name of the
second defendant is concerned, the High Court's finding in our opinion is
unassailable. It is clear from the evidence that Dr. Pandit was very fond of
his daughter-in-law. The evidence of the second defendant has been believed by
the High Court. Out of the amount received from the Nawab of Jaora, Dr. Pandit
deposited Rs. 50,000 in his own name and Rs. 50,000 in his daughter-in-law's
name. Thereafter he wrote to her that he has made the deposit in question.
Subsequently he handed over the deposit receipt to his daughter-in-law. All
these circumstances show that Dr. Pandit wanted to give that money to his
daughter-in-law for whom he had great affection.
That evidence of the second defendant that
her father-in-law had made a present of Rs. 50,000 to her is clearly
There was some controversy in the High Court
as regards the jewels but all that the plaintiff's Counsel wanted us was to
correct an erroneous statement of fact in the judgment of the High Court to the
effect that the second defendant had filed a list of jewels that were given to
her. Beyond that no other change in the judgment of the High Court was sought.
It is admitted that the second defendant had not filed any list of the jewels
given to her. Subject to this correction, the High Court's decision on this
point is affirmed.
It was urged on behalf of the plaintiff that
he had been kept out of the estate of his father for over 22 years and
therefore we may direct the 1st defendant who is now in possession of the
properties as court receiver to pay to him at least half the cash amount that
was there at the time of Dr. Pandit's death. This request appears to us to be a
reasonable one. It is not necessary to determine at this stage the exact cash
amount that was there at the time of the death of Dr. Pandit. Suffice it if we
direct the 1st defendant as receiver either to transfer the fixed deposits of
the value of Rs. 50,000 or to pay to the plaintiff a sum of Rs. 50,000 within a
month from this date. This sum will be adjusted at the time of the final
In the result both these appeals fail and
they are dismissed. Under the circumstances of the case we direct the parties
to bear their own costs in this Court.
V.P.S. Appeals dismissed.