JUDGMENT
Chandresh Bhushan, J.
1. Judgment in this appeal shall also govern the disposal of First Appeal No. 155 of 1995 (Kanhalyalal and seven others v. Bhagwat Sharan and 21 others) as both these appeals arise out of the same Judgment and have been preferred by different sets of defendants in the original suit.
2. This is a first appeal by the appellants against judgment dated 1-8-1995 pronounced by District Judge, Guna, whereby a decree for partition of certain immoveable property consisting of six houses and some agricultural lands was passed in favour of the respondent No, 1, who was the plaintiff in the suit,
3. It is not disputed that, the appellants and the respondents No. 1 to 14 had a common ancestor viz,, Mangatmo, who lived in Narnaul at Rajasthan. He had four sons viz,, (1) Madho Prasad, (2) Lalchand, (3) Ramchand and (4) Umraolal, Madho Prasad had no issue and, therefore, he adopted Hariram, who was the real son of his brother Lalchand. Similarly, Ramchand also had no issue and he also adopted another son of Lalchand viz., Shriram, Ramchand himself had gone in adoption to one Gourimal of Gwalior. The appellants were the widow, sons and daughter of that Hariram, who was the adopted son of Madho Prasad. The respondents No. 1 to 14 are the grand children and a daughter-in-law of Umraolal, the fourth son of Mangatrao, Respondent No. 17, Kanhaiyalal, is brother of the wife of Hariram. Respondent No. 16, Shyamsunder, was the son-in-law of Hariram. Respondent No. 15, Om Prakash, was grand son of Lalchand and son of Shriram, who was originally the brother of Hariram. Remaining respondents are the widow and sons of one Shlvcharanlal. Some of the agricultural lands in dispute, to wit, agricultural lands shown in para 9(2)(d), 9(2)(c), 9(2)(e) and 9(2)(b) were recorded in the revenue records in the name of the said Kanhalyalal, Shyamsunder, Shivcharan and Shriram respectively. These Kanhaiyalal, Shyamsunder, Shriram’s son (since Shriram was dead) Omprakash and the widow and four sons of Shivcharanlal were the defendants numbered 19 to 26 in the original suit and are the appellants in the First Appeal No. 155 of 1995.
4. It is also not disputed that out of six houses in dispute five were mortgaged through a deed executed by Hariram, Brajmohan, Rameshwar and Radhakrishna with one Seth Budhmal s/o Phoolchand Jain. Said Budhmal s/o Phoolchand had filed a suit for foreclosure which was numbered as Civil Suit No. 3 of 1995 and in that suit the said Hariram, Brajmohan, Rameshwar and Radhakrishna had filed a written statement wherein they had admitted that the said five houses were the property of their tradingjoint Hindu family. These very houses were also mortgaged with the then Krishnarao Baldeo Bank, later on 9-10-55 by the same four persons. All the houses were released from mortgage after sale of three of those houses by Hariram. Hariram had, before his death, executed a will in which he has bequeathed part of the property in dispute to different respondents and a part was also bequeathed to the respondent Bhagwat Sharan, who later on, had filed a suit against a tenant Hansraj claiming as the owner and landlord, on the basis of the said will, of the property possessed by Mansraj as a tenant.
5. The civil suit giving rise to the present appeal was filed by respondent-Bhagwatsharan against the appellants of these two appeals as well as the remaining respondents, for partition of immoveable property consisting of six houses specifically described in para. 9(a), (b), (c), (d), (e), and (f) and agricultural lands described in para 9(2) of the plaint. In his suit the plaintiff had claimed that the suit property consisting of the said six houses and the agricultural lands was actually property of a Hindu undivided family consisting of him, the appellants in this appeal No. 141.95 and the respondents No. 2 to 14 of this appeal No. 141.95. According to him, late Madhoprasad around 70 years before together with his brother Umraolal came to Ashoknagar where Madhoprasad started working as a clerk (Munshi) with the local Jamindar. Umraolal decided to do business in grains and, after some time late Madho Prasad also left his job as a clerk, Both these brothers formed a Joint family and started doing business in grains in the name and style of “Munshi Madho Prasad”. All the suit property was purchased out of the funds of that joint family. Late Madho Prasad was the eldest in the family, therefore, he managed the business as the Karta of that joint family and later on after his and Umraolal’s death late Hariram being the eldest became the Karta of that joint Hindu family. After the death of late Hariram his widow Rajjodevi was managing the affairs. However, Late Hariram in his life time had got the agricultural lands described in para, 9(2)(d), 9(2)(c), 9(2)(e) and 9(2)(b) of his plaint, wrongly recorded Benami in the names of said Kanhaiyalal, Shyamsunder, Shivcharanlal and Shriram, who were his close relations. The lands so recorded Benami in their names continued in the possession of the family. Late Hariram had obtained a power of attorney from those persons in his favour and now his son Purshottam has that power of attorney from those persons. The transfer of the three houses by late Hariram was without the consent of other co-parceners and for his own personal benefit and was, therefore, void as against him (plaintiff). He (plaintiff-Bhagwatsharan) had a share of 4.17 paise in the whole property in dispute and was entitled to get it partitioned accordingly and thus he prayed for a decree of partition.
6. The appellants in the present appeal as well as the appellants of First Appeal No. 155/95 except Shyamsunder had filed written statement in the said suit and denying the case as well as the claim of the respondent Bhagwatsharan, it was pleadad by them that the said six houses in dispute were the individual property of late Madho Prasad. The said firm M/s. Munshi Madho Prasad, trading in grains was his own personal firm. Umraolal being his brother lived with him and might be that he helped him in his work but there was no joint family between the two. The three houses sold by late Hariram were sold to discharge the debts of the said business alleged by the respondent Bhagwatsharan as the Joint Hindu family business, After the death of Late Madho Prasad Hariram being his only son (adopted) became its owner and whatever he did with respect to the property he did it in his own rights. Because Umraolal was his uncle and after the death of Umraolal, his children lived in the different parts of his property being his close relations he had bequeathed some part of that property occupied by them to them. Said Bhagwatsharan and his brothers had also claimed title to that property on the basis of that Will in the civil suit filed by them against a tenant Hansraj. Therefore, in accordance with the dectrine of election also Bhagwatsharan and his brothers etc. were prohibited from claiming that property as property of any joint Hindu family.
7. The learned trial Judge after framing certain issues according to the pleadings of the parties, took their evidence and after completing the trial pronounced its impugned judgment dated 1-8-1995 whereby it held that all the suit property in dispute was a Joint Hindu family property wherein Bhagwatsharan has a 2.38 paise share and the houses in dispute be accordingly divided by meets and bounds by appointing a commissioner and the agricultural lands be divided accordingly by writing to collector Guna. The learned trial Judge also directed that the plaintiff would also be entitled to Rs. 10,000/- as his share in the income from agricultural property w.e.f. 13-5-88.
8. The learned trial Court while holding that the whole property in dispute was the property of undivided joint Hindu family observed that the only witness of plaintiff was the plaintiff himself and he never saw any dealing of the joint Hindu family as he was only 43 year old and the family business had ceased in the year 1954 and similarly the defendants No. 4 to 8, who examined themselves as witnesses also, could not see any dealing personally by the joint Hindu family, therefore, it was being decided on the basis of circumstantial evidence including the documents. The learned trial Court further observed that late Hariram in his Will had admitted that he possessed his own as well as ancestral property and in the deeds of mortgage to Budhmal the deeds were executed not only by late Hariram but also by Brajmohan, Rameshwar and Radhakrishna, all the three of whom were the sons of late Umraolal and they had also filed a wrltten-statement wherein it was admitted that all the four of them constituted a trading Joint Hindu family, therefore, it was established that there was a Joint Hindu family consisting of late Madho Prasad, late Umraolal and their children and, therefore, there was a nucleus and all the disputed property is to be presumed as property of joint Hindu family. The evidence adduced by the defendants, who are the appellants in the present appeal, was not relied upon by the trial Court nor was the explanation about the plea in the written statement relating to the mortgaged property was accepted by the learned trial Court.
9. The appellants, therefore, felt aggrieved by the impugned judgment pronounced and the decree passed by the learned trial Court. According to them, the mention by late Hariram in his Will of ancestral property has wrongly been interpreted by the trial Court because it referred to the ancestral property received by him from his father late Madho Prasad and it could not be interpreted as a reference to property of any joint family consisting of Madho Prasad and his brother Umraolal. Admittedly Madho Prasad and Umraolal had not inherited any property from their father and they were only two out of in all four brothers. Therefore, there was no nucleus in between Madho Prasad and Umraolal with which they could have started any joint Hindu family business or could have formed a nucleus for any joint family. It was submitted by the learned counsel that it was Madho Prasad, who got an employment and, therefore, had the money to start his business and it was only because of that that business was carried in the name and style of “Munshi Madho Prasad”. It was the plaintiff on whom was the burden to prove that the suit property was joint Hindu family property and which he has not been able to discharge successfully. At the most it could be said that late Madho Prasad had a consideration for his younger brother, who was jobless and, therefore, was kept by him and it was because of that only that Umraolal and his children lived under the care of Madho Prasad and thereafter of his son Hariram. who also had the same feeling. This was established from the facts as pleaded by plaintiff Bhagwatsharan himself. He nowhere says that after the death of Madho Prasad Umraolal ever became the Karta of the family. It was admitted that Madho Prasad had died in the year 1935 and Umraolal died 11 years thereafter in 1946. The fact that even, as per Bhagwatsharan, after Madho Prasad Hariram had become Karta of the family, means that the family and the family property was only that of Madho Prasad and Hariram. Umraolal and his children only lived in a part of it as near relations and not as a co-parceners. It was further submitted that the learned trial Court failed to draw distinction between pleading of trading joint family and a Hindu undivided family. At the most it could be said that the admission, if any, in the said written statement amounted to only that they at that time constituted joint family meaning thereby that they were trading as family though even that was not correct. As far as agricultural land was concerned, originally one part of it was recorded in the name of Nathulal, who was recorded as Pucca Tenant. Subsequently, that part was recorded in the name of Shantidevi and his three sons and two daughters, all of whom have not even been made party to the suit. The agricultural land till 1962 devolved otherwise than in accordance with the principles of Hindu Law. Actually, the then Jamindar of Ashoknagar had leased that land to Nathula and, therefore, he had become Pucca Tenant of that land. Regarding remaining agricultural land a part, consisting of 11 bighas of it was bought by Rajjodevi out of her atrldhan. The land of Babrikheda was Hariram’s own land and was so recorded in his dame, The sixth house, known by the name of Dharamshala, was certainly not a joint family property and was not even mortgaged with other property. Moreover, the respondent-Bhagwatsharan and his brothers had themselves pleaded in another case title on the basis of the Will left by late Hariram and, therefore, as per the doctrine of election they were prohibited from claiming that property as joint Hindu family property.
10. Denying the averments by the appellants the remaining respondents supported the conclusions reached by the learned trial Court.
11. In case there was ajoint Hindu family as held by the learned trial Court and the whole property was its Joint Family property then the respondent Bhagwat Sharan would have a 2.35 paise share in it, this was not disputed by the parties in the present appeals.
12. The principal question for determination in these first appeals was whether the appellants in this appeal (No. 141/95) together with the respondents Nos. 1 to 14 constituted a Joint Hindu Family and the property in dispute consisting of six houses and agricultural lands was Joint property of that Joint Hindu Family?
13. In this respect, even as per the pleadings of respondent Bhagwat Sharan it was not his case that Madho Prasad and Umraolal had inherited any property from their father Mangatrao or that both those brothers ever had any ancestral property with them. These Madho Prasad and Umraolal were also admittedly only two of the four brothers. The other two namely, Lalchand and Ramchand were not joined with them and therefore, it is no one’s case that all the four brothers with their father or even after their father had ever constituted a Joint Hindu Family. On the otherhand, respondent Bhagwat Sharan had in the trial Court in his statement on oath stated that Lalchand had severed relatibh from their family, who had started living at Gwallor. Therefore, it was not a case where it could be presumed that the said Madho Prasad and Umraolal being real brothers constituted a Joint Hindu Family, The principle enunciated by Hon’ble the Apex Court in the case of Bharat Singh v. Mst. Bhagirathi, reported in AIR 1966 SC 405 that “there is a strong presumption in favour of Hindu brothers constituting a Joint Family. It is for the person alleging severance of the Joint Hindu Family to prove it, cannot be applied to the present case because in the present case what is admitted is that all the four brothers did not constitute a Jointly Family. In such a circumstance where only two brothers come and settle at a place different and separate from their father and other brothers, it cannot be considered to be a case of continuation of any Joint Family because their severance from their father and other two brothers or after their father with their other two brothers, itself demolishes continuance of any previous Joint Family. In such a case when all the four brothers did not continue to have Joint Family it cannot be presumed that by only two of them after their settling in Ashoknagar, continued to have a Joint Fam-ily.
14. The Hon’ble Apex Court in the case of Kalyani v. Narayanan, reported in AIR 1980 SC 1173 has observed that :–
“Where one of five sons is separated unless a reunion is pleaded, other four sons cannot constitute a corporate body like a co-parcenary by agreement or even by subsequent conduct of remaining together enjoying the property together.”
15. Thus, the burden of proving the reunion between Madho Prasad and Umraolal fell on the respondent Bhagwat Sharan, who has pleaded it and no presumption in that respect even if both of them lived together in Ashok Nagar, can be made.
16. The respondent Bhagwat Sharan had in evidence examined himself. He has only averred that Madho Prasad and Umraolal came to and started living around 76 years before his statement and they were doing business of grain merchant in Ashok Nagar. This business according to him was done by both of the brothers in the name of Munshi Madho Prasad and they made six houses in Ashok Nagar together with some agricultural lands. In his cross-examination, he admits that Umraolal had died even before his death. Hence, his testimony regarding those facts could not be considered as based on his own knowledge. While appellant Ashok Kumar (defendant in suit) had averred that his father Hariram was doing business independently and it was his own business and the three sons of late Umraolal were separate from him. They lived separately and did separate business. Certain other evidence regarding subsequent events has also been adduced in this case. This was about the mortgage-deeds of five of the disputed houses which were executed by Hariram together with three sons of Umraolal and the written-statements filed by all the four of them in a suit filed against them by Seth Budhmal, the mortgagor. The learned trial Court had on the basis of these documents concluded that the fact that the said mortgage-deeds of the five houses were Jointly executed by the sons of the said two brothers Madho Prasad and Umraolal and the admission by those four sons of the two brothers in their written-statements that they together constituted a trading Joint Hindu Family was a circumstance sufficient to conclude that actually they had constituted a Joint Hindu Family and that these five houses were their coparcenary property. But then in his cross-examination, the respondent Bhagwat Sharan (plaintiff in the suit) has stated that he does not know whether three of those five houses were sold by Hariram or not, though later on about a house situated at Station road; he states that Hariram had sold that house to nine parties, whose possession he was seeing since his childhood. These three houses infact have been sold by Hariram alone. This was not disputed during the course of the arguments by the parties and in such a circumstance if it was really a coparcenary property, it becomes difficult to believe that they would be purchased by anyone through the sale-deed executed only by one of the coparceners, though he may be the eldest one. As explained by the learned counsel for the appellants, it was possible that since all the said four cousins were occupying different parts of those five houses, the mortgagor thought it proper to obtain signatures of all the four of them on the mortgage-deeds and since they were closely related and knitted with each other, they agreed to sign those deeds together and accordingly they also submitted their written-statements in tune with it.
17. The statement in the said written-statement can no doubt be considered a statement by late Hariram made prior to this dispute about Joint Family. But then the statement in the will was also made by him and much before. In his statement, he had described all the properties as either his own or his ancestral meaning thereby inherited by him from his father Madhoprasad. It was this Will which was relied upon by the respondent Bhagwat Sharan in his suit against Hansraj, a tenant in the concerning house. If the said mortgage-deed and the written statement signed by the late Hariram was a circumstance suggesting reunion of Madhoprasad and Umraolal constituting a Joint Family after they started living in Ashok Nagar, then the Will executed by Hariram and filing of suit on that basis by respondent Bhagwat Sharan and his brothers was also a circumstance which was very much against any such reunion and continuation of any such joint family. The suit giving rise to the present appeal was filed in 1988, after the suit filed in 1982 by respondent Bhagwat Sharan on the basis of the Will dated 4-2-1978 of Hariram was dismissed.
18. In any case, the said execution of mortgage-deeds and the written-statements by four cousins was not a conduct of such an incontrovertible character that an agreement of reunion could be necessarily implied therefrom. The Hon’ble Apex Court in the case of Bhagwan Dayal v. Reoti Devi, reported in AIR 1962 SC 287 observed that after a joint family separates any member of that family may agree to reunite as a joint Hindu Family, but such a reuniting was of a very rare occurrence and when it happens it must be strictly proved. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate and such an agreement need not be express but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. It was also observed in the same case that the burden was heavy on the party asserting reunion and ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. As already seen the Hon’ble Apex Court in the case of Kalyani (sup’ra) had further clarified that it also could not be inferred even by subsequent conduct of remaining together and enjoying property together.
19. Admittedly, the business as a grain merchant was in the style of Munshi Madho Prasad alone and this also suggests that there was no joint family between him and his brother Umraolal. Otherwise, there is no reason why it was styled only in the name of Munshi Madho Prasad and not as Munshi Madho Prasad and brothers etc. It is also a fact that it was Munshi Madho Prasad, who after coming to Ashok Nagar was employed by the local landlord (Jamindar) and therefore, it was the who had a source of income. In the absence of any evidence regarding the source of funds establishing such firm of Munshi Madho Prasad, it is difficult to consider that it was actually business of any reunited family of Madhoprasad and Umraolal. On the otherhand, from the name of the said firm and the admitted fact that Madho Prasad had a source of income and the business had started after he left the job, suggests that it was most probably the business of Madho Prasad alone. These facts taken together also suggest the possibility that Umraolal being younger brother was brought by Madho Prasad to Ashok Nagar and was taken care of. As such. Umraolal in turn, might be at the most helping his elder brother in his business and that continued for some years even after his death without being a coparcener. The admission of respondent Bhagwat Sharan in his exanimation in chief (para 8) itself that till Madho Prasad was alive he was the Karta Khandan and after the death of Madho Prasad, Hariram became Karta further supports that conclusion. He (Bhagwat Sharan) does not say that Umraolal, who was older and uncle of Hariram and who lived for almost eleven years after the death of Madho Prasad had become Karta. Thus, considering the whole evidence on record and the admitted facts as discussed above, the preponderance of the probability was that the said Madho Prasad and Umraolal did not reunite to constitute any Joint Hindu Family and therefore, the appellants in the present appeal No. 141/98 and the respondents Nos. 1 to 14 also did not constitute any Joint Hindu Family. It is held accordingly.
20. Hon’ble Apex Court in the case of Bhagwati Prasad San v. Dulhin Rameshwari Kuer, reported in AIR 1952 SC’72 where one of the co-parceners had separated and some of the reunited members of the Joint Family lived together, acted jointly for the purposes of business or trade or in their dealings with properties, observed that :–
“Except in the case of reunion, the mere fact separated co-parceners choose 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.”
21. Thus, the finding of the learned trial Court in this respect was wrong and is not agreed with.
22. In view of the above finding, the property in dispute could also not be considered as a Joint Family property of the said appellants and respondents No. 1 to 14. There being no such joint family, the said property which came into existence after the said business of Munshi Madho Prasad, and as that business of Munshi Madho Prasad, did not form nucleus for any such Joint Hindu Family, the decision in the case of Srinivas Krishnarao Kango v. Narayan Devji Kango, reported in AIR 1954 SC 379, relied upon by the respondents was not applicable to the present case.
23. Moreover, even if for the sake of arguments, it is said that the said business and the income from it did form such a nucleus, at the most six houses out of the total property in dispute might therefore be presumed to be a part of joint Hindu family in the absence of specific and convincing evidence on record regarding their acquisition by any coparcener in his personal capacity. But as far as the agricultural land in dispute is concerned, there is specific evidence of acquisition of a part of it in personal capacity. Ex. D/1 was the lease (patta) by the then Jamindar and it was more than 30 years old document, in favour of Nathulal son of Hariram regarding the land situated in village Ashok Nagar. Therefore, this land could not be considered as a property of any such joint Hindu family as has been claimed by the respondent Bhagwat Sharan. After the death of Nathulal admittedly this land which is almost 100 bighas was recorded in part in the name of the widow of Nathulal and in part in the name of Ashok Kumar Agrawal (D.W.1). A part of it was given to Krishi Upaj Mandi Samiti, Ashok Nagar, during his life time. Similarly, as far as the land recorded in the name of Kanhaiyalal. Shaymsunder, Shivcharan and Shriram is concerned there was no clear evidence to show that it was recorded Benami in their names. On the otherhand, defence witness Narayan Prasad (D.W. 5), has clearly averred on oath that he had seen the land of Shyamsunder, Kanhaiyalal, and Shivcharan in Bawdikheda and had seen that the land was being cultivated by them only. Merely because it or part of it was previously recorded in the name of Hariram and all of them were close relations and Hariram at one time had power of attorney from those persons it cannot be concluded that those lands were merely recorded Benami in the names of those persons more so in the light of the statement on oath of the said defence-witness Narayan Prasad. Thus, in any case, the said agricultural land in dispute could not be held to be coparcenary property of any such Joint Family as asserted by the respondent Bhagwat Sharan. However, as already held, there was no such joint Hindu family as asserted by respondent Bhagwat Sharan and therefore, it is further held that the property in dispute was also not joint Hindu family of any such family.
24. The principle of the doctrine of election was not applicable in the facts of the present case. Merely by bringing a suit against a tenant claiming title to the property occupied by that tenant on the basis of the Will does not attract the doctrine of election. The foundation of the doctrine of election under Section 180 (115) of the Indian Evidence Act, which is based on English law is the doctrine of approbation and reprobation. To attract the application of this doctrine, there must be two sets of properties. One to which the testator is entitled and the . other of which the person, who gets the benefit is the owner and it is then that the owner legatee is put to the necessity of election as to whether he would accept his gift in which event he should allow his property bequeathed by the testator to devolve in the manner provided by the testator. In the present case, there were no such two sets of properties. On the other hand, as per the claim of Bhagwat Sharan, the whole property was that of a joint Hindu family of which he and Hariram were co-parceners the case of the otherside was that the whole property was owned by the Joint Family of Hariram and his sons only and none of the property bequethed was owned by Bhagwat Sharan. Moreover, the doctrine was applicable only with reference to the same transaction or instrument. Under this doctrine, it is essential that the testator must by his Will bequeath something of his own to the person whose property he purports to dispose of to another. It was not a case where Hariram gave something of his own to Bhagwat Sharan and something of Bhagwat Sharan to some others. It was not a case of the testator namely Hariram giving his whole or part of the share to Bhagwat Sharan and Bhagwat Sharan’s part of the share to some third person. The essential ingredients of the two sets of properties appear to be lacking in the present case. In this case, what the learned counsel for the appellants seeks under the doctrine of election is that because Bhagwat Sharan and his brothers have claimed a part of the property under a Will by Hariram, therefore, they were prohibited from claiming property as co-parcenary and by way of partition. Moreover, this is also a settled law that this doctrine of election is not applicable when the bequest was invalid for any reason. Besides merely because of the said suit against the tenant, it cannot be said that the respondent Bhagwat Sharan and his brothers were put to election under the doctrine of election and had already elected to take the benefit under the Will. Thus, and as discussed above, the doctrine of election is not attracted in the present case. The principle of law as laid down by the Apex. Court in the case of Mani Mani v. Mani Joshua, reported in AIR 1969 SC 1311 is not applicable to the present case as facts of the present case were totally different.
25. In the light of above discussions and findings, the additional documentary evidence sought to be produced by the appellant was not necessary and their application (I.A. III/7764/95) is dismissed.
26. In view of the findings given before, this appeal deserves to be allowed and is accordingly allowed. The impugned decree of partition passed by the learned trial Court is hereby set aside and the suit filed by the respondent Bhagwat Sharan is dismissed. Decree be drawn up accordingly.
27. The respondents Nos. 1 to 14 in this appeal shall bear their own costs and shall also bear the costs of the appellants in these appeals as well as in the trial Court.