# Nath Shivpuri v. Pandit Pushkar Nath, L.R. 71 I.A. 197, Young Sealey

- **Citation:** [1971] Supp. 1 S.C.R. 796
- **Court:** Supreme Court of India
- **Decided:** 1971-05-07
- **Case number:** Civil Appeals Nos. 1096 and 1097 of 1969
- **Bench:** K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nath-shivpuri-v-pandit-pushkar-nath-l-r-71-i-a-197-young-sealey-5431
- **Pages:** 14

## Headnote

Hindu Joint family-Member separating jrom-Prtsumptiom 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 a/ia that: (I) 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
arc joint, a presumption which is stronger in the case of a father and his
sons. and it is for the party who plead! that a member of the family ~ad
separated himself to prove it satisfactorily. For the existence of a joint
family, the family as ouch need not possess any property since iUs not
property, but relationship, that knits the members of a family toielher.,
Jn 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 bis f'lther,
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 3.ll to
show that be had at any time made any unequivocal declaration that the
appellant had separated himself from bis family nor had be communica~
any such intention to separate himscf 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 him·
self 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 aive
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 dit.ection
to the bank to put the amounts in the joint names to himself and the
INDRANARAYAN V. llOQPNARAYAN (Hegde,J.)
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 in·
tention 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
io the joint names of himself and the first respondent, there was neither a
gift nor an advancement. [807F.]
Guran Ditta v. Ram Datta, I.LR. 55 Cal. 944(P.C.) Pandit Shambhu
Nath Shivpuri v. Pandit Pushkar Nath, L.R. 71 I.A. 197, Young Sealey,
[1949] 1 All. E.R. 92, Mrs. Avis Fitzalah Cowdrey v. Imperial Bank of
India, A.I.R. 1956 Mad. 56 and Dalvi Nagarajamma v. Stale Bank of
India, A.I.R. 1%2 A.P. 260, referred to.
'

## Text

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INDRANARA YAN
11.
ROOP NARAYAN & ANR.
May 7, 1971
[K. S. HEGDE AND A. N. GROVER, JJ.)
Hindu Joint family-Member separating jrom-Prtsumptiom 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 a/ia that: (I) 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
arc joint, a presumption which is stronger in the case of a father and his
sons. and it is for the party who plead! that a member of the family ~ad
separated himself to prove it satisfactorily. For the existence of a joint
family, the family as ouch need not possess any property since iUs not
property, but relationship, that knits the members of a family toielher.,
Jn 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 bis f'lther,
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 3.ll to
show that be had at any time made any unequivocal declaration that the
appellant had separated himself from bis family nor had be communica~
any such intention to separate himscf 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 him·
self 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 aive
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 dit.ection
to the bank to put the amounts in the joint names to himself and the
INDRANARAYAN V. llOQPNARAYAN (Hegde,J.)
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 in·
tention 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
io the joint names of himself and the first respondent, there was neither a
gift nor an advancement. [807F.]
Guran Ditta v. Ram Datta, I.LR. 55 Cal. 944(P.C.) Pandit Shambhu
Nath Shivpuri v. Pandit Pushkar Nath, L.R. 71 I.A. 197, Young Sealey,
[1949] 1 All. E.R. 92, Mrs. Avis Fitzalah Cowdrey v. Imperial Bank of
India, A.I.R. 1956 Mad. 56 and Dalvi Nagarajamma v. Stale Bank of
India, A.I.R. 1%2 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.
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M. V. Paranjpe, K. Rajendra Chodhary and K. R. ChauD
dhuri, 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. I 096 of J 969) 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 elder brother and the I st defendant is his younger brother. The second defendant is the wife of
the !st defendant. The plaintiff and the I st 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 !st 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 !st defendant was that tbe 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
hc1 been gifted to him. According to him Dr. Pandit gifted the
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four deposits totalling 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 I st
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 !st 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 !st defendant on March 21, 1949 is
his exclusive property.
He also challenged the finding of the
IDgh 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 Indian State.
He practised at Indore.
He had extensive practice in Central
India. He lost his w'ife 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 he was hardly 16 years old to England and put bim to
school. He gave' him liberal allowance in the Initial stages. It
appeara from the record that he was sending him annually about
£300.
Unfortunately the P.laintiff did not make much progress
INQRANARAYAN v. ROOP NARAYAN (Hegde,J.)
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 plain-
' tiff 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 caJ!ed him a worshipper
'of Mammon. He attributed his failures to his father's unkind·
ness.
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 son 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 ob-
·stinate 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 hJs
father.
He
repeatedly wrote 'to his father that his fife 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 £300 a year. Later on he cut it down to £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 was evidently unable to make two ends meet with the
allowance that he was gefting. From his letters it is. c\ear that
thereafter he was more worried about his day 'to-clay living than
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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. D-122) 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 Jive 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 hi;
father to give him at least an allowance of £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 I 940 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
w'itb.
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 v•ere
made by the !st defendant as well as by his sister Dr. Shanti
Karnath. There is reason to believe that those remittances were
made in the names of the !st defendant and Dr. Shanti Karnath
by Dr. Pandit himself. Ultimately the plaintiff came back to
India in 1948. At that time the !st 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 and. he went to Calcutta.
The plaintiff's relationship with the !st defendant and
his sisters were extremely cordial as· disclosed by the letters that
passed between the plaintiff and the I st defendant and his Sisters.
When the plaintiff returned to India evidently Dr. Pandit was
very anxious tci 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
fatb.er. 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
oast. 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
·IllDllANUATAN r. 1.o<W Nillt.YAN (B11tk, J.)
101
attack of Cancer of the !llllg8. He was shifted to Bombay for
A
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
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on March 14, 1949. The plaintiff, the !st 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
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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
be 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 inrui~,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 abo11t by the father-in-law of one of the
widowed daughters of Dr. 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 adduced in 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 Joshl to return that
money. On the 21st March, 1949 Joshi gave him a cheque for
Rs. 25 ,000. That cheque 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
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1st defendant. On that very day the first defendant opened an
account in the Ba.nk 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. 41,000 in the Banlc 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 !st 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 !st defendlint.
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-Jaw, 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-Jaw 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, !st defendant wrote several
letters to the plaintiff infomting him about the state of affairs at
Indore. He wrote to him about the various details connected
With tht affairs of the household but he did not inform him about
the ~nsfer of the deposits mentioned earlier. From those letters
it is clear that the !st defendant was keeping his brother informed about the family afj'airs. It appears that sometime after the
death of bis father, the plaintiff came to know that the !st defendant was claiming that his father had left a Will bequeathing
all his pr~erties to him. It is likely that this information was
given to him b)\ his brother-in-law Karnath who was also station·
ed at Calcutta. The 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 i.11 fact his fatl:\er had left a Will.
In about the end of May 1949, the !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 I st defendant and the second defendant went to Cal·
cutfll and showed to the plaintiff the Will alleged to have been
INDRANARAYAN 'v. ROOP NARAYAN (Hegde, J.)
S03
executed by Dr. Pandit. The !st defendant was insistent that the
plaintiff should execute a deed of relinquishment but the plain·
· tiff refused to walk into the trap. On April 4, 1950, the plaintiff
caused a lawyer's notice to be issued to the !st defendant requiring him either to get the alleged Will of his father proba!ed or
refer the matter to the arbitration of some disinterested person.
To this notice the !st defendant caused a reply to be; sent on May
JO, 1950. The material portion of that reply reads thus: ·
"My client firmly relies on the Will made by his
father.
The original document has been inspected by
Mr. I. 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 thcow
doubt on the genuineness of the Will has no point. The
late Dr. Pandit dealt with bis cash and the Bank account
subsequent to the making of the Will and consistently
with his intention to exclude Mr. I. 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 !st defen·
dant 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 !st 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 refer·
ence to the Will left by Dr. Pandit. The alleged Will completely
disappeared from the scene. On the other iland the lst 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
1o him and therefore he. is exclusively entitled to those amounts.
The second defendant claimed that the deposit made by her father·
in-law in her name was a gift to her.· At this stage we may mention that the alleged Wm of Dr. Pandit was not produced into
court. · As seen earlier in his reply to the registered notice the
I st defendant had asserted that the Will had been signed by
Dr. Pandit and attested by respectable witnesses. But when cros&-
examined about ihat will the !st defendant first stated that it was
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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 !st defendant.
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 plaintifi had sepa·
rated from his family. On the other hand what was pleaded is
that the plaintifi had separated from his father. No members of
a Hindu Jamily 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. He cannot be joint with some 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 bis
sons were members of a joint family though that family as such
possessed :no property.
All properties possessed by Dr. Pandit
were hi& 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
dis-inhent the plaintifi but these facts by themselves do not prove
the factum of separation. The fact that the plaintifi 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 111
emotional outbursts. We have earlier seen that in the reply notice
sent on behalf of the !st defendant there is ,not even a whisper of
the plaintiff's leP811ltiob from the family. Therefore the plea af
the !st defendant that the plaintiff had separated from the family
is clearly an dtet thought. It is based on no evidence. To prove
INDRANARAYAN ,, ROOPNARAUN (Hegde,J.)
that the plaintiff had separated himself from the family, reliance
was placed on the testimony of Col. Madbav. 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 time. 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 hi· younger son."
Even if we acce : the evidence of this witness as reliable, it
is much too vague a d inconclusive.
Further it docs not bear
on the question of separation.
Now coming td the question of gifts, it is necessary to remember the fact that in February 1949, Dr. Pandit did make a
Will but within si'I' days after making that Will. he revoked the
same. Dr. Pandit .r:as 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 I st 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
that Dr. 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 bath-room.
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 had
not been examined by the trial court. The trial court dismissed
the plaintiff's suit solely on the ground that he had separated
ldmself from the family. After carefully examining the evidence
bearing on the point, the High Court has 11ot found it possible to
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accept the !st 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 Aome 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 be
see Dr. Pandit. The original letter that was alleged to have been
sent to the bank of Indore is not forthcoming. Its genuineness
is sought to be proved by the testimony of R. D. Joshi, the
Accountant of the bank and its Genera.I Manager. The version
given by the General Manager of the bank is that after receiving
summons from court, he 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 ia
no explanation for this discrepancy.
In view of the evidence of the bank officials, the High Court
accepted the !st defendant's version that Dr. Pandit did send a
Jetter to the bank on March 25, 1949 asking the bank to tranafer the deposits to the joint names of himself and the I st def en·
dant 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 !st defendant. We are unable to agree with the High Court that the cvi·
dence 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 !st defendant.
Assuming that Dr. Pandit had sent the letter in question yet
from the evidence on record, we arc unable to come to the conclusion that by doing so Dr. Pandit intended to make a gift of
the amounts in question to the !st defendant. The !st defendant
bas 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 statemept the case taten is one of gifts
but the case pleaded in court is one of advancement. The diir
tinction between gift, benami and advancement has not been clearly
borne in mind by the High Court.
INDllANAllAYAN v. llOOP NARAYAN {Htfdt, J.)
The transfer with which we are concerned in th.is 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. Padit intended that the amounts in question should
go to the !st 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 !st 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 !st defendant. If he had proved
those facts, he would have made good his plea-See Young and1
anr. v. Sealev('); Mrs. Avis Fitzolah Cowdrew v. Imperial Bank
of India and anr.(') Dalvia Nagarajamma v. State Bank of India,
Cuddapoh and ors. (').
In Guran Ditta and anr. v. Ram Ditta, (') the Judicial Com·
mittee held that the deposit made by a Hindu of his money in a
bank in the joint names of himself and h.is wife, and on the terms
that it is to be payable to ei'ther or the survivor, does not on hii
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. Tlul same view was expressed by the Judicial
Committee in Pandit Shambhu Nath Shivpurl v.
Pandit Pushkar Nath and ors.(')
But the difficulty in this case is firstly that there is no 11Btisfactory 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
!st 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 !st 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 th.e 1st defendant to facilitate collection. That being
so we are unable to uphold the plea of the !st defendant regardfog those deposits.
(I) [1949) I, All. E. R. p. 92.
(3) A.I.R. 1962 A. P. 260.
(S) I.L.R. 71, I.A. 197.
(2) A.l.R, 1956 Mad. S6.
(4) I.L.R. SS, Cal. 944.
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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 que>-
tion 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 been able to produce two blank letter-heads of
Dr. Pandit bearing hJc 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 r.is
cheque to defendant No. I, 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 aa 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
hand.
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 tM
!st 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 Indore.
Now coming to the appeal filed by the plaintiff, we shall first
take up the cheque issued by Dr. Pandit to the !st 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 circumstan~ 11nder
which the transfer was made clearly indicate that Dr. Pandit wanted to give that amount to the l st 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 concluSton.
There
INDRANARAYAN •• ROOP NARi\YAN (Hegde, J.)
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 ia clear from the evidence that Dr. Pandit was very fond
of his daughter-in-Jaw.
The evidence of the secontl 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-Jaw for whom he
had great alfcction. The evidence of the second defendant that
her father-in-law had made a present of Rs. 50,000 to her is
clearly acceptable.
There was some controversy in tlJAl High Court as regards
the jewels but all that the plaintiff's Counsel wanted us was to
..:orrect 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 affirtned.
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 !st 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
!st defendant as receiver either to transfer the fixed deposits of
the value of Rs. S0,000 or to 11 pay to the plaintiff a sum of
Rs.