A person who takes benefit of a portion of the Will cannot challenge the remaining portion of the Will; SC.

Supreme Court of India

Justice Deepak Gupta & Justice L. Nageswara Rao

The SC on April 3, 2020 {BHAGWAT SHARAN (DEAD THR.LRS.) v. PURUSHOTTAM & ORS.} held that the law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgment in Bhagwan Dayal vs. Reoti Devi (AIR 1962 SC 287). It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family.

After referring catena of judgments, it was held by the SC that the law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.

It was held that there is cleavage of opinion as to whether two brothers of a larger group can form a joint family. It was held that but assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the plaintiff to prove that the two of them joined together to form an HUF. It was held that to prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together.

It was held that it is apparent that there is no pleading that Mangat Ram and Sons constituted a HUF. It was held that there is no allegation that this family had some property as its nucleus. It was held that since there is no allegation that Mangat Ram and his four sons constituted a HUF, the fact that Lal Chand left the family to live by himself, would not in any manner mean that there was a disruption of the joint family status. It was held that a disruption would arise only if there was an allegation that earlier there was a HUF.

It was further held that an admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. It was held that an admission is not conclusive as to the truth of the matters stated therein. It was further held that it is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It was held that it can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.

It was held that the plaintiff and defendant nos. 1-3 by accepting the bequest under the Will elected to accept the will. It was held that it is trite law that a party cannot be permitted to approbate and reprobate at the same time. It was held that this principle is based on the principle of doctrine of election. In respect of Wills, it was held that this doctrine has been held to mean that a person who takes benefit of a portion of the Will cannot challenge the remaining portion of the Will.

It was held that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". It was held that where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order. It was also held that the doctrine of election is a facet of law of estoppel. A party cannot blow hot and blow cold at the same time. It was held that any party which takes advantage of any instrument must accept all that is mentioned in the said document.

It was held that the plaintiff having elected to accept the Will of Hari Ram, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the averments made by Hari Ram that the property was his personal property, is incorrect.Accordingly, in view of the above, the appeals filed by the appellant(s) were dismissed by the SC. 

In the present case, the trial court decided all the issues in favour of the plaintiff and decreed the suit holding that all the properties were joint family properties and that plaintiff had 2.38% share in the same. The contesting defendants filed an appeal in the High Court of Madhya Pradesh, and accordingly the decree by the trial court was set aside by the HC. The judgment of the HC - dismissing the suit of the plaintiff- was sustained by the SC as aforesaid.