Chandrapal v. Basdeo Prasad — 1986 DIGILAW 374 (ALL)

JUDGMENT 1. This is plaintiffs-appeal 2. The following genealogical table serves to elucidate the facts of the case :- 3. The dispute is between the two branches of Chandrapal and Bhudeo Prasad. The defendants Nos. 8 to 11 are the grandsons of Bhudeo Prasad (since deceased). The suit giving rise to the appeal - Original Suit No. 60 of 1965 was instituted by Chandrapal and his sons against Bhudeo Prasad and his descendants including his wife Smt. Katori Devi. Basdeo Prasad was also arrayed as defendant No. 1. The property in, dispute is comprised in the following Schedules : Schedule 'A' : This comprised of the residential house, one other house and two shops. Schedule 'B' : comprising of two houses. Schedule 'C' : consisting of one house and one Kothi. Schedule 'D' : ancestral business in the name is of Basdeo Prasad Maidawala : Caltex, Petroleum business in the name of Basdeo Prasad, Chandrapal and Modi Vanaspati, agency in the name of Janki Prasad, Sheo Prasad. Schedule 'E' : certain moveables and cash. 4. Shortly stated, the plaintiffs case is that the parties constitute a joint Hindu family. Bhola Nath the common ancestral of the parties had flourishing wholesale business in Maida, Suji etc. at Aligarh and possessed one residential house, four other houses and four shops in Aligarh. He died about 60 years prior to the suit instituted on June 1, 1965. Basdeo Prasad and Chhitarmal continued joint after his death but nearly twenty years prior to the suit they divided their properties including ancestral business. The property referred to in Schedule A fell to the share of Basdeo Prasad. Basdeo Prasad was the Karta of the family comprising of the plaintiffs and other defendants. The family acquired by purchase other immovable and moveable property from time to time. They also got the agency of Caltex, Petroleum and Modi Vanaspati. The share of the plaintiffs in the property specified as above was claimed to be ?rd and the relief sought was partition according to law. 5. In defence, it was admitted that Basdeo Prasad had been the Karta of the family up to March 31, 1965 but thereafter there was disruption, it was stated, in the joint family. Bhola Nath died since 68 years earlier leaving two sons namely Chhitarmal and Basdeo Prasad and some immoveable properties. 5. In defence, it was admitted that Basdeo Prasad had been the Karta of the family up to March 31, 1965 but thereafter there was disruption, it was stated, in the joint family. Bhola Nath died since 68 years earlier leaving two sons namely Chhitarmal and Basdeo Prasad and some immoveable properties. He did not have the business in Suji, Maida but only a small Parchuni shop. His sons divided themselves shortly afterwards. Basdeo Prasad took small Parchuni shop of his own about five years after the death of his father and without the aid of any ancestral fund. The joint immoveable properties were divided between Chhitarmal and Basdeo Prasad in the year 1946 through the medium of arbitration. Until then the rental was being realised and appropriated by Chhitarmal alone at the rate approximately Rs. 18/-, 20/- per month. The properties are self-acquired of Basdeo Prasad and not ancestral or of joint Hindu family with the exception of those comprised in items Nos. 1 and 2 and one of the two shops situate towards south out of item No. 3 of Schedule A. The business referred to in Schedule D was self-acquired by Basdeo Prasad; the caltex Agency was cancelled about 15 years prior to the suit. The plaintiff No. 1 was looking after the Branch at Bulandshahr for which he had taken Rs. 15,000/- in cash from the Aligarh kerosene oil shop and a sum of Rs. 7238.00 from the Maida/Suji shop run under the name and style of Basdeo Prasad Maidawala. 6. Upon consideration of the evidence the trial Court came to the finding that except the property enumerated at items 1 and 2 and one of the two shops referred to at item No. 3 in Schedule A and the foot of the plaint, the rest were self-acquired of Basdeo Prasad. There was no nucleus nor were these properties acquired with the aid of any joint family fund or other joint family property. There was no blending as pleaded for the plaintiffs in the alternative. In the lifetime of Basdeo Prasad consequently the plaintiffs did not have interest in these properties and could not, therefore, seek partition thereof. A sum of Rs. 33000/- has been estimated roughly as being the cash in the hands of Basdeo Prasad and the plaintiffs have been awarded ?rd share in the same amounting to Rs. 11000/- only. In the lifetime of Basdeo Prasad consequently the plaintiffs did not have interest in these properties and could not, therefore, seek partition thereof. A sum of Rs. 33000/- has been estimated roughly as being the cash in the hands of Basdeo Prasad and the plaintiffs have been awarded ?rd share in the same amounting to Rs. 11000/- only. The suit has thus been decreed on September 14, 1968 allocating ?rd share to the plaintiffs in items 1, 2 and one of the shops referred to in item No. 3 of Schedule A and a sum of Rs. 11000/-in cash. For the rest it has been dismissed. 7. Aggrieved the plaintiffs have preferred this appeal in relation to the property mentioned in Schedules `B', `C' and `D' and one of the remaining shops in Schedule A. The defendants filed cross objection disputing the correctness of the decree in so far as it awards Rs. 11000/- in cash to the plaintiff. 8. Basdeo Prasad (defendant No. 1) died on February 14, 1970 leaving a registered Will dated September 14, 1965. Under the will he has bequeathed his entire property to Bhudeo Prasad (defendant No. 2). Subsequent to his death the parties amended their pleadings. The plaintiffs have claimed thereafter share in the property contending that they are entitled to this share even if it were assumed that Basdeo Prasad was the exclusive owner thereof. They disputed the execution and the genuineness of the Will dated September 14, 1965. On January 17, 1983, this Court framed additional issues as the following (1) Whether Basdeo Prasad executed any Will dated 14th September, 1965? (2) Whether the Will executed by Basdeo Prasad was genuine? 9. These issues were remitted to the trial Court for decision. The finding recorded by the Civil Judge dated Jaiuary 10, 1985 is that Basdeo Prasad did execute the Will dated September 14, 1965 and that it is genuine. Against this the appellants veliled objection before this Court. 10. The respondent No. 2 Bhudeo Prasad died on August 24, 1983. Under order of this court dated August 30, 1984 his legal representatives have been substituted on the record. 11. I have heard learned counsel for the parties and perused the record. 12. Dispute does not exist as mentioned above, in regard to the property comprised in items Nos. 10. The respondent No. 2 Bhudeo Prasad died on August 24, 1983. Under order of this court dated August 30, 1984 his legal representatives have been substituted on the record. 11. I have heard learned counsel for the parties and perused the record. 12. Dispute does not exist as mentioned above, in regard to the property comprised in items Nos. 1 and 2 besides the shop situate to the south out of the two shops comprised in item No. 3 of Schedule `A'. These are admittedly ancestral. The descendants of Basdeo Prasad acquired interest therein by birth. Under the decree of the trial Court the appellants have been given ?rd share in these items of property. The appellants have laid claim to half subsequent to the death of Basdeo Prasad contending that they are entitled to share equally the interest which Basdeo Prasad had in this property. As will presently appear, this contention cannot be sustained for the reason that Basdeo Prasad bequeathed his interest by Will dated September 14, 1965 in favour of Bhudeo Prasad respondent No. 2 and in view of the Explanation to S. 30 of the Hindu Succession Act, 1956 Basdeo Prasad would be competent to bequeath his interest by will even in joint family property. The share of the appellants in these items, therefore, does not exceed one-third. 13. Regarding the two houses specified in Schedule `B', Shri K. N. Tripathi, learned counsel for the appellants candidly stated that no case can be claimed to be made out. The reason is apparent on the record. According to the averments made in para 7 of the plaint Basdeo Prasad advanced as loan a sum of Rs. 7000/- out of the joint family fund to Rajeshwar Dayal and Murlidhar who executed possessory mortgage of these two houses in the name of Smt. Katori Devi (wife of Bhudeo Prasad). Smt. Katori Devi the mortgagee instituted Original Suit No. 42 of 1961 in the Court of the Civil Judge for recovery of the mortgage amount by sale if necessary. This resulted into a compromise entered into on February 28, 1964. The mortgagors transferred their interest in the property to Smt. Katori Devi by sale. Smt. Katori Devi the mortgagee instituted Original Suit No. 42 of 1961 in the Court of the Civil Judge for recovery of the mortgage amount by sale if necessary. This resulted into a compromise entered into on February 28, 1964. The mortgagors transferred their interest in the property to Smt. Katori Devi by sale. The contention put forward in defence was that the amount advanced as loan to the mortgagors was by Smt. Katori Devi herself out of her Stridhan and Basdeo Prasad or the family had no interest in the same. The purchase made was by Smt. Katori Devi on her own account. Basdeo Prasad testified before the trial Court that Smt. Katori Devi had received a sum of Rs. 7000/- as the present on the occasion of the marriage of her son Indrapal and it is this amount which she had invested by lending the same to Rajeshwar Dayal and another. He specified that the money did not belong to him or of the joint family. From the decree passed in Original Suit No. 42 of 1961 dated February 28, 1964, it will appear, that the purchase made later was by Smt Katori Devi on her own. There is no presumption that the transaction was Benami Chandrapal examined as P. W. 1 disclaimed knowledge in regard to this transaction and there is no other evidence to make out that Basdeo Prasad or the family had interest in this item of the property or that the transaction was entered into Benami. This property has consequently rightly been adjudged to belong to Smt. Katori Devi respondent No. 12 exclusively. 14. Sri K. N. Tripathi the appellants' learned counsel urged that there was nucleus with the aid of which the rest of the property in dispute could have been acquired. For joint ancestral family property it would be necessary to establish that there was nucleus because without a previous nucleus of joint family property, this would not come into existence. A little probe into the evidence reveals that no such nucleuses shown to exist in the present. Bhola Nath died in or about the year 1898. For joint ancestral family property it would be necessary to establish that there was nucleus because without a previous nucleus of joint family property, this would not come into existence. A little probe into the evidence reveals that no such nucleuses shown to exist in the present. Bhola Nath died in or about the year 1898. D.W. Basdeo Prasad (son of Bhola Nath) aged about 86 years when he came to the witness box before the trial Court in July 1968 deposed on personal knowledge that the death of his father took place when he was nearly 16 years of age and that 70 years had since then expired. There is no evidence in rebuttal of the point. He also points out that Bhola Nath had a small grocery shop selling miscellaneous articles in retail and it is wrong to say that he business in wholesale dealing in Maida suji or rice. Nainsukh and Bhola Nath the two others ran a grocery shop jointly. Nainsukh had predeceased Bhola Nath by about a fortnight. On the death of Bhola Nath that business was looked after by Munshi Lal son of Nainsukh. D. W. Basdeo Prasad was himself then a student reading in Maktab. Munshi Lal carried on that business for two years only whereafter it was closed. So far as Basdeo Prasad is concerned he opened a shop dealing in perchun in the premises taken on rent from Smt. Raniya in the year 1901. This he did, investing a sum of Rs. 10/- which he obtained from his maternal uncle. This was located at a distance of 10-15 paces from the earlier perchun shop of his father. In or about 1908 he shifted to Halvaikhana and started business in Maida suji which he carried on for 23-24 years whereafter he shifted to Mahavirganj. The business run by him in Maida suji at that place was in the name of Basdeo Prasad Maidawala. In running the shop he was assisted by his elder son namely Basdeo Prasad; the plaintiff No. 1 Chandrapal was then a student. In corroboration Basdeo Prasad also placed on record the cash and the ledger books maintained by him in the regular course for the entire period of 1938-39 to 1964-65. The significant features of the case are that on vital points there is the solitary testimony of DW Basdeo Prasad based on his personal knowledge. In corroboration Basdeo Prasad also placed on record the cash and the ledger books maintained by him in the regular course for the entire period of 1938-39 to 1964-65. The significant features of the case are that on vital points there is the solitary testimony of DW Basdeo Prasad based on his personal knowledge. There is no other witness on either side in position to testify to these material facts. Despite his age and natural infirmity resulting on this account Basdeo Prasad withstood detailed cross-examination remarkably well and with consistency he has authoritatively deposed to this from his own knowledge. Nothing could be pointed out in the course of arguments from the side of the appellants to suggest that he may have had an axe to grind or that there could be any satisfactory reasons for him to side with one branch of his two sons and ignore the other so far as their rights flow upon the admitted facts of the case. PW Chandra Pal attempted in vain to rebut his father forgetting however, that he was not in existence when Bhola Nath died and was incapable to depose to things as they existed upon the death of the grandfather except on the basis of hearsay which is inadmissible. 15. From the evidence thus placed on record I have no hesitation in finding that Bhola Nath did not have wholesale business in Maida-suji or rice. He had a small grocery shop which he run along with his elder brother Nainsukh. Basdeo Prasad commenced his business independently with a small perchun shop in 1901 thereby making small beginning wherein he invested Rs. 10/- obtained from the maternal uncle. The shop which Bhola Nath run during his lifetime was taken over by Munshi Lal son of Nainsukh and closed after about two years. 16. It is not in dispute that Bhola Nath also left upon his death three houses and four shops all of which were held by different tenants on rent. These were in dilapidated condition and worn out. The total rental income was in the neighbourhood of Rs. 18- 20 per month. The entire rental used to be realised by Chhitarmal the elder brother of Basdeo Prasad. This he continued to do up to 1946 when there was the division of the property between the brothers.. These were in dilapidated condition and worn out. The total rental income was in the neighbourhood of Rs. 18- 20 per month. The entire rental used to be realised by Chhitarmal the elder brother of Basdeo Prasad. This he continued to do up to 1946 when there was the division of the property between the brothers.. This finds corroboration from the agreement entered into between Chhitarmal and Basdeo Prasad in writing and registered dated December 21, 1945 (Ex. A6) wherein it was recited that they had separated but the property had continued to be joint and also that Chhitarmal had made realisation of rent right from 1926 to which he had spent certain amount towards repairs etc. The agreement was for reference to arbitration in order that the property be divided between them. Sri Poshaki Lal Vakil the Arbitrator gave his award on 28th November, 1946 and this also was registered vide Ex. A5. Thereby the property was divided by metes and bounds; in regard to the rental it was specified that the same had been realised by Chhitarmal and is to be regarded squared up by the amount spent towards repairs etc. It becomes manifest, therefore, that Basdeo Prasad did not receive any amount out of the rental of the property during 1926-46 and it is during this period that he commenced the business as referred to above. For this reason the aid of income from rental of ancestral property too was not available to him. Chandrapal the plaintiff No. 1 aged about 50 years when he came to the witness-box on July 29, 1968 was evidently not born when Bhola Nath died. He said that he had heard that Bhola Nath used to deal in Suji and Maida which is hearsay. It was stated by him that he has papers relating to the business carried on by Bhola Nath and also that he has papers relating to the business carried on by Basdeo Prasad and his brother along with Nitya Nand. None of these papers have, however, seen the light of the day nor is any reason assigned. It can be safely assumed that no such paper exists. Chandrapal went on to say that in the year 1926 there was division of business between Chhitarmal and his brother Basdeo Prasad but the immovable property remained joint. None of these papers have, however, seen the light of the day nor is any reason assigned. It can be safely assumed that no such paper exists. Chandrapal went on to say that in the year 1926 there was division of business between Chhitarmal and his brother Basdeo Prasad but the immovable property remained joint. According to him the papers relating to the division of business are in the custody of Nityanand (son of Munshi Lai). These papers, too, were neither summoned nor produced for and on behalf of the plaintiffs in the Court below. The witness stated that up to 1946 the rental realised was Rs. 60/- or Rs. 70/- per month but he expressed inability altogether to give any particulars thereof. Significantly in paragraph 5 of the plaint it was averred that Basdeo Prasad and his brother Chhitarmal had continued to be joint representing their family but about twenty years prior to the institution of the suit they had divided their property and business both. From this averment in the pleadings there was a material departure in the course of the deposition made on oath since Chandrapal testified that the division in business took place earlier in or about 1926 and it is immoveable property alone which was divided in 1946. This somersault he had to take necessarily in face of the arbitration agreement and the award filed from the other side. The trial court has rightly discarded the testimony of Chandrapal on this score. 17. Regard being had to the above, my finding on this aspect is that there was no nucleus available to Basdeo Prasad from the ancestral joint family property when he made the beginning of the small scale business in or about the year 1901 subsequent to the death of his father Bhola Nath, and that the business commenced by him was exclusively his own. 18. Taking up now the case in relation to items Nos. 1 and 2 of Schedule C and the northern shop out of the item No. 3 of Schedule A, the question raised is whether these may be said to have been acquired with the aid of joint family fund or joint family property. 18. Taking up now the case in relation to items Nos. 1 and 2 of Schedule C and the northern shop out of the item No. 3 of Schedule A, the question raised is whether these may be said to have been acquired with the aid of joint family fund or joint family property. The undisputed position under the law is that even if there be no nucleus shown to exist, it may be a case where the property is acquired with the aid of joint family fund or other joint family property and in that event too it may, on the facts and circumstances of a case, assume the joint family property character. On behalf of the respondents there is reference in this connection made to the transactions whereby these items of property were purchased by Basdeo Prasad. These are as under: 1. Sale deed dated October, 21, 1942 for Rs. 1250/- in respect of the house in Mohalla Sarai Hakim Aligarh referred to item No. 1 (schedule `C') purchased from Hiralal and another Ex. A-4. 2. Sale-deed dated November 8, 1945 in respect of Kothi specified as item No. 2 Schedule `C' situate in Kanwariganj, Aligarh purchased from Rahimuddin for Rs. 8000/-. 3. Sale deed dated August 30, 1936 in respect of the northern shop at Sarai Nawab in Aligarh included in item No. 3 Schedule `A' purchased from Ganga Prasad for Rs. 1895/- vide Ex. A3. 19. All these purchases made were by Basdeo Prasad who testified that he did that from his earning out of Maida suji shop run at Aligarh in the name and style of Basdeo Prasad Maidawala. He had a flourishing income in due course of time from this business in which he made a small beginning during 1901-08. The accounts filed by him for the time 1938- 39 to 1964-65 lend corroboration in this behalf. These accounts were maintained in the ordinary course of business and nothing could be pointed out on the appellants side to cause suspicion regarding their authenticity. The transactions are found referred to therein. As I have mentioned above up to year 1946 Basdeo Prasad was not in position to realise any part of the rental income of the ancestral property, the reason being that this was being done throughout by his elder brother Chhitarmal of his own. The transactions are found referred to therein. As I have mentioned above up to year 1946 Basdeo Prasad was not in position to realise any part of the rental income of the ancestral property, the reason being that this was being done throughout by his elder brother Chhitarmal of his own. Subsequent to 1946, Basdeo Prasad could no doubt make realisation of this rental income but then he had as well to maintain his family consisting of the plaintiff No. 1, the defendant No. 2 and their descendants. It is not possible reasonably to conclude in the circumstances that the purchases aforementioned could have been made by Basdeo Prasad with the aid of joint family fund or other joint family property. 20. Sri Tripathi has placed reliance on the statement made by Basdeo Prasad in original suit No. 560 of 1964 in the court of the Small Causes Aligarh and the statement of Bhudeo Prasad in that same suit vide Exs. A 11 and 12. It appears Basdeo Prasad had brought that suit against Shiv Dutta Sharma for recovery of the price of oil sold to him. From the trend of the cross-examination as revealed in these statements it transpires that there was an issue raised in regard to the firm of the plaintiff not being registered. To get over this point of objection, Basdeo Prasad and his son Bhudeo Prasad both appear to have stated that these were joint family firms. Though it was also stated almost in the same breath that Basdeo Prasad was the proprietor thereof, it was deposed too that Basdeo Prasad is shown as proprietor in the bill books. The statements were evidently purposive to serve the object behind that suit and these may not be safely relied upon in face of the direct evidence placed on the record herein to say that the business commenced was not of Basdeo Prasad exclusively. This applies also to the income tax assessment during the period of 1958-59 to 1962-63 which Sri Tripathi relies upon vide Exs. 7 to 10. The argument is that the assessment was done as HUF and not in individual capacity by Basdeo Prasad. This applies also to the income tax assessment during the period of 1958-59 to 1962-63 which Sri Tripathi relies upon vide Exs. 7 to 10. The argument is that the assessment was done as HUF and not in individual capacity by Basdeo Prasad. This also has to be considered alongside with other direct evidence existing on the subject which throw abundant light to establish that Basdeo Prasad was the real and the exclusive owner of the business which he ran in the name of Basdeo Prasad Maidawala and also Basdeo Prasad-Chandrapal. If for purposes of income-tax assessment, it was chosen to describe the income as of the H.U.F. it cannot be taken to prove in derogation of other evidence that the property was of joint family held as such and not the self acquired or separate belonging to Basdeo Prasad. Basdeo Prasad deposed that the entire income-tax dues were being paid by him alone out of the income from the business. There were no assets in his under (Sic) pertaining to joint family property nor was even the rental available to him during 1936-45 when he made the purchases afore- mentioned. 21. For these reasons it may not be said that these properties be deemed to be purchased or acquired with the aid of joint family fund or joint family property. 22. For the appellants Sri Tripathi submitted then concerning the property in Schedule D that the business be deemed to have been, blended in the alternative with the joint family assets and on this account the appellants be taken to have acquired interest therein. Of the three items under this Schedule item No. 1 is the business described as the ancestral business in Maida Suji run in the name and style of Basdeo Prasad Maidawala. Enough has been said already to the effect that this was the exclusive business of Basdeo Prasad carried on with his earning and independent resources with the small beginning made from 1901-08. Item No. 2 refers to the agency acquired from M/s Caltex (India) Ltd. under the agreement dated August 1, 1954. The agreement entered into is in the name of Basdeo Prasad and the agency was proposed to be run in the name and style of Basdeo Prasad Chandrapal, Aligarh. Item No. 2 refers to the agency acquired from M/s Caltex (India) Ltd. under the agreement dated August 1, 1954. The agreement entered into is in the name of Basdeo Prasad and the agency was proposed to be run in the name and style of Basdeo Prasad Chandrapal, Aligarh. Item No. 3 pertains to another agency taken from the Modis relating to Modi Vanaspati by Basdeo Prasad in 1954-55, and run in the name and style of Janki Prasad Sheo Prasad, Aligarh. Janki Prasad Sheo Prasad both are grand sons of Basdeo Prasad in the branch of Bhudeo Prasad. These were new busineses commenced or taken up by Basdeo Prasad entirely on his own resources. We do not have any material before us to conclude that the rental income during 1946-54 could suffice for any of these agencies to be taken up or for the business connected, therewith being run either. There were separate accounts maintained in relation to both and there was no mixing up with the old business run under the name of Basdeo Prasad Maidawala at Aligarh. It is true that Basdeo Prasad associated his son Chandrapal with one of these agencies and the grandsons with the other but this was with the object of smooth running of the business and in order to assist them to make some earning. My attention was invited by the learned counsel to a post card written by Basdeo Prasad to Chandrapal in 1955 vide Ex. I. It appears there was a Branch opened by Basdeo Prasad at Bulandshahr relating to the agency taken from M/ s. Caltex (India) Ltd. Chandrapal was entrusted with the running of that Branch at Bulandshahr. In the letter aforementioned Basdeo Prasad asked the son to send money in order that business at Aligarh may also continue to be run smoothly. This in my opinion does not suggest by any means that the agency business was not of Basdeo Prasad exclusively his own. In fact Basdeo Prasad deposed and the books of account maintained by him reveal that Chandrapal had taken money to Bulandshahr from time to time for which he was expected also to maintain accounts. Both in cash and in kind Basdeo Prasad assisted his son to enable him to run the branch aforesaid. Basdeo Prasad nonetheless retained his exclusive proprietorship of the business while trying to assist the son as best he could. Both in cash and in kind Basdeo Prasad assisted his son to enable him to run the branch aforesaid. Basdeo Prasad nonetheless retained his exclusive proprietorship of the business while trying to assist the son as best he could. DW Indrapal (son of Bhudeo Prasad) who used to look after the Caltex Agency business in Aligarh testified with the aid of the cash and ledger accounts of the period of 1953-54 and 1954-55 which he produced in the court that whatever goods were sent to the Branch at Bulandshahr, the value thereof used to be entered in those accounts. These were debited in the name of the Branch. The cash amount taken by the Branch was made note of as well. This belies the contention of the D.W. Chandrapal that no goods were taken from the Head Quarters. He said that he had not brought his own accounts for the period preceding the year 1962 for which there could be no reason assigned by him and for the period subsequent to this, he said that in his account balance was not drawn from day to day which suggests that these cannot be taken to be maintained in the regular course of business. Basdeo Prasad had testified that the Branch had taken i s. 23000/- from him and in aid he cites the accounts regularly maintained at Aligarh. 23. It is well established no doubt that the property which was originally separate or self acquired property of a member by a joint family may, by operation of the doctrine of blending, became joint family property. if it has been voluntarily thrown by him into the common stock with the intention to abandon all separate claims upon it. The theory of blending under the Hindu Law proceeds on the principle of a wider sharing of ones own properties by permitting the members of ones joint family the privilege of common ownership and common enjoyment of such properties vide : Pushpa Devi v. CIT. New Delhi (1077) 4 SCC 184: ( AIR 1977 SC 2230 ). There must be established for this purpose, a clear intention to waive the separate rights. This must not be shown to be aimed at merely extending help to a junior member of the family. New Delhi (1077) 4 SCC 184: ( AIR 1977 SC 2230 ). There must be established for this purpose, a clear intention to waive the separate rights. This must not be shown to be aimed at merely extending help to a junior member of the family. Mulla, Principles of Hindu Law (15th Ed.) observes at page 295-296 that "a clear intention to waive his separate rights must be established and it will not be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used to support a son nor from the mere failure of a member to keep separate accounts of his earnings. So also acts of generosity or kindness should not be construed as admissions of legal obligation "To the same effect is the view expressed in S. V. Guptes Hindu Law (3rd Ed) Vol. I page 105-6". Intention must be clear and unequivocal. A clear intention to waive his separate rights must be established and cannot be inferred from the mere fact that other members of the family have had the use of such property, or acts which may have been done merely from kindness or affection. The mere fact that the manager or Karta of the family mixes the income of the joint family with the income of his separate property is not sufficient evidence of an intention to alter the character of his property where he keeps separate accounts of the income, as was done in the present case. 24. In Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama, AIR 1963 SC 1601 the Supreme Court laid down in this respect :- "Law relating to blending of separate property with joint family property is well settled. Property separate or self acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Property separate or self acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily he regarded as an admission of a legal obligation." 25. See also Bharat Oil Industries, Kanpur v. C.I.T. U.P. AIR 1967 All 557 upon the application of the test thus laid down in these authorities the present may not be claimed to be a case where there was blending with the clear and unequivocal intention exhibited on the part of Basdeo Prasad who intended, it appears, to set up his son in the business during his lifetime. 26. On behalf of the respondents Sri Rajendra Kumar made reference to the cross- objection filed by them relating to the award of Rs. 11000/- in cash to the appellants-plaintiff by the trial court. It was argued that the rental income which was Rs. 18/- to 20/- per month only during 1926-46 could not rise to Rs. 200/- to Rs. 250/- per month so as to justify the court below in estimating the accumulated amount at Rs. 33000/- during this period. There may appear an element of conjectures indulged into by the court below in this respect but the court has proceeded on the testimony of P.W. Chandrapal and also taken into account the material fact that there is no rebuttal of the same. Basdeo Prasad on his part did not depose anything to the contrary so far is this aspect is concerned. The court has on the whole taken a reasonable view considering that the moveables referred to in Schedule `E' were being left over with the respondents-defendants and the amount arrived takes this also into consideration. Basdeo Prasad on his part did not depose anything to the contrary so far is this aspect is concerned. The court has on the whole taken a reasonable view considering that the moveables referred to in Schedule `E' were being left over with the respondents-defendants and the amount arrived takes this also into consideration. There is no appeal in so far as Schedule `E' is concerned and consequently there is no question of the appellants share in this amount being raised to one-half even if it were possible to hold that there was no will executed by Basdeo Prasad which as will presently appear, is not borne out. 27. Consequent upon the death of Basdeo Prasad which took place on February 14, 1970 during the pendency of this appeal, the appellants-plaintiffs have laid claim to one-half share contending that even if Basdeo Prasad was the exclusive owner they have become entitled to this share, the other half going in that event to the branch of Bhudeo Prasad. This contention for the appellants is not sustained in view of the bequest which (of?) Basdeo Prasad in writing and registered dated September 14, 1965. Due to this the Court remitted additional issues to the trial court on January 17, 1983. The court below recorded evidence in regard to the proof of the will and has returned the finding on both the issues against the appellants. I have perused the record and also considered the objections raised against this finding from the side of the appellants. In proof of the will the respondents examined Chiranji Lal one of the two attesting witnesses the other being dead and Sri Niwas, the scribe besides Indrapal respondent. All of them testified to the due execution of this instrument by Basdeo Prasad while he was in the disposing state of mind. The will was also registered on the same day that is September 14, 1965. The appellants chose to plead all together vaguely that there was coercion exercised against Basdeo Prasad but not an iota of evidence could be adduced in support thereof nor could there be anything suggested to the witnesses on the other side in cross examination to create suspicion on the subject. The appellants chose to plead all together vaguely that there was coercion exercised against Basdeo Prasad but not an iota of evidence could be adduced in support thereof nor could there be anything suggested to the witnesses on the other side in cross examination to create suspicion on the subject. It is true that Basdeo Prasad excluded the branch of Chandra Pal from the benefit in the bequest but this evidently was, as he also recites in the will, due to Chandrapal and others having taken recourse to this litigation commenced on June 1, 1965 wherein they did not spare even Basdeo Prasad. This recital in the will finds corroboration from the stand which Basdeo Prasad took when he appeared in the witness box in July 1968. It is not unreasonable in this background that Basdeo Prasad opted not to accord any benefit to the branch of Chandrapal other than that already conferred in cash and in kind enabling them to run the branch at Bulandshahr aforementioned. In my view there is nothing unnatural or doubtful shown to exist regarding this instrument. The appellants, therefore, do not derive any benefit thereunder nor does this serve to create any right, title or interest in them in the properties which otherwise is not shown to exist. 28. For the discussion made in the above, the appeal and the cross objection both are dismissed being devoid of merit. Costs on parties.