IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 287 of 2002. Reserved on: 25.08.2010. Decided on: 20.09.2010. __________________________________________________________ Inderjit Singh and others. … Appellants. Versus Omkar Singh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondents : Mr. Hoshiar Kaushal, Advocate vice Mr. Bimal Gupta, Advocate for respondents No.1 to 3 and 5 & 6. Rajiv Sharma, J.: This Regular Second Appeal is directed against the judgment and decree passed by the learned District Judge, Sirmour district at Nahan on 14.12.2001 in Civil Appeal No.36-CA/13 of 2000. 2. Material facts necessary for adjudication of this regular second appeal are that the plaintiffs/appellants (hereinafter referred to as “plaintiffs” for convenience sake) had filed a suit for declaration before the learned Sub Judge 1st Class, Paonta Sahib to the effect that they are entitled to get their share in the land comprised in Khewat No.46, Khatauni No.104, Khasra Nos. 266/82, 311/102, 313/102, 166, 182, 80, 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 181 and 182 measuring 70 bighas 4 biswas situate in Mauja Behral, Tehsil Paonta Sahib, District Sirmour (hereinafter referred to as the suit land for brevity) partitioned. The suit land was stated to be owned by one Shri Ishwar Singh, who constituted joint Hindu Family with his son Omkar Singh, respondent No.1/defendant No.1 (hereinafter referred to as “defendant No.1” for convenience sake) and after his death it devolved upon his son Omkar Singh. The plaintiffs claim to be co- parceners in the suit land being the sons of respondent No.3/defendant No.2, Harmail Singh (as per plaint) (hereinafter referred to as “defendant No.2” for convenience sake) and grand sons of defendant No.1. According to the plaintiffs, they separated in mess about 12-15 years back and land measuring 7 bighas was given to defendant No.2 in the family partition which is now in the joint cultivation and possession of plaintiffs and defendant No.2. According to the plaintiffs, defendant Nos.1 to 6 were entitled to get 1/6th share each and plaintiffs were entitled to 1/24th share each in the suit land. They have prayed that the suit land be partitioned by allotting 1/24th share each to the plaintiffs. Defendants No.1 and 3 to 6 filed a joint written statement contesting the claim of the plaintiffs. It was averred that defendant No.2 had filed a suit against defendant No.1, which was got compromised in Lok Adalat on 21.11.1993 and Harmail Singh was given 6 bighas of land by his father, defendant No.1. The same was cultivated by defendant No.2 and the plaintiffs. The defendants denied the suit land to be joint Hindu Family coparcenary property. According to them, the suit land was inherited from Ishwar Singh and defendant No.7 (since deceased), who are the joint owners in possession of the land. They denied that 7 bighas of land was allotted to defendant No.1 in family partition. Defendant No.7 - 3 - had also contested the suit by filing separate written statement. The plaintiffs have filed replication and the issues were framed by the trial Court on 7.10.1998. The trial Court dismissed the suit on 30.12.1999. The plaintiffs preferred an appeal before the learned District Judge on 16.2.2000 against the judgment and decree dated 30.12.1999 passed by the trial Court. The learned District Judge partly allowed the appeal 14.12.2001 and the judgment and decree dated 30.12.1999 of the trial Court was set aside and the suit was decreed to the effect that the plaintiffs are joint owners in possession to the extent of 1/48th share in the suit land. A preliminary decree was directed to be prepared. This regular second appeal has been preferred against the judgment and decree dated 14.12.2001 passed by the learned District Judge in Civil Appeal No.36-CA/13 of 2000. 3. Mr. Bhupender Gupta, learned Senior Advocate for the appellants has strenuously argued that the suit of the plaintiff was required to be decreed in its entirety. His further contention is that the learned District Judge has come to the wrong conclusion that defendant No.7 Sadhu Singh (since deceased) was the son of Shri Ishwar Singh. 4. Mr. Hoshiar Kaushal, Advocate appearing vice Mr. Bimal Gupta, learned counsel for defendants No.1 to 3 and 5&6 has supported the judgment and decree passed by the trial Court. 5. This regular second appeal was admitted on 20.8.2002 on the following substantial questions of law:- 1. Whether the Lower Appellate Court has acted with material illegality and irregularity in recording the findings that the Plaintiffs-Appellants are bound by the admissions made in Exhibit DW-2/A, pleadings in Civil Suit No.42/1 of 93, in which the Plaintiffs-Appellants were not a party? Has not the Lower Appellate Court - 4 - acted in excess of the jurisdiction in holding that the admissions of Defendant No.2 are binding on the Plaintiff-Appellants? 2. Whether the Lower Appellate Court has materially erred in law in holding the suit property to be coparcenary property of the parties to the suit inclusive of Defendant No.7? Are not findings of the Lower Appellate Court in this regard illegal, erroneous when no right of Defendant No.7 was established on the record by oral and documentary evidence? 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. Since both the substantial questions of law are interlinked and interconnected, the same are taken up together for determination to avoid repetition of discussion of evidence. 8. What appears from the evidence brought on record by the parties is that Ishwar Singh had two sons, namely, Sadhu Singh and Omkar Singh. Omkar Singh, defendant No.1 had five sons and wife. Harmail Singh, defendant No.2 was also one of his sons. Plaintiffs are sons of Harmail Singh and as such, it is proved on record that the plaintiffs are grand sons of Omkar Singh. The plaintiffs have failed to prove any family partition on the basis of which defendant No.2 was allotted 7 bighas of land. 9. The learned District Judge after considering the ratio of law laid down in State Bank of India v. Ghamandi Ram (dead) by his legal representative Gurbux Rai, AIR 1969 SC 1330 has returned the findings that the plaintiffs were coparceners and have a right to ask for partition. Their Lordships have held as under (para 7):- - 5 - “According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasicorporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Chapter I, 1-27). The incidents of co-parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenery under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of the latter. In Sundarsanam Maistri v. Narasimhulu Maistri; (1902) ILR 25 Mad 149 at p.154. Mr. Justice Bhashyam Ayyangar stated the legal position thus:- "The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body [Gan Savant Bal Savant v. Narayan Dhond Savant, (1883) ILR 7 Bom 467 and Mayne's Hindu Law and Usage', 6th edition, paragraph 270] and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants - 6 - in the male line, and so long as that family is in its normal condition viz., the undivided state - it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family". Adverting to the nature of the property owned by such a family the learned Judge proceeded to state: "As regards the property of such family the 'unobstructed heritage' devolving on such family, with its accretions, is owned by the family, as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body". Having regard to the juristic nature of the Hindu joint family, according to the doctrine of Mitakshara, we are of the opinion that the Hindu joint family firm of Ghamandi Ram Gurbax Rai cannot be treated as an 'individual' within the meaning of the notification of the Pakistan Government dated 19th February, 1952, but the said firm must be treated' as 'a body of individuals whether incorporated or not' within the meaning of that notification. 10. Their Lordships have held in the above cited judgment that the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the - 7 - property is possible unless it be for necessity, and sixthly, that the interest of a deceased member lapses on his death to the survivors. 11. Since the suit property is coparcenary property, the plaintiffs could claim separate shares and seek its partition. 12. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the finding rerecorded by the learned District Judge that defendant No.7 Sadhu Singh (since deceased) was the son of Shri Ishwar Singh is erroneous. The learned District Judge while returning this finding has taken into consideration the copy of Pariwar Register, Ex.DW-1/A. In para 6 of the plaint in Civil Suit No.42/1 of 1993, which is Ex.DW-2/A, defendant No.2 Shri Harmail Singh had pleaded that Omkar Singh and Sadhu Singh (since deceased) were brothers. Defendant No.2, Harmail Singh is the predecessor-in-interest of the plaintiffs and his admission also binds them. 13. Their Lordships of Hon’ble Supreme Court in Basant Singh (In both the appeals) v. I. Janki Singh and others, AIR 1967 SC 341 have held as under (para 5):- The High Court also observed that an admission in a pleading can be used only for the purpose of the suit in which the pleading was filed. The observations of Beaumont, C. J. in Ramabai Shriniwas v. Bombay Government, AIR 1941 Bom 144, lend some countenance to this view. But those observations were commented upon and explained by the Bombay High Court in D. S. Mohite v. S. I. Mohite, AIR l960 Born 153. An admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of S. 17 of the Indian Evidence Act. 1872, and may be proved against him in other litigations. The High Court also relied on the English law of evidence. In Phipson on Evidence, 10th Edn., Art. 741, the English law is thus summarised : - 8 - "Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of counsel, and are not receivable against a party as admissions, unless sworn, signed, or otherwise adopted by the party himself." Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski v. Cairns, (1852) 1 Macq 212, the House of Lords decided that an admission in a pleading ing signed by a party was evidence against him in another suit not only with regard to a different subject-matter but also against a different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.” 14. Similarly, their Lordships in Union of India v. Mokesh Builders and Financiers Ltd. and others etc., AIR 1977 SC 409 have held as under (para 21):- “…….. The main attack was that they were admissions of a co-defendant and were not admissible against defendant No. 2. As has been stated, we have not taken them into consideration as evidence against that defendant. There is however no force in the other argument that they are not admissible in evidence against defendant No. 3 as he was not confronted with them in the trial court and they were not adverse to the interest of their maker at the time when they were made. It has been held by this Court in Bharat Singh v. Bhagirathi, (1966) 1 SCR 606 = (AIR 1966 SC 405) that an admission is substantive evidence of the fact admitted and that admissions duly proved are "admissible evidence - 9 - irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions." ……” 15. Accordingly, in view of the observations made hereinabove, there is no merit in this regular second appeal and the same is dismissed. There shall be no order as to costs. (Rajiv Sharma), Judge. September 20, 2010. (sck).