Case: Dattatraya Vs. Rangnath Gopalrao Kawathekar, (dead) by his legal representatives &amp; Others

Property mentioned in thedocument S.No. Acres Gun- Rev. Sharethas Asst.455 2 20 8-0-0 Whole456 2 19 7-8-0 do457 2 30 8-8-0 do458 2 19 7-8-0 do459 15 37 20-0-0 do3. Kind of the document Sale deed4. Name of the executant ofdocument Dagdu s/o Dattatraya5. Name of the person in whosefavour documents is executed (1) Rangnathrao s/o Gopalrao(2) Vasantrao s/o Digambarrao6. No. of the documents 1887. No. of the page 28-838. Volume One of 1955 F.9. Date of registration 20th Khurdad 1355 F."8. That exhibit shows the names of the concerned parties, the nature of the document and description of the properties dealt with. It shows that the document executed was a sale deed. The vendor is the first defendant and the vendees are the plaintiffs. The description of the properties shown therein tallies with the suit properties. It is true, as contended by Mr. Sanghi that the nature of the document mentioned therein is not conclusive. But so far as the nature of the document is concerned, both the vendor and the vendee admit that it was a sale deed. Therefore that question does not arise for consideration. We agree with the High Court that the learned district Judge erred in thinking that the secondary evidence afforded by Exh. 1 is not a satisfactory one.9. The only question that remains for consideration is whether the suit properties fell to the share of the first defendant in the partition that took place between him and the second defendant. On this question, we have the unimpeachable evidence afforded by Ex. 2 executed by the second defendant in favour of the plaintiffs on January 12, 1952. That document styles itself as an arrangement. English translation of that document reads as follows :"Agreement deed executed by Raosaheb Duttoba Bandgar r/o Sindphal at present Tuljapur 1952 on Shake 1873 Khar Name Sawanchere, Miti Poush Sudh 15, in favour of Shri Rangnath Gopalrao Kawthekar and Vasant Digamberrao Kawthekar r/o Kasba Tuljapur. The terms of the agreement are that you both are the absolute owners of the lands bearing Survey Nos. 455, 456, 457, 458, 459 named Thike Nagral, situated at Sinaphal which were sold by my elder brother Dugdoba Duttoba Bandgar through Registered sale-deed along with the mango trees situated in the said lands and right to use that water of the well as an owner. I agree that I will not interfere or obstruct in your right of possession. You are the owners as per the said registered sale-deed and I accordingly apply to Patel, Patwari of the said village to make necessary entries in the (D) Form (in vernacular). If registered I will fail to do so you can do it as per terms of this agreement and registered Sale-deed. Neither I nor my heirs have any right in it. The sale-deed of the said land is registered on July 20, 1955. I admit it. You enjoy the land as before so the Agreement Deed is executed with the consent. Dated January 12, 1952."10. From this document it is clear that the second defendant admitted that the suit properties were of the exclusive ownership of the first defendant, his brother and that he had no right in the same. The plaintiffs evidently were put to the necessity of taking this document from the second defendant in view of the destruction of the records referred to earlier. It is clear that the second defendant after executing that document is now trying to resile from the admissions made by him with a view to take advantage of the situation in which the plaintiffs are placed. Mr. Sanghi contended that unless we come to the conclusion that in view of Ex. 2, the appellant is estopped from putting forward his title to the suit properties, Ex. 2 is irrelevant. We are unable to accept this contention. Exh. 2 is relied on by the plaintiffs to prove the admission of the second defendant that the suit properties belonged to his brother and that his brother had sold the same to the plaintiffs. Admission is an important piece of evidence. But it is open to the person who made the admission to prove that those admissions are not true. It was not the case of the appellant that the admissions contained in Ex. 2 are wrong admissions and he made those admissions under some erroneous impression or that they were obtained from him by misrepresentation. His case was that he never executed Ex. 2. We have already rejected that case. Hence the admissions contained in Ex. 2 assume importance. Admission is one thing, estoppel is another. Admission is a piece of evidence but estoppel creates title. Ex. 2 was relied on as an admission and not as an estoppel. We agree with the High Court that Ex. 2 affords satisfactory evidence to prove the first defendants title to the suit properties. It further proves the alienation effected by the first defendant in favour of the plaintiffs.11. The only other contention advanced on behalf of the plaintiffs is that the alienation put forward in the plaint is an invalid as it contravened the provisions of Agricultural Lands Alienation Act inasmuch as the purchaser did not obtain the sanction of the Collector before purchasing the properties as the first defendant was a shepherd and as such a member of a protected tribe. The trial Court came to the conclusion that the first defendant was note shepherd and it was not proved that he was inclined to of a protected tribe. In appeal the learned District Judge was inclined to think that the first defendant was a member of a protected tribe but it left open the issue relating to the validity of the sale and chose to decide the case on other grounds. In the High Court the plea covered by the afore-mentioned issue was not agitated. The High Court did not consider that plea and as such we did not permit Mr. Sanghi to raise that plea in this Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. As seen earlier both the first defendant as well as the second defendant had pleaded that there was partition in the family. Therefore the only question that fell for decision was whether the suit properties fell to the share of the first defendant or the second defendant. There was no basis in the pleadings for the finding of the learned District Judge that the suit properties were the joint family properties of the first and the second defendants. This was entirely a new case made out by the District Judge. The pleadings in the case did not permit learned District judge to come to such a conclusion. Hence in our opinion the High Court was justified in reversing that finding of the first appellate court. An attempt was made before us to justify the finding of the first appellate court that the suit properties were joint family properties of defendants 1 and 2 by referring to the evidence in the case. We are not satisfied that there is any evidence to support that case. Further a case not pleaded cannot be made out byit was not open to the first appellate court to consider whether the deed in question was invalid on the ground that it was obtained by misrepresentation. The only plea put forward by the second defendant was that the deed was a forgery. Both the trial Court as well as the first appellate court have rejected thatthe only plea taken is that the executant has not signed the document and that the document need not adduce evidence to show that the party who signed the document knew the contents of the document. Ordinarily no one is expected to sign a document without knowing its contents but if it is pleaded that the party who signed the document did not know the contents of the document then it may in certain circumstance be necessary for the party seeking to prove the document to place material before the Court to satisfy it that the party who signed the document had the knowledge of its contents.That exhibit shows the names of the concerned parties, the nature of the document and description of the properties dealt with. It shows that the document executed was a sale deed. The vendor is the first defendant and the vendees are the plaintiffs. The description of the properties shown therein tallies with the suit properties. It is true, as contended by Mr. Sanghi that the nature of the document mentioned therein is not conclusive. But so far as the nature of the document is concerned, both the vendor and the vendee admit that it was a sale deed. Therefore that question does not arise for consideration. We agree with the High Court that the learned district Judge erred in thinking that the secondary evidence afforded by Exh. 1 is not a satisfactory one.From this document it is clear that the second defendant admitted that the suit properties were of the exclusive ownership of the first defendant, his brother and that he had no right in the same. The plaintiffs evidently were put to the necessity of taking this document from the second defendant in view of the destruction of the records referred to earlier. It is clear that the second defendant after executing that document is now trying to resile from the admissions made by him with a view to take advantage of the situation in which the plaintiffs are placed. Mr. Sanghi contended that unless we come to the conclusion that in view of Ex. 2, the appellant is estopped from putting forward his title to the suit properties, Ex. 2 is irrelevant. We are unable to accept this contention. Exh. 2 is relied on by the plaintiffs to prove the admission of the second defendant that the suit properties belonged to his brother and that his brother had sold the same to the plaintiffs. Admission is an important piece of evidence. But it is open to the person who made the admission to prove that those admissions are not true. It was not the case of the appellant that the admissions contained in Ex. 2 are wrong admissions and he made those admissions under some erroneous impression or that they were obtained from him by misrepresentation. His case was that he never executed Ex. 2. We have already rejected that case. Hence the admissions contained in Ex. 2 assume importance. Admission is one thing, estoppel is another. Admission is a piece of evidence but estoppel creates title. Ex. 2 was relied on as an admission and not as an estoppel. We agree with the High Court that Ex. 2 affords satisfactory evidence to prove the first defendants title to the suit properties. It further proves the alienation effected by the first defendant in favour of thetrial Court came to the conclusion that the first defendant was note shepherd and it was not proved that he was inclined to of a protected tribe. In appeal the learned District Judge was inclined to think that the first defendant was a member of a protected tribe but it left open the issue relating to the validity of the sale and chose to decide the case on other grounds. In the High Court the plea covered by theissue was not agitated. The High Court did not consider that plea and as such we did not permit Mr. Sanghi to raise that plea in this Court.