Case: Bharat Singh And Anr Vs. Bhagirathi

Tilak v. Shrinivas Pandit, 42 Ind App 135: (AIR 1915 PC 7). That case, however, did not directly deal with the use of admissions which are proved but are not put to the person making the admissions when he enters the witness box. The entire tenor of the documents whose certain contents were construed by the High Court to discredit the persons making those admissions went to support their case and did not in any way support the case of the other party. The Privy Council expressed its disapproval of the High Court minutely examining the contents of the documents and using its own inferences from those statements to discredit the oral statements of the persons responsible for making those documents when those persons had not been confronted with those statements in accordance with S. 145 of the Indian Evidence Act. 19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence 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. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. 20. We are, therefore, of opinion that the admissions of Bhagirti which had been duly proved could be used against her. They were proved long before she entered the witness box and it was for her of offer any explanation for making those admissions. The Court could have considered the effect of her explanation. She preferred to make no reference to her admissions proved by the plaintiffs. Her simple statement that her husband had separated from his brothers even before her marriage is, by itself, neither an adequate explanation of those admissions nor a clear-cut denial of the facts admitted. 21. We have already referred to her admissions in the agreement executed by her and Giani Ram for referring the dispute in Giani Rams suit for arbitration in 1946. She instituted a suit earlier in 1944. The plaint of that suit is Exhibit P-2. She instituted this suit against the present plaintiffs and stated in para 1 of the plaint that those defendants and Maha Chand, her husband, were members of a joint Hindu family and in para 2 that in place of her husband Maha Chand she was then the co-sharer and owner and possessor of the property of his share and that in this way the plaintiff and the two defendants were members of the joint Hindu family. In para 3 she stated that the joint Hindu family mentioned in para 1 held the property mentioned therein and this property included residential property and the business of two firms. She further stated in para 4 that defendants 1 and 2, the present plaintiffs, were running the business of the firms in the capacity of managers and that she did not want to keep her share joint in future. She had instituted the suit for partition of the property and the firms mentioned in para 3. 22. P. W. 2, clerk of Shri Inder Singh Jain, pleader, scribed this plaint and has deposed that the pleader had prepared the brief in accordance with the instructions of Bhagirti and that he had written out the petition and plaint and that it had been read out to her. He denied that the thumb marks of Bhagirti were secured on a plain paper and that the plaint was written later on. This suit was withdrawn. 23. Again, in 1950, she instituted another suit against the present plaintiffs and one Har Narain, for a certain declaration. In para 1 of the plaint it was stated that the three shops mentioned therein belonged to the joint Hindu family firm Jairam Das Ram Narain in Narela Mandi, Delhi State. The plaint is Exhibit P-1. Shri M. K. Madan, Advocate, P. W. 1, has deposed that the plaint was got written by Bhagriti, that a portion of the plaint was in his handwriting and that it was read over to her and that she put her thumb mark on it after having heard and admitted its contents. He also stated that the suit was subsequently withdrawn. 24. We are of opinion that the evidence of the plaintiffs on record establishes that there had been no disruption between the plaintiffs and Maha Chand and that Maha Chand died as a member of the joint Hindu family. It follows that the entries in the Jamabandis showing Bhagirti as the owner of one-third share are wrong and that the decree of the trial Court is right. 25. The question of limitation may be briefly disposed of. There is no good evidence on record to establish that the respondent, prior to 1950, asserted that she had any right adverse to the plaintiffs over the property in suit or that she acted in any manner which would amount to an ouster of the plaintiffs. Admittedly; the dispute between the parties arose sometime in 1944. Prior to that there could be no reason for her acting adversely to the interests of the plaintiffs. It was really in about 1950 that she leased certain properties and transferred certain plots and soon after the plaintiffs instituted the suit. The suit is clearly not barred by limitation.

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

Explanation:
1[ds]11. We are of opinion that the High Court was in error in relying on these admissions of Bharat Singh when he had explained them reasonably12. The oral evidence adduced for the defendant to prove separation of Maha Chand from his brothers, has been rightly described to be worthless by the trial Court. No reliance on that evidence was placed on behalf of the respondent in the High Court. The evidence consists of the statements of three persons. Munshi Ram, D. W. 1, brother of defendant, who was about 10 years old when Maha Chand died, simply states that at the time of Maha Chands death, he was separate from his brothers. He admitted in cross-examination that this he had learnt from his father. His evidence is hear-say and is of no value15. We are, therefore, of opinion that the evidence relied on by the High Court for holding the disruption proved together with the oral evidence led by the defendant about disruption of the family is in sufficient to prove disruption after the death of Ram Narain and during the life-time of Maha Chand16. It is not necessary to discuss the evidence for the plaintiffs about the family being joint when Maha Chand died. Suffice, it to say that apart from the statement of Bharat Singh, P. W. 7, there is other evidence to establish it. Shiv Narain, P. W. 4, deposed that when Ram Narain was alive he and his brothers constituted a joint Hindu family upto the death of Maha Chand and that the joint family continued upto the date he gave evidence. He was not cross-examined with regard to his statements. Jai Lal, P. W. 5, deposed to the same effect. In cross-examination he stated that had there been a son of Maha Chand, he would have got one-third share of Maha Chand and that all the three brother had one-third share each, in the property. The statement does not mean that there had been disruption in the family. We do not know in what form the questions to which these are the answers were put. The answers are consistent with the fact that had separation taken place during the life-time of Maha Chand, his share would have been one-third and that his one-third share would have gone to his son or that the entries in the village papers would show Maha Chands son being mutated over the one-third share of Maha Chand just as Bhagirtis name was mutated in place of Maha Chand17. Reliance was also placed for the plaintiffs on the admissions of Bhagirti. The High Court did not take these admissions into consideration as they were not put to her when she was in the witness box and as in its opinion the documents containing the alleged admissions if read as a whole did not contain any admissions on behalf of Bhagirti that there was any joint family still in existence18. The legal objection to the consideration of these admissions was based on the Full Bench decision of the Punjab High Court in Firm Malik Des Raj v. Firm Piara Lal, AIR 1946 Lah 65 (FB). The view taken in that case was differed to by the Full Bench decision of the Allahabad High Court in Ajodhya Prasad v. Bhawani Shanker, (S) AIR 1957 All 1   (FB). The Punjab High Court based its decision on the observations of the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit, 42 Ind App 135: (AIR 1915 PC 7). That case, however, did not directly deal with the use of admissions which are proved but are not put to the person making the admissions when he enters the witness box. The entire tenor of the documents whose certain contents were construed by the High Court to discredit the persons making those admissions went to support their case and did not in any way support the case of the other party. The Privy Council expressed its disapproval of the High Court minutely examining the contents of the documents and using its own inferences from those statements to discredit the oral statements of the persons responsible for making those documents when those persons had not been confronted with those statements in accordance with S. 145 of the Indian Evidence Act19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence 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. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence20. We are, therefore, of opinion that the admissions of Bhagirti which had been duly proved could be used against her. They were proved long before she entered the witness box and it was for her of offer any explanation for making those admissions. The Court could have considered the effect of her explanation. She preferred to make no reference to her admissions proved by the plaintiffs. Her simple statement that her husband had separated from his brothers even before her marriage is, by itself, neither an adequate explanation of those admissions nor a clear-cut denial of the facts admitted21. We have already referred to her admissions in the agreement executed by her and Giani Ram for referring the dispute in Giani Rams suit for arbitration in 1946. She instituted a suit earlier in 1944. The plaint of that suit is Exhibit P-2. She instituted this suit against the present plaintiffs and stated in para 1 of the plaint that those defendants and Maha Chand, her husband, were members of a joint Hindu family and in para 2 that in place of her husband Maha Chand she was then the co-sharer and owner and possessor of the property of his share and that in this way the plaintiff and the two defendants were members of the joint Hindu family. In para 3 she stated that the joint Hindu family mentioned in para 1 held the property mentioned therein and this property included residential property and the business of two firms. She further stated in para 4 that defendants 1 and 2, the present plaintiffs, were running the business of the firms in the capacity of managers and that she did not want to keep her share joint in future. She had instituted the suit for partition of the property and the firms mentioned in para 324. We are of opinion that the evidence of the plaintiffs on record establishes that there had been no disruption between the plaintiffs and Maha Chand and that Maha Chand died as a member of the joint Hindu family. It follows that the entries in the Jamabandis showing Bhagirti as the owner of one-third share are wrong and that the decree of the trial Court is right25. The question of limitation may be briefly disposed of. There is no good evidence on record to establish that the respondent, prior to 1950, asserted that she had any right adverse to the plaintiffs over the property in suit or that she acted in any manner which would amount to an ouster of the plaintiffs. Admittedly; the dispute between the parties arose sometime in 1944. Prior to that there could be no reason for her acting adversely to the interests of the plaintiffs. It was really in about 1950 that she leased certain properties and transferred certain plots and soon after the plaintiffs instituted the suit. The suit is clearly not barred by limitation.