Case: Bharat Singh And Anr Vs. Bhagirathi

2. The plaintiffs, Bharat Singh and Kirpa Ram, are the sons of Ram Narain. They had another brother Maha Chand, whose widow is Bhagiriti, the defendant. The plaintiffs alleged that they and Maha Chand constituted a joint Hindu family, that Maha Chand died as a member of the joint Hindu family and that thereafter Maha Chands widow lived with the plaintiffs who continued to be the owners and possessors of the property in suit, the widow being entitled to maintenance only. They also alleged that it was by mistake that the defendants name was mutated in the village records in place of Maha Chand, who died on September 16, 1925. They further alleged that the defendant lost her right to maintenance due to her leading an unchaste life. This contention, however, was not accepted by the Courts below and in no more for consideration. It was on the other allegations that the plaintiffs claimed a declaration that the entry of the defendants name in the column of ownership in the Jamabandi papers was wrong, that they were the owners and possessors of the property in suit and that the defendant had no right therein. They also claimed a permanent injunction against the defendant restraining her from alienating or leasing any of the properties in favour of any person or causing interference of any in the possession of the plaintiffs.      3. The defendant contested the suit alleging that her husband Maha Chand, along with the plaintiffs, did not constitute a joint Hindu family at the time of his death, that he was separate from the plaintiffs and that he was living separate from them, that the property in suit was neither ancestral property nor the property of the joint Hindu family, that the plaintiffs and Maha Chand were owners of agricultural land as co-shares out of which one-third share belonged to Maha Chand and that therefore the entry in her favour in the Jamabandi papers was correct. She also claimed right to Maha Chands share on the basis of custom. This contention, however, was not accepted by the Courts below and is not now open for consideration. Bhagirti further contended that the suit was not within time as she had become owner and possessor of the land in suit in 1925. The suit was brought in 1951      4. By their replication, the plaintiffs stated that Maha Chand had never become separate from them and that the defendant was not in possession of the property in suit, the possession being with the plaintiffs or their tenants or lessees.      5. The trial Court held that the parties were governed by the Hindu law unmodified by the custom, that the joint Hindu family constituted by the plaintiffs and their brother Maha Chand was never disrupted and that Maha Chand died as a member of the joint Hindu family, that the property in suit was co-parcenery property in the hands of the three brothers, that the entry of the defendants name in the Jamabandi was wrongly made and that the suit was instituted within time as the earliest the defendant asserted her claim to the land in suit was in 1950. The trial Court therefore granted the plaintiffs a decree for declaration in the following terms:"1. That the entries in the revenue papers showing the defendant as owner of one-third share in the suit land are wrong and are not binding on the plaintiffs.      2. That the property in dispute vests in the plaintiffs as coparceners.      3. That the defendants only right in the suit property is one of maintenance and she is not entitled to alienate it in any way:      The plaintiffs are further granted a permanent injunction restraining the defendant form alienating the suit property in any way and from causing interference in the plaintiffs possession of the property.      The plaintiffs suit for declaration that the defendant has lost her right of maintenance in the suit property by unchastity is dismissed ............. ."6. The defendant appealed to the High Court. It was not contended on her behalf that the land was ancestral and had descended from Ram Narain to the plaintiffs and Maha Chand. What was urged before the High Court was that the entry in Maha Chands name as owner of one-third share in the Jamabandi and similar entry in defendants name after the death of Maha Chand was correct as irrespective of the fact whether the family was originally a joint Hindu family or not the joint Hindu family stood disrupted by the conduct of the parties and therefore there was no question of the plaintiffs getting the entire property by survivorship. Reliance was placed on the entries in the revenue records with respect to Maha Chand and the defendant after him owning one-third share in those properties and about her possession upto 1946-47 and on the defendants being impleaded in several suits by the plaintiffs as a co-plaintiff and in one suit as a defendant. The High Court considered this evidence sufficient to prove disruption of the joint family as the mutation entries in the revenue records could not have been obtained by the defendant surreptitiously or without the knowledge and consent of the plaintiffs and as none of the plaintiffs objected to her being entered as a co-sharer with them after the death of Maha Chand which showed that there was no joint Hindu family at the time of the death of Maha Chand. The High Court also relied on the fact that the plaintiffs had impleaded the defendant as a plaintiff or defendant in the various suits, as Bharat Singh refused or did not care to give an explanation why the defendant had been throughout shown as a co-sharer in those proceedings when actually she was not a co-sharer and was merely entitled to maintenance. The High Court did not use the admissions of Bhagirathi, defendant, in certain documents about the existence of the joint Hindu family or a joint Hindu family firm as she, when in the witness box, was not confronted with those admissions and as those documents, if read as a whole, did not contain any admissions on behalf of Bhagirathi that there was any joint family still in existence. The High Court summed up its view on the question of disruption in the family thus:"These revenue entries normally do not furnish a very strong evidence of severance of a joint Hindu family but subsequent conduct of the plaintiffs, as detailed above, leaves no manner of doubt that there did not exist any Joint Hindu Family after the demise of Ram Narain and that Mst. Bhagirathi was rightly shown as a co-sharer in the revenue records."The High Court considered the case to have been instituted after the expiry of the period of limitation but did not base its decision on this finding. The High Court, accordingly allowed the appeal and set aside the decree of the trial Court in favour of the plaintiffs.

Reasoning:
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.