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

1. Defendant No. 2 in the suit from which this appeal arises is the appellant before this Court. The plaintiffs sued for the possession of the suit properties on the basis of their title. Their case was that defendant No. 1 Dagaduba, who was the owner of the suit properties sold the same to the plaintiffs on January 12, 1952; but some of the defendants had trespassed on those properties and hence they were constrained to file the suit. The suit was filed on February 14, 1953.2. The first defendant in his written statements pleaded that the suit properties originally belonged to his family; there was a division in the family between himself and his brother, the second defendant; in that division that suit properties fell to his share; thereafter he became the absolute owner of the same and he mortgaged the same to the plaintiffs. But later he changed that version and admitted that he sold the suit properties to the plaintiffs. The second defendant admitted that the suit properties originally belonged to his family. He also admitted that there was a partition in his family but his case was that as a result of that partition, the suit properties fell to his share and that he was in possession of the same. He denied that his brother had any right to alienate the suit properties or in fact he had alienated the same.3. The two primary questions that arose for decision before the trial Court were (1) whether in the partition in the family of defendants 1 and 2, the suit properties fell to the share of the first defendant or the second defendant and (2) whether the first defendant had sold the suit properties to the plaintiffs. The trial Court decided both these question in favour of the plaintiffs and decreed the plaintiffs suit. In appeal the learned District Judge held that the suit properties belonged to the joint family of defendants 1 and 2 and that it had never been partitioned. He further came to the conclusion that the sale put forward by the plaintiffs has not been established. The High Court reversed the decree of the first appellate Court and restored that of the trial Court. Thereafter this appeal has been brought after obtaining special leave.

Reasoning: 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.