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PETITIONER: BASANT SINGH

       Vs.

RESPONDENT: JANKI SINGH AND ORS.

DATE OF JUDGMENT: 02/08/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. SHAH, J.C.

CITATION:  1967 AIR  341            1967 SCR  (1)   1

ACT: Indian Evidence Act, 1872 (1 of 1872), s. 17-Admission  made in pleading-Relevancy in another suit.

HEADNOTE: The  plaintiff tendered in evidence a plaint in  an  earlier suit and relied on an admission made by the defendants  with regard to a fact in issue in the later suit.  The High Court ruled that the plaint was not admissible in evidence on  two grounds, viz., (i) the plaintiff could not rely on a  state- ment in the plaint as an admission, as she was not  prepared to  accept  the correctness of the other statements  in  the plaint  and  (ii) an admission in a pleading could  be  used only for the purposes of the suit in which the pleading  was filed.  On appeal to this Court. HELD  : (1) All the statements in the plaint are  admissible in evidence.  The plaintiff can rely upon a statement in the plaint  with  regard to a matter in issue as  an  admission, though she is not prepared to accept the correctness of  the other  statements in the plaint.  Nor is the Court bound  to accept all the statements as correct.  The court may  accept some of the statements as correct and reject the rest. [3 F] (2)  Section  17 of the Indian Evidence Act, 1872  makes  no distinction  between  a  admission  made by  a  party  in  a pleading and other admissions.  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. [4 D] D.   S.  Mohite,  v.  S. I. Mohite, A.I.R.  1960  Bom.  153, Marianski  v.  Cairns,  1  Macq.  212  (H.L.)  and   Ramabai Shriniwas   v.  Bombay  Government,A.I.R.  1941  Bom.   144, referred to,

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 19 & 20  of 1963. Appeals from the judgment and decree dated July 31, 1959  of the Patna High Court in Appeals from Original Decree Nos. 30

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and 40 of 1953 respectively. S. T. Desai and R. C. Prasad for appellant. Sarjoo Prasad and D. Goburdhan, for the respondents Nos.1 to 4 [In C. A. No. 19 of 1963]. Sarjoo Prasad and K. K. Sinha, for respondents Nos. 5-7  and 9  [In C. A. No. 19 of 1963] and 1-3 and 5 [In C. A. No.  20 of 1963]. 2 The Judgment of the Court was delivered by Bachawat, J. One Ramyad Singh was a member of a joint family and has eight annas interest in the joint family properties. He  was a Hindu governed by the Mitakshara school  of  Hindu law.   He died issueless, leaving his widow, Mst.   Bhagwano Kunwar.   The  date of his death is in dispute.   After  his death, Bhagwano Kunwar filed the present suit for  partition of  the joint family properties claiming eight  annas  share therein.  She contended that Ramyad Singh died in 1939 after the  passing  of the Hindu Women’s Rights to  Property  Act, 1937,  and  she  was  entitled  to  maintain  the  suit  for partition.  The defendants contended that Ramyad Singh  died ill 1936 before the passing of the Act and she was  entitled to   maintenance  only.   The  trial  Court   accepted   the plaintiff’s contention aid decreed the suit.  The defendants filed  two separate appeals to the High Court.  On  December 15,  1958,  Bhagwano  Kunwar died.  The  High  Court  passed orders  substituting  one  Ram Gulam  Singh  in  her  place. Later,  the  High  Court recalled these orders,  as  it  was conceded   that   Ram  Gulam  Singh  was   not   her   legal representative.   By a deed dated March 14,  1958,  Bhagwano Kunwar  had  sold lands measuring 1 bigha 5  kathas  to  the appellant.    The   High  Court  allowed   the   appellant’s application for substitution under 0.22 r. 10 of the Code of Civil Procedure and proceeded to hear the appeals.  The High Court  accepted  the defendants’  contention,  reversed  the decree  passed by the Subordinate Judge, and  dismissed  the suit.   The  appellant  has now filed  these  appeals  under certificates granted by the High Court. The  main point in controversy is, did Ramyad Singh  die  in 1936  or did he die in 1939?  If he died in  1936,  Bhagwano Kunwar  was not entitled to maintain the suit for  partition and the suit was liable to be dismissed.  But if he died  in 1939,  she  was entitled to eight annas share in  the  joint estate  and was entitled to maintain the suit for  partition under  the Hindu Women’s Rights to Property Act,  1937  read with the Bihar Hindu Women’s Rights to Property  ,(Extension to Agricultural Land) Act, 1942.  Moreover, it is  ,conceded by counsel for the respondents that in that event after 1956 -she held her eight annas share in the joint estate as  full owner by virtue of s. 14 of the Hindu Succession Act,  1956, and  on the strength ,of the sale deed dated March 14,  1958 executed by Mst.  Bhagwano Kunwar the appellant was entitled to continue the suit for partition .after her death. There  is conflicting oral evidence with regard to the  date of  ,death of Ramyad Singh.  The appellant  relied  strongly upon  an admission made by the main  contesting  defendants, Janki  Singh and Kailashpati Singh, in a plaint  signed  and verified by them and filed in Title Suit No. 3 of 1948.   In that  plaint,  Janki  Singh and  Kailashpati  Singh  claimed partition of the joint family properties, implead- 3 ing Bhagwano Kunwar as defendant No. 8 and other members  of the joint family as defendants Nos.  1 to 7. In this plaint, Janki Singh and Kailashpati Singh stated:               "2. That the properties described in  Schedule               1  to  2  in the plaint belong  to  the  joint

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             family.  As the said Babu Ramyad Singh died in               1939 the defendant No. 8 also became  entitled               to  life  interest in the  properties  of  the               joint family.  The defendant No. 8 surrendered               her  life  estate to the  plaintiffs  and  the               defendants  Nos.  1 to 7 and she gave  up  her               possession  of  the joint  family  properties.               The plaintiffs and the defendants Nos. 1 to  7               have  been coming in joint possession  of  the               properties under partition.               6.    That the defendant No. 8 is also made  a               defendant  in this suit as she is entitled  to               maintenance," The  plaint  contained a clear admission that  Ramyad  Singh died  in  1939.  The High Court ruled that  Bhagwano  Kunwar could not rely on this admission.  The High Court said  that she could not rely upon the statement that Ramyad Singh died in 1939, as she was not prepared to admit the correctness of the  statement that she had surrendered her estate  and  was entitled to maintenance only.  We are unable to accept  this line  of reasoning.  It is true that Bhagwano Kunwar  relied only  upon the statement that Ramyad Singh died in 1939  and was  not  prepared  to accept the  statement  that  she  had surrendered her share to the other members and was  entitled to  maintenance only.  But she tendered the  entire  plaint, and she did not object to the admissibility or proof of  any of  the statements made therein.  All the statements in  the plaint  are,. therefore, admissible as evidence.  The  Court is,  however,  not  bound to accept all  the  statements  as correct.   The Court may accept some of the  statements  and reject  the rest.  In the presented suit, it is common  case that  Bhagwano  Kunwar did not surrender her  share  in  the estate.   We  must,  therefore, reject  the  statement  with regard  to  the  alleged  surrender  and  the  consequential allegation  that she was entitled to maintenance only.   The statement  in the plaint as to the date of death  of  Ramyad Singh  must  be read as an admission in favour  of  Bhagwano Kunwar. 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(l)   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(2).  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 (1) A.I.R. 196O Bom. 153. (2) A.I.R. 1941 Bom. 144. 4 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:               "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(1), the  House of Lords decided that an admission in a  pleading

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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  dis- tinction 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. The  explanation of Janki Singh and Kailashpati  Singh  that the plaint was drafted by their lawyer Ramanand Singh at the instance  of  the panchas including- one Ramanand  and  they signed  and  verified the plaint without  understanding  its contents  cannot be accepted. There is positive evidence  on the  record that the plaint was drafted at the  instance  of Janki  Singh  and  was filed under  his  instructions.   The plaint  was signed not only by Janki Singh  and  Kailashpati Singh  but  also by their lawyer, Ramanand  Singh.   Neither Ramanand  Singh  nor  the panch Ramanand  was  called  as  a witness.  Even in this litigation, Ramanand Singh was acting as   a  lawyer  on  behalf  of  some  of   the   defendants. Kailashpati Singh is a Homeopathic medical practitioner  and knows  English.   The plaint was read over to  Janki  Singh. Both  Janki  Singh and Kailashpati Singh signed  the  plaint after  understanding  its  contents  and  verified  all  the statements made in it as true to their knowledge.  They then well  knew  that  Ramyad Singh had died in  1939  after  the passing of the Hindu Women’s Rights to Property Act.  It  is not shown that the admission in the plaint as to the date of death of Ramyad Singh is not true or that it was made  under some  error  or  misapprehension.  This  admission  must  be regarded as a strong (1)  1 Macq. 212 (H.L.). 5 piece  of evidence in this suit with regard to the  date  of death of Ramyad Singh. Bhagwano  Kunwar  and her witnesses, Ram  Gulam  Singh,  Ram Saroop  Singh  and Sheo Saroop Singh gave evidence  in  Sep- tember,  1952.   They all swore that Ramyad  Singh  died  13 years  ago.   In agreement with the trial Judge,  we  accept their testimony.  Learned counsel commented on the testimony of Sheo Saroop Singh, who had said that the last  earthquake took place 15 to 16 years ago and Ramyad Singh died 2  years 8  months  thereafter.  The last earthquake  took  place  on January 15, 1934, and counsel, therefore, argued that Ramyad Singh  could not have died in 1939.  Clearly, there is  some confusion  in  the evidence of Sheo Saroop Singh.   He  gave evidence  in  September, 1952, and his  statement  that  the earthquake  took  place  15 to 16 years  ago  could  not  be correct  and his further statement that Ramyad Singh died  2 years  8 months after the earthquake was not  accurate.   He swore  positively  that  Ramyad Singh  died  13  years  ago. Bhagwano  Kunwar said that there were receipts to show  that Ramyad Singh died 13 years ago.  On her behalf rent receipts for 1339, 1341, 1342, 1343, 1345, 1348, 1356 and 1359 faslis were tendered.  The rent receipts are in respect of  certain lands held by her as a tenant.  The first four rent receipts show that -Lip to 1343 fasli corresponding to 1936 the  rent used to be paid by her through Ramyad Singh.  Payment of the rent for 1345 fasli was made in 1346 fasli corresponding  to 1939  through Janki.  The rent for the subsequent years  was paid  through  Janki  and other  persons.   The  High  Court thought that the rent receipts showed that Ramyad Singh died

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in 1936 and because of his death, rent was subsequently paid through other persons.  But the rent receipt for 1344  fasli is  not forthcoming, and it is not known who paid  the  rent for 1344 fasli (1937).  Moreover, assuming that Ramyad Singh did  not pay rent in 1937 and 1938, it does not follow  that he  must have died in 1936.  Kailashpati Singh, Janki  Singh and other witnesses called on behalf of the defendants  said that Ramyad Singh had died 16 years ago.  In agreement  with the  trial Court, we do not accept their  testimony.   Janki Singh  and  Kailashpati Singh gave false  explanations  with regard  to the admission made by them in the plaint  in  the previous  suit.  Moreover, for the purpose of defeating  the title  of  Bhagwano Kumar they set up  a  compromise  decree passed  in  that  suit.   The trial  Court  found  that  the compromise  decree was obtained by them by practising  fraud on  Mst.   Bhagwano Kunwar, and this finding  is  no  longer challenged. We, therefore, hold and find that Ramyad Singh died in 1939. It follows that Bhagwano Kunwar was entitled to eight  annas share  in  the  joint family estate,  and  was  entitled  to maintain  the  Suit.  The trial  Court,  therefore,  rightly decreed the suit. 6 But  in  view  of the death of Bhagwano  Kunwar  during  the pendency of the appeal in the High Court, the decree  passed by  the  trial  Court  must  be  modified.   The   appellant purchased  from  Bhagwano Kunwar 1 bigha 5  kathas  of  land under  the deed dated March 14, 1958, and he can claim  only the  rights of an alienee of a specific property from a  co- owner  on a general partition of the  undivided  properties. All the parties appearing before us conceded that on such  a partition  the  appellant  is  entitled  to  allotment   and separate possession of the lands purchased by him under  the deed  dated March 14, 1958.  The deed is not printed in  the Paper  Book.  It will be the duty of the trial Court now  to ascertain full particulars of the aforesaid lands. The appeals are allowed with costs in this Court and in  the High  Court.   The decree passed by the High  Court  is  set aside.   There will be a decree in favour of  the  appellant allotting  to him the lands purchased by him under the  deed dated March 14, 1958 and awarding to him separate possession thereof.   The  trial Court will draw up a  suitable  decree after ascertaining the particulars of the aforesaid lands. Y. P.                             Appeals allowed. 7