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PETITIONER: BISHWANATH PRASAD AND OTHERS

       Vs.

RESPONDENT: DWARKA PRASAD (DEAD) AND OTHERS

DATE OF JUDGMENT30/10/1973

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR  117            1974 SCR  (2) 124  1974 SCC  (1)  78  CITATOR INFO :  R          1982 SC 839  (15)

ACT: Indian Evidence Act (1 of 1872), s. 21-Admission-Distinction between admissions of party and admissions of witness.

HEADNOTE: In  a suit for partition the first defendant (respondent  in this  Court)  claim  that  the-disputed  items  of  property exclusively belonged to him.  The trial court as well as the High Court accepted his case on the basis of admission  made by the first plaintiff and the eighth. defendant (father  of the plaintiff) it depositions in an earlier suit as well  as similar admissions made in the writer statement Wed in  that suit  by  the  eighth defendant together  with  the  present plaintiffs, and held that the said property belonged to  the first defendant. It  was  contended in this Court that (1) the  courts  below relied  on the admissions of the plaintiffs and  the  eighth defendant  which  were  not even suggested  in  the  written statement and as such a new case which was at total variance from  the pleadings should not have been considered  by  the court;  ant. (2) these admissions were not put to the  first plaintiff,  when  he  was in the witness box;  nor  was  the eighth  defendant  summoned  for examination  by  the  first defendant  to  give  him  an  opportunity  to  explain   the admissions. Dismissing the appeal, HELD  :  There is no doubt that if the  depositions  of  the first plaintiff, the deposition by the eighth defendant  and the  written statement filed by these parties in  the  title suit were reliable, the plaintiffs case was damaged by their own admissions. [126B] (1)  Although  the  first defendant’s basic  defence  was  a denial of joint family ownership even in the trial court the admissions had been considered and acted upon.  Even in  the High  Court the appellants did not state that they had  been prejudiced  by the reliance on the admissions by  the  trial court  nor did the appellants contend before the High  Court of  any  prejudice  by not being  given  an  opportunity  to explain   the  material  against  them.   Neither   in   the memorandum  of  appeal  appended to the  application  for  a

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certificate  nor in the statement of the case in this  Court was a ground raised on this point. [126G-H] (2)  It  cannot  be  contended  that  because  the  disputed statements  had not been put to the first plaintiff when  he was in the witness box or to the eighth defendant they could not be used against him. [127A] There  is a cardinal distinction between a party who is  the author  of a prior statement and a witness who  is  examined and  is  sought  to  be discredited  by  use  of  his  prior statement.   In the former case an admission by a  party  is substantive evidence if it fulfill the requirements of s. 21 of the Evidence Act; in the latter case a prior statement is used  to discredit the credibility of the witness  and  does not become substantive evidence.  In the former there is  no necessary  requirement  of  the  statement  containing   the admission  having  to  be put to the  party  because  it  is evidence  proprio  vigore;  in the  latter  case  the  court cannot  .be invited to disbelieve a witness on the  strength of a prior contradictory statement unless it has been put to him, as required by s. 145 of the Evidence Act. [127B-C] Bharat  Singh  & Anr. v. Bhagirathi, [1966]  1  S.C.R.  606, followed.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1787  of 1967. Appeal from the judgment and decree dated January 3 1,  1963 of  the Patna High Court in Appeal from Original Decree  No. 77 of 1958. 125 M. B. Lal, for the appellants. Sarjoo  Prasad and S. N. Prasad, for respondents Nos. 2-7  & 14-18. The Judgment of the Court was delivered by KRISHNA  IYER,  J. The dispute is short, the points  of  law few,  he evidence largely made up of admissions, and so  the judgment  .pets of brevity.  A vignette of the facts is  ill that is therefore necessary. This  appeal  arises out of a suit for partition  where  the narrow  area of conflict in this Court is continued  to  two items  claimed by the plaintiffs but disallowed by the  High Court.   The  first two of the three points  formulated  for determination  by  the High Court  reflect  the  controversy raised before us and may be expected :               1.    Whether   the  said  shop-room  at   the               extreme  north  west corner of plot  No.  1238               belongs  exclusively to the  defendants  first               party;               2.    Whether the entire properties  mentioned               in  Schedule C to the plaint are joint  family               properties liable to partition, and.... Point  No.  2 relates to three items in Schedule  C  to  the plaint  which were covered by four  usufructuary  mortgages, Ex-B-1   to  B-4.   The  case  of  the  first   (contesting) defendant,  who  is the first respondent before us  now,  is that  these items of property exclusively belonged  to  him. The  Trial Court has accepted this case and the  High  Court has  affirmed  this  finding.   The  foundation  for   these concurrent  findings  is the admissions made  by  the  first plaintiff  and  the  eighth defendant,  the  father  of  the plaintiff, in depositions in an earlier suit, Title Suit No. 61  of  1945,  as well as similar  admissions  made  in  the written  statement filed in that suit by the present  eighth

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defendant (who was first defendant there) together with  the present  plaintiffs, two of whom were majors at  that  time. The inference fluently drawn by the courts below from  these admissions  is that the said property belongs to  the  first defendant. Some  challenge  has  been  made in  this  Court  about  the propriety  of relying on these admissions but we  will  deal with  it a little later.  Suffice it to say for the  present that admissions are usually telling against the maker unless reasonably explained, and no acceptable ground to  extricate the  appellants  from  the  effect  of  their  own   earlier statements has been made out.  Be that as it may, concurrent Conclusions from the two judicial tiers ordinarily find this Court’s  doors  closed  unless substantial  reasons  to  the contrary  exist.   Having heard arguments at length  we  are disposed  to agree with the High Court on the issue of  the- properties items 1 to 3 in Schedule C to the plaint.  The  other  short  dispute relates to a  shop-room  at  the northwest comer of plot No. 1238.  Here again the admissions of the eighth defendant and the plaintiffs, already referred to  before,  stand in the way of the  plaintiffs’.  success. while the trial court partially upheld the possession of the first defendant of this shop-building it did not 126 go the whole hog in upholding his right.  The learned Judges of  the High Court held that the same admissions  which  had been relied upon by the trial court for holding in favour of the  first defendant’s title to the mortgaged lands  covered by  Exs.   B-1  to  B-4  operated  against  the   plaintiffs regarding the shop-building also.  There is no doubt that if the  admissions Ex.  G (the deposition of the present  first plaintiff  in  Title  Suit No. 61 of  1945),  Ex.   G2  (the deposition in the same suit by the present eighth defendant, and  Ex. H (the written statement filed by these parties  in the  earlier  suit are reliable, the  plaintiffs’  case  is damaged  by their own admissions.  The High Court has  taken this view and concluded :               "On the strength of the written statement  and               the  other statements aforesaid, there  is  no               escape from the conclusion that this  disputed               shop-room was allotted to defendant No.               1 in the partition that took place in 1938." Council for the appellants strenuously urged that the  fatal admissions  used  against him have prejudiced him  for  many reasons.  He contended that, for one thing, these statements were  vague  and therefore insufficient to justify  a  clear verdict  against his client.  For another, he  argued,-  the case of the first respondent was that the suit for partition was not maintainable because the properties claimed belonged to  him  as  heir  of  his  father,  Narain  Sah,  and   the alternative  case  which has found favour  with  the  courts below,  based  on the admissions of the plaintiffs  and  the eighth  defendant,  was not even suggested  in  the  written statement, and as such a new case at total variance from the pleadings should not have been considered by the court.  His further  grievance is that these admissions were not put  to his client, the first plaintiff, when he was in the  witness box;  nor was the eighth defendant summoned for  examination by the first defendant to give him an opportunity to explain the  admissions.  There fore counsel contended that  he  was seriously  harmed  by the surprise  reliance  on  statements attributed   to  his  clients  without  extending   a   fair opportunity   to  them  to  offer  their   explanation   and neutralise the effect of the admissions. We  are  not satisfied that there is any  substance  in  the

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grievances  voiced by counsel.  There was no volte  face  on the, part of the first defendant.  Although it is true  that Ms basic defence was a denial of joint family ownership,  it is  seen that even in the trial court Exs.  G, G2 and H  had been  considered and acted upon.  In the appeal to the  High Court  the  present appellants did not state that  they  had been hit below the belt by the reliance on the admissions by the  trial court in holding against them.  Indeed, there  is no  suggestion  in the judgment of the High Court  that  the appellants had even contended about any prejudice to them or that  they  had been denied an opportunity  to  explain  the material  so used against them.  What is more, it  is  found that  at  no stage subsequent to the  High  Court  decision, either   in  the  memorandum  of  appeal  appended  to   the application  for  a certificate or in the statement  of  the case  in  this  Court, has there been 2  pointed  ground  of complaint  about  the  unfair  reliance  on  the  admissions aforesaid  to the detriment of the appellants.  Under  these circumstances it is difficult to take the plea of  prejudice seriously in, the absence of earlier articulation thereof. 127 There is no merit even in the contention that because  these three  statements-Exs.  G, G2 and H-had not been put to  the first  plaintiff  when he was in the witness box or  to  the eighth  defendant although he had discreetly kept away  from giving  evidence, they cannot be used against him.   Counsel drew  our  attention to s. 145 of the Indian  Evidence  Act. There  is a cardinal distinction between a party who is  the author  of a prior statement and a witness who  is  examined and  is  sought  to  be discredited  by  use  of  his  prior statement.   In the former case. an admission by a party  is substantive evidence if it fulfill the requirements of s. 21 of the Evidence Act; in the latter case a prior statement is used  to discredit the credibility of the witness  and  does not become substantive evidence.  In the former there is  no necessary  requirement  of  the  statement  containing   the admission  having  to  be put to the  party  because  it  is evidence  proprio  vigore  : in the latter  case  the  Court cannot be invited to disbelieve a witness on the strength of a  prior contradictory statement unless. it has been put  to him,  as  required  by s. 145 of  the  Evidence  Act.   This distinction  has been clearly brought out’ in the ruling  in Bharat  Singh  v. Bhagirathi(1).  This Court disposed  of  a similar argument with the following observations :               "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               appeared 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

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             different   from   its   use   as   admissible               evidence." We,  therefore,  reach the conclusion that  the  appellants’ arrival in this Court has been an exercise in futility’  The appeal must, therefore, fail and is hereby dismissed.  There is  some force in the submission that the  first  respondent had throughout in his pleadings set out a case against  the joint family character of the Properties and it was only  at the  stage  of  the  evidence  that  he  fell  back  on  the alternative  case that has got him through.  We,  therefore, direct  that  the appellants shall be directed to  pay  only half the costs in this Court. P.B.R.                  Appeal dismissed. (1)  [1966] 1 S.C.R. 606; 615-616. 128