1. Defendants 5 and 10 are the appellants. Defendant No. 10 is the wife of defendant 5. The following genealogy would show the relationship of the parties : --
PURUSHOTTAM RAJGURU MOHAPATRA
| | |
Dasarathi Damodar Sadasiv, adopted
| | to Biswanath of
Gopinath (dead 1943) | Gulugonda
(adopted son, Annapurna (wife) |
Nabakishore (adopted)(Plaintiff) |
| | | | | |
Gopinath adopted Basudev Narayan Raghunath Gadadhar alias Brojaraj dead 1950.
to Dasarathi | Jagannath | Pitambar dead Wife=Sebti
| | (adopted) D.8 | 1950 |
Nabakishore (adopted) | ____________________ |
Plaintiff. | | | |
| Praballad D.3 Shamsundar D.4 |
| | | | |
Haribaro D.5 Pusushottam Jagannath Ad- Balabhadra D.7 |
W. Kamala D.10 D.6 dopted to Narayan W. Sailabala D.11 |
| | | | | |
Haramani Devi (d) Satyanarayan Sosi Devi Basanti Sudarsan Nabakishore Rajkishore
Suradsan Misra D.1 Bhagawan Rath Misra adopted to Gopinatn D 2
2. Plaintiff is the natural son of Brojaraj and claims to be the adopted son of Gopinath. He filed the suit for partition claiming eight annas of the total ancestral property on the allegation that he was adopted by Gopinath who was the adopted son of Dasarathi.
3. Defendants 1 and 2 are the natural brothers of the plaintiff and support the plaintiff's case in toto.
Defendant No. 5 contested the suit challenging both the adoptions. He averred in his written statement that in 1945 there was a family settlement whereby the entire property was divided by metes and bounds into five equal shares' and that the arrangement was acted upon, in the alternative, he also made a claim that the properties in Schedules A/4 and A/10 of the plaint were his self-acquisitions and the live-stock mentioned in G Schedule are the separate property of his wife (defendant No. 10).
Defendants 6, 9 and 10 filed written statement supporting the case of defendant 5.
Defendant 8 filed written statement supporting the case of defendant 5 so far as the family arrangement is concerned and supported the Plff's case so far as the adoptions are concerned.
The other defendants were ex parte.
4. The learned Additional Subordinate judge found both the adoptions true and rejected the contention of defendant No. 5 regarding his self-acquisition. On the question of family arrangement in 1945, he recorded a confused finding to the effect that there was a family arrangement as pleaded by defendant No. 5, but there was no partition by metes and bounds. Accordingly he passed a preliminary decree for partition of the entire disputed properties. Plaintiff's claim for accounting was refused. He held that the plaintiff was entitled to half of the compensation payable for B schedule property.
5. Mr. H. G. Panda, learned counsel for the appellants, raised two contentions -- firstly, that all the joint family properties had not been brought into hotchpot and the alienees had not been made parties to the suit and the suit for partition must fail; secondly, that Gopinath's adoption to Dasarathi has not been established.
6. The first contention has no substance. No issue on this point was raised by defendant 5 and the point was not agitated before the trial Court. We are therefore, not prepared to allow such a contention to be raised for the first time at the appellate stage. Further whether a suit for partition should comprise all the joint family properties, or whether it can be drought in respect of a portion of such properties would depend upon many circumstances. There is no absolute rule of law prohibiting a suit for partition of some of the properties only. Assuming that some properties have been left out, parties are not precluded from effecting partition or those properties at a subsequent stage. The appellants are also not precluded from raising valid objections, if any, in a subsequent litigation. This contention accordingly fails.
7. The second contention deserves closer scrutiny.To establish the adoption of Gopinatli to Dasarathi, plaintiff relies on the following documents Exts. 5, 5/a, 6,6/a, 3, 3/a and the written statement of defendant no.8 in the suit. Exts. 5 and 5/a are two unregistered mortgage deeds dated November 30, 1906 executed by Damodarand Gopinath in favour of the mortgagees. ThereinGopinath is described as the son of late Dasarathi Rajguru.Both Damodar Rajaguru Mohapatra and Gopinath RajguruMohapatra are executants of the documents. ThereinDamodar, the natural father of Gopinath and the grandfather of defdt. 5, admitted that Gopinath was the son orDasarathi. The admission of Damodar is admissible andis relevant Under Section 32(3) of the Evidence Act as it is a statement against his proprietary interest inasmuch as he wouldlose his share in the property of Dasarathi if Gopinathwas his adopted son, and also Under Section 32(5) of the evidenceAct as it relates to the existence of relationship by adoption between persons as to whose relationship Damodarhad special means of knowledge. This statement ofDamodar was made long before the question in disputewas raised. The admission of Damodar is binding ondefendant No. 5 Under Section 18(2) of the Evidence Act whichruns :
'Statements made by persons from whom the parties to the suit have derived their interest in the subject matter of the suit are admissible, if they are made during the continuance of the interest of the persons making the statements'.
If the adoption were not true, Damodar would have derived the entire interest of Dasarathi and through Damodar defendant 5 and others would derive their interest in respect of the properties which are the subject matter of the suit, and Damodar made the statement at a time when he continued to have interest in the property. The words 'during the continuance of the interest' only mean while the interest was subsisting and before that interest was parted with.
These documents also constitute evidence of Gopinath's assertion of the right that he was the adopted son of Dasarathi and are relevant Under Section 13 of the Evidence Act read with Section 32(7) as Gopinath is dead. Under section 21(1) of the Evidence Act the admission of Gopinath in his own favour as the adopted son of Dasarathi is relevant and may be proved on behalf of the plaintiff.
8. Exts. 6 and 6/a are Muchalikas dated June 20, 1926 executed by tenants in favour of Gopinath, son of deceased Darasathi, in respect of properties of Dasarathi. Mr. Panda argues that these documents are not inter partes and do not relate to the suit lands. These documents are certainly not binding on the defdts. who are not parties to the same. Those are, however, relevant Under Section 13 of the Evidence Act evidencing transactions by which Gopinath's right as the adopted son of Dasarathi was claimed.
In Ashafaque Ali v. Asharfi Mahaseth AIR 1951 Pat 641 it was held that the words used in Section 13 are not used in a narrow sense and the claims need not necessarily be made in the presence and to the knowledge of the person to be affected thereby. A claim can very well be made in the absence and without the knowledge of the person to be affected. On similar facts their Lordships held that a Patta of the year 1905 though not inter partes was admissible in evidence under Section 13.
In Harihar Prasad v. Deonarayan Prasad, (S) AIR 1956 SC 305 their Lordships made the following observations :
'The respondents are right in contending that they cannot be regarded as admissions by the mortgagees as the deeds were executed by the mortgagors; but they are certainly admissible under Section 13, Evidence Act, as assertions of title, and as it is under these documents that the first party defendants claim, their probative value as against them and as against the second party defendant who claim under them is high'.
The documents, under consideration, were no doubt interpartes and the observations of their Lordships do not apply with full force. But the principle has been clearly laid down that though the recital in the document would not amount to admission of the party in whose favour the document has been executed, yet it is admissible and relevant Under Section 13 of the Evidence Act. In this case, Exts. 6 and 6/a would not amount to any admission by Gopinath in whose favour the tenants had executed the Muchi-likas. But they are certainly relevant Under Section 13 in support of the claim of Gopinath as the adopted son of Dasarathi. Mr. Panda contended that the description of Gopinath as the son of Dasarathi in the descriptive portion of the documents does not amount to an assertion of a right within the meaning of Section 13 and in support of their contention he relies upon Kumud Kanta v. Province of Bengal, AIR 1947 Cal 209 wherein it has been observed :
'It is well settled now that there is a fundamental distinction between a mere recital and an assertion. A right is not asserted simply because it is recited in a certain document. It is asserted only when the transaction concerned is itself entered into in exercise of the right'.
There is no dispute over the proposition that every recital in a document would not amount to an assertion. The description of Gopinath as the son of Dasarathi is not a superfluous recital in exts. 6 and 6/a but has been made in assertion of the right that the tenants were taking lease of lands of Dasarathi which Gopinath could lease out on the theory that he was the adopted son of Dasarathi. The opening words of the documents clearly recite that the lands of Dasarathi were being leased out. Gopinatn would have no legal status to lease out those lands as a lessor unless he claimed as the adopted son of Dasarathi and was recognised as such by the tenants. Therefore even on the principle of Calcutta case the description of Gopinath as the sun of Dasarathi is not a mere recital in the documents but is an essential and integral part of the documents to give legal validity to the transactions themselves. The weight to be attached to Exts. 6 and 6/a may not be as great as it would have been if the documents would have been inter partes. But their relevancy and admissibiiity are beyond question.
9. Ext. 3 is the plaint filed by defendant No. 3 as plaintiff in Title Suit No. 118 of 1951 seeking partition of the joint family lands and Harihar (defendant No. 5) was also defendant 5 in that suit and filed the written statement (Ext. 3/a) dated Jan. 28, 1952. In Ext. 3 defendant No. 3 had clearly admitted that Gopinath v/as the son of Dasarathi. In Ext. 3/a defendant 5 had challenged the status of Gopinath as the son or Dasarathi and defendant 3's status as the son of Raghunath. The genuineness of these two documents is not in question. Defendant 5 has failed to prove that defendant 3 was the illegitimate son of Raghunath. The admission of defendant 3 in Ext. 3 accepting Gopinath as the son of Dasarathi is binding on defendant 3.
Defendant 8 is the natural brother of defendant 5 He has been adopted to Narayan, son of Damodar, in his written statement in this suit he admits as follows :
'It is then when all the membars of the farnily sat together that the question of keeping the line of Dasarathi, that is, adoption of Gopinath, came up and all the family members agreed to allow the plaintiff to continue the said line. Than he was formally taken into adoption by the widow of Gopinath'.
later on it is again averred; 'The plaintiff representing Dasarathi's branch'. It is true that defendant No. 8 supports the case of defendant 5 on the question of family arrangement in 1945 and wants the entire properties to fee divided into five equal shares. But his statement that plaintiff was representing Dasarathi's branch is an unambiguous admission that Gopinath was the adopted son of Dasarathi. The family arrangement was in connection with recognition of the adoption of the plaintiff to Gopinath. If in that connection Gopinath's adoption to Dasarathi was accepted as a settled fact by all the members of the family and on that footing plaintiff was given in adoption to Gopirath to perpetuate the line of Dasarathi, then the adrnisson that Gopinath was the adopted son of Dasarathi is binding on defendant 5.
The admission of defendant 3 in Ext. 3 and the admission of defendant 8 in the written statement of this suit are however of a slightly different character. The admission of defendant 8 comes directly within Order VIII, Rule 5, Civil Procedure Code, which is as follows :
'Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability;
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission'.
Plaintiff's assertion in the plaint was that Gopinath was the adopted son of Dasarathi. Defendant 8 in his written statement unambiguously accepted such position. It therefore, stands as a strong piece of admission of defendant 8 in the pleading itself and is binding on him. Ext 3 on the other hand stands on a slightly different footing. It is a previous statement of defendant 3 and defendant 3 has not come to the box. The genuineness of Ext. 3 is not questioned. It is contended by Mr. Panda that Ext. 3 is not admissible as defendant 3 has not been examined in this case and he has not been cross-examined as to the previous statement made by him. In other words, defendant 5 did not get the opportunity of confronting defendant 3 with his previous statement. Section 145 of the Evidence Act says that a witness may be cross-examined as to the previous statement made by him in writing, without such writing being shown to him; but it it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which arc to be used for the purpose of contradicting him. In this case defendant 3 himself is a party and he has not been examined as a witness. As he has not been examined as a witness, section 145 cannot be invoked and as he is a party to the suit, his statement can be proved as an admission against him. The position has been clearly stated in a Full Bench decision reported in Firm Malik Das Raj Faquir Chand v. Firm Piara Lal Aya Ram, AIR 1946 Lah 65 which has been followed in this Court. It has been observed :
'A party's previous admission is relevant under Section 21 and can be used as evidence against him if that party has not appeared in the witness box at all. The value of that admission as a piece of evidence depends on the circumstances of each case, but ordinarily an admission is a valuable piece of evidence'.
Ext. 3 therefore is admissible and relevant as against defendant 3 without he being confronted with under section 145.
10. The question however remains as to how far the admissions of defendants 3 and 3 would be binding on defendant No, 5. The general rule is that an admission, can only be given in evidence against the party making it and not against any other party. In general, the statement of defence made by one defendant cannot be lead in evidence either for or against his co-defendant, the reason being as there is no issue between the defendants, no opportunity for cross-examination is afforded if this course is allowed, the plaintiff can make one of his friends a defendant and thus gain a most unfair adventure. But this rule has no application to cases where the co-defendants have joint interest. It is not by virtue of a person's relationship to the litigation that the admission of one can be used against the other. It must be because of some privity of title or of obligation. This principle is deducible from Section 18(1) of the Evidence Act which runs as follows :
'Statements made by persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, are admissions, if they are made during the continuance of the interest of the persons making the statements'.
Here if the adoption of Gopinath by Dasarathi is not accepted, then the shares of defendants 3 and 8 would substantially increase along with defendant No. 5. So defendants 3, 5 and 8 are jointly interested in the subject matter of the suit and the admissions of defendants 3 and S are receivable not only against them but also against defendant 5 and the admissions relate to the subject matter of dispute and are made by defendants 3 and 8 in their, character of persons jointly interested with defendant 5 against whom the evidence is tendered. This principle of law has been admirably elucidated by Sir Ashtosh Mukherji in Mea Jan v. Alimuddin Mea AIR 191V Cal 487 as fellows :
'In my opinion the contention that an admission by one defendant is not receivable in evidence as against another defendant is too broadly formulated'.
The same eminent Judge had observed in Ambar Ali v. Lutfe Ali, AIR 1918 Cal 971,
'The distinction is based upon obvious good sense. The admission of one co-plaintiff or co-defendant is not receivable against another, merely by virtus of his position as a co-party in the litigation; if the rule were otherwise, it would in practice permit a litigant to discredit an opponent's claim merely by joining any person as the opponent's co-party, and then employing that person's statement as admissions. Consequently, it is not by virtue of the person's relation to the litigation that the admission of one can be used against the other; it must be, because of some privity of title or of obligation'.
11. Mr. Panda relies on Ext. D, a plaint in O. S. No. 8 of 1941, alleged to have been filed by Gopinath describing himself as the son of Damodar, in the Court of the Additional, Agency Munsif, Gunpur. This plaint was taken return of on October 22, 1951 as appears from an endorsement on the back of the document. The two plaintiffs, Gopinath and Brojaraj, were admittedly dead before that date and it is not known who had taken back the plaint and on what authority. It was contended that this document is a public document as forming record of the case of official bodies and tribunal u/s, 74(1)(ii) of the Evidence Act. There is absolutely no evidence on record that such a plaint was in fact filed by Gopinath and Brojaraj as plaintiffs. Only their signatures on the plaint have been proved. In the absence of such evidence it is unnecessary to examine In this case whether a plaint of this type taken return of by persons presumably having no authority would constitute a public document or not. Ext. D. is therefore completely ruled out of consideration.
12. On the analysis of various documents it appears that there are materials on records indicating that Gopinath was being treated as the adopted son of Dasarathi. Mr. Panda contends that these pieces of evidence by themselves do not establish Gopinath's adoption to Dasarathi. The law is well settled that the evidence in support of adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging adoption. It is equally well settled that when there is a long lapse of years between the adoption and its being questioned, every allowance for the absence of such evidence to prove such fact must be favourably entertained, the reason being that after very long term of years it is difficult to procure evidence. Admittedly in this case there is no oral evidence of giving and taking. It is not also possible to procure such evidence after this long lapse of years. But evidence is available that Gopinath was being treated as the adopted son and this is apparent from Exts. 5, 5/a of the year 1906, Exts. 6, 6/a of the year 1926 and Ext. 3 of the year 1951. So there is a long variety of transactions upon the footing that the adoption of Gopinath to Dasarathi was a valid act. In such circumstances, the burden rests very heavily upon defendant 5 who challenges its validity.
Mr. Panda cited Har Shankar Pratap Singh v. Lal Raghuraj Singh 34 Ind App 125 (PC) wherein their Lordships observed :
'Having regard to the length of lime which has elapsed since these conditions could have been fulfilled, if they ever were fulfilled, the appellants admit that they cannot prove them, but contend that they ought to be presumed. But to justify such presumption they ought to establish an initial probability that the adoption was Iikety to have been validly made, and that the conduct of the parties cognizant of the facts has been at least consistent with such an hypothesis'.
Exts. 5 and 5/a do establish an initial probability that adoption was likely to have been validly made; otherwise Damodar, whose interest was directly adversely affected by recognition of such adoption, would not have accepted Gopinath as the adopted son of Dasarathi. This case stands on a higher footing on account of the admission of Damodar in Exts. 5 and 5/a.
In Rani Chandra Kunwar v. Narpat Singh 34 Ind App 27 (PC) their Lordships observed :
'But it is difficult to conceive how she could, as against Makund Singh -- prima facie, at all event -- dis-chage that burden more effectually than by proving his solemn statement under hand and seal that it did take place. The proof of this admission shifts the burden, because, 'what a party himself admits to be true may reasonably be presumed to be so'.
This was approved in Kishori Lal v. Mt. Chaltibai AIR 1959 SC 504. In view of the unambiguous admission of Damodar, the predecessor-in-interest of defendant 5, and the admission of defendants 3 and 8 who are jointly interested with defendant 5 who denies adoption, the onus shifts to defendant 5 to establish that Gopinath was not the adopted son of Dasarathi. Defendant 5 has completely failed to discharge that onus.
13. It is next contended by Mr. Panda by relerence to para 11 of the plaint that as the plaintiff had not produced the best evidence in support of the adoption as disclosed in the plaint itself, an adverse inference should be drawn against him for non-production of such documents. It is true that the plaintiff refers to certain registered documents in the plaint itself which would indicate that Gopinath was treated as the adopted son of Dasarathi. The plaintiff seems to have not been able to prove those documents on account of the tactics adopted by the defendants. On December 10, 1958 the plaintiff applied for time, but defendant 5 filed a hazira showing readiness to proceed with the suit. The plaintiff obviously applied for time as he was not fortified with the necessary evidence in his support. As the petition for time was rejected, the plaintiff was constrained to be ready and proceeded with the hearing with whatever evidence was available. When the plaintiff showed readiness, defendant 5 applied for time on December 12, 1958 which was rejected. In the result both parties had to proceed with the suit with whatever evidence available. Further in para 11 of the plaint the plaintiff gave a clear notice of the details of the registered documents upon which he wanted to rely in support of the adoption of Gopinath to Dasarathi. If those documents contain recitals against the story of adoption, it was open to defendant No. 5 to file them. In the circumstances no adverse inference can be drawn against the plaintiff. Besides the materials on record are sufficient to establish that Gopinath was adopted son of Dasarathi.
14. In the result the appeal fails and is dismissed with costs.
15. I agree.