Ramji Lal Lambardar, testified to the factums of the death of Maha Chand and the succession [to him] of Mst. Bhagirathi his widow. There is no objector. Hence mutation in respect of the heritage of Maha Chand in favour of Mst. Bhagirathi, his widow is sanctioned.
Date the 29th December 1925. Signature of: The Revenue Assistant.'
9. The order shows that it was made as a result of there being no objection from anybody to the statement of Ramji Lal, Lambardar, about the death of Maha Chand and Bhagirathi succeeding him as widow. The plaintiffs, who were minors, may not have attended the public Assembly. They being minors could not have understood the significance of any general notice, I any issued in that connection and the gathering of people. It is not for the Revenue Authorities to make any regular enquiry about the devolution of title. They make entries for revenue purposes about the person who is considered prima facie successor of the deceased. A widow would be considered an ostensible successor to her husband unless it be known that her husband was a member of a joint Hindu family and the property over which mutation was to be made was joint family property.
10. We are therefore of opinion that the mere fact of the mutation entry being made in favour of Bhagirathi on the death of Maha Chand is no clear indication that there was no joint Hindu family of the plaintiff and MahaChand at the time of the latter's death.
11. Bharat Singh appellant no. 1. instituted 5 suits on behalf of himself, Kirpa Ram and Bhagirathi, All these suits related to agricultural land. D1. D2. D3. and D4. the plaint in four of these suits, were in the name of the plaintiff were the proprietors of the agricultural land in suit. With respect to the admonition in these plaints that Bhagirathi was one of the proprietors of the agricultural land in suit. With respect to the admission in these plaints that Bhagirathi was one of the proprietors, Bharat Singh stated that he had been including her name in the cases filed against tenants in accordance with the revenue papers. This is a sound explanation. So long as an entry in the defendant's name stood in the revenue papers, suits in revenue Courts, as these suits were, had to be filed in those names. D-5 is the plaint of a suit by Bharat Singh and Kirpa Ram instituted on April 6, 1943. Bhagirathi is imploded as defendant no. 1. Para 1 of the plaint stated that defendants nos. 2 to 5 were non occupancy tenants under the plaintiffs and defendant No. 1, and para 3 stated that defendant No. 1 being absent, could not join the suit and that therefore she had been made a pro forma defendant. When Bharat Singh made the statement on November 27, 1953 'I do not remember why Bhagirti was made defendant', he does not appear to have been shownthe plaint Exhibit D-5. There is nothing surprising if he could not remember the reason for making her a defendant. Earlier he had already made a statement on October 3, 1953 that they had been including her name in the cases filed against tenants in accordance with revenue papers and that explanation, together with what is entered in the plaint, sufficiently explains for Bhagirti being impleaded as defendant in D-5. The High Court was not factually correct in making the following observation:
12. When Bharat Singh came into the witness-box, he was confronted with all these documents but, strangely enough, he did not care to give any explanation why Mst. Bhagirathi had throughout been shown as a confronted with them in these proceedings if, in fact, she was not a co shares and was entitled only to maintenance. As a matter of fact, when a pointed question was asked from him with regard to Exhibit D-5, he stated as follows :- I do, not remember why Mst. Bhagirathi was made defendant'.'
13. Bharat Singh had given explanation with respect to her being impleaded in these suits. The record does not show that he was referred to Exhibit D-5 and a pointed question with regard to what was stated in the plaint had been put to him when he made the particular statement about his not remembering why Mst. Bhagirathi was made a defendant. If he had been referred to the paint, he could have himself, on reading, given the proper answer, or his counsel would have re examined him in that regard.
14. We are of opinion that the High Court was in error in relying on these admissions of Bharat Singh when he had explained them reasonably.
15. 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 Chand death, he was separate from his brothers. He admitted in cross examination that this he had learnt form his father. His evidence is hear say and is of no value.
16. Giani Ram, D. W. 3 stated that all the three brothers, Bharat Singh, Kirpa Ram and Maha Chand had separated in 1923 during the life time of Ram Narain himself. The finding of the High Court is that the disruption of the joint family took place after Ram Narain's death, Giani Ram does not belong to the family. No reason exists why disruption of family should have taken place in the life time of Ram Narain. The fact that Ram Narain or his mother are not said to have got any share of the agricultural land when disruption took place, does not stand to reason. No mutation entry papers to have been made in the village papers at the time of the alleged partition in the life time of Ram Narain. Giani Ram is much interested in the case of the defendant as he holds a decree against her. Further, firm Shiv Prashad Giani Ram sued firm Jairam Das Ram Narain [the family firm of the parties herein] through Bhagirathi for the recovery of the money the defendant firm owed to the plaintiff firm on the basis of bahikhatha accounts. Giam Ram, through whom the suit was instituted and Bhagirti entered into an agreement for referring this dispute to arbitration. In this agreement signed by Giani Ram and Bhagirti, she was described as proprietrix of the joint Hindu firm known as Jiram Das Ram Narain. The only explanation for such a statement occurring in the agreement is given by him to be that the petition writer did not read over the agreement to him or to Bhagirti and got their signatures on it without making them read the agreement. No reliance could have been placed on his statement.
17. Bhagirathi defendant, as D. W. 4, simply stated that when her husband died he and the plaintiffs were not joint and that they had separated even before her marriage. She is no witness of the disruption of the family.
18. 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 insufficient to prove disruption after the death of Ram Narain and during the life time of Maha Chand.
19. 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 brothers had one third share each in the property. This statement does not mean that there had been disruption in the family. We do not know in what form the question 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 on-third share would have gone to his son or that the entries in the village papers would show Maha Chand's son being mutated over the one-third share of Maha Chand just as Bhagirti's name was mutated in place of Maha Chand.
20. Reliance was also placed for the plaintiffs on the admissions of Bhagirathi, 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 admission if read as a whole did not contain any admissions on behalf of Bhagirathi that there was any joint family still in existence.
21. 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. The view taken in that case was differed to by the Full Bench decision of the Allahabad High Court based its decision on the observation of the Privy Council in Bal Ganghadhar Tilak v. Shrinivas Pandit. That case, However did not directly deal with the use of admission 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 anyway 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 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 Act.
22. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view Sections 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 the party making them appeared in the witness was confronted with those statement 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 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 evidence.
23. We are therefore of opinion that the admissions of Bhagirathi 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 to 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 admission 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 admitted.
24. We have already referred other admission in the agreement executed by her and Giani Ram for referring the dispute in Giani Ram's suit for arbitration in 1946. She instituted suit earlier in 1944. The plaint of that suit is Exhibit P. 2 She institute 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 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 3.
25. P. W. 2 clerk of Shri Inder Singh Jain, pleader, scribed this plaint and has deposed that the pleader had prepared the brief in accordance with the instructions of Bhagirathi and that he had written out the petition and plaint and that it had been read out to her. He denied that the thumb marks of Bhagirathi were secured on a plain paper and that the plaint was written later on. This suit was withdrawn.
26. Again in 1950 she instituted another suit against the present plaintiffs and one Har Narain for a certain declaration. In para 1 of the plaint it was stated that the three shops mentioned therein belonged to the joint Hindu family firm Jairam Das Ram Narain in Nerela Mandi, Delhi State. The plaint is Exhibit P-1 Shri M. K. Madan, Advocate P. W. 1 has deposed that the plaint was got written by Bhagirathi, that a portion of the plaint was in his handwriting and that it was read over to her and admitted its contents. He also stated that the suit was subsequently withdrawn.
27. 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 Bhagirathi as the owner of one third share are wrong and that the decree of the trial Court is right.
28. 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 the acted 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.
29. We, therefore allow the appeal, set aside the decree of the court below and restore the decree of the trial court. We further direct the respondent to pay the costs of the appellant in the High Court and this court.
30. Appeal allowed.