Skip to content


Mst. Gulkandi and ors. Vs. Prahlad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 63 of 1958
Judge
Reported inAIR1968Raj51
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2 - Order 9, Rule 9; Hindu Adoptions and Maintenance Act, 1956 - Sections 15; Hindu Law; Limitation Act, 1908 - Schedule - Articles 91, 142 and 144; Limitation (Amendment) Act, 1963 - Schedule - Articles 59, 64 and 65; ;Evidence Act, 1872 - Sections 17 and 31
AppellantMst. Gulkandi and ors.
RespondentPrahlad and anr.
Appellant Advocate R.C. Maheshwari, Adv.
Respondent Advocate J.P. Jail, Adv.
DispositionAppeal dismissed
Cases ReferredSee Narayan v. Gopal
Excerpt:
- - he, therefore, prayed that the sale-deed dated the 21st february, 1946, and the mortgage-deed dated the 3rd november, 1941, be declared to be inoperative against him, and he further prayed that he be put into possession of the two shops which had been sold out as well as the residential house of which also he had been dispossessed by his sisters unlawfully. yet another contention that was raised was that the plaintiff himself as well as his uncle kaluram had clearly made an endorsement on the deed of adoption that prahlad and the members of his natural family were willing to and did renounce his status as an adopted son of the deceased puranmal, and, therefore, whatever rights he might have otherwise acquired to the estate of the latter did no longer survive, and he was estopped.....modi, j.1. this is a defendants' civil regular first appeal in a suit for declaration and possession.2. the dispute relates to the estate of one puranmal. it is common ground between the parties that the said puranmal died without any male issue of his own, and had three daughters born to him, namely, msts. durga, gulkandi and dhapoo. the first of these died some time in 1950. the other two are appellants defendants before us. apart from these two, the other two appellants are ramchander and badri prasad, father and son, in whose favour msts. durga and gulkandi sold two shops belonging to their father by a registered sale-deed (ex. p-c) dated the 21st february, 1946, for a sum of rs. 4500.3. the plaintiff respondent prahalad's case was that he had been adopted as a son by puranmal by a.....
Judgment:

Modi, J.

1. This is a defendants' civil regular first appeal in a suit for declaration and possession.

2. The dispute relates to the estate of one Puranmal. It is common ground between the parties that the said Puranmal died without any male issue of his own, and had three daughters born to him, namely, Msts. Durga, Gulkandi and Dhapoo. The first of these died some time in 1950. The other two are appellants defendants before us. Apart from these two, the other two appellants are Ramchander and Badri Prasad, father and son, in whose favour Msts. Durga and Gulkandi sold two shops belonging to their father by a registered sale-deed (Ex. P-C) dated the 21st February, 1946, for a sum of Rs. 4500.

3. The plaintiff respondent Prahalad's case was that he had been adopted as a son by Puranmal by a registered deed of adoption (Ex. P-A) dated the 23rd Jan., 1938, and as a result thereof succeeded to the entire estate left by his adoptive father who had admittedly died on the 4th February, 1938. It may also be stated here that Mst. Durga on behalf of herself and as guardian of Prahlad, who was minor at the time, had made a mortgage of one of the shops in favour of one Ramdayal, who is defendant respondent No. 2 in the present appeal, for a sum of Rs. 800 by a registered mortgage-deed Ex. P-B dated the 3rd November, 1941.

The plaintiff's case was that his sisters Durga and Gulkandi had no right whatsoever in law to enter into the aforesaid transactions and alienate the family properties which had exclusively vested in him on the death of his father. He, therefore, prayed that the sale-deed dated the 21st February, 1946, and the mortgage-deed dated the 3rd November, 1941, be declared to be inoperative against him, and he further prayed that he be put into possession of the two shops which had been sold out as well as the residential house of which also he had been dispossessed by his sisters unlawfully.

This suit was filed by the plaintiff in the court of the Civil Judge, Alwar, on the 24th August, 1946, In forma pauperis. On an objection being raised by the defendants that the suit was under-valued by the plaintiff and that the real valuation of the subject-matter thereof, that is, the properties in dispute, was far more than the pecuniary jurisdiction of the court of the Civil Judge, namely, Rs. 10,000, it was found that the value of the properties in question was Rs. 16,000 and that being so, the Civil Judge returned the plaint to the plaintiff for presentation to the proper court by an order dated the 11th May, 1950. Accordingly the plaintiff re-presented the suit in the court of the District Judge on the 13th May, 1950.

4. There is one more important fact, as to which considerable controversy has been raised before us, which requires to be mentioned at this place, and that is that the plaintiff had earlier filed a suit against his sister Durga on the 24th October, 1944, for injunction. The gravamen of that suit was that, the plaintiff apprehended that his aforesaid sister was bent upon alienating the family properties thereby prejudicially affecting the interests of the plaintiff and, therefore, he prayed for an injunction restraining her from doing so. Durga filed a written statement in this suit on the 23rd January, 1945, but thereafter it appears that this suit was dismissed for default by an order of the court dated the 21st November, 1946.

It will be observed that the plaintiff had brought his present suit in the court of the Civil Judge in the first instance before the first suit came to be dismissed, that is, on the 24th August. 1946.

5. The mortgagee Ramdayal allowed the suit to proceed ex parte against himself; and out of the remaining defendants, Mst. Gulkandi and Mst. Dhapoo filed a joint written statement, while the alienees, being the other defendants, filed a separate but joint written-statement. The line of defence adopted by both sets of defendants is substantially the same. Their case is that as a matter of fact Prahlad had never been taken in adoption by Puranmal though it was admitted that an adoption-deed had been executed by the latter in favour of Prahlad.

11 was further contended that even if it were held that such adoption had taken place in fact, it was invalid in law inasmuch as the ceremony of giving and taking, which is the sine qua non of a valid and lawful adoption had never taken place. Yet another contention that was raised was that the plaintiff himself as well as his uncle Kaluram had clearly made an endorsement on the deed of adoption that Prahlad and the members of his natural family were willing to and did renounce his status as an adopted son of the deceased Puranmal, and, therefore, whatever rights he might have otherwise acquired to the estate of the latter did no longer survive, and he was estopped from agitating them.

The defendants further contended that the present suit was barred by the provisions of Order 2 Rule 2 and Order 9 Rule 9, C.P.C. inasmuch as the cause of action for both the suits was the same and could not be split and the earlier suit had been allowed by the plaintiff to be dismissed for default. Finally, two more pleas (1) as to the sale of the suit shops having been made for legal necessity by Mst. Durga and Gulkandi to defray the marriage expenses of their sister Dhapoo and (2) as to the plaintiff's suit being barred by limitation were also raised.

6. The trial court raised as many as twelve issues on the allegations and counter-allegations referred to above and eventually decreed the plaintiff's suit save on the point that the mortgage made by Mst. Durga on behalf of herself and as guardian of her minor brother Prahlad in favour of Ramdayal was made for legal necessity and was binding on him. Aggrieved by this decision, the defendants have come up in appeal to this Court.

7. On behalf of the appellants, practically all the points which were agitated in the trial court have been raised again before us, and we propose to deal with them in the following order.

8. In the first place, it was strongly contended before us that the present suit was barred by virtue of Order 2 Rule 2 C.P.C., as the first suit brought by Prahlad on the 24th October, 1944, and the present suit were based on the same cause of action, which, according to learned counsel, was his status as the adopted son of Puranmal,

9. Now it is correct that Order 2 Rule 2 C.P.C. lays down that a plaintiff shall include the whole of his claim in his suit in respect of one and the same cause of action, though it further lays down that it is open to him to relinquish any part of it in order to be able to bring his suit within the jurisdiction of the court; but where he does choose to do so he is precluded thereafter from suing in respect of the portion so relinquished This rule, it is well known, is based on the principle that the defendant should not be vexed twice for one and the same cause. From this it seems to us to clearly follow that in order to make this rule applicable, two principal conditions must be fulfilled: (1) that the previous and the subsequent suit must arise out of the same cause of action, and, (2) that the two suits must be between the same parties. It further seems to us that if the cause of action upon which the second suit is based had not even come into existence at the time the first suit was brought, then the second suit would not be barred because of the first suit.

10. Now when we apply these principles to the situation before us, what we find is that the first suit brought by the plaintiff was against Mst. Durga alone, and it was based on the apprehension that the plaintiff Prahlad entertained that his sister Durga was intending to alienate some of the family properties which she had no right to do. It is clear, however, that he did not attack any actual alienation made by Durga in that suit because the same had not been made except for the mortgage about which there is no controversy before us in the present appeal. The cause of action, therefore, so far as the first suit was concerned was the damage apprehended by Prahlad to his proprietary rights qua the property inherited by him from his adoptive father.

Now, so far as the present suit goes, apart from Mst. Durga since deceased, the two other sisters namely Gulkandi and Dhapoo were also made parties, and the two other principal persons who were impleaded as defendants were Ramchandra and Badri Prasad in whose favour Durga and Gulkandi had sold the two shops for a sum of Rs. 4500 by a sale-deed dated the 21st February, 1946. In addition to these, Ramdayal, the mortgagee, under the mortgage of 1941, has also been impleaded as a defendant. But as we have already pointed out with respect to the last-named person, there is no dispute before us in this appeal so far as the mortgage is concerned

11. It is obvious that the second suit was based on the actual damage which had allegedly been done to the proprietary rights of the plaintiff as contra-distinguished from a mere threat thereto. It may also be- pointed out incidentally that on the footing that the plaintiff had till then not actually been ousted from the possession of any of the suit properties, he had only claimed the relief of injunction: while by the time the second suit had come to be filed, he had been actually ousted from possession of the entire family estate, and, therefore, it became necessary for him to claim the relief of possession.

12. In these circumstances, we have no hesitation in coming to the conclusion that the present suit as brought by the plaintiff was not essentially or substantially based on the same cause of action as the first suit, and that the causes of action in the two suits were really separate and independent.

13. The contention of learned counsel for the appellants before us was that we should hold the two suits as based on the same cause of action because in either of them the plaintiff set up certain rights as the adopted son of Puranmal, and, therefore, the two suits brought by him should be held to be founded on the same cause of action. This, in our opinion, is an entirely mistaken approach so far as any objection based on Order 2 Rule 2, C.P.C. is concerned. It is well settled that a party may be entitled to a number of causes of action though they may all stem out from one and the same transaction u set of facts See Inder Nath Modi v. Nand Ram ILR (1952) 2 Raj 919 = (AIR 1953 Raj. 59) In that case, the mortgagee had filed a first suit against the mortgagors for mortgage-money on the allegation that at the instigation of the mortgagors their mother S had wrongfully dispossessed the mortgagee of the mortgaged house. S was also impleaded as a defendant in the suit though no relief was claimed against her. This suit was dismissed as barred by time. Thereafter the mortgagee sued the successors-in-title of S who were the mortgagors for possession of the mortgaged-house on more or less the same grounds. It was contended by the defendants that the cause of action in the two suits being one and the same, the second suit was barred by the provisions of Order 2 Rule 2 C. P. C.

It was held by a bench of this Court that the second suit was not barred as the causes of action in the two suits were different, no matter that the facts which had given rise to the causes of action apparently seemed to be the same. The true test therefore, for the applicability of the bar of Order 2 Rule 2 to see is not whether the two suits are founded more or less on the same facts but whether the cause of action on which the two suits are founded is not one and the same or there has been splitting thereof. If there is a split of one and the same cause of action, then the second suit would certainly be barred under Order 2 Rule 2; but if out of the same facts more than one cause of action have accrued to the plaintiff, it is open to him to file two separate suits based on such separate distinct causes of action. And that is what seems to us to have clearly happened here.

14. That being so, we are definitely of the view that the contention of the defendants that plaintiff's present suit is bad by virtue of anything contained in Order 2 Rule 2 is not well founded. The second suit which has led to the present appeal before us was, in our opinion, based on an entirely distinct cause of action from that which underlay the first suit. In fact the cause of action which accrued to the plaintiff at the time of the second suit was not at all available to him at the time of the institution of the first suit inasmuch as the impugned sale of the bulk of the suit properties had not taken place at all, and, therefore, Order 2 Rule 2, C.P.C. is not at all attracked in the present case. We hold accordingly.

15. It was also contended before us, as before the Court below, that the present suit was barred under Order 9 Rule 9, C.P.C. because the plaintiff's earlier suit had been dismissed for default under Order 9 Rule 8, and, therefore, it should be dismissed as such without going into the merits thereof. The bar under Order 9 Rule 9, however, applies only in those cases and would preclude the filing of a fresh suit, where a second suit is sought to be brought by the same party in respect of the same cause of action.

The discussion that we have made at length in the foregoing part of our judgment to show that the plaintiff's present suit is based on a distinct cause of action from that upon which his first suit was founded is enough to settle the fate of this objection also, and we need not repeat under this topic all that we have already said. This objection, therefore, also fails and is hereby repelled.

16. With these legal objections as to the maintainability of the present suit having been cleared away, the first point that falls for determination on the merits is whether the finding of the court below on the question of adoption to the effect that it was proved both as a matter of fact and law is incorrect. The learned trial Judge has discussed the evidence bearing on this point at considerable length, and we do not think it necessary to traverse the same ground over again. Suffice it to say that so far as the factum of adoption is concerned, it is evidenced by a document which is proved to have been duly executed and registered by Puran Mal himself. Then there is overwhelming oral evidence to prove that this adoption did take place. This evidence consists of the statements of P. W. 2 Chiranji, P.W. 3 Jawaharlal, P. W, 4 Bhemla, P. W. 9 Ram Sahai, apart from the evidence of the plaintiff Prahlad P. W. 10.

17. The gist of the evidence of these witnesses who all belonged to the village Ghasoli where Prahlad and his natural mother lived is that a few days before the deed of adoption actually came to be executed, Puranmal and his wife Budhi had gone to the village and had asked the widow of Budharam who was a 'Mosera' brother of Puranmal to give the plaintiff Prahlad in adoption to him whereupon the widow replied that she would agree if Puranmal should execute a proper deed of adoption, and then they went to Alwar where Puranmal lived and the deed was duly executed whereafter they again went to Ghasoli, and an invitation was sent round through barber Bhemla P. W. 4 to a number of relations and friends of the family to gather at the house of Prahlad, some of whom have been produced by the plaintiff as his witnesses in this case, and in their presence the ceremony of giving and taking was performed by Mst. Bhagga, natural mother of Prahlad and Puranmal, the adoptive father, respectively,

There is no satisfactory rebuttal of this evidence. When Mst. Gulkandi examined herself as a witness on her own side and her husband Premsukh also appeared in support of her, they indeed stated that at the time the deed of adoption was allegedly executed by Puranmal and was thereafter got registered by him by a registering officer who had come to Puranmal's house, the latter was seriously ill and was in no position to consciously execute the deed of adoption or to verify the same before the said officer,

18. For one thing, this evidence' comes from highly interested parties and is partisan; and, for another,, it seems to us to be completely false because if there was a vestige of truth in the story now trotted out by these persons, we would have expected them to raise an objection before the registering authority that Puranmal was not in a sound state of mind so as to be able to verify the deed of adoption. This they never did. And again not a single question to elicit the fact of Puranmal's illness at the material time was put to any of the witnesses of the plaintiff when they entered the witness box to support the story of adoption and its being evidenced by the writing Ex. A-2. The story of Puranmal's illness, therefore, seems to us to be in the nature of ad misericordiam and we are not prepared to believe it for a single moment.

19. Further, it seems to us that the factum of adoption including the validity thereof is proved beyond all doubt by certain unimpeachable documentary evidence forthcoming from Mst. Durga herself. It may be mentioned here that one Surajmal, a collateral of Puranmal, after the latter's death filed a suit against Durga and Prahlad presumably for possession of certain property. We say 'presumably' because the original plaint has not been brought on the record; but the written statement filed fay Mst. Durga is available to us for perusal which is Ex. 7. This written statement is dated the 31st January, 1942.

In this written statement, Durga's plea was that Prahlad was the duly adopted son of her father Puranmal and that she was his guardian and as such she had full authority to make a mortgage of certain family property, that is, with respect to one of the shops belonging to it. Earlier in the mortgage Ex. P-B made by Mst. Durga in favour of Ramdayal on the 3rd November, 1941, which seems to have been the bone of contention in Surajmal's suit, she had also stated that she was executing this mortgage on her own behalf and as the lawful guardian of Prahlad minor who was her brother having been duly adopted as his son by her father and that as their sister Dhapoo had come to be of marriageable age. and it was very necessary to give her in marriage and as money was required for that purpose, so a shop belonging to the family was being mortgaged to Lala Ramdayal for sum of Rs 800/-.

At the end of this document, Mst. Durga again described herself as Puranmal's daughter aged 35 years on behalf of herself and as the guardian of her brother Prahlad being the adopted son of Puranmal Mahajan of Alwar. We have no hesitation in saying that if the adoption of Prahlad had not been accomplished both as a matter of fact and law, Mst. Durga would have been the last person to accept him as such in the documents to which we have referred above.

20. There is further evidence in support of the story of adoption inasmuch as Mst. Gulkandl herself accepted in her cross-examination that after the death of her father Puranmal, Pugri was tied on Prahlad as his adopted son which would never have been done if the story of adoption had no substance in it.

21. We do not wish to labour this point further and would conclude that we are in perfect agreement with the court below when it came to the conclusion that the adoption of Prahlad to Puranmal stands proved on this record by abundant oral and documentary evidence which we see no valid reason to doubt or dispute, and that the said adoption was also valid in law as the ceremony of giving and taking had been duly performed after the deed of adoption had been executed.

22. The next question that falls for determination is about the proof and the effect of the endorsement which is alleged to have been made by Kaluram, uncle of the plaintiff Prahlad and Prahlad himself on the deed of adoption Ex. P-A purporting to renounce the rights of Prahlad in the adoptive family. This endorsement is alleged to have been made on the 12th March, 1939, that is, about 13 to 14 months after the deed of adoption came to be executed. It may also be recollected in this connection that Puranmal had died on the 4th February, 1938. It has been strongly contended before us on behalf of the plaintiff that the excution of this endorsement by Prahlad who was still a minor at the time and his uncle Kaluram has not been proved by any satisfactory evidence, and, therefore, it should be rejected on that ground alone. Learned counsel for the appellants has invited our attention to the depositions of Mst. Gulkandi D. W. 15 and her husband Premsukh D. W. 14 to prove such execution.

23. Gulkandi has of course stated that the endorsement had been made and signed by Kaluram and Prahlad in her presence, and the occasion for doing so had arisen because after Puranmal's death, Prahlad had gone back to his natural family in Ghasoli and refused to come back to Alwar although he was pressed time and again to do so. Premsukh also roundly supports his wife when he stated the same story in his examination-in-chief and deposed that the endorsement in question had been signed by Prahlad and Kaluram. This Premsukh is on his own showing, a resident of Delhi, and it seems to us not a little strange that on every material occasion he manages to be in Alwar.

For, his evidence also happens to be on the question of execution of the deed of adoption by Puranmal in January, 1938, that he had been sent for by his father-in-law to Alwar and he remained there for a month during which period the deed of adoption came to be written in favour of Prahlad by Puranmal, and yet if his story is to be believed, he was in a state of unconsciousness or semiconsciousness; and, stranger still, he did not raise a word of protest before the registering authority when he came to register the document at the house of Puranmal and where he undoubtedly was at the time. It is true that these witnesses have not been as thoroughly cross-examined as we should have liked them to be on this aspect of the case at the same time there is no gainsaying the position that they do not inspire us as truthful witnesses and are, besides, partisan ones. The matter of the execution of this endorsement by Prahlad and Kaluram becomes all the more mysterious inasmuch as if Prahlad had allegedly renounced his rights or status as adopted son of Puranmal as early as 1939, there could not have been any occasion for the eldest daughter of Puranmal namely Durga to have made any mortgage of one of the family shops on behalf of herself and Prahlad as his lawful guardian. This mortgage was made on the 3rd November, 1941.

24. The question of questions is: if the parties concerned had by mutual consent and goodwill restored the status quo with respect to the estate of Puranmal by giving a go-by to the adoption of Prahlad to him, where was the occasion for Prahlad to have figured in any transaction or transactions relating to the alienation of the family estate, and all the more so, at the instance of Mst. Durga? As we have pointed out above, it was not on one but two occasions that she unequivocally stated, once, while she entered into this mortgage in November 1941, and, the second time, in answer to the suit filed against her and Prahlad by Surajmal in 1942, nay, she stoutly maintained that Prahlad was the duly adopted son of his father Puranmal.

She did not stop at that. She further maintained that Prahlad's adoption had never been cancelled and that even if there were any endorsement to that effect by Kaluram relinquishing Prahlad's rights in the adoptive family which she disputed, the said Kaluram had no authority to interfere with the rights of Prahlad who was a minor and who had been duly adopted by her father, and, therefore, was the full and absolute owner of her father's estate after the letter's death.

25. In this state of affairs, we are not prepared to hold that the defendants have succeeded in satisfactorily establishing that the endorsement in question had been made by Kaluram or Prahlad as a matter of fact.

26. But, even if we were not to go as far, we have no hesitation in saying that this endorsement was utterly ineffective to adversely affect, much less destroy, the rights which Prahlad had acquired by virtue of his adoption to Puranmal. The most important reason which inclines us to (tome to this conclusion is that it is a well-settled principle of Hindu Law that an adoption once made cannot be cancelled, nor is it possible for the adopted son, or, for any of the parties concerned in the adoption, to renounce or destroy the rights of the adopted, son once the adoption has been duly made according to law. If any authority is needed in support of , this proposition, we would invite attention to paragraph 493 of Mulla's Principles of Hindu Law 12th Edition at pages 657-658 thereof.

Says the learned author:

'A valid adoption once made cannot be cancelled by the adoptive father or other parties thereto, nor can the adopted son renounce his status as such and return to his family of birth. But there is nothing to prevent him from renouncing his right of inheritance in the adoptive family, in which case the inheritance would go to the next heir.'

27. We may point out that it is no body's case before us that by the endorsement which was made on the adoption-deed it was intended by Prahlad or any body on his behalf to renounce his right of inheritance in the adoptive family, and, therefore, that exceptional case hardly arises here. But even if it did, it seems to us that such a release of his rights to effectually come about according to law would require a writing to be registered under section 17(1)(b) of the Registration Act. The endorsement in this case is admittedly not registered. Therefore, from whichever angle we might look at this aspect of the case, we are driven to the conclusion, in agreement with the learned Judge below, that the endorsement in question is of no legal efficacy whatsoever, and that it was entirely insufficient to divest Prahlad of any of the proprietary rights which he had derived from his adoptive father with respect to his estate,

28. It was next contended by learned counsel that, in any view of the case, the plaintiff's suit was barred by limitation, and, therefore, it should have been dismissed as such by the court below and we should dismiss it likewise. The contention of learned counsel was that this was a suit to which Article 91 of the Limitation Act applied for which a period of three years has been prescribed. This Article reads as follows:

Description of suit

Period of limitation

Time from which period begins to run.

To cancel or set aside an instrument not otherwise provided for.

Three years.

When the tacts entitling the plaintiff to have the instrumentcancelled or set aside become known to him.

Apparently the contention of learned counsel is that the plaintiff's suit was in substance to have cancelled or set aside the sale-deed which was executed by Durga and Gulkandi in favour of the vendees on the 21st February, 1946. The further contention of learned counsel is that the plaintiff's suit was re-presented in the court of the District Judge on the 13th May, 1950, which was obviously beyond the prescribed period of three years. Now we shall assume that the suit was effectually instituted on the last-mentioned dale.

29. On a careful consideration of this contention, we have come to the conclusion that it is devoid of substance. The principal reason which inclines us to come to this conclusion is that the plaintiff was under no lawful necessity to have the sale-deed cancelled or set aside as such in the present case; for he was not a party to it, nor would he otherwise be bound by it in law. We may invite attention in this connection to a bench decision of our own Court (to which one of us was a party) in Sukh Lal v. Devi Lai ILK (1953) 3 Raj 782-(AIR 1954 Raj 170). The following extract from the Judgment in the case above cited may be quoted:---

'There is a difference between a suit for the cancellation of an instrument and one for a declaration that the instrument is not binding on the plaintiff. When the plaintiff seeks to establish that title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound, then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or deed cancelled in toto. The proper remedy in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned, and, therefore, he may sue for a declaration to that effect and not for the cancellation of the decree or the deed.'

Applying these observations to the present case, we are clearly of the opinion that as the plaintiff was neither a party to the deed of sale nor would he be in law bound by the same which had been executed by his sisters Durga and Gulkandi in favour of the vendees, it was not at all incumbent upon the plaintiff, nor has he done so to ask for the cancellation of the sale-deed, and it was enough for him to ask for a mere declaration that the sale deed be declared to be inoperative so far as his rights were concerned

30. In this view of the matter, (SIC) have no doubt whatever that Article (SIC)91 has no application to the present case, and that the proper Article which comes into play in a case like the present is either Article 142 or in the alternative Article 144 of the Limitation Act (we say in the alternative because it is unnecessary to decide for the purposes of the present case which of these two articles is properly applicable,), and whether the one article is applicable or the other as the period prescribed under either of them is 12 years, the plaintiffs suit which was brought in the court of the District Judge in 1950 (even as represented) would certainly be within such period of limitation.

It will be remembered in this connection that on the case put forward Mst. Durga herself in her written-statement in Surajmal's suit in 1942, her own contention was that up to that time Prahlad (plaintiff) was in effective possession of the estate of the deceased Puranmal. The plaintiff's suit which is substantially and essentially for recovery of possession has thus been filed within 12 years of his dispossession or discontinuance of possession which could not have taken place before 1942. This is enough, in our opinion, to dismiss the plea of limitation, and we hold accordingly.

31. At this stage, we may as well deal with the contention of learned counsel that the statement made by Mst. Durga in her written-statement referred to above, and this amounts to an admission, should not be accepted as binding on her or the other defendants, and reliance is placed in support of this proposition on a decision of the Bombay High Court in Ramabai Shriniwas v. Bombay Government, AIR 1941 Bom 144. It was held in this case that a party is not bound by an admission in his pleading except for the purpose of the suit in which the pleading is delivered and that it frequently happens that a party is prepared in a particular suit to deal with the case on a particular ground and to make an admission, but that admission is not binding in any other suit and certainly not for all time.

32. Now if this ruling is intended to be an authority for the proposition that the admission of a party made in a prior suit or for that matter on some other occasion, that is, other than the one provided by the suit under decision, has no value or weight whatever against him in the later suit arising for decision, then, with all respect, we are not prepared to accept it for any such sweeping proposition. It is well settled that admission of a party adverse to its own interest as to a fact in issue or a relevant fact irrespective of the occasion on which it was made is one of the best or strongest pieces of evidence against it. See Narayan v. Gopal AIR 1960 SC 100.

It also seems to us to be incontrovertible that if such admission is made in the course of a pleading in the suit itself it may be accepted as a rule that it would be conclusive against the party making it for the purposes of that suit. (See Order 8 Rule 5 C.P.C.) In other words it does seem to us that an admission made in a prior litigation would not be conclusive on the party making it and may be proved to be wrong or untrue. The burden, however, to prove that such admission is wrong must lie squarely on the party which wishes to get rid of it for the simple reason that a fact admitted to be true cannot but be presumed to be true until the contrary is proved. But from this it does not and cannot properly follow that the admission made by a party on a previous occasion adversely to his own interest is of no evidentiary value.

33. The correct legal position of an evidentiary admission thus seems to us to be that even though an admission made by a party in a prior suit may not be binding on it, it would nevertheless be relevant and may indeed operate as a piece of evidence of considerable weight and value against it although it would be open to the party, making it to show that the admission so made was made erroneously or under a misapprehension, and, therefore, was untrue and should not be relied on as of any value. But, with all respect, it would not be permissible to argue from this as a matter, of law that such an admission made by an important party to a case should be brushed aside as of no value because it is not binding on it.

34. If that is the correct legal position as to an admission made by a party to a suit in some document executed by it on some other occasion, for the purposes of the suit under decision, as we think it is, then we have no hesitation in coming to the conclusion that the admission of Mst. Durga contained in her written-statement as well as her admission contained in the mortgage executed by her on behalf of herself and the present plaintiff Prahlad as to the full and absolute proprietary rights of Prahlad with respect to the estate of their deceased father Puranmal are strong pieces of evidence against her and heavy burden lay on her and those siding with her to show that those admissions had been made under some misapprehension or error, of which error or misapprehension there is no allegation or proof in this case.

35. The last point that was raised by learned counsel was that the sale-deed in question was executed for legal necessity, namely, to collect funds for the marriage of Mst. Dhapoo who had become marriageable and whose marriage had, therefore, to be arranged and provided for as a matter of urgent family necessity, and consequently we should uphold the sale which was made in such circumstances. This argument completely overlooks the fact that those who purported to dispose of the shops by sale had no authority in law to do anything of the kind. Once the, adoption of the plaintiff Prahlad to Puranmal is proved to have been made satisfactorily both as a matter of fact and of law, then the conclusion is inescapable that neither Mst. Gulkandi nor Mst. Durga had any lawful authority whatsoever to alienate the family properties in favour of any body, to which properties they had no lawful claim or right. The plea of legal necessity has no place in a situation of this kind and we overrule this contention as entirely inadmissible.

36. For the reasons mentioned above,this appeal fails and is hereby dismissedwith one set of costs to the contesting respondent


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //