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Sarvabhotla Thotapalle Chendikamba Vs. Kanala Indrakanti Viswanathamayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1939Mad446; (1939)1MLJ227
AppellantSarvabhotla Thotapalle Chendikamba
RespondentKanala Indrakanti Viswanathamayya and ors.
Cases ReferredMusammat Biro v. Atma Ram
Excerpt:
- - what is now complained of is that the lower courts have declined to admit the evidence of certain witnesses who are no more. this admission must be taken as true unless rebutted by satisfactory evidence and he relies on the well-known decision in slatterie v. he is also bound to satisfy the court that to the best of his knowledge there are no nearer heirs......courts improperly refused to admit the deposition of certain witnesses, who are dead, taken in a prior litigation to which the plaintiff and the first defendant were parties. the said litigation related to a suit filed by the first defendant for recovery of possession of certain properties belonging to her husband from her mother-in-law, subbamma ignoring a certain arrangement which was come to between the first defendant's adoptive father and the natural father of her husband in and by which subbamma was given certain properties absolutely. in the plaint filed in that litigation the plaintiff also relied upon a will left by her husband and the genuineness of it was traversed by the said subbamma. as many as 36 issues were raised in the case and there was no issue regarding the.....
Judgment:
ORDER

Venkataramana Rao, J.

1. This second appeal arises out of a suit for a declaration that the sale-deed, Ex. XI dated 25th March, 1926, executed by the second defendant as the agent of his daughter the first defendant, the widow of one Krishnayya deceased, in favour of the third defendant is not binding on the plaintiff and the fourth defendant after the lifetime of the first defendant. The plaintiff and the fourth defendant claim to be the next reversioners to the estate of the said Krishnayya on the death of the first defendant and their case is that the sale was not for a purpose binding on the estate. The main defence is that the husband of the first defendant left a will in and by which he bequeathed all his property absolutely to the first defendant. It was also pleaded that the plaintiff and the fourth defendant are not the next reversioners and that the suit is not maintainable, and in any event, the sale was supported by necessity. Both the Courts concurrently found against the contentions of the defendants on all their pleas and gave a decree in favour of the plaintiff as prayed for. The first defendant has preferred this appeal.

2. Mr. Govindarajachari on her behalf has urged three contentions before me. The first contention relates to issue 1 (a) in the case, namely, whether the will set up by the first defendant is true and did it confer an absolute estate in the suit property on the first defendant? Both the Courts below have found that the will is not genuine. Mr. Govindarajachari attacks this finding on the ground that both the Courts improperly refused to admit the deposition of certain witnesses, who are dead, taken in a prior litigation to which the plaintiff and the first defendant were parties. The said litigation related to a suit filed by the first defendant for recovery of possession of certain properties belonging to her husband from her mother-in-law, Subbamma ignoring a certain arrangement which was come to between the first defendant's adoptive father and the natural father of her husband in and by which Subbamma was given certain properties absolutely. In the plaint filed in that litigation the plaintiff also relied upon a will left by her husband and the genuineness of it was traversed by the said Subbamma. As many as 36 issues were raised in the case and there was no issue regarding the genuineness of the will in question because it was not necessary to put that matter in issue in the said suit. Nevertheless some witnesses were examined on commission in regard to it. What is now complained of is that the lower Courts have declined to admit the evidence of certain witnesses who are no more. It appears that before the learned District Munsif the said evidence was tendered but he declined to receive it. It does not appear that this matter was pressed in appeal before the learned Subordinate Judge. Mr. Govindarajachari urged this contention before me as a question of law on the ground that the evidence should have been admitted under Section 33 of the Evidence Act. Apart from the question whether it is open to Mr. Govindarajachari to advance the contention in view of the same not having been pressed on behalf of his client in the lower appellate Court, it seems to me that the said evidence was quite properly rejected by the learned District Munsif. Under Section 33 of the Evidence Act, before a certain evidence given by a witness in a judicial proceeding can be admitted in a subsequent judicial proceeding, it must be established that the questions in issue were substantially the same in the first as in the second proceeding. I quite realise that no specific issue need have been raised regarding any particular matter in issue between the parties but the matter must have been in issue between them and from the course of the litigation in the prior suit it is clear that the question of genuineness was not one of the questions in issue. I therefore overrule the contention of Mr. Govindarajachari.

3. The next contention raised is as regards the question of legal necessity for the sale evidenced by Ex. XI. The sale was for a consideration of Rs. 2,500, The purpose recited is for discharging the debts contracted by the first defendant and for meeting certain High Court charges. Both the lower Courts have concurrently found that there was no necessity for making this alienation because the first defendant had ample funds in her hands or at any rate there was no pressure on the estate compelling her to sell the property. I have heard Mr. Govindarajachari at length on this matter, having regard to the fact that the learned Subordinate Judge chose to write a summary and not a very clear judgment on the matter. On the date of sale only Rs. 1,000 cash was paid and for the balance a promissory note for Rs. 1,500 was executed not in favour of the first defendant but in favour of the second defendant by a brother-in-law of the vendee and the amount thereunder is alleged to have been paid three or four months later. It is not proved that any of the creditors were making demands or threatening suits and therefore the first defendant was obliged to sell the property. So far as the maintenance of the widow was concerned, the properties were yielding a decent income, and it is in evidence that the widow realised a large sum of over Rs. 5,000 within six months of the date of the sale. The vendee has not gone into the witness-box to prove the circumstances attending the sale. The evidence of D.W. 10 is not very satisfactory and D.W. 12, who is supposed to have negotiated the transaction of sale, does not give any useful evidence because, according to him, the vendee relied upon the will alleged to have been left by the husband of the first defendant and he did not therefore choose to enquire into the truth or otherwise of the indebtedness of the estate. I think it unnecessary to go into the evidence regarding this transaction in detail as I am convinced that the concurrent finding of both the Courts on this point is not wrong.

4. The last contention urged by Mr. Govindarajachari is that it has not been proved that the plaintiff and the fourth defendant are the next reversioners and the finding of the Courts below on this point is wrong because both the Courts have not given sufficient weight to the admission made by the plaintiff in the prior litigation to which the plaintiff was a party. In that litigation the plaintiff was not impleaded as a party to the suit when it was filed. The main contest was by Subbamma. Among other pleas she set up a plea that the husband of the first defendant adopted a boy called Thotapalli Narasimhayya the son of an alleged gnati of the plaintiff's husband and by reason of the said adoption the plaintiff could not recover the property in suit. The averment is thus made in paragraph 17 of her written statement:

The plaintiff's husband having been suffering from illness for about 8 months prior to his death, taking medicine at Kurnool at Giddaloor at Mopoor and Minagallu Villages, Nellore District and he was not cured of that illness. It is learnt that the plaintiff's husband, fearing that he may not survive, took in adoption, a boy by the name of Thotapalli Lakshminarasayya resident of Rekkalvaripalle, Cuddappah District, who is a gnati and a cousin brother of the plaintiff's husband and that he executed a will in his favour.

5. It will be seen from this that Thotapalli Lakshminarasayya is described as a gnati and cousin brother of the plaintiff's husband. Subbamma died pending the suit. The plaintiff was brought on record as her legal representative and he filed a written statement adopting the written statement of the said Subbamma. Paragraph 2 of the said written statement is to the following effect:

The first defendant has already filed a written statement in this suit. As the first defendant is acquainted with all the facts therein, this defendant also accepts all the contentions in the statement filed by her.

6. It will be seen from this that the plaintiff relied on the knowledge of Subbamma and therefore adopted her contentions as his own. What Mr. Govindarajachari contends is that the first defendant in effect admitted that Thotapalli Lakshminarasayya was a gnati of the deceased; this admission must be taken as true unless rebutted by satisfactory evidence and he relies on the well-known decision in Slatterie v. Pooley (1840) 6 M. & W. 664 : 151 E.R. 579 adopted by the Privy Council in Chandra Kunwar v. Chaudhri Narpat Singh . Mr. Govindarajachari argues that this principle was not kept in view by both the Courts below and they wrongly threw the onus of establishing that there were no nearer heirs on the first defendant and were content to rely merely on the statement made by the plaintiff in his deposition that the admission made in the prior litigation was false and made for the purpose of the said litigation. The question is how far this contention is tenable and what effect I should give to it. When a suit is brought by a person alleging to be the next reversioner either for a declaration that a certain alienation is not binding on the estate or for recovery of possession consequent on such declaration on the widow's death, the onus of proving that he is the next reversioner is on the plaintiff. The correct rule, if I may say so with respect, is thus laid down by Mr. Seshagiri Aiyar, J., in Rama Row v. Kuttiya Goundan : (1916)30MLJ514 :

It is no doubt incumbent on a plaintiff seeking to succeed to property as a reversioner, to establish affirmatively the particular relationship which he puts forward. He is also bound to satisfy the Court that to the best of his knowledge there are no nearer heirs. He cannot be expected to do anything more.

7. In that case the plaintiff claimed as reversioner to the estate of one Venkataramana Aiyar. The Subordinate Judge dismissed the suit on the ground that on the admission of the plaintiff's witnesses in that case one Ranga Aiyar and others were dayadis of the deceased Venkataramana Aiyar and they were alive and therefore the plaintiff did not satisfy the requisite burden of proof. This decision was reversed by the High Court relying on the principle above stated. The plaintiff in this case has stated in his deposition that there are no nearer heirs. From Exs. Cand C-1 it would appear there were certain agnates of the family in 1864 whose descendants, if alive, might be nearer heirs, but the plaintiff has sworn as also his second witness that there are no descendants of those people now alive. There is no evidence contra. If there was no such admission as is relied on nor the statement of Subbamma in the prior litigation, I think on the basis of the principle in Rama Row v. Kuttiya Goundan : (1916)30MLJ514 , it would be open to both the lower Courts to accept the statement of the plaintiff and it would be the duty of the defendant to let in evidence to controvert the prima facie case accepted by the Court. The question is what effect should be given to the said admission and how far the principle in Rama Row v. Kuttiya Goundan : (1916)30MLJ514 would be affected by this? There is no doubt that the rule enunciated in Slatterie v. Pooley (1840) 6 M. & W. 664 : 151 E.R. 579 is that

What a party himself admits to be true may reasonably be presumed to be so.

8. It is equally true that the party making the admission may give evidence to rebut this presumption and unless and until that is satisfactorily done the fact admitted must be taken to be established. No doubt this rule was enunciated with reference to an admission in a deed but I think the same principle will apply to an admission made in a signed pleading. The rule of English Law in regard to admission in pleadings is accurately summed up in Vol. 13, Halsbury's Laws of England, paragraph 757, thus:

Pleadings recorded in one cause are admissible in evidence in subsequent proceedings to prove the institution and subject-matter of such cause but are generally inadmissible even as against parties or privies as proof of the truth of the facts stated therein. But...statements made in the course of proceedings by a party upon oath may be admissible in other proceedings as admissions by the party making them.

9. The rule with reference to a signed pleading is stated by Taylor to a similar effect in paragraph 727 on his book on Evidence. In paragraph 821 there is no doubt a passage to this effect:

With respect to admissions by pleading the law at present seems to be that statements which are contained in any pleading, though binding on the party making them for all the purposes of the cause, ought not to be regarded in any subsequent action as admissions.

10. This statement must be understood in the light of the context and the subject-matter with which Taylor was dealing in his book. Taylor was there dealing with admissions which are conclusive and it was with reference to this the said proposition was enunciated. Therefore admissions in that passage mean conclusive admissions. The reference to the cases on which the proposition is based makes this clear. So far as the Indian Law is concerned, there can be no doubt that under the provisions of the Indian Evidence Act, an admission contained in a plaint or written statement, or in an affidavit or in a sworn deposition given by a party in a prior litigation would be regarded as an admission in a subsequent action though it is capable of rebuttal. Therefore the facts asserted by the plaintiff in the prior litigation must be taken to be true unless it is satisfactorily made out by him that they are not. But the question still arises whether the said admission is admissible in evidence as against him in this litigation. The plaintiff adopted the written statement of Subbamma when he was brought on record as the legal representative. As a legal representative it was not open to him to raise any contention different from that raised by Subbamma. Therefore the admission in the prior litigation by the first defendant was in the character of a legal representative of Subbamma as a legatee under her will. But the character in which he sues in this litigation is not as the legal representative of Subbamma but as the reversioner to the estate of Krishnayya. The rule of evidence which is applicable to the case is thus stated in Article 17 by Stephen in his book on the Digest of the Law of Evidence:

A statement made by a party to a proceeding may be an admission whenever it is made, unless it is made by a person suing or sued in a representative character only, in which case (it seems) it must be made whilst the person making it sustains that character.

11. This principle is embodied in Section 18, Clause 2 of the Indian Evidence Act. The plaintiff did not sustain or hold a representative character in the prior litigation. Nevertheless if the plaintiff were suing for possession of the property it may be that his admission would be evidence against him. But he is suing here not only on his behalf but on behalf of all the reversioners, and it cannot be said that the said admission would bind the fourth defendant in this case who is a reversioner of an equal degree with the plaintiff. I am therefore of the opinion that if the admission of the plaintiff in his written statement in the prior litigation were to be construed as admission of the fact that Thotapalli Lakshminarasayya is a gnati of Krishnayya it is not admissible against him in this suit. But the statement of Subbamma that Thotapalli Lakshminarasayya is a gnati contained in paragraph 17 of her written statement in the prior litigation would be admissible evidence under Section 32, Clause 5 of the Evidence Act. Subbamma was a person having special means of knowledge within the meaning of that clause and it was made ante litem motam as the question of relationship of Thotapalli Lakshminarasayya to the deceased Krishnayya was not in dispute in the prior litigation vide Musammat Biro v. Atma Ram (1937) 1 M.L.J. 646 : L.R. 64 IndAp 92 : 1937 M.W.N. 424 (P.C.). The plaintiff deposes in this litigation that Subbamma told him that that statement was false; but it is not admissible evidence. The plaintiff deposes that though Lakshminarasayya bears the same surname as the deceased Krishnayya the two Thotapallis are quite distinct, but he admits that Thotapalli Lakshminarasayya belongs to the same gotram as the deceased Krishnayya. It was incumbent upon him to have examined Thotapalli Lakshminarasayya and eliminated the possibility of there being any nearer reversioner being alive. I think it is desirable to have the evidence of the said Thotapalli Lakshminarasayya. It is represented to me by Mr. Venugopalachari that the said Lakshminarasayya is physically disabled from appearing in Court to give evidence. It is therefore desirable to have him examined on commission.

12. This appeal having been set down to be spoken to this day, the Court made the following


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