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Brij Mohan Bakhshi Vs. Amar Nath Bakhshi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberLetters Patent Appeal No. 2 of 1978
Judge
Reported inAIR1980J& K54
ActsCode of Civil Procedure (CPC) , 1908 - Section 104 - Order 14, Rule 5; ;Evidence Act, 1872 - Sections 17 and 101
AppellantBrij Mohan Bakhshi
RespondentAmar Nath Bakhshi and ors.
Appellant Advocate I.D. Grover and; T.S. Thakur, Advs.
Respondent Advocate S.P. Gupta,; R.P. Bakshi,; V.B. Sudhan and;
DispositionAppeal allowed
Excerpt:
- .....suit for partition of joint hindu family property and for rendition of accounts pending before the learned judge, the plaintiff moved an applicationunder order 14, rule 5, c. p. c. by this application, the plaintiff sought amendment of issues nos. 1 and 2. according to the plaintiff these issues were neither properly framed nor was the burden of proof thereof correctly placed. as the defendants had set up the plea of prior partition, they had to prove the same by adducing evidence. this application was hotly contested by the defendants. their main objection was that the plaintiff had admitted the execution of the memo of partition and, therefore, he had to prove that there was no partition effected. the learned judge, however, refused to recast or amend the issues and dismissed the.....
Judgment:

Mian Jalal-Ud-Din, C.J.

1. This appeal under Clause 12 of the Letters Patentis directed against the judgment and order of a learned Single Judge of this Court Dr. A. S. Anand J.) dated 10-4-1978, in Civil Suit No. 84 of 1977 and in CMP No. 143 of 1978, dismissing the said petition under Order 14 Rule 5 of the Code of Civil Procedure and disallowing the prayer of the plaintiff for amending and re-casting the issues.

2. In a suit for partition of joint Hindu family property and for rendition of accounts pending before the learned Judge, the plaintiff moved an applicationunder Order 14, Rule 5, C. P. C. By this application, the plaintiff sought amendment of issues Nos. 1 and 2. According to the plaintiff these issues were neither properly framed nor was the burden of proof thereof correctly placed. As the defendants had set up the plea of prior partition, they had to prove the same by adducing evidence. This application was hotly contested by the defendants. Their main objection was that the plaintiff had admitted the execution of the memo of partition and, therefore, he had to prove that there was no partition effected. The learned Judge, However, refused to recast or amend the issues and dismissed the petition.

3. A preliminary objection has been raised on behalf of the respondents that the order rejecting the application is not judgment and, therefore, no appeal under the Letters Patent is maintainable. The application has not disposed of any part of the case and has not decided any rights in the suit.

4. The question whether an interlocutory judgment can be subject of appeal under Letters Patent has been the subject matter of some of' the decisions of this court as also of other Indian High Courts. The balance of the authority is in favour of the proposition that where the order has the effect of deciding an issue between the parties and the order decides the rights of the parties then that judgment, even though interlocutory, is appealable. In this connection particular reference may be made to some of the decisions of this Court reported in AIR 1969 J & K 50 and AIR 1975 J & K 95 and 1975 Kash LI 262. According to the said authorities, the meaning of the word 'judgment' is of a wide amplitude and includes a decision on any substantial question in controversy between the parties affecting their rights even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as distinguish' ed from purely formal and incidental order can also be termed as a judgment. Again in AIR 1969 J & K 50, the question was considered whether an order rejecting an application under Order 14, Rule 5 C. P. C. is a case decided so as to be amenable to the revisional jurisdiction of the High Court. The question was answered in the affirmative. It was held that an order rejecting an application under Order 14, Rule 5, C. P. C. decides the rights of the parties and is, therefore, case decided. Although the expression ''case decided' and 'inter-locutory judgment' are not synonymous yet the ratio laid down is the same and on principle it can be said that the order rejecting the application under Order 14, Rule 5, C. P. C. decides some controversy between the parties or some rights in the case.

5. In the instant case, the order disposing of the application under Order 14 Rule 5, C. P. C. has the effect of deciding against the plaintiff his right to prove an issue according to the established procedure and the law of evidence. The order adversely affects the right of the plaintiff and, therefore, in my opinion is appealable.

6. The contention of the learned counsel for the appellant is that the approach of the learned Single Judge in disposing of the application was defective inasmuch as the learned Judge did not take into consideration the rule of evidence which governs the principle relating to the burden of proof. A party who sets up the plea of private and prior partition must prove it. But in the instant case, the learned Judge has placed the burden of proof on the plaintiff on the assumption that the plaintiff has admitted the execution of the document on which the defendants have based their case. As a matter of fact, the plaintiff never admitted the execution ot the document but only admitted the signature on the document with the explanation that the same was obtained from him on a blank paper and was the result of fraud practised upon him. By no stretch of imagination could it be said that the plaintiff had accepted the execution of the document. In that view of the matter, the only course left open to the learned Single Judge was to have accepted the application and recast the issues and to change the onus probandi by placing it on the defendants.

7. Shri S. P. Gupta, has, on the other hand, enunciated the view that there is difference between the onus of proof and burden of proof. According to him as the plaintiff in his statement had admitted his signatures on the document, therefore, the execution will be deemed to have been admitted by him. The argument is that where a person having signed a document and having admitted the signatures there on, wants to show that he signed on a blank paper or that he affixed the signatures as a result of fraud practised upon him, then this is an exceptional circumstance which he pleads and, therefore, the burden of proof of that exceptional circumstance must be on him. In this connection attention is invited to the evidencethat has been led in the case. It is submitted that the court may take into consideration the circumstances appearing in evidence which will go to prove that the oral partition has been admitted by the plaintiff. There are rent deeds on the record to prove this fact. The cumulative effect of all this is that the plaintiff having admitted the partition by metes and bounds cannot now turn round and say that there had been no oral partition. It is for the plaintiff to disprove this fact. In that view of the matter, the onus has rightly been placed on the plaintiff by the learned Judge. A number of authorities have been cited on both sides in support of their respective contentions.

8. The principal question which merits the consideration is whether the plaintiff has admitted the execution of the document styled as memo of partition. For this purpose we have to find out the meaning of the word 'execution'. Does the execution mean mere admission of the signature on the document without admitting the eon-tents thereof or does it mean subscribing to the document consciously and its intelligent appreciation? In my opinion where a party onlv admits the signature and also explains the circumstances which led to his signing the document without knowing its contents it cannot be said that the party has admitted its execution. Execution implies conscious execution and knowledge of its contents. There is a' catena of authorities for the proposition that where a party merely admits the thumb impression or his signatures on a document out does not admit that he executed the document in the sense that he subscribed to the contents thereof, it cannot be said that the party has admitted , the execution.

9 In AIR. 1957 Pat 64, where a suit was brought on the basis of hand note and the defendant admitted only that he put his thumb impression on a blank paper which he alleged had possibly been utilized for the hand note, it was hold that he did not admit the execution of the hand-note and, therefore, the onus of proving that the handnote was duly executed by the defendant was upon the plaintiff.

10. Again in AIR 1931 Pat 266, a Division Bench of the Patna High Court expressed the view that where the defendant admitted only that he had put his thumb impression and signatures on a document but did not admit the hand note, the admission of signature did notamount to admission of the execution and consequently the burden of proof of the execution of the document was on the plaintiff.

11. The same vtew has been enunciated in 1968 All LJ 480, and AIR 1976 All 23. It is needless to multiply authorities on the proposition. The decision given on the point by their Lordships of the Rujas-than High Court in AIR 1962 Raj 231, does not commend itself to me as that runs counter to the preponderance of the authorities in favour of the proposition that mere admission of the signature on a document without admitting its contents is not conscious execution and does not amount to execution. With great respect, I beg to differ with the view taken in that authority.

12. The argument that because there are circumstances appearing in the case which lead to the inference that the plaintiff has executed the memo of partition and has acted upon that, has got no relevance at this stage, as this argument can be advanced at an appropriate stage when the cumulative effect of the evidence led on the issue is to be considered. This circumstance appearing in evidence may justify the court to draw a conclusion either in favour of the defendants or against them but this is only a matter relating to the appreciation of evidence and will not be helpful to determine the question of burden of proof.

13. There is yet another noticeable feature in the case, that even if it be assumed for the sake of argument that the plaintiff has admitted the execution of the memo of partition, still it would not absolve the defendants from proving the fact of actual oral partition. The memo of par tition may be evidence of actual partition effected already, but this would in no way relieve the defendants of their burden to prove the factum of oral and private partition. This is an independent fact disassociated from the fact of the execution of the document.

14. For the foregoing reasons, I would therefore, allow the appeal, set aside the judgment of the learned single Judge, and recast issues Nos. 1 to 3 as under:

1. Was there any oral partition of the properties in dispute effected on 1-4-1968 which was acted upon by the parties and the plaintiff executed the memo of partition dated 10-7-1968, as a sequel to theoral partition O. P. defendants Nos. 1 to 5.

2. In case answer to Issue No. 1 be in the affirmative, whether the memo ot partition dated 10-7-1968, was obtained by misrepresentation with a view to save' taxes and was not meant to be acted upon as evidence of oral partition? O. P. plaintiff.

G.M. Mir, J.

15. I agree.


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