Bharat Singh & ANR Vs. Bhagirathi
 INSC 166 (26 August 1965)
26/08/1965 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
CITATION: 1966 AIR 405 1966 SCR (1) 606
D 1971 SC1153 (23) F 1974 SC 117 (8) F 1977
SC 409 (21) RF 1977 SC1712 (14)
Indian Evidence Act (1 of
1872)-Admissions-Witness not confronted -Whether admissible-Hindu Law-Widow's
name mutated-If sufficient to prove severance of joint family.
The appellants filed a suit for a declaration
that the entry in the name of the respondent in the Jamabandi papers of certain
villages was incorrect and alleged that they along with their brother, the
husband of the respondent, constituted a joint Hindu family, that their brother
died as a member of the joint Hindu family and thereafter his widow- the
respondent--lived with the appellants who continued to be owners and possessors
of the property in suit, the widow being entitled to maintenance only, and that
by mistake the respondent's name was entered in village records in place of the
deceased husband. The respondent contested the suit alleging, inter alia, that
her husband did not constitute a joint Hindu family with the appellants at the
time of his death and also that the suit was barred by time as she had become
owner and possessor of the land in suit in 1925 on the death of her husband
when the entries in her favour were made, and the suit was brought in 1951. The
respondent had admitted in certain documents about the existence of the joint
Hindu family or a joint Hindu family firm. The trial Court decreed the suit,
which on appeal, the High Court set aside. The High Court did not use the
admissions of respondent as she, when in the witness box, was riot confronted
with those admissions; and as those documents, if read as a whole did not
contain any admissions on behalf of the respondent that there was any joint
family still in existence. In appeal by certificate to this Court.
HELD : (i) There is a strong presumption in
favour of Hindu brothers constituting a joint family. It is for the person
alleging severance of joint Hindu family to establish it.
The mere fact of the mutation entry being
made in favour of the respondent on the death of her husband was no clear
indication that there was no joint Hindu family of the appellant, and the
respondent's husband at the time of the latter's death. [610 E. F-G] (ii)
Admissions have to be clear if they are to be used against the persons making
them. Admissions are substantive evidence by themselves in view of ss. 17 and
21 of the Indian Evidence Act, though they are not conclusive proof of the
matter admitted. The admissions duly proved or( admissible evidence
irrespective of whether the party making them appear ad in witness box or not
and whether that party when appearing as wines was confronted with those
statements 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 different from the purpose of
proving the admission. Admission 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 in admission made by
a party is a matter different from its use as admissible evidence.
607 Therefore, the admissions of the
respondent 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 admissions. Her simple statement that her husband had
separated from his brothers even before her marriage was, by itself, neither an
adequate explanation of those admission nor a clear cut denial of the facts
admitted. [615 F-616 C] (iii) The suit was clearly not barred by limitation.
Admittedly the dispute between "he
par-ties arose sometime in 1944. Prior to that there could be no reason for the
respondent acting adversely to the interests of the appellants. It was really
in about 1950 that she asserted her title by leasing certain properties and by
transferring others, and in 1951 the appellants instituted the suit. [617 C-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 423 of 1963.
Appeal from the judgment and decree dated
November 9, 1959 of the Punjab High Court in Regular First Appeal No. 151 of
Bishan Narain, M. V. Goswami and B. C. Misra,
for the appellants.
Mohan Behari Lal, for the respondent.
The Judgment of the Court was delivered by
Raghubar Dayal, J. This appeal, on certificate, is against the judgment and
decree of the Punjab High Court reversing the decree of the trial Court and
dismissing the suit of the plaintiffs for a declaration that the entry in the
name of the defendant in the Jamabandi papers of certain villages was
The plaintiffs, Bharat Singh and Kirpa Ram,
are the sons of Ram Narain. They had another brother Maha Chand, whose widow is
Bhagirti, the defendant. The plaintiffs alleged that they and Maha Chand
constituted a joint Hindu family, that Maha Chand died as a member of the joint
Hindu family and that thereafter Maha Chand's widow lived with the plaintiffs
who continued to be the owners and possessors of the property in suit, the
widow being entitled to maintenance only. They also alleged that it was by
mistake that the defendant's name was mutated in the village records in place
of Maha Chand, who died on September 16, 1925.
They further alleged that the defendant lost
her right to maintenance due to her leading an unchaste life. This contention,
however, was not accepted by the Courts below and is no more for consideration.
It was on the other allegations that the plaintiffs claimed a declaration that
the entry of the 608 defendant's name in the column of ownership in the
Jamabandi papers was wrong, that they were the owners and possessors of the
property in suit and that the defendant had no right therein. They also claimed
a permanent injunction against the defendant restraining her from alienating or
leasing any of tile properties in favour of any person or causing interference
of any kind in the possession of the plaintiffs.
The defendant contested the suit alleging
that her husband Maha Chand, along with the plaintiffs, did not constitute a
joint Hindu family at the time of his death, that he was separate from the
plaintiff's and that he was living separate from them, that the property In
suit was neither ancestral property nor the property of the joint Hindu family
that the plaintiffs and Maha Chand were owners of agricultural land as
co-sharers out of which one third share belonged to Malta Chand and that
therefore the entry in her favour in the Jamabandi papers was correct. She also
claimed right to Maha Chand's share on tile basis of custom.
This contention, however, was not accepted by
the Courts below and is not now open for consideration. Bhagirti further
contended that the suit was not within time as she had become owner and
possessor of the land in suit in 1925.
The suit was brought in 1951.
By their replication, the plaintiffs stated
that Maha Chand had never become separate from them and that the defendant was
not III possession of the property in suit, the possession being with the
plaintiffs of their tenants or lessees, The trial Court 'II--Id that the
parties were governed by the Hindu law unmodified by any custom, that the joint
Hindu family constituted the plaintiffs and their brother Maha Chand was never
disrupted and that Maha Chand died is a member of the joint Hindu family, that the
property in suit was co-parcenery property in the hands of the three brothers,
that the entry of the defendant's name in the Jamabandi was wrongly made and
that the suit was instituted within time as the earliest the defendant asserted
her claim to the land in suit was in 1950. The trial Court therefore granted
the plaintiffs a decree for declaration in the following terms "1. That
the entries in the revenue papers showing the defendant as owner of one third
share in the suit land ire wrong and are not binding on the plaintiffs.
2. That the property in dispute vests in the
plaintiff as coparceners.
3. That the defendant's only right in the
suit property is one of maintenance and she is not entitled to alienate it in
The plaintiffs are further granted a
permanent injunction restraining the defendant from alienating the suit
property in any way .and from causing interference in the plaintiffs'
possession of the property.
The plaintiffs' suit for declaration that the
defendant has lost her right of maintenance in the suit property by unchastity
is dismissed .... " The defendant appealed to the High Court. It was not
contended on her behalf that the land was ancestral and had descended from Ram
Narain to the plaintiffs and Maha Chand.
What was urged before the High Court was that
the entry in Maha Chand's name as owner of one-third share in the Jarnabandi
and similar entry in defendants name after the death of Maha Chand was correct
as irrespective of the fact whether the family was originally a joint Hindu
family or not the joint Hindu family stood disrupted by the conduct of the
parties and therefore there was no question of the plaintiffs' getting the
entire property by survivorship.
Reliance was placed on the entries in the
revenue records with respect to Maha Chand and the defendant after him owning
one-third share in those properties and about her possession upto 1946-47 and
on the defendant's being impleaded in several suits by the plaintiffs as a co-
plaintiff and in one suit as a defendant. The High Court considered this
evidence sufficient to prove disruption of the joint family as the mutation
entries in the revenue records could not have been obtained by the defendant
surreptitiously or without the knowledge and consent of the plaintiffs and as
none of the plaintiffs objected to her being entered as a co-sharer with them
after the death of Maha Chand which showed that there was no joint Hindu family
at the time of the death of Maha Chand. The High Court also relied on the fact
that the plaintiffs had impleaded the defendant as a plaintiff or defendant in
the various suits, as Bharat Singh refused or did not care to give an
explanation why the defendant had been throughout shown as a co-sharer in those
proceedings when actually she was not a co~sharer and was merely entitled to
maintenance. The High Court did not use the admissions of Bhagirti, defendant,
in certain documents about the existence of the joint Hindu family or a joint
Hindu family firm as she, when 'in the witness box, was not confronted with
those admissions and as those documents, if read as a whole, did not contain
any admissions on behalf of Bhagirti that there was any joint family stilt in
610 existence. The High Court summed. up its view on the question of disruption
in the family thus :
"These revenue entries normally do not
furnish a very strong evidence of severance of a Joint Hindu Family but
subsequent conduct of the plaintiffs, as detailed above, leaves no manner of
doubt that there did not exist any Joint Hindu Family after the demise of Ram
Narain and that Mst. Bhagirati was rightly shown as a co-sharer in the revenue
records." The High Court considered the case to have been instituted after
the expiry of the period of limitation but did not base its decision on this
finding. The High Court, accordingly, allowed the appeal and set aside the
decree of the trial Court in favour of the plaintiffs.
The sole question for determination in this
Court is whether the plaintiffs and Maha Chand constituted a joint Hindu family
at the time of the latter's death. Having considered the evidence on record and
the submissions made on behalf of the parties, we are of opinion that the trial
Court took a correct view of the, evidence on record. There is a strong
presumption in favour of Hindu brothers constituting a joint family. It is for
the person allying severance of the joint Hindu family to establish it. It is
to be noticed in the present case that the defendants did not state in the
written statement as to when disruption took place in the joint family. The
High Court too has not given any clear- cut finding with regard to the time
when disruption took place in the joint family. The way it has expressed itself
indicates that no joint Hindu family existed after the death of Ram Narain,
father of the plaintiffs and Maha Chand.
There is nothing in the judgment of the High
Court as to when severance of the Hindu joint family took place. The mere fact
that mutation entry after the death of Ram Narain was made in favour of three
brothers and indicated the share of each to be one-third, by itself can be no
evidence of the severance of the joint family which, after the death of Ram
Narain, consisted of the three brothers who were minors.
Ram Narain died in 1923. Maha Chand died in
1925 and is said to have been about 17 or 18 years of age then. The plaintiffs
were of even less age at that time. There was no reason why just after the
death of Ram Narain the three brothers should have separated.
It is true, as the High Court observes, that
Bhagirati could not have manipulated the mutation entries after the death of
Maha 611 Chand surreptitiously. It is not alleged by the plaintiffs that she
got the entries made wrongly in her favour by some design or able means. There
is however nothing surprising if the mutation entry had been made without the
knowledge of the appellants who were minors at the time. Their minority win
also explain the absence of any objection to the mutation being made in her
favour. The way in which the mutation entry was made does not indicate that the
mutation entry was made after notice to the plaintiffs or their guardian,
whoever he might have been at the time, or after any statement on their behalf
that they had no objection to the entry. Exhibits D-7 and D-8 are the extracts
from the Register of Mutations relating to mauza Asoda, Todran Jamnan Hadbast
No. 28, Tehsil Jhajjar, District Rohtak. The entries in column 15 show that the
Patwari of the village reported on November 30, 1925 that Munshi Lal Mahajan
had informed him that Maha Chand had died and that Mst. Bhagirati was in ion of
the property of the deceased as heir, that mutation by virtue of succession had
been entered in the register and the papers were submitted for proper orders.
The Revenue Assistant passed an order on December 29, 1925 which is in the
following terms Bahadurgarh Public Assembly.
ORDER Ramji Lai Lambardar, testified to the
factums of the death of Maha Chand and the succession (to him) of Mst.
Bhagirati his widow. There is no objector. Hence mutation in respect of the
heritage of Maha Chand in favour of Mst. Bhagirati. his widow is sanctioned.
Dated the 29th December, 1925.
Signature of The Revenue Assistant." The
shows that 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 Bhagirati
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, if any, issued in that connection and the
gathering of people. It is not for 612 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.
We are therefore of opinion that the mere
fact of the mutation entry being made in favour of Bhagirti on the death of
Maha Chand is no clear indication that there was no joint Hindu family of the
plaintiffs and Maha Chand at the time of the latter's death.
Bharat Singh, appellant no. 1, instituted 5
suits on behalf of himself Kirpa Ram and Bhagirati. All these suits related to
agricultural land. DI, D2, D3 and D4, the plaints in four of these suits, were
in the name of the plaintiffs and Bhagirati and it was stated in them that the
plaintiffs were the proprietors of the agricultural laid in suit. With respect
to the admission in these plaints that Bhagirti was one of the proprietors,
Bharat Singh stated that lie had been including her name in the cases tiled 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 Court-,. as these suits were, had to ha filed in those names. D-5 is
the plant of a suit by Bharat Singh and Kirpa Ramn Instituted on April 6, 1943.
Bhagirti is implement as defendant no. 1. Para 1 of plaint stated that
defendants nos. 2 to 5 were non-occupancy 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 defendants When Bharat
Singh made the statement on November 27, 1953 I do rot remember why Bhagirati
was made defendants be does not to have been shown the plaint Exhibit D-5.
There is nothing surprising if he could not remember the reason for making her
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 - "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 613 Mst. Bhagirati had throughout
been shown as a cosharer with them in these proceedings if, in fact, she was
not a co-sharer 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.
Bhagirati was made a defendant.' "
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.
Bhagirati was made a defendant. If he had been referred to the plaint, he could
have himself, on reading given the proper answer, or his counsel would have
reexamined him in that regard.
We are of opinion that the High Court was in
error in relying on these admissions of Bharat Singh when he had explained them
The oral evidence adduced for the defendant
to prove sepa- ration 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 that time of Maha Chand's
death, he- was separate from his admitted in cross-examination that 'his he had
learnt from his father. His evidence is hearsay and is of no value.
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 appears 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 Prasad Giani Ram
sued firm Jairam Das Ram Narain (the family firm of the parties herein) through
Bhagirati for the recovery of the money 614 the defendant firm owed to the
plaintiff firm on the basis of bahikhatha accounts. Giani Ram, through whom the
suit was instituted, and Bhagirati entered into an agreement for referring this
dispute to arbitration. In this agreement signed by Giani Ram and Bhagirati,
she was described as proprietrix of the joint Hindu firm known as Jairam 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 Bhagirati and got their signatures on it without making
them read the agreement. No reliance could have been placed on his statement.
Bhagirati, 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.
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.
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-exammination 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 questions 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 one-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 Bhagirati's name was mutated in place of Maha Chand.
615 Reliance was also placed for the
plaintiffs on the admissions of Bhagirati. 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
admissions if read as a whole did not contain any admissions on behalf of
Bhagirati that there was any joint family still in existence.
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 Rai v. Firm Piara Lal(1). The view taken in ,hat case was
differed to by the Full Bench decision of the Allahabad High Court in Ayodhya
Bhawani Shanker (2) The punjab High Court
based its decision on the observations of the privy Council in Bal Gangadhar
Tilak v. Shrinivas Pandit(3). fiat case, however, did not directly deal with
the use of admissions which are proved but are not put to the person making the
admissions when he enters the witness box. The entire tenure of he 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 any
way 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 when those
persons had not been confronted with those statements in accordance with s. 145
of the Indian Evidence Act.
Admissions have to be clear if they are to be
used against the person making them. Admissions are substantive evidence by
themselves, in view of ss. 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 that party
when appearing as witness was confronted with those statements 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 different from the
purpose of proving the admission.
Admission 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. ad- (1)
A.I.R. 1046 Lab. 65.
(2) A.T.R. 1957 All. 1.
(3) L.R. 42 I.A. 135.
Sup.65-- -11 616 mission made by. a party is
a matter different from its use as admissible evidence.
We are therefore of opinion that the
admissions of Bhagirati. 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 admissions 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
We have already referred to her admissions in
the agreement executed by her and Giani Ram for referring the dispute in Giani
Ram's suit for arbitration in 1946. She instituted a suit earlier in 1944. The
plaint of that suit is Exhibit P.
2. She instituted 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 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.
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 Bhagirati 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 Bhagirati were secured on a plain paper and that the
plaint was written later on. This suit was withdrawn.
Again, in 1950, she instituted another suit
against the present plaintiffs and one Han 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 Narela Mandi,
Delhi State. The plaint is Exhibit P.-1. Shri 617 M. K. Madan, Advocate, P.W.
1, has deposed that the plaint was got written by Bhagirti, that a portion of
the plaint was in this handwriting and that it was read over to her and that
she put her thumb mark on it after having heard and admitted its contents. He
also stated that the suit was subsequently withdrawn.
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 Bhagirati
as the owner of one-third share are wrong and that the decree of the trial
Court is right.
The question of limitation may be briefly
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 she 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.
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 appellants in the High Court and