Bishwanath Prasad & Ors Vs. Dwarka
Prasad & Ors  INSC 194 (30 October 1973)
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 117 1974 SCR (2) 124 1974
SCC (1) 78
R 1982 SC 839 (15)
Indian Evidence Act (1 of 1872), s.
21-Admission-Distinction between admissions of party and admissions of witness.
In a suit for partition the first defendant
(respondent in this Court) claim that the-disputed items of property
exclusively belonged to him. The trial court as well as the High Court accepted
his case on the basis of admission made by the first plaintiff and the eighth.
defendant (father of the plaintiff) it depositions in an earlier suit as well
as similar admissions made in the writer statement Wed in that suit by the
eighth defendant together with the present plaintiffs, and held that the said
property belonged to the first defendant.
It was contended in this Court that (1) the
courts below relied on the admissions of the plaintiffs and the eighth
defendant which were not even suggested in the written statement and as such a
new case which was at total variance from the pleadings should not have been
considered by the court; ant. (2) these admissions were not put to the first
plaintiff, when he was in the witness box; nor was the eighth defendant
summoned for examination by the first defendant to give him an opportunity to
explain the admissions.
Dismissing the appeal,
HELD : There is no doubt that if the
depositions of the first plaintiff, the deposition by the eighth defendant and
the written statement filed by these parties in the title suit were reliable,
the plaintiffs case was damaged by their own admissions. [126B] (1) Although
the first defendant's basic defence was a denial of joint family ownership even
in the trial court the admissions had been considered and acted upon. Even in
the High Court the appellants did not state that they had been prejudiced by
the reliance on the admissions by the trial court nor did the appellants
contend before the High Court of any prejudice by not being given an
opportunity to explain the material against them. Neither in the memorandum of
appeal appended to the application for a certificate nor in the statement of
the case in this Court was a ground raised on this point. [126G-H] (2) It
cannot be contended that because the disputed statements had not been put to
the first plaintiff when he was in the witness box or to the eighth defendant
they could not be used against him. [127A] There is a cardinal distinction
between a party who is the author of a prior statement and a witness who is
examined and is sought to be discredited by use of his prior statement. In the
former case an admission by a party is substantive evidence if it fulfill the
requirements of s. 21 of the Evidence Act; in the latter case a prior statement
is used to discredit the credibility of the witness and does not become
substantive evidence. In the former there is no necessary requirement of the
statement containing the admission having to be put to the party because it is
evidence proprio vigore; in the latter case the court cannot .be invited to
disbelieve a witness on the strength of a prior contradictory statement unless
it has been put to him, as required by s. 145 of the Evidence Act. [127B-C]
Bharat Singh & Anr. v. Bhagirathi,  1 S.C.R. 606, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1787 of 1967.
Appeal from the judgment and decree dated
January 3 1, 1963 of the Patna High Court in Appeal from Original Decree No. 77
125 M. B. Lal, for the appellants.
Sarjoo Prasad and S. N. Prasad, for
respondents Nos. 2-7 & 14-18.
The Judgment of the Court was delivered by
KRISHNA IYER, J. The dispute is short, the points of law few, he evidence
largely made up of admissions, and so the judgment .pets of brevity. A vignette
of the facts is ill that is therefore necessary.
This appeal arises out of a suit for
partition where the narrow area of conflict in this Court is continued to two
items claimed by the plaintiffs but disallowed by the High Court. The first two
of the three points formulated for determination by the High Court reflect the
controversy raised before us and may be expected :
1. Whether the said shop-room at the extreme
north west corner of plot No. 1238 belongs exclusively to the defendants first
2. Whether the entire properties mentioned in
Schedule C to the plaint are joint family properties liable to partition,
Point No. 2 relates to three items in
Schedule C to the plaint which were covered by four usufructuary mortgages,
Ex-B-1 to B-4. The case of the first (contesting) defendant, who is the first
respondent before us now, is that these items of property exclusively belonged
The Trial Court has accepted this case and
the High Court has affirmed this finding. The foundation for these concurrent
findings is the admissions made by the first plaintiff and the eighth
defendant, the father of the plaintiff, in depositions in an earlier suit,
Title Suit No. 61 of 1945, as well as similar admissions made in the written
statement filed in that suit by the present eighth defendant (who was first
defendant there) together with the present plaintiffs, two of whom were majors
at that time.
The inference fluently drawn by the courts
below from these admissions is that the said property belongs to the first
Some challenge has been made in this Court
about the propriety of relying on these admissions but we will deal with it a
little later. Suffice it to say for the present that admissions are usually
telling against the maker unless reasonably explained, and no acceptable ground
to extricate the appellants from the effect of their own earlier statements has
been made out. Be that as it may, concurrent Conclusions from the two judicial
tiers ordinarily find this Court's doors closed unless substantial reasons to
the contrary exist. Having heard arguments at length we are disposed to agree
with the High Court on the issue of the- properties items 1 to 3 in Schedule C
to the plaint.
The other short dispute relates to a
shop-room at the northwest comer of plot No. 1238. Here again the admissions of
the eighth defendant and the plaintiffs, already referred to before, stand in
the way of the plaintiffs'. success.
while the trial court partially upheld the
possession of the first defendant of this shop-building it did not 126 go the
whole hog in upholding his right. The learned Judges of the High Court held
that the same admissions which had been relied upon by the trial court for
holding in favour of the first defendant's title to the mortgaged lands covered
by Exs. B-1 to B-4 operated against the plaintiffs regarding the shop-building
also. There is no doubt that if the admissions Ex. G (the deposition of the
present first plaintiff in Title Suit No. 61 of 1945), Ex. G2 (the deposition
in the same suit by the present eighth defendant, and Ex. H (the written
statement filed by these parties in the earlier suit are reliable, the
plaintiffs' case is damaged by their own admissions. The High Court has taken
this view and concluded :
"On the strength of the written
statement and the other statements aforesaid, there is no escape from the
conclusion that this disputed shop-room was allotted to defendant No.
1 in the partition that took place in
1938." Council for the appellants strenuously urged that the fatal
admissions used against him have prejudiced him for many reasons. He contended
that, for one thing, these statements were vague and therefore insufficient to
justify a clear verdict against his client. For another, he argued,- the case
of the first respondent was that the suit for partition was not maintainable
because the properties claimed belonged to him as heir of his father, Narain
Sah, and the alternative case which has found favour with the courts below,
based on the admissions of the plaintiffs and the eighth defendant, was not
even suggested in the written statement, and as such a new case at total
variance from the pleadings should not have been considered by the court. His
further grievance is that these admissions were not put to his client, the
first plaintiff, when he was in the witness box; nor was the eighth defendant
summoned for examination by the first defendant to give him an opportunity to
explain the admissions. There fore counsel contended that he was seriously
harmed by the surprise reliance on statements attributed to his clients without
extending a fair opportunity to them to offer their explanation and neutralise
the effect of the admissions.
We are not satisfied that there is any
substance in the grievances voiced by counsel. There was no volte face on the,
part of the first defendant. Although it is true that Ms basic defence was a
denial of joint family ownership, it is seen that even in the trial court Exs.
G, G2 and H had been considered and acted upon. In the appeal to the High Court
the present appellants did not state that they had been hit below the belt by
the reliance on the admissions by the trial court in holding against them.
Indeed, there is no suggestion in the judgment of the High Court that the
appellants had even contended about any prejudice to them or that they had been
denied an opportunity to explain the material so used against them. What is
more, it is found that at no stage subsequent to the High Court decision,
either in the memorandum of appeal appended to the application for a
certificate or in the statement of the case in this Court, has there been 2
pointed ground of complaint about the unfair reliance on the admissions
aforesaid to the detriment of the appellants. Under these circumstances it is
difficult to take the plea of prejudice seriously in, the absence of earlier
127 There is no merit even in the contention
that because these three statements-Exs. G, G2 and H-had not been put to the
first plaintiff when he was in the witness box or to the eighth defendant
although he had discreetly kept away from giving evidence, they cannot be used
against him. Counsel drew our attention to s. 145 of the Indian Evidence Act.
There is a cardinal distinction between a
party who is the author of a prior statement and a witness who is examined and
is sought to be discredited by use of his prior statement. In the former case.
an admission by a party is substantive evidence if it fulfill the requirements
of s. 21 of the Evidence Act; in the latter case a prior statement is used to
discredit the credibility of the witness and does not become substantive
evidence. In the former there is no necessary requirement of the statement
containing the admission having to be put to the party because it is evidence
proprio vigore : in the latter case the Court cannot be invited to disbelieve a
witness on the strength of a prior contradictory statement unless. it has been
put to him, as required by s. 145 of the Evidence Act. This distinction has
been clearly brought out' in the ruling in Bharat Singh v. Bhagirathi(1). This
Court disposed of a similar argument with the following observations :
"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 appeared 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 admission made
by a party is a matter different from its use as admissible evidence." We,
therefore, reach the conclusion that the appellants' arrival in this Court has
been an exercise in futility' The appeal must, therefore, fail and is hereby
dismissed. There is some force in the submission that the first respondent had
throughout in his pleadings set out a case against the joint family character
of the Properties and it was only at the stage of the evidence that he fell back
on the alternative case that has got him through. We, therefore, direct that
the appellants shall be directed to pay only half the costs in this Court.
P.B.R. Appeal dismissed.
(1)  1 S.C.R. 606; 615-616.