V.R. KRISHNA IYER, J. – This appeal arises out of a suit for partition where the narrow
area of conflict in this Court is confined 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 excerpted:
1. Whether the said shop-room at the extreme north west comer of plot No. 1238
belongs exclusively to the defendants first party;
2. Whether the entire properties mentioned in Schedule C to the plaint are joint
family properties liable to partition….
3. Point No. 2 relates to three items in Schedule C to the plaint which were covered by
four usufructuary mortgages. The case of the first (contesting) defendant, who is the first
respondent before us now, is that these items of property exclusively belonged to him. 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 defendant.
4. 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.
5. The other short dispute relates to a shop-room at the north west corner of plot No.
1238. Here again the admissions of the eighth defendant and the plaintiffs, already referred to
before, stand in the way of ths plaintiffs’ success. While the trial Court partially upheld the
possession of the first defendant of this shop-building it did not 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 plaintiff’s case is damaged by their own admissions.
The High Court has taken this view and concluded:
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“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.”
6. Counsel 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.
Therefore, 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.
7. 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 his 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 a 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 articulation thereof.
8. There is no merit even in the contention that because these three statements 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 Section 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 fulfils the requirements of Section 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 Section 145 of the Evidence Act. This distinction has been clearly brought out in
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the ruling in Bharat Singh case [AIR 1966 SC 405]. This Court disposed of a similar
argument with the following observations:
“Admissions are substantive evidence by themselves, in view of Sections 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 Section 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.
