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[Cites 8, Cited by 0]

Madras High Court

Perumal vs Senkamalam on 5 September, 2013

Author: R.S.Ramanathan

Bench: R.S.Ramanathan

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE:  5.9.2013.

CORAM

THE HON'BLE MR.JUSTICE R.S.RAMANATHAN

A.S. No.20 of 1997
and
C.M.P.Nos.672 to 677 of 2013

Perumal								Appellant

	vs. 

1. Senkamalam
2. Selvam
3. Chandra
4. Pandian
5. Vannakkili
6. Sekar
7. Muthulakshmi
8. Mathi Alagan
9. Parijatham
10. Lakshmi Ammal 
11. Mariyayee
12. Saroja
13. Dhanalakshmi
14. Ittlikaramma alias Vishalatchi
15. Srinivasan
16. Balasubramaniam						Respondents
	
	Appeal against the judgment and decree dated 29.11.1995 made in O.S.No.105 of 1990 on the file of the Sub Judge, Dharmapuri. 

	For appellant		: Mr.D.Shivakumaran

	For RR1, 3 to 7, 9	: Mr.R.Selvakumar
	For RR2 and 8		: No appearance.


JUDGMENT

The first defendant in O.S.No.105 of 1990 on the file of the Sub Court, Dharmapuri is the appellant.

2. Respondents 1 to 9 filed the above suit for partition of their 7/18 share and also for injunction in respect of C schedule property and the Trial Court passed the preliminary decree holding that respondents 1 to 9 are entitled to 7/18 share and in respect of C schedule property, there shall be an order of injunction restraining the appellant from interfering with the possession of C schedule property by respondents 1 to 8. Aggrieved by the same, this appeal is filed.

3. The case of the plaintiffs is as follows:-

The first defendant and one Arumugam Chetty were the sons of Govinda Chetty and defendants 2 to 4 and one deceased Alamelu were the daughters. Defendants 5 to 8 are the children of the deceased daughter Alamelu. The son Arumugam Chetty died on 3.7.1983 and the first plaintiff is the wife of Arumugam and plaintiffs 2 to 9 are her sons and daughters-in-law. Govinda Chetty was the son of one Arumugam Chetty, who had four sons including Govinda Chetty. The sons of Arumugam Chetty are Govinda Chetty, Shanmugam Chetty, Palani Chetty and Paappu Chetty. Arumugam Chetty and his four sons constituted a Hindu joint family and they owned properties and on 27.6.1929, Govinda Chetty and his brother Shanmugam Chetty executed a release deed in favour of Arumugam Chetty and his two other sons viz., Palani Chetty and Paappu Chetty relinquishing their right in the joint family properties by receiving a sum of Rs.50/= each. Govinda Chetty invested the said sum of Rs.50/= for doing rice business and also later, started Hotel business and from and out of the income from the Hotel business, he purchased the first item of properties in the name of his wife Palani Ammal on 5.8.1937. Though the property was purchased in the name of Palani Ammal, it was treated as the joint family property of Govinda Chetty and his two sons Arumugam and the first defendant/appellant. Originally, the first item of property was the joint family property of Arumuga Chetty and his four sons and after executing the release deed by Govinda Chetty and Shanmugam Chetty, it was owned by Arumugam Chetty and his two sons Palani Chetty and Paappu Chetty and in the partition that took place between Arumugam Chetty on the one hand and Palani Chetty and Paappu Chetty on the other hand on 4.3.1935, the first item of property was allotted to the share of Paappu Chetty and he sold the said property to one Lingappa Chetty on 14.5.1937 and from Lingappa Chetty, the property was purchased by Govinda Chetty in the name of his wife Palani Ammal. It is further stated that Palani Ammal had no income to buy the property and the property was purchased by Govinda Chetty from and out of his income from the joint family business and therefore, it is the joint family property of Govinda Chetty and his two sons. Govinda Chetty also purchased the second item of property from and out of the income from the joint family business on 25.3.1938 and also purchased the third item of property on 2.3.1951 from and out of the income from the Hotel business run by him alongwith his two sons and therefore, all the three items of properties are the joint family properties of Govinda Chetty and his two sons viz., Arumugam Chetty and the first defendant/appellant and the plaintiffs are entitled to 7/18 share in those properties. Govinda Chetty was not in a sound disposing state of mind for about one year prior to his death and he died on 25.7.1975 without leaving any testament and after his death, the properties were enjoyed by the first defendant/appellant and his brother Arumugam Chetty and after the death of Arumugam Chetty, the plaintiffs are enjoying the properties alongwith the first defendant/appellant. Defendants 2 to 4, the daughters of Govinda Chetty filed a suit in O.S.No.179 of 1976 on the file of the Principal Sub Court, Salem for partition of their share in the suit properties and in that suit, the first defendant/appellant filed a statement and the suit was dismissed for non-prosecution. After the death of Arumugam, the first defendant/appellant damaged the third item of properties and that was questioned and aggrieved by the same, the first defendant started giving interference to the enjoyment of the third item of properties by respondents 1 to 9 and therefore, the suit was filed for partition and injunction.

4. The first defendant filed statement stating that the suit for partition is not maintainable. The first defendant admitted the relationship stated in the plaint and contended that Govinda Chetty executed a Will on 17.1.1975 and as per the Will, defendants 2 to 8 have no right or title over the suit properties and they are unnecessary parties. It is also stated that under the Will, the first defendant is also not entitled to claim any right over the properties. The first defendant also contended that as per the Will, the children of the first defendant are given certain items of properties and therefore, the suit is not maintainable. The plaintiffs also did not include all the properties of Govinda Chetty and they are living in a property belonging to Govinda Chetty by putting up construction and that property was not included in the suit and therefore, the suit is bad for non-joinder of necessary parties and also partial partition. The first defendant also denied the allegation that Govinda Chetty invested Rs.50/= he got under the release deed from his father and purchased the suit properties and also denied the allegation that Govinda Chetty was running Hotel business alongwith his two sons and from that, he purchased the suit properties. He denied that the first item of properties was purchased by Govinda Chetty in the name of his wife and he treated the same as his own property and items 2 and 3 were purchased by Govinda Chetty and was enjoying the same as the separate property. Therefore, the suit properties are the separate properties of Govinda Chetty and his sons are not entitled to any right over the same. The husband of the first plaintiff Arumugam was a useless person and he was not doing any business and in the year 1955, Govinda Chetty separated him from the family by giving him some cash he got by the sale of house property and thereafter, the plaintiffs are living separately and they never lived jointly with Govinda Chetty or with the appellant and they never joined in executing or discharging the mortgage and other loans and for the past 25 years, they never claimed any right or access over the properties and therefore, the suit is barred by limitation. After the separation of Arumugam, Govinda Chetty was taken care by the first defendant/appellant and also incurring debts by mortgage alongwith the son, the first defendant and they executed mortgages in favour of Ramanathan Chettiar on 24.4.1965 for a sum of Rs.5000/= and on 12.1.1972 for a sum of Rs.4000/=, in favour of Dr.Venkatesan, on 25.7.1970 for a sum of Rs.2000/= and on 16.10.1967 for a sum of Rs.5000/= and in favour of Karpagam alias Valliammal on 15.1.1972 for a sum of Rs.3000/= and executed pro notes in favour of Dr.Venkatesan on 31.1.1972 for a sum of Rs.5000/= and on 24.2.1975 executed a pro note in favour of Pakkiammal for a sum of Rs.2000/= and the total liability of Rs.26,000/= was paid by the first defendant and the mortgages were redeemed. The first defendant also denied the allegation that one year prior to his death, Govinda Chetty was not in a sound disposing state of mind. The properties were separate properties of Govinda Chetty and while he was in a sound disposing state of mind, on 17.1.1975, he executed a Will in the presence of witnesses and as per the Will, item 1 of properties was given to plaintiffs 4, 6 and 8 and item 2 was given to the children of the first defendant/appellant and item 3 was given to the first defendant/appellant and certain debts were also directed to be discharged by plaintiffs 4, 6 and 8 and till the discharge of those debts, the first item shall be in the possession of the second defendant and the Will came into effect after the death of Govinda Chetty and the children of Arumugam did not take any steps to discharge the loans and therefore, they are not entitled to claim any right in the first item of properties. In O.S.No.179 of 1976, the first defendant contested the suit by filing statement and to to defeat the rights of the sisters, it was stated in that statement that the properties are joint family properties and in that statement also, the Will was mentioned and the sisters viz., defendants 2 to 4 having realised that as per the Will, they cannot claim any right, let the suit dismissed for default. Therefore, the plaintiffs cannot claim any right over the properties even as per the Will and therefore, the suit for partition is liable to be dismissed.

5. Defendants 2 to 8 remained ex parte.

6. On the basis of the above pleadings, the following issues were framed:-

1) Whether the suit properties are joint family properties?
2) Whether the suit is bad for non-joinder of necessary parties?
3) Whether the suit is bad for partial partition?
4) Whether the suit is barred by limitation?
5) Whether the Will alleged to have been executed by Govinda Chetty on 17.1.1975 is binding on the plaintiffs?
6) Whether the suit properties have been properly valued and proper court fee has been paid?
7) Whether the plaintiffs and defendants are in joint possession of the suit properties?
8) Whether the plaintiffs are entitled to partition and separate possession?
9) Whether the plaintiffs are entitled to the relief of permanent injunction?
10) To what relief, the parties are entitled?

7. On the side of the plaintiffs, the first plaintiff and two others were examined as P.Ws.1 to 3 and on the side of the defendants, the first defendant examined himself as DW1 and examined two witnesses to prove the Will. On the side of the plaintiffs, 88 documents were marked and on the side of the defendants, 274 documents were marked.

8. The Trial Court answered issue No.1 holding that the properties are the joint family properties. The Trial Court tried issues 2 and 5 and held that the suit was not bad for non-joinder of necessary parties and also held that the Will dated 17.1.1975 was executed by Govinda Chetty. Issue No.4 was answered in favour of the plaintiffs holding that the suit is not barred by limitation. Issue No.3 was also answered in favour of the plaintiffs holding that the property which was omitted to be included was proved to have been purchased by the first plaintiff by selling her jewels and therefore, the suit is not bad for partial partition. Issues 6 to 8 were tried together and held that the parties are in joint possession of the suit properties and therefore, the suit was properly valued and proper court fee was paid. Issue No.9 was answered in favour of the plaintiffs holding that the plaintiffs are entitled to injunction. Issue No.10 was answered holding that the plaintiffs are entitled to 7/18 share and in respect of 'C' schedule property, there shall be an order of injunction restraining the first defendant from interfering with the possession and enjoyment of the said property by the plaintiffs. Aggrieved by the same, the present appeal is filed.

9. It is submitted by the learned counsel for the appellant that the court below committed serious error in holding that the properties are joint family properties of Govinda Chetty. He submitted that admittedly, Govinda Chetty and his brother Shanmugam Chetty separated from the co-parcenery consisting of two brothers by executing release deed, Ex.A5/B257 dated 27.6.1929 and received a sum of Rs.50/= each and no evidence was let in to prove that the business started by Govinda Chetty was with the help of Rs.50/= and in the absence of any evidence produced by the plaintiffs that with the help of the joint family properties or from the income from the joint family business, Govinda Chetty started the business and purchased other properties, the court below ought to have held that they are separate properties of Govinda Chetty. He further submitted that in the Will Ex.B274 executed by Govinda Chetty, he also made it clear that the suit properties were separate properties and therefore, the court ought to have given credence to the statement made by Govinda Chetty in the Will and ought to have held that the properties are the separate properties of Govinda Chetty. He further submitted that item 2 of the suit properties was purchased under Ex.A4 dated 25.5.1938 and as per Ex.B255, the first defendant was born on 15.7.1935 and Arumugam, the husband of the first plaintiff was two years old at that time and even according to the evidence of PW1, Arumugam was born in the year 1933 and in the year 1937, when the first item of properties was purchased under Ex.B263 on 5.8.1937 and on 25.5.1938, the second item was purchased by Govinda Chetty in the name of the first defendant and Arumugam, and they could not have contributed any money for the purchase of those properties and therefore, the court below ought to have held that items 1 and 2 were separate properties of Govinda Chetty. He further contended that third item was purchased under Ex.B258 dated 2.3.1951 and at the time of that purchase, Arumugam was 18 years and the appellant/first defendant was aged 15 years and he also could not have contributed any income for the purchase of third item of properties. Further, no evidence was let in by the plaintiffs to prove that those items of properties were purchased by using Rs.50/= which Govinda Chetty got under the release from his father and in the absence of any evidence to prove that those properties were purchased from and out of the income from the joint family properties or from the joint exertions of Arumugam and the first defendant, it cannot be stated that the properties or the joint family properties of Govinda Chetty and his two sons and the court ought to have held that the properties are separate properties of Govinda Chetty and he executed a Will in respect of those properties by which, item 1 was given to plaintiffs 4, 6 and 8 and item 2 was given to the children of the appellant and item 3 was given to the first defendant/appellant and therefore, the plaintiffs' suit for partition is not maintainable.

10. The learned counsel further contended that the court below ought not to have relied upon the statement filed by the appellant in O.S.No.179 of 1976 and marked as Ex.A2. The learned counsel submitted that the appellant was not a competent person to speak about the properties as admittedly, he was only three years old at the time of purchase of items 1 and 2 and he was only 15 years old at the time of purchase of item 3 and therefore, any statement made by him in O.S.No.179 of 1976 regarding the character of property cannot be accepted considering the statement of Govinda Chetty in his Will, Ex.B274. He also submitted that admissions can be explained and in the written statement filed in the suit, the appellant has given explanation for having made such averment in the written statement filed in O.S.No.179 of 1976 and therefore, the written statement filed by the appellant in O.S.No.179 of 1976 cannot be put against the appellant. He also submitted that admittedly, O.S.No.179 of 1976 was dismissed for default and therefore, in the absence of any finding recorded by the court regarding the statement given in O.S.No.179 of 1976, that statement cannot be put against the appellant. He relied upon the judgment reported in BISHWANATH PRASAD v. DWARKA PRASAD ((1974) 1 SCC 78) and PULLANGODA RUBBER PRODUCE CO. v. STATE OF KERALA ((1972) 4 SCC 683) in support of his contention. He also relied upon the judgment reported in SARATHAMBAL v. SEERALAN (93 LW 640), SUNDARAM v. RUKMANI AMMAL (87 LW 817) and D.S.LAKSHMAIAH v. L.BALASUBRAMANYAM ((2003) 10 SCC 310) in support of his contention that the existence of the joint family will not lead to the presumption that property was owned by joint family members and after a co-parcener separated from the co-parcenery, his sons cannot claim any share in the co-parcenery properties in the hands of other co-parceners and in this case, release deed was executed by Govinda Chetty on 27.6.1929 and on that date, the appellant and Arumugam were not born and therefore, they cannot claim any share in the co-parcenery properties. He also relied upon the judgment reported in (2003) 10 SCC 310 in support of his contention that the burden is on the person who alleges that the properties are joint family properties and when the person failed to prove that the joint family possessed of sufficient nucleus, it cannot be presumed that the properties are joint family properties and therefore, the court below committed serious error in holding that the suit properties are joint family properties of Govinda Chetty and his two sons and they are entitled to 1/3 share each. The learned counsel for the appellant also submitted that as per the Will, Ex.B274, the suit properties were dealt with by Govinda Chetty and the Will has been upheld by the court and the appellant has no objection for dividing the properties as per the Will.

11. The learned counsel for respondents submitted that the court below has rightly held that the properties are joint family properties of Govinda Chetty and his two sons and the written statement filed by the appellant, Ex.A2 would prove that the properties were treated as joint family properties of Govinda Chetty and his two sons and that admission made in the written statement in O.S.No.179 of 1976 operates as estoppel and it is not open to the appellant to say that the admission was made to defeat the rights of defendants 2 to 4. He, therefore, contended that having regard to the statement filed in O.S.No.179 of 1976, it is not open to the appellant now to contend that the properties are not joint family properties and they are self-acquired properties of Govinda Chetty. He further submitted that in the year 1929, a sum of Rs.50/= had its own value and the appellant has stated in detail how the sum of Rs.50/= was utilised by Govinda Chetty for promoting his business and therefore, the Trial Court has rightly held that the suit properties are joint family properties in which the plaintiffs are entitled to 1/3 share. He also submitted that though the Will was upheld by the Trial Court, the parties will not get anything under the Will having regard to the fact that the plaintiffs and the first defendant are each entitled to 1/3 share in the suit properties and 1/3 share of Govinda Chetty could have devolved as per the Will. He, therefore, submitted that the plaintiffs must be given 1/3 share in the suit properties and 1/3 share of Govinda Chetty has to be divided among the legatees as per the Will and that exercise can be done in the final decree.

12. On the basis of the above submissions, the following points arise for consideration in this appeal:-

1) Whether the suit properties are the joint family properties of Govinda Chetty or his separate properties?
2) Whether respondents 1 to 8 are entitled to 7/18 share as decreed by the Trial Court or to what share they are entitled?

13. As stated supra, Arumugam Chetty was the common ancestor and he had four sons by name Govinda Chetty, Shanmugam Chetty, Palani Chetty and Paappu Chetty and it is not in dispute that Arumugam Chetty and his four sons constituted a co-parcenery and Govinda Chetty and his brother Shanmugam Chetty executed a release deed, Ex.A5/B257 dated 27.6.1929 relinquishing their share in the co-parcenery properties by receiving a sum of Rs.50/= each. Therefor,e in the year 1929, Govinda Chetty was having Rs.50/= as ancestral property and there was no evidence available on record that Govinda Chetty started the rice business and hotel business from his separate earnings. It is admitted by the appellants in the written statement in O.S.No.179 of 1976 that the said sum of Rs.50/= was utilised as capital for starting rice business in Kumarapalayam and he shifted his business to Palakad after some years and from the money he earned from that business, he started a military hotel which he conducted till 1954 and he made good profits in the hotel business and the rice business and hotel business were family business in which, both his sons had equal rights and he also stated that from the profits from the said business, he purchased the suit properties and other properties. Therefore, as per the admission of the appellant that Rs.50/= received by Govinda Chetty under the release deed, was utilised for starting rice business and from the money he earned from that business, a military hotel was started and they were treated as joint family business in which the father and two sons had equal rights and from the profits of the business, the suit properties and other properties were purchased.

14. The contention of the learned counsel for the appellant is that the statement filed in O.S.No.179 of 1976 cannot be put against the appellant as no finality has been reached in that suit and that suit was dismissed for default. He further contended that the statement can be taken only as an admission and admission can be explained and relied upon the judgment reported in (1972) 4 SCC 683. The judgment reported in (1974) 1 SCC 78 has been relied upon in the decision reported in (1972) 4 SCC 683 wherein it has been held that an admission is an extremely important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect. In the decision reported in (1974) 1 SCC 78, it is held as follows:-

"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."

15. Therefore, the admissions will bind the parties who made that unless the parties reasonably explain the circumstances in which the admissions were made. It is the submission of the learned counsel for the appellant that in the written statement filed in the suit, it has been explained about the admission made in the earlier statement that at the advice of the counsel, who appeared on behalf of the appellant in O.S.No.179 of 1976, it was stated that the properties were the joint family properties of Govinda Chetty and his two sons to defeat the rights of the sisters. The other explanation submitted by the learned counsel for the appellant is that in the will, Ex.B274, Govinda Chetty made it clear that the properties are his separate properties and Govinda Chetty was the competent person to speak about the character of those properties and the appellant was not competent to speak about the character of those properties and therefore, having regard to the statement made by Govinda Chetty in the Will, Ex.B274, it has been proved that the properties are separate properties of Govinda Chetty.

16. I am unable to accept the contention of the learned counsel for the appellant. A reading of the Will, Ex.B274, in my opinion, would prove that Govinda Chetty treated the properties as joint family properties. In the Will, it is stated as follows:-

"vdf;F mde;juk; vd;dpl brhj;Jf;fSf;ffhf. Vd; kf;fSf;Fs; jfuhW Vw;glf;TlhJ vd;gjhYk; vd;Dlndna ,Ue;J vd;Dld; xj;JiHj;J vd; kf;fSf;F fypahz fhhpa';fspYk; kw;w ey;yJ bfl;lJfspYk; g';F bfhz;L gz jpnuf cjtp bra;Jk; ,Jehs; tiu vd;idf; fhg;ghw;wp te;j vdJ ,isa kfd; bgUkhSf;F xU Mjut[ bra;a ntz;Lk; vd;w tpUg;gj;jhYk; vd; K:j;j kfd; MWKfk; Vw;fdnt gy tUl';fSf;F Kd; vd; tPLfs; tpw;w gzj;jijg; bgw;Wf; bfhz;L jd; kidtp bgahpy; fhypepyk; th';fp ghyf;nfhl;oy; tPLfl;of; bfhz;L vd;dplkpUe;J gphpe;J brd;W tpl;lgoahYk; vdf;F gpd; fPH;fz;lgo vdJ brhj;Jf;fs; fPH; Fwpg;gpl;lth;fSf;F nruntz;oaJ/"

17. A free translation of the above passage in English is as follows:-

"There shall not be any dispute in respect of my properties between my sons after my death and my son Perumal is living with me and is helping me in all my activities and with a view to give him support and having regard to the fact that my elder son Arumugam got separated from me after receiving money which was paid by selling the properties, this Will is executed."

18. Therefore, he also admitted that his elder son Arumugam got separated from him by receiving money which was paid by selling the properties. If really the properties were separate properties of Govinda Chetty, there was no need to mention that Arumugam got separated from him and the wordings would be that I had already provided for my elder son Arumugam by giving money and there was no necessity to use the phrase that he got separated from the family. This is one circumstance to come to the conclusion that the properties were also treated as joint family property of Govinda Chetty. Further, no evidence was let in by the appellant to prove that the properties were purchased by Govinda Chetty without any reference to Rs.50/= he got under the release deed. As stated supra, in the year 1929, a sum of Rs.50/= had its own value and it is admitted by the appellant in the written statement filed in O.S.No.179 of 1976 that Rs.50/= was used as capital for running rice business and that business flourished well and out of the income from that business, a military hotel was started later. Therefore, considering the admission made by the appellant in O.S.No.179 of 1976 and the recitals in the Will and the absence of any other evidence that Govinda Chetty had other source of income from which he purchased the suit properties, the court below rightly held that the properties are joint family properties in the hands of Govinda Chetty and therefore, the plaintiffs are entitled to a share in the properties.

19. Though there is no presumption under Hindu Law that the joint family possessed of joint family properties, when some nucleus was proved and no other source of income was proved for the purchase of properties, it can be presumed that the nucleus provided must have generated the source of money for the purchase of other properties. It has been held in (2003) 10 SCC 310 as follows:-

"The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."

20. In the judgment in MALLESAPPA BANDEPPA DESAI v. DESAI MALLAPPA (AIR 1961 SC 1268), the Honourable Supreme Court has held as follows:-

"that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof in such a case has to be placed on the manager and not on his coparceners."

21. In this case, a nucleus was admitted, viz., Rs.50/= which may be sufficient to start a rice business in the year 1929 and properties were purchased in the name of Kartha and therefore, the burden lies on him to prove that the properties were his separate properties and not his joint family properties.

22. Further, in the judgment reported in (1974) 1 SCC 78, it has been held as follows:-

"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 the ruling in Bharat Singh's case ((1966) 1 SCR 606, 615-16: AIR 1966 SC 405 : (1966) 2 SCJ 53). 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.""

23. Having regard to the principles laid down by the Honourable Supreme Court in the above judgments, I hold that the properties are joint family properties of Govinda Chetty and his four sons and the appellant is bound by his admission made in O.S.No.179 of 1976. Point No.1 is answered accordingly.

24. The Trial Court has upheld the Will executed by Govinda Chetty. Admittedly, Govinda Chetty was having 1/3 share and therefore, his 1/3 share devolved upon the legatees mentioned in the Will. Under the Will Ex.B274, he bequeathed the first item of properties in favour of plaintiffs 4, 6 and 8 and the second item to the children of the first defendant and the third item to the first defendant/appellant. Govinda Chetty was having undivided 1/3 share. The legatees cannot claim the properties given to them under the Will and they can claim their proportionate share in those properties. Having regard to the fact that there are three items of properties and each item was given to three different groups, I am of the opinion that out of the 1/3 share of Govinda Chetty, each group will get 1/9 share and in other words, plaintiffs 4, 6 and 8 will get 1/9 share, the first defendant will get 1/9 share and the sons of the first defendant will get 1/9 share. The first defendant is also entitled to 1/3 share in addition to 1/9 share under the Will of Govinda Chetty. Similarly, plaintiffs 4, 6 and 8 are entitled to 1/9 share in addition to 1/3 share they got alongwith other plaintiffs as the legal representatives of their father. Hence, point No.2 is answered accordingly.

25. In the result, the appeal is partly allowed and I hold that the plaintiffs are entitled to 1/3 share and plaintiffs 4, 6 and 8 are entitled to 1/9 share and the first defendant is entitled to 1/3 share in addition to 1/9 share and the sons of the first defendant are entitled to 1/9 share. The decree is modified accordingly. No costs. 26. C.M.P.Nos.672 to 674 of 2013 were filed to condone the delay in filing application to set aside the abatement, to set aside the abatement caused by the death of the 10th respondent/second defendant and to bring on record her legal representatives as respondents 17 to 26. C.M.P.Nos.675, to 677 of 2013 were filed to condone the delay in filing the application to set aside the abatement, to set aside the abatement caused by the death of the 13th respondent/5th defendant and to bring on record the legal representatives of the 5th defendants as respondents 27 to 29.

27. As those defendants were set ex parte in the Trial Court and they were also given up in this appeal, there is no need to take steps to bring on record their legal representatives. Hence, the above petitions are dismissed as unnecessary.

5.9.2013.

Index: Yes.

Internet: Yes.

ssk.

To The Sub Judge, Dharmapuri.

R.S.RAMANATHAN, J.

Ssk.

A.S. No.20 of 1997

5.9.2013.