Karnataka High Court
Sri Bhupendra P Shah Since Deceased By ... vs Meena R Shah on 2 July, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.404/2009
BETWEEN:
SRI BHUPENDRA P.SHAH
SINCE DECEASED BY LRS
1. SMT. SUSHEELA
W/O BHUPENDRA SHAH
AGED ABOUT 65 YEARS
2. MANISH
S/O LATE BHUPENDRA SHAH
AGED ABOUT 38 YEARS
BOTH ARE RESIDING AT NO.11,
GROUND FLOOR, 19TH CROSS,
CUBBONPET, BANGALORE-560 002.
3. SMT. BHAVANI
W/O MANISH
D/O LATE BHUPENDRA P. SHAH
AGED ABOUT 36 YEARS
R/O NO. 1121/D E, VINAYMARGA
SIDDARTHA LAYOUT, MYSORE-570 024.
4. SMT. MAMATHA
W/O JATHIN
D/O LATE BHUPENDRA P. SHAH
AGED ABOUT 35 YEARS
R/O NO. 202, YOGI PARADISES
YOGI NAGAR BARRIWATTI WEST
MUMBAI-40017.
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5. DEEPAK P. SHAH
AGED ABOUT 52 YEARS
S/O LATE P. V. SHAH
R/O PORTION OF THE GROUND FLOOR
BEARING NO.11, 19TH CROSS
CUBBONPET, BANGALORE
NOW RESIDING AT NO.23/3,
17TH 'A' MAIN, 5TH BLOCK
RAJAJINAGAR,
BANGALORE-560 010. ... APPELLANTS
(BY SRI.JAYAVITTAL KOLAR, SR.COUNSEL A/W SMT.
RADHA V.D, ADVOCATE & SRI. ANIL KEMBHAVI, ADV.,
FOR M/S KOLAR & KOLAR, ASSOCIATES, ADVOCATES)
AND:
1. MEENA R.SHAH
W/O LATE R.P. SHAH
AGED ABOUT 57 YEARS
2. ARCHANA R. SHAH
D/O LATE R. P.SHAH
AGED ABOUT 33 YEARS
3. HIREN R. SHAH
S/O LATE R. P.SHAH
AGED ABOUT 31 YEARS
4. VIRAL R. SHAH
D/O LATE R. P.SHAH
AGED ABOUT 29 YEARS
(D.1 TO 4 ARE R/O NO.11,
NO.11, 1ST FLOOR, 19TH CROSS,
CUBBONPET, BANGALORE-560 002
5. MAHENDRA P.SHAH
S/O LATE P.V. SHAH
AGED ABOUT 69 YEARS
C/O PATEL ANGADIA COMPANY
GOPALPRABHU ROAD
3
ERNAKULAM
COCHIN-574 104. ... RESPONDENTS
(BY SRI.CHANDAN S.RAO, ADVOCATE FOR
M/S RAO AND RAO, ASSOCIATES ADVOCATES
FOR R-1 TO R-4;
NOTICE TO R-5 SERVED)
THIS APPEAL IS FILED UNDER ORDER 41, RULE-1,
R/W S.96 OF CPC PRAYING AGAINST THE JUDGMENT &
DECREE DATED 4.2.2009 PASSED IN O.S.NO.2699/2002
ON THE FILE OF THE I ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE DISMISSING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiffs appeal challenging the judgment and decree passed by I Addl.City Civil Judge, Bangalore dated 04.02.2009 in O.S.No.2699/2002 whereunder suit for partition and separate possession claimed by plaintiffs against defendants has been negatived and suit has been dismissed.
2. Parties are referred to as per their rank in the trial Court.
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3. Plaintiffs filed a suit for partition and separate possession claiming 1/4th share in property bearing No.11, 19th Cross, Cubbon pet, Bangalore measuring 27'x 39' (hereinafter referred to as 'suit schedule property' for short) contending interalia that plaintiffs, 5th defendant and Sri Ramesh P Shah i.e., father of defendants 2 to 4 are the sons of late Sri P.V.Shah and the suit schedule property was jointly purchased by contributions made by them and it was purchased under a registered sale deed dated 17.08.1973 from its original owner Sri B.S.Sonnappa in the name of Sri R.P.Shah. It was also contended by plaintiffs that they were also residing in the said property and total sale consideration being Rs.47,500/- was contributed by plaintiffs and on account of husband of first defendant was working as an accountant at Dena Bank at an undisputed point of time, he has applied for a housing loan and has received a sum of Rs.40,000/- and was paid by him towards purchase of suit schedule property and balance amount of Rs.7,500/- together with 5 registration charges was paid by both plaintiffs. It was also contended that they have spent Rs.50,000/- towards the suit schedule property for its maintenance, alteration, etc.,.
4. Further plea of the plaintiffs was that suit schedule property came to be registered in the name of Sri R.P.Shah i.e., husband of first defendant and father of defendants 2 to 4 for the purpose of obtaining loan only even though it was jointly purchased by plaintiffs and Sri R.P.Shah. It was contended that plaintiffs father had filed eviction petitions against the tenants of suit schedule property for self occupation i.e., for his family members on the ground that it was a joint family property and both the father of plaintiffs and brother Sri R.P.Shah had clearly deposed in the said eviction petitions admitting that suit schedule property is a joint family property and obtained eviction orders and as such, it was contended that stand of the plaintiffs that suit schedule property is a joint family property was 6 corroborated by the admission of Sri. R.P.Shah and plaintiff's father in HRC petitions by relying upon the depositions of Sri R.P.Shah and P.V.Shah who had admitted that suit schedule property is a joint family property.
5. Plaintiffs also contended that during the life time of Sri R.P.Shah, he had filed a suit for ejectment and possession in O.S.No.3778/1995 alleging that he was the owner of suit schedule property and plaintiffs are the tenants, which came to be decreed erroneously and when execution petition was filed to execute the decree, Panchayat was held between plaintiffs and defendants and though defendants 1 to 4 initially agreed to settle the dispute, they did not come forward and as such late R.P.Shah had filed the execution petition and obtained possession of suit schedule property from plaintiff's by suppressing facts. Hence, on these grounds they sought for partition and separate possession of suit schedule property.
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6. On service of suit summons, defendants appeared and filed their written statements denying the averments made in the plaint. Defendants 1 to 4 specifically denied that suit schedule property was purchased out of joint family funds and there was no contribution whatsoever from either Sri P.V.Shah i.e., father of plaintiffs and father-in-law of defendant No.1 - grand father of defendants 2 to 4 or the plaintiffs. It was also contended that suit schedule property is the self acquired property of Sri R.P.Shah and plaintiffs have no manner of right, title or interest. It was also contended that on the date of purchasing of suit schedule property, first plaintiff had no sufficient income or suitable employment and second plaintiff was a minor and as such, their contributing amount towards purchase of suit schedule property did not arise at all. Defendants 1 to 4 also denied about plaintiffs having spent Rs.50,000/- towards maintenance and alteration of suit schedule property. 8 It was also contended that evidence tendered by the father of defendants 2 to 4 - Sri R.P.Shah is to be construed as an admission made for the purposes of evicting the tenants and as such, they pleaded that said deposition cannot be made use of for purposes of denying title of defendants 1 to 4 over the suit schedule property.
7. It was also contended that suit O.S.No.3778/1995 had been filed by father of defendants - 2 to 4 against plaintiffs which came to be decreed on 15.11.2001 and in the said suit, similar contention had been raised which came to be examined by Court and was negatived and as such, it was barred by principles of resjudicata and hence, they cannot reagitate the same issue in the present suit. On these grounds amongst others, they prayed for dismissal of the suit.
8. The trial Court on the basis of pleadings of parties, framed following issues for its adjudication: 9
1) Whether the plaintiffs prove that they and the defendants are the joint owners in possession of the suit schedule property?
2) Whether the plaintiffs prove that they are entitled for 1/4th share in the suit schedule property and separate possession of the same by metes and bounds?
3) Whether the defendants prove that their late father R.P.Shah was the absolute owner of the suit schedule property as such, the plaintiffs are not entitled for 1/4th share in the suit schedule property?
4) To what reliefs are the parties entitled to?
5) To what order or decree?
9. Plaintiffs in support of their case, examined second plaintiff as P.W.1 and sister of plaintiffs Smt.Reena P Parekh as P.W.2 and in all, they produced six documents and got them marked as Exs.P-1 to P-6. On behalf of defendants 1 to 4, first defendant got herself examined as D.W.1 and in all, produced 28 documents and got them marked as Exs.D-1 to D-28. 10 After analysing the pleadings and on appreciation of evidence, both oral and documentary and also on considering rival contentions raised by respective learned Advocates, trial Court dismissed the suit by judgment and decree dated 04.02.2009. It is this judgment and decree which is questioned in the present appeal.
10. It is contended by Sri Jayavittal Rao Kolar, learned Senior Counsel appearing on behalf of appellants - plaintiffs that at undisputed point of time, husband of first defendant namely, Sri R.P.Shah had filed HRC No. 173/1980 and in said case, he has unequivocally admitted that suit schedule property is a joint family property and it was purchased jointly by himself and his father on 17.08.1973 as per Ex.P-1 - Ex.D-1 and in view of the said admission, sub-section (3) of Section 32 of Indian Evidence Act, 1872 (for short 'the Act') would be attracted to the facts and circumstances of the case and said deposition which was marked as Ex.P-3 was a 11 vital admission of Sri R.P.Shah which has not been considered in proper perspective by trial Court which has resulted in miscarriage in the administration of justice. He would elaborate his submission by contending that finding recorded by trial Court that D.W.1's admission about her deceased husband having tendered the evidence in HRC No. 173/1980 of no consequence, is contrary to the material evidence available on record and as such judgment and decree passed by trial Court is liable to be set aside.
11. He has drawn the attention of the Court to Ex.P-3 namely, evidence of Sri R P Shah to contend that in the said proceedings he has admitted that suit schedule property is a joint family property and contends, when said witness has particularly reiterated his statement in his re-examination also, it ought to have been admitted in evidence under Section 32(3) of the Evidence Act.
12. He would further contend that statement made by a person in earlier litigation is admissible in subsequent 12 litigation between the said person and others or between his legal representatives and others since the statement in question had been made before a judicial forum at an undisputed point of time on oath against his own proprietary and pecuniary interest, same cannot be raised and such statement is admissible under Section 32(3) of Evidence Act. He would contend that what is required to be looked into for admitting Ex.P-3 as an admissible evidence under Section 32(3) of the Act would be as to whether the person making statement had full knowledge and was aware about such statement would be used against his pecuniary or proprietary interest or not. Hence, he seeks for setting aside the finding recorded by trial Court and prays for decreeing the suit by allowing the appeal.
13. In support of his submissions, he has relied upon the following judgments:
(1) AIR 2006 Calcutta 88 Atindra Nath Chakrabarty vs. Anil Kumar Chakravarthy & others.13
(2) AIR 1952 SC 72 Bhagwati Prasad Sah and others vs. Dulhin Rameshwari Kuer and another.
(3) AIR 1969 ORISSA 18
Sri Gopinath Deb and others vs.
Jagannath Baral and others.
(4) AIR 1967 SC 1134
Ramarathi Kuer vs. Dwarika Prasad
Singh and others.
(5) Law of Evidence by Rathanlal &
Deerajlal - 22nd enlarged Edition 2006
- Sec. 32(3), Note 39 page 575-576.
(6) Law of Evidence - Batuklal - 5th Edition 2006 - Section 32(3) page 643-
644, 645.
(7) Law of evidence - Woodroffe & Ameerali
- 12th Edition 1968 - Section 32(3) page 677, 678 (8) Sengupta on Evidence - 1988 Edition Sec- 32(3) - Note 40 - pages 396, 397 & 398.
14. Per contra, Sri Chandan Rao, learned Advocate appearing for respondents-defendants would submit at the outset that there is no pleading to the effect that it is a joint family property and no evidence has been placed by plaintiffs in this regard. He would contend 14 that Ex.P-3 - deposition of late Sri R.P.Shah relied upon by learned Advocate appearing for plaintiffs to contend that his deposition is admissible under Section 32(3) of Evidence Act since the maker of the statement at an undisputed point of time has admitted that suit schedule property is a joint family property, is a contention which was similarly raised in O.S.No.3778/1995 which came to be negatived by judgment and decree dated 15.11.2011 and the said judgment and decree having not been set aside by the appellate Court, mere reserving liberty to the appellants therein i.e., plaintiffs in the instant case, would not by itself be sufficient to conclude that Ex.P-3 is to be admitted as evidence under Section 32(3) of the Act, particularly when there is no pleading and evidence to the said effect.
15. He would further elaborate his submission by contending that when suit schedule property was purchased by Sri R.P.Shah in the year 1973 and after 15 he filed an eviction petition in HRC No.173/1980 and other connected matters in the year 1975 (renumbered in the year 1980) and tendered evidence on 18.09.1982 till he got issued legal notice on 10.02.1995 as per Ex.D-13 there was not even a whisper by the plaintiffs about suit schedule property being the joint family property and for 13 long years i.e., from 1982 to 1995 plaintiffs did not set any claim over suit schedule property claiming it to be a joint family property. He would also contend that HRC proceedings are summary in nature and there was no adjudication of title and pleadings of the present suit alone has to be looked into. He would also contend that from the date Ex.P-3 came into existence on 18.09.1982 till 10.02.1995, none of the plaintiffs or deceased Sri P.V.Shah had asserted about suit schedule property being joint family property.
16. He would also submit that even if Exs.P-2 and P-3 are to be treated as an admissible evidence under sub- section (3) of Section 32 of Evidence Act, still it cannot 16 be used against defendants 1 to 4 or in favour of plaintiffs to arrive at a conclusion that suit schedule property is a joint family property since it has to be inferred from surrounding circumstances about the need or necessity of making such a statement in an earlier judicial proceedings by the maker against his pecuniary or proprietary interest and if such statement is considered in this background it cannot be held that plaintiffs have proved suit schedule property to be a joint family property.
17. He would also draw the attention of Court to the admissions of plaintiffs in the present suit to contend that it cannot be inferred from the evidence available on record that suit schedule property is a joint family property or the plaintiffs having proved about plaintiffs at any point of time had contributed any amount towards purchase of suit schedule property.
18. In support of his submissions, he has relied upon the following judgments:
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(1) AIR 2002 SC 2004 Rakesh Wadhawan and others vs. M/s.Jagadamba Industrial Corporation and others.
(2) AIR 1940 PATNA 653 Ramrup Rai vs. Firm Mahadeo Lai Nathmal.
(3) AIR 1941 BOMBAY 144 Ramabai Shrinivas Nadgir vs. Government of Bombay.
(4) AIR 1967 SC 1134 Ramarathi Kuer vs. Dwarika Prasad Singh and others.
19. Having heard the learned Advocates appearing for the parties and in the light of the pleadings, evidence available on record, on consideration of rival contentions and on perusal of case laws relied upon by respective learned Advocates appearing for the parties, I am of the considered view that following points would arise for my consideration:
(1) Whether plaintiffs - appellants are estopped from raising the plea that suit schedule property is not a joint family property in view of the 18 findings recorded by the Addl.City Civil Judge, Bangalore in O.S.No.3778/1995 dated 15.11.2001?
(2) Whether Exs.P-2 and P-3 -
deposition rendered by Sriyuths P.V.Shah and R.P.Shah namely, father and brother of the plaintiffs in HRC No.173/1980 is to be held as admissible in evidence under Section 32(3) of the Evidence Act?
If so, whether the plea of plaintiffs that suit schedule property is to be treated as a joint family property is to be accepted or rejected?
(3) Whether the judgment and decree passed by trial Court under appeal suffers from any illegality or irregularity calling for interference at the hands of this Court?
(4) What order?
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20. Before delving upon the points formulated herein above, this Court is of the considered view that a brief history of the case requires to be narrated and same can be crystalised as under:
BRIEF HISTORY OF THE CASE:
Plaintiffs are uterine brothers. Defendant No.1 is the wife and defendants 2 to 4 are children of late Sri R.P.Shah. Said Sri R.P.Shah, 5th defendant and plaintiffs are brothers and they are sons of late Sri P.V.Shah.
21. Late Sri R.P.Shah filed a suit for possession of the suit schedule property in O.S.No.3778/1995 against plaintiffs herein which came to be decreed by judgment and decree dated 13.06.1995. In the said suit, defendants therein had raised a plea that suit schedule property belonged to the joint family of plaintiff, defendants and their father therein and it was contended that suit schedule property was purchased by their father in the year 1973 by contributing money 20 and sale deed had been obtained in the name of plaintiff therein i.e. Sri R.P.Shah to enable him to obtain loan from M/s.Dena Bank. It was also contended by them that plaintiff had admitted (namely, Sri R.P.Shah) about suit schedule property being joint family property in an eviction proceedings in HRC Nos.172/1980, 173/1980 and 177/1980 and as such, the defendants had a share in suit schedule property. By raising such plea defendants therein had sought for dismissal of the suit. One of the issues which came to be framed in the said suit i.e., O.S.No.3778/1995 which related to the plea of suit schedule property being a joint family property and which has relevancy to the present appeal reads as under:
"(1) xxx (2) xxx (3) xxx (4) Whether the defendants prove that the suit schedule property is a joint family property and sale deed 21 effected in the name of plaintiff to raise loan?
(5) xxx (6) xxx (7) xxx Said issue came to be answered in the negative after analysing the entire evidence and holding that there was no plea in the written statement about amounts contributed by each person to purchase the suit property; Sri P.V.Shah was very much alive when the suit was filed and he had not asserted that it is a joint family property or he had not disputed the plaintiff's claim that suit schedule property was self acquired property of the plaintiff therein. On account of lack of evidence tendered by defendants therein to sustain their defence to the effect that suit schedule property was a joint family property, issue No.4 came to be answered in the negative by judgment and decree dated 15.11.2001.
Said judgment and decree was the subject matter of appeal in RFA No.452/2002 which was disposed of by co-ordinate Bench of this Court by judgment dated 22 07.02.2005 in view of the memo having been filed by the respondents i.e., respondents in the present appeal stating that without conceding the right of appellant over the suit schedule property, liberty may be given to the appellants therein (who are appellants herein also) to establish their right over the suit schedule property independently in the suit filed by them i.e., O.S.No.2699/2002 (present suit) which is the subject matter of the present appeal.
22. It is also not in dispute that during the life time of Sri R.P.Shah, he had initiated eviction proceedings against the tenants of the suit schedule property in HRC Nos.172/1980, 173/1980 & 177/1980. In the said proceedings, said Sri R.P.Shah had got himself examined as P.W.2 and his father - Sri P.V.Shah had been examined as P.W.1. Their depositions have been marked as Exs.P-2 and P-3 before trial Court in O.S.No.2699/2002. In the said deposition, it is stated 23 by these two (2) persons that suit schedule property is a joint family property.
RE: POINT NO. (1):
23. It has been contended by respondents-defendants that in view of the findings recorded by Addl.City Civil Judge, Bangalore in O.S.No.3778/1995 dated 15.11.2001 issue regarding the suit schedule property is a joint family property having been adjudicated and answered in their favour, same cannot be gone into in this appeal requires to be considered with utmost circumspection for the reasons stated herein below:
Respondents - plaintiffs had filed a suit in O.S.No.3778/1995 against plaintiffs herein for declaration and possession. On service of suit summons, defendants therein (appellants herein) had appeared and filed their written statements denying the averments made in the plaint and also raising a specific plea to the effect that suit schedule property is a joint family property of plaintiffs, defendants and their father 24 therein. It was also contended by them that suit schedule property was purchased by their father in the year 1973 by contributing money and sale deed was obtained in the name of plaintiff (Sri R.P.Shah) therein to enable him to avail loan from M/s.Dena Bank. It was also contended in the said suit that plaintiffs therein had in an eviction proceedings in HRC Nos.172/1980 c/w 173/1980 & 177/1980 had admitted that suit schedule property belonged to the joint family and this would evidence the fact that defendants therein namely, plaintiffs herein had a share in the suit property. In the light of said assertion made by defendants therein, issue No.4 as extracted herein above, came to be framed by the trial Court and it was answered in the negative by judgment and decree dated 15.11.2001 - Ex.P-5.
Being aggrieved by the said judgment and decree, an appeal was filed in RFA No.452/2002. However, subsequent to the judgment and decree passed by the trial Court, defendants therein namely appellants herein filed a suit O.S.No.2699/2002 (subject matter of present 25 appeal) seeking relief of partition and separate possession of suit schedule property on the ground it is a joint family property. In the pending appeal i.e., RFA No.452/2002, a memo came to be filed by the respondents therein i.e., appellants herein stating that they would not concede the right of appellants therein over the suit schedule property and liberty may be extended to them to agitate and establish their right over suit schedule property in the pending suit i.e., O.S.No.2699/2002 which undisputedly was pending at that point of time. In view of specific plea put forward by the appellants herein to the effect that they will give up defence of resjudicata taken up by them in the suit in question, memo filed by them was taken on record and appeal came to be disposed of in terms of the memo filed by them vide judgment dated 07.12.2005. It has been recorded by the co-ordinate Bench of this Court on memo as under:
1. "The learned counsel for the respondents has filed a memo stating 26 that without conceding the rights of the appellants over the suit schedule property, the above appeal may be disposed off giving liberty to the appellants to establish their rights over the suit schedule property independently in O.S.No.2699/2002 filed by them in the City Civil Court at Bangalore and that the respondents will give up the defence of resjudicata taken by them in the said suit.
2. The said memo is taken on record.
3. Accordingly, the appeal is disposed of in terms of the memo filed by the respondents."
24. Now turning my attention back to the pleadings of present case namely, O.S.No.2699/2002 and in particular, written statement filed by the defendants-1 to 4, at paragraph 12, it has been specifically contended as under:
"12. That both the plaintiffs xxx have become final. That the defendants further submits that the said judgment and decree passed in O.S.No.3778/1995 is binding on the plaintiff and the claims 27 of plaintiff is barred by principles of resjudicate, that the plaintiffs are not entitled under law to reagitate the same matter again. That hence xxx be dismissed."
25. From the perusal of records particularly, the judgment rendered in RFA No.452/2002 disposing of said appeal and plea raised by defendants 1 to 4 in O.S.No.3778/1995 and the plea regarding resjudicata having been specifically given up by appellants herein i.e., defendants 1 to 4 in the present suit, it cannot be gain said that plaintiffs in the present suit would be estopped from reagitating the plea with regard to suit schedule property being joint family property. Issue regarding as to whether suit schedule property is a joint family property or not had not been set at naught by the appellate Court while adjudicating RFA No.452/2002.
Though said issue was under consideration by appellate Court and by the time the appeal was taken up for final hearing, appellants therein have already filed suit for partition i.e., the present suit O.S.No.2699/2002 by 28 raising a plea that suit schedule property is a joint family property. Memo filed by respondents therein came to be accepted by appellate Court and appeal came to be disposed of reserving liberty to appellants therein to raise such plea in the pending suit in O.S.No.2699/2002 i.e., suit in question. It is in this background, appellants have not prosecuted the appeal and also in view of the fact that respondents therein had conceded that defence of resjudicata which was available to them having been given up. Hence, I am of the considered view that point No.(1) formulated herein above has to be answered against the respondents herein i.e., in favour of appellants by holding that plaintiffs - appellants were fully within their bounds to raise the plea about suit schedule property being a joint family property and it cannot be said that such plea was not available to them.
26. Yet another factor which requires to be noticed while answering this point would be, trial Court having 29 noticed this aspect has rightly not framed any issue in the judgment in question though plea of resjudicata had been raised and very much available on record and rightly so, defendants- 1 to 4 also did not seek for re- casting of issues. Hence, respondents - 1 to 4 cannot be heard to contend at this stage that suit of plaintiffs is barred by resjudicata or that defendants - 1 to 4 would be entitled to raise the plea of resjudicata. RE: POINT NO.(2):
27. It has been contended that Sri R.P.Shah - husband of first defendant and father of defendants - 2 to 4 had made a statement in HRC No.173/1980 (Ex.P-
3) stating that suit schedule property is a joint family property and his father Sri P.V.Shah (also father of plaintiffs) had made similar statement in same case which came to be marked as Ex.P-4 stating that suit schedule property is a joint family property and such statement is a relevant statement admissible in evidence 30 under Section 32(3) of Evidence Act and binding on the representatives of such maker.
In order to examine such contention, Section 32(3), illustrations (relevant to facts) thereunder and Section 33 of Indian Evidence Act, 1872 are extracted herein below:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found etc., is relevant:- Statements, written or verbal of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) xxx (2) xxx (3) or against interest of maker:- When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.31
It would be also relevant to extract illustrations (e) and
(f) to consider the rival contentions in the instant case. Hence, they are extracted below:
Illustration (e):
The question is, whether rent was paid to 'A' for certain land.
A letter from A's deceased agent to A saying that he had received the rent on A's account and held it at A's orders, is a relevant fact.
Illustration (f):
The question is, whether A and B were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.
33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-
Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states when the witness is dead or 32 cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided-
That the proceeding was between the same parties or their representatives in interest;
That the adverse party in the first proceeding had the right and opportunity to cross-examine;
That the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of his section."
28. Admissibility of a declaration against interest must be judged at the time when it is tendered in evidence and declaration by a deceased person who appears to have made such statement against his pecuniary interest is admissible, even though obligation 33 recognised by the declaration is only a moral and not a legal or contractual obligation.
29. The words "against the proprietary interest" found in sub-section (3) of Section 32 of the Evidence Act would indicate that it must be primafacie against the interest of the maker, that is to say, the natural meaning of entry standing alone must be recognised which would be against the interest of such person who made it. However, it can be gain said that if such presumption is rebutted by any other cogent evidence and demonstrated that under what particular circumstances and for any extraordinary or particular reason, such statement was made, the evidentiary value that can be gathered from the said written admission which statement has been admitted as evidence under Section 32(3) of the Act can be held as having been destroyed by such rebuttal evidence.
30. Perusal of the above provision would indicate as to what would be the relevancy of the statement made by a 34 person who is dead or cannot be found particularly when such statement is made against his/her pecuniary or proprietary interest or when if found to be true, it would have exposed him to a criminal prosecution or to a suit for damages. A statement made on oath in a judicial proceedings by a person and the admissibility of such statement in any other proceedings or the admissibility thereof and the relevancy of such statement and the extent to which such statement can be relied upon, came to be examined by Hon'ble Apex Court in the case of RAMRATI KUER vs DWARIKA PRASAD SINGH AND OTHERS reported in AIR 1967 SC 1134 and it was held as under:
"13. It is, however, urged that this statement is not admissible and in any case no value should be attached to it, firstly, because it is not proved that Mst.Phuljhari Kuer knew that she was making a statement against her interest, and secondly, because this statement is contradicted by her in her statement in the gift deed of 1953. Under S.32 (3) of the Indian Evidence Act, No. 1 of 1872, a statement of a person who is dead is admissible when the statement is 35 against the pecuniary or proprietary interest of the person making it, or when if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. Now there is no doubt that this statement of Mst.Phuljhari Kuer is against her proprietary interest. Therefore, it would be admissible in evidence under S. 32 (3) as she is dead. Of course, it would not be an admission so far as the appellant is concerned; but it would certainly be a piece of evidence to be taken into consideration. But it is said that before the statement can be admissible it must be shown that the person making it knew that it was against his pecuniary or proprietary interest. In this connection reliance has been placed on Savitri Debi v. Ram Ran Bijoy Prosad, 76 Ind App 255; (AIR 1950 PC 1), where it has been held that "the principle upon which hearsay evidence is admitted under S. 32 (3) is that a man is not likely to make a statement against his own interest unless true, but this sanction does not arise unless the party knows the statement to be against his interest."
This statement of law is based on two earlier English decisions in Tucker v. Oldbury Urban District Council (1912) 2 KB 317 and Ward v. H.S. Pitt.(1913) 2 KB
130. Accepting this to be the correct statement of law with respect to admissibility of statements under S. 32 (3) of the Indian Evidence Act, we may add that the question whether the 36 statement was made consciously with the knowledge that it was against the interest of the person making it would be a question of fact in each case and would depend in most cases on the circumstances in which the statement was made, except when the statement is categorical in terms as for example, "I owe so much to such and such person."
There can hardly be any direct evidence to show that the person making the statement in fact knew that the statement was against his interest and so in most cases knowledge would have to be inferred from the surrounding circumstances.
14. We have, therefore, to see whether Mst.Phuljhari Kuer can be said to have known when she made the statement in 1925 that it was against her proprietary interest. There was no dispute in the family at the time when the statement was made. The law at the time was perfectly clear that a predeceased son's wife had no interest in the property left by her father-in-law, except of course the right to maintenance. There is no reason to suppose that Mst.Phuljhari did not know that by making such a statement she would become the widow of a predeceased son of her father-in-law and if that was so there is no reason to suppose that she would not know the well-established Hindu law that a predeceased son's widow has no interest in her father-in-law's property except for maintenance. In the circumstances once it is held that the statement was not made at the instance of Basekhi Singh, it must follow in the absence of proof that Mst.Phuljhari Kuer did not 37 know the effect of what she had stated that she had made the statement consciously knowing what she was stating and also knowing that the effect of her statement that her husband predeceased her father-in-law, would be against her proprietary interest. We are, therefore, of opinion that the statement in question was made by Mst.Phuljhari Kuer consciously and not at the instance of Basekbi Singh and she must in the circumstances of the case be presumed to know that that statement was against her proprietary interest, for thereby she became the widow of the predeceased son of her father-in-law."
31. It has been contended by Mr.Jayavittal Rao Kolar, learned Sr.Counsel by relying upon the above said judgment that husband of defendant No.1 i.e., father of defendants- 2 to 4 Sri R.P.Shah at an undisputed point of time i.e., in HRC No.173/1980 had tendered his evidence in the said proceedings as a witness i.e., P.W.2 and had admitted that suit schedule property is a joint family property and as such, nothing further requires to be proved with regard to suit schedule property being joint family property. The admission of Sri R.P.Shah in the said HRC proceedings is to the following effect: 38
"I am the petitioner xxx and brothers. Petition schedule property is our joint family property. But the sale deed was taken in my name only as loan was advanced to me by Bank to purchase the property.
At the time of purchase xxx ground floor. We purchased this entire building for accommodation of all of us."
32. Again in re-examination, Sri R.P.Shah has reiterated as under:
"Petition schedule property is our joint family property. That what I meant by saying that it is my own property. My elder brother xxx hence not marked."
33. Under Section 32 of the Act, test of admissibility of statements made by deceased persons are:
(1) the deceased must have had personal knowledge of the facts he was stating;
(2) the facts stated should have been made to the immediate prejudice of the deceased;
(3) the statement must have been to the knowledge of the deceased contrary to his interest; and 39 (4) the interest must be either pecuniary or proprietary.
Such statements made by a person who is dead would definitely amount to an admission. There cannot be any doubt to the proposition that admission is a good piece of evidence and they can be used against its maker and his representatives in interest. Admissions however are not conclusive and unless they constitute estoppel, the maker is at liberty to prove that they are untrue. This can happen only in case of person making the statement is alive and not in case of person who is dead. It is in this background, sub-section (3) of Section 32 of the Act will have to be looked into and when such piece of evidence is sought to be brought on record to substantiate the claim raised in that regard, it would be the onerous responsibility of the Courts to examine as to not only to its admissibility but also its relevancy, circumstances under which such statements having been made, the effect of such statement having been made, consequences flowing there from and steps taken 40 by the beneficiaries of such statement immediately thereafter.
34. In this regard, judgment of Hon'ble Apex Court in the case of BHAGWATI PRASAD SAH & OTHERS vs DULHIN RAMESHWARI KUER & ANOTHER reported in AIR 1952 SC 72 can be looked up which would indicate as to what would constitute an evidence as to separation from a joint family by virtue of statement made by deceased member of the joint family, whereunder it was held as under:
"8. Both the Courts below have discarded the oral evidence adduced by the parties as wholly unreliable and the learned counsel appearing for neither side has invited us to place any reliance on the same. We do not, therefore, think it necessary to refer to the oral evidence at all. His Lordship then adverted to documentary evidence and referred particularly to a registered mortgage bond executed by Imrit in favour of Ram Narain containing the following recital: "I the executant, have been living separately and have been separate in mess from Ram Narain Sahu and Ram Saran Sahu my own nephew for a long time and at the time of separation all the movable and immovable properties were partitioned among all the three parties. Since 41 separation, all business is carried on separately." A question was raised, however, as to whether this statement of Imrit could be legally admissible as evidence. Imrit is undoubtedly dead and Mr. Kunzru, appearing for the respondents, contended that this statement could be admitted in evidence under section 32 (7), Evidence Act. We are not sure that section 32 (7) is really of assistance to the respondents. The particular right, which is the subject matter of dispute before us, was certainly asserted in this transaction but not by it within the meaning of section 13 (a), Evidence Act. We think, however, that the statements could be admitted under section 32 (3), Evidence Act. The statements of a particular person that he is separated from a joint family, of which he was a coparcener, and that he has no further interest in the joint property or claim to any assets left by his father, would be statements made against the interest of such person, and, after such person is dead, they would be relevant under section 32(3), Evidence Act. The assertion that there was separation not only in respect of himself but between all the coparceners would be admissible as a connected matter and an integral part of the same statement vide Blackburn J. in Smith v. Blakey, (1867), 2 Q B.326. It is not merely the precise fact which is against interest that is admissible but all matters that are "involved in it and knit up with the statement." See Wigmore on Evidence, Art. 1465."42
In the above said case, statements of a particular person that he separated from a joint family of which he was a coparcener and he had no further interest in the joint family or claimed to have assets left by his father was held to be a statement against the interest of such person and after such person is dead, they would be relevant under Section 32(3) came to be accepted. It has been noticed in that judgment that it was not merely the precise fact that said statement which was against his interest was held to be admissible evidence but all matters that are involved in it and knit up with such statement was held to be admissible in evidence under Section 32(3).
35. It has been held by the Hon'ble Apex Court in RAMRATI KUER's case referred to supra that statement made by a dead person would no doubt be admissible under Section 32(3) of Evidence Act, since the maker of the statement was dead. However, it was held that it would not be an admission sofaras appellant 43 therein was concerned but it would certainly be a piece of evidence which could be taken into consideration while adjudicating the controversy. The earlier judgment in SAVITRI DEBI vs RAM RAN BIJOY PROSAD reported in AIR 1950 PC 1 was noticed by their Lordships and it was held that principle upon which a hear say evidence is admitted under Section 32(3) is that a man is not likely to make a statement against his own interest, unless true, but this sanction does not arise unless the party knows the statement to be against his interest. It was also held by the Privy Council that there can hardly be any direct evidence to show that person making the statement in fact knew that statement was against his interest and so in most cases, knowledge will have to be inferred from the surrounding circumstances.
36. Thus, a statement made by a dead person though admissible under Section 32(3) of Evidence Act, this Court will have to examine as to the circumstances 44 under which such statement was made and whether said statement would constitute a full fledged admission to enable the person who has based his claim and relied upon such evidence for grant of relief he has sought for. It is in this background, admission of Sri R.P.Shah made in HRC No.173/1980 will have to be examined by this Court.
37. At this juncture itself, it would be apt to note the judgment relied upon by learned Advocate appearing for respondents - Sri Chandan Rao in the case of RAKESH WADHAWAN AND OTHERS vs M/S.JAGADAMBA INDUSTRIAL CORPORATION AND OTHERS reported in AIR 2002 SC 2004 whereunder it has been held that admission is only a piece of evidence and can be examined but it does not conclusively bind a party unless it amounts to an estoppel. It has also been further held that value of an admission has to be determined by keeping in view the circumstances in which it has been made and to whom.
45
38. As already noticed herein above, Ex.P-3 is the deposition of Sri R.P.Shah in HRC No.173/1980 to the effect that suit schedule property is a joint family property. Having said so in his examination-in-chief, he has reiterated the same in re-examination also. This statement has been made by Sri R P Shah on 18.09.1982. It is an undisputed fact that Sri R.P.Shah was the petitioner in HRC No.173/1980 c/w 177/1980 & 172/1980 who had filed eviction petitions against tenants of suit schedule property seeking their eviction on the ground that schedule premises are required for the benefit of family which constituted of himself, his father, brothers and other members of the family. It has also come in evidence that it was purchased by Sri R.P.Shah under a sale deed Ex.P-1 from B.S.Saranappa. In the cross examination dated 18.09.1982 he has stated as under:
"I purchased petition schedule property from Sonnappa."
46It is based on this statement and other admissions already noted herein above, much reliance has been placed on admissibility of said deposition under Section 32(3) of the Evidence Act. It is nodoubt true that said deposition of late Sri R P Shaw which came to be marked as Ex.P-3 is admissible in evidence under Section 32((3) of the Act. However, it does not stop at it, namely, the question would be as to whether the said evidence would constitute sufficient admission to decree the suit?
39. In order to answer this incidental question, pleadings of the parties will have to be looked into. Perusal of the plaint would indicate that total consideration paid for purchase of suit schedule property was Rs.47,500/-. It is an undisputed fact that at the time of purchasing of suit schedule property, husband of first defendant and father of defendants- 2 to 4 was working as an Accountant at Dena Bank and he had applied for a housing loan and had received a 47 sum of Rs.40,000/- as loan from the said Bank. It is the case of plaintiffs as per the plaint averments that remaining Rs.7,500/- plus the registration charges was contributed by both the plaintiffs and they have been maintaining suit schedule property from the date of purchase. Undisputedly, second plaintiff was aged about 13 years as on date of purchase of suit schedule property by late Sri R.P.Shah. This fact is admitted to by second plaintiff in his cross examination dated 15.01.2008. First plaintiff never entered the witness box. On the other hand, one of the sisters of plaintiffs and deceased Sri R.P.Shah was examined on behalf of plaintiffs as P.W.2 namely Smt.Reena M Parekh and she has admitted in her cross examination dated 17.03.2008 to the following effect:
"It is true that my brother R.P.Shah was working in the Dena Bank. It is true that he has taken the loan from his employer and purchased suit schedule property. It is false to suggest that either the plaintiff No.1 and 2 or my father were not contributed any amount for purchasing the suit property."48
(emphasis supplied) In fact, P.W.1 has also admitted in his cross examination dated 15.01.2008 that none of them paid any contribution towards purchase of suit schedule property. His admission reads as under:
"It is true that at the time of the purchase, neither myself nor plaintiff 1 and 2 or our father did not paid any amount towards our contribution. Again I say that at the time of purchase, the contribution was collected from my father. My father at the time of sale deed itself paid Rs.10 to 12 thousands."
(emphasis supplied) Evidence of P.W.1 is to be eschewed with circumspection, inasmuch as, he has given a complete go by to his earlier statement in the cross examination of even date namely, he has stated that he had contributed Rs.12,000/- for purchase of suit schedule property. His specific admission or statement is to the following effect:
"I have contributed Rs.12,000/- for purchase the suit schedule property. Further, I say that at the time of 49 registration of the sale deed, I was not contributed Rs.12,000/- but gradually thereafter from time to time the deceased R.P.Shah has collected Rs.12,000/- from me, every month the late R.P.Shah was collecting the money. Every month he was collecting my full salary of Rs.250/- and out of that he was giving only Rs.10/- for me per month."
This admission and statement of P.W.1 when examined with reference to the pleadings, it can be noticed that both are at variance. Nowhere first plaintiff has pleaded about himself having contributed Rs.12,000/- towards purchase of suit schedule property. But on the other hand, it has been his specific case that deceased Sri R.P.Shah had paid Rs.40,000/- towards purchase of suit schedule property and balance Rs.7,500/- was contributed by both the plaintiffs. Thus, variance between pleadings and evidence is too glaring which cannot be ignored by this Court.
40. The wife of deceased Sri R.P.Shah has entered the witness box and denied the plaint averments. It is nodoubt true that she got married to deceased Sri 50 R.P.Shah on 31.07.1973 i.e., just 15 days prior to the execution of sale deed under which suit schedule property was purchased. D.W.1 being the wife of deceased Sri R.P.Shah, it cannot be held as she would be ignorant of sale transaction and suggestion made to her in her cross examination about major amount of contribution towards purchase of suit schedule property was made by her father-in-law and his two sons having been denied is to be disbelieved. There cannot be any dispute with regard to the proposition that burden lies on the person who asserts a factual aspect. In the instant case, plaintiffs have made valiant attempt to contend that suit schedule property was purchased from out of the joint family funds. Not only the pleadings in this regard is vague, but also the evidence tendered. They are also at cross roads as discussed hereinabove.
41. Yet another intriguing factor which requires to be noticed is that admission of deceased Sri R.P.Shah as 51 per Ex.P-3 was made in the year 1982 i.e., on 18.09.1982. Neither his father nor plaintiffs herein raised the plea of suit schedule property being joint family property till they filed the written statement in O.S.No.3778/1995 which was preceded by legal notice issued by deceased Sri R.P.Shah on 10.02.1995 which has been marked as Ex.P-13. In other words, they have kept quite for 14 long years and they did not assert their right, title and interest over suit schedule property claiming it to be a joint family property or it was purchased out of joint family funds. Their silence is unexplained.
42. The evidence on record also does not indicate about plaintiffs having proved the fact of having contributed any amount much less the amounts claimed by them. Not even an iota of evidence is tendered in this regard, except self serving testimony and plaintiffs are attempting to rely upon the admission of deceased Sri R.P.Shah in HRC No.173/1980 as per 52 Ex.P-3 for grant of relief claimed in the plaint. Plaintiff has to succeed on his own strength and assuming there are any weaknesses in the defence, same cannot be used as crutches by the plaintiff for granting the relief. Though the deposition of Sri R.P.Shah is held to be admissible under Section 32(3), this Court is of the considered view that by itself would not be sufficient evidence to decree the suit for partition on the ground that suit schedule property is a joint family property. No material corroborating the assertion made in the plaint has been tendered by plaintiffs to substantiate their claim that suit schedule property is purchased out of joint family funds. Their silence for long number of years namely, 14 years would also speak about plaintiffs being fully conscious of the fact about deceased R.P.Shah having purchased the suit schedule property and plaintiffs having not contributed any amount much less the one claimed in the suit. Hence, point No.2 formulated herein above has to be answered 53 partly in favour of appellants and partly in favour of respondents.
RE: POINT Nos.3 &4:
43. In the light of discussion made herein above, this Court is of the considered view that judgment and decree passed by trial Court does not suffer from any illegality or irregularity. Evidence tendered by the parties have been properly appreciated and evaluated. There is neither non appreciation of evidence available on record or erroneous appreciation of evidence. In that view of the matter, it cannot be held that judgment and decree passed by trial Court suffers from any patent illegality or irregularity calling for interference at the hands of this Court. Hence, Point No.3 is answered in the negative and Point No.4 is answered against the appellants and in favour of respondents.
44. For the reasons aforestated, I proceed to pass the following:
54
JUDGMENT (1) Appeal is hereby dismissed.
(2) Judgment and decree passed by I Addl.
City Civil Judge, Bangalore in O.S.No.2699/2002 dated 04.02.2009 is hereby affirmed.
(3) Under peculiar circumstances of the case and also in view of the parties being closely related to each other, costs made easy.
(4) Registry to draw the decree
accordingly.
Sd/-
JUDGE
*sp