Bharath Singh v. Bhagirathi

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Page 1 Friday, April 16, 2021

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(1966) 1 SCR 606 : AIR 1966 SC 405
In the Supreme Court of India

(BEFORE A.K. SARKAR, RAGHUBAR DAYAL AND V. RAMASWAMI, JJ.)
BHARAT SINGH AND OTHERS … Appellant;

Versus
MST. BHAGIRATHI … Respondent.
Civil Appeal No. 423 of 1963* , decided on August 26, 1965
Advocates who appeared in this case :
Bishan Narain, Senior Advocate (M.V. Goswami and B.C. Misra, Advocates, with
him), for the Appellants;
Mohan Behari Lal, Advocate, for the Respondent.
The Judgment of the Court was delivered by
RAGHUBAR DAYAL, J.— This appeal, on certificate, is against the judgment and
decree of the Punjab High Court reversing the decree of the trial court and dismissing
the suit of the plaintiffs for a declaration to that entry in the name of the defendant in
the Jamabandi papers of certain villages was incorrect.
2. The plaintiffs, Bharat Singh and Kirpa Ram, are the sons of Ram Narain. They
had another brother Maha Chand, whose widow is Bhagirathi the defendant. The
plaintiffs alleged that they and Maha Chand constituted a joint Hindu family, that
Maha Chand died as a member of the joint Hindu family and that thereafter Maha
Chand's widow lived with the plaintiffs who continued to be the owners and possessors
of the property in suit, the widow being entitled to maintenance only. They also
alleged that it was by mistake that the defendant's name was mutated in the village
records in place of Maha Chand, who died on September 16, 1925. They further
alleged that the defendant lost her right to maintenance due to her leading an
unchaste life. This contention, however, was not accepted by the courts below and is
no more for consideration. It was on the other allegations that the plaintiffs claimed a
declaration that the entry of the defendant's name in the column of ownership in the
Jamabandi papers was wrong, that they were the owners and possessors of the
property in suit and that the defendant had no right therein. They also claimed a
permanent injunction against the defendant restraining her from alienating or leasing
any of the properties in favour of any person or causing interference of any kind in the
possession of the plaintiffs.
3. The defendant contested the suit alleging that her husband Maha Chand, along
with the plaintiffs, did not constitute a joint Hindu family at the time of his death, that
he was separate from the plaintiffs and that he was living separate from them, that
the property in suit was neither ancestral property nor the property of the joint Hindu
family, that the plaintiffs and Maha Chand were owners of agricultural land as co-
sharers out of which one-third share belonged to Maha Chand and that therefore the
entry in her favour in the Jamabandi papers was correct. She also claimed right to
Maha Chand's share on the basis of custom. This contention, however was not
accepted by the courts below and is not now open for consideration. Bhagirathi further
contended that the suit was not within time as she had become owner and possessor
of the land in suit in 1925. The suit was brought in 1951.
4. By their replication, the plaintiffs stated that Maha Chand had never become
separate from them and that the defendant was not in possession of the property in
suit, the possession being with the plaintiffs of their tenants or lessees.
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5. The trial court held that the parties were governed by the Hindu law unmodified
by any custom, that the joint Hindu family constituted by the plaintiff and their
brother Maha Chand was never disrupted and that Maha Chand died as a member of
the joint Hindu family, that the property in suit was cooparcenery property in the
hands of the three brothers, that the entry of the defendant's name in the Jamabandi
was wrongly made and that the suit was instituted within time as the earliest the
defendant asserted her claim to the land in suit was in 1950. The trial court therefore
granted the plaintiffs a decree for declaration in the following terms:
“1. That the entries in the revenue papers showing the defendant as owner of
one-third share in the suit land are wrong and are not binding on the plaintiffs.
2. That the property in dispute vests in the plaintiff as coparceners.
3. That the defendant's only right in the suit property is one of maintenance and
she is not entitled to alienate it in any way.
The plaintiffs are further granted a permanent injunction restraining the
defendant from alienating the suit property in any way and from causing
interference in the plaintiffs' possession of the property.
The plaintiffs' suit for declaration that the defendant has lost her right of
maintenance in the suit property by unchastity is dismissed….”
6. The defendant appealed to the High Court. It was not contended on her behalf
that the land was ancestral and had descended from Ram Narain to the plaintiffs and
Maha Chand. What was urged before the High Court was that the entry in Maha
Chand's name as owner of one-third share in the Jamabandi and similar entry in
defendant's name after the death of Maha Chand was correct as irrespective of the fact
whether the family was originally a joint Hindu family or not the joint Hindu family
stood disrupted by the conduct of the parties and therefore there was no question of
the plaintiffs' getting the entire property by survivorship. Reliance was placed on the
entries in the revenue records with respect to Maha Chand and the defendant after
him owning one-third share in those properties and about her possession upto 1946-
47 and on the defendant's being impleaded in several suits by the plaintiffs as a co-
plaintiff and in one suit as a defendant. The High Court considered this evidence
sufficient to prove disruption of the joint family as the mutation entries in the revenue
records could not have been obtained by the defendant surreptitiously or without the
knowledge and consent of the plaintiffs and as none of the plaintiffs objected to her
being entered as a co-sharer with them after the death of Maha Chand which showed
that there was no joint Hindu family at the time of the death of Maha Chand. The High
Court also relied on the fact that the plaintiffs had impleaded the defendant as a
plaintiff or defendant in the various suits, as Bharat Singh refused or did not care to
give an explanation why the defendant had been throughout shown as a co-sharer in
those proceedings when actually she was not a co-sharer and was merely entitled to
maintenance. The High Court did not use the admissions of Bhagirathi, defendant, in
certain documents about the existence of the joint Hindu family or a joint Hindu family
firm as she, when in the witness box, was not confronted with those admissions and
as those documents, if read as a whole, did not contain any admissions on behalf of
Bhagirathi that there was any joint family still in existence. The High Court summed
up its view on the question of disruption in the family thus:
“These revenue entries normally do not furnish a very strong evidence of
severance of a joint Hindu family but subsequent conduct of the plaintiffs, as
detailed above, leaves no manner of doubt that there did not exist any joint Hindu
family after the demise of Ram Narain and that Mst Bhagirathi was rightly shown as
a co-sharer in the revenue records.”
The High Court considered the case to have been instituted after the expiry of the
period of limitation but did not base its decision on this finding. The High Court,
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accordingly, allowed the appeal and set aside the decree of the trial court in favour of
the plaintiffs.
7. The sole question for determination in this Court is whether the plaintiffs and
Maha Chand constituted a joint Hindu family at the time of the latter's death. Having
considered the evidence on record and the submissions made on behalf of the parties,
we are of opinion that the trial court took a correct view of the evidence on record.
There is a strong presumption in favour of Hindu brothers constituting a joint family. It
is for the person alleging severance of the joint Hindu family to establish it. It is to be
noticed in the present case that the defendants did not state in the written statement
as to when disruption took place in the joint family. The High Court too has not given
any clear-cut finding with regard to the time when disruption took place in the joint
family. The way it has expressed itself indicates that no joint Hindu family existed
after the death of Ram Narain, father of the plaintiffs and Maha Chand. There is
nothing in the judgment of the High Court as to when severance of the Hindu joint
family took place. The mere fact that mutation entry after the death of Ram Narain
was made in favour of three brothers and indicated the share of each to be one-third,
by itself can be no evidence of the severance of the joint family which, after the death
of Ram Narain, consisted of the three brothers who were minors. Ram Narain died in
1923. Maha Chand died in 1925 and is said to have been about 17 or 18 years of age
then. The plaintiffs were of even less age at that time. There was no reason why just
after the death of Ram Narain the three brothers should have separated.
8. It is true, as the High Court observes, that Bhagirathi could not have
manipulated the mutation entries after the death of Maha Chand surreptitiously. It is
not alleged by the plaintiffs that she got the entries made wrongly in her favour by
some design or undesirable means. There is however nothing surprising if the
mutation entry had been made without the knowledge of the appellants who were
minors at the time. Their minority will also explain the absence of any objection to the
mutation being made in her favour. The way in which the mutation entry was made
does not indicate that the mutation entry was made after notice to the plaintiffs or
their guardian, whoever he might have been at the time, or after any statement on
their behalf that they had no objection to the entry. Exhibits D-7 and D-8 are the
extracts from the Register of Mutations relating to mauza Asoda, Todran Jamnan
Hadbast No. 28, Tehsil Jhajjar, District Rohtak. The entries in column 15 show that the
Patwari of the village reported on November 30, 1925 that Munshi Lal Mahajan had
informed him that Maha Chand had died and that Mst. Bhagirathi was in possession of
the property of the deceased as heir, that mutation by virtue of succession had been
entered in the register and the papers were submitted for proper orders. The Revenue
Assistant passed an order on December 29, 1925 which is in the following terms:
“Bahadurgarh Public Assembly.
Order
Ramji Lal Lambardar, testified in the factums of the death of Maha Chand and
the succession (to him) of Mst. Bhagirathi, his widow. There is no objector. Hence
mutation in respect of the heritage of Maha Chand in favour of Mst. Bhagirathi, his
widow is sanctioned.
Dated the 29th December, 1925.
Signature of:
The Revenue Assistant.”
The order shows that it was made as a result of there being no objection from anybody
to the statement of Ramji Lal, Lambardar, about the death of Maha Chand and
Bhagirathi succeeding him as widow. The plaintiffs, who were minors, may not have
attended the Public Assembly. They being minors could not have understood the
significance of any general notice, if any, issued in that connection and the gathering
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of people. It is not for the Revenue Authorities to make any regular enquiry about the
devolution of title. They make entries for revenue purposes about the person who is
considered prima facie successor of the deceased. A widow would be considered an
ostensible successor to her husband unless it be known that her husband was a
member of a joint Hindu family and the property over which mutation was to be made
was joint family property.
9. We are therefore of opinion that the mere fact of the mutation entry being made
in favour of Bhagirathi on the death of Maha Chand is no clear indication that there
was no joint Hindu family of the plaintiffs and Maha Chand at the time of the latter's
death.
10. Bharat Singh, Appellant 1, instituted 5 suits on behalf of himself, Kirpa Ram
and Bhagirathi. All these suits related to agricultural land. D1, D-2, D-3 and D-4, the
plaints in four of these suits, were in the name of the plaintiffs and Bhagirathi and it
was stated in them that the plaintiffs were the proprietors of the agricultural land in
suit. With respect to the admission in these plaints that Bhagirathi was one of the
proprietors, Bharat Singh stated that he had been including her name in the cases
filed against tenants in accordance with the revenue papers. This is a sound
explanation. So long as an entry in the defendant's name stood in the revenue papers,
suits in Revenue Courts, as these suits were, had to be filed in those names. D-5 is
the plaint of a suit by Bharat Singh and Kirpa Ram instituted on April 6, 1943.
Bhagirathi is impleaded as Defendant 1. Para 1 of the plaint stated that Defendants 2
to 5 were non-occupancy tenants under the plaintiffs and Defendant 1, and para 3
stated that Defendant 1 being absent, could not join the suit and that therefore she
had been made a pro forma defendant. When Bharat Singh made the statement on
November 27, 1953 ‘I do not remember why Bhagirathi was made defendant’, he does
not appear to have been shown the plaint Exhibit D-5. There is nothing surprising if he
could not remember the reason for making her a defendant. Earlier he had already
made a statement on October 3, 1953 that they had been including her name in the
cases filed against tenants in accordance with revenue papers and that explanation,
together with what is entered in the plaint, sufficiently explains for Bhagirathi being
impleaded as defendant in D-5. The High Court was not factually correct in making the
following observation:
“When Bharat Singh came into the witness-box, he was confronted with all these
documents but, strangely enough, he did not care to give any explanation why Mst.
Bhagirathi had throughout been shown as a co-sharer with them in these
proceedings if, in fact, she was not a co-sharer and was entitled only to
maintenance. As a matter of fact, when a pointed question was asked from him
with regard to Exhibit D-5, he stated as follows: ‘I do not remember why Mst.
Bhagirathi was made a defendant.’”
Bharat Singh had given explanation with respect to her being impleaded in these
suits. The record does not show that he was referred to Exhibit D-5 and a pointed
question with regard to what was stated in the plaint had been put to him when he
made the particular statement about his not remembering why Mst. Bhagirathi was
made a defendant. If he had been referred to the plaint, he could have himself, on
reading, given the proper answer, or his counsel would have re-examined him in that
regard.
11. We are of opinion that the High Court was in error in relying on these
admissions of Bharat Singh when he had explained them reasonably.
12. The oral evidence adduced for the defendant to prove separation of Maha Chand
from his brothers, has been rightly described to be worthless by the trial court. No
reliance on that evidence was placed on behalf of the respondent in the High Court.
The evidence consists of the statements of three persons. Munshi Ram, DW 1, brother
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of defendant, who was about 10 years old when Maha Chand died, simply states that
at the time of Maha Chand's death, he was separate from his brothers. He admitted in
cross-examination that this he had learnt from his father. His evidence is hearsay and
is of no value.
13. Giani Ram, DW 3, stated that all the three brothers, Bharat Singh, Kirpa Ram
and Maha Chand had separated in 1923 during the lifetime of Ram Narain himself. The
finding of the High Court is that the disruption of the joint family took place after Ram
Narain's death. Giani Ram does not belong to the family. No reason exists why
disruption of family should have taken place in the lifetime of Ram Narain. The fact
that Ram Narain or his mother are not said to have got any share of the agricultural
land when disruption took place, does not stand to reason. No mutation entry appears
to have been made in the village papers at the time of the alleged partition in the
lifetime of Ram Narain. Giani Ram is much interested in the case of the defendant as
he holds a decree against her. Further, firm Shiv Prasad Giani Ram sued firm Jairam
Das Ram Narain (the family firm of the parties herein) through Bhagirathi for the
recovery of the money the defendant firm owed to the plaintiff firm on the basis of
bahikhatha accounts. Giani Ram, through whom the suit was instituted, and
Bhagirathi entered into an agreement for referring this dispute to arbitration. In this
agreement signed by Giani Ram and Bhagirathi, she was described as proprietrix of
the joint Hindu firm known as Jairam Das Ram Narain. The only explanation for such a
statement occurring in the agreement is given by him to be that the petition writer did
not read over the agreement to him or to Bhagirathi and got their signatures on it
without making them read the agreement. No reliance could have been placed on his
statement.
14. Bhagirathi, defendant, as DW 4, simply stated that when her husband died he
and the plaintiffs were not joint and that they had separated even before her marriage.
She is no witness of the disruption of the family.
15. We are therefore of opinion that the evidence relied on by the High Court for
holding the disruption proved together with the oral evidence led by the defendant
about disruption of the family is insufficient to prove disruption after the death of Ram
Narain and during the lifetime of Maha Chand.
16. It is not necessary to discuss the evidence for the plaintiffs about the family
being joint when Maha Chand died. Suffice it to say that apart from the statement of
Bharat Singh, PW 7, there is other evidence to establish it. Shiv Narain, PW 4, deposed
that when Ram Narain was alive he and his brothers constituted a joint Hindu family
upto the death of Maha Chand and that the joint family continued upto the date he
gave evidence. He was not cross-examined with regard to his statements. Jai Lal, PW
5, deposed to the same effect. In cross-examination he stated that had there been a
son of Maha Chand, he would have got one-third share of Maha Chand and that all the
three brothers had one-third share each in the property. This statement does not
mean that there had been disruption in the family. We do not know in what form the
questions to which these are the answers were put. The answers are consistent with
the fact that had separation taken place during the lifetime of Maha Chand, his share
would have been one-third and that his one-third share would have gone to his son or
that the entries in the village papers would show Maha Chand's son being mutated
over the one-third share of Maha Chand just as Bhagirathi's name was mutated in
place of Maha Chand.
17. Reliance was also placed for the plaintiffs on the admissions of Bhagirathi. The
High Court did not take these admissions into consideration as they were not put to
her when she was in the witness box and as in its opinion the documents containing
the alleged admissions if read as a whole did not contain any admissions on behalf of
Bhagirathi that there was any joint family still in existence.
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18. The legal objection to the consideration of these admissions was based on the
Full Bench decision of the Punjab High Court in Firm Malik Des Raj v. Firm Piara Lal1 .
The view taken in that case was differed to by the Full Bench decision of the Allahabad
High Court in Ajodhya Prasad v. Bhawani Shanker2 . The Punjab High Court based its
decision on the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit3 . That case,
however, did not directly deal with the use of admissions which are proved but are not
put to the person making the admissions when he enters the witness box. The entire
tenor of the documents whose certain contents were construed by the High Court to
discredit the persons making those admissions went to support their case and did not
in any way support the case of the other party. The Privy Council expressed its
disapproval of the High Court minutely examining the contents of the documents and
using its own inferences from those statements to discredit the oral statements of the
persons responsible for making those documents when those persons had not been
confronted with those statements in accordance with Section 145 of the Indian
Evidence Act.
19. Admissions have to be clear if they are to be used against the person making
them. Admissions are substantive evidence by themselves, in view of 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.
20. We are therefore of opinion that the admissions of Bhagirathi which had been
duly proved could be used against her. They were proved long before she entered the
witness box and it was for her to offer any explanation for making those admissions.
The Court could have considered the effect of her explanation. She preferred to make
no reference to her admissions proved by the plaintiffs. Her simple statement that her
husband had separated from his brothers even before her marriage is, by itself,
neither an adequate explanation of those admissions nor a clear-cut denial of the facts
admitted.
21. We have already referred to her admissions in the agreement executed by her
and Giani Ram for referring the dispute in Giani Ram's suit for arbitration in 1946. She
instituted a suit earlier in 1944. The plaint of that suit is Exhibit P-2. She instituted
this suit against the present plaintiffs and stated in para 1 of the plaint that those
defendants and Maha Chand, her husband, were members of a joint Hindu family and
in para 2 that in place of her husband Maha Chand she was then the co-sharer and
owner and possessor of the property of his share and that in this way the plaintiff and
the two defendants were members of the joint Hindu family. In para 3 she stated that
the joint Hindu family mentioned in para 1 held the property mentioned therein and
this property included residential property and the business of two firms. She further
stated in para 4 that Defendants 1 and 2, the present plaintiffs, were running the
business of the firms in the capacity of managers and that she did not want to keep
her share joint in future. She had instituted the suit for partition of the property and
the firms mentioned in para 3.
22. PW 2, clerk of Shri Inder Singh Jain, pleader, scribed this plaint and has
deposed that the pleader had prepared the brief in accordance with the instructions of
Bhagirathi and that he had written out the petition and plaint and that it had been
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read out to her. He denied that the thumb marks of Bhagirathi were secured on a plain
paper and that the plaint was written later on. This suit was withdrawn.
23. Again, in 1950, she instituted another suit against the present plaintiffs and
one Har Narain, for a certain declaration. In para 1 of the plaint it was stated that the
three shops mentioned therein belonged to the joint Hindu family firm Jairam Das
Ram Narain in Narela Mandi, Delhi State. The plaint is Exhibit P-1. Shri M.K. Madan,
Advocate, PW 1, has deposed that the plaint was got written by Bhagirathi, that a
portion of the plaint was in his handwriting and that it was read over to her and that
she put her thumb mark on it after having heard and admitted its contents. He also
stated that the suit was subsequently withdrawn.
24. We are of opinion that the evidence of the plaintiffs on record establishes that
there had been no disruption between the plaintiffs and Maha Chand and that Maha
Chand died as a member of the joint Hindu family. It follows that the entries in the
Jamabandis showing Bhagirathi as the owner of one-third share are wrong and that
the decree of the trial court is right.
25. The question of limitation may be briefly disposed of. There is no good evidence
on record to establish that the respondent, prior to 1950, asserted that she had any
right adverse to the plaintiffs over the property in suit or that she acted in any manner
which would amount to an ouster of the plaintiffs. Admittedly the dispute between the
parties arose sometime in 1944. Prior to that there could be no reason for her acting
adversely to the interests of the plaintiffs. It was really in about 1950 that she leased
certain properties and transferred certain plots and soon after the plaintiffs instituted
the suit. The suit is clearly not barred by limitation.
26. We therefore allow the appeal, set aside the decree of the Court below and
restore the decree of the trial court. We further direct the respondent to pay the costs
of the appellants in the High Court and this Court.
———
*Appeal from the Judgment and Decree dated 9th November, 1959 of the Punjab High Court in Regular First
Appeal No. 151 of 1954.
1
AIR 1946 Lah 65
2
AIR 1957 All I
3
LR 42 IA 135
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Bharath Singh v. Bhagirathi

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SCC Online Web Edition, Copyright © 2021

Page 1 Friday, April 16, 2021

(1966) 1 SCR 606 : AIR 1966 SC 405

In the Supreme Court of India

BHARAT SINGH AND OTHERS … Appellant;

1950-2020, © EBC Publishing Pvt. Ltd., Lucknow.

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