Brundaban Sahu vs Chaitanya Sahu and Others

S. Acharya, J.—The Petitioner has preferred this appeal against the judgment and decree passed by the Additional District Judge, Puri, in Title Appeal No. 17/74 of 1971/70, reversing the decision of the Subordinate Judge, Bbubaneswar in Original Suit No. 14/69-1.

The Petitioner''s case in short is that Defendants 2 and 3 are two brothers and they partitioned their family properties amicably in 1952 and in that partition Defendant No. 3 got 71 decimals of land on the north-west corner of plot No. 204 and possessed the same exclusively along with the 121 decimals of land which he purchased from another person by a registered sale deed dated 1-4-1953. The said 121 decimals of land in course of time increased to an area of 14 decimals and the aforesaid 71/2 decimals of land diminished to 6 decimals. Defendant No. 3 thus owned and possessed 20 decimals of land in plot No. 204. The Petitioner purchased the said 20 decimals of land from Defendant No. 3 for Rs. 2500/- by a registered, sale deed dated 17-2-1969. Defendant No. 1, being in inimical terms with the Petitioner, fraudulently obtained from Defendant No. 2 a nominal sale deed for 10 decimals of land on 21-3-1969, out of the above-mentioned 20 decimals of land owned and possessed by Defendant No. 3. Defendant No. 2 on realising his mistake in selling lands belonging to Defendant No. 3 to Defendant No. 1, cancelled the said sale deed on 25-3-1969. But even then Defendant No. 1, on the purported exercise of his right under the sale deed dated 21-3-1969, threatened the Petitioner and demolished the boundary wall raised by the Petitioner on the suit land. Hence this suit by the Petitioner for declaration of his title to and confirmation or in the alternative for recovery of possession of the suit land as specifically described in the schedule and the sketch map attached to the plaint. The Petitioner has also prayed for a permanent injunction restraining Defendant No. 1 from interferring with the Petitioner''s possession.

Defendants 2 and 3 have not contested the suit and have been set ex parte:

Defendant No. 1 in his written statement has inter alia averred that Defendants 2 and 3 were joint in mess and property till 1968, and the suit property was purchased before partition in the name of Defendant No. 3 with the joint family fund and the, said property, since the date of the purchase, was being treated as the joint family property of Defendants 2 and 3. From 1968 Defendants 2 and 3, the two brothers, lived separately and enjoyed the family properties in equal halves. As Defendant No. 1 had no access to the village road from his house except through the suit land and Defendant No. 2 was in need of money, the latter transferred the suit land to Defendant No. 1 for Rs. 2000/- on 21-3-1969 by a registered sale deed. Defendant No. 1 further states that he was not aware that the Petitioner had purchased the suit land. According to him the sale in favour of the Petitioner was a nominal one and was created to put Defendant No. 1 in trouble.

The trial Court held that there was a partition between Defendants 2 and 3 in 1965. With regard to the Petitioner''s claim that he exclusively purchased the aforesaid 12 1/2 decimals of land on 1-4-1953, it held that the said land was purchased in the name of Defendant No. 3 out of the joint family funds of Defendants 2 and 3, and that the same was acquired before the partition between the two brothers and it was then treated as a joint family property. It also held that the suit property fell to the share of Defendant No. 3 in the family partition between the two brothers in 1965, and so the Petitioner by purchasing the said property from Defendant No. 3 acquired good right, title and interest in the suit property. On the above findings, the trial Court declared the Petitioner''s right, title and interest over the suit property and directed Defendant No. 1 to vacate possession of the suit land in favour of the Petitioner, and on his failure to do so, it decreed, that the Petitioner would recover possession of the suit property through Court. Defendant No. 1 was permanently restrained from interfering with the Petitioner''s possession of the suit land.

On appeal by Defendant No. 1 the appellate Court held that the alleged partition between Defendants 2 and 3 could not be established on the evidence on record, and that on the description given in the plaint the suit land was not properly identifiable. As the Court found that there was no partition by metes and bounds between Defendants 2 and 3 it held that the Petitioner did not acquire any title to the suit property by purchasing the same only from Defendant No. 3. Mainly on the above-mentioned findings the appellate Court set aside the judgment and decree of the trial Court and dismissed the Petitioner''s suit with costs. Hence this appeal by the Petitioner.

The moot question to be decided in this case is whether there was a partition of the joint family property between Defendants 2 and 3 as alleged by the Petitioner, and if there was a partition whether the suit property fell to the share of Defendant No. 3 in the said partition. It is the concurrent finding of fact of both the Courts below that the suit property was acquired by the joint family funds and as such it was the joint family property of Defendants 2 and 3. The trial Court held that previous to the aforesaid sale of the suit land by Defendant No. 3 in favour of the Petitioner there was a partition between Defendants 2 and 3 of their joint family properties and in that partition the suit property fell to the share of Defendant No. 3. The appellate Court, however, has disagreed with the said finding of partition, and in arriving at the said finding it has very much been influenced by its own conclusion that as Exts. 2 and 2/a, two previous mortgage deeds, were not proved in accordance with the provisions of Section 68 of the Evidence Act, they are inadmissible in evidence and so the recital contained therein to the effect that there was a partition between Defendants 2 and 3 cannot be taken into consideration.

Certain admitted and undisputed facts in connection with the said two documents must be noted. The said two documents were exhibited in this case without any objection from any side. No objection was taken to the admissibility of these documents at any stage in the trial Court. Ext. 2 was executed by Defendant No. 3 on 3.7.1967 in favour of Krushna Behera who has been examined as p.w. 2 in this case. Defendant No. 2 figures as one of the two attesting witnesses to the said document Ext. 2/a was executed by Defendant No. 2 on the same day (3.7.1967) in favour of the sasd Krushna Behera (p.w. 2), and it this document Defendant No. 3 figures as one of die two attesting witnesses. Neither Defendant No. 2 nor Defendant No. 3 has questioned the genuineness of the said documents.

Apart from the above factual aspect, it is to be noted that the subject matter of the suit is not founded on these two documents, but these two documents have been filed only to utilise the admission of Defendants 2 and 3 in the said-documents that there was an amicable partition, between the two and that they were in separate possession of their respective shares after the said partition. So these documents are utilised by way of evidence to substantiate a particular assertion of the Petitioner. No objection seems to have been raised in the trial Court with regard to either the genuineness of the documents or their admissibility due to want of proof of attestation as required u/s 68 the Evidence Act. The validity of these two documents as deeds of mortgage is nut in question In this suit. This is not a suit to enforce the mortgage. The documents are produced in evidence not as mortgage deeds, but are produced only to prove certain collateral averments contained, therein. In, the suit there is no question as to whether these documents create any mortgage or not.

The appellate Court discarded these documents from consideration as according to it Defendant No. 1 did not admit the execution and attestation of these documents, and that the attestation of the documents was not proved as per the provisions of Section 68 of the Evidence Act.

Apart from the question as to whether in this case these two documents were required to be proved in accordance with the provisions of Section 68 of the Evidence Act. which question shall be considered later in this judgment, it is to be seen that both these documents are registered documents and so on any consideration, only the proviso to Section 68 of the Evidence Act applies to these documents. Moreover, the execution of the said deeds has not been denied by the persons, i.e. Defendants 2 and 3, by whom these deeds are purported to have been executed. Defendant No. 2, examined as d.w 3, has admitted the execution of Ext. 2/a. Defendant No. 1, who can be said to be interested in disputing the execution of the said documents, has not denied the execution of these documents. There is nothing definite to show, that any of the attesting witnesses was alive or was subject to the process of the Court during the trial of the suit. If Defendant No. 1 would have taken objection to the admissibility of these documents at the proper time, then the question of the availability of an attesting witness could have been gone into at the trial stage. P.w. 1, the scribe of the said two documents, has testified to the fact that the executants, i.e. Defendants 2 and 3, were both present when each of them executed the respective deeds, and that they were aware of the contents of the same. P.w 2. ,the mortgagee under the deeds, has also corroborated the evidence of p.w. 1 to the above effect. P.ws. 1 and 2 have testified to the fact that Exts. 2 and 2/a were executed respectively by Defendants 3 and 2. The documents show that Defendant No. 2 signed the deed executed by Defendant No. 3 and vice versa. They both identified each other at the time of the registration of the deeds.

Apart from the above considerations, I am of the view that these documents are not required to be proved in strict compliance with the provisions of Section 68 of the Evidence Act, as these documents are not the foundation of the suit but are referred to merely as pieces of evidence for the purpose of proving the fact that there was an amicable partition between Defendants 2 and 3, the two brothers, and thereafter the properties which fen to their respective shares, including the properties later mortgaged by each of them by the said documents, were in their exclusive possession separately. As these documents are not the foundation or the basis of the Petitioner''s title to the suit land and are sought to be utilised for the purpose of proving certain collateral facts as stated above, it was not necessary for the Petitioner to prove these documents in accordance with the provisions of Section 68 of the Evidence Act. Non-compliance with the provisions of Section 68 of the Evidence Act, therefore, would not prevent the document from being used in evidence for the collateral purpose mentioned above. I am of the opinion that the admissions of Defendants 2 and 3 contained in Exts. 2 and 2/a are to be proved in the ordinary manner, for I do not see any reason why an admission in a document of this nature should require a different kind of proof from similar statements in other documents. In the Division Bench decision reported in Pt. Shyam Lal v. Lakshmi Narain and Ors. AIR 1939 All it has been held:

The mere fact that on of the documents requires to be executed with attestation and that attestation must be proved for the purpose of giving legal effect to the document does not appear to have any bearing on the question as to what proof should be given of the document where it is tendered merely to prove an admission in writing.

It has been held in the above-mentioned case that Section 68 of the Evidence Act does not apply to the case of a document which is merely to be proved for the purpose of an admission. The above view has been reiterated by another Division Bench decision of the same Court in Mahadeo Prasad v. Ghulam Mohammad AIR 1947 All. 161.

Mr. Mohanty, the learned Counsel for the Respondents, however, cited a single Judge decision reported in Bharath Singh and Anr. v. Sheodat Sharma and Ors. AIR 1926 Oudh. 266, wherein it has been held:

No distinction should be drawn between documents which are the basis of the suit and those whose'' production is required for collateral purpose so far as their admissibility in evidence is in question.

Mr. Mohanty has also cited the decision reported in Sahib Chandra Singh and on his Death His Rears and Legal Representatives, Sudhanya Kumar Singh and Others Vs. Gour Chandra Paul and Others, which also holds the same view.

The above-mentioned Oudh decision has been arrived at merely on a reference to a previous decision of the same Court reported in Awadh Ram Singh and Ors. v. Mahbub Khan and Ors. AIR 1924 Oudh. 255, and in both these decisions there is no discussion of the law on the subject in all its aspects. In Pt. Shyam Lal Vs. Lakshmi Narain and Others , the Hon''ble Judges, on good and convincing reasons have expressly dissented from the view on this topic taken in the above-mentioned Calcutta case cited by Mr. Mohanty. In Pt. Shyam Lal Vs. Lakshmi Narain and Others the matter has been discussed at great length with reference to various decisions on the subject, and with respect I prefer to follow the decision on this topic in Pt. Shyam Lal Vs. Lakshmi Narain and Others .

On the above view of the matter and as the present suit is not based or founded on Exts. 2 and 2/a and these documents have been filed merely for a collateral purpose, i.e. to prove certain admissions contained in the said deeds, they need not be proved with the formalities prescribed in Section 68 of the Evidence Act. The Court below accordingly erred in law in not taking into consideration the above-mentioned admission contained in Exts. 2 and 2/a merely on the ground that its execution and attestation had not been proved in accordance with the provisions of section of the Evidence Act.

The above-mentioned documents being admissible in evidence, one cannot lose sight of the admissions made therein by Defendants 2 and 3 that there was a partition between Defendants 2 and 3 prior to 1967, and thereafter each of them was in separate enjoyment and possession of the property which fell to his share and that the suit property fell to the share of Defendant No. 3.

The evidence to that effect contained in these documents is of immense probative effect and value and the same is not assailed in any manner. Moreover, these two documents came into existence, prior to the existence of the cause of section for the present suit. Naturally therefore one would attach importance to the said admissions contained in those documents.

The above documentary evidence regarding partition between Defendants 2 and 3 prior to 1967 gets ample support from the oral evidence or record. P.w. 2, the mortgagee under the said two documents, has deposed that Defendants 2 and 3 borrowed some amounts from him by separately mortgaging the lands in their separate possession. P.w. 3, who owns land adjacent to the suit land, has testified to the fact that the suit land was in exclusive possession of Defendant No. 3 before he transferred the same to the Petitioner. P.w. 3 has also deposed that the partition between the two brothers took place about five years before his deposition in the Court. So the partition, according to him, took place some time in 1965. Defendant No. 2 (d.w. 3) without contesting the suit ultimately appeared as a witness for Defendant No. 1. He too has stated that he and Defendant No. 3 were separate in mess and" estate, but according to him they separated only about 2 years prior to his deposition in Court i.e. in the year 1968. It is difficult to place reliance on his evidence regarding the year of partition as he admits the execution of the aforesaid mortgage deed (Ext. 2/a dated 31-7-1967) ''wherein he has specifically admitted about prior partition between he two brothers and separate possession over their own respective shares. Moreover, very soon after executing the sale deed Ext. A in favour of Defendant No. 1, he cancelled that sale deed by executing the deed of cancellation Ext. 3.

In Ext. 3 again there is a clear and categorical admission of Defendant No. 2 (d.w. 3) that the property sold by him in favour of Defendant No. 1 as per Ext. A had fallen exclusively to the share of Defendant No. 3 in the amicable family partition between himself and Defendant No. 3. It is also stated therein that he (Defendant No. 2), being lured by tendentious persuasions and false temptations of Defendant No. 1 and without understanding his mischievous designs, executed the sale deed (Ext. A) in respect of the suit property in favour of Defendant No. 1 without any consideration.

Defendant No. 2 has not denied the execution of Exts. 2/a and 3, but merely states that he executed the same without knowing and/or understanding the contents and implications of the same. It is difficult to believe his evidence to this effect. Both the said documents are in Oriya and Defendant No. 2 has appended his signature to the same in Oriya. Moreover, it is difficult to believe that a man who after executing the sale deed Ext. A on 21-3-1969 took steps for the cancellation of the same by executing the cancellation deed Ext. 3 on 25-3-1969, did not know the contents of all the aforesaid documents. From the tenor of his deposition and the manner in which he has answered questions in cross-examination he does not appear to be a simpleton. The averments in Exts. 2/a and 3 to the effect that the suit property fell to the share of Defendant No. 3 in the family partition between Defendants 2 and 3 get support from the evidence of other witnesses and also the admission of Defendant No. 3 in Ext. 2 as stated above. Defendant No. 2 has signed Ext. 2 as mentioned above.

On a proper construction and consideration of the above-mentioned documentary evidence along with the oral evidence on record I am satisfied that a partition between Defendants 2 and 3 had taken place some time before 1967, and that the suit property fell to the share of Defendant No. 3 in the said partition and he was in possession of the same. Accordingly the finding of the appellate Court on this aspect of the matter, which was arrived at without considering the contents in Exts. 2 and 2/a, cannot be upheld and is hereby set aside.

Once it is held that the suit property fell to the share of Defendant No. 3 in a partion which took place before 1967 and he was in possession of the same it would necessarily follow that the sale of that property effected by him as or Ext. 1 in favour of the Petitioner on 17-2-1969 is valid and it conferred good right, title and interest on the Petitioner. Accordingly, the Petitioner''s suit has to be and is hereby decreed; his title to the suit land is declared; and it is also declared that the Defendants have no manner of right, title and interest in the suit property. Defendant No. 1 is hereby directed to vacate possession of the suit property in favour of the Petitioner within a month hence, falling which the Petitioner shall recover possession of the suit property through Court. Defendant No. 1 is also permanently restrained from interfering with the Petitioner''s possession of the suit land in any manner.

In the result, therefore, the judgment and decree of the lower appellate Court are set aside and the second appeal is allowed, but in the circumstances there will be no order as to costs.