Gautam Sarup vs Anand Sarup and Others

Hemant Gupta, J.—The challenge in the present revision petition is to the order dated 23.03.2005 passed by the learned trial Court

permitting defendant No.6 to amend her written statement filed earlier on 30.03.2000.

The dispute in the present suit for declaration is regarding the estate of one Shanti Sarup. The plaintiff is claiming the estate of one Shanti Sarup

on the basis of Will dated 23.09.1999 whereas defendants No.1 to 5 are disputing the said Will and, in fact, relying upon holograph Will dated

18.11.1982. The said suit for declaration was filed on or about 03.03.2000 in which defendant No.6 Mrs.Leela Jetly, daughter of Shanti Sarup,

has filed written statement dated 30.03.2000. In the said written statement, the said defendant has admitted that deceased Shanti Sarup was 95

years of age at the time of his death on 05.11.1999 and that he died of heart attack. Still further, execution of Will dated 23.09.1999 is admitted to

have been executed by Shanti Sarup in favour of the plaintiff and defendant No.7. It is also admitted that Shri A.C. Aulock has attested the said

Will as marginal witness along with the said defendant in the presence of executant of the said Will.

On 28.08.2000 defendant No.6 filed an application before the learned trial Court for taking off the record the earlier written statement dated

30.03.2000. The learned trial Court vide order dated 12.09.2001 permitted defendant No.6 to replace her written statement dated 30.03.2000

with a new one. The said order was challenged by the plaintiff before this Court in Civil Revision No.5900 of 2001. The said revision petition was

allowed but a direction was issued to the learned trial Court to hold a fact finding inquiry as to whether defendant No.6 ever engaged Shri

M.P.Vasudeva, Advocate, or ever signed the written statement which has been placed on the record. It was also observed that if the findings are

given against her, it will be open to defendant No.6 to file an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter

to be referred as ""the Code""), for amendment of the pleadings and the said application shall be disposed of by the trial Court.

After the said order was passed, the learned trial Court passed an order on 11.11.2003 wherein it was found that defendant No.6 cannot be

believed when it is alleged that her signatures were obtained by fraud. On the other hand, statement of Shri M.P.Vasudeva that he was engaged by

defendant No.6 as her counsel and the written statement was prepared at her behest cannot be brushed aside. Denial of signatures by defendant

No.6 while giving statement in the court on oath on 20.11.2001 and in her cross-examination on 30.05.2002 was found to be an act of not coming

to the Court with clean hands. As conclusion was drawn that written 5 statement dated 30.03.2000 is filed by defendant No.6. The revision

against the said order was dismissed on 07.05.2004 by this Court. Thereafter, an application was filed for amendment of the written statement on

the ground that the written statement filed by Shri M.P.Vasudeva is against facts. It was alleged that the plaintiff has been adopted by Karam

Narain and as such he ceased to be the heir of his natural father Shanti Sarup. Shanti Sarup has made a legal and valid last Will on 18.11.1982

which was written by him in his own hands. It is further stated that the plaintiff has taken the signatures of the applicant (defendant No.6) on blank

papers and printed forms. The learned trial Court permitted defendant No.6 to amend the written statement which order is subject matter of

present revision petition,

Learned counsel for the petitioner has vehemently argued that by virtue of the amendment, defendant No.6 has sought to withdraw the

admission made in respect of execution of the Will by Shanti Sarup in sound disposing state of mind. It is argued that such amendment in the

written statement completely withdraw the admission made in the earlier written statement which is not permissible. Reliance is placed upon Modi

Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., ; (1994) 2 SCC 29 (SC) Kasambhai F. Ghanchi Vs. Chandubhai D.

Rajput and Others, and M/s. Estralla Rubber Vs. Dass Estate (Pvt.) Ltd., It is pointed out that the judgments referred to by the learned trial Court

in Akshaya Restaurant Vs. P. Anjanappa and Another, has been found to be a judgment per incurium in Heeralal Vs. Kalyan Mal and Others, .

Therefore, the amendment allowed by the learned trial Court is wholly unjustified.

The dispute in the suit is in respect of execution of Will of Shanti Sarup. It is well settled that onus of proof of a Will is always on the person who

propound the Will. Therefore, the onus to prove the Will dated 23.09.1999 is on the plaintiff. Such onus can be discharged by proving the Will by

examining.one of the attesting witnesses as a witness in the Court and by dispelling any suspicious circumstance surrounding the execution of the

said Will. Faced with said well known proposition of law, it needs to be examined whether admission of defendant No.6 in the written statement

regarding sound disposing state of mind, attestation of the Will by the said defendant would prove the due execution of Will or the Will is still

required to be proved by the plaintiff.

What is admitted by a party to be true must be presumed to be true unless the contrary is shown in the principle laid down in Nathoo Lal Vs.

Durga Prasad, . In Nagubai Ammal and Others Vs. B. Shama Rao and Others, it is held that an admission is not conclusive as to the truth of the

matters started therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made.

It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might

become conclusive by way of estoppel.

In Kishori Lal Vs. Mst. Chaltibai, , it was held as under-

It was also submitted that the admissions shifted the onus on to the respondent on the principle that what a party himself admits to be true may

reasonably be presumed to be so and until the presumption was rebutted, the fact admitted must be taken to be established: Chandra Kunwar v.

Narpat Singh, 34 Ind. App. 27. The question of onus loses its efficacy because it was never objected to in the Courts below, and evidence having

been led by the parties, at this stage the Court has to adjudicate on the material before it. And admissions are not conclusive, and unless they

constitute estoppel, the maker is at liberty to prove that they were mistaken or were untrue. Trinidad Asphalt Company v. Coryat, 1896 AC 587.

Admissions are mere pieces of evidence and if the truth of the matter is known to both the parties the principle stated in Chandra Kunwar''s case

(34 Ind. App. 27) would be inapplicable"".

In Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, , Hon''ble Supreme Court held that an admission is the best

evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved

erroneous.

Recently, Hon''ble Supreme Court in Divisional Manager, United India Insurance Co. Ltd. and Another Vs. Samir Chandra Chaudhary, , has

held to the following effect:-

It is, true that evidentiary admissions are not conclusive proof of facts admitted and may be explained or shown to be wrong; but they do raise an

estoppel and shift the burden of proof placing it on the person making the admission of his representative-in-interest. Unless shown or explained to

be wrong, they are an efficacious proof of the facts admitted. As observed by Phipson in his Law of Evidence (1963 Edn., 678) as the weight of

an admission depends on the circumstances under which it was made, these circumstances may always be proved to impeach or enhance its

credibility. The effect of admission is that it shifts the onus on to the person admitting the fact on the principle that what party himself admits to be

true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. An admission

is the evidence that an opposing party can rely upon, and though not conclusive is decisive of matter, unless successfully withdrawn or proved

erroneous...

In the facts of the present case, on the basis of written statement dated 30.03.2000 by defendant No.6 i.e., within one month of filing of suit,

the learned trial Court could not have decreed the suit as the plaintiff has propounded the Will. The admission made by defendant No.6 in the

written statement cannot be used as a proof of Will propounded by the plaintiff although it may not be open to defendant No.6 to raise plea

disputing such Will. On the basis of admission contained in the pleadings, a decree can be passed as contemplated under Order 12 Rule 6 of the

Code and in a suit more than one decree can be passed as well. But in the present case, on the basis of written statement dated 30.03.2000 by

defendant No.6, the suit could not have been decreed as the plaintiff was yet required to prove the due execution of the Will by examining at least

one attesting witness in the Court and to dispel the suspicious circumstances surrounding the Will.

Keeping in view the principles laid down in the aforesaid judgments, I am of the opinion that defendant No.6 has a right to prove that the

admission made in the written statement dated 30.03.2000 is not correct and erroneous. If a person proves that the admission is not binding for

one or more reason, the Court can refuse to take into consideration the admission allegedly made. Such right to prove admission wrongly made

can be exercised only if an opportunity is given to the parties to enter into the play field and to prove such admission as wrong, incorrect and

erroneous. If the amendment is to be declined, an opportunity to prove that the admission is wrong is not even made available which, in my

opinion, would be unjustified.

It may be noticed that the judgment rendered in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., is the facts

of that case wherein the principle laid down in the judgments cited above that the admissions can be proved wrong was not referred to Heeralal''s

case (supra) relies upon earlier decision of the Supreme Court in Modi Spinning''s case (supra) wherein it was held that the said decision was not

brought to the notice of the Bench deciding the Akshaya Restaurant''s case (supra). In Estrqlla Rubber''s case (supra), it was held that a clear

admission made conferring certain rights on a plaintiff is not allowed to be withdrawn resulting in prejudice to such a right of the plaintiff. However,

the decision of the larger Bench as mentioned above was not brought to the notice of the Court when the matter in Modi Spinning case (supra),

Estralla Rubber''s case (supra) and Heeralal''s case (supra) was being considered. Another judgment rendered in Arundhati Mishra''s case (supra)

referred to by learned counsel for the petitioner is not in respect of withdrawal of admission contained in the written statement and, therefore, not

relevant to determine the issue raised in the present petition. This Court in Kehar Singh v. Balraj Singh & Ors., 1991 CCC 419 (P&H) : 1991 PLJ

154 and Gujjar Singh v. Gulzar Singh & Ors., (1991) 100 PLR 266 relying upon the decision of the Hon''ble Supreme Court in Panchdeo Narain

Srivastava Vs. Km. Jyoti Sahay and Another, has held that a party can be permitted to be withdraw the admission of fact. In Panchdeo Narain

Srivastava case (supra), it was held that procedural law is intended to facilitate and not to obstruct the Court of substantive justice. Admission

made by a party can be withdrawn or explained away. Therefore, it was held that by amendment, admission of fact can be withdrawn.

In Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, Hon''ble Supreme Court has held that the object of Order 6 Rule 17 of

the Code is that Courts should try the merits of the case that come before them and should consequently allow all amendments, that may be

necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. It

is further held that Order 6 Rule 17 of the Code consists of two parts. The first part is discretionary and leaves it to the Court to order amendment

of pleading whereas second part is imperative and enjoins the Court to allow'' all amendments which are necessary for the purpose of determining

the real question in controversy between the parties. It was also found that the rule of amendment is essentially a rule of justice, equity and good

conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the

Court. Still further, it has'' been held that while considering whether an application for amendment should or should not be allowed, the Court

should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment

and the merits of the amendment sought are not to be adjudged at the stage of allowing the prayer for amendment.

Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes

underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts

(Reference Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, . In the said case. Hon''ble Supreme Court has permitted a

witness who has deposed one way earlier but had come out before the Appellate Court with a prayer that he is prepared to give evidence which is

materially different from what was given earlier at the trial with the reasons for earlier lapse, it was held that the Court can consider the genuineness

of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accepted.

In the present case, defendant No.6 has sought amendment in the written statement only. She is yet to examine herself as a witness. If in a given

case, the witness can be permitted to examine again on the ground that earlier statement was not proper, the defendant in the present case can very

well be permitted to amend the written statement.

Thus, I am of the opinion that the plaintiff is not prejudiced in any manner while allowing defendant No.6 to amend the written statement. The

burden of proving the Will is to be discharged by the plaintiff in any case. Whether admissions contained in the written statement dated 30.03.2000

were relevant for proof of Will or such admissions were made erroneously or under mistaken belief or misrepresentation or such admissions are

conclusive, are the questions which can be decided only after defendant No.6 is permitted to amend the written statement. It is a disputed question

of fact which cannot be decided at the stage of deciding the application for amendment of written statement whether admissions in the written

statement dated 30.03.2000 are conclusive and binding on defendant No.6 and to what extent.

Therefore, 1 do not find any patent illegality or material irregularity in the impugned order passed by the learned trial Court permitting

defendant No.6 to amend the written statement, which may warrant interference by this Court in exercise of its revisional jurisdiction under Article

227 of the Constitution of India. Dismissed.