Jadho Nagu Bai and another vs Jadho Gangu Bai

Krishna Rao, J.—This is an appeal by the defendants from the preliminary decree made by the Court of the Subordinate Judge, of Kurnool in O. S. No. 25 of 1951, for partition and delivery of possession of the plaintiff''s half share in the suit properties. The plaintiff''s claim was based on her being the 1st defendant''s co-widow, their husband Kedari Rao having died without leaving any male issue about the beginning of 1915.

The 2nd defendant was the purchaser of the plaint A schedule property, consisting of a house at Kurnool, under the safe deed Ex. B-3 executed on 30-10-1944 by the 1st defendant and her daughter Seetha Bai. Various defences were set up but the most important controversy related to the plaint B schedule properties. Items 1 to 18 of these properties consisted of Cinema machinery and equipment of the aggregate value of Rs. 26,200/-.

The remaining item 19 was a lump sum of Rs. 3,000/- stated to be outstandings and cash in the possession of the 1st defendant. This item need not detain us because Sri A. Bhujanga Rao the learned counsel for the plaintiff-respondent concedes that there is no proof whatever for its existence. The lower court''s decree cannot obviausly be supported so far as item 19 of the plaint B schedule properties is concerned.

With regard to items 1 to 18 of the plaint B schedule, the plaintiffs case is that the 1st defendant purchased them with the assets left by Kedari Rao, which comprised outstanding to the tune of Rs. 25,000/- and gold and silver articles and other moveables worth Rs. 5,000/- or Rs. 6,000/-. In the witness box, she and her witness P.W. 2 who spoke from hearsay knowledge swelled up the value of the property left by Kedari Rao to Rs. 40,000/-.

The 1st defendant''s case was that Kedari Rao who had been merely eking out his livelihood as a pleader''s clerk, left a number of debts which had to be discharged by selling her jewels and no assets worth mentioning besides the plaint A schedule house and an Insurance policy for Rs. 1,000/-. The cinema was purchased by and belonged to the 1st defendant''s brother Vittal Rao, who was a cinema technician himself.

Owing to partition disputes between her three brothers, the licence was nominally taken in her name soon after cinema was purchased. But she was merely a name lender and after the disputes between the brothers were settled, the licence was transferred to Vittal Rao in about August, 1950.

The only evidence in support of the plaintiff''s case consists of Exts. A-2 to A-4, containing certain admissions made by the 1st defendant in prior litigation. Ex. A-2 is the written statement made by her on 18-3-1948, in O. S. No. 7 of 1948 filed by her elder brother Subba Rao against her other brothers for partition of their family properties, impleading her as the 4th defendant.

She alleged in paragraphs 4 to 6 of Ex. A-2 that she had purchased the cinema machinery and equipment with her own monies on 26-11-1947 for about Rs. 20,000/-, that she had been married into a rich family at Kurnool and became the heiress to the estate of her husband, that she had been lending large sums of money to other persons and that when she migrated to Proddatur in 1945 she had cash and jewels worth Rs. 20,000/-. Ex. A-3 is the counter filed by her on 2-7-1948 ''in I. A. No. 93 of 1948 in the same suit and the allegations therein are to the same effect.

Ex. A-4 is her deposition as P.W. 1 in O. S. No. 185 of 1947, a suit filed by her to establish her title to a site at Proddatur which has been purchased for Rs. 340/- on 20-3-1929 in the name of one of her brothers Satwaji Rao. She said in the course of her evidence that bar husband had left properties worth about Rs. 20,000/- apart from her own Stridhanam properties and that she had purchased the Cinema from her own funds and was running the cinema business.

It was elicited from her that she had pledged her jewels for raising Rs. 100/- paid as advance for the purchase of the site, a fact which casts some doubt on the affluence claimed by her. However, the learned Subordinate Judge held that in view of her admissions in Exs. A-2 to A-4, it was proved that items 1 to 18 of the B schedule were purchased out of the funds of Kedari Rao who had left outstandings of thevalue of Rs. 20,000/-.

It is contended in appeal that these admissions are not true in fact and were falsely made by the 1st defendant to serve her purpose in O. S. No.7 of 1948, and in O. S. No. 185 of 1947 and that the other evidence adduced by her amply establish, this conclusion.

It is well established that although admissions constitute good evidence against the party making them and his representatives in interest; he is not concluded by them unless they operate as estoppels and that he is at liberty to show that they were mistaken or untrue. This principle has been laid down by the Judicial Committee in Chandra Kunwar v. Chaudhari Narpat Singh, ILR 29 All 184 (PC) (A), and is enacted in S. 31 of the Indian Evidence Act.

Admissions are valuable evidence because as stated in Slatterie v. Pooley, 1840 6 M and W 664 (B), "what a 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. The effect of admissions is merely to shift the onus of disproving them on the party making them unless a plea of estoppel can be successfully invoked.

The evidentiary value of admissions depends upon the circumstances in which they are made and possibility of incorrect statements being misguidedly made by ignorant persons should not be over-looked. If it is proved by other evidence that the facts admitted cannot be true no court of justice will hesitate to give effect to that conclusion.

In the present case, it is not suggested that the 1st defendant''s statements in Exs. A-2 to A-4 have induced the plaintiff to alter her condition and given rise to any estoppel. The 1st defendant''s explanation for Exs. A-2 and A-3 in the witness box is that she was illiterate and put her thumb marks on any papers her brothers asked her.

As regards Ex. A-4 her explanation is that she deposed so at her brother''s instance. It appears that in both the suits she ranged herself against her eldest brother Subba Rao and on the side of her other bothers, one of whom Rama Rao had married her daughter. O. S. No. 185 of 1947 was filed by her against Subbarao and his alienee of the site in dispute. O. S. No. 7 of 1948, as already mentioned, was filed by Subbarao against the other brothers for partition of their family properties.

It appears likely that she had a strong motive to put forward false cases and make false statements Jin both the suits. But obviously she may have an equally strong motive to make false statements in the present suit and to defeat the plaintiff. Her naive explanations that her brothers'' were responsible for her admissions in Exs. A-4 would be no basis for rejecting them as false.

However Sri K. Sivaprasada Rao the learned counsel for the appellants strongly relies on the other evidence adduced in the suit to show that the admissions in Exs. A-2 to A-4 cannot be true. Ex. B-17 is a copy of the plaint in O. S. No. 216 of 1915 on the file of the District Munsif''s Court Kurnool filed on 28-4-1915 by a creditor of Kedari Rao against the 1st defendant and Kedari Rao''s mother to recover about Rs. 377/-from Kedari Rao''s estate.

It is alleged therein that Kedari Rao borrowed Rs. 200/- from the creditor under a promissory note on 27-9-1914 and had borrowed earlier Rs. 150/- under another promissory note on 5-6-1914. Ex. B-14 is the notice of attachment issued by the Court in that suit. It shows that the plaint A schedule house was ordered on 5-5-1915 to be attached before Judgment.

Ex. B-8 is a pledge note and shows that Kedari Rao pledged some jewels on 23-11-1914, with one Chittari Venkataramayya to borrow a sum of Rs. 200/-. The creditor appears to have demanded the amount after Kedari Rao''s death and Ex. B-9 is the reply dated 24-7-1915 sent by the 1st defendant and Kedari Rao''s mother.

They asked for two months'' time for repayment, until they obtained a succession certificate, on the ground that nobody was forthcoming to advance money to them. Ex. B-7 D/- 14-9-1915 is the succession certificate obtained by the 1st defendant and Kedari Rao''s mother. It discloses only three items of debts due to Kedari Rao viz., Rs. 75/- due on a promissory note of 1912, Rs. 8-6-2 due under a Savings Bank Account and Rs. 1000/- due under an Insurance Policy.

In view of Ex. B-7, it seems to us to be very unlikely that Kedari Rao had large outstandings. The jewels pledged with Chittari Venkataramayya were redeemed by paying him Rs. 215/-on 17-9-1916 after the 1st defendant and Kedari Rao''s mother had obtained the succession certificate.

Ex. B-3 is the sale deed executed by the 1st defendant and her daughter Seetha Bai on 30-10-1944 in respect of the plaint A schedule house. The 1st defendant is described therein as living by cooly work, which is consistent with D.W. 2''s evidence that she was eking but her livelihood as a domestic servant. The recitals are that out of the insurance amount of Rs. 1000/-, a sum of Rs. 400/- was spent for the marriage of Seetha Bai, another Rs. 400/- was paid for Kedari Rao''s mother''s maintenance and the remaining Rs. 200/- were utilised to repay the debts due to Chittari Venkataramayya and one Rachuri Narasimhayya.

It is further stated that the 1st defendant had to sell her Stridhana properties to discharge some more debts of Kedari Rap and that she was selling the house for the purpose of her maintenance. No doubt these recitals might have been made at the instance of the purchaser in order to show that there was legal necessity for the alienation. Nevertheless, the recitals are supported to some extent by Exs. B-8 and B-17 which we have already referred to above.

Ex. B-2 is a certified copy of the plaintiff''s deposition on 13-3-1951 in a pauper application filed by her in connection with the present suit. She has alleged therein that she was living in Hyderabad City for the past 30 years and was eking her livelihood by selling milk which she purchased from other persons. She has also admitted in her evidence that even in her notice before suit, she never asked for the income of the cinema business which she claims to have been run by the 1st defendant for their benefit.

The above evidence establishes that shortly before he died, Kedari Rao found it necessary to borrow petty amounts on promissory notes and even by pledging jewels from June 1914 onwards. There is no evidence aliunde to show that he was carrying on any business of money lending. In these circumstances, the natural inference is that he was not possessed of considerable cash or outstandings. The 1st defendant gives out in 1944 in Ex. B-3 that she was living by cooly work.

The plaintiff herself was living in indigence at Hyderabad, ever since her husband''s death. Nevertheless, she did not claim for about 35 years a share in the large amount of outstandings to the tune of Rs. 20,000/- which she alleges to have been left by her husband. She did not also claim a share in the income from the Cinema in her notice before suit. The plaintiffs own. conduct is that entirely inconsistent with. Kedari Rao having left large sums of moneys.

On a careful consideration of these facts, we have no hesitation in coming to a conclusion that the story in Exs. A-2 to A-4 of Kedari Rao having left assets to the tune of Rs. 20,000/- and of the 1st defendant, having purchased the cinema business with her own funds must be false. We are inclined to accept the explanation that she foolishly or misguidedly made the statements in order to support the brothers with whom she sided in the litigation. We therefore reverse the learned Subordinate Judge finding that items 1 to 18 of the plaint B schedule properties belonged to the 1st defendant.

As regards the plaint A schedule house there is ho dispute that it belongs to Kedari Rao''s estate, having been purchased by him under the sale deed Ex. B-5 D/-3-3-1909 for Rs. 130/-. Sri K. Sivaprasadaro does not also dispute the position that even if the sale by the 1st defendant and her daughter under Ex. B-3 is supported by legal necessity, it could not operate to convey any interest possessed by the plaintiff therein as she was not a party to the sale.

But he contends that ever since Kedari Rao''s death, the 1st defendant was in exclusive possession of the house and that the plaintiffs claim to a share therein is barred by adverse possession as she has filed the suit only in 1950. No doubt the plaintiff put forward a case that she was going now and then to Kurnool and obtaining money from the 1st defendant. She claimed to have got Rs. 20/- or Rs. 30/. from the 1st defendant whenever she asked for it and thus been getting the income from the plaint A schedule house.

But there is absolutely no corroboration for her interested oral evidence in this respect and we are therefore unable to believe it. It is clear that the 1st defendant alone was in possession of the house and was residing in it and enjoying it after the husband''s death in 1915. The question is whether her possession was adverse to the plaintiff who was a co-heir along with her.

The law is well-settled that when possession can be referred to a lawful title, it will not he considered to be adverse. A co-owner as such is entitled to be in possession of the property and his possession is, in law, the possession of all the co-owners. It will not be adverse to the co-owners who are out of possession in the absence of ouster i.e., an open and unequivocal repudiation of their title to their knowledge. Mere non-participation in profits of the property by one co-owner and exclusive possession by the other will not lead to an inference of ouster.

There must be some act on the part of the co-owner in possession to the knowledge of the co-owners out of possession which amounts to a denial of the latter''s right vide Cl(sic) Mahamadbhai v. Hasanbhai Rahimtoola, ILR 46 Bom 213 : (AIR 1922 Bom 150) (C) : Godavari Lakshminarasamma Vs. Godavari Rama Brahman and Others, ; and Abdul Kareem Sab Vs. Gowlivada S. Silar Saheb and Another The very first act of the 1st defendant which can be construed as ousted on the facts here was the sale under Ex. B-3 on 30-10-1944. As the suit was filed in 1950, the contention that the plaintiff''s right was barred by adverse possession is untenable.

A defence was also put forward in the Lower Court that the plaintiff was disentitled to a share in her husband property on account of her unchastity. The only evidence adduced by the defendants on the point consisted of Ext? B-15 and B-16 and D.W. 2''s oral testimony. Ex. B-15 is an extract from the birth register of King Edward Memorial Hospital, Secunderabad showing that one Ganga Bai gave birth to a male child on 21-8-1928.

Ex. B-16 is an extract from the Birth register of the Cantonment Authority of Secundarabad showing that one Jan Bux was the father of a child bom in The K. E. M. Hospital on 21-8-1928. D.W. 2 a woman residing at Kurnool says that she saw the plaintiff in the Secundarabad hospital about 22 years ago and that she gave birth to a child there.

But in cross-examination, she said that when she saw the plaintiff it was summer and one month after Yugadi. This is inconsistent with the case put forward by the defendants on the basis of Exs. B-15 and B-16 that the plaintiff gave birth to the child in August, 1928, Ex. B-15 docs not by itself connect the plaintiff with Jan Bux, as Gangabai mentioned therein is common name which may refer to some other woman.

We therefore agree with the learned Subordinate Judge that the evidence deos not establish that the plaintiff was living, in illicit intimacy with Jan Bux or gave birth to an illegitimate child on 21-8-1928. Apart from this the law is that chastity is a condition precedent only for qualifying a widow to succeed to her husband''s estate. But once the property is vested in her by succession, it is not divested by her subsequent unchastity.

There is absolutely no evidence of the plaintiff''s unchastity prior to the death of her husband Kedari Rao and when the succession opened. Even if D. H. 2''s evidence is true and Exs. B-15 and B-16 relate to the plaintiff, they would be of no avail to deprive the plaintiff of her share in her husband''s properties. Learned counsel for the appellant has therefore rightly not pressed before us the defence of the plaintiffs unchastity.

In the result, the appeal is allowed and the lower Court''s decree is set aside as regards the B schedule properties. The appeal is dismissed as regards the A schedule property. As both the parties have failed in part, they will bear their own costs throughout and the plaintiff will he liable to pay the entire court-fee payable on the plaint due to the Government.