Full Judgment Text
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ND
DATED THIS THE 22 DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1971/2018 (PAR)
BETWEEN:
D LINGEGOWDA
AGED ABOUT 77 YEARS
S/O LATE DEVEGOWDA
RESIDING AT BOOVALLI
SATHANUR HOBLI,
KANAKAPURA TALUK
BANGALORE DISTRICT-562117.
… APPELLANT
(BY SRI H C SHIVARAMU, ADVOCATE)
AND:
1 . SMT. GOWRAMMA
AGED ABOUT 86 YEARS
W/O LATE M C PUTTASWAMY
[R1 DIED, R2 & R3 ARE LRS BY
ORDER DATED 18.02.2020]
2 . NAGESHA
AGED ABOUT 46 YEARS
S/O LATE M.C.PUTTASWAMY
RESPONDENT NOS.1 AND 2 ARE
RESIDING AT PALACE QUARTERS,
NO.1424, PEER KHAN STREET
NAZARBAD MOHALLA
MYSORE – 570023
R
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3 . P. NARAYANA
AGED ABOUT 61 YEARS
S/O LATE M.C.PUTTASWAMY
RESIDING IN QUARTERS NO.585
ST. MOHANDAS TULASIDAS
HOSPITAL PREMISES, J L B ROAD,
MYSORE - 570023 … RESPONDENTS
(BY SRI VINAY N, ADVOCATE FOR
SRI MANMOHAN P N, ADVOCATE FOR C/R3;
R1 – DECEASED
SMT. SINCHANA M R, ADVOCATE FOR R2)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 11.07.2018
PASSED IN R.A.NO.54/2016 ON THE FILE OF THE III ADDL.
DISTRICT JUDGE, MYSURU AND ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.06.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
J U D G M E N T
This second appeal is filed challenging the judgment
and decree of reversal passed by the First Appellate Court
in R.A.No.54/2016 on 11.07.2018 granting the relief of
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partition and separate possession of 1/3 share in the suit
schedule property in favour of the plaintiff.
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2. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for respondent
Nos.2 and 3.
3. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for
the convenience of the Court.
4. The factual matrix of the case of the plaintiff
before the Trial Court that defendant No.1 is the mother
and defendant No.2 is the brother of plaintiff. The suit
schedule property is a site and the same was allotted in
favour of his mother on account of death of his father in
recognizing the service rendered by his father. Hence, the
same is the property of the family and not the exclusive
property of his mother and the same is a joint family
property of himself, defendant Nos.1 and 2. Defendant
Nos.1 and 2 are not having exclusive right to sell the
property and hence, the plaintiff is entitled for the relief of
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partition and separate possession of his 1/3 share.
Defendant No.1 filed written statement supporting the case
of the plaintiff contending that defendant No.2 i.e., another
son of defendant No.1, fraudulently obtained the signature
of her on the sale deed saying that he requires the
document to avail loan. Defendant No.3 appeared and filed
written statement contending that he is the bonafide
purchaser of the suit schedule property and there are other
joint family properties other than the suit schedule property
and the same have not been included in the suit hence, the
suit is not maintainable as it is a suit for partial partition. It
is also contended all the documents stands in the name of
defendant No.1.
5. The Trial Court having considered the pleadings
of the parties framed the following Issues:
1. Whether the plaintiff proves that the suit
schedule property is the ancestral and joint
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family property of plaintiff and defendant Nos.1
and 2?
2. Whether the defendant No.3 proves that there
are other joint family properties other than the
suit schedule property?
3. Whether the defendant No.3 proves that he is a
bonafide purchaser of the suit schedule property?
4. Whether the defendant No.3 proves that the suit
is not maintainable as it is a partial partition suit?
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5. Whether the plaintiff proves that she has 1/3
share over the suit schedule property?
6. Whether the plaintiff is entitled for relief sought
in the plaint?
7. What order or decree?
ADDITIONAL ISSUE:
1. Whether the first defendant proves that the sale
deed dated 18.01.2001 was got executed by the
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2 defendant under the circumstances pleaded in
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para 11 of the written statement and the same
does not bind her?
6. The Trial Court having considered the pleadings
of the parties, allowed them to lead their evidence. In
order to prove the case of the plaintiff, he himself examined
as PW1 and got marked the documents at Ex.P1 to P10.
On the other hand, defendant Nos.1 and 3 have examined
themselves as DW1 and DW2 respectively and got marked
the documents at Ex.D1 to D20. The Trial Court having
considered both oral and documentary evidence placed on
record answered Issue No.1 as affirmative and answered
Issue No.2 as negative coming to the conclusion that
defendant No.3 is the bonafide purchaser of the suit
schedule property and answered Issue No.3 as affirmative
and Additional Issue is answered as negative and remaining
other Issues are also answered as negative. Accordingly,
dismissed the suit.
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7. Being aggrieved by the judgment and decree of
dismissal of the suit, an appeal was filed by the plaintiff in
R.A.No.54/2016. The First Appellate Court considering the
grounds urged in the appeal memo, formulated the
following Points:
1. Whether the Trial Court was correct in holding
that the suit schedule property is the absolute
property of defendant No.1, in which plaintiff
does not have a share?
2. Whether the plaintiff is entitled to seek partition
in the suit schedule property and if so, to what
share?
3. Whether I.A. filed by the plaintiff/appellant
under Order 41 Rule 27 of CPC deserves to be
allowed?
4. Whether the impugned judgment and decree
calls for interference?
5. What order?
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8. The First Appellate Court on re-appreciation of
both oral and documentary evidence placed on record
comes to the conclusion that the Trial Court was not correct
in holding that the suit schedule property is the absolute
property of defendant No.1 and the plaintiff is entitled for
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1/3 share in the suit schedule property and dismissed the
application filed under Order 41 Rule 27 of CPC and held
that the judgment and decree of Trial Court requires
interference and affirmed that the judgment of the Trial
Court with regard to the suit is not maintainable for partial
partition.
9. Being aggrieved by the judgment and decree of
First Appellate Court, the present appeal is filed by
defendant No.3. The learned counsel appearing for the
appellant/defendant No.3 would vehemently contend that
the First Appellate Court failed to consider that the suit
schedule property was allotted in the individual name of
defendant No.1. Hence, it is the self-acquired property of
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defendant No.1 and she has the absolute right to alienate
the same in favour of defendant No.3. The counsel further
contends that the First Appellate Court failed to consider
the fact that the suit in question is a collusive suit. The
evidence though reveals that the family is holding one more
property as a joint family property and in the said property
only defendant No.1 is residing. The plaintiff in collusion
with defendant No.1 and 2 has deliberately not included the
said property in the suit and the suit was filed only against
the property in question in order to defeat the right of
defendant No.3. The counsel would vehemently contend
that the First Appellate Court failed to consider the fact that
defendant No.3 in written statement has specifically
contended that the family owns one more property bearing
No.1424 situated at Peer Khan Road, Nazarbad Mohalla,
Mysuru. The said property is not included in the suit and
hence, the suit is not maintainable for partial partition. The
counsel further contends that though defendant No.1
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admits in her evidence that the said property belongs to her
husband and she is residing in the said property only, the
First Appellate Court rejected the said contention on the
ground that defendant No.3 has not produced any
document in support of the same. The counsel also would
vehemently contend that voters list produced in support of
the claim and the admission of defendant No.1 overlooked
by the First Appellate Court. Hence, this Court has to frame
the substantial questions of law.
10. This Court while admitting the appeal framed the
following substantial question of law:
‘Could the appellate Court have decreed the suit
without considering the appellant’s defence that
the suit by the respondent No.3 was for partial
partition and therefore, impermissible in law.’
11. The learned counsel appearing for the appellant
in his arguments would vehemently contend that the Trial
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Court rightly dismissed the suit of the plaintiff but the same
is reversed by the First Appellate Court. The counsel also
would vehemently contend that when the appellant had
taken the specific defence in the written statement in
paragraph 4 that the Trial Court rightly framed the Issue
No.2 as whether the defendant No.3 proves that there are
other joint family properties other than the suit schedule
property and also framed Issue No.4 as whether defendant
No.3 proves that the suit is not maintainable as it is a
partial partition suit but committed an error in answering
those Issues as negative though discussed and failed to
consider the admission on the part of PW1 and DW1. The
very contention of the defendant No.3 before the Court that
non-inclusion of other property bearing No.1424, the suit
itself is not maintainable. The counsel also would
vehemently contend that though both the Courts have
discussed the said issue but committed an error in
answering as negative when there is a clear admission on
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the part of both PW1 and DW1. Hence, the very approach
of both the Courts is erroneous, when there is a clear
admission on the part of both the witnesses. Section 58 of
the Indian Evidence Act is very clear that admitted fact
need not be proved. The counsel also brought to notice of
this Court that immediately after the notice given by the
plaintiff to his mother, she has given reply in terms of Ex.P9
wherein she has categorically stated that consideration was
given to the plaintiff also and the same is not disputed. The
counsel submits that there is an ample material to show
that it is a collusive suit. Inspite of it, the Courts committed
an error in not considering those materials.
12. Per contra, the learned counsel appearing for the
respondent No.3/plaintiff would vehemently contend that
there is no any admission that the suit property belongs to
the family and the counsel would vehemently contend that
no doubt, there is an admission with regard to residing in
the said property but they are residing as tenants. The
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counsel also contended that though mother admits the
possession, not produced any documents to prove the same
and in the evidence of mother also there are variations and
hence, the evidence of the mother cannot be relied upon.
13. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material on
record as well as considering the substantial question of law
framed by this Court, this Court has to analyse the material
on record since there is a divergent finding and this Court
has to see whether there is any perversity in the finding of
the First Appellate Court since the First Appellate Court
reversed the finding of the Trial Court and granted the relief
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of 1/3 share in favour of the plaintiff. Admittedly, the suit
schedule property which was sold by defendant No.1,
defendant No.2 is a consenting witness to the said sale. The
contention of the appellant that it is an exclusive property
of the mother. On the other hand, it is the contention of
the plaintiff that the property belongs to ancestral and joint
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family. Both the Courts have failed to take note of the fact
that the property is not the ancestral property. Admittedly,
the father of the plaintiff and defendant No.2 and husband
of defendant No.1 was working and he died prior to the
allotment of the property. The fact that the allotment is
made in lieu of service rendered by him is not in dispute
and the same is also a free allotment. Under such
circumstances, though the property was allotted in favour
of defendant No.1 i.e., mother and the same cannot be
claimed as absolute property of defendant No.1, since the
same is not earned by her self-acquisition. This Court also
not disputes the fact that as a result of service rendered by
the father and husband of respective parties, an allotment
was made. No doubt, the father and husband of respective
parties died prior to the allotment. When such being the
case, there cannot be any exclusive right in favour of the
mother, but it is a family property and not the ancestral
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property and the parties have equal share in the same as
given finding by the Trial Court.
14. Now, the question before this Court is that a
specific plea was raised before the Trial Court by defendant
No.3 who is a purchaser of the suit schedule property in
paragraph 4 of the written statement that the suit for
partial partition cannot be entertained without including the
property which is not alienated and also specific contention
was taken that very fact that the plaintiff is not seeking the
relief in respect of other property and the same shows that
the suit is a collusive suit and in order to defraud defendant
No.3, the suit was filed. An Issue was framed by the Trial
Court in this regard but while passing the judgment
answered Issue Nos.2 and 4 as negative. In paragraph 31,
the reason assigned is that defendant No.3 has only
produced the voters list which show that the plaintiff and
defendant Nos.1 and 2 are residing in the said property.
Defendant No.3 has not produced any document to show as
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to whom the said property belongs to. The defendant No.1
in her cross-examination has admitted that the said
property belonged to her husband, but, unless the
documents are produced for scrutiny of the Court as to
whom the said property belongs to, it cannot be held that
the said property is the joint family property of the plaintiff
and defendant Nos.1 and 2 and the same is liable for
partition between them. Hence, answered Issue Nos.2 and
4 as negative.
15. It is important to note that the First Appellate
Court also while answering this point formulated the points
that whether the suit schedule property is the absolute
property of defendant No.1 and whether the plaintiff is
entitled to seek the relief of partition but no point for
consideration is framed by the First Appellate Court with
regard to maintainability of the suit when the specific
defence is taken that the suit is not maintainable for partial
partition. However, the First Appellate Court in paragraph
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33 discussed with regard to the maintainability of the suit
for partial partition. The First Appellate Court also while
dealing with this point taken note of the defence of
defendant No.3 that purposely not included in the plaint
schedule to prevent defendant No.3 from claiming equitable
partition and also made an observation that PW1 has
denied all suggestions that there are any other joint family
properties which are not included in the suit. The
admission of DW1 cannot be binding on the plaintiff and
therefore, it was for defendant No.3 to independently prove
that the property bearing No.1424 stands in the name of
plaintiff’s father and ought to have been included in the
present suit and except producing the document of Ex.D1,
no other materials produced to show that in whose name,
the property stands and the voter list will not show the
ownership of property.
16. Now, this Court has to consider the material on
record in view of the contention of the appellant’s counsel
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that there is a clear admission on the part of PW1 and DW1
and admitted fact need not be proved. The counsel also
brought to notice of this Court with regard to Section 58 of
the Indian Evidence Act, 1872 wherein it is stated that once
there is an admission, there cannot be any proving of the
admitting fact and in keeping the said contention, this Court
intends to extract Section 58 of the Indian Evidence Act
which reads thus:
“58. Facts admitted need not be proved . – No
fact need to be proved in any proceeding which
the parties thereto or their agents agree to admit
at the hearing, or which, before the hearing, they
agree to admit by any writing under their hands,
or which by any rule of pleading in force at the
time they are deemed to have admitted by their
pleadings:
provided that the Court may, in its
discretion, require the facts admitted to be proved
otherwise than by such admission.”
17. Having read Section 58 of the said Act, it clearly
states that facts admitted need not be proved. It is very
clear that no fact need to be proved in any proceeding
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which the parties thereto or their agents agree to admit at
the hearing, or which, before the hearing, they agree to
admit by any writing under their hands, or which by any
rule of pleading in force at the time they are deemed to
have admitted by their pleadings. Further, the Court may
require the facts admitted to be proved otherwise than by
such admission.
18. Now, this Court would like to consider the
evidence of PW1 wherein he categorically admitted that
Ex.D1 is the voters list wherein the address of the family
members is shown in property bearing No.1424 and hence,
it is clear that all of them are residing in property bearing
No.1424 and their names are registered for voting in the
same address. It is also categorically admits that all the
family members names are found in Ex.D1 and still all of
them names are continuing in the said address. It is also
categorically admits by PW1 that in the year 1969 they
came to the house pertaining to the door No.1424 and
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when question was put to him that on what capacity his
mother and brother are residing in the said address, he
says that, they are residing in the said address as it is and
not assigned the reasons and also he has not taken any
action against his mother and his brother from 1998.
Hence, the very observations made by the First Appellate
Court that there is no admission and PW1 has denied the
same cannot be accepted. Thus, it shows that the First
Appellate Court not properly read the admission given by
PW1.
19. It is also an observation of the First Appellate
Court that only on the admission of the mother, there
cannot be any conclusion that the family is having other
properties and the same not binds on the plaintiff. The
Court has to read the evidence of the parties in toto. There
is a clear admission on the part of the witness that all of
them are residing in the house bearing No.1424 and PW1
also admitted that they are residing in the said house from
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1969 and still their mother is living in the very same house.
It is also a suggestion that now, the value of the said
property is more than the value of the property which was
sold and no doubt, the same was denied by PW1. It is also
categorically admits that he did not question on what
reason the mother had sold the property and at no point of
time, he questioned the same to his mother. Hence, it is
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clear that it is a collusive suit claiming 1/3 share. But only
he admits that when he gave the notice to his mother, she
had given reply stating that she was in need of money and
sold the property. However, he admits that the mother is
not having any bad-vices. These admissions take away the
case of the plaintiff. Even, PW1 further admits that his
mother does have any intention to cheat him. PW1
categorically admits that he is not having any documents to
show that he is taking care of his mother. He further
admits that even after obtaining the certified copy of the
sale deed at Ex.P10, after one year, he gave the notice and
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the same clearly discloses that there is a collusiveness
between the parties.
20. It is also important to note that when the notice
was given by the plaintiff to his mother who has been
examined as DW1 before the Trial Court categorically
admits that still she is residing in the very same property
and also categorically admits that said property belongs to
her husband and now she is alone residing in the said
address. But she claims that her both sons have cheated
her. And also categorically admits that when the plaintiff
left the house, herself and her another son i.e., defendant
No.2 were residing in the house belongs to her husband.
Hence, there is clear admission that the house belongs to
her husband. DW1 claims that she has not given any
complaint when her children cheated her. This also
substantiate the contention of defendant No.3 that suit is
filed with an intention to defeat the right created in favour
of defendant No.3 and suit is a collusive suit. It is also
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important to note that DW1 admits that the sale
consideration was received by her second son i.e.,
defendant No.2 but only claims that her signature was
obtained in order to avail the loan and the same is also not
substantiated by placing any material. But she categorically
admits that in the reply given by her as per Ex.P9, she
categorically says that whatever sale consideration received
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and out of that, 1/3 share was given to the plaintiff. A
suggestion also made to the witness but she denies the said
reply made as per Ex.P9. Ex.P9(a) that is the signature of
DW1 and the same is admitted by her. It is important to
note that plaintiff did not dispute the said reply document
at Ex.P9. When the specific defence taken by DW1 at Ex.P9
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that she has given the consideration of 1/3 share to the
plaintiff. These are the material admissions which are not
taken note of by both the Courts and nothing is discussed
on Ex.P9.
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21. It is important to note that the Trial Court while
considering the issue of partial partition, except stating that
defendant No.3 has not produced any documents to show
that as to whom the said property belongs, not discussed
anything about the admission on the part of PW1 and DW1.
It is a settled law that admitted fact need not be proved in
terms of Section 58 of the Indian Evidence Act. When there
is a clear admission on the part of witnesses, the Trial Court
while answering Issue Nos.2 and 4 has not discussed
anything in this regard and the reason given by the Trial
Court is very cryptic in not discussing with regard to the
admission given on the part of PW1 as well as DW1 and
also reply in terms of Ex.P9. The admission given with
regard to Ex.D1 also shows that address of all the family
members in the voters’ list stands in respect of the property
bearing No.1424 but no discussion was made with regard to
the admission on the part of DW1 stating that the said
house belongs to her husband as well as still their voter list
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continued in the said address. Hence, it is clear that it is a
collusive suit and also not included other property which
belongs to the family of the plaintiff, defendant Nos.1 and
2. The First Appellate Court also comes to the conclusion
that admission on the part of DW1 is not binding on the
plaintiff and the same is also contrary to the material on
record. PW1 also categorically admitted the document at
Ex.D1 as well as staying in the property bearing No.1424
and also the specific admission on the part of DW1 is that
the property bearing No.1424 is belongs to her husband
wherein she is residing. When such being the material on
record, the very suit challenging the sale made by the
mother and also other brother who is a consenting witness,
without including other property wherein he resided along
with the mother and defendant No.2 prior to coming out
from the said property is evident since knowing fully well
that the said property also belongs to the family and did not
intentionally include the said property to the suit for
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partition. The very contention of the counsel for respondent
No.3 that the property wherein respondent Nos.1 and 2
were residing is a tenanted property and not belongs to
respondent Nos.1 and 2 and the said submission is also not
based on any material. Mere non-production of document
cannot be a ground to comes to the conclusion that same is
not belongs to the family when there is clear admission on
the part of DW1 that the said property is also belongs to
her husband and PW1 also categorically admitted with
regard to the existence of other property and they were in
possession from 1969. Hence, both the Courts have
committed an error in considering the evidence available on
record.
22. This Court would like to refer the judgment of
the Apex Court reported in (1994) 4 SCC 294 in the case
of KENCHEGOWDA (SINCE DECEASED) BY LEGAL
REPRESENTATIVES vs SIDDEGOWDA ALIAS
MOTEGOWDA wherein the Apex Court held that partition
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under Hindu Law, when the suit is filed for the relief of
partial partition, when all the joint family properties not
made as the subject matter of the suit nor the co-sharers
impleaded, not maintainable. The Apex Court in paragraph
10 held that when the suit is for the relief of declaration and
injunction into one for partition when all the joint family
properties were not made the subject matter of the suits
nor were all the co-sharers impleaded. It is also held that
well settled in law that a suit for partial partition is not
maintainable.
23. This Court also would like to refer the judgment
of this Court reported in 2010 SCC ONLINE 5291 in the
case of G M MAHENDRA vs G M MOHAN AND ANOTHER
wherein this Court discussed in detail and in paragraph 39
referred Order II Rule 2 of CPC and also taken note of
categorical admission of the plaintiff that joint family is
having other properties and when the suit is filed by the
plaintiff without including all the joint family properties and
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which prejudices the rights of the alienees who have also
been impleaded as parties to the suit, in the circumstances
of the case, has to be held that the suit filed by the plaintiff
for partial partition without including all the joint family
properties is bad in law.
24. This Court also would like to refer the judgment
of the Delhi High Court reported in 2014 SCC ONLINE DEL
2342 in the case of INDER MOHAN SINGH AND OTHERS
vs SUBE SINGH wherein it is held that inspite of admission
of a fact having been made by a party to the suit, the Court
may still require the plaintiff to prove the fact which has
been admitted by the defendant. This is also in consonance
with the provisions of Section 58 of the Evidence Act. The
proviso to this section specifically gives discretion to the
Court to require the facts admitted to be proved otherwise
than by such admission. The proviso corresponds to the
proviso to Rule 5(1) Order 8 of CPC. The proviso quoted
above is identical with the proviso to Section 58 of the
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Evidence Act, which lays down that facts admitted need not
be proved.
25. This Court would like to refer the judgment of
the Delhi High Court reported in 2018 SCC ONLINE DEL
6500 in the case of PRAVEEN SAINI vs REETU KAPUR
AND ANOTHER and the Delhi High Court in paragraph 12
discussed that the judgment on the aspect of admissions
being binding, would like to refer the judgment of the
Supreme Court in the case of NAGINDAS RAMDAS vs
DALPATRAM ICHHARAM ALIAS BRIJRAM (1974) 1
SCC 242 and extracted paragraph 27 of the said judgment
wherein also categorically held that admissions if true and
clear are by far the best proof of the facts admitted.
Admissions in pleadings or judicial admission admissible
under Section 58 of the Evidence Act, made by the parties
or their agents at or before the hearing of the case, stand
on a higher footing than evidentiary admission. The former
class of admissions are fully binding on the party that
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makes them and constitute a waiver of proof. They by
themselves can be made the foundation of the rights of the
parties. On the other hand evidentiary admissions which
are receivable at the rival as evidence are by themselves
not conclusive. They can be shown to be wrong.
26. Having considered these principles as well as
considering Section 58 of the Indian Evidence Act and also
the admission available on record i.e., the admission of
PW1 and DW1 wherein PW1 stated that they were residing
in the said premises from 1969 and he came out from the
premises when differences were arisen between them and
DW1, who had sold the property, also categorically
admitted that the said house belongs to her husband and
also taking into note of the document at Ex.D1 which is
admitted by PW1 himself discloses that all of them are
residing in the said address and voter list contains the
names of all of them in respect of very same property this
Court comes to the conclusion that the same are not
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properly considered by both the Courts in a proper
perspective. The material is very clear that it is a collusive
suit between the mother and brothers to defeat the right of
the appellant who had purchased the property for valuable
sale consideration and he is a bonafide purchaser of the
property since all the documents are stands in the name of
the mother on account of allotment made in her favour and
before purchasing the same, the appellant also verified the
documents and the Trial Court rightly comes to the
conclusion that he is the bonafide purchaser. Hence, I
answer the substantial question of law framed by this Court
accordingly.
27. Now the question before this Court is that
whether the matter requires to be remanded for
consideration as there are triable issues in the matter.
Admittedly, both the plaintiff and the defendants have not
produced any documents in respect of the property bearing
No.1424. But this Court comes to the conclusion that in
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view of clear admission on the part of PW1 as well as DW1
and as per Section 58 of the Evidence Act, there is no need
to come to an other conclusion, since this Court has already
come to a conclusion that it is a collusive suit since the
admission is also not a stray admission and though DW1
categorically admitted the fact that said house belongs to
her husband and there is unequivocal admission available
on record and even the possession as on the date of cross-
examination. When such finding is given by this Court, the
question of once again producing the said document in
order to arrive at a conclusion does not arise.
28. In this regard, this Court also would like to rely
upon the judgment reported in (2008) 8 SCC 485 in the
case of MINICIPAL CORPORATION, HYDERABAD vs
SUNDER SINGH, wherein the Apex Court has set aside the
order of remand made by the High Court invoking Order 41
Rule 23 of CPC. The Apex Court held that the Court should
be slow in exercising the discretionary power under Rule 23
33
unless the conditions precedent therefore are satisfied.
Rule 23 should not be invoked and the same is enabling
provision. The Apex Court also held that the High Court did
not record that retrial was necessary, if the Court did not
arrive at a finding that decree was liable to be reversed.
Hence, the question of invoking Order 41 Rule 23 is not
attracted. It is also settled law that only when a decree has
to be reversed in the appeal, the appellate court may if it
considers necessary, remand the case in the interest of
justice and it provides for an enabling provision. It confers
a discretionary jurisdiction on the appellate court. The
Court should be loathe to exercise its power in terms of
Order 41 Rule 23 and an order of remand should not be
passed routinely.
29. Having considered this principle laid down in the
judgment referred supra , in the case on hand, this Court
has already come to a conclusion that it is a collusive suit,
since PW1 also admitted that he was also residing along
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with other family members in the very same property and
also admitted the document at Ex.D1. Apart from that, the
mother, who has been examined as DW1 also categorically
admitted that the said property belongs to her husband and
she is still in possession of the very same house and
residing in the said address. Hence, it is a clear case of
invoking Order II Rule 2 of CPC for not including all other
family property when the suit is filed particularly
questioning the sale made by his mother and other brother.
This Court also observed that the mother had given reply
when the notice was given to her by the plaintiff before
rd
filing the suit stating that she has given 1/3 share of the
plaintiff when the property was sold and the same has not
been disputed by the plaintiff and nothing is elicited in this
regard in the cross-examination of PW1. Hence, it is clear
that retrial is not necessary and the question of reversing
the judgment of the Trial Court also does not arise as the
appellant herein is the bonafide purchaser and the suit is a
35
collusive suit and detailed discussion is made by this Court
that it attracts Section 58 of the Evidence Act and the Trial
Court has rightly come to the conclusion that the appellant
herein is the bonafide purchaser and suit is a collusive suit.
30. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree dated 11.07.2018
passed in R.A.No.54/2016 by the First Appellate
Court is set aside and the judgment and decree
dated 27.11.2015 passed in O.S.No.11/2002 by
the Trial Court is restored by dismissing the suit
of the plaintiff.
Sd/-
JUDGE
SN