Molar and others vs Smt. Santo and others

P.C. Pandit, J.—The following pedigree table will be helpful in understanding the facts of this case:

The dispute relates to the land measuring 45 Bighas and 7 Biswas situate in village Harigarh, Tehsil Jind, which belonged to Dewtia. On his death his widow Shrimati Narma inherited it as a life tenant. Narma seems to have contracted Karewa marriage with one Kundan and the defendants, who were third digree collaterals of Dewtia, got the land mutated in their favour by the revenue authorities on 24th of August, 1958 and thereafter took possession of the same. On 21st of February, 1963 Shrimati Santo brought a suit for possession of the said land claiming herself to be the daughter of Dewtia and Narma. Her allegations were that she and her sister Natho were entitled to the land in dispute, which was not ancestral in nature and because their mother Narma had forfeited her rights therein, since she had performed Karewa with Kundan. The defendants, according to her, had taken illegal possession of the land and, consequently, she along with Natho were entitled to its possession.

The suit was resisted by the defendants who admitted that the plaintiff and Natho were the daughters of Narma, but pleaded that the land in dispute being ancestral, they were entitled to get it in preference to the daughters, as they were governed by custom in matters of succession. It was also alleged by them that the plaintiff''s suit was barred by time in as much as Narma had contracted Karewa marriage with one Piara in 1946 and about five years later she performed Karewa with one Kundan. The suit should have been brought within 12 years from 1946 when Narma forfeited her rights in the said land by Karewa marriage.

''On the pleadings of the parties, the following issues were framed : -

(1) Whether the land in dispute is ancestral qua defendants Nos. 1 to 6?

(2) Whether the parties are governed by custom in matters of succession and if so what that custom is?

(3) When did Mst. Narma remarry ?

(4) Whether the defendants Nos. 1 to 6 are collaterals of Dewtia and if so in what degree?

(5) Whether the suit is within time ?

(6) Relief.

It was held by the trial Court that the land in dispute was ancestral; that the parties were governed by custom in matters of succession; that Shrimati Narma performed Karewa with one Kundan in 1948 and consequently, she forfeited her rights in the estate of her husband Dewtia from that very time; that the defendants were collaterals of Dewtia in the second (third?) degree and, therefore, were preferential heirs as regards the property in dispute and that the suit was time barred under Article 143 of the Indian Limitation Act inasmuch as the suit was brought beyond 12 years from 1948 when Narma forfeited her rights in the land by Karewa marriage. On these findings, the suit was dismissed with costs.

Against this decision, Shrimati Santo went in appeal before the learned District Judge, Sangrur. The learned Judge found that the defendants were third degree collaterals of Dewtia deceased. He, how-ever, reversed the decision of the trial Court on issue No. 1 and held that the defendants had failed to establish that the land in suit was ancestral qua them. On the question of limitation, his finding was that the suit was governed either by Article 141 or 144 of the Limitation Act and under both those Articles it was within limitation. The finding of the trial Court on issue No. 2, namely, that the parties were governed by custom in matters of succession was not contested before him. It was also found by the learned Judge, that Shrimati Narma had contracted Karewa with Kundan on 29th of July, 1955, and that the defendants had got into possession of the land only in the year 1956. On these findings, the learned Judge accepted the appeal set aside the judgment of the trial Court and decreed the plaintiff''s suit with costs. Aggrieved by this decision, the defendants have come here in second appeal.

The finding that the defendants were the third degree collaterals of Dewtia, was not contested before me. It was also agreed that the parties were governed by custom in matters of succession. It was further agreed that if the land in suit was not proved to be ancestral qua the defendants, then they would have no right to it. On the other hand, if it was established that it was ancestral then in that case they, being preferential heirs under custom as against the daughters, would inherit the said land. The first question for decision, therefore, is whether the land in dispute was ancestral qua the defendants or not. As I have already held above, the trial Court found it to be ancestral, while the learned District Judge took a contrary view. It is undisputed that the land would be ancestral only if it could be shown that it was owned by Bhuru, the common ancestor and further that it had devolved by inheritance on Dewtia. So far as the revenue papers are produced on this point are concurred, admittedly they do not show that the land was held by Bhuiu. All that is proved is that Bhuru''s sons Raja Ram and Dayala owned this land in equal shares at the time of the fourth settlement. This fact undoubtedly cannot prove that the land was ancestral. The trial Court, however, relied on an admission made by Shrimati Santo, plaintiff herself in her statement, dated 17th March, 1958, copy of which is Exhibit DW 3/A, before the Tehsildar who sanctioned the mutation of the land in dispute in favour of the defendants on 24th of August, 1958. There, she had stated that about ten year back- her mother Narma bad contracted Karewa with one Kundan with whom she was residing at her house and that Karewanama was written on 19th of July, 1955. It was further stated that the land, which her mother got from Dewtia, was ancestral and it was owned by Bhuru from whom it had devolved by inheritance. She had no right in the property, because the defendants were the heirs of her father Dewtia She also said that the land be mutated in the name of the defendants who were collaterals In her evidence in this case as P.W. 2, when that admission was put to her, she denied that she bad given the statement. According to her, her counsel had assured her that her thumb-impression was being obtained in token of the fact that the land would be given to her. She also said that the statement was not even read over to her. The learned trial Judge did not believe her and said that she was telling a lie, when she stated that she had not made the statement, the copy of which was Exhibit DW 3/A. The learned Judge was of the view that the plaintiff had clearly admitted in her statement that the disputed land was ancestral and it had descended from Bhuru, the common ancestor. That admission, according, to him, was binding on the plaintiff and unless she proved that the facts stated by her were incorrect she would be bound by the admission made by her that the land was ancestral. She, according to the learned Judge, had not brought anything on the record showing that that admission was made under misapprehension of facts or that the said admission was wrong in any way. That admission was, therefore, binding on the plaintiff and the property was, consequently, held to be ancestral. When the matter came before the learned District Judge, he was of the view that Exhibit DW 3/A was a gratuitous admission on the part of Shrimati Santo and she could withdraw the same at any time and she had actually withdrawn it. That being so, the alleged admission could not be taken into account. There was, according to the learned Judge, no other evidence on the file to prove the ancestral nature of the land. Consequently, the decision of the trial Court on this point was reversed.

It was contended by the Learned Counsel for the defendants that the learned District Judge was in error in holding that a gratuitous admission made by a person could be withdrawn by him at any time and the same was then not binding on him According to the counsel when admission was made by a party, he was bound by it unless he could show that that admission was wrong. In the instant case, it had not been shown by the plaintiff that the said admission was erroneous in any way. After the statement Exhibit DW 3/A had been made by the plaintiff that the suit land was ancestral, the onus shifted on her to show that it was an erroneous admission made by her and the property in fact was not ancestral in nature That she had failed to establish in the instant case and she was, consequently, bound by the admission made by her. It was also contended by the Learned Counsel that in the present case the admission made by Shrimati Santo was not gratuitous in nature It is needless to decide as to whether the admission was gratuitous or not and also whether Shrimaii Santo could withdraw the same at any time, because, in my opinion, it has been conclusively proved on the record that the said admission was erroneously made. The burden of issue No. 1 was placed on the defendants. They had to establish that the land in dispute was ancestral. In spite of their best efforts, they could not prove from the revenue records or otherwise that the land was ever owned by Bhuru, the common ancestor. As already referred to above, all that could be shown was that the land was held in equal shares by the two sons of Bhuru and that also not in the first settlement but in the fourth one. Admittedly, the land could not be held to be ancestral on those facts. Even if the argument of the Learned Counsel for the defendants was to be accepted and after the alleged admission Shrimati santo had to be establish that it was an erroneous one, in the present case the facts brought on the record by the defendents themselves prove that the admission was wrong, because the property was not owned and held by Bhuru, the common ancestor, and consequently not ancestral. The statement Exhibit DW 3/A made by Shrimati Santo was obviously incorrect. It is not understood how she had stated that the land was owned by Bhuru and it had devolved upon Dewtial by inheritance from him Obviously, she had no personal knowledge about it and the revenue records produced in the case definitely show that the admission made by her was wrong on facts. Consequently, even accepting the contention of the Learned Counsel for the defendants, since the admission of Shrimati Santo had been proved to be wrong in the instant case, the same was not binding on her. Excepting the admission there was no other evidence in the case to prove the ancestral nature of the land. Even assuming for the sake of argument that the admission of Shrimati Santo was not validly withdrawn or explanated away by her, it could not, without any other evidence on the record, prove the ancestral nature of the land in dispute. Admissions, as mentioned in section 31 of the Indian Evidence Act, are not conclusive proof of the matters admitted. They may, at the most, operate as estoppels. But in the present case, the said admission cannot act even as an estoppel because it was never the case of the defendants that they had made any change in their position qua the suit-land on account of the said admission of the plaintiff. That being so, the decision of the learned District Judge on this point was correct in law. Since the land was not ancestral qua the defendants, admittedly they had no right to it.

The other point which needs consideration is whether the plaintiff''s suit was within limitation. It has been found by the learned District Judge that Shrimati Narma contracted Karewa marriage with Kundan on 29th July, 1956, that she remained in possession of the land in dispute upto the year 1953 when the defendants came into its possession. The suit, as already mentioned above was instituted on 1st February, 1963. All these are findings of fact. The finding that the defendants entered into possession of the suit land in 1956 was not challenged by the Learned Counsel for the defendants, who, however, submitted that Shrimati Narma contracted Karewa serveral years before the Karewanama, Exhibit P 1, was executed on 29th of July, 1955 and that being so, the finding of the learned District Judge that Karewa actually took place on the date when Exhibit P. 1 was written was incorrect. Even assuming for the sake of argument that the Karewa was contracted by Shrimati Narma earlier than 29th of July 1955, say in 1948 as held by the trial Court or 1946 as alleged by the defendants in their written statement, the fact remains that she retained possession of the property upto 1956, and it was only in that year that the defendants entered into possession. It is true that the day Shrimati Narma contracted Karewa, she under custom lost her rights in the property of her husband. Thereafter she remained in illegal possession of the same. She was thus holding adversely to the daughters who became entitled to the land when she contracted Karewa. If she had remained in possession for twelve years adversely to the daughters, she could become the owner of the said land by prescription but admittedly that did not happen in the instant case, because the defendants came into possession in 1956. They remained in adverse possession as against the daughters for only six or seven years, because the suit was brought on 21st February, 1963. It cannot, therefore, be said that the suit qua them was in any way barred by limitation under Article 144 of the Indian Limitation Act. Article 143 would have no application to the present case, because the suit for possession by Shrimati Santo had not been brought against Shrimati Narma who had forfeited her rights in the property by Karewa marriage or against persons who were claiming their title through her. The plaintiff had also no where alleged that the defendants had in any way forfeited their rights in the suit land. Similarly, Article 141 would not apply, because it provided limitation for a suit by a remainder man or a reversioner entitled to the possession of the immovable property on the death of a female. It was not alleged that any female had died in the instant case. What was alleged by the plaintiff was that her mother Shrimati Narma, had forfeited her rights in the suit land, when she performed Karewa marriage with Kundan. The specific Article, which dealt with forfeiture of estate, was Article 143. Moreover, the defendants did not come into possession of the property when the forfeiture occurred in the instant case. It was Shrimati Narma who continued in possession even after her Karewa marriage. Even if, for the sake of argument it was held that this Article applied on the ground that on her re-marriage Shrimati Narma was considered to be civily dead, the defendants cannot derive any benefit as they came into possession in 1958 and the suit was brought within 12 years from that date. I would, therefore, hold that the suit was within limitation.

No other question was argued before me.

It was, however, conceded by the Learned Counsel for Shrimati Santo that she had only half share in the land in suit, the remaining half belonging to her sister Shrimati Natho, who was siding with the defendants and did not want a decree to be passed in her favour. Under these circumstances, he admitted that Shrimati Santo''s suit could have been decreed for possession of only half of the land in dispute and that the learned District Judge was in error in decreeing it in its entirety. That being so, the appeal has to be accepted to this extent that the decree passed by the learned District Judge has to be varied and the suit of the plaintiff decreed for possession of one-half share of the land in dispute against the defendants. I would order accordingly. In the circumstances of the case, however, I would leave the parties to bear their own costs throughout.