Narayanan Neelakutty and others vs Krishnan Venki and others

Subramonia Iyer, J.—Plaintiffs are the appellants. The suit out of which this second appeal arises was one for partition. The parties are Valas whose occupation is fishing. Three items are sought to be divided. The first and the third are fishing stakes for which pattas are issued. Patta for the first item was issued in the name of Venki the plaintiffs'' grandfather, and the patta for the other item in the name of Mani, their grandmother. The second item is a building put up on a lease-hold property.

Venki and Mani had four sons, Neelakutti, Karamban, Krishnan and Sanku, the last of whom predeceased his parents. The plaintiffs who are five in number are the children of the first son Neelakutty by his first wife. He had another daughter, the 5th defendant, by his second wife. Karamban died leaving as his heir his only daughter Vallikutty. Her rights were transferred to the" plaintiffs under Ext. A on 8-10-1123. Plaintiffs claim a 2/3rd share on the above basis denying that their sister, the 5th defendant, was entitled to any share. Krishnan is the first defendant.

Though the plaintiffs denied the 5th defendant''s title to a share in the Courts below and though the decision adverse to that plea is challenged, albeit not specifically, in the memorandum of appeal, learned counsel for the appellants submits that that point is not pressed and that the 5th defendant may be taken to be a sharer equally with the plaintiffs. The result is that the claim of the plaintiffs appellants is to a 2/3rd minus 1/6th of 1/3rd which they inherited as the children of Neelakutty, the other 1/3rd having been obtained by them exclusively by assignment from Vallikutty.

The plea in the case was that the second item is the self-acquisition of Krishnan, the first defendant, and that it is not divisible. In the suit, the plaintiffs had impleaded only three defendants, the 2nd and the third being mortgagees of the properties sought to be divided. The 4th defendant claiming to be the daughter of the deceased Sanku, the last son of Venki, and the 5th defendant, the plaintiff''s sister, applied by C.M.P. 971/1124 to get themselves impleaded as parties defendants in the case.

That application was allowed and they were brought on record as defendants 4 and 5. The 4th defendant claimed that she was the daughter of Sanku and as such entitled to his share. The plaintiffs disputed the 4th defendant''s paternity. Of the three questions that arose in the trial Court which were whether item No. 2 was partible, whether the 4th defendant was Sanku''s daughter and whether the 5th defendant was entitled to a share the Munsiff found in favour of the plaintiffs upon the first and second points and against them upon the third.

The District Judge in appeal disagreed with the Munsiff upon the first two points and reached conclusions opposite to the ones reached by the Munsiff but on the third point as regards the 5th defendant''s share the Munsiff''s decision was confirmed.

The only two points raised before us by learned counsel for the appellants relate to the partibility of item No. 2 and the paternity of the 4th defendant.

As regards the second item sought to be divided the specific plea raised in paragraph 2 of the plaint is that that item as well as the first item belonged to the plaintiffs'' grandfather Venki and that the third item belonged to their grandmother Mani. The title under which partition is claimed by the plaintiffs is specifically mentioned in the next paragraph to be as grand-children of the owners through their eldest son Neelakutty.

The second item is a building erected upon a leasehold property. Exhibit V is the pattomchit of the year 1105 executed by Krishnan the first defendant to the owner. The deed was executed after the erection of the house and it states that the house therein was put up at the cost of the executant, namely, Krishnan. In 1106, Karamban and Krishnan executed a mortgage for family purposes charging the second item along with an item of the family, the first item in the plaint. Exhibit VI is this document.

Two years later, on 21-1-1108 the said two brothers executed another mortgage, Ext. III, wherein all the three items of properties scheduled to the plaint are included and charged, specifically reciting that the second item is the self-acquired property of the third executant thereof who is Krishnan. The second document clearly shows that the second item is the self-acquisition of Krishnan.

Reliance was placed upon Ext. E dated 20-4-1119 which is a usufructuary mortgage by Neelakutty and Krishnan whereby the first item in the plaint as also the second item are possessorily mortgaged and it is stated that the items are in the possession and enjoyment of the executants of the document and that they belonged to the executants. The contention urged on behalf of the appellants is that this document being the latest must prevail over the earlier ones and that based thereon it should be declared and found that the second item is family property just like the other items.

Learned counsel puts his argument as a legal plea and urges that Ext. E must be considered to be an act by which Krishnan, the acquirer, threw the property in question into the common stock converting it into divisible property. The question whether separate or self-acquired property was thrown into the common stock is entirely one of fact to be decided in the light of all the circumstances. Such a case has to be specifically pleaded giving an opportunity to the opposite side to state their defence tend if disputed an issue must be settled and proof adduced, the burden being always upon the party pleading conversion of self-acquired into family property by throwing into the common stock.

The very plea involves an admission that at the inception the property was the self-acquisition of the person who is alleged to have thrown it into the common stock. In this case, there is not merely the absence of a pleading stating or even suggesting a throwing into the common stock but the specific case set up in the plaint rules out the possibility of a plea of any throwing into the common stock because as already stated the second item as also the first are stated to be properties belonging to the plaintiffs'' grandfather Venki and they were inherited by his sons.

The evidence would show that Venki died some time before the lease of item 2 for which Ext. V was executed by Krishnan. There was no issue asking whether Krishnan threw the property into the common stock, much less is there any evidence on that point. Exhibit E at its best only amounts to an admission that the properties comprised therein including the second item are family properties. Krishnan explains the statement as a mistake because he understood the mention in Ext. E as regards the family character to relate only to the first of the two items therein which is admittedly family property.

An admission does not conclude the party making it. He is entitled to explain it unless the person to whom it is made has acted on its faith which would preclude the author from going back on it and speaking the truth on the principle of estoppel. Such a plea is not raised in this case. An admission of a person will not operate to deprive him of his rights nor will it confer title upon another.

If the controversy had been whether the second item was originally family property or self-acquired property of Krishnan, Ext. E would be relevant as a piece of evidence to show that it was family property. But that is not the controversy here. The point that is sought to be made is that Krishnan threw item No. 2 which was his own self-acquisition into the common hotchpot abandoning any separate interest therein.

Had there been a case that that event'' happened antecedent to Ext. E and that document is relied upon as recording its result it may have had evidentiary value. But such a case there is not. Throwing into the common hotchpot is a positive act or conduct on the part of the owner, which would operate to deprive him of separate rights and constitute the property family property in which he would thereafter be interested only as a coparcener with the others.

A clear intention of the owner to waive his separate and exclusive right must be established to constitute throwing into the common stock and merely dealing with self-acquisitions as joint family is not sufficient. (See - Naina Pillai and Others Vs. Daivanai Ammal and Another, ). In Ext. E, Krishnan does no more. In - ''Muhammad Imam Ali Khan v. Husain Khan'', 26 Cal 81 at p. 100 (PC) (B), the Privy Council said:

A gratuitous admission may be withdrawn unless there is some obligation not to withdraw it; and there is not here any title on which such an admission can rest. If then there is no transfer, no estoppel, no bar by time, no trust, why should not the plaintiff assert his legal rights, whatever he may, in ignorance of the facts or in deference to his uncle or for any other cause not injurious to the defendant, have admitted?

We ask why not Krishnan do so in this case. There is no reason why he should not. The result is that the opinion of the Munsiff that item No. 2 is family property on account of Ext. E is erroneous, and the view of the District Judge that it is the self-acquired property of Krishnan is correct and should be upheld.

The next question relates to the paternity of the 4th defendant. The 4th defendant was examined as the third witness for the defence in the year 1124. She then deposed that she was 36 years old. This was in answer to a definite question in cross-examination. There is no suggestion made in re-examination that her answer was otherwise than correct. The result is that on her showing she was born in the year 1088.

The 4th witness for the defence who was examined to prove the paternity of the 4th defendant swore that the marriage of Sankn with Kalamma the mother of the 4th defendant, was after the year 1090. Even according to the defence Kalamma had a previous husband Karamban, not the brother of Sanku but some other Karamban, and Sanku was only her second husband. The 4th, defendant should therefore, have been the daughter of Karamban and not of Sanku.

The Munsiff on this evidence held that it has not been proved that the 4th defendant was Sanku''s daughter. The learned District Judge is appeal upset that view on the ground that the answer given by the 4th defendant was an ''inadvertent statement'' and that ''it could only be mistake due to lapse of time''. These observations of the District Judge find no support at all in the evidence in the case.

A Court is not free to ignore or get over definite and clear statements of admission made by parties in the box by ascribing them to inadvertence or mistake especially when there is not even a suggestion made in the re-examination to that effect. We are clear that on the evidence it is impossible to hold that the 4th defendant is a daughter of Sanku. We, therefore, reverse the findings of the District Judge about the 4th defendant''s paternity and agreeing with the Munsiff hold that the 4th defendant has not been proved to be Sanku''s daughter.

The result is that the second appeal is allowed in the manner and to the extent indicated above and dismissed as regards the rest of it. The decree of the District Judge is modified and that of the Munsiff restored, subject to the limitation that the second item will be excluded from the decree. The partible debts will be the two mortgage debts mentioned in the plaint.

The parties will bear their respective costal in this second appeal.

The memo of objections presented by respondents 1 and 2, the first and 4th defendants, is dismissed without costs.