Judgment:
S.N. Srivastava, J.
1. Present second appeal has been filed by the defendant appellant Smt. Nirmala Devi assailing the judgment and decree dated 13.1.2000, passed by District Judge, Maharajganj in Civil Appeal No. 50 of 1997 which has its genesis in judgment and decree passed by Civil Judge (J.D.), Maharajganj, dated 25.10.1997, passed in Suit No. 57 of 1995. The impetratory relief sought by the defendant appellant is to set aside the judgment and decree dated 13.1.2000, passed by District Judge Maharajganj in Civil Appeal No. 59 of 1997, restore the judgment and decree dated 24.10.1997, passed by the Civil Judge (J.D.), Maharajganj in Suit No. 57 of 1995 and dismiss the plaintiff's suit with costs throughout.
2. The bone of contention in the instant case are the two gift-deeds which according to the defendant appellant were executed by the plaintiff one in favour of the three defendants namely, Smt. Nirmala Devi, Smt. Meera Devi and Smt. Usha Devi. Subsequently, plaintiff instituted the suit seeking cancellation of gift deeds dated 4.10.1994 in regard to plot Nos. 626 and 825 situated at Mauja Rautar, Tappa Khas, Pargana Tilpur Tahsil Nichlaul district Maharajganj registered on 25.10.1994 and 14.11.1994 which according to the plaint allegations were obtained by playing fraud upon him by the husband of Smt. Nirmala Devi. According to plaint allegations, no issue was born out of union of plaintiff and Smt. Chandrawati and therefore, the plaintiff tied nuptial knot with one Smt. Kailashi who had a daughter from her earlier husband namely, Smt. Nirmala. Out of union of plaintiff and Smt. Chandrawati, two daughters were born namely Smt. Meera Devi and Smt. Usha Devi defendants 2 and 3 respectively. It is alleged that Ram Narain husband of Smt. Nirmala Devi who was present at his bed-side, divulged to him the dreaded news that he was afflicted with a serious disease and he would hardly survive 15 days which instilled fear in him and being scared he articulated a desire to Ram Narain to initiate process for execution of Will in favour of Smt. Chandrawati attended with a proviso in the Will that heirship would devolve upon the defendants after the death of Smt. Chandrawati. It is further alleged that Ram Narain instead of acting on dotted line, got prepared a gift deed and the same was registered which the plaintiff never intended to do. It is in the above perspective that the suit was instituted and gift deeds were sought to be rescinded. On the other hand, two set of written statements were filed one by Smt. Nirmala Devi and the other by defendants 2 and 3. Smt. Nirmala Devi repudiated the plaint allegations and averred that the plaintiff had desired execution of gift deeds and the gift deeds were rightly executed by the plaintiff. On the other hand, defendants 2 and 3 underpinned the plaint allegations averring that Ram Narain husband of defendant No. 1 who was a disingenuous and calculated person, practised fraud in obtaining gift deeds from the plaintiff instead of Will in favour of wife of the plaintiff.
3. The trial court upon appraisal of evidence on record, decreed the suit in part and rescinded the gift deeds to the extent of 2/3rd share. It would appear that Smt. Chandrawati Devi plaintiff, who was brought on record in the wake of death of Muttur Das, original plaintiff alone preferred civil appeal assailing that part of the decree by which suit was dismissed to the extent of 1/3rd share of defendant No. 1. The lower appellate court allowed the appeal and pronounced the gift deeds void and in consequence, directed the Sub-Registrar concerned for compliance of the judgment. It is in this backdrop that present second appeal has been filed by Smt. Nirmala Devi.
4. At the time of admission, the Court while admitting the appeal, treated grounds II, III and VII as beaming substantial questions of law besides gleaning one more substantial question from the submission of Mr. G. N. Verma to the effect whether the impugned deed of gift could be held to be a valid deed of gift in view of Section 133 of the Transfer of Property Act which requires attestation of such deed of gift by two witnesses and the two witnesses examined having stated the document to be a Will, the deed could be said to be valid in terms of Section 123 of the Transfer of Property Act.
5. The case was heard on 18.2.2005 and from the colloquy the following substantial questions of law also surfaced for determination.
'(1) Whether statement given in the written statement of defendants 2 and 3 could be treated to be admission under Section 18 of the Evidence Act and the finding of the lower appellate court that plaintiff need not prove his/her case due to admission of defendants 2 and 3 is sustainable in law?
(2) Whether judgment of the lower appellate court is vitiated in law by virtue of the fact that it recorded no finding on the question of acceptance of gift and decreeing suit?
(3) Whether judgment of the lower appellate court is vitiated in law on account of ignoring all oral and documentary evidence of the parties from consideration?
I have heard Sri Sankatha Rai, appearing for the appellant and Sri Faujdar Rai appearing for the respondents 2 and 3. The main-stay submissions of learned counsel for the appellant is that the judgment of lower appellate court is erroneous inasmuch as it is mainly founded on admission of defendants 2 and 3 in their pleading and proceeded erroneously to hold that the admission of defendants 2 and 3 having joint interest in the suit property, shall be deemed to be an admission of defendant No. 1 also and also that the plaintiff need not prove her plaint case. The learned counsel assailed the judgment on the count also that the lower appellate court did not reckon with any evidence of the parties in proper perspective and that it has also not recorded any finding even on the question of acceptance of gift though it has been tangentially referred to in the judgment. The learned counsel also attacked the finding arguing that the lower appellate court erred in holding that as gift deed was without any consideration, it is void in terms of Section 25 of the Contract Act. The learned counsel also placed credence of a decision of this Court in Smt. Phuljhari Devi v. Mithai Lal and Ors., : AIR1971All494 . Per contra, Sri Faujdar Rai, learned counsel representing the respondents contended that the finding of facts recorded by the lower appellate, court however erroneous it may be, cannot be interfered with in second appeal. He further contended that the admission of defendants 2 and 3 whose interests are common in the gift deed was rightly considered by the lower appellate court and judgment and decree of lower appellate court cannot be excoriated as unsustainable in law. The learned counsel also called in aid the decision in Paras Ram v. Dayal Das and Anr., ; Mt. Ramjhari Kuer and Ors. v. Deyanand Singh and Ors. AIR 1946 Pat (33) 278 ; Ram Pukar Singh and Ors. v. Sita Ram Mahaton and Ors., : AIR1973Pat310 and Harihar Rajguru Mohapatra and Anr. v. Nabakishore Rajaguru Mohapatra and Ors., : AIR1963Ori45 to bolster up his case.
6. I have been taken through the decision of the lower appellate court. There is no gainsaying that the lower appellate court proceeded on the basis that an admission made by defendants 2 and 3 shall be deemed to be an admission of defendant No. 1 also and in this connection referred to Section 18 of the Evidence Act and in consequence, held that plaintiff need not prove her plaint case. It would further transpire that on the basis of this presumption the lower appellate court also called in aid Section 25 of the Contract Act and converged to hold that as there was no consideration for execution of the gift deed and regard being had to the fact that defendant No. 1 was not born of the loins of Muttur Das, and therefore, there could be no love and affection, the gift deeds were void. The judgment further evinces that the lower appellate court also referred to augments of learned counsel for the appellant about non-acceptance of gift deeds and relying upon a case of Baby Ammal v. Rajan Asaray, 1997 SCR 84, held that acceptance of gift deed was also not proved.
7. It would thus transpire that key to resolving dispute lies in Section 18 of the Evidence Act, which needs proper and thorough consideration. This section being germane to controversy as stated supra, is excerpted below :
'18. Admission by party to proceeding or his agent.--Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admission.
By suitor in representative character.--Statements made by parties to suits suing or sued in a representative character, are not admission, unless they were made while the party making them held that character.
(1) By party interested in subject-matter.--Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested, or
(2) By person from whom interest derived.--Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,
are admissions, if they are made during the continuance of the interest of the person making the statements.'
Sections 17 to 20 define the word 'admission'. Section 21 gives as to when an admission by one person can be proved by another and when and in what circumstances it can be proved by the person making the statement. Section 22 excludes the oral evidence against the contents of documents. Section 23 deals with relevancy in civil cases of admission made upon an expressed condition that it shall not be given in evidence. From a cumulative reading of the above sections it would appear that admission is a statement written or oral as to fact in issue made by a party to an action or by a person deemed to be entitled to make such statement on his behalf. The question here in the instant case is whether admission by defendants 2 and 3 could be taken to be admission by defendant No. 1. As stated supra, Smt. Nirmala Devi was not born of the loins of plaintiff Muttur Das while the other two daughters who are arrayed as defendants 2 and 3 were born of the union of Muttur Das and Smt. Chandrawati. The interest of Smt. Nirmala Devi seemingly clashed with the interest of the two defendants. It would thus transpire that defendants 2 and 3 had interest different from the interest of defendant No. 1. It would also appear from the record that two sets of written statements were filed, one by defendant No. 1 and the other jointly by defendants 2 and 3. The defendants 2 and 3 supported plaint allegations in their written statement and it would thus appear that defendants 2 and 3 were juxtaposed with the interest of defendant No. 1. Generally, it is well enunciated, the statement or defence made by one defendant cannot be read in evidence for or against his co-defendant. It is ostensibly for the reason that if this practice is allowed the plaintiff might set up his own man a defendant and may gain most unfair advantage. It is, therefore, plain on principle and policy that the statement of a co-party while usable against him, are not usable against the other co-party. Such a principle, however, cannot be applied to cases where the co-defendants have joint interest. It is well-settled that if there is a privity of interest between the defendants, the admission of one can be used against the other. Here in the instant case, it crystallizes that the statements made by defendants 2 and 3 during the course of proceedings in regard to pecuniary and propriety interest may be an admission of a person jointly interested in proceeding for consideration by the lower appellate court, but it cannot be sanctified as an admission of defendant No. 1. To pinpoint, such an admission is of no weight if the defendant admitting does not do so in the character of a person jointly interested with the second set of defendant. If considered in the light of Section 18(1) of the Evidence Act, admission of defendants 2 and 3 may be a relevant consideration to their own advantage but the same cannot be utilized as an admission to operate against the interest of defendant No. 1. The lower appellate court committed grave error in treating admission of respondents 2 and 3 as admission of defendant No. 1 without any valid basis and subsequently proceeded erroneously to hold that the plaintiff need not prove her plaint case eschewing from consideration the material facts on record that the defendant No. 1 had denied plaint case in her written statement before the court below and had contested the plaint case by repudiating the averments made in the plaint and propped up her case that the gift deed was rightly executed in accordance with law. The lower appellate court, it would appear, did not analytically examine the aspect that defendant had no privity of interest with other two defendants who chose a path different from defendant No. 1 and instead, supported the plaint case to the detriment of the interest of defendant No. 1 and therefore, by no stretch of imagination, admission by defendants 2 and 3 could be regarded as admission by defendant No. 1. Besides, it is also apparent that the lower appellate court has also not recorded any finding on the facts which had bearing on the controversy involved and the court below was under obligation to do so being the last court of fact. It is also manifest that the court below has also not reckoned with any oral or documentary evidence led in by the parties in support of their respective cases. Yet another error permeating the finding of the court below was that admission of defendants 2 and 3 in their written statement was a very material aspect which could have been reckoned with along with other evidence of the parties and having not done so, the finding cannot be sustained. One more glaring error pervading the decision of the lower appellate court is that it has been observed by the court below that acceptance of a gift deed was a relevant fact but at the same time failed to dilate upon it in order to prop up its observation on this count. Having traversed upon the decision of the lower appellate court, I am of the view that the finding of the lower appellate court cannot be said to be consistent with the weight of evidence on record and is liable to be reversed.
8. Coming to case-laws cited across the Bar by the learned counsel for the respondents, the rule can be decocted from decisions that admission made by a person or a co-defendant who has joint interest may be considered relevant in certain circumstances, but they do not lend support to the arguments of the learned counsel for the respondents that in view of the admission of co-defendants or a party who has joint interest, plaintiff is not required to prove plaint case.
9. Yet another aspect worthy of notice is that judgment and decree of the trial court has not been challenged by anyone of the defendants and it was assailed by the plaintiff brought on record by substitution and therefore, it is inferable from the record that the defendants had acquiesced to the verdict rendered by the trial court. It therefore follows that the judgment and decree of the trial court decreeing the suit in part and rescinding the gift deeds to the extent of 2/3rd share had attained finality and was not open to challenge before the lower appellate court the same having not been taken in challenge by either of the defendants 2 and 3.
10. In the above perspective, I am of the irresistible view that the matter may be relegated to the lower appellate court for consideration afresh in regard to 1/3rd share of the gift deed allegedly executed in favour of defendant No. 1/appellant by Muttur Das, plaintiff. It would be open to the parties to raise all questions arising from the pleadings and materials on record including acceptance of gift deed. The lower appellate court shall decide all the points raised before him by the parties in accordance with law taking into consideration the materials available on record.
11. In the result, the second appeal succeeds and is allowed. The impugned judgment and decree of the lower appellate court is set aside. In view of what has been held above, the case is relegated to the lower appellate court studded with the direction to decide the civil appeal afresh along with all the relevant questions that may arise from the pleadings of the parties or that may be raised by the learned counsel for the parties, after taking into reckoning oral as well as documentary evidence on record.
12. The office is directed to transmit the record of the courts below forthwith.