Judgment:
A.M. Bhattacharjee, J.
1. The respondent sued his other brothers for partition and accounts has obtained the preliminary decree impugned in this appeal. The main argument on behalf of the appellants against the preliminary decree is that the learned Judge ought to have held that the plaintiff has already received his share of the family ornaments before the suit and that the Vehicle in question was the exclusive property of the defendant No. 3 and, therefore, the learned Judge was wrong in decreeing partition of the ornaments and the Vehicle.
2. As to the family ornaments, the case of the defendants is that by and under an amicable Agreement for partition between the parties about one and half year before the suit, it was agreed that the ornaments were to remain with the defendant No. 1 for the time being to be divided among them on the expiry of two months from the date of the agreement and that, to quote from paragraph 8 of the written statement, 'in pursuance of that Agreement the plaintiff has taken his share of ornaments immediately on the expiry of two months time in the presence of the parties and some gentlemen of the locality'. The learned Judge has disbelieved the case of delivery to the plaintiff of his share of the ornaments and that, in our view, for good reasons. The evidence on record and the long-drawn and detailed Agreement for partition, which is Ext. 1, clearly show that the parties fell out and their relations were strained beyond repair. Under these circumstances, it is difficult to believe that the defendant No. 1 would deliver to the plaintiff his share of the ornaments without any written acknowledgment when the Agreement, under which these ornaments were to be delivered, was itself a written one drawn up by a local gentleman (P. W. 2) in the presence of other gentlemen of the locality. In the written statement, as noted above, the definite case of the defendants is that the plaintiff's share of the ornaments was delivered to him 'immediately on the expiry of 2 months time', the statement of the defendant No. 1 in his deposition is that the ornaments were delivered 'within two months', while the statement of the defendant No. 3 in his deposition is that the 'ornaments were divided after 2 months of the execution of Ext. 1'. Again while the definite case in the written statement is that such delivery was effected in the presence of 'some gentlemen of the locality', the only witness examined to prove such delivery was D. W. 3, who according to defendant No. 1's own statement, 'is very much known to me' and procured jobs for their factory and also served as a fitter there. This DW 3 has also stated that the ornaments were not weighed and it may be difficult to understand as to how co-sharers fighting with one another would or could agree to division of ornaments without any weighment. We, therefore, agree with thelearned Judge that there is no reliable or satisfactory evidence to prove that the plaintiff's share of the ornaments was delivered to him.
3. As to the Vehicle, being a Tempo Van, we are satisfied that the learned Judge is right in holding the same to be a joint-property and decreeing partition in respect thereof. The defendant No. 1 has clearly stated that 'he cannot say who is the owner of the Van definitely', though he has admitted that it stands in the name of the defendant No. 3. It is, therefore, significant that even though the Vehicle stands in the name of the defendant No. 3, the defendant No. 1 could not assert at the trial that the same is the exclusive property of the defendant No. 3 and not the joint-property, even though such a case is specifically made out in paragraph 12 of the joint written statement of the defendants verified by the defendant No. 1 himself.
4. The parties are admittedly governed by the Dayabhaga School of Hindu Law. There is an important and significant distinction between the Mitakshara School and the Dayabhaga School as to the presumption in respect of properties standing in the name of an individual coparcener. In a Mitakshara coparcenary, even a property standing in the name of an individual coparcener may be presumed to be a coparcenary property, if the coparcenary is shown at the relevant time to have been possessed of sufficient source to acquire such properties and the apparent state of thing may be presumed not to be the real state of thing. But in the Dayabhaga, it is the other way round, the apparent state of thing is to be presumed to be the real state of thing until the contrary is proved and a property standing in the name of an individual coparcener must be proved to be coparcenary property by the party asserting it to be so. Therefore, the fact of the Tempo Van standing in the name of the defendant No. 3 only should have led to the presumption of its being his separate property in the absence of any reliable evidence to the contrary.
5. But the old driver of the Tempo Van, P. W. 3, has very clearly stated that the price of the Vehicle was paid by the mother of the parties, that he took the van on hire for 2 years from the mother and never submittedany account to the defendant No. 3. And the most telling evidence against the case of the Tempo Van being the exclusive property of the defendant No. 3 is contained in Ext. 1, being the Agreement for partition, wherein all the four brothers who are parties to the suit, including the defendant No. 3, have admitted this Tempo Van and the income therefrom as subject-matter for partition between the brothers. This then is a clear admission by and on behalf of the defendant No. 3 and the other defendants that the Tempo Van is a joint-property liable to be taken into account for partition of the joint properties of the brothers.
6. The learned Advocate for the appellants has, however, urged that this admission in Ext. 1 cannot be taken into consideration as the same was not put to any of the defendants when they deposed at the trial as required under the provisions of Section 145 of the Evidence Act. It is true that under Section 145 of the Evidence Act, a prior statement of a witness cannot be taken into consideration in order to discredit him or to contradict his statement at the trial unless such prior statement was put to the witness and his attention was duly drawn thereto. But that is a rule to apply where a witness is not a party to the suit and would not apply when a party to the suit is examining himself as a witness. In such a case, where a party to the suit is being examined as witness, all his previous statements amounting to admission, if duly proved, would go in as substantive evidence, whether or not he has been confronted with those statements while deposing as a witness. It appears that the view of this Court was to the contrary and the view was that admission cannot be used against any person, whether a party to the proceeding or not, unless it is put to him and an opportunity afforded to him to explain it and reference in this connection may be made to a Bench decision of this Court in Charandasi Debi v. Kanai Lal Moitra, : AIR1955Cal206 . But this is no longer good law in view of the decision of the Supreme Court in Bharat Singh v. Bhagirathi, : [1966]1SCR606 and the decision in Biswanath Prasad v. Dwarka Prasad, : [1974]2SCR124 , which has relied on Bharat Singh (supra). In Biswanath Prasad (supra), the Supreme Court has observed (at 119) as hereunder : --
'There is a cardinal distinction between a party who is author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfils the requirement of Section 21 of the Evidence Act; in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him as required under Section 145 of the Evidence Act.'
7. In Bharat Singh : [1966]1SCR606 (supra), which was relied on in Biswanath Prasad : [1974]2SCR124 (supra), the Supreme Court has clearly ruled (at 410) that 'admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions'. This being the law by which we are to govern ourselves, we must hold that the learned Judge was perfectly right in relying on the admission of the defendants contained in Ext. 1 to the effect that the Tempo Van was a joint-property. The Ext. 1 was already on record when the defendants No. 1 and No. 3 deposed at the trial and it must be noted that far from attempting to explain away the admissions contained therein, the defendant No. 3, deposing as D. W. 2, has clearly stated in cross-examination that 'the contents of the document of Agreement are correct.'
8. Both the grounds urged by the learned Advocate for the defendants-appellants against the preliminary decree thus failing, we must dismiss the appeal, which we hereby do, without, however, any order as to costs in this appeal.
Sukumar Chakravarty, J.
I agree.