Bhaskar Raut and ors. Vs. Rambha Bewa and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - law is well settled that an admission is not conclusive unless it amounts to estoppel. an admission is, however, a very strong piece of evidence. it should have been clearly and specifically mentioned in the sale deed that she was a maintenance holder, and to remove all clouds her consent was taken to the sale deed as desired by the vendees. once the explanation is rejected, the admission stands as a strong piece of evidence in support of the plaintiff's case. 1, 2 and 3. on an examination of their evidence we are satisfied that they are witnesses of truth and the learned subordinate judge correctly assessed their evidence and rightly rejected the evidence of d.order1. the following genealogy would show the relationship of the parties. bhagabat rout | ___________________________________|___________________________________________ | | | | | narottam uchhaba daitari maheswar baraju | | | =rambha =kumud(d.6)bhaskar anam | (plff.) (d.1) (d.2) | | _________|___________ gopal | | (d.3) eanamalf benudhar (d.4) (d.5)the correctness of this genealogy is no longer in contest. rambha (plaintiff) is the widow of maheswar. she filed a suit for partition of her 1/5th share as maheswar had four other brothers. defendants 1 to 6 represent the four other branches. the plaintiff's case was that maheswar died after severance of joint status from the rest of the members of the joint family and thus she was entitled to 1/5th interest in the total property.2. the defendants contested her claim by saying that maheswar died joint with other members prior to the coming into force of the hindu women's right to property act, 1937 (hereinafter referred to as 'the act').3. the trial court held that maheswar died in a state of jointness. but he decreed the plaintiffs suit on the finding that maheswar died in 1944 and as such the plaintiff was entitled to the same interest as maheswar had and was entitled to partition of her 1/5th share of the property. defendants 1 to 6 have filed this appeal.4. the only point raised by mr. mohanty is that the plaintiff was a pre-act widow, that is to say, maheswar died prior to the coming into force of the act.5. in support of his finding, the learned subordinate judge relied on the evidence of p. ws. 1, 2 and 3 (plaintiff) and exhibits 1, 2 and 3. he discarded the oral evidence of d.ws. 1 to 5.6. exhibit 1 dated 4-9-1963 is a sale deed executed by all the five branches including the plaintiff. the plaintiff has been described as one of the vendors, there is a recital in the document that the vendors are the owners in possession. there is thus a clear and unequivocal admission that the plaintiff had 1/5th share in the property sold under exhibit 1. if this admission is true then the plaintiffs case is fully established that she was a post-act widow. had she been a pre-act widow, she would have no interest in the property and the share of maheswar would have passed by survivorship to the other coparceners.law is well settled that an admission is not conclusive unless it amounts to estoppel. an admission is, however, a very strong piece of evidence. the maker thereof is, however, entitled to prove the admission to be wrong. but unless displaced by satisfactory explanation, an admission is also determinative of the facts admitted.the explanation given by defendant no. 1 (d.w. 5) is that the vendees wanted the plaintiff to be joined as a vendor so as to dispel any cloud on the title which the vendees would acquire. this explanation on the very face of it is not acceptable. no harm would have been caused if the plaintiff would not have been described as a vendor, and it would not have been recited that she was an owner in possession. it should have been clearly and specifically mentioned in the sale deed that she was a maintenance holder, and to remove all clouds her consent was taken to the sale deed as desired by the vendees. once the explanation is rejected, the admission stands as a strong piece of evidence in support of the plaintiff's case.7. ext. 2 dated 18-6-66 is a sale deed executed by defendants 2 and 3 in favour of one rodani dei. the plaintiff's thumb impression was taken on the document and there is an endorsement that her consent was taken to the sale along with other co-sharers. such a consent was taken as all the co-sharers were not the vendors. this is also an admission by the other co-sharers that the plaintiff had title in respect of the property sold. for reasons given in connection with ext. 1, the explanation furnished by defendant no. 1 is also liable to be rejected.8. ext. 3 is a deed of gift executed by defendant no. 6 and her grand-daughters in favour of defendant no. 3 on 16-5-56. herein also the plaintiff has been described as one of the co-sharers, and the property has been gifted on the footing that each of the branches is entitled to one-fifth interest. the explanation furnished in respect of this admission is also not satisfactory.9. thus, exts. 1, 2 and 3 contain different pieces of admission supporting the plaintiff's version that she had one-fifth interest in the property belonging to the joint family. she can have interest in the property only on the hypothesis that her husband died subsequent to the coming into force of the act and she stepped into the shoes of her husband and inherited her husband's interest in the disputed properties left at the time of his death. these documents fully support the evidence of p.ws. 1, 2 and 3. on an examination of their evidence we are satisfied that they are witnesses of truth and the learned subordinate judge correctly assessed their evidence and rightly rejected the evidence of d.ws. 1 to 5. it is not necessary for us to repeat the reasons given by the learned subordinate judge for discarding their evidence.10. in the result, the appeal fails and is dismissed, but in the circumstances, there will be no order as to costs.acharya, j.11. i agree.

Judgment:
ORDER

1. The following genealogy would show the relationship of the parties.

Bhagabat Rout

|

___________________________________|___________________________________________

| | | | |

Narottam Uchhaba Daitari Maheswar Baraju

| | | =Rambha =Kumud(D.6)

Bhaskar Anam | (Plff.)

(D.1) (D.2) |

| _________|___________

Gopal | |

(D.3) Eanamalf Benudhar

(D.4) (D.5)

The correctness of this genealogy is no longer in contest. Rambha (plaintiff) is the widow of Maheswar. She filed a suit for partition of her 1/5th share as Maheswar had four other brothers. Defendants 1 to 6 represent the four other branches. The plaintiff's case was that Maheswar died after severance of joint status from the rest of the members of the joint family and thus she was entitled to 1/5th interest in the total property.

2. The defendants contested her claim by saying that Maheswar died joint with other members prior to the coming into force of the Hindu Women's Right to Property Act, 1937 (hereinafter referred to as 'the Act').

3. The trial Court held that Maheswar died in a state of jointness. But he decreed the plaintiffs suit on the finding that Maheswar died in 1944 and as such the plaintiff was entitled to the same interest as Maheswar had and was entitled to partition of her 1/5th share of the property. Defendants 1 to 6 have filed this appeal.

4. The only point raised by Mr. Mohanty is that the plaintiff was a pre-Act widow, that is to say, Maheswar died prior to the coming into force of the Act.

5. In support of his finding, the learned Subordinate Judge relied on the evidence of P. Ws. 1, 2 and 3 (plaintiff) and Exhibits 1, 2 and 3. He discarded the oral evidence of D.Ws. 1 to 5.

6. Exhibit 1 dated 4-9-1963 is a sale deed executed by all the five branches including the plaintiff. The plaintiff has been described as one of the vendors, There is a recital in the document that the vendors are the owners in possession. There is thus a clear and unequivocal admission that the plaintiff had 1/5th share in the property sold under Exhibit 1. If this admission is true then the plaintiffs case is fully established that she was a post-Act widow. Had she been a pre-Act widow, she would have no interest in the property and the share of Maheswar would have passed by survivorship to the other coparceners.

Law is well settled that an admission is not conclusive unless it amounts to estoppel. An admission is, however, a very strong piece of evidence. The maker thereof is, however, entitled to prove the admission to be wrong. But unless displaced by satisfactory explanation, an admission is also determinative of the facts admitted.

The explanation given by defendant No. 1 (D.W. 5) is that the vendees wanted the plaintiff to be joined as a vendor so as to dispel any cloud on the title which the vendees would acquire. This explanation on the very face of it is not acceptable. No harm would have been caused if the plaintiff would not have been described as a vendor, and it would not have been recited that she was an owner in possession. It should have been clearly and specifically mentioned in the sale deed that she was a maintenance holder, and to remove all clouds her consent was taken to the sale deed as desired by the vendees. Once the explanation is rejected, the admission stands as a strong piece of evidence in support of the plaintiff's case.

7. Ext. 2 dated 18-6-66 is a sale deed executed by defendants 2 and 3 in favour of one Rodani Dei. The plaintiff's thumb impression was taken on the document and there is an endorsement that her consent was taken to the sale along with other co-sharers. Such a consent was taken as all the co-sharers were not the vendors. This is also an admission by the other co-sharers that the plaintiff had title in respect of the property sold. For reasons given in connection with Ext. 1, the explanation furnished by defendant No. 1 is also liable to be rejected.

8. Ext. 3 is a deed of gift executed by defendant No. 6 and her grand-daughters in favour of defendant No. 3 on 16-5-56. Herein also the plaintiff has been described as one of the co-sharers, and the property has been gifted on the footing that each of the branches is entitled to one-fifth interest. The explanation furnished in respect of this admission is also not satisfactory.

9. Thus, Exts. 1, 2 and 3 contain different pieces of admission supporting the plaintiff's version that she had one-fifth interest in the property belonging to the joint family. She can have interest in the property only on the hypothesis that her husband died subsequent to the coming into force of the Act and she stepped into the shoes of her husband and inherited her husband's interest in the disputed properties left at the time of his death. These documents fully support the evidence of P.Ws. 1, 2 and 3. On an examination of their evidence we are satisfied that they are witnesses of truth and the learned Subordinate Judge correctly assessed their evidence and rightly rejected the evidence of D.Ws. 1 to 5. It is not necessary for us to repeat the reasons given by the learned Subordinate Judge for discarding their evidence.

10. In the result, the appeal fails and is dismissed, but in the circumstances, there will be no order as to costs.

Acharya, J.

11. I agree.