TMI Blog2013 (7) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... son of the first Plaintiff. The second Respondent was the second Defendant in the suit, who purchased the property from one Barnabass Nadar, to whom the first Defendant earlier sold the suit property on 11.11.1978. 3. The suit was for partition. The Plaintiffs claim 4/5th shares in respect of three items of the suit properties, which was decreed by the Trial Court, as against which, the first Respondent/first Defendant, filed the first appeal before the High Court. The High Court by the impugned judgment, modified the judgment and decree of the Trial Court and held that the decree with reference to item Nos. 1 and 2 of the suit properties, cannot be sustained and that the decree of the Trial Court for partition, was confirmed only in respect of the third item of the suit property and that the preliminary decree for partition in respect of the third item of the suit property was alone granted. It is against the said judgment and decree of the Division Bench of the High Court, the Appellants have come forward with this appeal. 4. The simple case of the Plaintiffs in the suit was that the Plaintiffs and the first Defendant, are the descendants of the late Nithyanandam, who died ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety, and the same was purchased by late Nithyanandam, in the name of his eldest son viz., the first Defendant/first Respondent herein. 8. The second item of the suit property is also a house site bearing Door No. 17/35, purchased in the name of the first Defendant on 21.10.1964, from one Visalakshmi Ammal, which is located in Rajappa Nagar, Thanjavur. The third item of the suit property is also a house and since there is no dispute about the status of the property as a joint family property, we need not deal with the same in detail. 9. The trial Court while answering the issues, considered the evidence both oral and documentary and reached a conclusion that even suit items 1 and 2 though were also purchased in the name of the first Defendant yet they were joint family properties and therefore, the Plaintiffs were entitled to claim a share in all the three items of the suit schedule properties. 10. Having heard the learned Counsel for the Appellants, as well as the Respondents and having bestowed our serious consideration to the judgments of the Division Bench of the High Court, as well as that of the Trial Court and other material papers placed before us, we feel that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Respondent herein and therefore, the preliminary decree was restricted to the third item of property and in other respects the judgment of the trial Court was set aside. 15. The trial Court while granting the relief in favour of the Appellants, considered the oral evidence of P.W. 1, the mother and Ex.A-17 in particular. The High Court while reversing the judgment of the Trial Court placed reliance upon the release deed executed by the first Respondent in the year 1959 viz., Ex.A-3 and partition deed of the year 1973, which was entered into between the four Plaintiffs in which document the first Respondent affixed his signature. The High Court took the view that having regard to the release deed of the year 1959 viz. Ex.A-3 and the partition deed of the year 1973 viz., Ex.A-28, it was established that the first and second items of the suit scheduled properties which were purchased in the name of the first Respondent were the exclusive properties of the first Respondent and therefore, the Appellants were not entitled for partition in those properties. 16. In light of the above factors, the question of law that arise for consideration in this appeal is as to whether there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance sale consideration was paid by his father-in-law and his brother-in-law in several installments, which was contradictory to his earlier stand in the written statement. 20. The learned Counsel further contended that having regard to his prevaricating stand, one in the written statement and the other in the oral evidence, the trial Court rightly rejected the claim of the first Respondent and chose to decree the suit. He further pointed out that de hors the above glaring contradiction in the written statement and the oral evidence let in by the first Respondent, there was a tacit admission in Ex.A-17, which was relied upon by the Trial Court to conclude that all the three properties of the suit schedule were the joint family properties in which the Plaintiffs and the first Respondent were entitled for equal share. The learned Counsel further contended that the High Court miserably failed to examine the above relevant material piece of evidence namely Ex.A17, while reversing the judgment of the trial Court. 21. As against the above submissions, Mr. A.T.M. Sampath, learned Counsel appearing for the Respondents contended that the Division Bench of the High Court was well j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain and definite, without any ambiguity, vagueness or confusion. In this context, it will be worthwhile to refer to a decision of this Court in Union of India v. Moksh Builders and Financiers Ltd. and Ors . - AIR 1977 SC 409 wherein it is held as under: It has been held by this Court in Bharat Singh v. Bhagirath [1966] 1 SCR 606 : AIR 1966 SC 405 that an admission is substantive evidence of the fact admitted, and 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. In taking this view this Court has noticed the decision in Ajodhya Prasad Bhargava v. Bhawani Shanker - AIR 1957 All 1 (FB) also. 25. Keeping the said statutory provision in mind, when we consider the contents of Ex.A-17, which is in Tamil, is a letter written by the first Respondent himself on 24.06.1974. The said letter was addressed to the third Plaintiff Mr. Manickavasagam. The contents of the said letter read as under: The second Plaintiff Saravanamurthi, came to my house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails contained therein, which pertains to the suit scheduled properties, constituted a tacit admission at the instance of the first Respondent. If after Ex.A-3, release deed of 1959 and the partition deed, Ex.A-28 of 1973, in 1974, the first Respondent on his own, came forward with the said letter to the third Plaintiff admitting in so many words as to the status of the suit scheduled properties, vis- -vis the concerned parties themselves, we fail to understand as to what wrong was committed by the Trial Court in placing reliance upon the same to decree the suit. If in reality, the first Respondent had his own reservations as to the ownership of the suit scheduled properties, in particular items 1 and 2, no one prevented him from stating so in uncontroverted terms, while communicating the same in the form of writing, to one of his own brothers. In fact, the grievance of the second Plaintiff Saravanamurthi, was that since the properties were purchased in the name of the first Respondent and he being the eldest son of the family, was having an upper hand over all the others and was trying to snatch away the properties. The tone and tenor of the letter viz., Ex.A-17, authored by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff, deposed that both of them discussed together and ultimately decided to purchase the first item of the suit property in the name of the first Respondent. Through her, Exs. A1 and A2 were produced to show that the house tax were paid in the year 1971-72, 1972-73 and 1973-74 by the family members, in respect of the said property though it stood in the name of the first Respondent. 32. It has also come in evidence that at that point of time, the first Respondent was undergoing his graduation. There was no gift deed by the late Nithyanandam in favour of the first Respondent. Till the lifetime of Nithyanandam, no evidence was placed before the Court to demonstrate that Nithyanandam gifted away the said property in favour of the first Respondent, absolutely and that the first Respondent expressed his acceptance of the said gift. 33. Keeping the above facts in mind, when we examine the law relating to gift, under Section 122 of the Transfer of Property Act, a gift is defined as 'transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s compared to his tacit admission made in Ex.A-17, we are of the considered view that the Trial Court was fully justified in holding that all the three items of the suit scheduled properties, were joint family properties, in which the Plaintiffs and the first Respondent were entitled for equal share. 39. Having regard to our above conclusions, when we examine the judgment of the Division Bench impugned in this appeal, we find that the Division Bench has completely omitted to examine the implications of Ex.A-17 which has relevance in respect of all the three suit schedule properties. As noted by the Trial Court, Ex.A-17 was a very crucial piece of evidence, in as much as, it contains the tacit admission voluntarily made by the first Respondent, while also establishing as to why the veracity of it's nature was never questioned by him. Since, there was no contra evidence to disprove Ex.A-17, the first Respondent was totally bound by the said document. Since every ingredient of Section 17 of the Evidence Act, relating to the said document, Ex.A-17 was fully complied with, the non-consideration of the same by the Division Bench of the High Court, in our considered opinion, would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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