- Indian Evidence Act, 1872- Section 91- Jahuri Sah &Ors. Vs. Dwarka Prasad Jhunjhunwala
- Bench: Justice J.R. Mudholkar, M. Hidayatullah, R.S. Bachawat, J.M. Shelat.
Facts:
- There is a property in dispute which waspurchased jointly by two Hindu undivided families, one of which is represented by the Appellants and the other by the Respondent.
- The Appellants acquired a part of the Respondent’s share and agreed to pay compensationwith respect to their half share in the property.
- When the Appellants did not pay compensation for acquiring a major portion of the disputed property, the Respondent filed a suit for recovery and partition. The plaint mentioned that one of the co-owners of the property was not joined as a party to the suit because he was given in adoption to one Sreelal.
Issues:
Whether the admission of the existence of a deed of adoption makes the oral evidence inadmissible?
Contentions:
- The Appellants denied claims and asserted that suit is not maintainable as it is barred by the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 and by the rule of estoppel.
- The suit is not maintainable because there is one more co-owner of the propertywho has not been joined as a party to the suit and his adoption to Sreelal has not been established by the Respondent.
- The contract under which the Respondent claimed compensation is not enforceableas there was no ouster of the Respondent by the Appellants.
- The claim for compensation for a period prior to the expiry of 3 years from the date of suit was barred by time.
Background:
The Trial Court decreed in favour of the Appellants, holding the suit to be not maintainable and Respondent not entitled to compensation or eviction of the Appellants. However, the High Court ruled that the Appellants have not specifically denied the fact of adoption and hence the Trial Court erred in holding that the adoption was not proved and that non-joinder of the adopted son was not an impediment to the institution of the suit.Also, the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 was held inapplicable to the present case.
The High Court allowed another application moved by the Respondent underSection 151read with O.XX, R18, Code of Civil Procedure and directed that the Respondent shall also be entitled to compensation from the date of institution of the suit until recovery of physical possession of their share after partition or until the expiry of three years from the date of its decree, whichever event first occurs.Aggrieved by the decision of the High Court, the Appellants moved the Supreme Court, which pronounced its judgment given below.
Judgment:
The Apex Court while citing O.VIII, R 5, C.P.C. which provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant,shall be taken to be admitted, ruled that no specific issue has been raised by the Appellants in their written statements concerning the proof of adoption of the adopted son.
The statement given by Sreelal in regard to the fact and deed of adoption can be regarded as prima facie evidence of adoption, the Court observed.
Agreeing with the findings of the High Court, the Court held that oral evidence of the fact of adoption did not become in admissible merely because the existence of a deed of adoption was admitted. A deed of adoption merely records the fact that adoption had taken place and it cannot be equated with a document which brings a transaction into existence.
