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Issue for Consideration A civil suit was filed by respondent Nos. 1 and 2 for partition and separate possession of plaint schedule properties. During the pendency of the suit, appellants were impleaded. The Trial Court recorded a categorical finding that appellant no.2 and respondent no.2 were not wives of MG, propositus of parties, and consequently, the status of the children through the extended family as coparceners was rejected. The issue for consideration is as to entitlement of share to the children of void or voidable marriage.Partition – Partition and separate possession of plaint schedule properties – The Trial Court held that respondent No. 4 herein admittedly is the first and legally wedded wife of MG – Appellant No. 2 and respondent No. 2 did not produce evidence to prove the factum of the marriage with MG – The evidence adduced by the appellants or respondent Nos. 1 and 2, does not inspire the confidence of the Court to accord to them the status as wives of MG – The Trial Court records a categorical finding that appellant No. 2 and respondent No. 2 are not the wives of MG, and consequently, the status of the children through the extended family as coparceners was rejected – High Court accepted the view of the Trial Court – Propriety:Held: A mere perusal of the preface to Ex. B-6, mortgage deed, would show that MG treated appellant No. 1, respondent No. 1 and respondent No. 3 as his sons – The document was executed for himself and on behalf of his minor sons – The statement was made by MG during the subsistence of his interest in the property mortgaged – The appellants also rely on the patta dated 27.04.1984 (Ex. B-3) standing in the name of MG and his sons; the voters lists, viz., Exs. B-4 and B-5, to show that MG and his sons lived as a family – By applying ss.17 and 18 of the Evidence Act, it is convincing that MG made a statement describing appellant No. 1 and respondent No. 1 as his sons and treated as an admission by record – This statement satisfies the ingredients of s.18 of the Evidence Act – Further, in the absence of contrary evidence and withdrawal of admission or explained through admissible evidence, the admission in the mortgage deed, viz., Ex. B-6, coupled with the joint patta and voters lists, declares the status of appellant No. 1, respondent No. 1, along with respondent No. 3 as the sons of MG – At this juncture, the status derived through an admission in Ex. B-3 vis-à-vis appellant No.1 as a natural corollary could be extended to appellant No.3 as a child/daughter of MG – This is an inescapable consequential conclusion which the Court has to record – Once the status of the parties, other than respondent No. 3, is established as the extended family of the propositus, irrespective of whether the marriages of appellant No. 2 and respondent No. 2 with MG are void or voidable, denying the children of MG a share in the property of notional partitioned in favour of MG, is unsustainable in law and fact – Also, applying the principle laid down in Revanasiddappa and another v. Mallikarjun and others on entitlement of share to the children of void and voidable marriages, the judgments under appeal are set aside. [Paras 15.1, 16, 17, 18]Evidence Act, 1872 – Admission:Held: Admission is a conscious and deliberate act and not something that could be inferred – An admission could be a positive act of acknowledgement or confession – To constitute an admission, one of the requirements is a voluntary acknowledgement through a statement of the existence of certain facts during the judicial or quasi-judicial proceedings, which conclude as true or valid the allegations made in the proceedings or in the notice – The formal act of acknowledgement during the proceedings waives or dispenses with the production of evidence by the contesting party – The admission concedes, for the purpose of litigation, the proposition of fact claimed by the opponents as true – An admission is also the best evidence the opposite party can rely upon, and though inconclusive, is decisive of the matter unless successfully withdrawn or proved erroneous by the other side. [Para 13.1] |
