Bhagyarathi Das And Another v. Agadhu Charan Das .

L. Rath, J.:— The plaintiffs are the appellants against a confirming judgment arising out of a suit for partition instituted against the respondent-defendant. Appellant No. 2 who was the plaintiff No. 2 in the suit is the mother of appellant No. 1 (plaintiff No. 1). The plaintiffs' case is that the plaintiff No. 2 is the married wife of the defendant and out of their wedlock the appellant No. 1 was born. The suit properties are the ancestral properties of the parties. The defendant, for two years preceding the suit, started neglecting the plaintiffs and squandering the family properties for inconsequential amounts and on protest of the plaintiffs, the defendant threatened to drive them out. Hence the plaintiffs brought the suit for partition.

2. The defendant-respondent in his written statement completely denied any relationship with the plaintiffs and contended that the appellant No. 2 is not his wife and that on the other hand one Sushila is his wife. It was his case that appellant No. 2 is the kept of his younger brother Sashibhusan and that the appellant No. 1 was born out of their illicit relationship. It is the further case of respondent that the aforesaid Sashibhusan has set up the appellants to foist the case against him on false allegations. The learned trial court framed as many as 8 issues of which issue No. 4 was whether the plaintiffs have any right, title or interest in the suit properties and issue No. 6 was whether there is any unity of title and interest of the plaintiffs and the defendant in the suit property and if not if the suit for partition was maintainable ? The main question however, for decision, which arose out of the pleadings of the parties was that whether appellant No. 2 is the wife of the defendant and whether appellant No. 1 is the son of the defendant ? Though no such direct issue was framed regarding the question of marriage of appellant No. 2 with the defendant and sonship of the appellant No. 1, the relationships were discussed by the trial court while discussing the issue Nos. 4 and 6. On consideration of the evidence, the learned Subordinate Judge, Puri came to the conclusion that appellant No. 2 is not the wife of the respondent and appellant No. 1 is not his son on such finding, he dismissed the suit. In appeal the lower appellate court confirmed the findings of the trial court and also accordingly dismissed the appeal.

3. In appeal the learned Additional District Judge, Puri at one stage observed as follows:—

“On the pleadings of the parties, the main issues should have been if plaintiff No. 2 Sadhabani was the wife and plaintiff No. 1, the son of the defendant. No such issue has been framed in the court below. The learned Sub-Judge, however, proceeded to decide the above question of relationship under the aforesaid two issues. At the opening of the appeal, I thought, it was a fit case for remand with a direction to the learned Sub-Judge to frame a pointed issue, give further opportunity to both parties to lead further evidence if they so desired and to decide the case afresh. The learned lawyer for the respondent however contended that the issues framed covered the question of relationship and so there was no necessity of remand. The learned lawyer for the appellants did not seriously press for remand. On perusal of the appeal memo I find that no ground has been taken in the matter of framing of issue and there is no hint for remand. So, I reviewed my thought and decided to dispose of the appeal on merits.”

4. If the lower appellate court felt that for ends of justice the case needed a remand, then whether the lawyer for the appellants did press for the remand or whether any such ground was taken in the grounds of appeal, should not have halted the court from making the required order. If an order of remand is otherwise justified or is called for within the scope of Order 41, rule 23-A, C.P.C, and the lower appellate court felt that retrial of a particular issue was necessary, it was his duty to remand the case for such trial.

5. While admitting this appeal for hearing the matter was also taken notice of by this Court and it was observed that Exts. 1, 2 and 3 which are said to be written by defendant containing acknowledgement of his marriage with appellant No. 2, were proved by the appellant No. 2 herself. The trial Judge did not record a clear finding of proof of the documents as formal proof had been dispensed with on the defendant's side and the lower appellate Judge had refused to attach any importance to the documents as having not been properly proved. It was as such felt that since the marriage of appellant Mo. 2 with the respondent and relationship of the appellant No. 1 with the respondent is in issue and the addressee of letters proved the letters containing the acknowledgement of the marriage and such relationship of the appellant No. 1, the matter should be permitted to be examined in second appeal. However, to make the record straight, it must be stated that proper facts were not brought to the notice of the Court and it was factually incorrect that Exts. 1, 2 and 3 were proved by the second plaintiff herself. The second plaintiff was examined as p.w 1 on 10-8-1977 whereas Exts. 1, 2 and 3 were filed on the next day on 11-8-1977 with a petition to accept the same. The document were accepted after hearing and were marked as Exts. 1, 2 and 3 ‘without objection’, as would appear from the ‘List of Documents’ admitted in evidence on which the endorsement ‘without objection’ is initialled by the Subordinate Judge on 11-8-1977. These documents were further proved on the same day through the evidence of p.w 4 who stated to be acquainted with the handwriting of the respondent and deposed that these letters were written by the respondent as also the addresses on the envelopes (Exts. 1.a. 2.a and 3.a).

6. These letters, Exts. 1, 2 and 3 even though have not been proved by appellant No. 2 (p.w 1) but by p.w 4 yet are of great relevance and importance. These letters, if true, would in fact constitute admission of respondent regarding his marriage with appellant no. 2. These letters were admitted into evidence without objection which means that the contents of the letters were also admitted into evidence ‘without objection’. Whenever a document is admitted in course of trial ‘without objection’ it unquestionably goes to say that the contents of the document are also admitted. In P.C Purushottama Reddiar v. S. Perumal . 1972 1 SCC 9, it was held that where certain reports were marked without any objection, it was not open to the respondent to object to their admissibility and that once such document was properly admitted, the contents of the document were also admitted into evidence though these contents may not be conclusive evidence. Similar view was expressed in two decisions of this Court reported in Land Acquisition Officer D.I.S Cuttack v. Madan Gajendra . 411975 C.L.T 849., in which it was held that once a sale deed is admitted without objection, the contents thereof are also held to be proved. In Budhi Mahal v. Gangadhar Das . 461978 C.L.T 287., the same view was again reiterated.

7. However, the learned lower appellate court has completely ignored Exts. 1, 2 and 3 from consideration stating that the lawyer for the appellants conceded during the argument that these three letters had not been properly proved. The concession itself was ill-founded and did not bind the learned Additional District Judge. Even without being sent to the handwriting expert for examination, the documents had beer properly proved having been admitted into evidence without objection and also by the evidence of p.w 4. It is wholly another matter to say whether any credibility can be attached to the documents. Besides the concession of the lawyer for the appellants which the learned Additional District Judge has relied upon to brush aside Exts. 1, 2 and 3 were of no effect As has been stated above, it is not true that the documents were not properly proved. An erroneous concession of law made by a lawyer does not bind the party. It was urged before me by Mr. R.K Mohanty on the authority of Nanda Kishore Rai v. B. Ganesh Prasad Ray . A.I.R 1929 All. 446., that an admission of partys' pleader whether of law or fact binds the party and it would be doing a great injustice to a subordinate court to reopen the matter in appeal which has been decided by that court on the admission of a pleader or a party. The decision has no application since, there has been no admission of the Advocate but there is merely a concession on a question of law which is also found to have no basis in law itself. At any rate, such authority cited by Mr. Mohanty would have no effect in view of the observations of the Supreme Court in Moran Mar Basselies Catholicos v. Most Rev. Mar Poulose Athanasius . A.I.R 1954 S.C 526., wherein it was held that erroneous concession on law made by the defendant's Advocate in that case could not be relied upon for saving the plaintiff. The learned Additional District Judge thus fell into a grave error in completely omitting from consideration of the three vital documents and thus his finding on the question of relationship of the parties has been reached in non-consideration of some most material evidence and hence is liable to be interfered with.

8. The observation made by the learned Additional District Judge regarding these exhibits seems to have been prompted by the fact that the documents were not sent for examination by the handwriting experr. It is true that in the cross-examination of p.w 4, a suggestion was given that those documents were not in the handwriting of the respondent. The respondent himself was also examined on 16-8-1977 as d.w 3 and denied the authorship of Exts. 1, 2 and 3. An objection was filed by the plaintiffs on the very day i.e, on 16-8-1977 praying for sending the documents Exts. 1, 2, 1.a, 2, 2.a. 3 and 3.a to a handwriting expert for comparison with the admitted signatures of the defendant in the Vakalatnama and the written statement. The defendant did not have any objection to the petition and hence the prayer was allowed and the plaintiffs were directed to deposit Rs. 200/- by 20-8-1977 towards the fees of the expert. However, on 20-8-1977 the plaintiffs did not deposit the expert fees and instead a memo was files by plaintiff No. 2 stating that she had no capacity to deposit the expert fees and under the circumstances the documents were not sent for examination by a handwriting expert.

9. Admittedly, the plaintiffs are not staying with the defendant either for the reason that they are not in any way related to the defendant or for the reason that while being so related, they have been threatened to remain away from the house in view of the relationship of the defendant with Sushila who is otherwise known as Benga and with whom the defendant claims to be married. Under these circumstances it is quite possible that the appellant were not possessed with the means to deposit the fees of the expert. The learned lawyer for the appellants submitted before me that given the opportunity, the appellants would now avail the same to send the documents for examination by an expert and that they may also move the legal Aid Organisation for assistance for the purpose. Admittedly, the Legal Aid assistance was not available by 16-8-1977. Besides the views of the learned lower appellate court so far as consideration of the voter lists that is Ext. 6, Exts. E and E/1 are concerned does not appear to be correct. Ext. 6 is the voter list of village Sahajapur of the year 1970 and therein plaintiff no. 2 has been shown as the wife of the defendant. Doubtless, Benga has been shown there also as the wife of the defendant. Ext. E/1 is also the voter list of 1970 in respect of the village Jamunajharpada which is the village of the father of plaintiff no. 2. In such voter list plaintiff No. 2 was described as the daughter of Pankaja Giri i.e, p.w 6. In Ext. E, the voter list of 1975 of the village Jamunajharpada the plaintiff no. 2 has also been shown as daughter of p.w 6. It seems that the lower appellate court discarded the voter lists as evidence of marriage since the plaintiff no. 2 was recorded at one place as wife of defendant no. 2 and at another place as daughter of p.w 6. However, it is perfectly possible and it is common knowledge that a particular person may be registered as voter at two or more places and while staying at her father's place, there was nothing unusal for plaintiff no. 2 to have been described as the daughter of p.w 6. The rejection of the voter lists as evidence of marriage on such basis thus does not confirm to reason.

10. On consideration of the above facts, I feel that in peculiar facts and circumstances of the case, the appellants had not been able to avail the opportunity to get the documents examined by an expert, and since the learned lower appellate court has completely kept the documents out of consideration on an erroneous basis, and he himself felt that remand of the case would have better served the ends of justice for a pointed finding regarding the marriage of appellant no. 2 with the defendant and the sonship of the appellant no. 1, I think that it will be in the interest of justice to afford such opportunity to the appellants and to remand the case to the trial court for decision on the issue of marriage of appellant no. 2 with the defendant and whether appellant No. 1 is the son of the defendant, The trial court shall accordingly frame an issue specifically on the issue of marriage of plaintiff no. 2 with the defendant and whether plaintiff no. 1 is the son of defendant through plaintiff no. 2 and afford opportunity to the plaintiffs to get the documents (Exts. 1, 1.a, 2, 2.a, 3, and 3.a) examined through a handwriting expert and also allow the parties to lead further evidence if they so desire on such issues alone. In the result, the judgments and decrees of the courts below are set aside and the case is remanded to the trial court as directed above. The suit being already an old one, the records of the case be sent to the trial court immediately which will give notice to the parties after receipt of the record and shall dispose of the suit within three months from the date of receipt of the record. There shall be no order as to costs.

11. Case remanded.