LAW FOR ALL

Evidence Act, 1872-ss. 58 and 145-Document without signature-Admitted by executor-Document has bearing effect on limitation-Not considered by High Court-Hence matter remitted back for reconsideration- Code of Civil Procedure, 1908-Order. 41 r. 31. Pleadings-Necessity of-On jurisdictional facts-Held: A jurisdictional fact need not necessarily be pleaded. Respondent Nos. 1 and 2 (plaintiffs) filed a suit against the appellants (defendant Nos. 2, 3 and 5 to 7) and respondent No. 3 (defendant No. 1) claiming 2/3rd share in the property described in Schedule A to the plaint and 4/9th share in the property described in Schedule B to the plaint and seeking direction to defendants 1 to 3 to render fair and proper accounts, in respect of the poultry business which was being run in Schedule B property, from the year 1968 and for future profits thereon. Plaintiffs claimed the properties as members of Hindu undivided family. Defendant No. 1 - respondent No. 3 was the 'Karta' of the family. It was alleged by the plaintiffs that their father (defendant No. 1 - respondent No. 3) had made investments for the poultry business started by the appellant Nos. 1 and 2. Arrangement was entered into between the parties that profits of the said business was to be shared by their grandfather on one hand and their father and appellant No. 1 on the other hand equally after giving due credit to the expenditure and interest to investments. Land was purchased in the name of the grandfather and appellant No. 1 from the money advanced. Poultry business was started on that. With the profits from the poultry business a tube manufacturing plant was installed. On death of their grandfather they inherited 2/3rd undivided interest in the two business. Defendant No. 1 (father of the plaintiffs) supported their case. Appellants (defendant Nos. 2 and 3) denied the allegations in the suit. They also took the plea that the suit was barred by limitation. Defendant Nos. 2 and 3 pleaded that the busineses were exclusively theirs. They had started the same after taking loan from Bank. They filed Exhibit B-8 showing that the accounts had been settled by and between the parties on 30.05.1979. They averred that even if allegations of the plaintiffs were correct, they were entitled to only 1/2 share in the land. Defendant No. 1 had admitted its execution by him. Trial Court by a preliminary decree directed partition of the schedule properties and rendering proper accounts in respect of 1968 onwards. High Court dismissed the appeal. It did not take into consideration Exbt B.8 on the ground that the same did not bear anyone's signature. In appeal to this Court, appellants contended that High Court in having failed to take into consideration the effect to Exhibit B-8 committed serious error; that even though no averment was made with regard to this document in the Written Statement, but in view of the fact that defendant No. 1 admitted the execution thereof, the same should have been taken into consideration and that there was nothing to show as to how High Court came to a conclusion that plaintiffs and defendant No. 1 had 2/3rd share in the business venture. Citation: 2007 AIR 2380,2007(7 )SCR201 ,2007(10 )SCC296 ,2007(8 )SCALE191 ,2007(8 )JT167Partly allowing the appeal and remitting the matter to High Court, the Court HELD: 1. In the fact situation of this case, particularly when the limitation issue required determination, Ex. B-8, should have received serious consideration at the hands of the courts below. [Para 26] [211-C, D] 2. The reasoning of the High Court in regard to Ex. B-8 cannot be accepted. Plaintiffs (Respondent Nos. 1 and 2) were claiming the property as members of the Hindu undivided family. Admittedly, the interest of the Hindu undivided family was being looked after by grand father of the plaintiffs and after his death by defendant No.1 (Respondent No.3). Correspondences were exchanged by and between Appellant Nos. 1 and 2 only with the grandfather and defendant No.1 (Respondent No.3). Yet again admittedly, defendant No.1 (Respondent No.3) was the manager of the Hindu undivided family. His dealing with the appellant in regard to the affairs of the business will have a direct bearing in the matter of determination of the issues raised before this court. [Para 21] [209-G, H; 210-A, B] 3. An admission made by a party can be used against him. When such admission is made by a Karta of the Hindu undivided family, who is managing the family property as well as family business affairs, the same would be a relevant fact. When a claim was made by the plaintiffs for rendition of accounts in the lis, issuance of a document purported to have been authored by one of the parties was required to be taken into consideration. In terms of Section 58 of the Indian Evidence Act, 1872, a thing admitted need not be proved. [Paras 22 and 23] [210-B, C, D] Shreedhan Govind Kamerkar v. Yesahwant Govind Kamerkar and ANOTHER, [2006] 14 SCALE 174, referred to. 4. It is also a trite law that when in cross-examination a witness accepts the correctness of a document, the same would be relevant. A pleading in regard to existence of a document may be necessary for advancing the case of a party, but when a witness admits a document to be in his own handwriting without anything more, the effect thereof may have to be considered having regard to the provisions contained in Section 145 of the Indian Evidence Act in terms whereof the only requirement would be that his attention is drawn before a writing can be proved. These relevant facts have not been considered by the High Court. The High Court merely proceeded on the basis that Ex.B-8 did not contain anybody's signature. If defendant No.1 accepted the contents of the said document, which, according to him were noted by him from the books of accounts, authenticity thereof is not in question, and, thus, even in absence of books of accounts, relevant pages whereof were found to have been torn, the High Court ought to have taken the same into consideration as well as the admission on the part of defendant No.1 and the effect thereof. Such an admission could be taken into consideration both for the purpose of arriving at a finding in regard to the fact as to whether a full and final settlement of accounts had been arrived at, which was a relevant fact as also for determining the question of limitation. [Para 24] [210-D-G] 5. There is no document in writing to prove partnership. Accounts had not been demanded by the plaintiffs or the defendant no.3 for a long time. Even an oral partnership had not been proved. What was the subject matter of the partnership had also not been considered by the High Court. A share in a joint venture, in absence of any document in writing, must be determined having regard to the conduct of the parties. The High Court proceeded on the basis that the plaintiffs and defendant no.1 had 1/2 share in the property in terms of Section 45 of the Transfer of Property Act. If the said immovable property formed assets of the joint venture, the same would be an indicia to determine the shares held by the parties thereto. Ordinarily, the extent of an involvement made shall be the criteria for determining the share of the co-entrepreneurs. In absence of terms and conditions of the joint venture having not been reduced to writing, conduct of the parties how they dealt with affairs of the business would be relevant. [Para 25] [210-H; 211-A, B, C] 6. If the contents of Ex. B-8 were accepted, it was not for the High Court to consider the consequences flowing therefrom, and, thus, but the fact whether the figure(s) contained therein could be verified from the books of account might not be very relevant. Whether, it would be in consonance with the pleadings of appellants was again of not much significance if it can be used for demolishing the case of plaintiffs and defendant No.1. If the figures contained in Ex. B-8 were accepted, it was for defendant No.1 to explain the same and not for appellants. The High Court thus committed a manifest error in not taking into consideration the contents of Ex. B-8 in its proper perspective. [Para 27] [211-E, F, G] 7. In terms of Section 3 of the Limitation Act, it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties. Such a jurisdictional fact need not, thus, be pleaded. [Para 27] 8. It was for the High Court to frame appropriate points for its determination in the light of the submissions made on behalf of appellants in terms of Order 41 Rule 31 CPC. Thus, apart from Issues regarding settlement of accounts under Exbt. B-8 and limitation, other points which for its consideration including the extent of the share of plaintiffs and defendant No.1 were required to be specifically gone into particularly in view of the fact that such a contention had been considered by the Trial Judge. Issue regarding Exbt. B-8 and limitation. therefore, require fresh consideration at the hands of the High Court. It may also be necessary for the High Court to consider the applicability of the relevant articles of the Limitation Act. [Paras 28, 29 and 30] [212-H; 213-A, B] A. Subba Rao for the Appellant. T.L.V. Viswanatha Iyer, Sr .Adv., P.S. Narasimha, Sridhar Polaraju, D. Julius Riamei, Avijeet Kr. Lala, Dr. K.P. Kaylash Nath Pillai and P.V. Dinesh for the Respondents.