Pleadings filed in court qualify as public documents under Section 74(2) of the Evidence Act; valid execution of Gift Deeds can exclude properties from partition.

J U D G M E N T

The preliminary decree in a suit for partition is under challenge by defendant Nos.3 and 4.

2. The plaint schedule consists of 20 items of properties. The properties originally belonged to one Nanu under Ext.A1 Partition Deed dated 02.01.1976. Nanu, in his first wife Lakshmi, had five children. One among them viz. Sukumaran is no more. Plaintiffs 1 and 2, and defendants 1 and 5 are the other children. Plaintiffs 3 to 5 are the wife and children of Sukumaran. The second wife of Nanu is one Chella. Defendants 2, 3 and 4 were born to Nanu in Chella. The plaintiffs claim partition.

3. The suit was contested by defendants 3 and 4. According to them, Nanu had executed three Gift Deeds; Ext.B1 Gift Deed in favour of the third defendant, Ext.B2 Gift Deed in favour of the 4th defendant, and Ext.B3 Gift Deed in favour of his wife Chella. Exts. B1 to B3 Gift Deeds were executed on 22.02.1990, gifting thereunder various items of properties from out of those scheduled in the plaint. It is only the remaining properties that are liable to be partitioned, is the contention.

4. The plaintiffs filed a rejoinder disputing the genuineness of the Gift Deeds.

5. The trial court held against the Gift Deeds and accordingly passed a preliminary decree for partition. The claim for equitable allotment by defendants 6 to 10, who are assignees from the donees under the Gift Deeds, was reserved to be considered in the final decree proceedings.

6. Heard Sri.T.Krishnanunni, learned Senior Counsel for the appellants and learned Senior Counsel Sri.T.Sethumadhavan on behalf of the respondents.

7. On the rival contentions of the parties and having heard the learned senior counsel on either side, the following points arise for determination :-

“(i) Is the written statement in a suit, a public document falling under Section 74 of the Indian Evidence Act ?

(ii) Have defendants 3 and 4 proved the due execution of Exts.B1 to B3 Gift Deeds ?”

8. Before I proceed to discuss on the proof of Exts.B1 to B3 Gift Deeds, it would be appropriate to refer to a litigation that had occurred in the family of Nanu even during his lifetime. It is of significance that the lis was later in point of time to the execution of the Gift Deeds.

9. The present first plaintiff had filed a suit as O.S. 151/90 against Nanu and the other members in the family viz. the parties to the present suit. Nanu was the first defendant therein. That suit was one for partition. Therein the plaintiff claimed that the properties are family properties. Ext.B5 is the plaint and Ext.B6 is the decree therein. Sukumaran, the predecessor of plaintiffs 3 to 5 herein, had filed Ext.B8 written statement in that suit denying the claim of the plaintiff that it is family property. What is relevant and of significance is Ext.B11, which is the written statement filed by Nanu along with the present defendants 3 and 4. In Ext.B11 written statement, the Gift Deeds which are in issue in the present suit (Exts. B1 to B3) were specifically adverted to. The properties covered under the three Gift Deeds were scheduled to the written statement and it was stated that the properties were conveyed under Exts.B1 to B3 Gift Deeds to defendants 3 and 4, and their mother Chella. The suit was ultimately dismissed for non-prosecution. The categoric admission of Nanu regarding the execution of the Gift Deeds, is of much significance and is to be borne in mind while evaluating the evidence regarding proof of Exts.B1 to B3 gifts.

10. Admission in the written statement is substantive evidence. The admission made by Nanu in Ext.B11 written statement filed in the suit in which all the present parties were parties, cannot be brushed aside. While the first plaintiff was examined as PW1, Ext.B11 written statement and the content was specifically put to her. However, she just feigned ignorance. Pertinently, Ext.B11 was not denied. So also, while DW1 was cross-examined, not even a question or a suggestion was put to the witness challenging Ext.