2024 INSC 47 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024

(@ SLP(C) No. 13486 OF 2007)

RAJA GOUNDER AND OTHERS ...APPELLANT(S)

VERSUS

M. SENGODAN AND OTHERS ...RESPONDENT(S)

JUDGEMENT

S.V.N. BHATTI, J.

1. Leave granted.

2. The Defendant Nos. 3 to 5 in O.S. No. 357 of 1985 before the Court

of the Subordinate Judge, Sankari, Coimbatore District, Tamil Nadu, are

the Appellants in the Civil Appeal. The Appellants assail the judgment and

decree of the Trial Court and the High Court of Judicature at Madras,

dismissing the suit filed by Respondent No. 1 and Respondent No. 2 for

partition and separate possession of the plaint schedule properties.

Signature Not Verified

Digitally signed by
SWETA BALODI
Date: 2024.01.19
17:37:02 IST
Reason:

1
I. FACTUAL BACKGROUND

3. A genealogy is prefaced to appreciate the relationship between the

parties: -

4. Respondent Nos. 1 and 2 in this Civil Appeal were the Plaintiffs in

O.S. No. 357 of 1985 before the Trial Court filed for partition and separate

possession of plaint schedule properties. The plaint schedule consists of

three items of agricultural land in Amani, Kliyanoor, Agraharam and

Pallipayam villages of Tiruchengode Taluk. The suit was filed against

Respondent Nos. 3 and 4 herein. During the pendency of the suit, the

Appellants filed I.A. No. 1019 of 1987 and were impleaded by the Trial

Court as Defendant Nos. 3, 4 and 5.

5. Muthusamy Gounder is the propositus of the parties to the suit and

the claim for partition arose on his demise in the year 1982. The plaint

averments are that Respondent No. 1 is the son of the propositus through

2
Respondent No. 2/Ramayee. Respondent No. 3 is also the son of the

propositus through Respondent No. 4/Ammasi Ammal. The marriage of

Respondent No. 2 with the propositus is alleged to have happened in the

early 1950s. It is averred in the plaint that Respondent Nos. 1 to 4 lived

together and had a common kitchen during the lifetime of Muthusamy

Gounder. Respondent Nos. 1 and 2 claim that a coparcenary/joint Hindu

family existed, and Respondent Nos. 1 to 3 inherited the plaint schedule

properties. The plaint schedule properties are treated as joint

family/ancestral properties. The demand of Respondent Nos. 1 and 2

through legal notice dated 21.06.1984 did not result in a reply from

Respondent Nos. 3 and 4, or result in partition, the suit for partition of

plaint schedule into three equal shares was filed and allot to Respondent

Nos. 1 and 3, each one such share. The other share notionally allotted to

Muthusamy Gounder, and since he died in 1982, is divided and allotted to

Respondent Nos. 1 to 4 in accordance with law.

6. We have specifically referred to the share demanded by

Respondent Nos. 1 and 2 in O.S. No. 357 of 1985 because the shares of

the parties resulted in change with the impleadment of Appellants.

Respondent Nos. 3 and 4 filed written statements denying the factum of

marriage between Respondent No. 2 and Muthusamy Gounder, stating

3
that Respondent No. 1 alone is a member of the Hindu Undivided Family

(HUF) of Muthusamy Gounder.

6.1 As a natural result of the denial of marriage and relationship

between Muthusamy Gounder and Respondent No. 2, the other

averments in the plaint, namely, the existence of coparcenary and

ancestral properties; the rights of Respondent Nos. 1 and 2 for partition,

are specifically denied. The Appellants as Defendant Nos. 3 to 5 claimed

that Appellant Nos. 1 and 3 are the son and daughter, respectively, of

Muthusamy Gounder through Appellant No. 2/Chinnammal. The

Appellants further averred that upon the demise of the propositus, the

parties to the suit have inherited the plaint schedule properties as the legal

heirs of the late Muthusamy Gounder. The Appellants and other legal

heirs of Muthusamy Gounder were in joint possession and enjoyment of

the plaint schedule properties. Therefore, the Appellants, along with other

legal heirs/successors of Muthusamy Gounder, pray for partition of the

coparcenary headed by Muthusamy Gounder. The Trial Court considered

the following issues: -

1. Whether the Plaintiffs are entitled to the reliefs claimed

in the suit?
2. Whether Defendant Nos. 1 to 5 are also entitled to
shares as legal heirs of the deceased Muthusamy
Gounder in his estate?

4
 3. To what relief?

7. The oral evidence of PW1 to 3 and DW1 to 5 was adduced. Ex. A-1

to A-10 and Ex. B-1 to B-10 were marked by the parties.

8. The Trial Court examined the claim for partition from the perspective

of the existence of a coparcenary/joint Hindu family and that the extended

family of Muthusamy Gounder through Respondent No. 2 and Appellant

No. 2 as wives of Muthusamy Gounder. In fine, the Trial Court examined

the existence of coparcenary with Respondent Nos. 1 and 2 and Appellant

No. 1, and the status of marriage of Respondent No. 2 and Appellant No.

2 with Muthusamy Gounder, and a coparcenary existed with the extended

family members. The Trial Court held that Respondent No. 4 herein

admittedly is the first and legally wedded wife of Muthusamy Gounder.

Appellant No. 2 and Respondent No. 2 did not produce evidence to prove

the factum of the marriage with Muthusamy Gounder. 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

Muthusamy Gounder. The Trial Court records a categorical finding that

Appellant No. 2 and Respondent No. 2 are not the wives of Muthusamy

Gounder, and consequently, the status of the children through the

extended family as coparceners was rejected.

5
9. Appeal Nos. 394 and 929 of 1991 were filed before the High Court

of Judicature at Madras by Respondent Nos. 1 and 2 and the Appellants

herein. Through the impugned judgment, the appeals filed at the instance

of extended family members of Muthusamy Gounder, stood dismissed.

The High Court, in all particulars, accepted the view of the Trial Court on

the status of marriage claimed by Appellant No. 2 and Respondent No. 2

as not established by the parties and the claim for partition on the footing

of the existence of the coparcenary with the parties of the suit would not

arise. The appeals stood dismissed by the common impugned judgment

dated 26.09.2006.

9.1 Hence, the Civil Appeal at the instance of the Appellants in Appeal

No. 929 of 1991.

II. SUBMISSIONS

We have heard the Counsel appearing for the parties.

10. Advocate N.S. Nappinai, appearing for the Appellants, accepting the

findings of fact recorded by the Courts below on the status of Respondent

No. 2 and Appellant No. 2 as part of the extended family of Muthusamy

Gounder, argues a substantive point viz., both the Courts below fell in a

serious flaw in not moulding the relief from admitted

circumstances/evidence particularly when the suit filed is for partition and

6
separate possession of the plaint schedule properties. It is argued that the

Appellants and Respondent Nos. 1 and 2, assuming failed in establishing

the status of a valid marriage of Appellant No. 2 and Respondent No. 2

with Muthusamy Gounder, still the entitlement of a share as sons/children

of Muthusamy Gounder through the extended family of Muthusamy

Gounder should have been considered. The documentary evidence

shows that Muthusamy Gounder treated Appellant No. 1, Respondent No.

1 and Respondent No. 3 as his sons. Therefore, Appellant No. 1 and

likewise Respondent No. 1 even are children of Muthusamy Gounder

through a void or voidable marriage, still the children of Muthusamy

Gounder through extended family are entitled to a share in the half share

of Muthusamy Gounder in the schedule properties. The Counsel places

reliance on Revanasiddappa and another v. Mallikarjun and others1,

for the proposition that the children of Appellant No. 2 and Respondent

No. 2 will be entitled to a share in the property, which would have been

allotted to Muthusamy Gounder in the notional partition of plaint schedule

properties. The Counsel places reliance on Ex. B-6, a registered mortgage

deed dated 01.11.1976, executed by Muthusamy Gounder in favour of

Karuppana Gounder and on Ex. B-3 dated 27.04.1984, a joint patta in

favour of Muthusamy Gounder and all his three sons. The unrebutted

1 (2023) 10 SCC 1

7
documentary evidence in Exs. B-3 and B-6 constitute, firstly, an admission

in the form of a substantive piece of evidence by Muthusamy Gounder on

the status of Appellant No. 1 and Respondent No. 1 as his sons, coupled

with corroborative documentary evidence in Ex. B-4 and B-5, electoral

rolls. Respondent No. 3 claims through the common propositus, i.e.,

Muthusamy Gounder, and these admissions are valid in law on

Respondent No. 3. This is the best evidence from none other than the

common propositus. The Appellants and Respondent No. 1 are entitled to

a share in the share allotted to Muthusamy Gounder. Therefore, the

Counsel argues that given the settled legal position on the status of sons

of Muthusamy Gounder through Appellant No. 2 and Respondent No. 2,

a decree for partition though not as prayed for, is passed, but a preliminary

decree of partition firstly on plaint schedule properties between

Muthusamy Gounder and Respondent No. 3 is made, and a further

decree, distributing the share of Muthusamy Gounder to Appellant Nos. 1

and 3 and Respondent Nos. 1 and 3 is rendered.

11. Advocate Vinodh Kanna B., appearing for Respondent Nos. 3 and

4, contends that the findings of fact recorded by the Courts below do not

warrant reconsideration of evidence by this Court under Article 136 of the

Constitution of India, and alternatively, the evidence is wanting on the

status of Appellant Nos. 1 and 3 and Respondent No. 1 as the children of

8
Muthusamy Gounder. The alternative argument now canvassed before

the Supreme Court is not available in the circumstances of the case or

from the material on record. The proof of status as children of Muthusamy

Gounder is a condition precedent for applying the ratio of

Revanasiddappa (supra), and there is no evidence on this crucial aspect

to mould the relief. Therefore, the judgements impugned are sustainable

in law and fact. He prays for the dismissal of the Civil Appeal.

III. ANALYSIS

12. We have perused the record and noted the rival contentions

canvassed by the Counsel, briefly reiterated in this Civil Appeal, the claim

for partition in the share notionally allotted to late Muthusamy Gounder is

pressed for. Thus, it presupposes the Appellants do not press the claim

as coparceners of the family of Muthusamy Gounder; however, from the

material on record, they claim a share from the share as the children of

Muthusamy Gounder. The claim for a share depends on the application

and appreciation of Exs. B-3 to B-6.

13. Sections 17 and 18 of the Indian Evidence Act, 1872 (“the Act”)

defines “admission” and “admission by party to proceeding or his agent”.

Section 17 of the Act reads thus: -

“17. Admission defined admission is a statement, oral or

documentary, which suggests any inference as to any fact in issue

9
 or relevant fact, and which is made by any of the persons, and under
the circumstances, hereinafter mentioned.”

13.1 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.

13.2 The above being the position, pithily stated on what constitutes an

admission, Section 17 of the Act does not come in aid to answer or

appreciate the documentary evidence marked in the suit. Therefore,

Section 17 has to be read along with Section 18 of the Act, which reads

thus:-

“18. Admission by party to proceeding or his agent.––

Statements made by a party to the proceeding, or by an agent to

10
 any such party, whom the Court regards, under the circumstances
of the case, as expressly or impliedly authorised by him to make
them, are admissions.
by suitor in representative character.––Statements made by
parties to suits suing or sued in a representative character, are not
admissions, unless they were made while the party making them
held that character.
Statements made by ––
(1) by party interested in subject-matter.––persons who have
any proprietary or pecuniary interest in the subject-matter of the
proceeding, and who make the statement in their character of
persons so interested, or
(2) by person from whom interest derived.––persons from whom
the parties to the suit have derived their interest in the subject-
matter of the suit, are admissions, if they are made during the
continuance of the interest of the persons making the statements..”

13.3 Section 18 of the Act deals with:

(i) admission by a party to a proceeding,

(ii) his agent,

(iii) by a suitor in a representative character,

(iv) statements made by a party in trusted subject matter,

(v) statements made by a person from whom interest is derived.

The qualifying circumstances to merit as admission are subject to

satisfying the requirements.

14. The Privy Council in Gopal Das and another v. Sri Thakurji and

others2, held that a statement made by a person is not only evidence

2 AIR 1943 PC 83

11
against the person but is also evidence against those who claim through

him. Section 18 of the Act lays down the conditions and the requirements

satisfied for applying to a statement as an admission. We keep in our

perspective Sections 17 and 18 of the Act while appreciating Exs. B-3 and

B-6.

15. The Appellants rely on Exs. B-3 to B-6 to evidence that Muthusamy

Gounder treated Appellant No. 1, Respondent No. 1 and Respondent No.

3 as his sons. Now let us examine whether these exhibits, firstly, contain

an admission on the relevant fact in issue and secondly, whether they

satisfy the requirements under Section 18 of the Act. Ex. B-6 is the

registered mortgage deed dated 01.11.1976 executed by Muthusamy

Gounder/propositus in favour of one Karuppana Gounder. Sy. No. 66 of

Pallipayam, Agraharam Village was the mortgage deed executed by

Muthusamy Gounder in favour of Karuppana Gounder. The mortgaged

property is one of the items in the schedule in O.S. No. 357 of 1985.

Muthusamy Gounder in Ex. B-6 stated as follows: -

“Mortgage deed executed in favour of Karuppannna Gounder, son

of…Vellaya Gounder, residing at Vaagaikkadu, Cusba
Elandaikkuttai Village, Thiruchengodu Taluk, Salem District.
By Muthusamy Gounder (1) son of Sengoda Gounder, residing
at Malagoundenpalayam, Kaliyanoor Ayan Village, - Do - Taluk, -
Do - District, Guardian and father of the minors Subramani (2) Raja
Gounder (3) and Sengodam (4), for himself and on behalf of the
minors Nos. 2 ,3 and 4.”

12
15.1 A mere perusal of the preface to Ex. B-6, mortgage deed, would

show that Muthusamy Gounder 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 is made by

Muthusamy Gounder during the subsistence of his interest in the property

mortgaged. Respondent No. 3 definitely claims through Muthusamy

Gounder for the half share notionally partitioned in favour of Muthusamy

Gounder. The Appellants also rely on the patta dated 27.04.1984

(Ex. B-3) standing in the name of Muthusamy Gounder and his sons; the

voters lists, viz., Exs. B-4 and B-5, to show that Muthusamy Gounder and

his sons lived as a family. By applying Sections 17 and 18 of the Act, we

are convinced that Muthusamy Gounder 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 Section

18 of the 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 Muthusamy Gounder. At this juncture,

we notice that 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.

13
3 as a child/daughter of Muthusamy Gounder. This is an inescapable

consequential conclusion which the Court has to record.

15.2 We make a useful reference to the judgement reported in

Nirmala v. Rukminibai3. The Division Bench of the High Court of

Karnataka considered a dispute nearer to the circumstances with the case

on hand. The decision made in this case decided the status of inheritance

of one Narayanarao among the children born out of his second marriage.

The Plaintiffs were the first wife and daughter of Narayanarao, who filed a

suit for possession of the suit properties in the estate of Narayanarao,

which devolved on the Defendants, i.e., Narayanarao’s second wife and

children. The Trial Court decreed the suit in the Plaintiffs’ favour, against

which the Defendants filed an appeal before the High Court of Karnataka.

The Defendants relied on Section 18 of the Act to point out Narayanarao’s

admission that he indeed treated the Defendants as his legally wedded

wife and legitimate children. Accepting this argument, the High Court

allowed the appeal holding that where the children from the first wife

brought a suit for possession of their father’s property disputing the second

marriage of their father, the admission of their deceased father that the

defendant, as his legally wedded wife, was binding on the Plaintiffs. We

are in agreement with the High Court of Karnataka’s consideration of the

3 AIR 1994 Kar 247

14
scope of the binding nature of admission by a common ancestor in a

matter of inheritance under Section 18 of the Act.

16. We are of the view that the statement in Ex. B-6 is a clear admission

of Muthusamy Gounder as to how he treated Appellant No. 1, Respondent

No. 1 and Respondent No. 3 as his sons. Respondent No. 3 is claiming

through Muthusamy Gounder, the common predecessor in interest;

therefore, the admission is binding on Respondent No. 3 as well. Hence,

by treating Appellant Nos. 1 and 3 and Respondent Nos. 1 and 3 as

successors in the interest of Muthusamy Gounder, the shares are worked

out. 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

Muthusamy Gounder are void or voidable, denying the children of

Muthusamy Gounder a share in the property of notional partitioned in

favour of Muthusamy Gounder, is unsustainable in law and fact. Appellant

No. 3 claims to be the daughter of Muthusamy Gounder, and the law, as

applicable to the separate share of Muthusamy Gounder, grants an equal

share to the daughter along with the sons of Muthusamy Gounder.

17. The above discussion takes us to point out a common infirmity in the

examination of issues by the Trial and the Appellate Courts. The suit is

one for partition, and the shares are dependent upon the nature of status

15
and the time at which the partition is decreed. It is axiomatic that the shares

fluctuate not only with the happening of events in the family but also with

the circumstances established by the parties to the lis. In the present case,

the claim as a coparcenary is unacceptable for want of evidence on the

factum of the marriage of Muthusamy Gounder with Appellant No. 2 and

Respondent No. 2; the courts below ought to have considered the relief

from admitted circumstances on record. Hence, the argument of

Respondent No. 3 that the status of Appellant Nos. 1 and 3; and

Respondent No. 1 as the children of Muthusamy Gounder is without

evidence is untenable and rejected accordingly. At this stage, it is apposite

to refer to the conclusions laid down in Revanasiddappa (supra):-

“81. We now formulate our conclusions in the following terms:

81.1. In terms of sub-section (1) of Section 16, a child of a marriage

which is null and void under Section 11 is statutorily conferred with
legitimacy irrespective of whether : (i) such a child is born before or
after the commencement of the amending Act, 1976; (ii) a decree
of nullity is granted in respect of that marriage under the Act and the
marriage is held to be void otherwise than on a petition under the
enactment;

81.2. In terms of sub-section (2) of Section 16 where a voidable

marriage has been annulled by a decree of nullity under Section 12,
a child “begotten or conceived” before the decree has been made,
is deemed to be their legitimate child notwithstanding the decree, if
the child would have been legitimate to the parties to the marriage
if a decree of dissolution had been passed instead of a decree of
nullity;

81.3. While conferring legitimacy in terms of sub-section (1) on a

child born from a void marriage and under sub-section (2) to a child
born from a voidable marriage which has been annulled, the
legislature has stipulated in sub-section (3) of Section 16 that such

16
a child will have rights to or in the property of the parents and not in
the property of any other person;

81.4. While construing the provisions of Section 3(j) of the HSA,

1956 including the proviso, the legitimacy which is conferred by
Section 16 of the HMA, 1955 on a child born from a void or, as the
case may be, voidable marriage has to be read into the provisions
of the HSA, 1956. In other words, a child who is legitimate under
sub-section (1) or sub-section (2) of Section 16 of the HMA would,
for the purposes of Section 3(j) of the HSA, 1956, fall within the
ambit of the explanation “related by legitimate kinship” and cannot
be regarded as an “illegitimate child” for the purposes of the proviso;

81.5. Section 6 of the HSA, 1956 continues to recognise the

institution of a joint Hindu family governed by the Mitakshara law
and the concepts of a coparcener, the acquisition of an interest as
a coparcener by birth and rights in coparcenary property. By the
substitution of Section 6, equal rights have been granted to
daughters, in the same manner as sons as indicated by sub-section
(1) of Section 6;

81.6. Section 6 of the HSA, 1956 provides for the devolution of

interest in coparcenary property. Prior to the substitution of Section
6 with effect from 9-9-2005 by the amending Act of 2005, Section 6
stipulated the devolution of interest in a Mitakshara coparcenary
property of a male Hindu by survivorship on the surviving members
of the coparcenary. The exception to devolution by survivorship was
where the deceased had left surviving a female relative specified in
Class I of the Schedule or a male relative in Class I claiming through
a female relative, in which event the interest of the deceased in a
Mitakshara coparcenary property would devolve by testamentary or
intestate succession and not by survivorship. In terms of sub-
section (3) of Section 6 as amended, on a Hindu dying after the
commencement of the amending Act of 2005 his interest in the
property of a joint Hindu family governed by the Mitakshara law will
devolve by testamentary or intestate succession, as the case may
be, under the enactment and not by survivorship. As a consequence
of the substitution of Section 6, the rule of devolution by
testamentary or intestate succession of the interest of a deceased
Hindu in the property of a joint Hindu family governed by Mitakshara
law has been made the norm;

81.7. Section 8 of the HSA, 1956 provides general rules of

succession for the devolution of the property of a male Hindu dying
intestate. Section 10 provides for the distribution of the property
among heirs of Class I of the Schedule. Section 15 stipulates the
general rules of succession in the case of female Hindus dying
intestate. Section 16 provides for the order of succession and the
distribution among heirs of a female Hindu;

17
 81.8. While providing for the devolution of the interest of a Hindu in
the property of a joint Hindu family governed by Mitakshara law,
dying after the commencement of the amending Act of 2005 by
testamentary or intestate succession, Section 6(3) lays down a legal
fiction, namely, that “the coparcenary property shall be deemed to
have been divided as if a partition had taken place”. According to
the Explanation, the interest of a Hindu Mitakshara coparcener is
deemed to be the share in the property that would have been
allotted to him if a partition of the property has taken place
immediately before his death irrespective of whether or not he is
entitled to claim partition;

81.9. For the purpose of ascertaining the interest of a deceased

Hindu Mitakshara coparcener, the law mandates the assumption of
a state of affairs immediately prior to the death of the coparcener,
namely, a partition of the coparcenary property between the
deceased and other members of the coparcenary. Once the share
of the deceased in property that would have been allotted to him if
a partition had taken place immediately before his death is
ascertained, his heirs including the children who have been
conferred with legitimacy under Section 16 of the HMA, 1955, will
be entitled to their share in the property which would have been
allotted to the deceased upon the notional partition, if it had taken
place; and

81.10. The provisions of the HSA, 1956 have to be harmonised with

the mandate in Section 16(3) of the HMA, 1955 which indicates that
a child who is conferred with legitimacy under sub-sections (1) and
(2) will not be entitled to rights in or to the property of any person
other than the parents. The property of the parent, where the parent
had an interest in the property of a joint Hindu family governed
under the Mitakshara law has to be ascertained in terms of the
Explanation to sub-section (3), as interpreted above.”

18. By applying the above principle on the entitlement of share to the

children of void or voidable marriages, the judgements under appeal are

liable to be set aside and are accordingly set aside. We allow the appeal

by passing a preliminary decree of partition for the plaint schedule

properties, firstly between Respondent No. 3 and Muthusamy Gounder.

Secondly, in the notionally partitioned share of Muthusamy Gounder, his

18
children, i.e., Appellant Nos. 1 and 3, Respondent No. 1 and Respondent

No. 3 are allotted equal shares.

19. Hence, a preliminary decree of partition, as indicated above, is

passed. The appeal is allowed accordingly. No costs.

………………................J.
[M.M. SUNDRESH]

………………................J.
[S.V.N. BHATTI]

NEW DELHI;
JANUARY 19, 2024.

19