SUDHA @ SURDHA KUMARI Vs. SMT. OMWATI

JUDGEMENT

(1.) The revision is against the dismissal of application for amendment of the plaint by the minor plaintiff, who has sued through a next friend grandfather. The suit is against the first respondent describing her as the second wife of the plaintiff's father. The plaintiff's own mother had filed a suit for maintenance in 2000 but did not prosecute it and she went missing. The father is reported to have died on 18.01.2004. In the suit, there is an averment in the plaint that the father had married the first respondent as the second wife two years prior to his death. On such averment in the plaint, the plaintiff has admitted herself to be entitled to a half share and the other half share as belonging to the first respondent.

(2.) After the commencement of the trial, the amendment is sought on the ground that there had been no form of dissolution of marriage between her father and her mother till the year 2000 when a suit for maintenance had been filed by the mother and even when she went missing. So long as there was no dissolution of marriage, the father could not have taken a lawful marriage with the first respondent. The admission made by her was therefore erroneous and the amendment was therefore required to make a claim of the whole of the property and to state clearly that the first respondent could not be the lawfully wedded wife of the first respondent. On the objections taken by the respondent to the application for amendment, the trial Court has dismissed the application on two lines of reasoning: (i) under the amended provisions of Order 6 Rule 17 CPC, the amendment cannot be brought after the commencement of the trial unless the matter pleaded could not have been brought in spite of due diligence and could not have raised the matter before the commencement of trial; (ii) the plaintiff had made an admission regarding the defendant's entitlement to a half share and the same cannot be withdrawn.

(3.) I would find both the reasons given by the court below to be not tenable in law under the special facts and circumstances of the case. When the suit was prosecuted by the plaintiff when she was still a minor and represented through her next friend, the Court does not cease to be a pataria parens to a minor. The proposal as a next friend to a minor is invariably for the purpose of prosecuting a litigation and the courts have the power to bring appropriate correctives to protect the interest of the minor at all times. On the given set of facts which are not denied, if there is, therefore, a concession or admission made which is not tenable in law that was also require to be corrected. The fact that the plaintiff's mother filed a suit for maintenance in the year 2000 and that she was living at that time is not denied. The fact that the father died in 2004 is also not denied. Between 2000 to 2004, if the father had married yet another person, such a marriage cannot be valid unless the marriage of the father with her mother had been dissolved in some way. The proof of death of the mother must be otherwise available. A presumption of death can also be not inferred in this case since Section 108 of the Evidence Act makes possible such an inference of civil death only in a circumstance where a person is not known to be alive within 7 years by persons who would have normally known of such death. This Section itself is an exception to Section 107 of the Evidence Act which makes a larger presumption that when the issue is if any person is dead, any person who is known to be alive within a period of 30 years shall be presumed to be not dead. The presumption therefore is to contrary that the mother must be presumed to be still alive on the date of death of the father on 18.01.2004. A legal presumption is a legal nicety which a party cannot be expected to know. If it was not properly set forth and the plaintiff was making an admission, it should surely be permitted to be explained. An admission is not conclusive at all times and could be explained under Section 23 of the Evidence Act. Again, the principle of law is that no title to property can be transferred by admission (see: Ambika Prasad Thakur Versus Ram Ekbal Rai, 1966 AIR(SC) 605). The Supreme Court has also held in a subsequent judgment that while admission is at all times the best form of evidence and may relieve a party of proving things admitted, it does not create any title (Avtar Singh and others Versus Gurdial Singh and others, 2006 12 SCC 552). A person cannot invest title in another by mere admission. Consequently if the plaintiff had at some point of time stated that the defendant was a co-owner, but it was based on a wrong legal basis, it is fair enough that the party explains the admission or even seek for withdrawal of such a version. The law that amendment shall not be allowed or permitted to resile from an admission must be understood in a context of what admission cannot be withdrawn. A matter where an admission results in an estoppel may be such as that another person has altered the position and suffered a detriment. In a proceeding if the plaintiff makes an admission regarding the status and comes by a proper advice on the legal incidence of such admission, the Court shall be lenient to provide for an explanation or withdrawal of such an admission sought on proper basis.