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Civil Revision No. 104 of 1950, decided on 6th June 1951, against the order of Mian Shakirulla Jan, Senior Subordinate Judge; Peshawar, dated 15th March 1950.

(a) Evidence Act (I of 1872), Ss. 21 and 145‑Former deposition by party in previous suit‑Certified copy of deposition may be placed on record to prove admission under S. 21 But to contradict, deponent with a view to impeach his credit Previous deposition should be confronted to him and he be given opportunity to explain it.

A former deposition made by a person can be used subsequent ly, either in order to contradict him with a view to impeach his credit, or if he has made therein any statement of fact, as an admission under section 21 of the Evidence Act. In the former case section 145 of the Evidence Act would apply, and the credit of the witness will not be considered to have been effectively impeached until and unless the former deposition is confronted to him and he is given an opportunity to explain it, but if that deposition is to be proved as an admission one fails to see why should it be considered necessary to confront the witness with it in order to make it a legal evidence in the case. Section 145 would not apply in the latter case, as is clear from the very wording of the section itself. An admission is a substantive piece of evidence and‑ it is not used for the purpose of impeaching the credit of the witness, or in order to contradict him, and, once it is proved, it is a well established rule of law that it is for the party making into affirmatively establish that the admission made by him was false or untrue and should, therefore, not be acted upon. There is no condition attached to section 21 of the Evidence Act that an admission would only be relevant only if it is confronted to the person making it, otherwise it would be irrelevant and inadmissible in evidence. Normally if a person has made an admission admitting the existence of a certain fact against his own interest it shall be presumed to be correct until the contrary is established.

A. I. R. 1915 P. C. 7 referred to. A. I. R. 1934 Lah. 753 and A. I. R. 1.930 Lah. 695 dissented from.

(b) Evidence Act (I of 1872), Ss. 21, 77‑Previous admission in statement made by Party in Court of law can be Proved by mere producing certified copy of statement.

If the admission is made in a previous statement in a Court of law, the law permits its proof by producing a certified copy thereof under section 77 of the Evidence Act. Once the admission is proved in the presence of the party making it, it is the duty of that party to come into the witness‑box and deny its existence, or explain the admission, and if he fails to do that, the Court would be perfectly within its right to presume against him.

K. B. Muhammad Safdar Khan and Sabahud‑Din, for Mst. Nathu Bibi, Respondent No. 1.

Khalid Mahmood, for Mst. Chano Bibi Respondent No. 4.

Reader of the Court, for Khadam Hussain and Mst. Bano Bibi, Respondent No.1.

Ahmad Bakhsh Respondent No. 5 present in person.

.‑One house (No. 4040) two shops and a kothi, situated in Mohallah Baildaran, Peshawar City, originally belonged to one Muhammad Bakhsh, who died sometime before 1933. He left behind two widows Mst. Khudeja and Mst. Babo Jan, and two sons by the names of Ahmad Bakhsh and Rahim Bakhsh defendants. The last mentioned on 27th November 1933, married lust. Nathu Bibi, who figures as a plaintiff in this case. At the time of the marriage the dower was fixed and written in the form of a deed, which, though it required 'registration was not actually registered. Under this deed Rahim Bakhsh gave to Mst. Nathu Bibi half of the house and a shop, the paternal property, which had fallen to his share according to the Muslin Law. The value of the property transferred in lieu of dower was fixed in the deed as Rs. 500. On the 28th of April 1934, Rahim Bakhsh and Mst. Nathu Bibi executed a mortgage‑deed with regard to half of the house and the shop mentioned above in favour of Mst. Amtur Rahman in lieu of Rs. 99. Subsequently by two unregistered mortgage‑deeds, dated 14th July 1938, and 15^th of July 1938, for Rs. 75 each, the same property was further mortgaged with one Muhammad Sharif by Rahim Bakhsh and Mst. Nathu Bibi. Ira both these deeds it was in very clear terms stated that the property mortgaged was the property of Mst Nathu Bibi. The first mortgage in favour of Mst. Amtur Rahman was redeemed by paying her the money on 21st June 1937 and 17th December 1938. Later on there was some dispute between the heirs of Muhammad Bakhsh with regard to the property left by the latter, and they by an agreement dated 15th July 1938, appointed Gul Muhammad, son of Feroz and Gul Muhammad son of Faqir, as the arbitrators, and one Sher Muhammad as an umpire. In this agreement too it was mentioned that there was some property which had been given in dower to Mst. Nathu Bibi, although the details of that property were not given in it. The arbitrators gave their award on 3rd September 1938. It is not necessary to mention the details of this award, but it would be sufficient to say that two shops and a kothi were given to Rahim Bakhsh and Mst. Nathu Bibi in lieu of Rahim Bakhsh's share in his fathers property, and the rest of the property was given to Ahmad Bakhsh and his wife Mst. Chano. Mst. Babo Jan, the only widow, who was alive at that time, was given some maintenance per mensem. The award was not registered. One Mian Muhammad Pahlwan, an uncle of Rahim Bakhsh, took the two shops‑which had according to the award fallen to the share of Rahim Bakhsh and Mst. Nathu Bibi from lost. Nathu Bibi on lease for a period of three years. It was mentioned in the deed that Mst. Nathu Bibi was the full owner of this property. This lease‑deed was registered. In 1944, Rahim Bakhsh married one Mst.Iltaf Jan. In 1947, Mst. Nathu Bibi and Rahim Bakhsh fold out with each other, with the result that Mst. Nathu Bibi put in ran application under O. XXXIII Civil Procedure Code for bringing, a certain suit in forma pauperis, against her husband Rahim Bakhsh. The latter contested the application and appeared in the witness‑box, and stated that he had given half of the house in dower to the petitioner, which half had two shops and a kothi underneath it, and that the kothi Mst. Nathu Bibi had given on rent to one Mian Muhammad. He admitted in very clear words in this statement that Mst. Nathu Bibi was in possession of this property, and her application, therefore, for permission to sue in forma pauperis should be rejected. That application was ultimately rejected.

Mst. Nathu Bibi has now brought a suit for the possession of two shops and in the alternative half of the house and a shop situated in Mohallah Baildaran. She alleges that the two shops have been given to her in lieu of half the house and a shop, which had been originally transferred to her at the time of her marriage with Rahirn Bakhsh.

To start with Rahim Bakhsh alone was a defendant in the case, but then all the heirs of Muhammad Bakhsh, Mst. Iltaf Jan and Mst. Chano were made parties to the suit.

Several objections were raised on the basis of which initially eight issues were framed and then five further issues were added to them. These thirteen issues are as follows':‑--

1. Whether the suit is within time

2 Whether the suit is barred as res judicata

3. Whether the value for purposes of Court‑fee and jurisdiction is correct

4. Whether Mst. Iltaf Bibi is a necessary party to the suit

5. Whether plaintiff is the owner of half the house No. 4040 by virtue of a valid dower‑deed dated 27th November 1933

6. Whether in course of private partition between the heirs of Muhammad Bakhsh " got suit shop " in lieu of the said house

7. Whether the dower‑deed dated 27th November 1933 is inadmissible m evidence for want of registration

8. To what relief and on what terms is the plaintiff entitled

9. Whether the heirs of Muhammad Bakhsh are necessary parties to the suit .

10. Whether Mst. Iltaf Bibi got the suit shop in dower, if so with what effect

11. Which of the two dower‑deeds is entitled to priority

12. Whether there has been a valid arbitration between the parties

13. If so, whether the award of the arbitrators, dated 3rd September'1938 is inadmissible in evidence

The learned trial judge found that the dower‑deed and the award were both inadmissible in evidence, but he decreed the plaintiff's claim with costs because of certain admissions alleged to time to time in favour of Mst.Nathu Bibi.

Rahim Bakhsh went up on appeal against this decree to the Court of the Senior Sub‑Judge, Peshawar, who dismissed it with costs on the 15th of March 1950.

Rahim Bakhsh has now come up on revision to this Court.

The original dower‑deed alleged to have been executed by Rahim Bakhsh is obviously inadmissible in evidence, because the property alleged to have been transferred by it has been valued in the deed itself at Rs. 500. Subsequently, however, this very property was mortgaged jointly by Rahim Bakhsh and Mst. Nathu Bibi', first in favour of Mst. Amtur Rahman, and then in that of Muhammad Sharif. In the deeds which were executed by them it was admitted by Rahim Bakhsh that this property was the dowered property of Mst. Nathu Bibi. Subsequently a dispute having arisen with regard to the entire property left by Muhammad Bakhsh, the matter was referred to a private arbitration, consisting of Gul Muhammad, son of Feroz; Gul Muhammad, son of Faqir as the arbitrators and Sher Muhammad as an umpire The arbitrators gave their award on 3rd September 1938, by which the two shops and a kothi were given to Rahim Bakhsh and Mst. Nathu Bibi in lieu of half the house and one sh6p, which in the normal course had to fall to the share of Rahim Bakhsh out of his father's property. This award is again inadmissible in evidence, because it is not registered, and the value of the property which it purports to partition is definitely more than Rs. 100. The factum of the private partition, however, is admitted by Rahim Bakhsh in his written statement. Immediately after this award, Mst. Nathu Bibi gave away the two shops on rent to Mian Muhammad Pahlwan, who has come into the witness‑box and given evidence in her favour. In the lease‑deed which is registered it is definitely mentioned that the property belongs to Mst. Natbu Bibi. This Miata Muhammad Pahlwan is related to both Rabim Bakhsh and Mst. Nathu Bibi, but he is more closely related to the former than the latter, and as such I do not see why he should make a false statement in Court, He has in unequivocal terms admitted that the two shops belong to Mst. Nathu Bibi. Apart from that, in the suit which was brought by Mst. Nathu Bibi against Rahim Bakhsh in forma pauperis for the recovery of certain property, Rahim Bakhsh appeared in the witness‑box and stated that the two shops and a kothi had been given to Mst. Nathu Bibi in dower, and that the possession of that property was with her. This is a clear admission of the two shops being the exclusive property of Mst. Nathu Bibi.

It is argued that this statement is inadmissible in evidence and that the lower appellate Court has also held it inadmissible because Rahim Bakhsh has not been confronted with it. In support of this contention the learned counsel for the petitioner has referred me to Secretary of State v. Akbar Shah reported as A. I. R. 1934 Lah. p. 753. It was held in that case by M, Din Muhammad. J that a previous statement made by a party cannot be made a legal evidence in the case and used against him as an admission by merely filing an attested copy of that statement without putting it to the party concerned. This finding of His Lordship was based on A. I. R. 1930 Lah. p. 695 Moharram Eli v. Barkat Ali), in which basing their judgment on A. I. R. 1915 P. C. p. 7. Their Lordships held that where an admission is not put to the party making it and the party making it is not examined on it under section 145 of the Evidence Act, the admission is not legal evidence and cannot be used against the party making it. With due deference to Their Lordships of the Lahore High Court, I must say that A. I. R. 1915 (P. C.) p. 7, does not support the proposition laid down by them. All that was held by their Lordships of the Privy Council in the above quoted authority was that on general principles it would appear to be sound that if a witness is under cross‑examination on oath, he should be given the opportunity if documents are to be used against him to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary and intelligible rule, and where a witness's reputation and character are at stake, the duty of enforcing this rule would appear to be singularly clear. A former deposition made by a person can be used subsequently either) in order to contradict him with a view to impeach his credit, or A he has made therein any statement of fact, as an admission under section 21 of the Evidence Act. In the former case section 1451 of the Evidence Act would apply, and the credit of the witness will not be considered to have been effectively impeached until ands unless 'the former deposition is confronted to him and he is given an opportunity to explain it, but if that deposition is to be proved as an admission I fail to see why should it be considered necessary to confront the witness with it in order to make it a legal evidence in the case. Section 145 would not apply in the latter case, as is clear from the very wording of the section itself. An admission is a substantive piece of evidence and it is not used for the purpose oft impeaching the credit of the witness, or in order to contradict him, and once it is proved, it is a well‑established rule of law that it is for the party making it to affirmatively establish that the admission made by him was false or untrue and should, therefore, not bet acted upon. There is no condition attached to section 21 of the Evidence Act that an admission would only be relevant only if it is confronted to the person making it, otherwise it would be irrelevant and inadmissible in evidence. Normally if a person has made an admission admitting the existence of a certain fact against his own interest it shall be presumed to be correct until the contrary is established. If the admission is made in a previous statement in a Court of law, the law permits its proof by producing a certified copy thereof under section 77 of the Evidence Act. Once the admission is proved in the presence of the party making it, it is the duty of that party to come into the witness‑box and deny its existence, or explain the admission, and if he fails to do that, the Court would be perfectly within its right to presume against him. In the case under discussion the certified copy of Rahim Bakhsh's statement in the in forma pauperis suit was plac ed on the record in which Rahim Bakhsh had admitted that the two shops had been given in dower to Mst. Nathu Bibi, and they were in her possession. This statement of his will be binding upon him and would be admissible in evidence in spite of its not having been confronted to him. His non‑appearance in the witness‑box in order to deny the correctness of the statement would further strengthen the plaintiff's case that if he had appeared he would have admitted that the two shops had been given in dower to Mst. Nathu Bibi. Apart from this statement, Rahim Bakhsh from time to time has been admitting Mst. Nathu Bibi to be the owner of half of the house and a shop and then of the two shops. In face of all this documentary evidence it is impossible to hold that Mst. Nathu Bibi is, not the owner of the two shops in dispute.

I consequently concur in the concurrent finding of the two Courts below and hold that there is no ground for me to interfere on the revision side. The petition fails and is hereby dismissed with costs. Pleader's fee Rs. 100.

K. M. A. Petition dismissed.

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