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2006 DIGILAW 1457 (RAJ)

Hari Om v. State of Raj.

2006-05-02

PREM SHANKAR ASOPA

body2006
Honble ASOPA, J.—That by the instant writ petition the petitioners have challenged the order dated 8.2.1979 (Ex. 2) passed by the State Government for reopening of the case under the Old Ceiling Law, the order dated 14.12.1984 (Ex.10) of the Additional Collector, Baran, District Kota, passed after the said direction of the re-opening of the case and the orders dated 8.3.1989 (Ex.12) and 26.6.1989 (Ex.14) passed by the Board of Revenue, Ajmer, passed in appeal and Review, whereby the aforesaid order of the Additional Collector, Baran, dated 14.12.1989 declaring 21.56 standard acres of land surplus and is liable to be acquired, has been upheld. 2. The facts of the case in brief are that grand-father of the petitioners late Shri Janki Lal filed a return as per the provisions of Rule 9 of the Rajasthan Tenancy (Fixation of Ceiling on Agricultural Holding) Rules, 1963 (for short "the Rules of 1963"). In the said return late grand-father of the petitioners mentioned the name of his only son Suraj Mal, (father of the petitioners), aged 28 years, as dependent with further mention of name of his wife, sons wife and two grand children as on 1.4.1966 i.e. appointed date. After hearing both the parties and perusing the return, the Sub-Divisional Officer, Baran, vide his order dated 11.5.1971, dropped the proceedings holding that the report of the Tehsildar disclosed the undivided joint Family Land and there being two sharers, as such entitled to 60 standard acres and, no acquirable surplus land beyond ceiling area remained with the assessee. Accordingly the proceedings were ordered to be dropped. The petitioners have stated in the writ petition that Shri Janki Lal died in the year 1970 but despite that, the notice to show cause for re-opening the case was issued to him and no notice was given to his legal representatives. They have further stated that they inspected the file of Secretariat and came to know that the notices were issued in the name of dead person Shri Janki Lal. On this notice, there is a report of the process-server that "he is since died and his son is not available in house and as such the notice has been pasted on the house". The petitioners have further stated that in such circumstances the Dy. On this notice, there is a report of the process-server that "he is since died and his son is not available in house and as such the notice has been pasted on the house". The petitioners have further stated that in such circumstances the Dy. Secretary committed a serious error of law in considering the said service as sufficient service against the dead person and has further proceeded exparte on 8.2.79 during life time of Suraj Mal against whom the alleged admission of late Jankilal was taken into consideration. It has been averred in the writ petition that on receipt of the notice from the Additional collector, Baran, District Kota, by the legal heirs of deceased Janki Lal and Suraj Mal, who also died in the year 1980, the petitioners and their grand-mother filed a common reply stating that the property in dispute i.e. land is the ancestral joint Hindu Family Property and late Shri Janki Lal had only half share in the property on 1.4.66 that is the crucial date and on this date his son, Suraj Mal, who was married, 28 years of age, having two children, and was not dependent, therefore, both are entitled for half share each. In support of the aforesaid averments the petitioners have examined Ram Chand D.W.1, Kishan Lal D.W. 2 and Smt. Kali Bai D.W. 3 (Ex.4 to 6). All have stated that Suraj Mal and Janki Lal were cultivating the land separately Kali Bai has further stated that Suraj Mal was living separately and was earning his livelihood separately from agriculture. Vide order dated 14.12.1984 (Ex.10) the Additional Collector, Baran, held that late Shri Janki Lal has admitted the fact in the return that his son is dependent and the statements are after through, therefore, the return is more authentic, has ultimately declared 21.56 standard acres land surplus. Vide order dated 14.12.1984 (Ex.10) the Additional Collector, Baran, held that late Shri Janki Lal has admitted the fact in the return that his son is dependent and the statements are after through, therefore, the return is more authentic, has ultimately declared 21.56 standard acres land surplus. Against the said order the petitioners have filed an appeal before the Board of Revenue and in appeal it was contended on behalf of them that re-opening proceedings against Janki Lal after his death and knowledge of said fact of death is null and void and all other proceedings arising out of the same are consequently void; that the land in question is ancestral joint property and on 1.4.1966 Suraj Mal was entitled for half share and after the death of Janki Lal, he was entitled for more share in the property; that merely mentioning the word dependent in the column, where the name of Suraj Mal was mentioned will not change the position of law as envisaged under Section 5(17) of the Rajasthan Tenancy Act, 1955 (for short the Act of 1955) and Rule 17(4) of the rules of 1963 as well as Hindu Succession Act; that the so called admission made by their grand father late Shri Janki Lal in the return is not binding on their late father Suraj Mal and on them being prejudicial to his/their interest, and even if the same is taken into consideration then the same admission given in ignorance of the right and law, is not conclusive and the said burden has been discharged by the statement of witnesses, wherein there is a categorical mention that all were cultivating their land separately and further Smt. Kali Devi, D.W. 3 deposed that Suraj Mal was living separately and independently and was also cultivating the land independently. Therefore, the Board of Revenue has ignored the aforesaid position of law and wrongly treated the petitioners as dependents on Sh. Janki Lal. 3. The State Government has not filed any specific reply on the aforesaid issue of re-opening of the case against the dead person. But, stated that since the petitioners have appeared before the Additional Collector and participated in the proceedings up to the stage of Board of Revenue, therefore, they are not entitled to raise the ground that the notices were issued against dead person. But, stated that since the petitioners have appeared before the Additional Collector and participated in the proceedings up to the stage of Board of Revenue, therefore, they are not entitled to raise the ground that the notices were issued against dead person. The State Government has further in its reply stated that in the declaration, Shri Janki Lal has shown Suraj Mal as dependent, therefore, he himself has admitted that Suraj Mal was member of his family and dependent upon him. 4. The submission of the counsel for the petitioners is that both the authorities failed to consider the well settled principle of law that no legal proceedings can be continued against a dead person. That both the authorities below have committed serious error of law in not considering the fact that the so-called admission has been made by late Shri Janki Lal erroneously or in ignorance of the right and law and that too is with regard to the person whose interests were prejudicially effected by the same. Further the Additional Collector has committed another error of law in giving much weightage to the return and not to the statement made by the other witnesses as detailed our herein above which categorically proved that late Suraj Mal was 28 years of age, married, having two children on 1.4.1966 and was living separately and further cultivating the land independently. Both the authorities have also committed serious error of law in not considering the provisions of Hindu Succession Act, Section 5(17) of the Act of 1955 and Rule 17(4) of the Rules of 1963, according to which co-sharer/co-parcener is entitled to share in the ancestral land of H.U.F. at the time of determination of the ceiling area by giving deeming fiction of separate share irrespective of the fact whether actual division has taken place or not. On the issue of continuation of proceedings against dead person, the counsel for the petitioners has placed reliance on Civil Appeal No. 7323 of 1996, Smt. Nan Kanwar & Ors. vs. The Board of Revenue for Rajasthan & Ors. decided by Hon. Supreme Court on December 08, 1999, Civil Appeal No. 2457 of 1997 Sudh Singh and Anr. vs. Board of Revenue for Rajasthan and others, decided on April 26, 2000 and S.B. Civil Revision No. 599 of 1996 Gopal Lal vs. Smt. Amba Bai and others, decided on 5th March 1998 by this Court. decided by Hon. Supreme Court on December 08, 1999, Civil Appeal No. 2457 of 1997 Sudh Singh and Anr. vs. Board of Revenue for Rajasthan and others, decided on April 26, 2000 and S.B. Civil Revision No. 599 of 1996 Gopal Lal vs. Smt. Amba Bai and others, decided on 5th March 1998 by this Court. 5. On the issue of dependency, counsel for the petitioners have relied on ten judgments, which are Ram Pratap and 3 Ors. vs. State of Raj. and Ors. 1989 RDD Page 217, Jugal Kishore vs. SDO, 1988(2) RLR 595, Bheru Singh vs. SDO, SB Civil Writ Petition No. 1393/76, decided on 3.6.1985, Raj Mal vs. State, S.B. Civil WP No. 953/76, decided on November 24, 1984, State of Rajasthan vs. Bhoj Raj and others D.B. Special Appeal No. 61/85, decided on 8.3.1985, Jaganath vs. SDO, S.B. Civil Writ Pettion No. 1180/76 decided on September 28, 1984, Prabhu Lal vs. BOR, RLW 1985 523, T. Venkata Subamma vs. T. Rattamma, AIR 1987 SC 1775 , Devi Lal vs. Smt. Fattu Bai, RRD 1981 512 and Gopal Singh vs. State of Rajasthan 1983 RLW 475. 6. Further on the issue of admission, counsel for the petitioners have relied on three judgments, Amritlal Narsilal vs. Sadasiv AIR 1944 Bombay 60, Spinners Association vs. IT Common, AIR 1944 PC 88 and Narayan vs. Gopal AIR 1960 SC 100 . 7. The submission of the counsel for the respondent No. 1 is that since the petitioners have participated in the proceedings and it is not open for them to raise the issue before the Court below and this Court. That the Additional Collector and the Board of Revenue have rightly gave much weightage to the return. Although the Board of Revenue has held that the admission made by a person is not conclusive but has further held that the admission made by late grand father of the petitioner with regard to the dependency of late father of the petitioners is a good piece of evidence and the witnesses have not been able to controvert the said fact of dependency successfully and further the sole statement of Smt. Kali Bai required co-operation which is not there. Therefore, both the judgments are liable to be upheld. 8. I have gone through the record of the writ petition, further considered the submissions of the parties. 9. Therefore, both the judgments are liable to be upheld. 8. I have gone through the record of the writ petition, further considered the submissions of the parties. 9. Before proceeding further to consider the rival submissions of the parties, I would like to quote certain provisions of law, which have bearing on the issue. 10. Section 5(17), the definition of "Holding", relevant portion of Section 30-B of the Act of 1955, Rule 17(4) of the Rules of 1963, Sections 17, 18 and 21 of the Evidence Act are as follow :— Section 5. (17) "Holding" shall mean a parcel of land, held under one lease, engagement or grant, or, in the absence of such lease, engagement or grant, under one tenure, and shall include, in the case of an Ijardar or Thekadar, the ijara of theka area: [Provided that, for the purposes of Chapter III-B, all parcels of land held anywhere throughout the State by a person under one or more than one lease engagement, grant or tenure, and whether cultivated personally or let or sub-let by him, shall be deemed to be his holding and, where any such land is held by more than one person as co-tenants or co-sharers, the share of each of them shall be deemed to be his separate holding whether a division thereof has or has not actually taken place;] Section 30B . . . . . . . . . . (a) family shall mean a family consisting of a husband and wife, their children and grand-children being dependent on them and the widowed mother of the husband so dependent, and . . . . . . . . . . . . . (a) family shall mean a family consisting of a husband and wife, their children and grand-children being dependent on them and the widowed mother of the husband so dependent, and . . . . Rule 17(4) The share of a member of a family or of an individual person in the land held by an Hindu undivided family or the share of a family or of an individual in the land held by a firm, society or association of individuals (whether incorporated or not) or by a company shall be deemed to be the extent of land which in case such share is held on the appointed date would have been allotted to such a member, person or family had such land been partitioned or divided, as the case may be, on such date; or which, in case such share is acquired in any manner whatsoever after the appointed date, would be allotted to such member, person or family if a partition or division were to take place on the date of determination of the ceiling area. S. 17. Admission defined.—An admission is a statement, [ oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. [S. 18. Admission by party to proceedings or his agent.—Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to take them, are admissions. By suitor in representative character.—Statements made by parties to suits, suing or sued in a representative character, are not admission, 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 persons 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. S. 21. S. 21. Proof of admissions against persons making them, and by or on their behalf.—Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they can not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:— (1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission maybe proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. 11. The Honble Supreme Court in Smt. Nand Kanwar and Ors (supra) held that on the death of Bhani Singh, the State was under an obligation to bring on record all the heirs of Bhani Singh and further the Sub-Divisional Officer could not have legally proceeded with the case without issuing notice to the heirs who were before the Hon. Supreme Court. The relevant portion of the said judgment is reproduced hereunder for ready reference:— "Learned counsel appearing on behalf of the appellant who are the legal representatives of Bhani Singh has contended that on the death of Bhani Singh in 1975, the State was under an obligation to bring on record all the heirs of Bhani Singh. This, we feel, is correct. The Sub-Divisional Officer could not have legally proceeded with the case without issuing notice to the heirs who are before us as appellants in this case. Moreover, since exemption was claimed by Bhani Singh in respect of the land which had already been transferred by him in favour of Respondent Nos. This, we feel, is correct. The Sub-Divisional Officer could not have legally proceeded with the case without issuing notice to the heirs who are before us as appellants in this case. Moreover, since exemption was claimed by Bhani Singh in respect of the land which had already been transferred by him in favour of Respondent Nos. 5 to 9 by sale-deed dated 3.10.1963, notice should also have been issued to the transferees before determining their status as to whether they were domiciled in Rajasthan or not and whether the land covered by the sale deed could have been offered as surplus land by the original land holder. 12. In another of Sudh Singh (supra) the said judgment was followed and subsequent proceedings taken thereafter have been set-aside and the case was remanded back after giving notice to the heirs of the deceased tenure holder. 13. This Court in a case reported in Gopal Lal vs. Smt. Amba Bai and others RLW 1998(2) Raj. 810 held that decree against a dead person is a nullity. 14. In view of the aforesaid settled position of law, on coming to know about the death of Janki Lal, it was incumbent upon the State Government to issue notice to the legal heirs of the deceased before re-opening of the case. Pasting of the notice issued in the name of the deceased is not service, therefore, order dated 8.2.79 re-opening of case is null and void. 15. Since the other important questions of law have been raised, therefore, I deem it proper to consider the same also. As regards the admission made by late Shri Janki Lal with regard to ancestral joint Hindu Family Property the co-parcener/co-sharer is bound by the said admissibility only when the admission is in the interest of the Joint Family as well as of co-parcener. Here in the instant case since late Suraj Mal, who was 28 years of age, married, having two children on 1.4.1966 and was entitled to retain 30 standard acre of land, has been deprived of the said land on account of the said admission, therefore, the said admission made by karta of the Joint Hindu Family being prejudicial to his interest, is contrary to the provisions of Section 18 and 21 of the Indian Evidence Act and was not binding on the co-parcener Suraj Mal. The junior members can always prove that the admissions are either untrue or incorrect. The Madras High Court in Nagayasami Naidu & Ors. vs. Kochandai Naidu & Ors. (AIR 1969 Madras 329), considered the said aspect of the matter and held that if such an admission advances not only the personal interests of the managing member or the father but also prejudicially affects the interest of the other members, then it will not be binding. Relevant portion of para 12 of the said judgment is reproduced hereunder: "In case of joint family, the admissions of the father or the admissions of the managing member would not be their own force bind the other members of the family and the admissions cannot be used against them on the ground that the managing member or the father as the case may be, did not satisfactorily account for those admissions. The junior members can always prove that the admissions are either untrue or incorrect. If the managing member or the father had made an admission while acting on behalf of the family or for acquiring properties for the family and where, what he does is of behalf of himself and on behalf of the members of the family the admission made in that representative character may be used as against all the members. But, if such an admission was made by the managing member or by the father to advance his own interests and to acquire property for himself, and what he acquires would be his own acquisition which he is not bound to share with the other members or the sons, such an admission can not bind the sons. The position is a fortiori if such an admission advances not only the personal interests of the managing member or the father but also prejudicially affects the interest of the other members." 16. In Gangaram Kanhaiyalal vs. Pooran Gulab and others AIR 1954 M.B. 58, it was held that an admission of one co-defendant is not receivable against another merely by virtue of his position as a co-party in the litigation. It is not by virtue of that persons relation to the litigation that his admission can be used against the other. The vital point for consideration is whether there is such priority of obligation or title between two persons as to justify the use of the admission of one against the other. It is not by virtue of that persons relation to the litigation that his admission can be used against the other. The vital point for consideration is whether there is such priority of obligation or title between two persons as to justify the use of the admission of one against the other. The relevant portion of para 6 of the said judgment reproduced hereunder for ready reference:— "(c) . . . . . . . As a matter of probative value, the admission of a person (such as one joint owner) having precisely the same interest at stake as another (his co-owner), will, in general, be likely to be equally worthy of consideration; there being an identity of legal liability, the two persons may be deemed one so far as affects the property of discrediting one by the statements of the others. An admission of one co-defendant is not receivable against another merely by virtue of his position as a co-party in the litigation. it is not by virtue of that persons relation to the litigation that his admission can be used against the other. The vital point for consideration is whether there is such priority of obligation or title between two persons as to justify the use of the admission of one against the other; and, that must be determined by reference to the relation between the parties at the time the admission is made. Where the admission was made at a time when the parties had no community of interst, it can not be used." . . . . . . . 17. In Tikoo Ram vs. Jhabar and another 1960 ILR (Raj.) 6 this Court has considered the aspect of the admission made by several persons receivable and relevancy of the same in view of Sections 18 and 21 of the Evidence Act. The said concept of receiving the admission is based on the rule of joint interest. but here in the instant case as per Section 5(17) of the Act of 1955 and Rule 17(4) of the rules of 1963, the father of the petitioners was entitled for separate unit, therefore, it can not be said that the said interest is joint one with their grand father. Similar is the position in another case of this Court reported in WLN 1971, 396 Sheikh Mohammed Abdul Qadir and Ors. Similar is the position in another case of this Court reported in WLN 1971, 396 Sheikh Mohammed Abdul Qadir and Ors. vs. The Anjuman Moinia Fakhria & Ors., where the Court has further enunciated the rule that the rule of using the admission of a party having joint interest with another is based upon the legal principle that persons seized jointly are seized of the whole admission of the either is the admission of the other and may be produced in evidence against that order. it has also been held that these admissions though not conclusive are valuable pieces of evidence as the rule is what party admits to be true is presumed to be true unless the contrary is established. In the said case the question was whether the income of two Degs belonging to Syed Khadims as per their admission can be receivable in evidence not against the declarant but also other Sheikhzada Khadims under Section 18 of the Act of 1955. Relevant portion of Para 10 of the said judgment is reproduced hereunder:— "The admission of one party may be given in evidence against another when the party against whom the admission is sought to be used has a joint interest with the party making the admission relates. In the subject matter or the thing to which the admission relates. This rule is based upon the legal principle that persons seized jointly are seized of the whole admission of the either is the admission of the other and may be produced in evidence against that other. These admissions though not conclusive are valuable pieces of evidence as the rule is what party admits to be true is presumed to be true unless the contrary is established." 18. There is another judgment of this Court reported in AIR 1976 Raj. 249 Bhura vs. Bahadur Singh with regard to admission by one party and admissibility of the same against other. In the said judgment also the joint interest was emphasised. In Ambika Devi and Others vs. Balmukund, AIR 1981 Patna 111 it has been held as under:— "An admission must be a clear and unambiguous statement. The value of admissions must depend upon the circumstances in which they are made and possible motives for incorrect statements by interested persons should not be ignored. In Ambika Devi and Others vs. Balmukund, AIR 1981 Patna 111 it has been held as under:— "An admission must be a clear and unambiguous statement. The value of admissions must depend upon the circumstances in which they are made and possible motives for incorrect statements by interested persons should not be ignored. Where several persons are jointly interested in the subject matter of the suit, the general rule is that the admission of any one of these persons is receivable against himself and fellows, whether they be all jointly suing or sued or whether an action be brought in favour of or against one or more of them separately, provided the admission relates to the subject matter in dispute, and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered." 19. In Sri Chand Gupta vs. Gulzar Singh & Another (1992) 1 Supreme Court Cases 143 Hon. Supreme Court in a Rent Control Proceeding has held that when the interest is not joint then the admission of one party is not admissible against any party. Relevant portion of the said judgment is reproduced hereunder:— "Section 18 postulates that statements made by a party to the proceeding, or by an agent to 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. Equally statement made by a person who has any proprietary or pecuniary interest in the subject matter of the proceedings or by persons having derivative interest during the continuance of the interest also are admissions. In this case, admittedly, Gulzar Singh was not a party to the affidavit signed by Avtar Singh. Therefore, the admission made by Avtar Singh that he is the tenant in exclusive possession of the demised premises does not bind Gulzar Singh. In view of the plea and stand of the appellant, Avtar Singh cannot claim to have any pecuniary interest or any joint interest along with Gulzar Singh in the demised premises. Once it is found that Gulzar Singh alone is the tenant, as admittedly pleaded by the appellant, Avtar Singh can not claim to have any pecuniary or derivative interest in the demised premises. He is not an agent of Gulzar Singh. Once it is found that Gulzar Singh alone is the tenant, as admittedly pleaded by the appellant, Avtar Singh can not claim to have any pecuniary or derivative interest in the demised premises. He is not an agent of Gulzar Singh. Under those circumstances, as rightly found by the High Court, that the admission made by Avtar Singh in the affidavit is inadmissible and does not bind Gulzar Since. Once that admission is excluded from consideration, there is no other evidence worth accepting to conclude that Avtar Singh was in exclusive possession as a tenant. The High Court rightly held that the finding of subletting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence. Having found the finding vitiated, it was open to the High Court to re-examine and re-appreciate the evidence on record. On reappraisal it disbelieved the oral evidence. We do not find any error in such reappraisal. It is then sought to be contended that Gulazar Singh had other business and it implies that he is not in exclusive possession of the demised premises. We find no force in the contention. It may be that Gulazar Singh had other business but that does not lead to the conclusion that Gulzar Singh is not in exclusive possession of the demised premises as tenant or that he sublet the premises to Avtar Singh." 20. In the present case there was no joint interest rather the interest of late Shri Suraj Mal was in conflict with the interest of late Shri Janki Lal, as per the provisions of Hindu Succession Act, Rajasthan Tenancy Act, 1955 and Rules of 1963. Both the Courts below failed to consider this aspect of the matter. The petitioners have raised and pressed the issue that the admission of the Karta was read against the other member of the family, which has resulted in the deprivation of the 30 standard acre of land, therefore, his interest was not joint but was in conflict and the aforesaid judgments related to the admissibility of the admission of one person against the another in case of joint interest only have been referred and discussed. 21. 21. I am of the view that there was no joint interest of late Janki Lal and late Suraj Mal on 1.4.1966 as they were entitled to half share each and the admission of Janki Lal in ignorance of law/rights of Suraj Mal to retain 30 standard acre, was not binding on him, being prejudicial his interest as per Section 18 and 21 of the Evidence Act. 22. The petitioners have relied on the issue that erroneous admission in ignorance of right and law is not admissible and he has placed reliance on Amritlals case (supra). The relevant portion of the said judgment is reproduced hereunder for ready reference:— "It also appears that when the auction purchaser put in his purshis he did not know that the amount deposited by the judgment-debtor was insufficient, and an admission made in ignorance of his rights can not be held to be binding on him. Although he did not want to object it." 23. All India Spinners Association of Mirzapur (supra) on the same issue, it has been held as under:— "So far the . . . . . . . . The construction of the section is obviously a question of law, but so also is the question what is the real purpose of the association. the court must make its decision on the latter point on the basis of the facts found for it, but given the facts the question is one of law. In this particular case the principal fact is the constitution the true construction of which is again a question of law." 24. In Narayan Bhagwantrao Gosavi Balajiwale (supra) it has been held as under:— "(11) In the present case, the burden of proof need not detain us for another reason. It has been proved that the appellant and his predecessors in the title which he claims, had admitted on numerous occasions that the public had a right to worship the deity, and that the properties were held as Devasthan inams. To the same effect are the records of the revenue authorities, where these grants have been described as Devesthan, except in a few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. To the same effect are the records of the revenue authorities, where these grants have been described as Devesthan, except in a few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous." 25. The Board of Revenue has relied on Para 15 and not considered para 14 of judgment Hon. Supreme Court reported in AIR 1977 Supreme Court 1724 Thiru John vs. Subramhamanyan. Para Nos. 14 and 15 of the said judgment are as follows:— "14. All these documents aforesaid contain admissions made by Shri John that he was born in 1946. In several of these documents he declared 14.5.1946 as his date of birth. 15. It is well settled that a partys admission as defined in Sections 17-20, fulfilling the requirements of Section 21, Evidence act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence of the parties making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established". 26. The said case was of the election petition and there was a dispute whether the appellant Thiru John was 30 years of age or less than 30 years of age on the date of nomination i.e. 9th March 1974. The documents referred in para No.12 contained admission made by Shri John that he was born in 1946 and his date of birth was 14.5.46. Therefore, the said admission was taken against him and the said case was not a case where admission of one party has been read against another. Therefore, in my view the said case is not applicable to the facts of the present case. Therefore, the said admission was taken against him and the said case was not a case where admission of one party has been read against another. Therefore, in my view the said case is not applicable to the facts of the present case. Apart from above, since thee was a deeming provisions of working out the share of the co-sharer/co-parcener under rule 17(4) as well as Section 5(17) of the Tenancy Act, therefore, the father of the petitioners was entitled for calculation of shares and further entitled for calculation of shares and further entitled to retain the same. 27. On the issue of dependency as mentioned in Section 30B of the Act of 1955, the petitioners have relied on many judgments and on perusal of all the judgments, the position emerges that the fact of minority or majority of a child is immaterial. What is material is the dependency and even a minor child can be independent and a major child can also be dependent on account of some deformity. 28. Out of aforesaid judgments, one D.B. Judgment Jugal Kishore & Ors. vs. S.D.O., Baran & Ors. reported in 1988(2) RLR 595 was consistently followed by this Court and the relevant para Nos. 5 and 6 of the same as under:— "5. In view of the above proposition of law, we are of the opinion that the subordinate authorities fell in error in not giving any finding as to whether the property in the hands of the petitioner, Radha Vallabh was ancestral; and further that both the authorities did not care to inquire into a question as to whether the sons of Radha Vallabh (petitioner) were dependent on their father or not, when it was specifically claimed by Radha Vallabh that partition has taken place and individual share has been allotted to each of the co-parceners (sons of Radha Vallabh, petitioner, in as much as the subordinate authorities clubbed the share of Nand Kishore with the land occupied by Radha Vallabh, petitioner. 6. The word, dependent appearing in Section 30B of the Act is of wider connotation. A child below 18 years of age by very reason of his or her age and relationship seeks support and maintenance from his or her parents. 6. The word, dependent appearing in Section 30B of the Act is of wider connotation. A child below 18 years of age by very reason of his or her age and relationship seeks support and maintenance from his or her parents. Legislature by using the word dependent also meant to include a major child who is unable to look after himself or support himself because of imbecility, deformity or other handicap or any other reason, whether a child is member of family or not. One need not be concerned with the question whether child is a minor or major for in either case according to the definition, he would be a member of the family if he is dependent on his parents." 29. As per the aforesaid Division Bench Judgment, the enquiry is necessary in case the minor son is shown independent or the major son is shown as dependent on account of imbecility, deformity or other handicap or any other reason. Thus in both the aforesaid type of cases the enquiry is necessary. The same view has been taken by this Court in other reported/unreported judgments cited by the counsel for the petitioners, therefore, it is not necessary to discuss each of them. 30. Viewing the case from the aforesaid angle one important fact is that there is nothing on record which even remotedly suggest that late Shri Suraj Mal was suffering from any kind of defomity, which renders him dependent. From the statements made by three witnesses Ram Chand D.W. 1 Kishan lal D.W. 2 and Smt. Kali Bai, D.W. 3 more particularly Kali Bai, it is established that the alleged admission made by late Shri Janki Lal is erroneous and Shri Suraj Mal was not dependent upon late Shri Janki Lal on 1.4.1966. There is no justification for ignoring the said statement recorded by the Additional Collector, Kota, by saying that the statements are after thought and the return is to be given more weightage and further the Board of Revenue has also committed an error by saying that the statement of Kali Bai, mother of late Suraj Mal, wherein it has been categorically stated that he was living separately and cultivating the land independently requires corroboration without discussing the statements of two witnesses, wherein the fact of separate cultivation is mentioned. Therefore, the Additional Collector, Baran has committed serious error of law in ignoring the said statement and the finding of Board of Revenue is perverse. 31. In the result the writ petition is allowed. The order of State Government of re-opening of the case dated 8.2.1979, order of Additional Collector, Baran, dated 14.12.1984 and the orders of the Board of Revenue dated 83.1989 and 26.6.1989 are quashed and set-aside and the order of the Sub Divisional Officer, Baran, dated 11.5.1971 is restored.