Full Text
JUDGMENT
Through: Mr. Ravi Gupta, Sr. Adv. with Mr. Lalit Gupta, Adv.
Through: Mr. S.K.Sharma, Adv. with Mr. Shivesh P.Singh and Mr. Mayank, Advs. for D-1.
Mr. Nikhil Singla, Adv. for D-2 & 3.
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest? MANMOHAN SINGH, J.
1. By this order I propose to decide the two applications being IA No.13665/2009 and IA No.6852/2011. The first application IA No.13665/2009 is filed by the plaintiff under Order XII Rule 6 read with Section 151 CPC for passing the preliminary decree for partition 2011:DHC:3584 of the property on admission. The second application under Order VII Rule 11 read with Section 151 CPC is filed by defendant No.1 for dismissal of the suit for petition filed by the plaintiff.
2. The plaintiff and defendant Nos.[1] to 3 are three brothers and one sister.
3. The suit property was purchased on 25.5.1956 by Smt. Janaki Devi, mother of the parties who expired on 3.3.1995. Prior proceedings between the parties
4. The plaintiff herein filed the petition under Section 276 of the Indian Succession Act, 1925 on 23.2.1999 for grant of Letter of Administration on the ground of mother having died intestate bearing Probate Case No. 291/06/99. Defendant No. 1 propounds a Will dated 18.08.1984. The Defendant Nos. 2 & 3 support the case of the Plaintiff herein.
5. The defendant No. 3 (Sister) on 26.3.1999 relinquished her share in favour of all three brothers and executed a registered Relinquishment Deed which is duly admitted and even relied upon by all the parties including contesting Defendant No. 1.
6. The defendant No. 2 herein filed Civil Suit No. 120/2004 on 12.07.2004 for partition of the same property before Additional District Judge which was contested only by Defendant No. 1.
7. In the written statement filed by the defendant No.1 it was contended on merits that the properties stood partitioned by virtue of the Will dated 18.8.1984 and in view thereof the parties are already in possession of their respective shares. It was also alleged that since the probate case was pending wherein the issue of validity of Will is sub judice, therefore, the suit filed by the defendnat No.2 cannot be proceeded with under Section 10 of the Code of Civil Procedure. The objection about the pecuniary jurisdiction was also raised by the defendant No.1.
8. The said suit was stayed at the instance of the defendant No.1 by order dated 24.5.2005 in view of the pendency of probate case. The probate case filed by the plaintiff was decided by the Additional District Judge on 13.10.2008, mainly on two reasons i.e. the Will was not proved by the objector and the same is not legal, valid and executed properly and the same is liable to be ignored. Secondly, as the plaintiff did not step into the witness box, the petition for grant of Letter of Administration was dismissed. Present Suit
9. Thereafter on 7/11/2008, the present suit was filed by plaintiff for partition and permanent injunction of the property of mother.
10. When the matter was listed before the court along with the interim application on 12.11.2008, it was directed that all the parties to the suit shall maintain status quo title, possession and construction of the suit property i.e. 92, Banarasi Das Estate Timarpur, Delhi-54.
11. The defendant No.1, who is the only contesting party to the suit, filed his written statement admitting that the plaintiff and defendant Nos. 1 and 2 have equal rights in the suit property. It was also stated in the written statement that it was upheld by late Smt. Janki Devi’s Will. The defendant No.1 has also admitted that Urmila Gupta, the defendant No.3 relinquished her right equally in favour of her brothers. The actual possession with respect to the suit property was also admitted in the written statement.
12. Para (b) and para (e) of the written statement filed by the defendant No.1 read as under:-
13. When the matter was listed before court on 21.08.2009 the following order was passed by the court in the main suit which reads as under:-
(c) The Assistant Engineer will be permitted to take along with him a person to take photographs/video of the premises and also a qualified person for preparing the drawings
(d) The Mediators are also requested to examine such report and make suggestions to the parties of the possible ways of resolving the disputes including the appropriate mode of partition”
15. The Local Commissioner appointed by the court has given his suggestion about the mode of partition on 1.9.2009.
16. It was observed by the court in its order dated 26.10.2009 that the defendant No.1 is now opposing the said arrangement and did not permit the execution of the commission. The learned counsel appearing on behalf of the defendant No.1 informed the court the execution of commission is not necessary in view of the application moved by defendant No.1 whereby the purported admission of 1/3rd share is sought to be denied, but after some discussion, a statement was made by defendant No.1 that he would not impede the execution of the commission so directions were passed by the court. Later on, it appears from the record that the defendant No.1 filed the review petition against the order dated 1.9.2009 which was also dismissed on 27.11.2009.
17. Thereafter, defendant No.1 filed an appeal being FAO (OS) 654/2009 against the orders dated 21.08.2008 and 01.09.2009 which was dismissed by the Division Bench by order dated 16.03.2010.
18. The defendant No.1, thereafter, challenged the said order dated 23.08.2009 about the withdrawal of the partition suit by the defendant No.2 by filing the Regular First Appeal being 135/2010 before this Court which was dismissed on 09.03.2010.
19. The appeal i.e. F.A.O. No. 430/2008 also filed by defendant No. 1 herein challenging judgment dated 13.10.2008 passed in the present case was dismissed by this Court on 07.03.2011. Thereafter, the Review Petition No. 244/2011 filed by defendant No.1 seeking review of order was also dismissed on 28.04.2011.
20. The first application filed by the defendant No.1 under Order VII Rule 11 CPC, being IA No.1359/2009, for dismissal of the suit filed by the plaintiff, after some arguments, was dismissed as withdrawn by order dated 23.07.2010. The defendant No.1 also withdrew his application under Order VI Rule 17 for amendment of the written statement to withdraw the admission made in the written statement after argument. The order in this regard was passed on 29.11.2010.
21. Now the plaintiff’s application being IA No.13665/2009 under Order XII Rule 6 is listed for passing the preliminary decree for partition in view of the alleged admission made by the defendant No.1 in his written statement and the statement of defendant No.1 recorded his admission in the order dated 21.08.2009. The defendant No. 1 is also pressing his second application filed under order VII Rule 11 for dismissal of suit. The learned counsel appearing on behalf of both the parties made their rival submissions.
22. Admittedly the Will dated 18.08.1984 propounded by defendant No. 1 has been disbelieved by the Probate Court. Property of a deceased can only devolve upon legal heirs in two ways i.e. either through a testament namely a Will and in the absence of the Will, by natural succession. After rejection of Will admittedly the defendant No. 1 challenged the judgment dated 13.10.2008 by filing of an appeal, F.A.O. 430/08 which was dismissed by this Court. Therefore, as a natural corollary, the property would equally devolve upon three brothers since sister has already relinquished her share.
23. The judgment given by Probate Court is a judgment in rem which is binding not only upon the parties but against the whole world and thus there is no need to send the parties to trial once again by this Court being a Civil Court on the same issue of Will since the Will has already been rejected.
24. In the present case, the defendant No.3 has already relinquished her right in favour of the plaintiff and defendants 1 and 2. The defendant No.2 is supporting the case of the plaintiff. The defendant No.1 filed his written statement wherein it was, inter alia, claiming as under: “In other words, Rameshwar Prasad Gupta (Plaintiff herein), Rajinder Gupta (Defendant No.1 herein) and Rajesh Gupta (Defendnt No.3 herein) have equal rights in the suit property.”
25. It is also a matter of fact that after the completion of the pleadings, the matter came up before the Court on 21.08.2009 when the defendant No.1 was present in Court and was duly identified by his counsel. During the proceedings, the Court recorded the admission made by the defendant No.1 in para (e) of the written statement. The said admission was reiterated by the learned counsel appearing on behalf of the defendant No.1 which was recorded in the order dated 21.08.2009. The only formality left with the Court at that time was to pass the formal preliminary decree declaring the plaintiff and defendants 1 and 2 have equal shares in the property. However, at the request of the defendant No.1, the matter was referred to the mediation and directions were given to the mediators to suggest to the parties any appropriate mode of partition. But it appears that the settlement did not materialize between the parties.
26. The other point raised by the defendant No.1 in the written statement is that the plaintiff and defendant No.2 are in occupation of area of higher value and in fact partition will result in greater area to the defendant No.1 as alleged in para (b) of the preliminary objection and that the area wise partition has already taken place in view of the Will dated 18.08.1984 left by the mother.
27. The above mentioned submission has no force in view of the admissions made by himself as well as the pleading of the parties. It is evident that the parties were residing in the suit property as per the arrangement of convenience and the same was never partitioned legally. Therefore, the question of partition by way of oral settlement does not arise. The property has to be partitioned by metes and bounds and it has to be in such a manner so that there will be no scope of interference by any of the parties in respect of the possession and would entitled them to disposed of their portion as one unit. In the present case, parties were residing merely by way of an arrangement and in fact, parties were keeping some portion in the property. The Will dated 18.08.1984 as alleged by the defendant No.1 has not been proved and the judgment has become final.
28. In the similar situation, this court in the case of Hari Ram Vs. Lala Om Prakash; 2003 IV AD Delhi 124 dealt with the same point. Relevant para 18 and 20 are reproduced hereinbelow:
29. Possession of some portion of property by different parties was held to be merely an arrangement of convenience. By was of oral agreement, the parties may decide to live in such portions which are not worthy of partition by metes and bounds but such arrangement/agreement is nothing more than an arrangement of convenience. It is the admitted fact that defendants No.1 and 2 have made their admissions in their written statements as well as before Court and in view thereof, orders dated 21.08.2009 and 01.09.2009 were passed. The appeal filed by the defendant No. 1 was also dismissed against the said orders.
30. The contention of the defendant No.1 now is false and frivolous that the statement recorded by the Court in the order dated 21.08.2009 in the presence of his counsel was without any authority.
31. In the similar circumstances, this Court passed order dated 01.02.2010 in the case of Sh. Prahlad Raj Anand Vs. Shri Amar Nath Anand (Deceased) through LRs and Ors. in CS(OS) No. 844/2009 decided by V.K. Shali, J. wherein it was held that a decree can be passed on the basis of a concession of the parties which can also be made through a Counsel. It is now a well settled principal of law that a Counsel can make out not only concession on a question of law but also on facts which would be binding on the parties and a decree can be passed on the basis of such concessions in terms of Order XII Rule 6 CPC. Para 6 of the order reads as under: “6. The defendants feeling aggrieved by the said order preferred an appeal against the rejection of their plea, challenging the share of the plaintiff in respect of the other suit property. This appeal was also dismissed on 27th July, 2008. Still not feeling satisfied the defendants chose to file a special leave petition in the Supreme Court assailing that the statement of the learned counsel for the defendants could not be treated to be a valid statement or a valid concession as the same was made on the basis of misunderstanding. The Supreme Court vide judgment dated 25.02.2009 dismissed the special leave petition by observing as under:
15. A decree can be passed on the basis of a concession of the parties. Such a concession can also be made through a counsel. The parties were present in court on 14.10.1999. They, thus, could instruct their counsel. As on the basis of the statements made by a counsel for all intent and purport, a preliminary decree has been passed and the parties thereafter had been exploring the possibilities of partitioning the property by meets and bounds and/or taking recourse to sale thereof there cannot be any doubt whatsoever that they had knowledge of the said order dated 14.10.1999. The parties acted upon it. It is, therefore, in our opinion, too late in the day to allow the parties to take a stand contra. Having regard to the fact that they were present in court as also having full knowledge about the statement made by their counsel, it was for them to clear spell out what could be purported misunderstanding between them and the counsel. In a suit of partition, the principal question which was required to be gone into was as to whether the properties were joint properties or self-acquired properties. There were three items of the property in suit. To say now that the instruction was confined only tone of the properties, namely, 1/13, First Floor, Double Storey, Tilak Nagar, New Delhi cannot be accepted. It is now a well settled principle of law that a counsel can make out only concession on a question of law but also on facts which would be binding on the parties. A decree can be passed on the basis of such concessions in terms of order XII, Rule 6 of the Code of Civil Procedure. (See Jamilabai Abdul Kadar Vs. Shankarlal Gulabchand and Ors. Air 1975 Sc 2202, Pushpa devi Bhagat Vs. Rajinder Singh, (2006) 5 SCC 566 and BSNL and Ors. Vs. Subash Chandra Kanchan and anr. (2006) 8 SCC 279). For the reasons aforementioned, there is no merit in the appeal. It is dismissed accordingly with costs. Counsels fee assess at Rs.25,000/- (Rs. Twenty Five Thousand only).” Therefore, the submission of defendant No.1 is rejected that his counsel has made the statement before the court without instructions. It is a matter of fact when the order was passed, the defendant No.1 was present in the Court.
32. The law on admission is well settled by this Court in various decisions, some of them are as under: (a) Umang Puri v. Lt. Col. Pramode Chandra Puri 165(2009) DLT 245 wherein it was held that the admissions need not be made expressly in the pleadings and even on constructive admissions, the Court can proceed to pass a decree in favour of the plaintiff under Order 12 Rule 6, CPC. (b) National Textile Croporation Ltd. & Anr. Vs. Ashval Vaderaa 167(2010) DLT 602 wherein it was held that admission can be found even in the statement of parties recorded in the court and admissions may also be gleaned from vague and unspecific denials.
(c) Madan Lal Kaushik Vs. Shree Yog mayaji Temple &
Ors. 178(2011) DLT 398 wherein it was held that if the defense is irreconcilable rendering it impossible well nigh (almost) impossible for the Defendant to succeed, suit out to be decreed which was the objective of amendment of CPC brought in 1976.
33. The next point i.e. the plea of limitation has been taken by defendant No. 1 in his fresh application under order VII Rule 11 CPC, though the said plea was not taken in the written statement or in his previous application being IA No. 1359/2009 under Order 7 Rule 11 CPC which was dismissed as withdrawn.
34. The contention of defendant No.1 is that the plaintiff was put to notice of denial of his entitlement for partition by way of reply dated 5.6.1999 filed by the defendant No.1 in probate proceedings. The present suit is filed in November 2008 and the same is barred by limitation under the Limitation Act. It is also alleged that the suit is also barred by doctrine of estoppel due to the reason that the plaintiff’s petition under Section 276 of Indian Succession Act was dismissed wherein the issue was similar, thus, the present suit is barred by the principles of resjudicata as the plaintiff is litigating the same issue in a different form through different proceeding.
35. It is a matter of fact that the said plea was never raised by him in the written statement filed by him. Furthermore, the plaintiff is not merely seeking decree for partition but is also seeking a decree for separate possession and against the defendant Nos. 1 and 2 thereby partition/separating the 1/3rd share of the plaintiff in the suit property.
36. Article 110, the Limitation Act provides the limitation of 12 years when the exclusion becomes known to the plaintiff. It is not denied by the plaintiff that the defendant No.1 was put to notice of denial of his entitlement for partition first time in the reply dated 5.6.1999 when at that time his plea of Will and oral partition on that basis was yet to be decided, but now the said plea of Will disbelieved by the Probate Court and the judgment passed by this Court is become final. Therefore, the question of esstoppel and the objection of rejudicata does not arise as in those proceedings the plaintiff tried to obtain the relief for grant of letter of administration on the grounds of mother having died intestate. The said proceedings are different proceedings within the meaning of Section 2(a), 218 and 276 of the Indian Succession Act. Even otherwise, in case the knowledge of the plaintiff is taken as in the year 1999 and the present suit was filed by the plaintiff in November, 2008 which is within the period of 12 years. Thus, the objection of limitation, estoppel and res-judicata is without any merit. Further, whenever the partition of the property by way of inheritance is sought, provisions of Limitation Act do not apply.
37. Under the circumstances, the application of defendant NO. 1 under Order VII Rule 11 CPC is not maintainable and is dismissed.
38. For the aforesaid reasons and admission made by the defendant No.1, I am of the considered view that the trial in the present case is not necessary as the parties are not at issue on any question of law and fact. Thus, the application filed by the plaintiff under Order XII Rule 6 CPC is liable to be allowed. The Court is otherwise empowered to pronounce the judgment under the provision of Order XV of the CPC.
39. I accordingly pass a preliminary decree for partition declaring that the plaintiff and defendants 1 and 2 have equal 1/3rd share in the suit property, being built up property No.92, Banarsi Dass Estate, Timar Pur, Delhi – 110 054. For the purpose of passing the final decree an inspection of the property will have to be carried out and other formalities are to be carried out. Thus, Mr. Tanuj Khurana, Advocate (Mobile No.9811009959 Chamber No.382, Lawyers Chambers, Delhi High Court) is appointed as Local Commissioner who will visit the site and inspect the property in the presence of the parties and if need arises, to obtain the help of Assistant Engineer as earlier appointed by this court vide order dated 1.9.2009 and then suggest ways and means in which the property can be partitioned by metes and bounds. It is directed that all the parties shall provide full cooperation for compliance of the commission. If necessary, the Local Commissioner is authorized to take the police assistance in order to comply the order. The Local Commissioner shall file his report within 12 weeks from today. The fee of the Local Commissioner is tentative fixed at Rs.60,000/- which is to be shared by plaintiff and defendant Nos. 1 and 2. In case help of Assistant Engineer is required, his fee is fixed at Rs.30,000/- which would be paid in the same manner. All pending applications stand disposed of. CS (OS) No. 2362/2008 List on 20.10.2011 MANMOHAN SINGH, J. JULY 18, 2011 mm