Bhushan Kumar Gupta & Ors. v. Rajinder Kumar Gupta

1. The present application purporting to be under Order XII Rule 6 of the Code of Civil Procedure, 1908[1] seeks the drawl of a preliminary decree of partition in respect of property no.14/1 Shakti Nagar, Delhi – 1100072.

2. For the purposes of considering the prayer for a judgment on admission being entered, the Court deems it apposite to notice the following facts. Code suit property

3. The suit property, undisputedly, was purchased by the late Sh. Hem Chander Gupta on 12 September1976. Sh. Hem Chander Gupta is stated to have died intestate on 31 December 1999 leaving behind his wife and five sons whose details appear below:i. Smt. Premwati Gupta ii. Sh. Mange Ram Gupta iii. Sh. Rajinder Kumar Gupta iv. Sh. Santosh Kumar Gupta v. Sh. Satish Chander Gupta vi. Mr. Bhushan Kumar Gupta

4. The mother, Premwati Gupta also died intestate on 12 July

2018. Consequently, her 1/6th undivided share in the suit property devolved upon her five surviving sons and as a consequence of which the plaintiffs contend that all the five surviving sons became the owner of 1/5th undivided share in the suit property. Sh. Mange Ram Gupta, the eldest son of the deceased Sh. Hem Chander Gupta and Smt. Premwati Gupta, is stated to have gifted his 1/5th undivided share to his daughter-in-law Smt. Shalini Gupta. It becomes pertinent to note that Sh. Santosh Kumar Gupta and Sh. Satish Chander Gupta, Sh. Bhushan Kumar Gupta and Smt. Shalini Gupta have instituted the present suit as plaintiffs. The relief for partition is opposed solely by Sh. Rajender Kumar Gupta, the other son of the deceased Sh. Hem Chander Gupta and Smt. Premwati Gupta.

5. According to the case set up in the plaint, the plaintiffs approached the defendant for partitioning of the suit property by mutual consent with each party thereto being entitled to 1/5th therein. The plaintiffs are stated to have approached the defendants for partition being affected by metes and bounds. Since the aforesaid request was not acceded to, the present suit came to be filed on 18 April 2022.

6. The defendant has filed a written statement in these proceedings. It becomes pertinent to note that in the written statement the factum of the suit property having been purchased by the late Sh. Hem Chander Gupta is not disputed. The property thus and indubitably would be liable to be viewed as the self-acquired property of the late Sh. Hem Chander Gupta. The solitary defense which is proffered is that on or about March 1999 late Sh. Hem Chander Gupta during his lifetime called upon all his sons, being the Class-1 legal heirs, to partition the suit property. According to the defendant, parties agreed to an equitable partition of the suit property and that an oral partition came about at that time.

7. In the written statement, it is stated that the defendant as well as the other plaintiffs consequently and in terms of the said oral partition came to occupy the identified portions in the suit property. It is based on the aforesaid plea of an oral partition stated to have been arrived at in March 1999 that the defendant avers that the suit is barred by limitation.

8. Learned counsel appearing for the plaintiffs submitted that, in light of the admitted position appearing from the pleadings of parties that the property was self-acquired, the plea of an oral partition is clearly liable to be negatived. It was further submitted that since the property was self-acquired by the father of the parties and he remained the owner thereof during his lifetime, at least till his demise there could have been no partition in terms of which the property may have been divided amongst his legal heirs. It was also contended that the property, if at all the father did so desire, could have been transferred either by way of a gift or a conveyance. It was submitted that neither the plea of oral partition nor the plea of such a partition having been made by the father during his lifetime can possibly sustain.

9. It would be relevant to note that the provisions of Order XII Rule 6 of the Code confer a discretion on a court to enter a judgment upon admission in order to circumvent unnecessary litigation. That power is also liable to be exercised where the Court comes to conclude that the defense as proffered is wholly without substance, gives rise to no triable issue and is unlikely to succeed. The Court in this regard bears in mind the following principles as enunciated by the Division Bench of the Court in Delhi Jal Board vs. Surendra P. Malik, 2003[3]:- ―8. The provision confers almost sweeping powers on the Court to render a speedy judgment in the suit to save the parties from going through the rigmarole of a protracted trial. The only pre-requisite for this is that there must be admissions of fact arising in the suit, be that in the pleadings or otherwise or orally or in writing. Such admission of facts must be clear and unequivocal, unconditional and unambiguous and may relate to the whole claim or a part of it. These need not be made specifically or expressly and could be a constructive admissions also. Whether or not such admission arose in the suit would depend on the facts and circumstances of the case. If it involved disputed facts, claims and counter claims requiring evidence of parties for determination of issues or where the defence of a party touched the root of the matter, a judgment could not be passed under Order, 12 Rule 6 dispensing with the trial because the valuable right of going to trial could not be taken away from the party unless the claim was admitted. A duty was, SCC OnLine Del 292 therefore, cast on the court to ascertain the admission of facts and to render judgment on these either in respect of the whole claim or part of it. The court could do so on its own or on the application of a party and without waiting for the determination of any other question between the parties. It could do so at any stage of the suit. Dealing with the scope of provision. Supreme Court said in Uttam Singh Duggal v. Union, (2000) 7 SCC 120: AIR 2000 SC 2740:— ―Where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain a speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed.‖

9. The test, therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defence set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment.‖

10. On due consideration of the defense which has been proffered, the Court is of the firm opinion that the same is wholly unworthy of consideration. The defendant has failed to justify how an oral partition could have been made or could have come into being during the lifetime of the father. The fact that the property was acquired by the father of the parties exclusively was also not disputed.

11. Accordingly, a preliminary partition decree for partition of property no.14/1 Shakti Nagar, Delhi – 110007 is passed, declaring plaintiff no. 1 Sh. Bhushan Kumar Gupta, plaintiff no. 2 Sh. Satish Chander Gupta, plaintiff no. 3 Sh. Santosh Kumar Gupta, plaintiff NO. 4 Sh. Shalini Gupta and defendant Sh. Rajinder Kumar Gupta having one-fifth undivided share therein.

12. Preliminary decree for partition be drawn up.

13. It is deemed appropriate to grant time to the parties to consider, whether they are in a position to divide the property by metes and bounds. Else, on the next date of hearing, a final decree of partition and/or sale of the property, including by way of the parties making inter se bids, shall be passed. CS(OS) 244/2022 & I.A. 6803/2022 (Interim Injunction), I.A. 20330/2022 (U.O. XII R. 8r/w S. 151CPC)