Bombay High Court
Mr. H.K. Taneja & Ors vs Mr. Bipin Ganatra on 22 November, 2012
Bench: R. S. Dalvi
1 NMS.886/2009-S.1094/2007(902)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 886 OF 2009
ALONG WITH
NOTICE OF MOTION NO. 1509 OF 2011
IN
SUIT NO. 1094 OF 2007
AND
SUIT NO. 1094 OF 2007
Mr. H.K. Taneja & Ors. ...Plaintiffs/Applicants
Vs.
Mr. Bipin Ganatra ...Defendant/Rspdt.
Mr. Nitin Thakkar, Sr. Advocate a/w. Mr. S. Uttan,
Ms. Manjiri Shah, Ms. Pamnani i/b. Pamnani & Pamnani for Plaintiffs
in Suit No.1094 of 2007 and Applicants in NMS. 886 of 2009
Mr. Madur i/b. J.R.T. Legal for Defendant
& Plaintiff in 2988 of 2007 and NMS. No.3732 of 2011.
CORAM : MRS. ROSHAN DALVI, J.
DATED : 22ND NOVEMBER, 2012
JUDGMENT. :
1. The suit is filed by the Trustees of a Trust dated 28 th June
1994. The Trustees claim as the owners of the suit Flat No.7-C,
Woodland Co-operative Hsng. Society Ltd., 67 Peddar Road,
Mumbai-400 026. The owner of the suit flat who created the
trust bequeathed to the said trust the said property under his
Will dated 5th July 1997. The Will has been probated. The
trustees are, therefore, the legal owners of the suit flat. The Will
recites that the deceased who was the owner of the flat resided
in the flat with his wife, Urmila Shah. The deceased created a
life interest in favour of his wife. She was to enjoy all the
2 NMS.886/2009-S.1094/2007(902)
facilities in the flat including the movables. She was not to sell,
transfer, alienate, lease, rent or create any third party rights in
favour of any person. The Will specifically forbids her from
inducting any person in the suit flat and 4 car parking places and
from tenanting or sub-tenanting or licensing the said premises.
The Will shows that the wife has been well provided and sets out
the other movable and immovable assets held by the deceased.
The Will makes no mention of any adopted child or any foster
child.
2.
The Defendant claims to be a nephew of the wife of the
deceased and residing in the suit flat as such. The Plaintiffs
claim that he trespassed in suit premises and has refused to
handover peaceful possession despite promising to do so under
letter dated 1st November 2006. The Plaintiffs claim that the
Defendant has no right, title and interest in the suit flat. The
suit, is, therefore, for declaration that the Defendant has no
right, title or interest in the suit flat and is in unlawful
possession and is trespasser. The suit is for recovery of
possession and mesne profits.
3. In the written statement the Defendant claims to be the
heir of the deceased. He claims that he was brought-up and
educated by "the said family of foster parents". The Defendant
claims to have been adopted by his foster parents, but claimed
that his surname was not changed consequent upon the
horoscope of the Defendant. The Defendant has sought to show
in his written statement how he lived with the deceased and his
3 NMS.886/2009-S.1094/2007(902)
wife as his foster parents and claimed to be in lawful occupation
and possession of the suit flat. The Defendant also filed another
suit being Suit No.2988 of 2007 for declaration that he was the
heir of his foster parents and accordingly the sole owner of the
suit flat. He claims that Plaintiffs do not have any right to the
suit flat. He claims that after the death of his foster mother the
Plaintiffs showed him the Will of the foster father, which he was
shocked to see. He has not challenged the said Will or the
probate thereof upon proving that he was the heir of the
deceased pursuant to any adoption.
4. He claims that he himself filed a probate petition and
craved leave to refer to and rely upon another Will. He has
neither shown when the Petition was filed nor gave particulars
of the Petition including its number. The Plaintiffs state that
according to their knowledge it is Testamentary Petition No.534
of 2007. The Plaintiffs claim that it is pending in the office of
the Prothonotary and Senior Master of this Court. The Court
desired to see the petition referred to and relied upon by the
Defendant, the particulars of which the Defendant did not give
and his Counsel could not answer. The Testamentary Petition
No.534 of 2007 is seen to have been filed on 7 th June, 2007 by
the Defendant. The Petition had not been prosecuted at all since
its filing.
5. The Defendant has denied that the Plaintiffs are trustees
under the indenture of trust dated 28 th June 1994 and called
upon the Plaintiffs to prove the same. He has refuted that the
4 NMS.886/2009-S.1094/2007(902)
Trust is the owner of the suit flat. This is despite the fact that
the Will of the deceased was shown to him by his wife which he
never challenged. He also claimed to be the adopted son of the
deceased and his wife. He refuted that he trespassed into the
suit flat or that he had promised to vacate under his letter dated
1st November, 2006. He has stated that the Plaintiffs had no
right in the suit flat. He, however admitted that the deceased
was the owner of the suit flat and a member in the Woodland
Co-operative Housing Society holding shares in respect of the
suit flat with 3 parking spaces. He has refuted that he was not
residing in the suit flat or was not allowed to enter during the
life time of the deceased. He claims that his possession was
lawful in the suit flat and that he being the sole heir of the
deceased, he is solely entitled to the suit flat. He consequently
claims to be in rightful possession and occupation of the suit flat
and refutes that he is a trespasser. The Defendant's case is of
denial of the Plaintiffs' ownership, despite the admission of the
ownership of the deceased in the suit flat and a claim of
adoption and possession.
6. Hence in the suit the Plaintiffs' rights under the probated
Will of the deceased owner of the suit flat would have had to be
seen upon the Defendant's case of adoption and consequent
possession as an heir of the deceased and/or his wife.
7. The probated Will of the deceased specifically forbids the
wife of the deceased from alienating, encumbering, parting with
possession, transferring or creating any 3 rd party rights in the
5 NMS.886/2009-S.1094/2007(902)
suit flat. It also forbids her from inducting any person in the suit
flat in any manner as paying-guest, tenant, sub-tenant or
licencee. The entire Will shows that aside from the childless wife
of the deceased who would enjoy the suit flat, the deceased who
was admittedly philanthropic and who has executed the Will had
settled the said flat in trust and had forbidden any
encumbrances therein. The Defendant is, therefore, a person
inducted in the suit flat by the wife against the wishes of the
deceased as reflected in his probated Will.
8.
Since the ownership of the deceased is admitted, but not of
the Plaintiffs, the Court would have had to see only the probated
Will of the deceased not challenged by the Defendant to
adjudicate the Plaintiffs' case of ownership.
9. A reading of the plaint and the written statement show the
claim of the Plaintiffs as the owners of the suit flat and the
denial of the Defendant of that claim. It also shows that the
Defendant claims to be in lawful possession and also claims sole
entitlement to the suit flat.
10. In the wake of suit pleadings, the Plaintiffs claim that the
Defendant has admitted that the Plaintiffs are owners of the suit
premises and that the Defendant is a trespasser. The Plaintiffs
have taken out this Notice of motion for judgment on admission
made by the Defendant in respect of prayer (a) and (b) of the
plaint which run thus:
6 NMS.886/2009-S.1094/2007(902)
"(a) that this Hon'ble Court be pleased to hold and declare
that the Defendant has no right, title or interest in the said
Flat No.7, "C" Wing, 7th Floor in New Woodlands Co-
operative Society Ltd with a carpet area of 2856 sq. ft along
with covered car parking spaces No.33, 62, 63 situate at 67-
Peddar Road, Mumbai-400026, more fully described in the
schedule Exhibit "A" to the Plaint and that the Defendant is
in unlawful occupation/possession as a trespasser in the suit
Suit Premises;
(b) that this Hon'ble Court may be pleased to order and
decree the Defendant to hand over vacant and peaceful
possession of the Suit Premise Flat No.7, "C" Wing, 7th Floor
in New Woodlands Co-operative Society Ltd with a carpet
area of 2856 sq. ft along with covered car parking spaces
No.33,62,63 situate at 67-Peddar Road, Mumbai-400026,
more fully described in the schedule Exhibit "A" to the Plaint
to the Plaintiff's".
11. The application is under Order 12 Rule 6 of the CPC,
which runs thus:
"Order 12. Rule 6. Judgment on admissions. - (1)
Where admissions of fact have been made either in the
pleading or otherwise, whether orally or in writing, the
Court may at any stage of the suit, either on the application
of any party or of its own motion and without waiting for
the determination of any other question between the parties,
make such order or give such judgment as it may think fit,
having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule
(1) a decree shall be drawn up in accordance with the
judgment and the decree shall bear the date on which the
judgment was pronounced."
12. Bearing in mind that the suit is on trespass and the claim
of the Plaintiffs is that they are owners of the suit property
which is refuted and denied in the written statement and
7 NMS.886/2009-S.1094/2007(902)
considering that the Defendant's case itself is of ownership
pursuant to being the heir under the deceased's Will, yet
unprobated or simplicitor as a heir on intestacy, the admission of
the Defendant would be required to be seen.
13. The admission is contained in a criminal complaint filed by
the Defendant in the Court of the Additional Chief Metropolitan
Magistrate, 40th Court, Girgaon, Mumbai against one Keshavrao
Bhosle under Sections 405, 406, 415, 418, 420, 441, 463, 464,
467, 468, 211, 192, 193 & 196 of the Indian Penal Code.
14. The complaint shows how the Defendant was adopted by
the deceased and his wife and how a tenancy right has been
created in the flat bequeathed to him by the wife of the
deceased. (This is despite the fact that the wife had only a life
interest and was not the owner of the suit flat and could not
create any interest in favour of any one including the
Defendant). The Defendant, therefore, claims to be tenant and
not an owner either by adoption or under a Will. In para 4 of a
complaint the Defendant has specifically stated that the suit flat
was owned by the Trust (an aspect denied in this suit) and that
the trust filed the suit against the complainant claiming his
eviction. The Defendant has relied upon this suit in the
complaint.
15. In para 5 of the complaint he has stated that the accused
offered to assist him to end the litigation (on his trespass) by an
amicable settlement between the Trustees and the complainant
8 NMS.886/2009-S.1094/2007(902)
by purchasing the suit flat, but the complainant showed his
inability to the sale "as he was not the owner of the flat ....".
This statement is directly contrary to the Defendant's claim in
the written statement that he was the owner pursuant to being
an heir of the deceased and his wife.
16. In para 13 of the complaint the Defendant has stated that
the accused was aware that "the flat does not belong to the
complainant, but to the trust .....", and that the trustees had
filed the suit for eviction of the complainant and hence the flat
could not be sold to the accused.
17. Consequently, it is seen that the precise case which has
been denied in the suit has been admitted in the complaint.
18. The Plaintiffs came to learn about the complaint which the
Defendant himself annexed to an affidavit in reply filed by the
Defendant in the Chamber Summons taken out by the said
Keshavrao Bhosle claiming to be a party Defendant in this Suit.
19. The admission, therefore, falls precisely under the
provision of Order 12 Rule 6 necessitating and enjoining the
Court not to wait to determine the issue of ownership, adoption
and or possession of the Defendant, but to pass a judgment
granting the aforesaid prayers which would no longer remain for
adjudication upon such admitted facts.
20. Order 12 Rule 6 is a salutary provision. It is made not to
9 NMS.886/2009-S.1094/2007(902)
get suits in which admissions of the claim of the Plaintiff are
made in whatever manner enmeshed in legal and judicial delays
by having the Plaintiffs to prove a case which is admitted. The
rule is very wide. It includes admissions in the pleadings as also
otherwise. It includes oral as well as written admissions. It
includes admissions made at any stage of the suit and in any
application of any party. It requires a judgment on admission to
be passed by the Court on its own motion or on the application
of any party having regard to such admissions. It allows
judgment for the part or full of the claim of the Plaintiffs and
requires the Court to pass the judgment without waiting for the
termination of any other question between the parties and it also
requires a decree to be passed in accordance with law.
21. This is in consonance with the rule of evidence that
admitted facts, as also documents, in a given suit need not be
proved under Section 58 of the Indian Evidence Act, 1972.
Section 58 runs thus:
"Section 58. Facts admitted need not be proved. -
No fact need to be proved in any proceeding which the
parties thereto or their agents agree to admit at the hearing,
or which, before the hearing, they agree to admit by any
writing under their hands, or which by any rule of pleading
in force at the time they are deemed to have admitted by
their pleadings:
provided that the Court may, in its discretion, require
the facts admitted to be proved otherwise than by such
admissions."
22. Hence the facts which are admitted in the suit itself must
also result in termination of the proceedings either fully or partly
upon such admissions.
10 NMS.886/2009-S.1094/2007(902)
23. This is a fit case in which the entire dispute between the
parties of the Plaintiffs' claim, denied in the written statement in
this suit, is admitted in another proceeding with regard to the
suit property. It is required not to be adjudicated in the normal
course by having the Plaintiffs to prove the claim in the normal
course when the suit would reach hearing, but upon the
admission of the Defendant himself. Of course, in this case, in
any event, the Plaintiffs would require only the tendering of the
probate, since unchallenged, as a judicial record having a
presumption of its correctness. Once it is seen that the
Defendant has admitted that the trust owns the suit flat and has
shown his inability to sell the suit flat to Kesharvrao Bhosle as
the Defendant was not the owner of the suit flat and
unequivocally claimed that the flat did not belong to him, but to
the trust, who had sued him for eviction, no further issue
remains between the parties.
24. The admission of the Defendant, if made in this suit itself,
would require to be recorded under the provisions of Order 10
Rule 1 of the CPC. Order 10 Rule 1 runs thus:
" Order X Rule 1. Ascertainment whether allegations in
pleadings are admitted or denied. - At the first hearing of
the suit the Court shall ascertain from each party or his
pleader whether he admits or denies such allegations of fact
as are made in the plaint or written statement (if any) of the
opposite party, and as are not expressly or by necessary
implication admitted or denied by the party against whom
they are made. The Court shall record such admissions and
denials."
11 NMS.886/2009-S.1094/2007(902)
25. Since the admission is not made in the written statement
in this suit itself, but is specifically unequivocally and clearly,
made in another proceedings, such admission enjoins the Court
to pass the judgment thereon under Order 12 Rule 6 of the CPC
as having been made in writing otherwise then in this pleadings
but in the criminal complaint sought to be brought to the notice
of the Plaintiffs in the Chamber Summons referred to above.
26. The purpose and object of Order 10 Rule 1 is also similar -
it is to narrow down the issues between the parties, the issues
being the material facts pleaded by one party which are denied
by the other under the provisions of Order 14 Rule 1 of the CPC
the relevant part of which runs thus:
"Framing of issues. - (1) Issues arise when a material
proposition of fact or law is affirmed by the one party and
denied by the other.
(2) Material propositions are those propositions of law or
fact which a plaintiff must allege in order to show a right to
sue or a defendant must allege in order to constitute his
defence.
(3) Each material proposition affirmed by one party and
denied by the other shall form the subject of a distinct issue.
(4) .....
(5) .....
(6) .....
27. The issue with regard to the ownership of the Plaintiffs as
Trustees would have been required to be framed upon the denial
of that material fact in the written statement, but for the
admission of that fact in the criminal complaint. The
admissions, therefore, negate the denials. They expose the truth
12 NMS.886/2009-S.1094/2007(902)
of the case set out by the Defendant himself. If the suit were to
proceed the Plaintiffs would be required to do things:
One positive and one negative - to produce the probate,
since unchallenged, to show their legal right, title and interest in
the suit premises and to confront to the Defendant with the
criminal complaint which he cannot back out from. It is this
redundant exercise which is statutorily enjoined to be done away
with.
28. It is seen that the parties are seen not to be at issue with
regard to the fact that the trust is the owner of the suit flat, that
the Defendant is not the owner, and that the suit flat does not
belong to him and so he cannot sell the suit flat to Keshavrao
Bhosle,(or for that matter to any other party).
29. Hence, in fact, Order 15 Rule 1 of the CPC would also
come into play.
Order 15 Rule 1 runs thus:
" Order 15. Rule 1. Parties not at issue. - Where at
the first hearing of a suit it appears that the parties
are not at issue on any question of law or of fact, the
Court may at once pronounce judgment."
The object of that provision is the same - not to try an
issue, initially raised, that even later admitted as then the parties
would no longer be at issue on such matter.
30. In this suit no material facts alleged by the Plaintiffs are
seen to be denied by the Defendant.
13 NMS.886/2009-S.1094/2007(902)
31. All the aforesaid salubrious provisions are allowed for the
purpose of smoothening and streamlining the trial procedure
which need not be resorted to in the face of admissions by a
party to a lis. Once an admission is seen nothing further remains
to be adjudicated upon in the suit.
32. Hence prayers (a) and (b) of the suit would be required to
be granted upon such admitted facts, which do not require to be
proved.
33.
The declaration that the Defendant has no right, title and
interest in the suit flat must be given upon the specific statement
of the Defendant in para 13 of the complaint that the flat does
not belong to him, but to the trust. The declaration that the
Defendant is in unlawful occupation and possession as a
trespasser falls as a matter of corollary once it is admitted by the
Defendant that the flat does not belong to him and that it is
owned by the trust.
34. The relief of recovery of possession to the Plaintiffs, who
are the trustees, must, therefore, follow upon the Defendant's
specific statement in para 4 of the complaint that the flat is
owned by the trust who has sued for his eviction.
35. There are few cases in which the admission of a Defendant
in another proceeding is so clear and unequivocal with regard to
the entire relief claimed by the Plaintiffs.
14 NMS.886/2009-S.1094/2007(902)
36. In the reply to the Notice of Motion all that the Defendant
has claimed is that his admissions are totally unclear, ambiguous
and conditional and made with reference to the rights allegedly
claimed by the Keshavrao Bhosle. Mr. Thakker rightly argued
that accordingly the Defendant admits his admissions. In fact
his denials in the written statement are rather unclear and
ambiguous, he having claimed as an heir of the Testator and his
wife (without showing or proving the adoption, if any), which
would be upon intestacy and after having vaguely referred to a
Will of the wife of the Testator which is sought to be probated
by him without making any reference to the probate petition or
the number of the petition.
37. This is, therefore, a fit case in which to pass the judgment
on the admission of the Defendant made in the aforesaid
criminal complaint in terms of prayers (a) and (b) of the plaint.
38. Hence, the suit is made absolute in terms of prayers (a)
and (b).
39. Decree be drawn up accordingly.
40. The Notice of Motion No.1509 of 2011 is taken out by the
Defendant. It has not been served upon the Plaintiffs. It is
pending disposal. In view of the decree passed the Notice of
Motion does not survive and hence the Notice of motion is
dismissed.
(MRS. ROSHAN DALVI, J.)
