Bombay High Court
Pradip Pransukhlal Sagar @ Pradip ... vs Jagdish Pransukhlal Sagar And 57 ... on 25 March, 2022
Bench: N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 2006 OF 2018
IN
Digitally
signed by
SUIT NO. 119 OF 2017
SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
TALEKAR Date:
2022.03.25
1. Jagdish Sagar & 3 Ors. ...Applicants
18:13:54
+0530 (Orig. Defendant Nos. 1 to 4)
In the matter of :
1. Mr. Pradip Pransukhlal Sagar
& 4 Others ... Plaintiffs
Versus
1. Mr.Jagdish Pransukhlal Sagar
& 57 Others ... Defendants
*****
Mr.Ashish Kamat a/w. Mr.Archit Jayakar, Ms.Divya Tyagi, Ms.
Anushka Agarwal i/b Jayakar and Partners for applicant Nos.1 to
4-original defendant Nos.1 to 4 in NMS/2006/2018.
Mr.Sarosh Bharucha a/w. Mr.Rajmani Varma i/b Navdeep Vora
Associates for plaintiffs.
Mr.Melvyn Fernandes a/w. Mr. Saurabhsai Ganesan i/b Vaish
Associates for defendant Nos.13 to 18.
*****
CORAM : N. J. JAMADAR, J.
CLOSED FOR ORDER : 13th OCTOBER 2021
PRONOUNCED ON : 25th MARCH 2022
ORDER :
1. This Notice of Motion is taken out by the applicants-original
defendant Nos.1 to 4 seeking, inter-alia, the following reliefs :
"(a) Without prejudice to all Defendant Nos.1 to 4's right,
contentions and defences in the Suit, pending the hearing
and fnal disposal of the Suit, this Hon'ble Court be pleased
to pass a preliminary decree of partition only with regard to
Flat No. 502, 5th Floor, Queens Diamond Apartments, Mama
Parmanand Marg, Mumbai 400 004 (hereinafter referred to as
"the Subject Flat") and upon such decree, this Hon'ble Court
Shraddha Talekar, PS 1/26
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be please to :
(i) to appoint a recognised valuer to evaluate,
ascertain and fi the value of the Subject Flat and
shares of the respective parties therein;
(ii) permit the Plaintiffs and Defendants to inter-
se bid for the Subject Flat and upon receipt of the
highest bid, order and direct either the Plaintiffs to
purchase the Defendants' shares in the Subject Flat
or alternatively permit the Defendant Nos. 1 to 4,
jointly and severally alongwith Defendant Nos. 5 to
7 as a group, to purchase the Plaintiffs' 1/5th
undivided right, title and interest in the Subject
Flat;
(iii) upon the rule of Subject Flat being completed,
this Hon'ble Court be pleased to direct vacation of
the Subject Flat by the parties who have sold out
their share in the Subject Flat to vacate the same;
(iv) in favour of the successful purchase, this
Hon'ble Court may direct the eiecution of
documents either through the parties or through an
offcer appointed by the Court so as to convey
appropriate right, title and interest in the Subject
Flat, more particularly declared at Eihibit 'I' and
handing over of possession thereof."
2. This Suit is instituted for partition and separate possession
of the joint family properties and multifarious consequential
reliefs. The late Kanthadbhai Lulubhai Sagar was the common
ancestor of the plaintiffs and defendant Nos.1 to 57. Kanthadbhai
had three sons, viz., Late Pransukhlal, Late Natwarlal and Late
Manharlal. Plaintiff Nos.1 to 5 and defendant Nos.1 to 29 are the
members of Pransukhlal branch. Defendant Nos.30 to 42
represent Natwarlal branch and defendant Nos.43 to 57 represent
Shraddha Talekar, PS 2/26
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Manharlal branch.
3. In the year 1920, Late Kanthadbhai established a jewelery
business in Mumbai under the name and style of M/s.Nathalal
Kanthadbhai Jewellers. Late Kanthadbhai acquired a number of
properties including Flat No.10 in Jer Mansion, situated at 5, New
Queens Road, which is now known as "Queens Diamond
Apartments Association" and the said Flat No.10 has been
subsequently renumbered as Flat No.501. After the demise of
Kanthadbhai, his sons continued the family business and also
started a new frm under the name and style of M/s.Pransukhlal
Brothers Jewelers. It is the case of the plaintiffs that from the
income generated from the joint family business, other properties
were acquired.
4. The Pransukhlal branch of the family started their
independent business venture under name and style of Aum
Jewels from the joint family funds. In the year 1979, Pransukhlal
branch purchased Flat No.502, 5 th Floor, Queens Diamond
Apartments, Mama Parmanand Marg, Mumbai 400 004 (the
subject matter of this Notice of Motion), which is adjacent to Flat
No.501, from the income of the joint family business. The
Shraddha Talekar, PS 3/26
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Pransukhlal Branch also acquired Flat No. 201 in the said Queens
Diamond Apartments in 1982.
5. In 1980-1990, Natwarlal and Manharlal parted ways leaving
M/s.Pransukhlal Brothers Jewelers business in the Pransukhlal
branch of the family. The plaintiffs further aver that thereafter the
Pransukhlal branch acquired a number of other properties
described in Eih.'H' of the Plaint from-out of the joint family
funds.
6. In the year 2013, differences arose between the plaintiffs and
the defendants. The plaintiffs instituted Suit No.3856 of 2013
before the Bombay City Civil Court seeking the relief of permanent
injunction restraining the defendant Nos.1 to 4, 7 to 9, 11 to 13,
29 and 58 from disturbing plaintiffs' possession over the joint
family properties. Though a statement was made before the City
Civil Court that the defendants would not disturb the use,
occupation and possession of the plaintiffs over the area of Flat
Nos.501 and 502 in Queens Diamond Apartments, marked in
'blue colour' on the rough sketch anneied to the Plaint in the said
Suit, the defendants disturbed the possession of the plaintiffs and
sought to encroach upon the area in occupation of the plaintiffs.
The plaintiffs took out Notice of Motion No.2020 of 2016 seeking
Shraddha Talekar, PS 4/26
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injunctive reliefs. The City Civil Court rejected the said Notice of
Motion by an order dated 16th September 2016 recording, inter-
alia, the contention of the defendants that there has been no
partition of the joint family properties by metes and bounds, and,
thus, the plaintiffs could not claim eiclusive possession over any
portion of Flat Nos.501 and 502. The plaintiffs were thus
constrained to institute the suit seeking, inter-alia, a declaration
that the businesses, frms and properties set out in Eih.F and
Eih.H belong to the joint family of Pransukhlal and plaintiffs have
a share therein and the consequential reliefs of partition,
injunction etc.
7. By this Notice of Motion, the defendant Nos.1 to 4 have
sought a preliminary decree of partition with regard to Flat No.
502, 5th foor, Queens Diamond Apartments ('the Subject Flat')
only, with the assertion that the Subject Flat was purchased on
29th September 1981 jointly by the fve sons of Late Mr.
Pransukhlal Sagar viz. Pradip Sagar (plaintiff No.1), Jagdish Sagar
(defendant No.1), Subhash Sagar (defendant No.7), Manoj Sagar
(defendant No.13) and Harshad Sagar, who passed away and is
represented by defendant Nos.19 and 20, for an aggregate
consideration of Rs.2,50,000/- from out their respective separate
Shraddha Talekar, PS 5/26
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funds. Each of the above-named sons of Pransukhlal contributed
Rs.50,000/- towards the consideration and thus have an
undivided 1/5th share, right, title and interest in the Subject Flat
and are thus joint owners thereof. Defendant No.13-Manoj,
according to defendant Nos.1 to 4, eiecuted a Deed of Gift, on 20 th
June 2015, in favour of defendant No.1 and gifted his undivided
1/5th share in the Subject Flat to defendant No.1. Thus, the
defendant No.1 has 2/5th share in the Subject Flat.
8. The defendant Nos.1 to 4 assert that, to the aforesaid eitent,
the plaintiff No.1's right in the Subject Flat (1/5th share) is
admitted by the defendants. Therefore, whilst disputing and
denying the remainder of the plaintiffs' claim in the Suit, it is
undisputed that the plaintiff No.1 is a co-owner of the Subject Flat
and holds 1/5th undivided right, title and interest therein, a
decree for partition only for and in respect of the Subject Flat can
be passed.
9. In justifcation of the aforesaid prayer, the defendants have
adverted to various alleged acts of commission and omission
attributable to the plaintiffs which made it eitremely diffcult for
the rest of the co-owners to occupy the portions of the Subject
Flat. On account of the continual disputes, the familial relations
Shraddha Talekar, PS 6/26
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of the defendants with the plaintiffs have been severely strained
and it is impossible to live under the same roof. Moreover, in the
light of the confguration of the Subject Flat, it is impossible to
partition the individual share of the joint owners of the Subject
Flat, nor the Subject Flat is susceptible to equitable partition,
and, therefore, it is necessary to pass an order to value and
thereafter sale the share of the plaintiffs in the Subject Flat. The
applicants-defendant Nos.1 to 4 are willing to purchase the share
of the plaintiffs therein. Hence, this Notice of Motion.
10. The plaintiffs have resisted the prayers in the Notice of
Motion by fling an affdavit-in-reply. At the outset, the plaintiffs
contend that the Notice of Motion is fled with an oblique motive to
dis-house the plaintiff Nos.1 and 2 from the Subject Flat. The
instant Suit has been instituted for partition of several joint family
businesses and properties set out in Eih.F and Eih.H to the
Plaint. However, to derive an undue advantage of the straitened
fnancial position, which the plaintiff Nos. 1 and 2 fnd themselves
in, the defendant Nos.1 to 4 have sought a preliminary decree for
partition in respect of Subject Flat and thereby snatch away the
roof over the head of the plaintiffs.
Shraddha Talekar, PS 7/26
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11. The plaintiffs further contend that the defendant Nos. 1 to 4
have taken out this Notice of Motion to wriggle out of the situation
which obtained on account of an order passed by this Court in
Appeal From Order (Stamp) No. 26972 of 2016, whereby the
interim protection granted by the City Civil Court, in the Notice of
Motion, which came to be eventually dismissed, is continued.
12. It is contended that the claim of the defendants that the
plaintiffs' claim as regards the Subject Flat only has been
admitted by the defendants is incorrect. In fact, in a
communication addressed by the counsel for the defendants on
26th December 2014, the defendants had shown willingness to
have limited partition of Flat Nos. 502, 501 and 201, as well.
Likewise, in the affdavit-in-reply to the Notice of Motion (L.)
No.3553 of 2016, it was admitted that the property situated at
Bhavnagar (Eih. 'B' to the Plaint) was also a joint family property
and the plaintiffs also have a share therein. Thus, the very
premise of the Notice of Motion that the Subject Flat is the only
property in which the rights of the parties are undisputed is
untrue. On these, amongst other, grounds, the plaintiffs have
prayed for rejection of the Notice of Motion.
13. I have heard Mr.Ashish Kamat, the learned counsel for
Shraddha Talekar, PS 8/26
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applicants-original defendant Nos.1 to 4, Mr.Melvyn Fernandes,
the learned counsel for defendant Nos.13 to 18 and Mr.Sarosh
Bharucha, the learned counsel for the plaintiffs, at some length.
With the assistance of the learned counsels for the parties, I have
perused the material on record.
14. Mr.Kamat, the learned counsel for the applicants-defendant
Nos.1 to 4 submitted that from the averments in the Plaint,
especially paragraph Nos.19 and 20, it becomes eiplicitly clear
that there is no dispute over the fact that the plaintiffs, defendant
No.1, defendant No.7, defendant No.13 and defendant Nos.19 and
20 are the co-owners of the Subject Flat with defnite shares. The
fact that the share of the defendant No.1 stood augmented in view
of Deed of Gift eiecuted by defendant No.13 in favour of defendant
No.1, dated 20th June 2015, is also rather incontestable. Since the
acquisition of the Subject Flat by the sons of Pransukhlal was in
the capacity of tenants in common, as is evidenced by the
Indenture dated 29th September 1981, the aforesaid assertions in
the Plaint furnish a justifable ground for passing a preliminary
decree for partition under Order XII Rule 6 of the Code of Civil
Procedure, 1908 ('Code').
15. In order to lend support to the aforesaid submissions, Mr.
Shraddha Talekar, PS 9/26
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Kamat placed a strong reliance on the judgments of the Supreme
Court in the cases of Uttam Singh Duggal & Co. Ltd. Vs. United
Bank of India & Others 1
and V.M. Salgaocar and Bros. Vs. Board
and a judgment of a
learned Single Judge of this Court in the case of SRL Limited Vs.
Techtrek India Limited 3.
16. Mr.Kamat further submitted that the legal position is
absolutely clear that a decree on admission can be sought by a
defendant, as well. In the peculiar facts of the case, where it has
become impossible for the plaintiff No.1 and the rest of the co-
owners to occupy the portions of the Subject Flat in a peaceful
manner, it would be just and equitable to pass a preliminary
decree and allow the co-owners to acquire the share of the
plaintiffs and/or any other co-owner, at a fair value, to be
determined by a recognised Valuer. To buttress the submission
that a decree on admission can be passed at the instance of the
defendant, Mr.Kamat placed reliance on the judgment of a learned
Single Judge of this Court in the case of Ramila Kilachand Vs.
Harsh Rajnikanth Kilachand & Ors. 4, and a judgment of Madhya
1 (2000) 7 SCC 120
2 (2005) 4 SCC 613
3 2014 SCC OnLine Bom. 193
4 2011 SCC OnLine 373
Shraddha Talekar, PS 10/26
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Pradesh High Court in the case of The Arun General Industries
Ltd. Vs. The Rishab Manufacturers (Pr.) Ltd. & Ors.5.
17. Mr.Bharucha, the learned counsel for the plaintiffs, on the
other hand, submitted that the motive behind the prayer for a
preliminary decree, which on its face appears innocuous, must
enter the judicial verdict. The defendant Nos.1 to 4 are aware of
the fact that the plaintiff Nos.1 and 2 are not in a position to shell
out money to buy the shares of the other co-owners. Thus, the
defendants have moved this Notice of Motion to throw the
plaintiffs out of the joint family house. Since, the plaintiff Nos.1
and 2 have no other place to reside, apart from the Subject Flat, a
decree for partition in respect of a minor portion of a joint family
property would operate to the eitreme prejudice of the plaintiffs.
The defendants are fully cognizant of the fact that the amount,
which 1/5th share of the plaintiffs in the Subject Flat would fetch,
would be wholly inadequate to acquire a roof over their head.
Thus, according to Mr. Bharucha, such discretionary order under
Order XII, Rule 6 cannot be passed which would cause manifest
injustice to the plaintiffs, especially when there are other joint
family properties; over the character of which, the parties are not
5 AIR 1972 MP 147
Shraddha Talekar, PS 11/26
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at issue.
18. It was further submitted that the contention that on
account of the strained relations, the parties have not been in a
position to occupy the portions of the Subject Flat, was a ruse to
dis-house the plaintiffs. None of the defendants are occupying the
portions of the Subject Flat, since they are comfortably placed in
other residential premises. In the circumstances, the defendants
do not deserve eiercise of discretion in their favour. To emphasize
the discretionary nature of the jurisdiction under Order XII Rule 6
of the Code, Mr.Bharucha placed reliance on a judgment in the
case of Himani Alloys Limited Vs. TATA Steel Limited 6.
19. Ordinarily, it is at the instance of the plaintiff, who banks on
an admission in the pleadings or otherwise a decree on admission
is passed. However, it is not an immutable rule of law that the
decree on admission at the instance of the defendant who
voluntarily confesses to a portion of the plaintiffs' claim, cannot
be passed. The reliance placed by Mr. Kamat on the judgments of
this Court in the case of Ramila Kilachand (Supra), and of
Madhya Pradesh High Court in the case of The Arun General
Industries Ltd. (Supra) is well founded. Thus, the position in law
6 (2011) 15 SCC 273
Shraddha Talekar, PS 12/26
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has crystallized to the effect that it is open to a defendant to admit
a part of the plaintiff's claim and seek a decree. This position in
law applies with even greater force where the Suit is for partition
of the joint family properties. In a suit for partition, a defendant,
who has a share in the joint family properties, is as much entitled
to a decree for partition as the plaintiff.
20. The defendant Nos.1 to 4 are well within their rights in
seeking a preliminary decree for partition in respect of a part of
the joint family properties. The question that wrenches to the fore
is whether, in the facts of the case, the Court should eiercise the
discretion and pass a decree on admission by invoking the power
under Order XII, Rule 6 of the Code?
21. Order XXII, Rule 6 of the Code reads as under :-
"Order XII 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 ft, having regard to such
admissions.
(2) Whenever a judgment is pronounced under sub-
rule (1) a decree shall be drawn upon in accordance with
the judgment and the decree shall bear the date on which
the judgment was pronounced."
Shraddha Talekar, PS 13/26
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22. From the phraseology of the aforesaid sub-rule (1) of Rule 6,
it becomes evident that the legislature has designedly conferred
jurisdiction on the Court to pass judgment on admission. The
legislature has taken care to ensure that the source of admission
is not of decisive signifcance. Firstly, the admissions can be found
either in the pleadings or otherwise. Secondly, the insistence for
admission being in writing is done away with. The admission may
be oral or in writing. Thirdly, the stage of the suit does not matter.
The Code eipressly empowers the Court to pass judgment on
admission at any stage of the suit. The said aspect is further
reinforced by the words "without waiting for the determination of
any other question between the parties". Fourthly, the party, in
whose favour the admission is made, need not apply. The Court,
on its own motion, can pass a judgment on admission if it comes
to the conclusion that the claim or part of the claim of one party
is admitted by the other. Lastly, the eiercise of the said power is
undoubtedly discretionary. But, in view of the wide ambit and
unhinged nature of the powers conferred on the Court to pass a
judgment on admission, the Court may not be justifed in refusing
the relief where a case falls within the four corners of the said
provision. For the ultimate object of the provision is to give an
Shraddha Talekar, PS 14/26
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eipeditious relief to a party when its claim is admitted by the
adversary.
23. A proftable reference in this conteit can be made to the
judgment of the Supreme Court in the case of Uttam Singh
Duggal & Co. Ltd. Vs. United Bank of India & Ors. 7, relied upon
by Mr. Kamat, wherein the object of the aforesaid rule was
eipounded and the approach eipected of the Court was
delineated, in the following words :
"12 As to the object of the Order 12 Rule 6, we
need not say anything more than what the legislature
itself has said when the said provision came to be
amended. In the objects and reasons set out while
amending the said rule, it is stated that 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 eitent
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 speedy judgment.
Where 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."
(emphasis supplied)
24. The aforesaid pronouncement was followed by the Supreme
Court in the case of Karam Kapahi & Others Vs. Lal Chand Public
Charitable Trust . The Supreme Court traced the historical
7 (2000) 7 SCC 120
8 (2010) 4 SCC 753
Shraddha Talekar, PS 15/26
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backdrop of the said provision, including the amendment
introduced therein by the Amendment Act, 1976 pursuant to the
recommendations of the Law Commission, and instructively
enunciated the true nature and import of the said provision. The
observations of the Court are as under :
"37 The principles behind Order 12 Rule 6 are to give
the plaintiff a right to speedy judgment. Under this Rule
either party may get rid of so much of the rival claims
about `which there is no controversy' [See the dictum of
Lord Jessel, the Master of Rolls, in Thorp versus
Holdsworth in (1876) 3 Chancery Division 637 at 640].
38 In this connection, it may be noted that order 12
Rule 6 was amended by the Amendment Act of 1976.
Prior to amendment the Rule read thus:-
"6. Judgment on admissions. - Any party may, at
any stage of a suit, where admissions of facts
have been made, either on pleadings or
otherwise, apply to the Court for such judgment
or order as upon such admission he may be
entitled to, without waiting for the determination
of any other question between the parties and
the Court may upon such application make such
order or give such judgment, as the Court may
think just."
39 In the 54th Law Commission Report, an
amendment was suggested to enable the Court to give a
judgment not only on the application of a party but on its
own motion. It is thus clear that the amendment was
brought about to further the ends of justice and give
these provisions a wider sweep by empowering judges to
use it `ei debito justitial, a Latin term, meaning a debt of
justice. In our opinion the thrust of the amendment is
that in an appropriate case, a party, on the admission of
the other party, can press for judgment, as a matter of
legal right. However, the Court always retains its
discretion in the matter of pronouncing judgment.
40. If the provision of order 12 Rule 1 is compared
with Order 12 Rule 6, it becomes clear that the provision
of Order 12 Rule 6 is wider in as much as the provision of
order 12 Rule 1 is limited to admission by `pleading or
otherwise in writing' but in Order 12 Rule 6 the
Shraddha Talekar, PS 16/26
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eipression `or otherwise' is much wider in view of the
words used therein namely: `admission of fact.........either
in the pleading or otherwise, whether orally or in writing'.
41. Keeping the width of this provision in mind this
Court held that under this rule admissions can be
inferred from facts and circumstances of the case [See
Charanjit Lal Mehra and others v. Kamal Saroj Mahajan
(Smt.) and another, (2005) 11 SCC 279 at page 285 (para
8)]. Admissions in answer to interrogatories are also
covered under this Rule [See Mullas's commentary on the
Code, 16th Edition, Volume II, page 2177].
42. In the case of Uttam Singh Duggal & Co. Ltd., v.
United Bank of India and others, (2000) 7 SCC 120, this
Court, while construing this provision, held that the
Court should not unduly narrow down its application as
the object is to enable a party to obtain speedy judgment.
43. In that case it was contended on behalf of the
appellant, Uttam Singh Duggal, that:
(a) Admissions under Order 12 Rule 6 should
only be those which are made in the
pleadings.
(b) The admissions would in any case have to
be read along with the frst proviso to Order
8 Rule 5 (1) of the Code and the Court may
call upon the party relying on such
admission to prove its case independently.
(c) The eipression `either in pleadings or
otherwise' should be interpreted ejusdem
generis. [See para 11, pages 126-127 of the
report]
Almost similar contentions have been
raised on behalf of the Club. In Uttam Singh
(supra) those contentions were rejected and
this Court opined no effort should be made
to narrow down the ambit of Order 12 Rule
44. In Uttam Singh (supra) this Court made a
distinction between a suit just between the parties and a
suit relating to Specifc Relief Act where a declaration of
status is given which not only binds the parties but also
binds generations. The Court held such a declaration
may be given merely on admission (para 16, page 128 of
the report). But in a situation like the present one where
the controversy is between the parties on an admission of
non-payment of rent, judgment can be rendered on
admission by Court.
Shraddha Talekar, PS 17/26
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45. Order 12 Rule 6 of the Code has been very lucidly
discussed and succinctly interpreted in a Division Bench
judgment of Madhya Pradesh High Court in
Shikharchand v. Bari Bai reported in AIR 1974 Madhya
Pradesh 75. Justice G.P. Singh (as His Lordship then
was) in a concurring judgment eiplained the aforesaid
rule, if we may say so, very authoritatively at page 79 of
the report. His Lordship held : (AIR para 19)
"... I will only add a few words of my own.
Rule 6 of Order 12 of the Code of civil
Procedure corresponds to Rule 5 of Order 32
of the Supreme Court Rules (English), now
rule 3 of Order 27, and is almost identically
worded (see Annual Practice 1965 edition Part
I. p. 569). The Supreme Court Rule came up
for consideration in Ellis v. Allen (1914) Ch
904. In that case a suit was fled for
ejectment, mesne profts and damages on the
ground of breach of covenant against sub-
letting.
Lessee's solicitors wrote to the plaintiff's
solicitors in which fact of breach of covenant
was admitted and a case was sought to be
made out for relief against forfeiture. This
letter was used as an admission under rule 5
and as there was no substance in the plea of
relief against forfeiture, the suit was decreed
for ejectment under that rule. Sargant, J.
rejected the argument that the rule is
confned to admissions made in pleadings or
under rules 1 to 4 in the same order (same as
ours) and said:
"The rule applies wherever there is a clear
admission of facts in the face of which it is
impossible for the party making it to
succeed."
Rule 6 of Order 12, in my opinion, must bear
the same construction as was put upon the
corresponding English rule by Sargent, J. The
words "either on the pleadings or otherwise"
in rule 6 enable us not only to see the
admissions made in pleadings or under Rules
1 to 4 of the same order but also admissions
made elsewhere during the trial."
46 This Court eipresses its approval of the aforesaid
interpretation of Order 12 Rule 6 by Justice G.P. Singh
(as His Lordship then was). Mulla in his commentary on
Shraddha Talekar, PS 18/26
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the Code has also relied on ratio in Shikharchand (supra)
for eiplaining these provisions.
47 ........
48 However, the provision under Order 12 Rule 6 of
the Code is enabling, discretionary and permissive and is
neither mandatory nor it is peremptory since the word
"may" has been used. But in the given situation, as in the
instant case, the said provision can be applied in
rendering the judgment."
(emphasis supplied)
25. In the case of Himani Alloys Limited (Supra), on which
reliance was placed by the learned counsel for the plaintiffs, the
Supreme Court emphasized the discretionary nature of the
jurisdiction under Order XII, Rule 6. The observations of the
Supreme Court in paragraph 11 are material and, thus, eitracted
below :
"11 It is true that a judgment can be given on an
"admission" contained in the minutes of a meeting. But
the admission should be categorical. It should be a
conscious and deliberate act of the party making it,
showing an intention to be bound by it. Order 12 Rule 6
being an enabling provision, it is neither mandatory nor
peremptory but discretionary. The court, on eiamination
of the facts and circumstances, has to eiercise its judicial
discretion, keeping in mind that a judgment on admission
is a judgment without trial which permanently denies any
remedy to the defendant, by way of an appeal on merits.
Therefore unless the admission is clear, unambiguous and
unconditional, the discretion of the Court should not be
eiercised to deny the valuable right of a defendant to
contest the claim. In short the discretion should be used
only when there is a clear "admission" which can be acted
upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United
Bank of India [2000 (7) SCC 120], Karam Kapahi vs. Lal
Chand Public Charitable Trust [2010 (4) SCC 753] and
Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh
Chadha [2010 (6) SCC 601]. There is no such admission in
this case.
Shraddha Talekar, PS 19/26
.. 20 .. NMS-2006-2018-S-119-2017.doc
26. On the aforesaid touchstone, reverting to the facts of the
case, frst and foremost, it may be apposite to eitract the
averments in paragraph Nos.19 and 20 of the Plaint, which
constitute the substratum of the defendant Nos.1 to 4's claim and
to which the defendants profess to accede to. They read as under :
"19 In or around 1979, the Pransukhlal branch of the
family purchased Flat No. 502 in Queens Diamond Building
from the said income of the said joint family business
forming part of Pransukhlal branch of family, which was
adjoining to Flat No.501. The said Flat No.502 was acquired
on the personal recommendation of one Mr.Hosie Hoosein
who was at that time part of the Managing Committee of
Defendant No.58 and a close school friend Plaintiff No.1. The
Plaintiffs crave leave to refer to Affdavit of Plaintiff No.1. The
Plaintiffs crave leave to refer to Affdavit dated 04.04.2016
made by the said Mr.Hosi Hussain which is already part of
the papers and proceedings of the said City Civil Suit.
20. The said Flat No.502 in Queens Diamonds Building
was purchased in the joint names of all the sons of the said
Late Pransukhlal, i.e., Plaintiff No.1, Late Harshad Sagar
and Defendant Nos.1, 7 and 13 hereto. At the time when
Flat No.502 was purchased, the Plaintiff No.1 was married
and had three children. Late Harshad Sagar was married
and had two children and Defendant Nos. 1, 7 and 13 were
unmarried. Their mother, i.e., the wife of Late Pransukhlal
(Defendant No.29 herein) continued to live in Flat No.501,
along with Late Harshad Sagar and his family and along
with Late Minal Sagar. The Plaintiff No.1 and his family, i.e.,
the remaining Plaintiffs along with Defendant Nos.1, 7 and
13 shifted to Flat No.502."
27. Mr. Kamat, the learned counsel for the applicants-defendant
Nos.1 to 4, banking upon the aforesaid averments, strenuously
submitted that these averments make it beyond the pale of
controversy that the Subject Flat was jointly acquired by the
Shraddha Talekar, PS 20/26
.. 21 .. NMS-2006-2018-S-119-2017.doc
plaintiff No.1 and defendant No.1, defendant No.7, defendant No.13
and Harshad Sagar, the predecessor-in-title of defendant Nos.19
and 20. As the acquisition is evidenced by the Indenture, dated
29th September 1981, a document of unimpeachable evidentiary
value, there is no impediment in allowing the co-owners to have
partition of the Subject Flat, keeping open the rest of the
contentious issues.
28. Mr.Bharucha, the learned counsel for the plaintiffs joined
the issue by canvassing a submission that the premise of the
defendants that the Subject Flat is the only property over which
the claims of the parties are undisputed, is factually incorrect.
Once this position is appreciated, the ulterior motive to evict the
plaintiff Nos.1 and 2 from the Subject Flat becomes abundantly
clear, urged Mr.Bharucha.
29. Two circumstances were pressed into service to bolster up
the submission that there are other properties, which are
undisputedly impressed with the character of joint family
properties. First, a communication dated 26 th December 2014,
addressed in the wake of the proceedings in Suit No.5638 of 2008
before the City Civil Court, by the defendant Nos.1 to 4, wherein,
it was conveyed to the counsel for the plaintiffs that the
Shraddha Talekar, PS 21/26
.. 22 .. NMS-2006-2018-S-119-2017.doc
defendants were willing to have the share of the plaintiffs in Flat
Nos.502, 501 and 201 valued and purchase out the plaintiffs.
Paragraph No.3 of the said communication, dated 26 th December
2014 reads as under:-
"3. With reference to unnumbered para 3 of your
letter under reply, my clients have instructed me to
request your clients to have Flat No. 502 and Flat No. 501
as well as Flat No. 201 valued and my clients would be
willing to pay your clients 1/5th share of Flat No. 502,
1/8th share of Flat No. 501 and 1/5th share of Flat
No.201. I hope your clients get all the three properties
valued at the earliest and you are requested to forward
the Valuation Reports to me as soon as possible so that
my clients can arrange to pay for your clients' share as
per the prevailing market value. Needless to mention, your
clients will have to relinquish their right, title and interest
from Flat Nos.501, 502 and 201 upon receiving their share
in each of the aforesaid properties. Kindly treat this as
urgent as the Hon'ble Court has given us a last chance for
settlement."
(emphasis supplied)
30. Second, reliance was placed on the affdavit-in-reply to
Notice of Motion No.496 of 2017 in the instant Suit fled on behalf
of defendant Nos.35 to 42, wherein, the fact that the Bhavnagar
Property, described in Eihibit 'B' to the Plaint, was a joint family
property was admitted and the claim of the plaintiffs for partition
of the said property was supported.
31. In the backdrop of the aforesaid stand of the defendants, it
is pertinent to note that the plaintiffs have instituted a Suit for
partition in respect of as many as 14 immovable properties
Shraddha Talekar, PS 22/26
.. 23 .. NMS-2006-2018-S-119-2017.doc
enumerated in Eih.H, apart from the Schedule of businesses at
Eih.F. In a comprehensive Suit for partition, the averment that a
particular property was acquired out of the joint family funds
constitutes a foundational fact to sustain the action. The fact that
the defendants admit the claim of the plaintiffs in a particular
property, thus, by itself may not ipso facto furnish a sustainable
ground for passing a decree for partition in respect of that
property only, without delving into the attendant and peculiar
facts of the case.
32. In such a situation, the element of discretion comes to the
fore. In the case at hand, where the defendants have admitted
that the plaintiffs have 1/8th share in Flat No.501 and 1/5th
share in Flat No.201, apart from 1/5th share in the Subject Flat,
the prayer to pass a preliminary decree for partition in respect of
Subject Flat alone, is required to be appreciated in the conteit of
the attendant circumstances. Indisputably, the plaintiffs are in
possession of a portion of the Subject Flat. Without delving into
the allegations and counter-allegations as regards the use and
occupation of the portions of the Subject Flat to the eiclusion and
consternation of other co-owners, it would be suffce to note that
the plaintiffs have made consistent effort to protect their alleged
Shraddha Talekar, PS 23/26
.. 24 .. NMS-2006-2018-S-119-2017.doc
eiclusive possession over the portion of the Subject Flat.
Eventually, in Appeal from Order (L.) No. 26972 of 2016, with the
consent of the parties and without going into merits, by an order
dated 2nd July 2020, a workable arrangement as regards the use
and occupation of Flat Nos.501 and 502, by the contesting
parties, is made. By the said order, the hearing of the instant Suit
as well as Suit No.3856 of 2016 before the City Civil Court has
also been directed to be eipedited.
33. Viewed through the aforesaid prism, the endeavour of the
defendants to pray for a preliminary decree for partition qua the
Subject Flat, particularly value and buy out the share of the
plaintiffs, cannot be countenanced de-hors the consequences it
would entail on the plaintiffs. The submission that let the
plaintiffs buy out rest of the co-owners, if the plaintiffs do not
intend to sell their share, at the frst blush, appears attractive.
However, the submission, if acceded to, subjugates the rights in
the joint family properties (unity of possession and community of
interest) to the vicissitudes of the fnancial fortunes of the parties.
The plaintiffs assert that they have neither any other premises to
reside in, nor the wherewithal to buy out the shares of the
defendants. The Court cannot loose sight of these factors which
Shraddha Talekar, PS 24/26
.. 25 .. NMS-2006-2018-S-119-2017.doc
bear upon the eiercise of discretion. From this stand-point, in the
peculiar facts of the case, the submission of Mr.Bharucha that the
defendants cannot selectively seek a preliminary decree for
partition, which would have the consequence of dis-housing the
plaintiffs, during the pendency of Suit for partition appears
justifable.
34. The matter can be looked at from another angle. In a case of
general partition, where there are multiple joint family properties
amenable to partition, it is not necessary that each and every
partible item be partitioned by metes and bounds. The process of
partition is dynamic. Myraid situations may emerge. One sharer
may be allotted a specifc property with no part in one or more
other properties being allotted to him.
35. For the foregoing reasons, in the peculiar facts of the case, it
may not be eipedient to pass a preliminary decree as regards the
Subject Flat which ostensibly operates to the prejudice of the
plaintiffs as it entails the consequence of eviction of the plaintiffs
from the portion of the Subject Flat, whilst a suit for general
partition of multiple joint family properties, in few of which their
right to seek partition is not disputed, awaits adjudication.
36. Resultantly, the Notice of Motion deserves to be dismissed.
Shraddha Talekar, PS 25/26
.. 26 .. NMS-2006-2018-S-119-2017.doc
37. Hence, the following order :
ORDER
The Notice of Motion stands dismissed.
No costs.
(N. J. JAMADAR, J.)
Shraddha Talekar, PS 26/26
