R.K. Markan vs Rajiv Kumar Markan And Anr.
2002 Latest Caselaw 193 Del

JUDGMENT

Sharda Aggarwal, J.

1. The plaintiff has moved the present application under Order 12 Rule 6 CPC for passing a decree on the basis of the admissions made in the written statement/counter claim of the defendants.

2. Plaintiff has filed this suit for partition in respect of property No. B-99, Ashok Vihar, Phase-I, Delhi which undisputably belonged to late Pushpa Markan, wife of the plaintiff and mother of defendants 1 and 2. Smt. Pushpa Markan died on 7th June, 1975. She had left a 'Will' bequeathing the property to the plaintiff and defendants, her two minor sons. The plaintiff had filed a probate case on which Letters of Administration were granted on 24th March, 1977. The name of the plaintiff and the defendants was also mutated in the records of Delhi Development Authority. The plaintiff being one of the legal heirs of deceased Pushpa Markan, claims 1/3rd share in the suit property. The house in question at present is in possession of the defendants. Defendants have filed their written statement Along with the counter claim.

3. The plaintiff prays that the suit be decreed in view of the admissions made by defendants in para No. 5 of the written statement. The contention is that defendants in the written statement have admitted that the plaintiff and the defendants succeeded to the suit property left by Smt. Pushpa Markan and each of the plaintiff and defendants are entitled to 1/3rd share in the property.

4. Learned counsel for the defendants contends that there is no express or unequivocal admission in the written statement. The contention is that defendants have filed a counter claim and have raised a number of triable issues. The defense is that the parties have entered into an oral family arrangement/settlement to the effect that the defendants would be the absolute owners of the suit property and in lieu of the plaintiff's share, plaintiff would retain property No. 100, Manak Vihar, Opposite Yozna Vihar, Delhi and one shop being Shop No. G-3, Neel Kanth Chamber, Savita Vihar Shopping Centre, Delhi-110092.

5. For passing a decree on the basis of admission of the defendants in the pleadings, law is well settled that the admission has to be unequivocal and unqualified and the admission in the written statement should also be taken as a whole and not in part. In this case, plaintiff based his claim for a decree on para No. 5 of the written statement, which is reproduced as under :

"5. In reply to paragraph 5, it is submitted that in sofar as the right to succeed to the property of late Smt. Pushpa Markan is concerned, the plaintiff and the defendants succeeded and each of the plaintiff and the defendants is entitled to one-third share in the property. However, attention of the Hon'ble Court is invited to the detailed submissions made in the counter claim as also submissions made to the various paragraphs of the plaint hereunder."

6. The plaintiff picked up only half of this para and ignored the later part which qualifies the averments made in the earlier part. The plaintiff also ignores the qualifying averments made in the written statement. Defendants have alleged that 1/3rd share in another property No. 5727, Gali No. 81, Regar Pura, Karol Bagh, New Delhi was bequeathed to them by their grand mother. The plaintiff, who had re-married after the death of Smt. Pushpa Markan, their mother, had manipulated the sale of Regar Pura property. He also usurped the other moveables left by the deceased Pushpa Markan and with the proceeds thereof purchased the house at Manak Vihar and a shop in Neel Kanth Chamber. The plaintiff left Ashok Vihar residential house i.e. suit property some time in June, 1997 and at that time had entered into an oral family settlement giving up his right in Ashok Vihar property and retaining the property at Manak Vihar and the shop in Neel Kanth Chamber, Savita Vihar. The defendants in their counter claim have alleged that either the family settlement be adhered to which makes the defendants absolute owner of the suit property and if that is not done, they are entitled to 2/3rd share in Manak Vihar property and in the shop in Neel Kanth Chamber, Savita Vihar. They have also claimed to recover a sum of Rs. 11 lakhs which allegedly belonged to them being the consideration received by the plaintiff on account of sale of Regar Pura property. In view of the averments in the written statement taken as a whole, it cannot be said that the admission of defendants is unambiguous and unequivocal. The averments made in the written statement in fact give rise to a friable issue. The application of the plaintiff accordingly deserves to be dismissed. Order accordingly.