Daljeet Singh Anand vs Harjinder Singh Anand
2008 Latest Caselaw 1518 Del

                            Unreportable
*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             FAO (OS) No. 228 of 2008

%                                                 Reserved on : July 16, 2008
                                          Pronounced on : September 02, 2008

Daljeet Singh Anand                                      . . . Appellant

                  through :                  Mr. Ramesh Chandra, Sr.Adv.
                                             with Ms. Geeta Mehrotra, Adv.

             VERSUS

Harjinder Singh Anand                                    . . . Respondent

                  through :                  Mr. Peeyoosh Kalra, Advocate


CORAM :-
    THE HON‟BLE MR. JUSTICE A.K. SIKRI
    THE HON‟BLE MR. JUSTICE MANMOHAN SINGH

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. The appellant/plaintiff, in his suit for partition filed in this Court,

prayed for passing of preliminary decree for partition on the basis of

purported admissions made by the defendant. For this purpose, he

moved application under Order XII Rule 6 of the Code of Civil

Procedure, 1908. However, this prayer of the appellant has been

rejected by the learned Single Judge vide order dated 3.3.2008

dismissing the said application of the appellant/plaintiff. Feeling

aggrieved by this order of the learned Single Judge, the present

appeal is preferred.

2. In the suit filed by the appellant, prayer is for decree of partition and

other incidental reliefs in respect of property bearing No. B-1/37,

Ashok Vihar Phase-II, Delhi - 110 052 (hereinafter referred to as the

„suit property‟) in equal shares between the parties. The defendant in

the said suit (respondent herein) is the brother of the appellant. It is

stated in the plaint that the appellant and the respondent are the

joint owners of the suit property which was transferred in their joint

names vide sale deed dated 15.5.1996 executed in their favour and

registered with the Sub-Registrar, Delhi. The property is a two-

storied residential building constructed on a plot measuring 400

sq.yds. The appellant wanted division of this property and as the

respondent did not agree, he was constrained to file the suit in

question.

3. This property was initially in the name of father of the parties. Their

father executed purported conveyance deed dated 15.5.1996 in

favour of his two sons, namely, the appellant and the respondent.

The appellant claims himself to the owner to the extent of half

undivided share on the basis of the said conveyance deed. Execution

of this document has been admitted by the respondent and,

therefore, this document is exhibited as Ex.P-1. In addition, certain

other documents, execution whereof is also admitted, were relied

upon by the appellant on the basis of which he sought passing of the

decree imputing admissions on the part of the respondent. These

documents are all dated 17.6.1996, particulars whereof are as under:-

"(a) A joint application for mutation submitted to DDA for mutating the property in the name of the two brothers on the basis of the conveyance deed dated 15.5.1996. This application is marked as Ex.P-9.

(b) Indemnity bond given by the parties to the DDA (Ex.P-

10).

(c) Affidavit executed by the respondent and given to DDA (Ex.P-11)."

4. The appellant also relied upon property tax return filed in relation to

a portion of the property on 17.3.2006 by the respondent himself

(Ex.P-13). On the basis of these documents, it was contended that

there was sufficient material on record to justify the issuance of

preliminary decree as these documents contained the admissions of

the respondent to the effect that both the parties were joint owners

in respect of half share each in the suit property. During arguments,

reference was also made to a Division Bench judgment of the

Madhya Pradesh High Court in Shikharchand & Ors. v. Mst. Bari Bai

& Ors., AIR 1974 MP 75 emphasizing that the admissions could be

culled out not only from the pleadings between the parties, but other

material available on record as well.

5. The learned Single Judge, however, dismissed the application in view

of the averments made in the written statement as per which the

respondent had taken the plea that the appellant got the suit

property fraudulently transferred in his name and in the name of the

respondent. Plea taken in the written statement is that the appellant

had got these documents signed from his father as well as the

respondent projecting that the same were required for the purpose

of converting the suit property from leasehold to freehold and

trusting the appellant, he and his father signed those documents

without suspecting any kind of fraud. It was only from the plaint

that the respondent came to know that those documents were in fact

conveyance deed, etc. It is also alleged in the written statement that

the appellant got the said property fraudulently transferred in joint

name from their father. Otherwise, no consideration was ever paid

by the parties to their father and the whole transaction is void, if

without consideration. In view of this plea taken in the written

statement, the learned Single Judge was of the view that there was

no unequivocal and unambiguous admissions which could entitle the

appellant to seek the decree of partition.

6. Mr. Ramesh Chandra, learned senior counsel appearing for the

appellant, submitted that there were plethora of documents, which

were duly admitted by the respondent at the time of admission/

denial, wherein not only half share of the appellant in the suit

property was admitted, these documents would also show that the

plea of fraud taken was clearly an afterthought and inadmissible and,

therefore, should not have been looked into. Following documents

were referred to, which were admitted :-

S.No. Particulars Exhibit No.

1. Registered Conveyance Deed dated 15.5.1996 in favour of plaintiff and defendant of the suit P-1 property

2. Registered Lease Deed in favour of Shri Harcharan Singh (Original Allottee) from whom P-2 the plaintiff and defendant acquired land under the suit property

3. Registered agreement for construction dated P-3 4.9.79 executed by Shri Harcharan Singh in

favour of the plaintiff and defendant of the suit property

4. Registered receipt for consideration dated 4.9.1979 favouring plaintiff and defendant of the suit property executed by Shri Harcharan P-4 Singh for the purchase of plot of land under the suit property

5. Registered Will dated 4.9.1978 executed by Shri Harcharan Singh in favour of plaintiff and P-5 defendant of the suit property

6. Registered General Power of Attorney dated 4.9.1978 executed by Shri Harcharan Singh P-6 favouring Shri Kulwant Singh Anand regarding suit property

7. Water Bill in favour of defendant of the suit P-7 property of Delhi Jal Board dated 28.7.2006

8. Sanctioned MCD plan for construction of Suit property in favour of plaintiff and defendant P-8 dated 21.10.1997

9. Application dated 17.6.96 for mutation of suit property in the joint names under joint P-9 signatures of plaintiff and defendant addressed to House Tax Department of MCD

10. Indemnity Bond dated 17.6.1996 duly signed by plaintiff and defendant attested by Notary P-10 Public for mutation of suit property to MCD

11. Affidavit dated 17.6.1996 of defendant duly attested by Notary Public for mutation of suit P-11 property

12. Letter dated 21.10.97 of MCD addressed to plaintiff and defendant for sanction to construct P-12 the suit property

13. Property tax return of the suit property filed by defendant to House Tax Department of MCD P-13 for the year 2004-05 and 2005-06 dated 17.3.2006

14. Property tax payment receipt favouring the defendant of the suit property of House Tax P-14 Department of MCD for the year 2004-05 and 2005-06 dated 17.3.2006

In respect of Ex.P-8 to P-12, though the contents are denied,

the signatures are admitted by the respondent. It was, thus, argued

by learned counsel for the appellant that judgment on admission

could be passed as provisions of Order XII Rule 6 of the CPC are

wide enough to afford relief not only in cases of admissions made in

pleading but also in the case of admission „otherwise‟ the pleading. It

is settled principle that "otherwise‟ means documents also, i.e. de

hors pleading, either in any document or statement made in the

Court. This principle has also been accepted by Division Bench of

this Court in various judgments. Such admissions might be made

either expressly or constructively, whether orally or in writing. It is

stated that in the suit, the respondent admitted the contents of

various documents at the time of admission/denial, but made the

plea of fraud at the time of execution of conveyance deed upon him

by the appellant. No details or particulars of any fraud, as required

by Order VI Rule 4 CPC have been given. This objection is against

the respondent‟s own clear admission of other documents pertaining

to subsequent year and it has been taken only to delay the suit.

According to the appellant, the test laid down by the Supreme Court

and a Division Bench of this Court be seen that whether objections

raised by the respondent against rendering judgment on his

admission are such which go to the root of the matter or whether

these are inconsequential thereby making it impossible for the party

to succeed even if entertained. The only objection of the respondent

is regarding fraud played at the time of execution of Ex.P-1, viz. the

conveyance deed. However, he has no explanation regarding

documents pertaining to mutation of property, water bill in his name

and also property-tax receipt filed by him before filing the suit. All

admitted documents thrash the respondent‟s allegation of fraud,

which are made only for delaying the trial.

7. Learned senior counsel appearing for the appellant submitted that the

appellant had filed a registered document regarding consideration

and registered Conveyance Deed about title of ½ share of suit

property, therefore, the appellant had proved his case by

documentary evidence and no oral evidence is required for proving

his claim in the suit. It is stated that after admitting the contents of

various documents, including registered Conveyance Deed, the

respondent/defendant is making frivolous allegation about the

execution of these documents by fraud. The Conveyance Deed is

dated 15.5.1996. In spite of more than 12 years having elapsed, no

action for getting the same cancelled has so far been taken by the

respondent till date. It is submitted that the explanation furnished by

the respondent regarding allegation of fraud at the time of execution

of these documents is contrary to admitted documents and other

registered documents which only show that the respondent is making

this vexatious claim in order to delay the trial proceeding further.

8. Learned counsel for the appellant further submits that the allegation

of fraud is also seen to be scandalous because the photographs of the

appellant and the respondent had been pasted on the Conveyance

Deed and the respondent has filled up his name and address on the

deed in his handwriting. Therefore, consistency of this document

since 1978 in favour of the appellant and respondent should be seen

by the Court for deciding the objection raised by the respondent. It

is submitted that this Court, for providing speedy justice, ought to

allow the application filed under Order XII Rule 6 of the CPC and

pass the preliminary decree in favour of the appellant. The appellant

further states that the father of the parties, on whom fraud is alleged

to have been played, also filed an application under Order I Rule 10

of the CPC for being impleaded as a party to the suit on identical

allegations as made by the respondent. The said application was also

dismissed and no action has been taken thereafter by the applicant

therein. The respondent, according to the appellant, is making false

statements knowingly and intentionally just to delay the disposal of

the suit for partition and the unequivocal admission made by the

respondent is binding upon him since the objection is not explained

by the facts and circumstances of the case itself.

9. Learned counsel for the respondent refuted the aforesaid submissions.

He referred to the order passed by the learned Single Judge in which

averment made in the written statements were extracted to show

that the respondent had not made unqualified admissions and,

therefore, there was no necessity to pass decree on the basis of these

purported admissions. He reiterated that the appellant had filed the

suit for partition of the suit property claiming that he along with the

respondent is the joint owner of the said property by virtue of

Conveyance Deed dated 15.5.1996. In the written statement, the

specific stand of the respondent has been that the said Conveyance

Deed is a fraud played by the appellant upon his old father and

details with regard to the circumstances in which the same was got

executed have been narrated therein. It was stated that the appellant

got certain documents signed from the respondent and his father on

the pretext that the same were needed for conversion of the

property from leasehold to freehold. It was stated that the parties

were occupying the said property with the permission of the father

and that the money was paid by the father out of the partnership

funds and in essence their father was the actual owner. His

submission was that the admission of the documents had to be read

in conjunction with the submissions made in the written statement

and thus read, there was no clear unequivocal or unambiguous

admission. In this regard, reliance is placed upon two decisions of

this Court, namely, Baljit Kaur v. United Insurance Co. Ltd., 1997 VI

AD (Del) 937 and Jagannath Chauhan v. S.C. Nanda, 2000 VII AD

(Del) 961. It is submitted, on the basis of the above judgments, that

a judgment on admissions is a matter of discretion and not a matter

of right (Baljit Kaur supra) and the admissions should be taken as a

whole and not in part (as held in Jagannath Chauhan supra).

10. He also submitted that since a judgment on admissions is a matter of

discretion and not a matter of right, the first issue that would arise

for consideration of this Court is "whether the Appellate Court

would interfere in the exercise of discretion on the ground that there

was a possibility of another view being taken?" It is submitted that it

has nowhere been alleged in the appeal that the learned Single Judge

did not exercise the discretion vested in him reasonably or judicially

and just because another view may be possible, the order of the

learned Single Judge cannot be interfered with. In this regard,

reliance is placed upon Wander Ltd. & Anr. v. Antox India (P) Ltd.,

1990 (Supp.1) SCC 727. The relevant portion is extracted below :-

"An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court would have taken a different view may not justify interference with the trial court‟s exercise of discretion."

11. Learned counsel for the respondent also sought to explain away the

admission in each documents. As per him Ex.P-1, Conveyance Deed

dated 15.5.1996, which has been admitted by the respondent for his

signatures, cannot be considered in isolation when it has been

specifically pleaded in the written statement that the same was got

executed by playing fraud upon the old aged and uneducated father

of the parties. It is submitted that documents Ex.P-2 to P-6 are those

prior to execution of the Conveyance Deed and, therefore, the same

have not been disputed. Ex.P-7 is the water bill dated 28.7.2006. It

is a matter of record that the appellant had filed the suit on

8.3.2006. The said document is subsequent to the filing of the suit.

The respondent in order to show and prove as to in what

circumstances the said document came into existence would be

required to lead evidence. The strained relations between the parties

resulting into many things being segregated and the document relied

upon not being a document of title, evidence is required to be lead

by the respondent showing and explaining his stand. As far as Ex.P-8

to P-12 are concerned, it is submitted that these documents are all

dated around the date of execution of the Conveyance Deed and it is

the specific stand of the respondent in the written statement that the

plaintiff/appellant got signed certain documents from him and his

father on the pretext of conversion from leasehold to freehold.

Therefore, the admission of signatures on the said documents has to

be seen in the light of the submissions made in the written statement

and the parties would be required to lead evidence on the said

documents. Ex.P-13 and P-14 are the property tax return and receipt

thereof. The same show that it is for two periods, i.e. 2004-05 and

2005-06. For the period 2004-05, the tax was in arrears. The

reason for which it was not being paid and why ultimately the

respondent was constrained to file it and whether it was in terms of

the Conveyance Deed or otherwise by way of a different

arrangement at the instructions of his father is an issue that would

clear up in evidence. It may further be submitted that in any event,

as per the settled law, mutation or payment of property tax does not

confer any title in the property. Reliance is placed upon Kamlesh

Arora v. MCD, 2001 (92) DLT 246, wherein it was observed as

under :-

"It goes without saying that change in mutation in the corporation records for the purposes of property tax does not confer any title in the property."

12. We have considered the respective submissions. Law relating to

passing of decrees on the basis of admissions is well-settled and

hardly needs elaborate discussion. It is trite that the admission has to

be unequivocal, clear and unambiguous. It is also well-settled that

use of expression „otherwise‟ in Order XII Rule 6 CPC permits the

court to pass the judgment on the basis of statement made by the

parties not only on pleadings but also de hors pleadings, i.e. either in

any document or even in the statement recorded in the Court under

Order X Rule 1 & 2 of the CPC. The legal position in this behalf is

contained in the following paragraphs of a Division Bench judgment

of this Court in the case of Rajiv Srivastava v. Sanjiv Tuli & Anr., 119

(2005) DLT 202 :-

"8. When, however, reference is made to the provisions of Order 12 Rule 6 of the Code of Civil Procedure, it is clear and apparent that such admission could be either from the pleadings of the parties or even otherwise. We may appropriately refer to the decision of the Supreme Court in Uttam Singh Duggal & Co. Ltd. v. Union Bank of India reported in VI (2000) SLT 87 = III (2000) CLT 299 (SC) = AIR 2000 SC 2740. The scope and ambit of Order 12 CPC is stated thus in paragraph 12, which is as under :

"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 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 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."

9. A Division Bench decision of this Court has laid down the following interpretation of the provision of Order 12 Rule 6, CPC, in the decision of ITDC Ltd. v. M/s. Chander Pal Sood & Son reported in 84 (2000) DLT 337 (DB):

"Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application of any party or of its own motion and without determination of any other

question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing."

13. We may also reproduce hereinbelow the discussion about the legal

principles, as contained in another Division Bench judgment of this

Court in Col. (Retd.) Dalip Singh Sachar v. Major General (Retd.)

Prabodh Chander Puri, 141 (2007) DLT 209 :-

"The object of Order XII Rule 6 CPC is to enable the parties to obtain speedy judgments and, therefore, Courts are not to unduly narrow down the scope and meaning of this Rule. In Shikharchand & Ors. Vs. Mst. Bari Bai & Ors., AIR 1974 MP 75, the Court held that a judgment under Order XII Rule 6 of the CPC can be based on a statement made by the parties de hors the pleadings and such admissions could be either expressed or constructive. This Court in K.N. Construction Vs. JVG Finance Ltd., (2004) 111 DLT 437, concurred with the aforesaid view. We may also, quote for our benefit, the following observations of a Division Bench of this Court in Delhi Jal Board Vs. Surendra P. Malik, 2003 III AD (Delhi) 419:-

"9. The test, therefore, is (i) whether admission 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."

The present case fulfills the aforesaid test.

xx xx xx

14. In Uttam Singh Duggal and Co. Vs. Union Bank of India and Ors., (2000) 7 SCC 120, the Supreme Court held that evasive and unspecific denials would amount to an unequivocal admission of the contents of documents relied upon by the plaintiff. This principle shall apply to pleadings as well. This Court in Rajiv Saluja Vs. M/s. Bhartia Industries Ltd. & Anr., AIR 2003 Delhi 142, has taken the view that the Court is required to ignore vague, evasive and unspecific denials as

well as inconsistent pleas in the written statement and replies (also see Rajiv Sharma and Anr. Vs. Rajiv Gupta, AIR 2004 Delhi 248). No doubt, the learned ADJ has passed the decree only on the basis of Ex. P1. However, when we are sitting in appeal and hearing the matter, we can look into these aspects as well having regard to the powers of the Appellate Court under Section 107 of the CPC, more so when the learned counsel for the appellant himself wanted us to do so. In any case, these are further reasons in addition to the reasons given by the learned ADJ as the decree could be passed on the basis of Ex.P1 alone as well."

14. We may note from the perusal of the impugned order that the

learned Single Judge was conscious of the aforesaid legal position.

However, plea in the written statement made by the respondent

herein weighed with the learned Single Judge, on the basis of which

he concluded that there was no unambiguous admission which is a

necessary pre-requisite for an order or decree of admission under

Order XII Rule 6 CPC, as is clear from his following observations :-

"9. Now, while considering an application for decree on admission, the Court has to determine whether the admission is unambiguous and is clear and unequivocal. In this case, the defendant has in no uncertain terms disclaimed the genuineness and veracity of the transaction regarding the allegations concerning properties being jointly owned by the plaintiff and himself. The averments indicate fraud was allegedly played upon by him and his father; the averments also are to the effect that the defendant executed certain documents under a mistaken belief. The Court has to keep these in mind and cannot ignore the effect of such pleadings, merely with a view to give effect to provisions of Order 12 Rule 6. Such a "split vision" is impermissible. The written statement and the other averments have to be taken in totality; and the pleadings have to be considered as a whole."

15. The trial court has, thus, exercised its discretion in a particular

manner. It is possible to argue that the defence of the respondent in

the written statement is weak in view of plethora of documents,

execution whereof is admitted. At the same time, two aspects which

come in our mind and persuade us to approve the approach adopted

by the learned Single Judge are the following :-

(a) The father of the parties, who is the original owner, filed an

application under Order I Rule 10 of the CPC supporting the

plea of the respondent that the documents were fraudulently

executed. Though father of the parties has his independent

right to take whatever proceedings he wants to institute on the

basis of his averments, fact remains that even the father is

dubbing the transaction as fraudulent.

The plea of the respondent or his father based on fraud

by itself might not have been sufficient, which is raised many

years after the execution of the document. But it assumes some

relevance in the context of application under Order XII Rule 6

CPC when it is coupled with another circumstance listed below,

namely:

(b) Allegation of the respondent is that the Conveyance Deed is

without consideration and is, therefore, void. Indubitably,

what Is executed by the father is not a Gift Deed but a Sale

Deed. Such a transaction has to be for valid consideration.

Therefore, it is the right of the respondent to seek the

transaction as void on the basis of his plea that there is no

consideration passed while executing the sale deed. This aspect

needs consideration.

16. The aforesaid two facts, taken cumulatively, would be sufficient to

deny the relief claimed by the appellant on the basis of purported

admissions. Learned counsel for the appellant is wrong in his

submission that no particulars of fraud are given. As per the

respondent, he and his father were made to sign the documents on

the representation of the plaintiff/appellant that these were required

for conversion of the property from leasehold to freehold.

17. If the respondent is able to prove this fact, it can non-suit the

plaintiff. Whether this defence of the respondent/defendant is weak

or has adequate strength is not for the Court to examine at this stage.

What is pointed out is that in view thereof, decree on the basis of

admission under Order XII Rule 6 of the CPC could not have been

passed. The submission of the appellant qua speedy disposal of the

suit can be taken care of. Having regard to the admission of these

documents, obviously the onus would be upon the

respondent/defendant to prove the alleged fraud etc. Therefore, the

controversy which remains is in a narrow campus which will require

framing of limited issues and the suit can be put to trial and disposed

of expeditiously.

18. In view of the above, we do not find any fault with the order passed

by the learned Single Judge and dismiss this appeal.

No costs.

(A.K. SIKRI) JUDGE

(MANMOHAN SINGH) JUDGE

September 02, 2008 nsk