Delhi High Court

Anil Kumar Bansal vs Shanti Devi Bansal & Ors. on 14 July, 2010

Author: S.Ravindra Bhat

$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI

DECIDED ON: 14th July, 2010

+ CS (OS) 2376/2006 & I.A. No.11807/2008

ANIL KUMAR BANSAL ..... Plaintiff
Through: Mr. B.S. Tiwari, Advocate.

versus

SHANTI DEVI BANSAL & ORS. ..... Defendants
Through: Mr. Dalip Rastogi, Advocate for D-1, 2 & 8.

CORAM:
MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers YES
may be allowed to see the judgment?

2. To be referred to Reporter or not? YES

3. Whether the judgment should be YES
reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

% I.A. No.11807/2008

Heard counsel for the parties. This order will dispose of I.A. No.11807/2008

preferred by the defendant Nos.1, 2 & 8, seeking rejection of the claim in the suit so far

as it pertains to two items of properties i.e., 29, Rama Park, Kishan Ganj, Delhi - 110 007

(hearafter referred to as Rama Park property) and 9361, Gaushala Road, Kishan Ganj,

Delhi - 110 006 (hereafter referred to as Gaushala Road property). The plaintiff alleges,

I.A.11807/08 in CS-2376/06 Page 1
in the suit, that these are HUF properties and seeks partition.

2. The averments contained, inter alia, in the written statement are that there is no

HUF and that in any case there are no properties belonging to any HUF. It is further

alleged that there is no documentary evidence to support the argument that the properties

in question ever belonged to any HUF. By the present application, the

defendants/applicants submit that there are sufficient materials which constitute

admission as to entitle the Court to pass appropriate orders excluding the said two

properties from adjudication in the present proceedings.

3. As far as the first property, i.e., Rama Park property is concerned, it is stated that

the same was purchased by Shri Kanwar Lal Bansal by a registered sale deed dated

7.12.1983 with his funds; emphasis is placed here on paragraph-10 of the suit. It is

submitted that the property was bequeathed to different persons including the plaintiff, by

the three Wills dated 17.1.1994. The Applicants submit that the plaintiff does not dispute

the existence of the Wills or the bequests. This, says the applicants, amount to an

admission, which the plaintiff is barely able to get over with the explanation that a

Relinquishment deed (executed by him in 2000) was "managed" or procured from him

and that the amount of Rs.1,32,300/- received in this regard was returned in cash. In

addition, it is further submitted that the plaintiff was arrayed as defendant in another

proceeding - Suit No.176/2005. In that case, the execution of the Wills was not disputed.

These, say the defendants/applicants, amounts to admission disentitling the plaintiff to

contend that they were ever part of the HUF as they amount to concessions that the late

father Shri Kanwar Lal Bansal had purchased the property and thereafter bequeathed,

inter alia, to the plaintiff.

I.A.11807/08 in CS-2376/06 Page 2
4. As far as the second property i.e. Gaushala road property is concerned, the

defendants/applicants submit that it was purchased with their funds through a registered

deed dated 24.4.1981. The defendants contend that the plaintiff fraudulently obtained the

signatures and thumb impression of the first defendant, his mother, which led to filing of

Suit No.279 of 2005, by the 8th defendant, seeking cancellation of the documents. It is

submitted that the present plaintiff was arrayed as the first defendant in that Suit and filed

written statement (Ex.D-1/P-7 in the present case) where it was clearly mentioned that the

plaintiff in that case (i.e. the 8th defendant herein) and the third defendant in that case (the

first defendant herein), are the joint owners of the Gaushala road property.

5. It is submitted that these facts and averments are borne out from the documents,

as well as pleadings in the present case as also in Suit No.279/2005 clearly bring forth

admissions disentitling the plaintiff to any decree in respect of such properties.

6. The non-applicant/plaintiff submits that the contentions urged cannot be accepted

and that the parties are facing each other in trial and that oral evidence is being recorded.

It is urged firstly that the provisions of Order-12, Rule-6, did not enable part rejection of

the suit, as is contended in the present case. The plaintiff relies upon a decision of the

Supreme Court reported as Balraj Taneja and Anr. v. Sunil Madan & Anr., (1999) 8 SCC

396, to the following effect: -

"24. In Razia Begum v. Sahebzadi Anwar Begum it was held that Order
12 Rule 6 has to be read along with the proviso to Rule 5 of the Order
8. That is to say, notwithstanding the admission made by the defendant
in his pleading, the court may still require the plaintiff to prove the
facts pleaded by him in the plant.

25. Thus, in spite of admission of a fact having been made by a party
to the suit, the court may still require the plaintiff to prove the fact
which has been admitted by the defendant. This is also in consonance

I.A.11807/08 in CS-2376/06 Page 3
with the provisions of Section 58 of the Evidence Act which provides as
under:
"58. Facts

admitted need not be proved. - No fact need 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 or 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."

26. The proviso to this section specifically gives a discretion to the court to require the facts admitted to be proved otherwise than by such admission. The proviso corresponds to the proviso to Rule 5 (1) Order 8 CPC.

27. In view of the above, it is clear that the court, at no stage, can act blindly or mechanically. While enabling the court to pronounce judgment in a situation where no written statement is filed by the defendant, the court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the court can either pronounce judgment against the defendant or pass such order as it may think fit."

7. It is argued that the plaintiff's submissions in the suit is that all the properties

were purchased out of joint family funds - a contention supported by some of the parties

such as defendant nos.3 & 6. It is argued that having regard to this fact, the Court should

not preclude any chance to the plaintiff in respect of some or all items of the properties,

the partition of which is claimed in the present suit.

8. It is next contended that the averments and materials do not amount to admission

of the kind which would elicit a decree under Order-12, Rule-6 CPC. The plaintiff points

out that the admissions, which are capable of explanation in the course of evidence

cannot be termed as categorical, clear or unambiguous admission of the kind which

I.A.11807/08 in CS-2376/06 Page 4 would entitle the Court to draw a decree and pass order under Order-12, Rule-6 CPC.

9. Lastly, the plaintiff urges that his mother - defendant No.1 had deposed that the

second defendant used to look after the properties and that in these circumstances, the

plaintiff should be allowed to lead evidence to the effect that two items are in fact the part

of the HUF and that the same existed.

The provisions of Order-12, Rule-6 CPC are to the following effect: -

"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."

10. In Uttam Singh Duggal & Co. Ltd. v. United Bank of India 2000 (7) SCC 120, the

Supreme Court after reviewing the law prescribed in parameters for accepting an

application under Order-12 Rule-6 CPC and held that the admission or averment must be

categorical and unambiguous so as to cloth the Court with jurisdiction to draw a decree or

make an appropriate order. In a recent decision in Karam Kapahi & Ors v. Lal Chand

Public Charitable Trust & Anr., III (2010) SLT 199, the law was revisited. The Supreme

Court reiterated and affirmed the previous ruling in Uttam Singh Duggal's case and

further stated that either party may get rid of so much of the rival claim about which there

is no controversy. The Court also noticed the change in law brought about by virtue of

the 2002 amendment of the CPC. The Court further emphasized that having regard to the

width and amplitude of the provisions, admissions can be inferred from the facts and

I.A.11807/08 in CS-2376/06 Page 5 circumstances. Here reliance was placed upon Charanjit Lal Mehra v. Kamal Saroj

Mahajan, 2005 (11) SCC 279.

11. Having regard to the law declared in the above cases, it would now be necessary

to examine whether the applicants are right in contending as they do that appropriate or

suitable order excluding the two properties from the ambit of the suit needs to be made.

The relevant averment in the suit vis-à-vis the plaintiff does not dispute the purchase of

Rama Park property by his father Kanwar Lal Bansal on 7.12.1983. He, however,

qualifies it by saying that it was purchased with HUF funds. The plaintiff interestingly

does not dispute the bequest made through the Will dated 17.1.1994. He also does not

dispute about the Relinquishment Deed in respect of half undivided portion of the second

floor for a consideration of Rs.1,32,300/-. The explanation given, however, - (perhaps in

order to include the item of property in the claim for partition) is that such relinquishment

deed was not binding upon him since he had returned the amount in cash.

12. The plaintiff has not placed on record any documentary evidence to substantiate

the allegation about his having returned the money to any of the defendants, as is

contended in the suit. The plaintiff clearly states about the relinquishment deed - which

has been produced by the defendants Ex.D-1/P-1. The plaintiff also does not explain as

to whether any attempt was ever made by him for seeking cancellation of the document

on the ground that it is not binding on him, within a prescribed period of limitation. In

the circumstances, the Court is of the opinion that the tenuous explanation by him

disclaiming the relinquishment which was made pursuant to the bequest, (a fact not

disputed by him) binds him. In these circumstances, the applicants' contentions vis-à-vis

exclusions of the Rama Park property have to succeed.

I.A.11807/08 in CS-2376/06 Page 6

13. As far as reliance placed on Ex.D-1/P-7 with regard to Gaushala road property is

concerned, the pleadings suggest that the same was acquired by Defendant Nos.1 & 8 on

24.4.1981 by a registered deed. The said defendants had alleged that the plaintiff had

obtained signatures and thumb impression of the first defendant on certain papers

conveying half undivided share to the plaintiff - cancellation of such document was

sought in Suit No.279/2005. The relevant averment in the plaintiff's written statement, in

answer to the description and ownership of the property reads as follows: -

"That the contents of para No.1 of the plaint are correct to the extent that the plaintiff and defendant No.3 were joint owners of immoveable property bearing No.9361, Katra Ganga Bishan, Gaushala Road, Kishan Ganj, Delhi - 110 006 and that the sale deed is dated 24.04.1981 registered with the Sub Registrar, Delhi."

14. The plaintiff contends that the above averment is one capable of explanation

particularly with regard to the status of the property being joint and further that Suit

No.279/2005 is yet pending adjudication on the file of the Court. The question, however,

here is whether the Court can discern a clear and unambiguous admission. Concededly,

the suit was filed by Defendant No.1 leveling allegations against the plaintiff about his

having induced her to sign certain documents which was later sought to be misused by

him to obtain a half share in the Gaushala road property. Such being the allegation, the

plaintiff would in the normal course of events have appropriately described the status of

the property as either acquired by the said defendants (i.e. D-1&8) or the same having

been acquired from their own resources. A further reading of some of the documents i.e.

D-1/P-5 and D-1/P-6 (both of which are sale deeds, to which the plaintiff is a party and

are dated 17.7.2004 and 25.11.2004) clarify that the description of the property i.e. half

I.A.11807/08 in CS-2376/06 Page 7 undivided share in the Gaushala road property is as though it belonged exclusively to the

concerned vendor i.e. Defendant Nos.1 and 8. There is absolutely no mention of the

same being at any stage owned or the property of any HUF.

15. Having regard to these circumstances, the Court is of the opinion that the plaintiff

cannot on the basis of the documents and the pleadings in Suit No.279/2005 press the

claim so far as the said two properties are concerned. The materials clearly bring out an

unambiguous admission as to the status of the said properties not being or belonged to

any HUF, as contended in the suit.

16. In view of the above conclusions, it is held that the suit claim so far as it claims a

decree for partition in respect of the said above two properties i.e. Rama Park property

and Gaushala road property, cannot be maintained. The said properties are hereby

excluded from further adjudication in the suit.

I.A. No.11807/2008 is allowed in the above terms.

CS (OS) 2376/2006

After hearing learned counsel and with their consent, the following issues are

framed: -

1. Is the plaintiff entitled to a decree of partition in respect of the properties

mentioned in paragraph-20 of the suit (excluding the above Rama Park

property and Gaushala road property? OPP

2. If the findings in respect of the first issue are in the affirmative, to what share

is the plaintiff entitled? OPP

3. Does the plaintiff prove entitlement to any share in the business managed by

the defendants, as claimed in the suit? OPP

I.A.11807/08 in CS-2376/06 Page 8 List before the Joint Registrar on 15th September, 2010, to enable the parties to

lead evidence.