Rameshwar Prasad Gupta vs Rajinder Kumar Gupta & Ors.
2011 Latest Caselaw 3395 Del

*          HIGH COURT OF DELHI : NEW DELHI

+    IAs 6852/2011 & 13665/2009 IN CS (OS) No. 2362/2008

%                                 Judgment decided on: July 18, 2011

RAMESHWAR PRASAD GUPTA                       ......Plaintiff
              Through: Mr. Ravi Gupta, Sr. Adv. with
                       Mr. Lalit Gupta, Adv.

                       Versus

RAJINDER KUMAR GUPTA & ORS.                   .....Defendants
               Through: Mr. S.K.Sharma, Adv. with
                        Mr. Shivesh P.Singh and Mr. Mayank,
                        Advs. for D-1.
                        Mr. Nikhil Singla, Adv. for D-2 & 3.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2. To be referred to Reporter or not?                   Yes

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

MANMOHAN SINGH, J.

1. By this order I propose to decide the two applications being

IA No.13665/2009 and IA No.6852/2011. The first application IA

No.13665/2009 is filed by the plaintiff under Order XII Rule 6 read

with Section 151 CPC for passing the preliminary decree for partition

of the property on admission. The second application under Order VII

Rule 11 read with Section 151 CPC is filed by defendant No.1 for

dismissal of the suit for petition filed by the plaintiff.

2. The plaintiff and defendant Nos.1 to 3 are three brothers

and one sister.

3. The suit property was purchased on 25.5.1956 by Smt.

Janaki Devi, mother of the parties who expired on 3.3.1995.

Prior proceedings between the parties

4. The plaintiff herein filed the petition under Section 276 of

the Indian Succession Act, 1925 on 23.2.1999 for grant of Letter of

Administration on the ground of mother having died intestate bearing

Probate Case No. 291/06/99. Defendant No. 1 propounds a Will dated

18.08.1984. The Defendant Nos. 2 & 3 support the case of the

Plaintiff herein.

5. The defendant No. 3 (Sister) on 26.3.1999 relinquished her

share in favour of all three brothers and executed a registered

Relinquishment Deed which is duly admitted and even relied upon by

all the parties including contesting Defendant No. 1.

6. The defendant No. 2 herein filed Civil Suit No. 120/2004

on 12.07.2004 for partition of the same property before Additional

District Judge which was contested only by Defendant No. 1.

7. In the written statement filed by the defendant No.1 it was

contended on merits that the properties stood partitioned by virtue of

the Will dated 18.8.1984 and in view thereof the parties are already in

possession of their respective shares. It was also alleged that since the

probate case was pending wherein the issue of validity of Will is sub

judice, therefore, the suit filed by the defendnat No.2 cannot be

proceeded with under Section 10 of the Code of Civil Procedure. The

objection about the pecuniary jurisdiction was also raised by the

defendant No.1.

8. The said suit was stayed at the instance of the defendant

No.1 by order dated 24.5.2005 in view of the pendency of probate

case. The probate case filed by the plaintiff was decided by the

Additional District Judge on 13.10.2008, mainly on two reasons i.e.

the Will was not proved by the objector and the same is not legal, valid

and executed properly and the same is liable to be ignored. Secondly,

as the plaintiff did not step into the witness box, the petition for grant

of Letter of Administration was dismissed.

Present Suit

9. Thereafter on 7/11/2008, the present suit was filed by

plaintiff for partition and permanent injunction of the property of

mother.

10. When the matter was listed before the court along with the

interim application on 12.11.2008, it was directed that all the parties to

the suit shall maintain status quo title, possession and construction of

the suit property i.e. 92, Banarasi Das Estate Timarpur, Delhi-54.

11. The defendant No.1, who is the only contesting party to the

suit, filed his written statement admitting that the plaintiff and

defendant Nos. 1 and 2 have equal rights in the suit property. It was

also stated in the written statement that it was upheld by late Smt.

Janki Devi's Will. The defendant No.1 has also admitted that Urmila

Gupta, the defendant No.3 relinquished her right equally in favour of

her brothers. The actual possession with respect to the suit property

was also admitted in the written statement.

12. Para (b) and para (e) of the written statement filed by the

defendant No.1 read as under:-

"B. that contrary to the contents of the plaint, the status of the actual possession of the parties to this

litigation with respect of property bearing no.92, Banarasi Das Estate Timarpur, Delhi-54 (hereinafter referred to as the "suit property") is such that the Defendant No.1 has lesser area compared to the areas in possession of the Plaintiff and Defendant No.2. Defendant No.3 has already relinquished her rights and has admittedly no right, title or interest left in the suit property. It may also be noted that the portion of the area in possession of Plaintiff and Defendant No.2 are three side open. In other words, the portions of the suit property in possession of the Plaintiff and Defendant No.2 are having a higher market value then the portion of the suit property in possession of the Defendant No.1. In other words, an equitable and fair metes and bounds partition of the suit property will, in fact, result in greater allocation of area of the suit property in favour of the Defendant No.1.

E. That the suit is misconceived as it is contrary to the last Will and Testament dated 18.08.1984 executed by late Smt. Janki Devi, who passed away on 03.03.1995. The suit property earlier belonged to Smt. Janki Devi. Smt. Urmila Gupta, the daughter of deceased Smt. Janki Devi relinquished her rights equal in favour of her brothers. This is an admitted possession. In other words, Rameshwar Prasad Gupta (Plaintiff herein), Rajinder Gupta (Defendant No.1 herein) and Rajesh Gupta (Defendant No.2 herein) have equal rights in the suit property. This position was upheld in the late Smt. Janki Devi's Will. In the Will it was declared by the testatrix Smt. Janki Devi that the possession as it stood on the day of the execution of the Will, which continues to be so, even today should be continued even after her death. Accordingly, a site plan was attached with the Will and all the parties except the Plaintiff signed the site plan. This Will was propounded in the District Court, Tis Hazari, Delhi by the Defendant No.1. However,

the Learned Additional District Judge declined to grant probate vide his judgment dated 13.08.2008, which judgment has now been appealed against and the appeal proceedings pending disposal before this Hon'ble Court."

13. When the matter was listed before court on 21.08.2009 the

following order was passed by the court in the main suit which reads

as under:-

"3. Defendant No.1 is present in Court and is identified by his counsel.

4. In the written statement filed by Defendant No.1 it is stated in para (E) that "Rameshwar Prasad Gupta (Plaintiff herein), Rajinder Gupta (Defendant No.1 herein) and Rajesh Gupta (Defendant No.2 herein) have equal rights in the suit property." This position is reiterated by learned counsel for Defendant No.1 on instructions. He adds that in the copy of the site plan filed along with the written statement a blue shaded portion has been marked in the ground floor of the suit property which he claims is in his possession. He states that although this portion may constitute less than 1/3 of the suit property, Defendant No.1 would be satisfied if he is given this portion as his share.

5. Learned counsel for the Plaintiff, while welcoming the stand of Defendant No.1 that each of the parties i.e the Plaintiff and Defendant Nos. 1, 2 are entitled to 1/3rd share, suggests that the portions other than the shaded blue portion would not be attractive en ough for the Plaintiff and therefore, the suit property should be put to auction sale where one of the parties can be given the first option of buying out the others.

6. It appears to this Court that in the first place efforts should be made by the parties to settle their disputes through mediation since the differences between the parties appear to have considerably narrowed. The parties will appear before the Delhi High Court Mediation and Conciliation Centre (`DHCMCC') on 7th September 2009. The Mediator(s) are requested to make a visit to the suit property during the course of mediation. It is open to the Mediator(s) to suggest to the parties any appropriate mode of partition. Report of mediation be filed before the next date of hearing.

14. Vide order dated 01.09.2009, the plaintiff's I.A. No.

11209/2009 was allowed by the Court thereby appointing local

Commissioner i.e. Assistant Engineer, P.W.D. inter-alia observed

that:-

"(a) The report of the Architect would only ascertain the

factual position as to the feasibility of the division of the

property by metes and bounds

(b) In either event the report of the Architect after visiting the

premises and ascertaining the feasibility of the division of

the property by metes and bounds will be of assistance in

the proceedings"

(c) The Assistant Engineer will be permitted to take along

with him a person to take photographs/video of the

premises and also a qualified person for preparing the

drawings

(d) The Mediators are also requested to examine such report

and make suggestions to the parties of the possible ways

of resolving the disputes including the appropriate mode

of partition"

15. The Local Commissioner appointed by the court has given

his suggestion about the mode of partition on 1.9.2009.

16. It was observed by the court in its order dated 26.10.2009

that the defendant No.1 is now opposing the said arrangement and did

not permit the execution of the commission. The learned counsel

appearing on behalf of the defendant No.1 informed the court the

execution of commission is not necessary in view of the application

moved by defendant No.1 whereby the purported admission of 1/3rd

share is sought to be denied, but after some discussion, a statement

was made by defendant No.1 that he would not impede the execution

of the commission so directions were passed by the court. Later on, it

appears from the record that the defendant No.1 filed the review

petition against the order dated 1.9.2009 which was also dismissed on

27.11.2009.

17. Thereafter, defendant No.1 filed an appeal being FAO (OS)

654/2009 against the orders dated 21.08.2008 and 01.09.2009 which

was dismissed by the Division Bench by order dated 16.03.2010.

18. The defendant No.1, thereafter, challenged the said order

dated 23.08.2009 about the withdrawal of the partition suit by the

defendant No.2 by filing the Regular First Appeal being 135/2010

before this Court which was dismissed on 09.03.2010.

19. The appeal i.e. F.A.O. No. 430/2008 also filed by

defendant No. 1 herein challenging judgment dated 13.10.2008 passed

in the present case was dismissed by this Court on 07.03.2011.

Thereafter, the Review Petition No. 244/2011 filed by defendant No.1

seeking review of order was also dismissed on 28.04.2011.

20. The first application filed by the defendant No.1 under

Order VII Rule 11 CPC, being IA No.1359/2009, for dismissal of the

suit filed by the plaintiff, after some arguments, was dismissed as

withdrawn by order dated 23.07.2010.

The defendant No.1 also withdrew his application under

Order VI Rule 17 for amendment of the written statement to withdraw

the admission made in the written statement after argument. The

order in this regard was passed on 29.11.2010.

21. Now the plaintiff's application being IA No.13665/2009

under Order XII Rule 6 is listed for passing the preliminary decree for

partition in view of the alleged admission made by the defendant No.1

in his written statement and the statement of defendant No.1 recorded

his admission in the order dated 21.08.2009. The defendant No. 1 is

also pressing his second application filed under order VII Rule 11 for

dismissal of suit. The learned counsel appearing on behalf of both the

parties made their rival submissions.

22. Admittedly the Will dated 18.08.1984 propounded by

defendant No. 1 has been disbelieved by the Probate Court. Property

of a deceased can only devolve upon legal heirs in two ways i.e. either

through a testament namely a Will and in the absence of the Will, by

natural succession. After rejection of Will admittedly the defendant

No. 1 challenged the judgment dated 13.10.2008 by filing of an

appeal, F.A.O. 430/08 which was dismissed by this Court. Therefore,

as a natural corollary, the property would equally devolve upon three

brothers since sister has already relinquished her share.

23. The judgment given by Probate Court is a judgment in rem

which is binding not only upon the parties but against the whole world

and thus there is no need to send the parties to trial once again by this

Court being a Civil Court on the same issue of Will since the Will has

already been rejected.

24. In the present case, the defendant No.3 has already

relinquished her right in favour of the plaintiff and defendants 1 and 2.

The defendant No.2 is supporting the case of the plaintiff. The

defendant No.1 filed his written statement wherein it was, inter alia,

claiming as under:

"In other words, Rameshwar Prasad Gupta (Plaintiff herein), Rajinder Gupta (Defendant No.1 herein) and Rajesh Gupta (Defendnt No.3 herein) have equal rights in the suit property."

25. It is also a matter of fact that after the completion of the

pleadings, the matter came up before the Court on 21.08.2009 when

the defendant No.1 was present in Court and was duly identified by his

counsel. During the proceedings, the Court recorded the admission

made by the defendant No.1 in para (e) of the written statement. The

said admission was reiterated by the learned counsel appearing on

behalf of the defendant No.1 which was recorded in the order dated

21.08.2009. The only formality left with the Court at that time was to

pass the formal preliminary decree declaring the plaintiff and

defendants 1 and 2 have equal shares in the property. However, at the

request of the defendant No.1, the matter was referred to the mediation

and directions were given to the mediators to suggest to the parties any

appropriate mode of partition. But it appears that the settlement did

not materialize between the parties.

26. The other point raised by the defendant No.1 in the written

statement is that the plaintiff and defendant No.2 are in occupation of

area of higher value and in fact partition will result in greater area to

the defendant No.1 as alleged in para (b) of the preliminary objection

and that the area wise partition has already taken place in view of the

Will dated 18.08.1984 left by the mother.

27. The above mentioned submission has no force in view of

the admissions made by himself as well as the pleading of the parties.

It is evident that the parties were residing in the suit property as per the

arrangement of convenience and the same was never partitioned

legally. Therefore, the question of partition by way of oral settlement

does not arise. The property has to be partitioned by metes and

bounds and it has to be in such a manner so that there will be no scope

of interference by any of the parties in respect of the possession and

would entitled them to disposed of their portion as one unit. In the

present case, parties were residing merely by way of an arrangement

and in fact, parties were keeping some portion in the property. The

Will dated 18.08.1984 as alleged by the defendant No.1 has not been

proved and the judgment has become final.

28. In the similar situation, this court in the case of Hari Ram

Vs. Lala Om Prakash; 2003 IV AD Delhi 124 dealt with the same

point. Relevant para 18 and 20 are reproduced hereinbelow :

"18. Contention of the Counsel for the defendant that oral partition has been acted upon inasmuch as portions in the suit property are in separate occupation and the parties have carried out additions, alterations, renovations in their respective portions without any objection and interference by other party and that he along with the plaintiff has been pooling equal share towards payment of house tax and further he had also made addition, alterations or renovations in their portions almost at the same time when the defendant has done it some 20 years back has no significance so far as suit for partition is concerned as there is common entrance and staircase in the property. The parties are in possession of portions on ground floor, first floor, second floor and terrace and suit property cannot be partitioned as these are not vertically or otherwise single unit. All these facts when taken in totality make out a case of two brothers living peacefully

in their respective portions but not a case of oral family agreement of partition of the property. Had there been any intention on the part of father of the parties to give equal shares in the property, there was no difficulty in executing the Will. Merely because parties have been living for more than 30-40 years in different portions of the house separately does not mean that such an agreement tantamount to agreement for partition of property.

20. The instance of two brothers living in the two portions of a house they co-owned by way of inheritance does not mean that oral partition had taken place. It was just a mutual arrangement between the parties and inasmuch who had more need, he was allowed to occupy some extra portion but such an arrangement does not amount to oral agreement of partition of the suit property in equal shares."

29. Possession of some portion of property by different parties

was held to be merely an arrangement of convenience. By was of oral

agreement, the parties may decide to live in such portions which are

not worthy of partition by metes and bounds but such

arrangement/agreement is nothing more than an arrangement of

convenience.

It is the admitted fact that defendants No.1 and 2 have

made their admissions in their written statements as well as before

Court and in view thereof, orders dated 21.08.2009 and 01.09.2009

were passed. The appeal filed by the defendant No. 1 was also

dismissed against the said orders.

30. The contention of the defendant No.1 now is false and

frivolous that the statement recorded by the Court in the order dated

21.08.2009 in the presence of his counsel was without any authority.

31. In the similar circumstances, this Court passed order dated

01.02.2010 in the case of Sh. Prahlad Raj Anand Vs. Shri Amar Nath

Anand (Deceased) through LRs and Ors. in CS(OS) No. 844/2009

decided by V.K. Shali, J. wherein it was held that a decree can be

passed on the basis of a concession of the parties which can also be

made through a Counsel. It is now a well settled principal of law that

a Counsel can make out not only concession on a question of law but

also on facts which would be binding on the parties and a decree can

be passed on the basis of such concessions in terms of Order XII Rule

6 CPC. Para 6 of the order reads as under :

"6. The defendants feeling aggrieved by the said order preferred an appeal against the rejection of their plea, challenging the share of the plaintiff in respect of the other suit property. This appeal was also dismissed on 27th July, 2008. Still not feeling satisfied the defendants chose to file a special leave petition in the Supreme Court assailing that the statement of the learned counsel for the defendants could not be treated to be a valid statement or a valid concession as the same was made on the basis of misunderstanding. The Supreme Court vide judgment dated 25.02.2009 dismissed the special leave petition by

observing as under:

15. A decree can be passed on the basis of a concession of the parties. Such a concession can also be made through a counsel. The parties were present in court on 14.10.1999. They, thus, could instruct their counsel. As on the basis of the statements made by a counsel for all intent and purport, a preliminary decree has been passed and the parties thereafter had been exploring the possibilities of partitioning the property by meets and bounds and/or taking recourse to sale thereof there cannot be any doubt whatsoever that they had knowledge of the said order dated 14.10.1999. The parties acted upon it. It is, therefore, in our opinion, too late in the day to allow the parties to take a stand contra. Having regard to the fact that they were present in court as also having full knowledge about the statement made by their counsel, it was for them to clear spell out what could be purported misunderstanding between them and the counsel.

In a suit of partition, the principal question which was required to be gone into was as to whether the properties were joint properties or self-acquired properties.

There were three items of the property in suit. To say now that the instruction was confined only tone of the properties, namely, 1/13, First Floor, Double Storey, Tilak Nagar, New Delhi cannot be accepted.

It is now a well settled principle of law that a counsel can make out only concession on a question of law but also on facts which would be binding on the parties. A decree can be passed on the basis of such concessions in terms of order XII, Rule 6 of the Code of Civil Procedure. (See Jamilabai Abdul Kadar Vs. Shankarlal Gulabchand and Ors. Air 1975 Sc 2202, Pushpa devi Bhagat Vs. Rajinder Singh, (2006) 5 SCC 566 and BSNL and Ors. Vs. Subash Chandra Kanchan and anr. (2006) 8 SCC 279).

For the reasons aforementioned, there is no merit in the appeal. It is dismissed accordingly with costs. Counsels fee assess at Rs.25,000/- (Rs. Twenty Five Thousand only)."

Therefore, the submission of defendant No.1 is rejected

that his counsel has made the statement before the court without

instructions. It is a matter of fact when the order was passed, the

defendant No.1 was present in the Court.

32. The law on admission is well settled by this Court in

various decisions, some of them are as under :

(a) Umang Puri v. Lt. Col. Pramode Chandra Puri

165(2009) DLT 245 wherein it was held that the admissions need not

be made expressly in the pleadings and even on constructive

admissions, the Court can proceed to pass a decree in favour of the

plaintiff under Order 12 Rule 6, CPC.

(b) National Textile Croporation Ltd. & Anr. Vs. Ashval

Vaderaa 167(2010) DLT 602 wherein it was held that admission can

be found even in the statement of parties recorded in the court and

admissions may also be gleaned from vague and unspecific denials.

(c) Madan Lal Kaushik Vs. Shree Yog mayaji Temple &

Ors. 178(2011) DLT 398 wherein it was held that if the defense is

irreconcilable rendering it impossible well nigh (almost) impossible for

the Defendant to succeed, suit out to be decreed which was the

objective of amendment of CPC brought in 1976.

33. The next point i.e. the plea of limitation has been taken by

defendant No. 1 in his fresh application under order VII Rule 11 CPC,

though the said plea was not taken in the written statement or in his

previous application being IA No. 1359/2009 under Order 7 Rule 11

CPC which was dismissed as withdrawn.

34. The contention of defendant No.1 is that the plaintiff was

put to notice of denial of his entitlement for partition by way of reply

dated 5.6.1999 filed by the defendant No.1 in probate proceedings.

The present suit is filed in November 2008 and the same is barred by

limitation under the Limitation Act. It is also alleged that the suit is

also barred by doctrine of estoppel due to the reason that the

plaintiff's petition under Section 276 of Indian Succession Act was

dismissed wherein the issue was similar, thus, the present suit is barred

by the principles of resjudicata as the plaintiff is litigating the same

issue in a different form through different proceeding.

35. It is a matter of fact that the said plea was never raised by

him in the written statement filed by him. Furthermore, the plaintiff is

not merely seeking decree for partition but is also seeking a decree for

separate possession and against the defendant Nos. 1 and 2 thereby

partition/separating the 1/3rd share of the plaintiff in the suit property.

36. Article 110, the Limitation Act provides the limitation of 12

years when the exclusion becomes known to the plaintiff. It is not

denied by the plaintiff that the defendant No.1 was put to notice of

denial of his entitlement for partition first time in the reply dated

5.6.1999 when at that time his plea of Will and oral partition on that

basis was yet to be decided, but now the said plea of Will disbelieved

by the Probate Court and the judgment passed by this Court is become

final. Therefore, the question of esstoppel and the objection of

rejudicata does not arise as in those proceedings the plaintiff tried to

obtain the relief for grant of letter of administration on the grounds of

mother having died intestate. The said proceedings are different

proceedings within the meaning of Section 2(a), 218 and 276 of the

Indian Succession Act. Even otherwise, in case the knowledge of the

plaintiff is taken as in the year 1999 and the present suit was filed by

the plaintiff in November, 2008 which is within the period of 12 years.

Thus, the objection of limitation, estoppel and res-judicata is without

any merit. Further, whenever the partition of the property by way of

inheritance is sought, provisions of Limitation Act do not apply.

37. Under the circumstances, the application of defendant No.

1 under Order VII Rule 11 CPC is not maintainable and is dismissed.

38. For the aforesaid reasons and admission made by the

defendant No.1, I am of the considered view that the trial in the

present case is not necessary as the parties are not at issue on any

question of law and fact. Thus, the application filed by the plaintiff

under Order XII Rule 6 CPC is liable to be allowed. The Court is

otherwise empowered to pronounce the judgment under the provision

of Order XV of the CPC.

39. I accordingly pass a preliminary decree for partition

declaring that the plaintiff and defendants 1 and 2 have equal 1/3 rd

share in the suit property, being built up property No.92, Banarsi Dass

Estate, Timar Pur, Delhi - 110 054. For the purpose of passing the

final decree an inspection of the property will have to be carried out

and other formalities are to be carried out. Thus, Mr. Tanuj Khurana,

Advocate (Mobile No.9811009959 Chamber No.382, Lawyers

Chambers, Delhi High Court) is appointed as Local Commissioner

who will visit the site and inspect the property in the presence of the

parties and if need arises, to obtain the help of Assistant Engineer as

earlier appointed by this court vide order dated 1.9.2009 and then

suggest ways and means in which the property can be partitioned by

metes and bounds. It is directed that all the parties shall provide full

cooperation for compliance of the commission. If necessary, the Local

Commissioner is authorized to take the police assistance in order to

comply the order. The Local Commissioner shall file his report within

12 weeks from today. The fee of the Local Commissioner is tentative

fixed at Rs.60,000/- which is to be shared by plaintiff and defendant

Nos. 1 and 2. In case help of Assistant Engineer is required, his fee is

fixed at Rs.30,000/- which would be paid in the same manner. All

pending applications stand disposed of.

CS (OS) No. 2362/2008

List on 20.10.2011

MANMOHAN SINGH, J.

JULY 18, 2011 mm