Delhi High Court
Indra Kaushal & Another vs Ravinder Kaushal & Others on 30 November, 2017
$~OS-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30.11.2017
+ CS(OS) 38/2014 and I.A.No.197/2014
INDRA KAUSHAL & ANOTHER ..... Plaintiffs
Through Mr.O.P.Aggarwal & Mr.K.N.Singh,
Advs.
Versus
RAVINDER KAUSHAL & OTHERS ..... Defendants
Through Mr.Rajesh Singh, Adv.for D-l & 2.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
IA No. 2067/2015(u/O XII Rule 6 CPC)
1. This application is filed under Order XII Rule 6 CPC seeking passing
of a decree on admissions.
2. This suit is filed seeking a decree of partition in respect of the
property bearing No.24/1, Shakti Nagar, Delhi-110007 claiming 2/5th share
as that of the plaintiffs and 3/5th share of the defendants; a decree for
possession is also sought for the 2/5th share of the plaintiffs; and a decree for
mesne profits @ Rs.50,000/- per month.
3. It is stated in the plaint that Dr.S.S.Kaushal, the father of the
plaintiffs, defendants No.1 and 2 and Late Sh.Rajiv Kaushal who is now
represented by defendant Nos.3 to 5 owned the said property bearing
No.24/1, Shakti Nagar, Delhi-110007 measuring 500 sq.yds comprising of
ground floor, first and second floor. Dr.S.S.Kaushal expired on 24.02.1998.
CS(OS) 38/2014 and I.A.Nos.197/2014 Page 1 of 6
His wife had expired prior to his death. It is stated that during his life time
Dr.S.S.Kaushal executed a Registered Will dated 17.08.1994 in respect of
the suit property in favour of the plaintiffs and his three sons. The plaintiffs
were given two living rooms and one dressing room adjacent to the bath
room on the ground floor, which is shown in red colour in the site plan. In
addition the bath room and latrine in the mid-stairs and miyani above the
clinic was also given to the plaintiffs. The said portion was said to be in
possession of the plaintiff jointly. However, on return from USA on
22.03.2012, plaintiff No.1 found the portion to be locked, and all the
articles/belongings of the plaintiffs kept in their portion were
removed/stolen. The plaintiffs were also not allowed to enter into the said
premises. It is stated that they have been forcibly dispossessed by defendant
Nos.3 and 4 and appropriate police complaint is said to have been lodged
with Police Station, Shakti Nagar, New Delhi. A suit was also filed under
Section 6 of the Specific Relief Act, 1963. However, the said suit was
withdrawn with liberty to file a fresh suit before this court.
4. The learned counsel appearing for defendant Nos.1 and 2 submits that
they oppose the prayer in the suit but they have no objection in case the
plaintiffs are given possession of the portion of the property bequeathed to
them as per Will of Late Dr.S.S.Kaushal dated 17.08.1994 as owners
thereof.
5. None has appeared for defendant Nos.3 to 5 despite a pass over. I may
also note that defendants No. 3 to 5 have not filed any reply to the present
application of the plaintiff under Order XII Rule 6 CPC. A perusal of the
written statements filed by the said defendants would show that they have
denied the execution of the Will dated 17.08.1994 and claimed it to be a
CS(OS) 38/2014 and I.A.Nos.197/2014 Page 2 of 6
forged and fabricated document.
6. The learned counsel for the plaintiffs has pointed out that if for some
reasons this court comes to conclusion that Late Dr.S.S.Kaushal did not
validly and legally execute the said Will dated 17.08.1994, in that
eventuality, the plaintiffs would be entitled to 2/5th share in the suit property.
It is submitted that 2/5th share which the plaintiffs would be entitled in case
of intestate succession would be a larger share than that has been bequeathed
in favour of the plaintiffs by their father Late Dr.S.S.Kaushal. He submits
that even if defendant Nos.3 to 5 deny the validity and legality of the Will
dated 17.08.1994 executed by Late Dr.S.S.Kaushal, the plaintiffs still have
rights in the suit property, namely 2/5th share.
7. Order 12 Rule 6 CPC reads as follows:-
"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 an 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."
8. Catena of judgments of this court and the Supreme Court have settled
the requirement of Order 12 Rule 6 i.e.:
(i) Vijaya Myne v. Satya Bhushan Kuara 142(2007)DLT483(DB)
(ii) Usha Rani Jain v. Nirulas Corner House Pvt. Ltd. 2005(12)
ILR (Del.)349.
(iii) Bhupinder Singh Bhalla v. Neelu [email protected] Singh
CS(OS) 38/2014 and I.A.Nos.197/2014 Page 3 of 6
2014(207)DLT 572
(iv) Himani Alloys Ltd. v. Tata Steel Ltd. (2011) 15 SCC 273
9. Reference may be had to judgment of Supreme Court in the case of
Himani Alloys Ltd. v. Tata Steel Ltd. (supra) wherein the Court held as
follows:-
"9. 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 examination of the
facts and circumstances, has to exercise 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 exercised 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."
10. Admissions can be inferred from vague and evasive denials or
admissions can even be inferred from the facts and circumstances of the
case.
11. A perusal of the written statements of defendants No. 3, 4 and 5
would show that the said defendants have denied the execution of the Will
by Late Dr.S.S.Kaushal. It is their case that the Will is forged and fabricated.
They further plead that Late Dr. S.S.Kaushal had adequately compensated
both his daughters, namely, the plaintiffs at the time of their marriage and as
such after their marriage, the father during his lifetime as per his wish
CS(OS) 38/2014 and I.A.Nos.197/2014 Page 4 of 6
distributed the suit property only amongst his three sons, namely, the
defendants. Hence, there was no room left for the father Dr.S.S.Kaushal to
execute any Will or Codicil. It is urged that the three sons as per the wish of
Dr. Kaushal have been residing in the above noted family property.
12. It is quite clear that the parties, namely, the plaintiffs and defendants
No. 1 and 2, late Sh. Rajeev Kaushal (now represented by defendants No.3
to 5) are children of Dr. S.S.Kaushal. Their mother had died prior to the
death of Dr.Kaushal. Parties admit that the suit property was owned by Late
Dr. S.S.Kaushal. The effect of admission of these facts is that in the absence
of a will under Section 8 of the Hindu Succession Act read with Schedule,
the property of Dr.Kaushal will devolve upon sons, daughters and the heirs
of the deceased son who are relatives specified in Class I of the Schedule of
the Hindu Succession Act.
13. However, in the course of arguments both learned counsel for the
plaintiffs and defendants No. 1 and 2 have agreed that a decree may be
passed in favour of the plaintiffs conferring title and also a decree of
possession on the property that was bequeathed to the plaintiffs by Late
Dr.S.S.Kaushal by his registered Will dated 17.08.1994. It is manifest that
the portions that is bequeathed to the plaintiffs is less than the 2/5 th share
they are entitled to under the Hindu Succession Act. In view of the
admissions in the written statement of the defendants No. 3 to 5, in my
opinion this is a fit case to pass a decree in favour of the plaintiffs and
against the defendants as above.
14. The application is accordingly allowed.
CS(OS) 38/2014
15. Accordingly, a decree is passed in favour of the plaintiffs and against
CS(OS) 38/2014 and I.A.Nos.197/2014 Page 5 of 6
the defendants for partition of the suit property whereby the plaintiffs shall
be entitled to the portion shown in red colour as per Will of Late
Dr.S.S.Kaushal dated 17.08.1994. A decree of possession is also passed in
favour of the plaintiffs and against the defendants for the said portion as
noted above.
16. As this decree has been passed by the consent of the plaintiffs and
defendant Nos.1 and 2, the learned counsel for the plaintiffs does not press
any other relief.
17. Suit is disposed of as above. Pending applications also stand disposed
of.
JAYANT NATH, J.
NOVEMBER 30, 2017/v
