Delhi High Court
Urmila Sharma vs Jai Bhagwan & Ors. on 22 September, 2021
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22nd September, 2021
+ CS(OS) 306/2019
URMILA SHARMA ..... Plaintiff
Through: Ms. Nidhi Mohan Parashar,
Advocate.
versus
JAI BHAGWAN & ORS. ..... Defendants
Through: Mr. Chander Sharma, Advocate for
Defendants Nos. 1 to 5.
Mr. Kamal Mehta, Advocate for
Defendant No. 6.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J. (Oral):
I.A. 14704/2019 (under Order XII Rule 6 CPC for decree of possession)
1. The Plaintiff has filed the present suit seeking partition of the estate of her
father Late Shri Ramesh Chandra Kaushik being:-
a) Property bearing Khasra No. 204, measuring approximately 352 sq.
yards, Main Market Kondali, Delhi-110096,
b) Property bearing Khasra No. 186-187, measuring approximately
1100-1200 sq. yards Village Kondali, Delhi-110096 (together referred
to as the "suit properties")
2. The case of the Plaintiff is that her father died intestate and is survived by
Class 1 legal heirs being his sons and daughters, who are parties to the
present suit. Defendant Nos. 1 to 5 referred to as "Contesting Defendants"
are contesting the suit and whereas Defendant No. 6 supports the Plaintiff's
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Signing Date:29.09.2021
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prayer for partition.
3. By way of the instant application, Plaintiff seeks judgment on admission
on the basis of averments made in the written statement filed by Defendant
Nos. 1 to 5.
Plaintiff's contentions
4. Ms. Nidhi Mohan Parashar, counsel for the Plaintiff makes the following
submissions:
4.1. The averments made in the written statement filed by the Contesting
Defendants when juxtaposed with the averments made in the plaint, clearly
bring out the admissions as is evident from the following tabulation:
"Preliminary submissions in Written Statement
Para 2 page 2
.....Plaintiff had already got her share in the property as per her share value
and this amount was received by the plaintiff in front of her father namely
Late Sh. Ramesh Chand Kaushik and all defendants.
Para 4 page 2
....after the death of father of the parties, defendant no.l and 2 was looking
after the said property in all manner till now but the in the presence of the
father of the parties, and on the request of the plaintiff, a orally agreement
was executed between the parties thereby plaintiff got her share as per her
share in presence of all defendant and their father. And it is also decided
mutually between the parties in question that the plaintiff and defendant no.
6 will not have any concerned with the aforesaid suit properties in future. It
is submitted that only Defendant No. 1 and 2 had care their father in his bad
times and none other and plaintiff came forward to look-after him.
Para Wise Reply to the Plaint
Plaint Written Statement
Para 2, page 13 Page 4
The Defendant No. 1 and 2 Matter of records and need
are the brothers of the no reply
Plaintiff. The Defendant No.
3 to 6 are the sisters of the
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Plaintiff. Parties are the
only Class I legal heirs of
Late Sh. Ramesh Chandra
Kaushik
Para 3, page 13 Para 3, Page 4
That Late Mr. Hari Chandra. That the contents of Para No. 3 of
grandfather of the inherited Parties the plaint as stated are wrong and
several properties from the great denied. It is also denied that only
grandfather of the Parties in the the grandfather of the parties in
year 1954 1955. included The said question inherited properties in
properties Property bearing Khasra question from the great
No. 204, Main Market Kondali, grandfather of the parties in the
Delhi-110096, Property bearing suit in the year 1954-1955 and
Ward No: 57 Village Kondali and father of the not the parties
Property bearing Khas No 186-187, inherited any property from
Village Kondali. Delhi-110096. grandfather. It is submitted that the
properties in question are the
acquired properties self of Late Sh.
Ramesh Chandra Kaushik.
Para 12, page 18 Para 12, Page 8
That Late Mr. Ramesh Chandra That the contents of Para no. 12
Kaushik died intestate and trusted are wrong false and vehemently
the Defendant No. 1 and 2 to divide denied. It is denied that the Late
the Suit Properties harmoniously Mr. Ramesh Chandra Kaushik died
and equally amongst all his legal intestate and trusted the defendant
heirs. However, the said no. 1 and 2 to divide the suit
Defendants abused the trust vested properties harmoniously and
in them by the father of the parties, equally amongst all his legal heirs.
the main reason behind this being However. the said defendants
the greed of the said Defendants. abused the trust vested in them by
the father of the parties, the main
reason behind this bring greed of
the defendants.
It is submitted that the after the
death of father of the parties,
defendant no. 1 and 2 was looking
after the said property in all
manner till now but the in the
presence of the father of the parties
and on the request of the plaintiff, a
orally agreement was executed
between the parties thereby plaintiff
got her share as per her share in
presence of all defendant and their
father. And it is also decided
mutually between the parties in
question that the plaintiff and
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Signing Date:29.09.2021
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defendant no. 6 will not have any
concerned with the aforesaid suit
properties in future. It is submitted
that only defendant no. 1 and 2
had care their father in his bad
times and none other and plaintiff
came forward to look-after him
4.2. The Contesting Defendants have admitted that suit properties are
self-acquired properties of the father - late Shri Ramesh Chandra Kaushik.
4.3. Although the Contesting Defendants have denied that the father died
intestate, this is a bald assertion. They have not produced any testament or
Will.
4.4. It is an admitted position that parties are Class 1 legal heirs -
accordingly the suit properties must devolve in terms of Section 8 of the
Hindu Succession Act, 1956 ("HSA").
4.5. The Contesting Defendants have set up a moonshine defence that there
was an oral agreement between the parties prior to the death of their father
late Shri Ramesh Chandra Kaushik whereby Plaintiff relinquished her rights
over the father's estate. This defence of oral relinquishment concerning an
immovable property cannot be entertained in view of the settled law.
Reliance is placed on the judgment of this Court in Sushila v. Vijay Kumar
Bhardwaj 1 and of the Madras High Court in Prema Suryanarayanan v. S.
Venkataramanan2.
4.6. Any agreement by the late father of the parties, during his lifetime that
his property will not vest in Plaintiff and Defendant No. 6 was required to be
in writing and registered under Section 17 of the Registration Act, 1908.
2014 SCCOnline Del. 1948.
2018 (2) CTC 750.
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Signing Date:29.09.2021
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(See: Chiranjilal Srilal Goenka (Dead) by Lrs. v. Jasjit Singh3)
Contentions of the Contesting Defendants
5. Mr. Chander Sharma, counsel for the Contesting Defendants, strongly
opposes the application and submits as follows:
5.1. There is no admission made in the written statement. In fact, the
Contesting Defendants have strongly disputed and denied the claims of the
Plaintiff in clear and unequivocal words.
5.2. The Contesting Defendants have only admitted relationship between the
parties. This does not entitle the Plaintiff to get the discretional relief under
Order 12 Rule 6 CPC.
5.3. The alleged admissions in the written statement, relied upon by the
Plaintiff, extracted above cannot be read in isolation. The written statement
has to be read in entirety and other averments and defences raised in the
written statement are required to be taken into consideration.
5.4. The Contesting Defendants have pleaded oral partition/ oral family
settlement which is a well-established proposition in law as held in a catena
of judgments passed by this Court as well as the Supreme Court. Defendants
should be given an opportunity to establish this fact in trial.
5.5. The law dealing with judgments on admission under Order 12 Rule 6 is
well settled. Only if there is unequivocal, clear and unqualified admission
made in the pleadings, can the Court pass a judgment without giving an
opportunity to parties to lead evidence.
5.6. The Contesting Defendants have alleged oral partition which has been
denied by the Plaintiff. This raises a triable issue and is required to be
(2001) 1 SCC 486.
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proved by leading evidence. Reliance is placed upon the judgment of this
Court in R.K. Markan v. Rajiv Kumar Markan 4 to contend that for passing
a decree on admission, there has to be unequivocal and unqualified
admission in the written statement which has to be taken as a whole and not
in part.
Findings
6. The Court has considered the contentions of parties. The averments made
in the written statement of the Contesting Defendants, clearly brings out
admissions regarding (a) the relationship between the parties; (b) the suit
properties sought to be partitioned were owned and self-acquired by late
Shri Ramesh Chandra Kaushik; (c) he continued to be the owner thereof till
the time of his death.
7. Although the Plaintiff has averred that the suit properties were ancestral,
however Ms. Parashar rightly submits that if they are considered to be
self-acquired properties of late Shri Ramesh Chandra Kaushik, the
entitlement of the parties would not be effected- nothing turns on this issue.
8. Though Contesting Defendants have alleged that late Shri Ramesh
Chandra Kaushik did not die intestate, this defence is vague and unspecific.
No averments have been made to disclose the details of any Will or
testament. This defence therefore raises no triable issue. The properties have
to devolve on the Class 1 legal heirs in terms of Section 8 of the HSA.
9. Next, the Contesting Defendants have alleged an oral agreement of
relinquishment by Plaintiff. This defence is also without any substance. The
relinquishment of share in an immoveable property cannot be by way of an
97 (2002) DLT 754.
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oral agreement; it has to be necessarily by way of a registered document. In
Vijay Kumar Bhardwaj (supra), this Court, in a partition suit dealt with the
plea of an oral family settlement as under:
"13. The defense of alleged oral family settlement and oral relinquishment
of shares taken by the defendant No.1 is totally in contradiction of his
earlier admission in the abovementioned civil suit. The defendant No.1
cannot be permitted to take a false defense as an afterthought just to
prolong the present suit and to delay the grant of legitimate rights of the
plaintiffs. The alleged plea of the family settlement of the defendant No.1 is
false as the defendant No.1 has not given any details or date of any alleged
family settlement. Moreover, there cannot be any oral relinquishment of the
share in an immoveable property as it requires compulsory registration."
Similarly, the Madras High Court in Prema Suryanarayanan (supra),
observed that a party pleading oral partition has to establish the same by
producing convincing evidence.
10. In the present case, there seems to be a defence of both an oral partition
as well as an oral agreement of relinquishment. It has been averred that the
Plaintiff already got her share in the suit properties and at the same time,
Plaintiff and Defendant No. 6 agreed not to be concerned with the suit
properties in the future. Therefore, Defendants have contended that there
was an oral partition whereby Plaintiff was to be given her share in the suit
properties but, there was an oral settlement and thereunder the Plaintiff gave
up her share in the property and received an amount in lieu thereof.
11. This defence is clearly sham and is of no consequence; it is ambiguous
and self-contradictory. On the one hand, the Contesting Defendants deny the
share of the Plaintiff and Defendant No. 6 and contend that they have
relinquished their share, on the other hand it is averred that there has been an
oral partition, and thereafter she received her share. This plea of oral
partition is an acknowledgment of pre-existing rights of the Plaintiff and
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Signing Date:29.09.2021
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Defendant No. 6 in the suit properties and further the defence is vague and
has to be rejected at the threshold. The written statement does not set out
necessary facts and circumstances of the alleged 'oral partition'. The suit
properties continue to be in the name of the deceased father. There are no
documents enclosed alongwith the written statement that could indicate the
properties were partitioned and this was recorded in any public records. In
Vineeta Sharma v. Rakesh Sharma5, the Supreme Court was seized of the
question surrounding conflicting interpretations of Section 6(5) of
the HSA dealing with rights of a daughter in a coparcenary property. In the
context of Section 6(5), the Court made certain observations regarding a
plea of 'oral partition' and observed as follows:
"127........The provisions of Section 6(5) are required to be interpreted to
cast a heavy burden of proof upon proponent of oral partition before it is
accepted such as separate occupation of portions, appropriation of the
income, and consequent entry in the revenue records and invariably to be
supported by other contemporaneous public documents admissible in
evidence, may be accepted most reluctantly while exercising all safeguards.
................When such a defence is taken, the Court has to be very extremely
careful in accepting the same, and only if very cogent, impeccable, and
contemporaneous documentary evidence in shape of public documents in
support are available, such a plea may be entertained, not otherwise. We
reiterate that the plea of an oral partition or memorandum of partition,
unregistered one can be manufactured at any point in time, without any
contemporaneous public document needs rejection at all costs."
(emphasis supplied)
In Sandeep Kohli v. Vinod Kohli 6, a coordinate Bench of this Court, while
dealing with an Order 12 Rule 6 application in a partition suit, made certain
observations as to how 'oral partitions' are to be dealt with. These
observations may be germane to the present discussion:
"22. Though undoubtedly a plea of oral partition is required to be put to
(2020) 9 SCC 1
MANU/DE/3492/2016.
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Signing Date:29.09.2021
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trial but when it is pitted against documents executed on oath and on solemn
affirmation by the person taking the said plea of co-ownership, in my view
to still put such plea to trial would amount to the Court allowing its process
to be abused by the person taking such a plea and assisting him to abuse the
process of the Court and the implicit delays in trial to reap unfair advantage
to himself and to the prejudice of the other party. Not only has the counsel
for the defendant No. 1 failed to state as to what the defendant No. 1, even if
given an opportunity to lead evidence can prove to renege out of the
situation but I am also unable to fathom any get away for the defendant No.
1, even if granted such an opportunity.
23. Though undoubtedly there is no admission of the defendant No. 1 in his
written statement filed in this suit of co-ownership and rather the defendant
No. 1 in the written statement in this suit has pleaded a prior oral partition
but Courts have in Uttam Singh Duggal & Co. Ltd. v. United Bank of India
MANU/SC/0485/2000 : (2000) 7 SCC 120, Vivek Narayan Pal v. Sumitra
Pal MANU/DE/0339/2010 : (2010) 169 DLT 443 (DB), C.N. Ramappa
Gowda v. C.C. Chandregowda MANU/SC/0320/2012 : (2012) 5 SCC 265
and Maj. (Retd.) Sukesh Behl v. Koninklijke Phillips Electronics
MANU/DE/2785/2014 invoked the provisions of Order XII Rule 6 CPC to
negate such improbable pleas which have no chance of succeeding on the
face of the admitted material on record and which pleas are taken merely to
lengthen litigation and to use the said time to coerce the plaintiff into
settling for less than his due.
24. Not only Order XII Rule 6 CPC but Order XV CPC also requires and
empowers the Court to put a suit to trial only if a material proposition of
fact or law is submitted by one party and denied by the other. The plea of
the defendant No. 1 of oral partition of the property, though if proved can
certainly defeat the claim of the plaintiffs of partition but is not found to be
a material one, since the defendant No. 1 who has taken the said plea has in
an earlier statement on oath stated contrary thereto."
In Virender Kumar Garg v. Ravinder Kumar Garg 7, a Division Bench of
this Court, while deciding an appeal from a Single Judge's order whereby
Appellant's suit was dismissed, noted that while the plaint disclosed an oral
partition, no particulars re: the oral partition were on record; nothing was
brought on record to support the plea of oral partition.
12. The Contesting Defendants placed reliance on the judgment in R.K.
Markan (supra) to contend that for passing a decree on admission, there has
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Signing Date:29.09.2021
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to be an unequivocal and unqualified admission in the written statement.
This proposition cannot be doubted but, each case would turn on its own
facts. The abovementioned judgment would not be of any avail as the
findings of the Court are based on a perusal of the written statement and the
material placed on record.
13. It is well settled in law that transfer of immovable property can only by
registered instrument and not by way of an oral agreement. The pleas raised
by Contesting Defendants are therefore clearly untenable and the Court sees
no reason to put the suit to trial. The Court does not find any fetter in
passing a preliminary decree determining the rights of the parties since the
relationship between the parties and their shares are evident from the
pleadings on record. Accordingly, a preliminary decree is passed declaring
that the Plaintiff and Defendant Nos. 1 to 6 shall each have a 1/7th share in
the suit properties.
14. The decree sheet be drawn up.
15. At this stage, counsel for the Contesting Defendants states that before
the Court proceeds to appoint a Local Commissioner for assessing whether
the properties can be partitioned by metes and bounds, the parties be
afforded an opportunity to explore a possibility of settlement through
mediation. Accordingly, the parties are referred to Delhi High Court
Mediation and Conciliation Centre.
16. List before the Delhi High Court Mediation and Conciliation Centre on
29th September, 2021. The authorised representatives of both the parties
shall appear before the learned Mediator though video-conferencing
mechanism on 29th September, 2021.
MANU/DE/4269/2013.
Signature Not Verified
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By:SAPNA SETHI
Signing Date:29.09.2021
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17. List before the Court on 2nd December, 2021 for further necessary orders
for appointment of a Local Commissioner.
SANJEEV NARULA, J
SEPTEMBER 22, 2021
v
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By:SAPNA SETHI
Signing Date:29.09.2021
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