Delhi High Court
Purshottam Dass Khattar Since ... vs Rukmani Rani & Ors on 29 August, 2022
$~ 3(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23rd August 2022
Pronounced on: 29th August 2022
+ CM(M) 818/2022 & CM APPL.35841/2022, CM
APPL.35842/2022
PURSHOTTAM DASS KHATTAR SINCE (DECEASED)
THROUGH LEGAL HEIRS.........................................Petitioner
Through: Mr. Naveen Kumar Chaudhary,
Adv.
Versus
RUKMANI RANI & ORS ....................................Respondents
Through: Mr. Rajat Aneja, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% 29.08.2022
1. Hari Chand and Kamla had six children; three daughters and
three sons. The daughters were Rukmani Rani, Satwant Kaur and
Krishna Gulati. The sons were Ganesh Dass Khattar, Daya Nand
Khattar and Purshottam Dass Khattar. Satwant Kaur, Krishna Gulati
and Purshottam Dass Khattar died on 21st September 2013, in
December 2015 and 11th October 2016 respectively. They, therefore,
had already expired by the time CS Civ DJ 818/2017 (Rukmani Rani
v. Ganesh Dass Khattar and Ors.) came to be instituted by Rukmani
Rani as the plaintiff against:
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:29.08.2022
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(i) Ganesh Dass Khattar as Defendant 1,
(ii) Daya Nand Khattar as Defendant 2,
(iii) Purshottam Dass Khattar as Defendant 3, represented by
his wife as Defendant 3(a) and his two sons and two daughters
as Defendants 3(b) to 3(e) (the petitioners herein),
(iv) Satwant Kaur, as Defendant 4, represented by her three
daughters as Defendants 4(a), 4(b) and 4(d) and her two sons as
Defendant 4(e) and 4(c) and
(v) Krishna Gulati as Defendant 5, through her two sons and
two daughters as Defendant 5(a) to 5(d).
Annexed, to this judgement as Annexure A, is a family tree
demonstrating this position.
2. Given the number of dramatis personae involved, this
judgement uses their original designations in Suit No. Civ DJ
818/2017 to refer to them.
3. Respondent 1 Rukmani Rani, as the plaintiff in CS Civ DJ
818/2017, sought partition of a property situated at 17/6A-1, Tilak
Nagar, New Delhi-110018 (the suit property), admeasuring 100 sq.
yds. According to the plaint, instituted by the plaintiff (Respondent 1
herein), the suit property was owned by Hari Chand, who died
intestate on 17th March 1967. Kamla, the wife of Hari Chand, also
expired intestate on 11th May 1983.
4. The three daughters and three sons of Hari Chand, thereby,
became entitled to 1/6th share each, in the estate of Hari Chand.
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:29.08.2022
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The plaintiff Rukmani Rani, as one of the surviving daughters of Hari
Chand, therefore, sought partition of the suit property amongst the
surviving legal heirs of Hari Chand, with, naturally,
(i) Defendant 1 Ganesh Dass Khattar being entitled to 1/6th,
(ii) Defendant 2 Daya Nand Khattar being entitled to 1/6th,
(iii) the wife of Purshottam Dass Khattar [Defendant 3(a)] and
his four children [Defendants 3(b) to (e)], being entitled
to 1/30th each,
(iv) the plaintiff being entitled to 1/6th,
(v) Defendants 4(a) to (e), the surviving legal heirs of
Defendant 4 Satwant Kaur being entitled to 1/30th each
and
(vi) Defendant 5(a) to (d), the four legal heirs of Defendant 5
Krishna Gulati being entitled to 1/24th each.
5. Defendant 2 Daya Nand Khattar and the petitioners, as the legal
heirs of Defendant 3 Purshottam Dass Khattar, resisted the suit
instituted by the plaintiff, whereas Defendant 1, Defendant 4(a) to (d)
and Defendant 5(a) to (d) supported the case of the plaintiff.
6. Defendant 2 Daya Nand Khattar, in his written statement filed
in response to the suit of the plaintiff, submitted that a family
settlement had been executed among the legal heirs of Hari Chand,
whereunder all legal heirs, except Defendants 2 and 3, relinquished
their rights in the suit property. In lieu of such relinquishment, it was
submitted that Defendants 4 and 5 had agreed to receive specified
sums of money. The plaintiff, however, did not claim any share in the
Digitally Signed
By:SUNIL SINGH NEGI
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suit property and accepted the Relinquishment Deed, whereunder
Defendants 2 and 3 alone were entitled to shares in the suit property.
Monetary payments, as per the Family Settlement, it was submitted,
had been made to Defendants 1, 4 and 5, who had also executed
necessary documents, relinquishing their rights in favour of
Defendants 2 and 3, though no formal registered relinquishment deed
had been executed. In these circumstances, Defendant 2 submitted
that the suit of the plaintiff was liable to be dismissed for want of any
cause of action, as the plaintiff had surrendered his rights in the suit
property, and rights in the suit property vested only in Defendants 2
and 3.
7. Defendants 3(a) to 3(e) (the petitioners herein), in the written
statement jointly filed by them, predictably supported the stand
canvassed by Defendant 2. They, too, submitted that the plaint was
devoid of any maintainable cause of action. Legally, the right of the
plaintiff to seek partition of the suit property was contested on the
ground that the plaintiff was not a daughter of a coparcener at the
commencement of the Hindu Succession Act, 1956, as amended in
2005. It was further submitted, by Defendants 3(a) to 3(e) that, on 17 th
March 1967, a notional partition of the suit property had taken place
among the legal heirs of Hari Chand, pursuant to which the shares of
the legal heirs crystallised, resulting in rights becoming vested in the
parties to the suit. In respect of a coparcener who expired prior to the
amendment of the Hindu Succession Act in 2005, Defendants 3(a) to
3(e) submitted that the right to succession crystallised on the date of
death. The amendment of the Hindu Succession Act on 9th September
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:29.08.2022
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2005, it was submitted, applied only to living daughters of a living
coparcener. These contentions are not of any particular relevance to
the controversy in issue in the present petition.
8. Defendants 3(a) to 3(e) also, however, supported the stand
canvassed by Defendant 2, echoing the submission that Defendant 1
had relinquished his rights in the suit property in favour of Defendants
2 and 3. Defendants 3(a) to 3(e), however, went a step further and
pleaded that such relinquishment took place vide Relinquishment
Deeds dated 27th July 1985 (in the case of Defendant 1) and 11 th April
1994 (in the case of Defendant 4). Similar relinquishment of rights in
favour of Defendants 2 and 3 had also, it was pleaded, been effected
by Defendant 5. Defendants 1, 4 and 5, it was further pleaded, had
been adequately compensated for thus relinquishing their rights in the
suit property in favour of Defendants 2 and 3, by money. The
plaintiff, however, it was averred, had not entered into any
relinquishment deed, having surrendered all her rights in the suit
property in good faith.
9. Thus, the plaintiff, as well as Defendants 1, 4 and 5 had agreed
not to claim any right, title or shares in the suit property. CS Civ DJ
818/2017, it was submitted, had been filed in express violation of the
said understanding.
10. Applications filed by Defendants 3(a) to 3(e) [the petitioners]
In the backdrop of these factual assertions and counter
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:29.08.2022
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assertions, the following applications, relevant to the present dispute,
came to be filed by Defendants 3(a) to (e):
(i) application dated 18th July 2018 under Order XI Rules 12
and 13 of the CPC, for a direction to Defendant 1 to produce,
under oath, two receipts dated 27th July 1985, allegedly
acknowledging receipt, by Defendant 1, of Rs 10,000/- in lieu
of his share in the suit property,
(ii) application dated 18th July 2018 under Order XI Rules 12
and 13 of the CPC, for a direction to Defendants 4(a) to (e) to
produce, under oath, receipt dated 11th April 1994, allegedly
acknowledging receipt, by Defendant 4, of Rs 50,000/- in lieu
of her share in the suit property,
(iii) application dated 29th August 2019, for examination, by
the Court, of Defendants 1 and 4(a) to (e) under Order X Rule 2
of the CPC and
(iv) application dated 25th October 2019, under Section 151 of
the CPC, to take, on record the documents filed with the
application, for the purpose of confronting Defendants 4(a) to
(e) with the said documents during their examination under
Order X Rule 2 of the CPC.
A reading of the latter two applications [at (iii) and (iv) above],
the relevant paragraphs of which would be extracted hereinafter,
clearly disclose that their intent was to obtain an admission or an
acknowledgement, from Defendants 1 and 4(a) to (e), of the factum of
relinquishment, by them, of their shares in the suit property; in the
case of Defendants 4(a) to (e), vide Relinquishment Deeds dated 27th
Digitally Signed
By:SUNIL SINGH NEGI
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July 1985 (allegedly executed by Defendant 1) and 11 th April 1994
(allegedly executed by Defendant 4). For this purpose, the application
under Section 151, CPC [at (iv) above] sought to confront Defendants
4(a) to (e) with documents purportedly containing the admitted
signatures of Defendant 4, so that, during the recording of the
statements of Defendants 4(a) to (e), the fact that the Relinquishment
Deed dated 11th April 1994 had indeed been executed by Defendant 4
could be proved.
Paras 4 to 8 of the application filed by Defendants 3(a) to (e)
under Order X Rule 2 of the CPC may, in this context, be reproduced
thus:
"4. The defence of Defendant Nos. 3 (a) to (e) of the
Written Statement is that in order to give effect to the Family
Settlement arrived at between the legal heirs of Late Shri Hari
Chand, it was amicably decided that the Defendant No.1 as
well as the Defendant Nos.4 and 5 shall be given a specified
sum towards their undivided share in the Suit property, and on
the receipt of which sum, they would execute the necessary
documents. Whereas, the third daughter of the Late Shri Hari
Chand, namely Shri Rukmani Rani (Plaintiff) voluntarily
agreed not to claim any share whatsoever in the Suit property
and accepted the said Family Settlement. Thus, as per the said
Family Settlement, only two sons of the deceased, i.e. the
Defendants Nos.2 and 3, were entitled to the said property in
entirety. Accordingly, as per the Family Settlement, the
monetary amounts were paid by the predecessor-in-interest of
Defendant Nos.3 (a) to (e) namely Shri Purshottam Dass
Khattar and Defendant No.2 to their brother Shri Ganesh
Dass Khattar (Defendant No.1) and the two sisters namely
Late Smt. Satwant Kaur [predecessor-in-interest of Defendant
Nos.4 (a) to 4 (e) and 4 (e) (i) to 4 (e) (iv)] and Late Smt.
Krishna Gulati [predecessor-in-interest of Defendant Nos.5
(a) to (d)]; and all the said three siblings executed necessary
documents comprising of the Receipt and Relinquishment
Deeds in favour of the Defendant No.2 and the predecessor-
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:29.08.2022
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in-interest of Defendant Nos.3 (a) to (e).
5. Upon the receipt of a sum of Rs.20,000/- (Rupees
Twenty Thousand only) from the predecessor-in interest of
Defendant Nos.3 (a) to (e) and Defendant No.2, in equal
proportion i.e. a sum of Rs.10,000/- (Rupees Ten Thousand
only) each, the Defendant No.1 executed a Relinquishment
Deed dated July 27, 1985 in favour of the Defendant No.2 and
the predecessor-in-interest of Defendant Nos.3 (a) to (e),
wherein, Defendant No.1 duly relinquished his 1/6 (one sixth)
share in the Suit property in favour of the Defendant Nos.2
and 3. The factum of having received the said sum of money
from the Defendant No.2 and predecessor-in-interest of
Defendant Nos.3 (a) to (e) was duly recorded in two Receipts
dated both July 27, 1985 executed by the Defendant No.1 in
favour of the Defendant No.2 and predecessor-in-interest of
Defendant Nos.3 (a) to (e).
6. The predecessor-in-interest of Defendant Nos.4 (a) to 4
(e) and 4 (e) (i) to (iv) namely Late Smt. Satwant Kaur in
order to give effect to the Family Settlement also executed a
Relinquishment Deed dated April 11, 1994, Receipt and
Affidavit of the same date in favour of the predecessor-in-
interest of Defendant Nos.3 (a) to (e) to the said effect. it is
further most imperative to submit that the Defendant Nos.2
and 3 in good faith did not insist for execution of any
document from the Plaintiff, though, she had also been
adequately compensated in monetary terms by the Defendant
Nos.2 and 3.
7. In such scenario, the present application has been
necessitated for examination of the Defendant No.1 and the
Legal heirs of Defendant No.4 who are already impleaded as
the Defendants No. 4 (a) to 4 (e) and 4 (e) (i) to (iv) in the
present case; by this Hon'ble Court under the provisions of
Order X Rule 2 CPC, as the Defendant No.1 and the
predecessor-in-interest of the Defendants No. 4 (a) to 4 (e)
and 4 (e) (i) to (iv) i.e. the Defendant No.4 had executed the
aforesaid documents by virtue of which the Defendant Nos.2
and 3 became the sole and absolute owner of the Suit
property, however, after more than 3 (three) decades,
dishonesty creeped in their minds and thus, they are now
maintaining conspicuous silence on the execution of the said
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:29.08.2022
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documents.
8. It is imperative for this Hon'ble Court for the purpose
of adjudicating the controversy involved in the above matter
to orally examine the Defendant No.1 and the Defendants No.
4 (a) to 4 (e) and 4 (e) (i) to (iv), about the execution of the
aforesaid title documents by the said Defendants No.1 and the
predecessor-in-interest of the Defendants No. 4 (a) to 4 (e)
and 4 (e) (i) to (iv) i.e. Defendant No.4."
(Emphasis supplied)
A reading of the application filed by Defendants 3(a) to (e) [at
(iv) above] makes it clear that the documents that Defendants 3(a) to
3(e) sought to place on the record in the said application were only
intended to confront Defendants 4(a) to 4(e) during the recording of
their statement under Order X Rule 2 of the CPC. On this aspect,
indeed, there was no dispute even during arguments at the bar.
11. Replies filed to petitioners' applications
Replies to the applications for discovery of original documents,
filed by Defendants 3 (a) to (e) under Order XI Rules 12 and 13 of the
CPC, were filed by Defendant 1 as well as Defendants 4(a) to 4(e).
However, to the applications under Order X Rule 2 and under Section
151 of the CPC, replies were filed only by Defendant 4 (a) to (e).
Replies filed by Defendant 1 to the application under Order XI
Rules 12 and 13 filed by Defendants 3(a) to 3(e) - Qua the assertion,
of Defendants 3 (a) to (e), that Defendant 1 had, in exchange for
monetary consideration, relinquished his rights in respect of the suit
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:29.08.2022
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property in favour of Defendants 2 and 3. Defendant 1, in his reply to
the application of Defendants 3 (a) to (e), under Order XI Rules 12
and 13 CPC, averred thus:
"5. The contents of para '5 are wrong and denied. There
was never ever any mutual decision/agreement between the
legal heirs of late Shri Hari Chand qua the suit property.
When there was no mutual decision/agreement/settlement
between the legal heirs of Late Shri Hari Chand, then the
question of receipt of money by the defendant no.1 from the
defendants no. 2 and 3 and issuance of any receipt to that
effect, does not arise.
6. In reply to Para 6 the defendant no. 1 denies that he has
executed any relinquishment deed in favour of defendants no.
2 and 3, qua the suit property at any point of time. It is denied
that the defendant no. 1 has ever executed any receipt on 27th
July, 1985, acknowledging the receipt of Rs. 10,000/- each
from defendant no, 2 and 3(the predecessor in interest) in the
suit property. When there was no mutual
decision/agreement/settlement between the legal heirs of Late
Shri Hari Chand, then the question of receipt of money by the
defendant no.1 from the defendants no. 2 and 3 and issuance
of any receipt to that effect, does not arise. The defendant no.
1 was always demanding his 1/6th undivided share in the suit
property after the demise of his father Shri Hari Chand and
mother Smt. Kamala Devi Moreover, even after the demise of
the Defendant No. 3, the defendant no. 1 was demanding his
share in the suit property.
7-12 In reply to paras 7, 8, 9, 10, 11 and 12 it is submitted
that the defendant no. 1 never executed any relinquishment
deed dated 27 July, 1985 in favour of Defendant no. 2 and
predecessor in interest defendant no.3. When there was no
mutual decision/agreement/settlement between the legal heirs
of Late Shri Hari Chand, then the question of receipt of
money by the defendant no.1 from the defendants no. 2 and 3
and issuance of any receipt to that effect, does not arise. Since
the documents referred to by the applicants in their
application under reply were never ever executed by the
defendant no.1, therefore the question of, defendant no. 1
possessing the said document does not arise. Further, the non
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:29.08.2022
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existing documents cannot have any relevancy in the present
suit. Nor can be termed as indisputable. The documents,
alleged to be executed by the defendant no.1 and alleged to be
in his possession is the figment of imagination of the
applicants i.e. Defendants No.3 (a) to (e). The present
application has been moved by the applicants with malafide
intentions."
Replies filed by Defendant 4(a) to 4(e) - Defendants 4(a) to
4(e), qua the assertions of the Defendants 3(a) to 3(e) that Defendants
1, 4 and 5 and the plaintiff relinquished their rights in respect of the
suit property, in favour of Defendants 2 and 3 in return for monetary
consideration, submitted thus.
Reply to application under Order XI Rules 12 and 13
"2. That the plea of the alleged execution of the
Relinquishment Deed, Receipt and Affidavit all dated
11.04.1994 purportedly executed by the Deceased Smt.
Satwant Kaur and also allegedly witnessed by the Defendant
No.4(c) could not have been rebutted and refuted by the
Defendant Nos.4 (a) to 4(e) (i-iv) since, there had been no
occasion and opportunity for the Defendant Nos.4(a) to 4(e)(i-
iv) to file any pleading against the Written Statement filed on
behalf of the Defendant Nos. 3(a) to 3(e). It is submitted that
the alleged Relinquishment Deed, Receipt and Affidavit all
dated 11.04.1994 are forged and fabricated documents, since
signatures of Late Smt. Satwant Kaur, as the alleged Executor
and also the signatures of the Defendant No. 4(c) as the
alleged witness, have been forged by the Defendant Nos.3(a)
to 3(e) and/or by their Predecessor in interest in connivance
and collusion with the Defendant No.2, with respect to which |
the Defendant Nos.4(a) to 4(e)(i-iv) reserve their rights to
initiate appropriate criminal actions against them, in
accordance with law.
3. That the Application under Reply is liable to be
dismissed, since the same has been filed on behalf of the
Digitally Signed
By:SUNIL SINGH NEGI
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Defendant Nos.3(a) to 3(e) to create a camouflage with
respect to their alleged defense. It is submitted that the relief
of seeking discovery and production of the alleged
Relinquishment Deed and Receipt both dated 11.04.1994, by
the Defendant Nos.3(a) to 3(e) from the Defendant Nos.4(a)
to 4(e)(i-iv), has been made in the Application under Reply so
as to show to this Hon'ble Court that at some point of time the
alleged documents in the nature of Relinquishment Deed and
Receipt both dated 11.04.1994 were executed by Smt.
Satwant Kaur, whereby Smt. Satwant Kaur allegedly
relinquished her 1/6 share in the Said Property in favour of the
Predecessor-in-Interest of the Defendant Nos.3(a) to 3(e).
Reply on merits
*****
3. That the contents of Para No.3 of the Application under
Reply are wrong, incorrect and denied. It is submitted that the
contents of Para No.3([V) of the Preliminary Objections of
the Written Statement filed on behalf of the Defendant Nos.
3(a) to 3(e) are baseless and without an iota of evidence. It is
submitted that the plea of the alleged execution of the
Relinquishment Deed, Receipt and Affidavit all dated
11.04.1994 purportedly executed by the Deceased Smt.
Satwant Kaur and also alleged witnessed by the Defendant
No.4 (c) could not have been rebutted and refuted by the
Defendant Nos.4(a} to 4(e) (i-iv) since, there had been no
occasion and opportunity for the Defendant Nos.4(a) to 4(e)
(i-iv) to file any pleading against the Written Statement filed
on behalf of the Defendant Nos. 3(a) to 3(e). It is submitted
that the alleged Relinquishment Deed, Receipt and Affidavit
all dated 11.04.1994 are forged and fabricated documents,
since signatures of Late Smt. Satwant Kaur, as the alleged
Executor and also the signatures of the Defendant No.4(c) as
the alleged witness, have been forged by the Defendant Nos.3
(a) to 3(e) and/or by their Predecessor-in-Interest in
connivance and collusion with the Defendant No.2, with
respect to which the Defendant Nos.4(a) to 4(e)(i-iv) reserve
their rights to initiate appropriate criminal actions against
them, in accordance with law.
4. That the contents of Para No.4 of the Application under
Reply are wrong, incorrect and denied. It is denied that the
Digitally Signed
By:SUNIL SINGH NEGI
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Defendant Nos. 2 & 3 are having the exclusive possession of
the Said Property. It is submitted that the Defendant Nos.4(a}
to 4(e)(i-iv) are in constructive possession of the Said
Property, deriving their right/title/interest in the Said Property,
through their Mother namely Late Smt. Satwant Kaur.
5. That the contents of Para No.5 of the Application under
Reply are wrong, incorrect and denied. It is denied that the
after the death of Smt. Kamla Devi, W/o. Late Sh. Hari Chand
Khattar on 11.05.1983, it was alleged mutually decided
amongst all the Legal Heirs of Late Sh. Hari Chand Khattar
that the Said Property will fall to the share of the Defendant
Nos. 2 & 3 and in lieu thereof, the Defendant Nos.1 to 3 will
allegedly get assess the Market Value of the Said Property. It
is vehemently denied that Smt, Satwant Kaur ever approached
Late Sh. Purushottam Dass Khattar and allegedly asked him
to pay money to her which shall be equivalent to her share in
the Ground Floor of the Said Property. It is further
vehemently denied that with the mutual consent of Late Sh.
Purushottam Dass Khattar and Smt. Satwant Kaur, it was ever
decided that Late Sh. Purushottam Dass Khattar will pay a
sum of Rs.50,000/- (Rupees Fifty Thousand only) to Smt.
Satwant Kaur. It is denied that on 11.04.1994, Late Sh.
Purushottam Dass Khattar paid any sum much less the alleged
sum of Rs.50,000/- (Rupees Fifty Thousand only) to Smt.
Satwant Kaur in a lieu of her share in the Ground Floor of the
Said Property.
6. That the contents of Para No.6 of the Application under
Reply are wrong, incorrect and denied. It is denied that 4 Smt.
Satwant Kaur ever acknowledged the alleged payment of
Rs.50,000/- (Rupees Fifty Thousand only) by Late Sh.
Purushottam Dass Khattar, in lieu of her share on the Ground
Floor of the Said Property. The alleged Receipt dated
11.04.1994 is a forged and fabricated document. It is denied
that the Legal Heirs of Smt. Satwant Kaur want to take any
undue advantage under the garb of the present Suit. It is
submitted that the Defendant Nos. 4{a) to 4(e}(i-iv) are
within their rights to claim their respective shares in the Said
Property, being devolved upon them through their Mother
namely, Smt. Satwant Kaur. Rather, it is the Defendant Nos.2
& 3 who have indulged into illegal activities by forging
certain documents in the nature of alleged Relinquishment
Digitally Signed
By:SUNIL SINGH NEGI
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Deed, Receipt and Affidavit all dated 11.04.1994, with the
malafide intention to prejudice the valuable rights of the
Defendant Nos.4{a)} to 4(e}(i-iv).
7. That the contents of Para No.7 of the Application under
Reply are wrong, incorrect and denied. It is submitted that
there could have been any opportunity for the Defendant
Nos.4({a} to 4(e)}(i-iv) to admit or deny the alleged
execution of the Relinquishment Deed dated 11.04.1994 by
Smt. Satwant Kaur and also Receipt dated 11.04.1994, since
Smt. Satwant Kaur never executed any such documents in
favour of Late Sh. Purushottam Dass Khattar nor ever
relinquishment her 1/6 undivided share in the Said Property in
favour of Late Sh. Purushottam Dass Khattar.
8. That the contents of Para No.8 of the Application under
Reply are wrong, incorrect and denied. It is vehemently
denied that the Defendant Nos.4{a} to 4{e}(i-iv) are in
possession of the alleged Relinquishment Deed and Receipt
both dated 11.04.1994 , purportedly executed by Smt. Satwant
Kaur in favour of the predecessor-in-interest of the Defendant
No.3{a) to 3{e}). It is further vehemently denied that Smt.
Satwant Kaur ever acknowledged the receipt of a sum of
Rs.50,000/- (Rupees Fifty Thousand only) from the
Predecessor-in-interest of the Defendant No.3(a) to 3(e) and it
is further vehemently denied that Smt. Satwant Kaur ever
relinquished her share in the Said Property in his favour. The
contents of Preliminary Objections and Submissions may
kindly be read as part and parcel of the present Reply, as the
same are not being repeated herein for the sake of brevity.
9. That the contents of Para No.9 of the Application under
Reply are wrong, incorrect and denied. It is vehemently
denied that the alleged documents being Relinquishment Deed
and Receipt both dated 11.04.1994 purportedly executed by
Smt. Satwant Kaur in favour of the Predecessor-in-Interest of
the Defendant No.3(a) to 3(e) are relevant for the proper
adjudication of the present case. It is submitted that the
alleged documents being Relinquishment Deed and Receipt
both dated 11.04.1994 have no bearing in the eyes of law
since they are not admissible in evidence. Prima Facie, the
said documents outrightly flout the provisions of The Transfer
of Property Act, 1882 and also Indian Stamps Duty Act and
Digitally Signed
By:SUNIL SINGH NEGI
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are liable to be impounded by this Hon'ble Court.
10. That the contents of Para No.10 of the Application
under Reply are wrong, & incorrect and denied. It is
vehemently denied that the said documents are relevant.
Further, seeking discovery of production of the said alleged
documents from the Defendant Nos.4{a) to 4(e)(i-iv) is not
tenable, since no such document was ever executed by Smt.
Satwant Kaur at any point of time and thus, the question of
possessing the said documents does not arise at all."
Reply to application under Order X Rule 2
"3. That the Defendant Nos.4(a) to 4(e)(i-iv) have already
filed their joint Written Statement and subsequent thereto,
they have outrightly denied the execution of said alleged
Relinquishment Deed, Affidavit and Receipt, all dated
11.04.1994 by Late Smt. Satwant Kaur and thus, there had
been no plausible reason for the Defendant No.3{a) to 3{e) to
file the Application under Reply, thereby seeking the relief of
oral examination of Defendant Nos.4(a) to 4(e}(i-iv), with
respect to the said alleged documents. Under such
circumstances, the present Application is liable to be
dismissed, on this short score alone.
4. That it is submitted that the alleged Relinquishment
Deed, Receipt and Affidavit all dated 11.04.1994 are forged
and fabricated documents, since signatures of Late Smt.
Satwant Kaur, as the alleged Executor and also the signatures
of the Defendant No.4{c), as the alleged Witness, have been
forged by the Defendant Nos.3(a) to 3{e) and/or by their
Predecessor-in-Interest in connivance and collusion with the
Defendant No.2, with respect to which the Defendant
Nos.4(a}) to 4(e}(i-iv) reserve their rights to initiate
appropriate criminal actions against them, in accordance with
law. Infact, there had been no Family Settlement at any point
of time, as propounded by the Defendant No.2 & the
Defendant Nos. 3{a} to 3{e), with respect to the Suit
Property.
5. That the Application under Reply is liable to be
dismissed on the premise that the Defendant Nos.3(a) to 3(e)
in their Written Statement have made contrary pleas which
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makes their defense destructive. It is submitted that as on the
one hand, the Defendant Nos.3{a) to 3{e) have alleged that
Smt. Satwant Kaur relinquished her 1/6 Share in the Suit
Property in favour of their Predecessor-in- Interest by
accepting the alleged sum of Rs.50,000/- (Rupees Fifty
Thousand only) upon the alleged execution of Relinquishment
Deed and Receipt both dated 11.04.1994 and on the other
hand, the Defendant Nos.3{a) to 3{e) have taken the plea of
non-entitlement of Smt. Satwant Kaur with respect to any
right/title/interest in the Suit Property, as per the amendments
made in The Hindu Succession Act, in the year 2005.
Reply on merits
*****
3. That the contents of Para No.3 of the Application under
Reply are wrong, incorrect and denied. It is submitted that the
contents of Para No.3{iii) & {iv) of the Preliminary
Objections of the Written Statement, filed on behalf of the
Defendant Nos. 3(a) to 3(e), are baseless and without an iota
of evidence. It is submitted that the alleged Relinquishment
Deed, Receipt and Affidavit all dated 11.04.1994 are forged
and fabricated documents, since signatures of Late Smt.
Satwant Kaur, as the alleged Executor and also the signatures
of the Defendant No.4(c}, as the alleged Witness, have been
forged by the Defendant Nos.3{a) to 3(e) and/or by their
Predecessor-in- Interest in connivance and collusion with the
Defendant No.2, with respect to which the Defendant
Nos.4(a) to 4{e)(i-iv) reserve their rights to initiate
appropriate criminal actions against them, in accordance with
law.
4. That the contents of Para No.4 of the Application under
Reply are wrong, incorrect and denied. It is denied that there
had been any Family Settlement between the Legal Heirs of
Late Sh. Hari Chand and it is vehemently denied that it was
ever amicably decided that the Defendant Nos.1, 4 & 5 shall
be given the alleged specified sum towards their undivided
share in the Suit Property and on the receipt of the alleged
sum, they would allegedly execute necessary documents. It is
vehemently denied that as per the alleged Family Settlement,
any monetary amount was given to Late Smt. Satwant Kaur
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(Predecessor-in-interest of the Defendant Nos.4{a) to 4(e)(i-
iv)) and it is further vehemently denied that Late Smt. Satwant
Kaur ever executed any document, much less the alleged
Receipt, Affidavit and Relinquishment Deed all dated
11.04.1994, in favour of Predecessor-in-interest of Defendant
Nos. 3{a} to 3{e).
*****
6. That the contents of Para No.6 of the Application under
Reply are wrong, incorrect and denied. It is denied that there
had been any Family Settlement between the legal Heirs of
Late Sh. Hari Chand. It is further denied that the Predecessor-
in-interest of the Defendant Nos.4(a) to 4(e)(i-iv) namely Late
Smt. Satwant Kaur, in order to give effect to the alleged
Family Settlement, ever executed the alleged Relinquishment
Deed, Receipt and Affidavit, all dated 11.04.1994 in favour of
the Predecessor-in-interest of the Defendant Nos. 3{a) to 3{e).
It is submitted that Late Smt. Satwant Kaur was never given
any monetary compensation, as alleged herein: against her
share in the Suit Property or otherwise also, and therefore, the
question of executing the alleged document(s) in favour of
Defendant Nos. 2 & 3, does not arise at all. It is submitted that
since Smt. Satwant Kaur had been duly entitled for her 1/6
undivided Share in the Suit Property, therefore, she had been
consistently demanding her share in the Suit Property, through
Partition.
7. That the contents of Para No.7 of the Application under
Reply are wrong, incorrect and denied. It is submitted that
there is no occasion or scenario for the Defendant Nos, 3{a) to
3{e} to seek the relief of examination of the Legal Heirs of
Late Smt. Satwant Kaur in the present case, since it had been
the consistent case of the Defendant Nos.4(a) to 4(e)(i-iv) that
their Mother had 1/6 undivided Share in the Suit Property.
Further, in most of the pleadings made by the Defendant
Nos.4{a) to 4(e) (i-iv), it had been their consistent case that
the alleged Relinquishment Deed, Receipt and Affidavit all
dated 11.04.1994 are forged and fabricated documents, since
signatures of Late Smt. Satwant Kaur, as the alleged Executor
and also the signatures of the Defendant No.4(c}, as the
alleged Witness, have been forged by the Defendant
Nos.3{a}) to 3{e) and/or by their Predecessor-in- Interest in
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connivance and collusion with the Defendant No.2. Even
otherwise, the Defendant Nos. 2 & 3 never became the sole
and absolute owner of the Suit Property. It is denied that after
more than 3 decades, dishonesty creeped in the minds of the
Defendant Nos.4(a) to 4(e)}(i-iv) and it is further denied that
they are now maintaining conspicuous silence on the
execution of the said alleged documents.
*****
9. That the contents of Para No.9 of the Application under
Reply are wrong, incorrect and denied. It is denied that this
Hon'ble Court's indulgence is at all required for exercising
powers under Order X Rule 2 of CPC for examining the
Defendant Nos.4(a) to 4(e)(i-iv) regarding the execution of
the alleged documents, since the Defendant Nos.4(a) to 4(e)
(i-iv) had been taking their consistent stand and rather putting
forth their case that the alleged documents all dated
11.04.1994 sought to be relied / propounded upon by the
Defendant Nos. 2 & 3 are forged and fabricated, since
signatures of Late Smt. Satwant Kaur, as the alleged Executor
and also the signatures of the Defendant No.4{c), as the
alleged Witness, have been forged by the Defendant Nos.3{a)
to 3(e) and/or by their Predecessor-in-Interest in connivance
and collusion with the Defendant No.2. Even otherwise, the
alleged documents being Relinquishment Deed, Affidavit and
Receipt all both dated 11.04.1994 have no bearing in the eyes
of law, since, they are not admissible in evidence.
*****
11. That the contents of Para No.11 of the Application
under Reply are wrong, incorrect and denied. It is vehemently
denied that no prejudice shall be caused to the Defendant
Nos.4(a) to 4(e}(i-iv), if the Application under Reply is
allowed, since the Defendant Nos.4(a} to 4(e)(i-iv) had been
taking consistent stand by absolutely denying the execution of
the alleged documents all dated 11.04.1994."
Reply to application under Section 151
"3. That the Defendant Nos.4(a) to 4(e){i-iv} have already
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filed their joint Written Statement and subsequent thereto,
wherein they have pleaded that they are jointly entitle to a
share in the Suit Property and they have outrightly denied the
execution of said alleged Relinquishment Deed, Affidavit and
Receipt, all dated 11.04.1994 by Late Smt. Satwant Kaur and
thus, there had been no plausible reason for the Defendant
No.3({a) to 3{e)} to file the Application under Reply, thereby
seeking the relief of placing on record the proposed
documents and to put the same to the Defendant Nos.4{a} to
4f(e}(i-iv) for the purposes of their examination under Order
X Rule 2 CPC. Under such circumstances, the present
Application is Liable to be dismissed, on this short score
alone. It is submitted that the Defendant Nos.4(a) to 4(e){i-iv}
have already filed a detailed Reply to the said Application
under Order X Rule 2 CPC and the contents of the said Reply
may be read as part and parcel of the present Reply, since the
contents thereof are not repeated herein for the sake of
brevity.
4. That it is submitted that the alleged Relinquishment
Deed, Receipt and Affidavit all dated 11.04.1994 are forged
and fabricated documents, since signatures of Late Smt.
Satwant Kaur, as the alleged Executor and also the signatures
of the Defendant No.4{(c), as the alleged Witness, have been
forged by the Defendant Nos.3{a) to 3(e) and/or by their
Predecessor-in-Interest in connivance and collusion with the
Defendant No.2, with respect to which the Defendant
Nos.4{a} to 4({e}(i-iv) reserve their rights to initiate
appropriate criminal actions against them, in accordance with
law. Infact, there had been no Family Settlement at any point
of time, as propounded by the Defendant No.2 & the
Defendant Nos.3(a) to 3(e), with respect to the Suit Property.
Reply on merits
*****
4. That the contents of Para No.4 of the Application under
Reply are wrong, incorrect and denied. It is denied that there
had been any Family Settlement between the Legal Heirs of
Late Sh. Hari Chand and it is vehemently denied that it was
ever amicably decided that the Defendant Nos.1, 4 & 5 shall
be given the alleged specified sum towards their undivided
share in the Suit Property and on the receipt of the alleged
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sum, they would allegedly execute necessary documents. It is
denied that only the Defendant Nos.2 & 3 were entitled to the
Suit Property, as per the alleged Family Settlement. It is
vehemently denied that as per the alleged Family Settlement,
any monetary amount was given to Late Smt. Satwant Kaur
(Predecessor-in-interest of the Defendant Nos.4(a) to 4(e) (i-
iv) and it is further vehemently denied that Late Smt. Satwant
Kaur ever executed any document, much less the alleged
Receipt, Affidavit and Relinquishment Deed all dated
11.04.1994, in favour of Predecessor-in-interest of the
Defendant Nos. 3(a) to 3(e).
5. That the contents of Para No.5 of the Application under
Reply are wrong, incorrect and denied. It is denied that there
had been any Family Settlement between the Legal Heirs of
Late Sh. Hari Chand. It is further denied that the Predecessor-
in-interest of the Defendant Nos.4(a) to 4(e)(i-iv) namely Late
Smt. Satwant Kaur, in order to give effect to the alleged
Family Settlement, ever executed the alleged Relinquishment
Deed, Receipt and Affidavit, all dated 11.04,1994 in favour of
the Predecessor-in-interest of the Defendant Nos. 3{a) to
3{e}. It is submitted that Late Smt. Satwant Kaur was never
given any monetary compensation/benefit, as alleged herein,
against her share in the Suit Property or otherwise also, and
therefore, the question of executing the alleged document(s)
in favour of Defendant Nos. 2 & 3, does not arise at all. It is
submitted that since Smt. Satwant Kaur had been duly entitled
for her 1/6 undivided Share in the Suit Property, therefore, she
had been consistently demanding her share in the Suit
Property, through Partition.
*****
10. That the contents of Para No.10 of the Application
under Reply are wrong incorrect and denied. It is denied that
the said documents are vital as the Defendant Nos.4(a) to
4(e)(i-iv) have allegedly made a vague denied with regard to
the signatures of Late Smt. Satwant Kaur on the documents
relied and filed by the Defendant Nos. 3{a) to 3(e) along with
the written statement of the defendant Nos.4(a) to 4(e)(i-iv). It
is denied that the Defendant Nos. 3{a) to 3(e) had run from
pillar to post and have finally have been able to lay their
hands on the documents being filed alongwith the Application
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under Reply. It is submitted that the documents, sought to be
placed on record by the Defendant Nos. 3{a) to 3(e), are not
relevant for the purposes of adjudication of the above
captioned Suit and the same are not pertaining to the Suit
Property."
A reading of the reply filed by Defendant 1 in response to the
application of Defendants 3(a) to (e) under Order XI Rules 12 and 13
and by Defendants 4(a) to (e) to the applications of Defendants 3(a) to
(e) under Order XI Rules 12 and 13, Order X Rule 2 and Section 151
of the CPC, leave no manner of doubt that the execution of the alleged
Relinquishment Deeds dated 27th July 1985 and 11th April 1994 have
been categorically denied both by Defendant 1 as well as by
Defendant 4(a) to (e). They have termed the said documents as forged
and fabricated. There is, therefore, no iota of prevarication or
ambiguity in the stand of Defendant 1 and Defendants 4(a) to (e), qua
the said Relinquishment Deeds dated 27th July 1985 and 11th April
1994.
The impugned Order
12. The aforesaid applications of Defendants 3(a) to 3(e) under
Order X Rule 2 and Section 151 of the CPC stand rejected by the
learned ADJ, vide the impugned order dated 16th July 2022. In so
rejecting, the learned ADJ has observed and held as under:
"21. Per contra, the application is strongly opposed on
behalf of defendants no. 1, defendant no. 4 (a) to 4(e) and
defendant no. 5 (a) and 5 (d) (answering defendants). It is
stated that the application under consideration is nothing but a
delay tactic. It is specifically pleaded in the replies to the
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applications under consideration that the alleged
relinquishment deeds and receipts are forged and fabricated
documents. It is also submitted that there is a specific denial
of these documents by answering defendants in their reply to
the earlier application of defendant nos. 2 and 3 (a) to 3 (e)
under Order 11 Rule 12 and 13 CPC and these denials are also
specifically recorded in order dated 15.01.2019 passed by Ld.
Predecessor of this court. It is stated that although, in a suit
for partition, every party should be considered as a plaintiff
and defendant no. 1, 4{a) to (e) and 5 (a) to 5 (d) should have
been given an opportunity to file their reply to the written
statement filed by defendant nos, 2 and 3 (a) to 3 (e).
However since, no such opportunity was given, the alleged
relinquishment deeds could not be challenged by the
answering defendants in their pleadings. However, defendants
no. 1, 4(a) to 4{e) and 5{a) to 5 (e) have specifically alleged
the relinquishment deeds to be forged and fabricated not only
in their reply to the earlier application under Order 11 Rule 12
and 13 CPC but also in their reply to the applications under
consideration. The applicants cannot be permitted to use order
X Rule 2 CPC for collection of evidence. The scope of Order
X CPC is limited to the extent of elucidating the matters in
controversy in the suit and not for the purpose of collection of
evidence. Since issues have already been framed in the matter
under Order XIV CPC, the matter in controversy have already
been highlighted by the court order. The matter has proceeded
further for recording of evidence under Order XVIII CPC.
Accordingly, there is no reason for running back to the clock
and resorting to the provisions as contained under order X
Rule 2 CPC. Reliance has been placed upon the decisions of
our own Hon' ble High Court of Delhi in Pritpal Singh Kohli
Vs. Surjit Kaur1 in support of the arguments made by
answering defendants.
22. I have heard the submissions made and carefully
perused the record as well as written submissions filed by
defendants no. 3 (a) to 3 (e). I find no reason for allowing the
applications under Order X Rule 2 CPC as the documents
which are sought to be put the answering defendant under
Order X Rule 2 CPC have already been categorically denied
by them in their pleadings in the form of replies to various
2001 (91) DLT 476
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applications. Once, the relinquishment deeds and affidavits
have been denied by them, there is no possibility of counter
statement even during examination under Order X Rule 2
CPC and there is no provision of their cross examination by
the applicants during their examination under Order X (2)
CPC. The provision of under Order X Rule 2 CPC is not made
for reconfirming the admissions or denial of the parties which
are already on record. The sole purpose of Order X Rule 2
CPC is to arrive at the main points of controversy between the
parties. However, in the present matter, the controversy
regarding the genuineness or otherwise of the relinquishment
deeds and receipts is already on record. Now, it is the
responsibility of the parties relying upon the alleged
relinquishment deeds and receipts to prove the same as per
law. Even otherwise, evidence of all the parties is yet to be
recorded and the opposite parties will be given proper
opportunity for cross examining the witnesses regarding their
case as well as these documents. In these circumstances, no
merit is found in the application under Order X Rule 2 CPC
filed by the applicants. Both the applications under Order X
Rule 2 CPC are, accordingly, dismissed."
13. Aggrieved by the aforesaid order dated 16th July 2022 passed by
the learned ADJ, Defendants 3(a) to (e) have approached this Court
under Article 227 of the Constitution of India.
Rival submissions, analysis and findings.
14. I have heard Mr. Naveen Kumar Chaudhary, learned Counsel
for the petitioners and Mr. Rajat Aneja, learned Counsel for
Respondent 3 at considerable length. Mr. Aneja has supported the
submissions of Mr. Chaudhary.
15. Between them, Mr. Chaudhary and Mr. Aneja seek to submit
that the learned ADJ was not justified, either in facts or in law, in
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rejecting the application of Defendants 3(a) to (e) to have the
statement of Defendant 1 and Defendants 4(a) to 4(e) recorded under
Order X Rule 2 of the CPC. They submit that, as co-defendants, no
replication was forthcoming, from Defendants 1 or 4 to the written
statements filed by Defendants 2 and 3(a) to (e), wherein it had been
pleaded, relying on reliable evidence, that Defendants 1 and 4 had, by
written Relinquishment Deeds, relinquished their rights in the suit
property in favour of Defendants 2 and 3 in exchange for monetary
compensation. Additionally, as Defendants 1 and 4 are supporting the
plaintiff, they would not come into the witness box, and there would
be no occasion for Defendants 2 and 3 to cross examine them on the
aspect of validity of the Relinquishment Deeds dated 27 th July 1985
and 11th April 1994.
16. The most efficacious way of ascertaining the stand of
Defendants 1 and 4(a) to 4(e), in respect of the Relinquishment Deeds
dated 27th July 1985 and 11th April 1994 on which Defendants 2 and
3(a) to 3(e) were placing reliance would, therefore, be by way of
recording of the statement of Defendants 1 and 4(a) to 4(e) under
Order X Rule 2 CPC. This, submits learned Counsel, would also
considerably facilitate expeditious trial of the proceedings and as well
as a swift resolution to the dispute.
17. Mr. Chaudhary has, in support of the aforesaid submission,
relied on the judgment of the Supreme Court in Kapil Corepacks Pvt.
Ltd. v. Harbans Lal2. Mr. Chaudhary has specifically drawn my
(2010) 8 SCC 452
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attention to paras 15, 18 and 19 of the report in Kapil Corepacks2,
which read thus:
"15. The object of oral examination under Rule 2 of Order
10 is to ascertain the matters in controversy in suit, and not to
record evidence or to secure admissions. The statement made
by a party in an examination under Rule 2 is not under oath,
and is not intended to be a substitute for a regular examination
under oath under Order 18 of the Code. It is intended to
elucidate what is obscure and vague in the pleadings. In other
words, while the purpose of an examination under Rule 1 is to
clarify the stand of a party in regard to the allegations made
against him in the pleadings of the other party, the purpose of
the oral examination under Rule 2 is mainly to elucidate the
allegations even in his own pleadings, or any documents filed
with the pleadings. The power under Order 10 Rule 2 of the
Code, cannot be converted into a process of selective cross-
examination by the court, before the party has an opportunity
to put forth his case at the trial.
*****
18. The object of Order 10 Rule 2 is not to elicit
admissions. Nor does it provide for or contemplate
admissions. The admissions are usually contemplated
(i) in the pleadings (express or constructive under
Order 8 Rule 5 of the Code);
(ii) during examination of a party by the court under
Order 10 Rule 1 of the Code;
(iii) in answers to interrogatories under Order 11
Rule 8 of the Code;
(iv) in response to notice to admit facts under Order
12 Rule 4 of the Code;
(v) in any evidence or in an affidavit, on oath; and
(vi) when any party voluntarily comes forward
during the pendency of a suit or proceedings to make
an admission.
19. The power of court to call upon a party to admit any
document and record whether the party admits or refuses or
neglects to admit such document is traceable to Order 12 Rule
3A rather than Order 10 Rule 2 of the Code. Nothing however
comes in the way of the court combining the power under
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Order 12 Rule 3A with its power under Order 10 Rule 2 of the
Code and calling upon a party to admit any document when a
Party is being examined under Order 10 Rule 2. But the court
can only call upon a party to admit any document and cannot
cross-examine a party with reference to a document."
18. Mr. Aneja has further placed reliance on para 6 of the judgment
of a learned Single Judge of High Court of Rajasthan in Bhanwarlal
Kavad v. Shyamsunder3 which reads as under:
"6. The provisions of Or. 10, Rules 1 and 2, C.P.C., have a
whole purpose behind them. The importance of oral
examination of party or his pleader or the companion of party
at the time of framing of the issues, has to be emphasised for
the trial courts. The provisions contained in Cr. 10, Rules 1
and 2, C.P.C., are intended, to focus attention of the court as
well as of the parties to the real controversies between them
by examination conducted under these rules. The real
controversies between the parties on such examination would
come to surface and the parties would be in a position to
know as to what case they are required to prove or meet. It is
common experience that the pleadings generally remain
obscure and vague. In order to remove that obscurity and
vagueness and equivocal character or nature of pleadings,
courts have been empowered under Rules 1 and 2 of Cr. 10,
C.P.C., to ascertain facts and to make the pleadings more
lucid and clear by examination of the party or his pleader.
Prior to the substitution of Rule 2, examination of the party
was not obligatory, but in clause (a) sub-rule (1) of rule 2 of
Cr. 10, the word "shall" has been introduced, which make the
intention abundantly clear. By the use of the expression
"shall", it has been made obligatory for the court to examine
the party appearing in person or present in court with a view
to elucidating matters in controversy in the suit, as it deems
fit. The provisions of Cr. 10, Rules 1 and 2, C.P.C., if are
freely and generally pressed into service by the courts, for
imparting quick and speedy justice, these provisions have
certainly a rule to play. The general use of these provisions, to
my mind, would shorten the litigation. Most of the
1983 SCC OnLine Raj 14
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controversies, which may be there in the pleadings would not
remain on examination of the parties and this is how the
controversies between the parties would be narrowed down.
By resorting to examination under Rules 1 and 2, of Or.
C.P.C., the court an clarify the pleading putting material
questions relating to the suit to the parties. Clause (a) of sub-
rule (1) of Rule 2 of Or, 10, is imperative for the court to
examine the parties, if they appear in person or present in
court, if it deems fit, for elucidating matters in controversy.
Even if they are not appearing in person or are not present in
court, if the court feels necessity of getting some elucidation
in relation to matters in controversy in the suit, it can direct
them to appear in person. Sub-rule (5) of Rule 1 of Cr. 14,
C.P.C., also envisages that issues should be framed not only
on the pleadings of the parties, but after examination of the
parties under Rule 2 of Cr. 10. It is true that under Rule 1 of
Cr. 10, facts can even be ascertained by the court from the
pleader of the party and even from the party, but Rule 2
empowers the court to examine the party for the purpose of
elucidating matters in controversy in the suit, if he appears in
person or present in court and the companion of the party may
be examined under clause (b) of sub-rule (1) of Rule 2. Sub-
rule (2) of Rule 2 further empowers the court to examine the
party or his companion at any subsequent hearing. The
examination can be made by the court on the questions, which
may be suggested by the parties, apart from the examination,
which may be conducted by the court on its own motion. In
my opinion, the court should resort to the examination of the
parties under Rule 2, particularly on the documents, which are
said to be signed by the parties. It is true that the pleader of
the party is empowered to admit and deny the documents, but
it is better that the original documents are put to the party and
admission or denial is obtained after visual observations by
the party himself of the original documents, After looking into
the documents, the party would be in a position to admit or
deny the same, which would not be possible, if the same is got
done by his pleader."
19. Mr. Aneja has also placed reliance on Order XIV Rule 1(5) of
the CPC, which reads thus:
"Order XIV - Settlement of issues and determination of
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suit on issues of law or on issues agreed upon
1. Framing of issues. -
*****
(5) At the first hearing of the suit the Court shall,
after reading the plaint and the written statements if
any, and 1 [after examination under rule 2 of Order X
and after hearing the parties or their pleaders],
ascertain upon what material propositions of fact or of
law the parties are at variance, and shall thereupon
proceed to frame and record the issues on which the
right decision of the case appears to depend."
20. Mr. Aneja sought to contend, by reference to Order XIV Rule 1
(5) that framing of issues was also required to be undertaken only after
examination under Order X Rule 2. Thus, he submits that the CPC
expressly acknowledges the importance of examination of the parties
in dispute under Order X Rule 2.
Analysis
21. Order X Rule 2 of the CPC reads thus:
"2. Oral examination of party, or companion of party
-
(1) At the first hearing of the suit, the Court -
(a) shall, with a view to elucidating matters
in controversy in the suit examine orally such of
the parties to the suit appearing in person or
present in Court, as it deems fit; and
(b) may orally examine any person, able to
answer any material question relating to the suit,
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by whom any party appearing in person or
present in Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally
examine any party appearing in person or present in
Court, or any person, able to answer any material
question relating to the suit, by whom such party or his
pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course
of an examination under this rule questions suggested
by either party."
22. The expression "at the first hearing of the suit", as employed in
Order X Rule 2(1) as well as in Order XIV Rule 1(5), stands defined
in Ved Prakash Wadhwa v. Vishwa Mohan4 in the following terms:
"The provisions in O. X, R.1 O. XIV R.1(5) and O. XV, R.1
of CPC (5 of 1908) can never be earlier than the date fixed for
the preliminary examination of the parties, and the settlement
of issues."
23. Kapil Corepacks2:
The passages from Kapil Corepacks2, on which Mr. Chaudhary
placed reliance, sufficiently illumine the scope of Order X Rule 2. It
is clear, from a reading of the said passages, that Order X Rule 2
cannot be used to elicit admissions from the parties. Admissions can
only be in pleadings, during examination, in answer to interrogatories
under Order XI Rule 8, in answer to a notice to admit facts under
Order XII Rule 4 or during evidence in affidavit. The only other
circumstance in which a party to the suit would make admission is
(1981) 3 SCC 667
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where the party itself comes forward to admit any particular fact in
dispute.
Para 19 of the report in Kapil Corepacks2 holds that a court
may legitimately combine exercise of functions under Order XII Rule
3(a) and Order X Rule 2 of the CPC, by calling upon the party to
admit a document during the course of examination under Order X
Rule 2.
In para 22 of the report, the Supreme Court makes matters still
clearer by clarifying that Order X Rule 2 cannot be exercised either
(i) to identify matters in controversy, or
(ii) to prove or disprove the matters in controversy, or
(iii) to seek admission or
(iv) to decide rights or obligations of the parties.
Interestingly, Kapil Corepacks2 has taken note of the judgment
of the learned Single Judge of the High Court of Rajasthan in
Bhanwarlal Kavad3, without either approving or disapproving the said
decision, merely holding that it was not of assistance in the dispute
before the Supreme Court. The Supreme Court has categorically
noted that Bhanwarlal Kavad3 only recognised the power of the court
to call upon a party to admit a document and could not, therefore,
assist in resolution of the controversy before the Supreme Court.
In the above context, the factual background of the dispute, as
was presented before the Supreme Court in Kapil Corepacks2, requires
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to be noted, especially as Mr. Anjea placed especial reliance thereon.
The proceedings before the Supreme Court, which resulted in
the judgment in Kapil Corepacks2, emanated from a suit filed by
Harbans Lal (the respondent before the Supreme Court) against Kapil
Corepacks Pvt. Ltd. (KCPL), for recovery of ₹ 66,00,000/-. Harbans
Lal sought to contend that the appellants had, vide agreement dated 7th
September 2003, agreed to sell, to Harbans Lal, an industrial property
for a consideration of ₹ 2,02,41,600/-. Against this, Harbans Lal
claimed to have paid, to KCPL, an advanced of ₹ 33,00,000/-. As
KCPL was expressing disinterest in conveying the suit property,
Harbans Lal sued KCPL seeking refund of double the amount
deposited by him, i.e. ₹ 66,00,000/-.
KCPL alleged that the signatures of their officers, on the
agreement dated 7th September 2003, which constituted the basis of
Harbans Lal's case, were forged. They denied the execution of the
agreement, in the written statement filed by them. They additionally
filed a counter claim for a declaration that the agreement was forged
and, therefore, void. They also denied receipt of ₹ 33,00,000/- from
Harbans Lal.
During the course of proceedings before the High Court, KCPL
moved an application under Section 151 of the CPC for reference of
the agreement dated 7th September 2003 to a handwriting expert, for
examination of the signatures contained on the agreement. This
application was rejected by a learned Single Judge of the High Court
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vide order dated 31st July 2007, opining that the parties could, during
the course of trial, lead the evidence of handwriting experts to prove
their case, if they so choose. Additionally, the learned Single Judge, in
the said order, directed the parties to file their original documents, to
be admitted/denied by opposite parties, and directed the parties to be
personally present on the next date of hearing for recording of their
statement under Order X Rule 2 of the CPC.
KCPL appealed against the said decision. In the appeal, they
averred that they had already obtained a preliminary report dated 4 th
February 2007 from a handwriting expert, who could provide expert
evidence on the genuineness of agreement dated 7th September 2003.
The Division Bench of the High Court, vide order dated 1st
November 2007, disposed of the appeal with liberty to KCPL to apply
to the learned Single Judge for allowing examination of the original
agreement dated 7th September 2003 by a handwriting expert, and to
tender the opinion of the handwriting expert in that regard.
KCPL, therefore, applied before the learned Single Judge, under
Order XXVI Rule 10-A of the CPC, to allow their handwriting expert
to inspect the original agreement dated 7th September 2003 and to take
photographs thereof.
On 12th November 2008, pursuant to and in compliance with the
direction issued by the learned Single Judge on 31st July 2007,
Appellant 2 before the Supreme Court, who was the Managing
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Director of KCPL, appeared before the learned Single Judge of the
High Court, who recorded his statement under Order X Rule 2. He
was shown a copy of the agreement in such a manner that the
signature on the agreement alone was visible and the rest of the
agreement was blocked with a blank paper and was asked whether the
stamp and signature on the agreement belonged to KCPL and, if so, to
identify the person who had signed the agreement. Appellant 2 before
the Supreme Court identified the stamp as belonging to KCPL and the
signature as being his.
Noting this fact, the learned Single Judge observed thus, in his
order dated 12th November 2008:
"Statement of the Managing Director of the defendant No. 1-
Company has been recorded today in the court. The Managing
Director has admitted his signature on the Agreement/receipt
as well as stamp of the defendant No. 1 - Company on the
said document. The said document was thereafter shown to
the witness after removing blank paper. I may note here that
the said document was denied at the time of admission/denial
and in the written statement."
In the said order, the learned Single Judge also contemplated initiating
proceedings against the Managing Director of KCPL under Section
340 of the Code of Criminal Procedure, 1973 read with Section 195 of
the Indian Penal Code.
Aggrieved by the said order, KCPL and its Managing Director
filed an intra-court appeal to a Division Bench of the High Court
which, vide order dated 20th January 2009 dismissed the appeal. It
was against the said order that KCPL approached the Supreme Court.
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The issue before the Supreme Court was, therefore, whether the
High Court had correctly examined the Managing Director of KCPL
in accordance with Order X Rule 2 of the CPC. The Supreme Court
held, in conclusion in its judgment, that, in examination under Order X
Rule 2 CPC, it was not open to Harbans Lal to confront the Managing
Director of KCPL with agreement dated 7th September 2003 after
covering a part thereof and obtain an admission from the Managing
Director regarding the signatures on the agreement.
In Kapil Corepacks2, therefore, the Supreme Court was
concerned with whether an admission could be extracted from the
Managing Director of KCPL in the manner in which it was extracted,
under Order X Rule 2 of the CPC.
The enunciation of the law, in paras 15, 18 and 19 of Kapil
Corepacks2, to which Mr. Chaudhary drew my attention, represent
declaration of the legal position under Article 141 of the Constitution
of India. It is clear, from a reading of the said passages that, Order X
Rule 2 is intended only to elucidate matters in controversy in
proceedings and can be pressed into service only where there is a
want of clarity in the pleadings. If, therefore, the pleadings of the
parties were wanting in clarity then, in order to identify the exact
issue in controversy in the suit, the court could justifiably resort to
examination under Order X Rule 2 so as to clear the cobwebs.
24. That this is the correct manner in which Order X Rule 2 is to be
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applied is, in fact, clarified by Order XIV Rule 1 of the CPC, on which
Mr. Aneja relies. Mr. Aneja has drawn my attention to Clause (5) of
Order XIV Rule 1. A reading of the said clause indicates that the
reference, therein, to examination under Order X Rule 2 is so as to
enable the court to ascertain the propositions of facts or on law on
which parties were at variance, before settling issues. This, in turn,
relates back to the very definition of "issues", as contained in under
Order XIV Rule 1(1), which contemplates the arising of issues when,
on a material proposition of fact or law, one party affirms a
proposition and other denies the proposition. If, therefore, there is any
want of clarity on the question of whether the proposition, of fact or of
law, was being affirmed or being denied, that want of clarity could be
resolved by examining a party under Order X Rule 2, so that the exact
issues in controversy between the parties could be identified. It is for
this reason that Order XIV Rule 1(5) envisages the exercise of
examination, under Order X Rule 2, as preceding the framing of
issues.
25. The learned ADJ has, in the present case, noted that there is no
such want of clarity in the pleadings of the parties, insofar as the
Relinquishment Deeds dated 27th July 1985 and 11th April 1994 are
concerned.
26. Defendants 1 and 4(a) to (e) had, in clear and express terms,
denied the said Relinquishment Deeds dated 27 th July 1985 and 11th
April 1994 and castigated them as forged and fabricated. The onus,
then, would shift to Defendants 2 and 3(a) to 3(e) who sought to rely
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on the said documents, to prove that they were genuine and had in fact
been executed. That onus would have to be discharged by leading
evidence. Order X Rule 2 could not be used as a shortcut to obtain an
admission from Defendants 1 or 4(a) to 4(e) regarding the execution
of the said documents or regarding their signatures thereon.
27. The applications filed by Defendant 2 and Defendants 3(a) to
3(e) under Order X Rule 2 make it apparent that the prayer for
examination of Defendants 1 and 4(a) to 4(e) is only to extract, from
them, oral evidence contrary to their specific denials, in the replies
filed by them to the applications of Defendants 2 and 3(a) to 3(e), of
the genuineness and veracity of the Relinquishment Deeds dated 27 th
July 1985 (allegedly executed by Defendant 1) and 11 th April 1994
(allegedly executed by Defendant 4), inter alia by comparison of
signatures with the documents that Defendants 3(a) to 3(e) seek to
introduce under their application under Section 151, CPC.
28. This would amount, in no uncertain terms, to gathering of
evidence, and obtaining admissions from Defendants 1 and 4(a) to
4(e), which Order X Rule 2, read with the decision in Kapil
Corepacks2, specifically proscribes.
29. Neither Mr. Chaudhary nor Mr. Aneja has been able to contend
that there was any want of clarity in the pleadings either of Defendant
1 or Defendants 4(a) to 4(e), regarding their stand with respect to the
Relinquishment Deeds dated 27th July 1985 and 11th April 1994.
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30. The decision of the learned ADJ that no case was made out, for
summoning Defendant 1 or Defendants 4(a) to 4(e) under Order X
Rule 2, for recording of their statement, does not, therefore, suffer
from any infirmity either on facts or in law, for two reasons, viz.
(i) there is no want of clarity in the pleadings of Defendants
1 and 4(a) to (e) regarding the Relinquishment Deeds dated 27 th
July 1985 (in the case of Defendant 1) and 11th April 1994 (in
the case of Defendant 4) on which Defendants 2 and 3(a) to 3(e)
seek to rely, and
(ii) the avowed objective of the applications, filed by
Defendants 2 and 3(a) to 3(e), is to obtain admissions, from
Defendants 1 and 4(a) to 4(e) regarding the Relinquishment
Deeds dated 27th July 1985 (in the case of Defendant 1) and 11 th
April 1994 (in the case of Defendant 4), and to prove the
documents by comparison of signatures, which cannot be
permitted to be achieved under Order X Rule 2.
31. Inasmuch as the application under Section 151 of the CPC, to
produce documents, was specifically only for the purpose of
confronting Defendant 1 and Defendants 4(a) to 4(e) with the
aforesaid Relinquishment Deeds dated 27th July 1985 and 11th April
1994, the rejection of the said application also does not call for any
interference. This, however, shall not preclude the petitioners from
separately applying for placing the said documents on record for any
other reason. If any such application is moved, the learned ADJ
would proceed to decide the application in accordance with law.
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Conclusion
32. No case being, thus, made out to interfere with the impugned
order dated 16th July 2022 passed by the learned ADJ, the present
petition, under Article 227 of the Constitution of India, is dismissed,
with no orders as to costs.
C. HARI SHANKAR, J.
AUGUST 29, 2022
dsn
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ANNEXURE - A
Family Tree
Hari Chand
Khattar
17.03.1967
(Kamla Devi -
11.05.1983)
Purshottam Das Satwant Krishna
Ganesh Das Daya Nand Khattar Rukmani Kaur Gulati
Khattar Khattar 11.10.2016 Rani
(Nirmala Khattar) 21.09.13 1.2.2015
Tejwant
Bhupinder Gurvinder Harvinder Harbhajan Davinder Ashok Manjeet
Singh Anju Jain
Kaur Kaur Arora Kaur Sethi Singh Gulati Gulati Kaur
Dushyant Gaurav Anita Gurdeep Bajinder Harmeet Ismeet
Neha Kaur
Khattar Khattar Tyagi Kaur Singh Singh
Arora
Signature Not Verified
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