Order 17

Order Details: COPY OF ORDER
Pdf Text: CS No. 445/23 Vinod Tawar vs. Veena @ Beena Tawar & Ors. Page 1 of 1
IN THE COURT OF MS. POOJA JAIN, DISTRICT JUDGE-03
EAST DISTRICT, KARKARDOOMA COURT COMPLEX, DELHI
CS No.445/23
VINOD TAWAR ……..PLAINTIFF
Vs.
VEENA @ BEENA TAWAR & ORS. …..DEFENDANTS
O R D E R
1. By this order I shall dispose of an application under Order XII
Rule 6 read with section 151 of CPC filed on behalf of plaintiff.
2. The brief facts of the case are that the plaintiff is the step brother
of the defendant no.1 and real brother of defendant no.2 & 3. Father of the
parties Late Sh. Ram Tawar was the owner of the property bearing H.
No.A-41, Gali no.2, North Block, West Vinod Nagar, Near Ram Mandir,
Mandawali Fazalpur, Delhi-110092 which is a two storey building of 40
square yards approximately (hereinafter referred to as the ‘suit property’)
who had expired in the year 2011. The first wife of Late Sh. Ram Tawar got
expired in early years of his marriage and thereafter, Sh. Ram Tawar got
married with Smt. Laxmi Devi who also expired in the year 2015. From the
first wife he had one daughter i.e. defendant no.1 who is unmarried till date
and from second wife, he had three sons i.e. plaintiff-Vinod Tawar,
defendant no.2-Ajay Tawar and defendant no.3-Manish Tawar.
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3. It is averred that in the year 2005, the plaintiff being the elder
brother contributed in the expenses for the marriage of defendant no.2
however, defendant no.2 and his wife started fighting on every petty issues
forcing them to leave the home. Defendant no.1 to 3 started torturing and
misbehaving with the plaintiff with a view to grab his share ignoring the fact
that he is their brother and bearing all responsibilities of the home
irrespective of their quarrelsome attitude. Plaintiff took a separate
accommodation on rent for sometime with the hope that his brothers and
sister will realise the importance of family. In 2011 unfortunately, father of
the parties died intestate. Defendant no.1 to 3 on one or the other pretext
defame the plaintiff so that the plaintiff with his family may leave that area
as well. Plaintiff is doing the work of ironing the clothes of the local families
and hardly able to earn the bread of his family and is hardly managing to pay
the rent now. Plaintiff several times requested the defendants to partition the
property however, defendants postponed the same on one pretext or the
other. It is further submitted that defendants are trying to sell the suit
property and to create third party interest in the suit property. By way of
present suit, the plaintiff is seeking the following reliefs:
i. A preliminary decree thereby holding that the plaintiff is
entitled for 1/4th share in the suit property bearing H. No.A-41,
Gali no.2, North Block, West Vinod Nagar, Near Ram Mandir,
Mandawali Fazalpur, Delhi-110092 which is a two storey
building of 40 square yards approximately;
ii A decree of permanent injunction thereby restraining the
defendants from parting with the possession, transferring or
creating third party interest in the suit property;
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iii Appoint Local Commissioner with the direction to
suggest mode of partition;
iv A final decree of partition in terms of report of Local
Commissioner and separate possession of the share of plaintiff
to the plaintiff; and
v Cost of the suit.
4. Summons of the suit were issued to the defendants. All the
defendants appeared through their counsel and filed their joint written
statement thereby contending that the father of plaintiff Late Sh. Ram Tawar
purchased the suit property from his hard earned money in the year 2000 and
the share of plaintiff was given by deceased father in the year 2009 during
his lifetime therefore, the present suit is not maintainable. It is further
submitted that an oral family settlement was arrived in the family and as per
oral settlement, plaintiff received a sum of Rs.4 lacs in lieu of his 1/5th share
in the suit property. It is further submitted that the plaintiff has not
approached this Court with clean hands and suppressed the material facts
from this court. Therefore, the present suit of the plaintiff is liable to be
dismissed as he has already received his share during the lifetime of
deceased father. All other allegations made in plaint are denied by the
defendants and prayed for dismissal of the suit.
5. Thereafter an application under Order XII Rule 6 read with
section 151 of CPC was filed by the plaintiff on 19.12.2024, for seeking
partition of suit property owned by deceased father on the basis of
admissions made by defendants in their written statement.
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6. Reply to the aforesaid application was filed on behalf of	Reply to the aforesaid application was filed on behalf of
defendants wherein it is stated on behalf of defendants that the defendants	defendants wherein it is stated on behalf of defendants that the defendants
have nowhere admitted the claim of the plaintiff as such the application of	have nowhere admitted the claim of the plaintiff as such the application of
the plaintiff is liable to be dismissed with cost. It is averred that the	the plaintiff is liable to be dismissed with cost. It is averred that the
defendants have nowhere admitted the claim of the plaintiff entitling the	defendants have nowhere admitted the claim of the plaintiff entitling the
plaintiff to move the present application. It is further submitted that plaintiff	plaintiff to move the present application. It is further submitted that plaintiff
has misread and misconceived the plea taken by the defendants in their	has misread and misconceived the plea taken by the defendants in their
written statement, therefore, the application of the plaintiff is liable to be	written statement, therefore, the application of the plaintiff is liable to be
dismissed. It is further submitted that admission should be clear,	dismissed. It is further submitted that admission should be clear,
unequivocal and unambiguous. It is also submitted that defendant has not	unequivocal and unambiguous. It is also submitted that defendant has not
admitted anything in his written statement, which can be treated and termed	admitted anything in his written statement, which can be treated and termed
as clear, unequivocal and unambiguous, therefore, the application of the	as clear, unequivocal and unambiguous, therefore, the application of the
plaintiff is liable to be dismissed. The defendants denied the rest of the	plaintiff is liable to be dismissed. The defendants denied the rest of the
averments made in the application under Order 12 Rule 6 CPC.	averments made in the application under Order 12 Rule 6 CPC.
7.	7. Arguments heard on behalf of the parties and perused the
material available on record.
8. Before appreciating the rival contentions of the parties, it is
necessary to refer the relevant provisions of law i.e Order XII Rule 6 of the
Civil Procedure Code and Section 58 of the Indian Evidence Act which
provides as under:-
ORDER XII RULE 6 -
6. Judgment on admissions- (1) Where admissions of fact have been
made either in the pleading or otherwise, whether orally or in
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writing, the Court may at any stage of the suit, either on the
application of any party or of its own motion and without waiting for
the determination of any other question between the parties, make
such order or give such judgment as it may think fit, having regard to
such admissions.
(2). Whenever a judgment is pronounced under sub-rule (1), a
decree shall be drawn up in accordance with the judgment, and the
decree shall bear the date on which the judgment was pronounced.
Section 58 of the Indian Evidence Act provides that:
“58. Facts admitted need not be proved-No fact need to be proved in
any proceeding which the parties thereto or their agents agree to
admit at the hearing, or which, before the hearing, they agree to
admit by any writing under their hands, or which by any rule of
pleading in force at the time they are deemed to have admitted by
their pleadings:
Provided that the Court may, in its discretion, require the facts
admitted to be proved otherwise than by such admissions.”
The aforesaid Rule was amended by Act 104 of 1976, by which
several amendments were made to the Code of Civil Procedure, 1908.
Earlier to 1976 amendment, judgment on admissions was confined only on
application in writing. By virtue of the amendment whether admissions are
oral or in writing, court is empowered at any stage of the suit to give
judgment on such admissions.
9. The Apex Court in case of
Uttam Singh Dugal and Co. Ltd. vs.
United Bank of India 2000 (4) R.C.R. (Civil) 89 observed as under :-
“10. As to the object of the Order XII Rule 6, we need
not say anything more than what the legislature itself
has said when the said provision came to be amended.
In the objects and reasons set out while amending the
said rule, it is stated that where a claim is admitted, the
court has jurisdiction to enter a judgment for the
plaintiff and to pass a decree on admitted claim. The
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object of the Rule is to enable the party to obtain a
speedy judgment at least to the extent of the relief to
which according to the admission of the defendant,
the plaintiff is entitled. We should not unduly narrow
down the meaning of this Rule as the object is to
enable a party to obtain speedy judgment. Where
other party has made a plain admission entitling the
former to succeed, it should apply and also wherever
there is a clear admission of facts in the face of which,
it is impossible for the party making such admission
to succeed.”
10. The object of the provisions of Order XII Rule 6 of the Code was
also interpreted in the judgment delivered in case of
M/s Puran Chand Packaging
Industrial Pvt. Ltd. vs. Smt. Sona Devi and another, 2009 (2) C.C.C. 39 & the
Apex Court in
Sona Devi's case (supra), made the following observations :-
9. A perusal of the aforesaid provision would show
that before a decree on the basis of admission in the
pleadings can be passed, the admission must be made
by the defendant or a party to the proceedings in an
unequivocal, unambiguous manner. In other words
the admission should not be vague or equivocal.
Another point which has to be borne in mind while
passing a judgment on the basis of an admission is that
the document is to be read as a whole and the Court is
not to take out one or two sentences so as to treat it as
an admission. Moreover passing of a judgment on this
basis by the Court is a matter of discretion and not a
matter of course. Reliance in this regard is placed on
Maniisha Commercial Ltd. Vs. N.R.Dongrre and Anr.
AIR 2000 Delhi 176.
11. In case of “Charanjit Lal Mehra and Ors. vs Smt. Kamal Saroj
Mahajan and Anr.” AIR 2005 SC 2765, the Hon'ble Supreme Court has held
that order 12 Rule 6 CPC is enacted for the purpose to expedite the trials and
if there is any admission on behalf of the defendants or an admission can be
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inferred from the facts and circumstances of the case without any dispute of
the matter, then in such a case, in order to expedite and dispose of the matter
such admission can be acted upon.
12. The Hon’ble Supreme Court in Karan Kapoor v. Madhuri
Kumar, (2022) 10 SCC 496 has observed as under:
“24. Thus, legislative intent is clear by using the word ‘may’ and ‘as
it may think fit’ to the nature of admission. The said power is
discretionary which should be only exercised when specific, clear
and categorical admission of facts and documents are on record,
otherwise the Court can refuse to invoke the power of Order XII
Rule 6. The said provision has been brought with intent that if
admission of facts raised by one side is admitted by other, and the
Court is satisfied to the nature of admission, then the parties are not
compelled for full fledged trial and the judgment and order can be
directed without taking any evidence. Therefore, to save the time
and money of the Court and respective parties, the said provision
has been brought in the statute. As per above discussion, it is clear
that to pass a judgment on admission, the Court if thinks fit may pass
an order at any stage of the suit. In case the judgment is pronounced
by the Court a decree be drawn accordingly and parties to the case is
not required to go for trial.”
13. There is no dispute to the fact that the suit property bearing H.
No.A-41, Gali no.2, North Block, West Vinod Nagar, Near Ram Mandir,
Mandawali Fazalpur, Delhi-110092 which is a two storey building of 40
square yards approximately belongs to deceased father. It is further an
admitted fact that the mother of parties also died intestate. The relationship
between the parties is also admitted. Admittedly, the deceased father had not
executed any document to transfer the suit property in favour of any of his
children. It is further an admitted fact that the suit property remained in the
name of deceased father till his death. There is no other surviving legal heirs
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of deceased father except the parties to the present suit.
14. With regard to the oral family settlement in the year 2009
wherein the plaintiff had been allegedly given Rs.4 lacs for his share, is
contrary to the law. Therefore, the plaintiff has legitimate share in the suit
property and the plaintiff could only give up his share in the suit property by
virtue of a registered document i.e. either by a gift deed, relinquishment deed
or sale deed. In the absence of any such registered document, oral family
settlement cannot deprive the plaintiff of his legitimate 1/4th share in the suit
property.
15. Reliance is placed on Vineeta Sharma v. Rakesh Sharma,
(2020) 9 SCC 1 and the relevant extract reads as under:-
“127. A special definition of partition has been carved out in the
explanation. The intendment of the provisions is not to jeopardise
the interest of the daughter and to take care of sham or frivolous
transaction set up in defence unjustly to deprive the daughter of her
right as coparcener and prevent nullifying the benefit flowing from
the provisions as substituted. The statutory provisions made in
section 6(5)
change the entire complexion as to partition. However,
under the law that prevailed earlier, an oral partition was
recognised. In view of change of provisions of section 6
, the
intendment of legislature is clear and such a plea of oral partition is
not to be readily accepted. 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. The
intendment of Section 6
of the Act is only to accept the genuine
partitions that might have taken place under the prevailing law, and
are not set up as a false defence and only oral ipse dixit is to be
rejected outrightly. The object of preventing, setting up of false or
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frivolous defence to set at naught the benefit emanating from
amended provisions, has to be given full effect. Otherwise, it would
become very easy to deprive the daughter of her rights as a
coparcener. 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. We say so for
exceptionally good cases where partition is proved conclusively and
we caution the courts that the finding is not to be based on the
preponderance of probabilities in view of provisions of gender
justice and the rigor of very heavy burden of proof which meet
intendment of Explanation to Section 6(5)
. It has to be remembered
that courts cannot defeat the object of the beneficial provisions
made by the Amendment Act. The exception is carved out by us as
earlier execution of a registered document for partition was not
necessary, and the Court was rarely approached for the sake of
family prestige. It was approached as a last resort when parties were
not able to settle their family dispute amicably. We take note of the
fact that even before 1956, partition in other modes than envisaged
under Section 6(5)
had taken place.
137. Resultantly, we answer the reference as under:
………….
……………
………….
137.1…...
137.2…...
137.3…...
137.4……
137.5. In view of the rigor of provisions of Explanation to Section
6(5) of the Act of 1956, a plea of oral partition cannot be accepted as
the statutory recognised mode of partition effected by a deed of
partition duly registered under the provisions of the Registration
Act, 1908 or effected by a decree of a court. However, in
exceptional cases where plea of oral partition is supported by public
documents and partition is finally evinced in the same manner as if it
had been affected by a decree of a court, it may be accepted. A plea
of partition based on oral evidence alone cannot be accepted and to
be rejected outrightly. ”
16. A perusal of aforesaid judgment shows that the plea of oral final
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settlement is not to be generally accepted as a statutory recognized mode of
partition. Only in the cases where oral family settlement is supported by
public document and partition is evinced as if it was a decree of a Court, the
plea of oral family settlement can be accepted. Perusing the document
placed on record by the plaintiff it is clear that the electricity connection
installed in the suit property is still in the name of deceased father. It is
further perused that no document has been placed on record by the
defendants to support their plea showing the mutation in the revenue records
pertaining to the suit property. In these circumstances, it is clear that in the
present case except a bald plea as noted above, there is no document placed
on record to show that an oral family settlement took place in the year 2009.
Therefore, the defence raised by the defendants with respect to the oral
family settlement is not a triable issue. This Court is of the view that the said
plea is without any substance and is made only to delay the claim of plaintiff.
17. Under Order 12 Rule 6 CPC, the Court is required to satisfy
itself with regard to nature of admission, so that the parties are not compelled
for full fledged trial, reference is made to Karan Kapoor (supra).
18. Having observed so this court is of the considered view that the
plaintiff is entitled to a preliminary decree of partition of the property
bearing H. No.A-41, Gali no.2, North Block, West Vinod Nagar, Near Ram
Mandir, Mandawali Fazalpur, Delhi-110092, a two storey building of 40
square yards approximately on admissions made by defendants in their
written statement.
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19. A preliminary decree of partition is passed holding that the
plaintiff and defendants each have 1/4th share in the suit property i.e. H.
No.A-41, Gali no.2, North Block, West Vinod Nagar, Near Ram Mandir,
Mandawali Fazalpur, Delhi-110092, a two storey building of 40 square
yards approximately.
20. In view of above discussion, this Court is of the opinion that the
present application u/o 12 rule 6 CPC filed by the plaintiff deserves to be
allowed.
Accordingly, the present application is disposed off as allowed.
Pronounced in the open Court ( Pooja Jain)
on 10.02.2025 District Judge-03,
Court No.206, N/B, East District,
Karkardooma Courts, Delhi	Karkardooma Courts, Delhi
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