Sushil Bhardwaj v. Ved Parkash Shastri F+

judgment states that:- "15. Even without referring to the expression "otherwise" in Rule 6 of Order XX, CPC, we can draw an inference in the present case on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterates the admission. If that is so, interpretation of the expression "otherwise" becomes unnecessary."

22.

In a previous decision, i.e. Shikharchand vs. Mst. Bari Bai, AIR 1974 MP 75, the High Court had much arrived at much the same conclusion in relation to the term "otherwise", saying that it clearly indicates that it is open to the Court to base the judgment on statement made by a party not only in the pleadings but also de hors the pleadings. The Court crucially also held that such admissions may be made either expressly or constructively. It may also be noticed that a provision under Order 12 Rule 6 CPC is flexible enough to enable the Court to dismiss the suit if the situation so warrants. The provision is not confined to an order decreeing the claims of the plaintiff, against the defendant; the terminology used is wide enough to comprehend situations where admissions either in the pleadings or "otherwise" can result in dismissal of the suit, which would result in the drawing up of a decree. The question on the merits here,

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therefore, is whether the two documents relied upon by the defendants, i.e. Ex.D-1 and D-2 are unambiguous and clear admissions which should persuade the Court to dismiss the suit.

23.

The suit is one for partition although the plaintiff has claimed for partition of some property in Kurukshetra yet till date he has not been supplied any particulars. No document in support also has been furnished in that regard. The only other property which finds mention in the relief clause is the Satyawati Colony property measuring 200 sq. yds. The plaintiff avers that the defendant No.1 shifted to Delhi in 1960 and that he received his share from a partition which took place in 1965. These facts are disputed by the defendants including the defendant No.1 who had joined in the common written statement. According to them, the property was acquired in 1958, even before the alleged partition.

24.

The plaintiff has averred about having lived in the said property at Satyawati Colony till 1986 and moved out thereafter. The bone of contention here is that whether at the stage when Ex.D-1 was executed, the parties contemplated a division and extinguishment of the plaintiff"s share is concerned. Ex.D-1, as noticed earlier, was filed in the year 2004. Significantly, it was not produced by the plaintiff in the list of documents filed along with the suit. He, however, admitted it on 21.2.2005. The sum and substance of these documents is that he

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admits to ownership of the Satyawati Colony by Ex.D-1; the document also mentions about ownership of plot/property No.176, Harsh Vihar, which was registered in his name. The effect of clauses 2 and 3 of this document is that the defendant No.1 agreed to absolute ownership of the said property at Harsh Vihar by the plaintiff; in turn the latter agreed to pay Rs.1.75 lakhs to the defendant No.1. Clauses 5 and 6 of the said document are important. They state clearly that if other members of the plaintiff"s family, i.e. his brothers and sisters have any right on title or interest in the said property, i.e. 176, Harsh Vihar, his father would give them their rights from his other property. Clause 6 unequivocally stated that after this (i.e. execution of the document Ex.D-1), the plaintiff"s legal heirs etc. would not have any right to title or interest of any kind in the property. The original Hindi version of this clause reads as follows:- "Iske paschat meri santititi aadi bhi parivarik sampati mai sai kisi bi prakar ka adhikar nahi mangenge."

25.

Ex.D-2, a letter written much later by the plaintiff to his paternal aunt mentions about some inter se disputes between him and the defendant No.1. Apparently the said paternal aunt was trying to act as a mediator and bring about peace. The plaintiff, in that context, stated that he had nothing to do with the defendant No.1"s self-acquired property since he has just retired one year before.

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26.

The plaintiff contends by placing reliance upon the reply filed to the application that the said letter Ex.D-1 is not relevant in any manner, whatsoever, in this case. According to him plot No.176, Harsh Vihar was his absolute property and the other defendants had no interest in it. The plaintiff further alleges that the defendant withheld the original documents in relation to that property and later extracted the letter dated 25.12.1988 (wrongly mentioned as

25.8.1988). It is also alleged that the defendant No.1 unlawfully got a sum of Rs.3,50,000/- extracted from the plaintiff by blackmailing him and subsequently release original documents of the property.

27.

The decision in Uttam Singh Dugal"s case (supra), is an authority on the proposition that admissions are to be construed in their terms. The plaintiff is undoubtedly right in contending that in the absence of an unambiguous admission, a decree under Order 12 Rule 6 CPC, cannot be made. The question that the Court has to address crucially, in such cases, is whether any and every kind of explanation given by a party, in relation to an admitted document, is to be construed as a plausible one. The background of the case, the nature of the admission and the overall framework of the pleadings within which such admission is made, would naturally have to be considered by the Court.

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28.

The case set up by the plaintiff is that he is entitled to a share in the property E-32, Satyawati Colony, Phase-III, Ashok Vihar, Delhi. While filing the suit, the plaintiff did not advert to the document Ex.D-1. When the same was filed and an application was made under Order 39 Rule 4 CPC namely IA 5688/2002, the plaintiff chose to made an evasive averment about its genuineness claiming it to be an "alleged document". He, however, later conceded to its genuineness and admitted the document in 2005. The Court cannot, therefore, be unmindful of these overall circumstances. The document very clearly states that in lieu of the property at 176, Harsh Vihar, the plaintiff gave up all rights in relation to other family properties. The plaintiff is now asserting rights in relation to E-32, Satyawati Colony, Phase-III, Ashok Vihar, Delhi, claiming it to be a family property. In the light of the clear contents of Ex.D-1, the explanation about the document having been procured by force etc., in the opinion of this Court, is implausible. A careful reading of the plaintiff"s reply, according to his own version, shows that substantial amount was paid to the defendant No.1 at the material time. The explanation now sought to be given is, therefore, in any case, is not plausible.

29.

As far as the arguments of the plaintiff that the document Ex.D-1 is contrary to the defendant"s case is concerned, three things

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are immediately discernible. In the amended written statement, the defendants clearly aver that the plaintiff has suppressed all the material documents. The advertence here clearly is to Ex.D-1 which was later admitted by the plaintiff. Secondly, the plaintiff did not deny the document at the stage of admission and denial and thirdly, the reply of the plaintiff itself is unsupported by any affidavit. There is no dispute that the defendants are resisting the suit and stating that the plaintiff is disentitled to any decree for partition. In the circumstances it cannot be said that the reliance placed upon Ex.D-1, is inconsistent with their stand.

30.

As far as the argument on behalf of the defendant No.5 is concerned, this Court is mindful of the correct position in law that in a partition suit, every family member is to be treated as a plaintiff and the suit has to ordinarily proceed to its logical conclusion. However, in this case, the sub-stratum of the plaintiff"s case of entitlement of the partition is the existence of a right to claim such partition. Ex.D-1 clearly belies such a claim; the plaintiff cannot maintain the suit. Having walked out of the family, the plaintiff apparently being satisfied on the basis of the share received by him, he could not have approached this Court and claimed partition. Therefore, in such a case, where the suit for partition is not maintainable at the behest of one family member who is disentitled to approach the Court for such

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relief, the proposition is that such a suit nevertheless be continued because of the insistence of the others, cannot be accepted.

31.

In view of the above discussion, the Court is of the opinion that the suit is not maintainable in view of the admission in Ex.D-1; it is accordingly dismissed without any order as to cost.

32.

CS(OS) 995/2002 and all pending applications are disposed of in the above terms.

S. RAVINDRA BHAT,J

AUGUST 28, 2008 "sn"

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 995/2002 SUSHIL BHARDWAJ ..... Plaintiff Through Mr.S.S.Panwar, Advocate. versus VED PARKASH SHASTRI ..... Defendant Through Mr.Harvinder Singh with Mr.Mohit Gupta and Ms.Bhawna Chopra Rustgi, Advocate for defendants No.1 to 3. Mr.Hari Narayan Takkar, Advocate for defendant No.5. % 28.08.2008 CORAM: Mr. Justice S. Ravindra Bhat 1. Whether reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Mr. Justice S. Ravindra Bhat (Oral) 1. In this suit, the plaintiff seeks partition and permanent injunction against the defendants. The reliefs claimed include preliminary decree of partition in respect of properties being E-32, Satyawati Colony, Phase-III, Ashok Vihar, Delhi, and a vacant plot measuring 200 sq. yds., in HUDA Colony, Kurukushetra, Haryana, (which, the plaintiff contends, are joint family properties). Page 2 2. The brief facts necessary for the purpose of this order are that the plaintiff"s father, Shri Ved Prakash Shastri, defendant No.1 herein (who has since deceased during the pendency of the proceedings), shifted to Delhi in 1960 along with his mother. The plaintiff further avers that his grandfather, Pt. Vasu Dev Bhardwaj died in 1965. He was survived by his widow and two other sons and a daughter. The plaintiff avers that after the death of his grandfather, his legal heirs mutually divided and partitioned the joint family properties. The properties, according to the plaintiff, which fell to the share of his father, i.e. the defendant No.1, became ancestral properties. It is alleged that the defendant No.1 as karta of his joint family (comprising of his sons and other family members,) acquired the two properties for which partition decree is sought in this case. It is averred that these properties were purchased with the funds which fell partly to defendant No.1"s share in the partition with other members of his family as well as partly with his own funds. 3. The plaintiff avers that till 1986, he along with his wife and children were living in a small room on the first floor of E-32, Satyawati Colony, Phase-III, Ashok Vihar, Delhi. Thereafter, they shifted to his house at Shalimar Bagh, a residential flat allotted to his wife, then serving in Reserve Bank of India. It is claimed that the plaintiff No.1 had been regularly visiting his mother, i.e. the plaintiff Page 3 No.2, in order to look after her and also visited his room along with his family. 4. It is claimed that defendant No.1 (i.e. the plaintiff"s father) and the defendant No.2 (i.e. the plaintiff"s brother) are not inclined to give him any share in the joint family properties and are threatening to illegally dispossess him from joint family property, in his possession and unauthorizedly interfere with it. The plaintiff describes certain other proceedings including suit No.29/2001 titled "Sushil Bhardwaj vs. Ved Parkash etc." in which the Court had granted him the liberty to see his ailing mother during the reasonable hours. The plaintiff further adverts to defendants No.4 and 5 having lodged police complaints against alleged illegal actions of defendants No.1 and 2 in relation to his mother. 5. The plaintiff avers that defendants No.1 and 2 are in possession of the complete front portion and one room in the back side of the property E-32, Satyawati Colony, Phase-III, Ashok Vihar, Delhi. It was alleged initially that the plaintiff No.2, i.e. the mother of plaintiff No.1 was in possession of the other property. During the proceedings, however, the plaintiff No.2 was dropped from the array of parties. The plaintiff also avers that on 20.5.2002, the defendants No.1 and 2 brought some unidentified persons and showed them the property. This led to a reasonable apprehension that the same would Page 4 be sold thus depriving the plaintiff from his share. The plaintiff has thus sought for the d