Delhi High Court
S. Satinder Singh And Ors. vs Raminder Sarup Singh And Anr. on 11 January, 2002
Equivalent citations: 2002IIIAD(DELHI)531
JUDGMENT V.S. Aggarwal, J.
1. Plaintiffs 1 and 2 and defendant No. 2 are real brothers. Plaintiff No. 3 is their sister and defendant No. 1 Sardarni Raminder Sarup Singh is their mother. The plaintiffs have filed the civil suit seeking a declaration that the oral family understanding as stated in the plaintiff i.e. during the lifetime of Sardar Bahadur Sarup Singh (father of the plaintiffs), the will dated 4.6.1981 of their father and the will executed by defendant No. 1 lying in the custody of ANZ Grindlays Bank, Shimla so far as it relates to property No. 3 Sardar Patel Marg, New Delhi, the oral settlement of 20th October, 1987 and the protocol dated 23rd October, 1987 besides the family arrangement of 15th September, 1988 besides the will of 17th September, 1988 of defendant No. 1 and of 10th June, 1992 are binding on all the plaintiffs and the defendants. It also seeks a declaration that the compromise by way of IA No. 10195/93 is Suit No. 3403/91 does not bind the plaintiffs because they were not parties to the same. In addition to that permanent injunction is claimed restraining the defendants from alienating, transferring, parting with possession or reconstructing, building at Sardar Patel Marg. Declaration is also being prayed that plaintiffs are entitled to 3/4th share or in the alterative a declaration that defendant No. 1 is holding 3/4th share in the said property as benami for the plaintiffs.
2. During the pendency of the suit the defendant No. 2 has filed the IA 4866/2000 under Order 12 Rule 6 Code of Civil Procedure seeking dismissal of the civil suit. By the present order the said application is proposed to be disposed.
3. It has been asserted that plaintiffs have made various averments in the plaint which stands disproved by their own act, omission and commission. It has been pleaded that the case of the plaintiff as averred in paragraph 19 and 25 of the plaint that property 3 Sardar Patel Marg was and is a family property and is being held by defendant No. 1 as benami for the benefit of the members of the family as their trustee. In support of their contention they rely on paragraph 20 of the plaint and the will of 4th June, 1988. Subsequent to the institution of the suit certain new developments are stated to have taken place where the plaintiffs by their own acts of commission have belied the averments on which the suit is based. It has been pleaded that plaintiffs have filed the suit on the premise that property in question is a family property and not self-acquired property of defendant No. 1. Therefore, she has no authority/right in the eyes of law to create any title, right or interest in the property. However, on 26th February, 1999 despite taking the aforesaid stand the non-applicants/plaintiffs accepted the gift premises. Under the said gift deed the non-applicants/plaintiffs accepted the gift to the tune of 40% of the defendant No. 1's share in the suit property. A rectification deed was of 16th April, 1999 was also executed. Thereafter a letter was addressed by Land and Development Office to non-applicant in this regard. It is alleged that this conduct of non-applicants in accepting the gift with respect to the suit premises reveals the baselessness of the claims made in the present suit. It is a clear admission of the fact that suit property is not a family property as alleged in the plaint. These developments have been concealed from the court and accordingly it has been prayed that in terms of the said facts the suit is liable to be dismissed and Order 12 Rule 6 Code of Civil Procedure has been pressed into service.
4. In the reply filed by the plaintiff the application as such has been contested. It has been pleaded that defendant No. 2 has suppressed material facts. He has suppressed the fact he is not claiming more than 50% share of No. 3 Sardar Patel marg, New Delhi. Even in compromise decree dated 25th November, 1993 between the defendant No. 2, it was recorded that Sardar Govinder Singh, defendant No. 2 states that he has no claim of ownership in the property except as recorded in the memorandum of 10th March, 1989. It has further been pointed that defendant No. 2 has concealed the fact that defendant No. 1 is the undisputed owner of 1/2 share of the property in question. Reference has been made to the compromise so as to contend that defendant No. 2 has not come to the court with correct facts. On merits of the matter it was pointed that defendant No. 1 had gifted 40% of her undivided share in the suit property to plaintiff No. 2 vide gift deed dated 26th February, 1999 and thereafter executed a rectification deed in favor of plaintiff No. 2 of 16th April, 1999. Mutation in this regard even was effected by the Land and Development Office. It is denied that the plaintiffs have resorted to undue influence and coercion of defendant No. 1 or that the subsequent events so pointed results in dismissal of the suit.
5. Order 12 Rule 6 of the code of Civil Procedure unfolds itself in the following words:-
"6. Judgment on admissions - (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit either on the application of 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.
6. Bare reading of the provisions of Order 12 Rule 6 which have been reproduced above clearly show that where there are admissions of facts either in pleadings or otherwise which come to the notice of the court at any stage of the suit, the court may pronounce a judgment on basis of those facts. In other words, it is not mandatory to act under Order 12 Rule 6 of the Code of Civil Procedure. It is a judicial discretion to be exercised by the court taking stock of the totality of facts and the circumstances. The admissions, if any, must be clear and unambiguous.
7. Another important fact in this regard is that while the pleadings or the facts have to be taken care of they have to be read as a whole. It will not be appropriate to read one line or a paragraph from the plaint in isolation ignoring the other assertions.
8. With these basic principles one can clearly revert back to the sequence of events alleged in the plaint before coming to a conclusion whether defendant No. 2 indeed can press for dismissal of the suit or not.
9. It has been pleaded that the plaintiff Nos. 1 and 2 and defendant No. 2 along with their deceased father Sardar Bahadur Sarup Singh besides their mother constituted a Hindu Undivided Family of which Sardar Bahadur Sarup Singh was the karta. On 20th March, 1982 between the co-parceners there was an oral partition and division of the said Hindu Family property, namely M/s Sardar Bahadur Sarup Singh & Sons. On 24th March, 1982 the oral partition was reduced into writing. Under the terms of the oral partition 1/3rd share of the Knolswood House fell to the share of Sardar Bahadur Sarup Singh while remaining 2/3rd fell to the share of plaintiff No. 2. When this oral partition was effected plaintiff No. 2 and defendant No. 2 was not present in India. Defendant No. 2 even had executed a general power of attorney in favor of his father. The memorandum of oral partition was signed and executed by their father and in addition to that by defendant No. 1 and plaintiff No. 2. Plaintiff No. 1 had signed it through the attorney.
10. It has further been asserted that despite having accepted the terms of oral partition without any reservation and having agreed to receive the compensation from plaintiff No. 2, defendant No. 2 did not rest content. He had started creating trouble that he has received no share in the Knollswood House. In order to put an end to baseless dispute raised by defendant No. 2, plaintiff No. 2 offered to defendant No. 2 to exchange his share of property which he has received by way of oral partition over the property which has fallen to the share of defendant No. 2. There was some letters exchanged. on 5th September, 1984 plaintiff No. 2 addressed a letter to his father Sardar Bahadur Sarup Singh stating that an offer for exchange/swap of their respective shares in the Hindu Undivided assets and property has been made by plaintiff No. 2 to defendant No. 2 more than once. However, defendant No. 2 refused to accept the offer and on 15th October, 1987 their father died and defendant No. 2 again raked up the dispute about fairness of the oral partition. This had perturbed their mother i.e. defendant No. 1. She was even concerned about her sole source of income, namely the rental income from ground floor of the property. Defendant No. 2 continued to harass and create trouble. The plaintiff had stated that their father had purchased the land at 3 Sardar Patel Marg and constructed the house though in the name of defendant No. 1 but for the benefit of himself and for the whole of the family. During the lifetime of Sardar Bahadur Sarup Singh, their father when 1/4th share was gifted to defendant No. 2, there was an oral family understanding between members of the family that defendant No. 2 will not claim any further share. It has been pleaded that defendant No. 1 had held the property as constructive trustee. The property has been purchased and built by Sardar Bahadur Sarup Singh in the name of defendant No. 1 as benami. Their father had executed a release deed of 15th February, 1956 in favor of defendant No. 1 purporting to release his interest in her favor. Though the release deed is stated to be invalid the subsequent conduct of their father indicates that purpose was merely to protect the interest of defendant No. 1 to give her a sense of security. The plaintiff continued to plead that in view of the oral family understanding and in pursuance of the same defendant No. 1 and their father had executed their respective walls. Defendant No. 1 had executed the will bequeathing 3/4th share of the property No. 3 Sardar Patel Marg, New Delhi to the plaintiffs in equal shares. The said will is stated to be lying in the bank. Defendant No. 2 had continued to raise the disputes which disturbed peace and harmony of the family. A fresh oral family settlement was arrived at amongst the parties on or about 20th October, 1987 in terms of the aforesaid understanding which was arrived at during life time of their father. According to the oral family settlement plaintiff No. 2 undertook to pay Rs. 4 lakhs to the defendants towards full and final settlement of his disputes under the oral family settlement of Hindu Undivided Family properties recorded in memorandum dated 24th March, 1982. It was further mutually agreed that after the death of defendant No. 1 entire property i.e. 3 Sardar Patel marg, New Delhi could be shared plaintiffs and defendant No. 2 in equal shares i.e. 1/4th share each. In other words, defendant No. 2 will not be entitled to claim any further share over and above what he had got under the gift deed of 31st March, 1991. It was agreed that defendant No. 1 would have full right to enjoy the income from the whole of the said property. Assertion had been made that defendant No. 2 again resoled from the terms of oral settlement recorded as aforesaid in the protocol and contrary to the terms thereof and the oral family understanding arrived at during the life time of their father. Certain sequence of events further has been mentioned that in order to remove any doubts that defendant No. 1 was bound by the oral family settlement and to confirm the protocol, defendant No. 1 executed a document on 15th September, 1988. It was described as a deed of family arrangement. Plaintiffs had also appended their signatures. This family arrangement again put on record, the oral family settlement as recorded in the protocol with regard to disposition of the property No. 3 Sardar Patel marg, New Delhi after the death of defendant No. 1. It was reiterated that on the demise of defendant No. 1 property No. 3 Sardar Patel Marg, New Delhi shall belong to and be owned by plaintiffs and defendant No. 2 in equal shares. In order to effectually carry into effect the terms of the oral family settlement as recorded in the protocol and then the family arrangement as aforesaid, defendant No. 1 again executed an agreement dated 17.9.1988 bequeathing her 3/4 share in property No. 3 Sardar Patel marg, New Delhi equally among plaintiffs, namely 1/4th share in each. It has been pleaded further that the aforesaid will of 17.9.1988 was irrevocable. It has been asserted that defendant No. 2 does not accept the same again in contravention of the terms thereof refused to accept the amount and failed and neglected to respond to any of the communications. It is on these broad facts that the aforesaid civil suit has been filed.
11. During the course of submissions learned counsel for defendant No. 2 relied upon the assertions made in paragraphs 19 and 25 of the plaint so as to contend that the plaintiff themselves pleaded that defendant No. 1 held property only as a constructive trustee or that the property had been purchased and built by Sardar Bahadur Sarup Singh in the name of defendant No. 1 as benami. In line with same it was alleged that if that was so the question of grant of property or transfer of the same by defendant No. 1 did not arise.
12. If the matter had ended here what has been alleged could well have taken some shape. But as referred to above and re-mentioned at the risk of repetition the plaint has been read as a whole. In paragraph 20 followed by paraph 21 of the plaint, it has been alleged and pleaded that there has been fresh family settlements that had been arrived at between the parties, brief resume of which has already been given above. The sequence of event as stated though indicate that there were one after the other some family arrangement and settlement that was arrived at. It has been alleged that despite these family arrangements defendant No. 2 did not accept the same and consequently declarations injunctions referred to already in the opening paragraph of the present order have been claimed. That being the position the whole edifice of the plaintiff claim has been based on the facts of the arrangement that have been arrived at amongst the family at all times was recorded in writing also. At this stage therefore, merely because if some transfer has been made by defendant No. 1 will not tantamount to stating that the whole case alleged by the plaintiffs in their plaint must fall to the ground. It is to be adjudicated as to what effect of the family arrangement and the transactions that were arrived at. At this stage, therefore, it will not be appropriate to press into service Order 12 Rule 6 code of Civil Procedure so as to hold that on basis of admissions so made the suit is liable to be dismissed.
13. As a consequence thereof the application fails and is dismissed.
14. By way of abundant caution, it is added that nothing said herein is any expression on merits of the matter.
15. List it before the regular bench on 11th February, 2002.