Madras High Court
Dr. Vijayakumar Rau vs Dr.B.Manohar Rama Rau on 30 September, 2008
Equivalent citations: AIR 2009 (NOC) 358 (MAD.), 2009 (2) ABR (NOC) 371 (MAD.) 2009 (2) AJHAR (NOC) 485 (MAD.), 2009 (2) AJHAR (NOC) 485 (MAD.), 2009 (2) AJHAR (NOC) 485 (MAD.) 2009 (2) ABR (NOC) 371 (MAD.), 2009 (2) ABR (NOC) 371 (MAD.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30.9.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Application No.2158 of 2006 in C.S.No.912 of 2004 Dr. Vijayakumar Rau Applicant vs. 1. Dr.B.Manohar Rama Rau 2. Mrs.Pushpa Vijaychander Respondent For Applicant : Mr.M.K.Kabir For R1 : Mr.Perumbulavil Radhakrishnan For R2 : No appearance. ORDER
The plaintiff filed the aforesaid application seeking to pass an interim decree and judgment based on the admission made by the first defendant/first respondent in the letter dated 14.6.2004.
2. The plaintiff has instituted the suit in C.S.No.912 of 2004 for partition, to direct the first respondent to render true and proper account and also for settlement of accounts under sections 46 and 48 of the Partnership Act.
3. The plaintiff/applicant would contend that the partnership consists of the immovable property bearing No.829 Poonamallee High Road, Kilpauk, Chennai and movable assets as detailed in the plaint schedule. The aforesaid immovable property was originally purchased by Dr.P.Rama Rau, the grandfather of the applicant out of his earnings. He established a Nursing Home in the said property until his demise on 11.5.1956. Dr.P.Rama Rau married Seetha Ramu Rau and out of the wedlock, he had two sons and one daughter viz., Dr.B.Rama Rau, Dr.Madhava Rau and Mrs.P.Malathi Sripathy Rau. The applicant and the respondents are the sons and daughters of Dr.B.Rama Rau through his second wife Sumathi Rama Rau. On the demise of Dr.P.Rama Rau intestate, his estate was succeeded by his wife and three children. There was a partition in the family under which the immovable property described in the plaint schedule was allotted to B.Rama Rau. He continued the Nursing Home established by his father renaming it as Rama Rau Poly Clinic. It belongs to the joint family of Dr.B.Rama Rau. He constituted the Partnership Firm on 10.4.1972 admitting the applicant and the first respondent as partners along with him. Mrs.Sumathi died on 20.11.2002 and Dr.B.Rama Rau died on 5.1.2003. After the demise of Dr.B.Rama Rau, the applicant and the respondent became the only legal heirs to succeed to his estate. The Partnership was also re-constituted on 6.1.2003. The applicant decided to opt out of the partnership and terminated the partnership by his letter dated 12.6.2004. The first respondent, in his reply letter dated 14.6.2004 admitted the share of the applicant herein. He has also admitted the fact that the second respondent is also entitled to moiety in the share of Dr.B.Rama Rau. Under the partnership, each of the partners was entitled to 1/3 share. On the demise of Dr.B.Rama Rau, his 1/3 share is opened up for succession. The applicant and the respondents are entitled to 1/3 share each in the said 1/3 share. The applicant has now filed the present suit for partition and separate possession of his 4/9 share. The first respondent is entitled to 4/9 share and the second respondent is entitled to 1/9 share respectively. The first respondent has no valid defence as the properties are liable to be partitioned. Therefore, the present application under Order XII Rule 6 of the Code of Civil Procedure is filed seeking a decree on the admission made by the first respondent.
4. The third respondent has not filed any counter. The first respondent Dr.B.Manohar Rama Rau, in his counter, would contend that the second respondent has got considerable property even during the lifetime of Dr.B.Rama Rau. The applicant cannot seek to assert his right without the gamut of evidence with regard to the entirety of the properties. The first respondent has put in several years of practice in the hospital and the hospital is doing excellent service to the Society. After the demise of Dr.B.Rama Rau, the applicant caused the first respondent to execute a fresh partnership deed on 6.1.2003 which is non est in law and the consequential termination of the partnership can have no legal effect. The entire reading of the reply dated 14.6.2004 will go to show that there is no admission by the first respondent, who had sacrificed his entire life to pick up the hospital while the applicant was busy in earning in US dollars. The applicant, who abandoned the firm has disentitled himself to the 4/9 share which he now claims. One portion in the reply letter cannot be separated and treated as admission when the entire statement relates to the same subject. Therefore, the first respondent would pray for dismissal of the application.
5. Order XII Rule 6 of the Code of Civil Procedure reads as follows:-
"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 questions between the parties, make such order or give judgment as it may think fit, having regard to such admissions."
6. It is not necessary that admission by either of the party should be only in pleading to enable the court to pass a judgment on the basis of the admission made by a party to the suit. It is also not necessary that the admission should be in writing. It can also be oral. The admission may be in the form of pleadings, evidence, letters, other correspondence, etc. There is also no fixed stage for passing a judgment on admission. The court is empowered to pass an order on admission at any stage. It is also not necessary that an application should emanate from the party to the suit. Even if the court, on its own motion, finds that there is a clear admission with regard to any of the issues involved in the suit, the court is empowered to pass a judgment on admission. It is also not necessary that admission should relate to all the issues involved in the suit. A judgment can be passed and a decree can be drawn up with respect to a particular issue which is candidly admitted by a party to the suit.
7. Order XII Rule 6 of the Code of Civil Procedure empowers the Civil Court to pass a judgment and decree in respect of admitted claims pending disposal of disputed claims in the suit without actually waiting for determination of other questions. In the same suit, there can be more than one decree passed at different stages, but, each decree shall be separate and independent. It is to be noted that a judgment on admission shall not be passed by the court unless such admission is clear, unambiguous and unconditional.
8. The Delhi High Court in STATE BANK OF INDIA v. M/S.MIDLAND INDUSTRIES (AIR 1988 DELHI 153) has held as follows:
"The purpose of O.12, R.6, C.P.C is to avoid waiting by the plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim of the defendant. The rule only secures that if there is no dispute between the parties, and if there is on the pleadings or otherwise such an admission as to make it plain that the plaintiff is entitled to a particular order or judgment he should be able to obtain it at once to the extent of admission. But the rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise where specific issues have been raised inspite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those issues and prove the same before he becomes entitled to decree and the plaintiff in that event cannot have a decree by virtue of provision of O.12, R.6 C.P.C without proving those issues."
I fully concur with the aforesaid decision of the Delhi High Court.
9. Referring to the terms of the lease deed and the admission found over there, the Supreme Court in CHARANJIT LAL MEHRA v. KAMAL SAROJ MAHAJAN (AIR 2005 SC 2765) observes as follows:-
"In fact, order XII, Rule 6 C.P.C is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. In the present case, looking at the terms of lease deed, there can be no two opinions that the tenancy was joint/composite and not individual one. Therefore, on these admitted facts the view taken by learned Single Judge of the High Court appears to be justified."
Therefore, there is no difficulty in passing a judgment invoking the provision under Order XII Rule 6 of the Code of Civil Procedure even when an admission is found in a letter written by the defendant to the proceedings.
10. The letter dated 14.6.2004 written by the first respondent to the applicant reads as follows:-
" 1) I do not agree with the letter dated 11th June 2004, the accompanying statement dividing the properties and the plan suggesting an unfair division.
2) I agree that Pushpa is entitled as a sister to a moiety in fathers personal estate which can be mutually decided.
3) Between partners of Ramarau Polyclinic you and I are entitled to equal shares of all assets and liabilities on dissolution of the partnership.
4) Pushpa has taken 26 lakhs, Car & Furniture, value about 15 lakhs totally Rs.41 lakhs plus cash. This was done after daddy's demise which means that she has taken her share being 1/3rd which you talk about in daddy's personal estate. Now you and I are entitled the remaining 2/3rd which I do not find here now.
5) As far as the partnership is concerned the terms of the deed mention clearly that the remaining partners shall carry on the business of the firm. After daddy's death you and I reconstituted the partnership deed with the entire assets and liabilities. The property in the firm can now be distributed between the two existing partners."
11. Learned Senior Counsel appearing for the applicant would contend that there is a clear admission in the aforesaid letter written by the first respondent by way of reply to the letter dated 11.6.2004 written by the applicant to the first respondent. Wherein not only the share of the applicant but also the share of the second respondent has been unequivocally admitted by the first respondent. When the share has been admitted in a partition suit, there is no embargo for the court to postpone the hearing. It can straightway pass a preliminary decree leaving the parties to agitate over the alleged adjustments made towards the share of the respective parties, he would submit.
12. The learned counsel appearing for the first respondent would seriously contend that the letter dated 14.6.2004 is not an admission without any rider. The entire gamut of the letter will have to be gone by this court before arriving at a conclusion that there is an admission without any condition attached to such admission.
13. The letter dated 14.6.2004 emanated from the first respondent does not clearly speak about the entitlement of the second respondent in the 1/3 share of the father of the respective parties in the partnership business. The letter refers to the personal estate of the father of the respective parties. The entitlement of the second respondent in the partnership estate has been spoken to in para 2 of the letter. The further version in the said letter discloses that the applicant and the first respondent are entitled to = share each. The letter does not refer to the entitlement of Dr.B.Rama Rau, the applicant and the first respondent in the ratio of 1/3 : 1/3 : 1/3 and the right of the second respondent to the extent of 1/3 in the 1/3 share of Dr.B.Rama Rau.
14. On a careful perusal of the said letter, it is seen that the first respondent has come out with an allegation that the second respondent had also taken her 1/3 share in the personal estate of the father. There is no clear indication in the letter that the the first respondent under reference "the personal estate" did refer to the share of Dr.B.Rama Rau in the partnership firm. The first respondent has lamented that the 2/3 share of the applicant and the first respondent in the personal estate of the father is not now available for partition. The first respondent would say that the entire assets and liabilities of the partnership firm reconstituted by the applicant and the first respondent can be distributed between themselves. There is no reference in that context that the second respondent is also entitled to 1/3 share in the 1/3 share of the deceased Dr.B.Rama Rau.
15. In view of the above, the court finds that there is virtually no clear, unambiguous and unconditional admission in the subject letter dated 14.6.2004 to enable the court to pass a judgment on the basis of the admission under Order XII Rule 6 of the Code of Civil Procedure.
16. Therefore, rejecting the plea for passing a judgment on the basis of admission alleged to have been made by the first respondent, the application stands dismissed.
ssk.