Bombay High Court
Pradip Pransukhlal Sagar @ Pradip ... vs Jagdish Pransukhlal Sagar And 57 Ors on 25 March, 2022
Author: N. J. Jamadar
Bench: N. J. Jamadar
.. 1 .. NMS-2006-2018-S-119-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 2006 OF 2018
IN
Digitally
signed by
SUIT NO. 119 OF 2017
SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
TALEKAR Date:
2022.03.25
1. Jagdish Sagar & 3 Ors. ...Applicants
18:13:54
+0530 (Orig. Defendant Nos. 1 to 4)
In the matter of :
1. Mr. Pradip Pransukhlal Sagar
& 4 Others ... Plaintiffs
Versus
1. Mr.Jagdish Pransukhlal Sagar
& 57 Others ... Defendants
*****
Mr.Ashish Kamat a/w. Mr.Archit Jayakar, Ms.Divya Tyagi, Ms.
Anushka Agarwal i/b Jayakar and Partners for applicant Nos.1 to
4-original defendant Nos.1 to 4 in NMS/2006/2018.
Mr.Sarosh Bharucha a/w. Mr.Rajmani Varma i/b Navdeep Vora
Associates for plaintiffs.
Mr.Melvyn Fernandes a/w. Mr. Saurabhsai Ganesan i/b Vaish
Associates for defendant Nos.13 to 18.
*****
CORAM : N. J. JAMADAR, J.
CLOSED FOR ORDER : 13th OCTOBER 2021
PRONOUNCED ON : 25th MARCH 2022
ORDER :
1. This Notice of Motion is taken out by the applicants-original defendant Nos.1 to 4 seeking, inter-alia, the following reliefs :
"(a) Without prejudice to all Defendant Nos.1 to 4's right, contentions and defences in the Suit, pending the hearing and fnal disposal of the Suit, this Hon'ble Court be pleased to pass a preliminary decree of partition only with regard to Flat No. 502, 5th Floor, Queens Diamond Apartments, Mama Parmanand Marg, Mumbai 400 004 (hereinafter referred to as "the Subject Flat") and upon such decree, this Hon'ble Court Shraddha Talekar, PS 1/26 .. 2 .. NMS-2006-2018-S-119-2017.doc be please to :
(i) to appoint a recognised valuer to evaluate, ascertain and fi the value of the Subject Flat and shares of the respective parties therein;
(ii) permit the Plaintiffs and Defendants to inter-
se bid for the Subject Flat and upon receipt of the highest bid, order and direct either the Plaintiffs to purchase the Defendants' shares in the Subject Flat or alternatively permit the Defendant Nos. 1 to 4, jointly and severally alongwith Defendant Nos. 5 to 7 as a group, to purchase the Plaintiffs' 1/5th undivided right, title and interest in the Subject Flat;
(iii) upon the rule of Subject Flat being completed, this Hon'ble Court be pleased to direct vacation of the Subject Flat by the parties who have sold out their share in the Subject Flat to vacate the same;
(iv) in favour of the successful purchase, this Hon'ble Court may direct the eiecution of documents either through the parties or through an offcer appointed by the Court so as to convey appropriate right, title and interest in the Subject Flat, more particularly declared at Eihibit 'I' and handing over of possession thereof."
2. This Suit is instituted for partition and separate possession of the joint family properties and multifarious consequential reliefs. The late Kanthadbhai Lulubhai Sagar was the common ancestor of the plaintiffs and defendant Nos.1 to 57. Kanthadbhai had three sons, viz., Late Pransukhlal, Late Natwarlal and Late Manharlal. Plaintiff Nos.1 to 5 and defendant Nos.1 to 29 are the members of Pransukhlal branch. Defendant Nos.30 to 42 represent Natwarlal branch and defendant Nos.43 to 57 represent Shraddha Talekar, PS 2/26 .. 3 .. NMS-2006-2018-S-119-2017.doc Manharlal branch.
3. In the year 1920, Late Kanthadbhai established a jewelery business in Mumbai under the name and style of M/s.Nathalal Kanthadbhai Jewellers. Late Kanthadbhai acquired a number of properties including Flat No.10 in Jer Mansion, situated at 5, New Queens Road, which is now known as "Queens Diamond Apartments Association" and the said Flat No.10 has been subsequently renumbered as Flat No.501. After the demise of Kanthadbhai, his sons continued the family business and also started a new frm under the name and style of M/s.Pransukhlal Brothers Jewelers. It is the case of the plaintiffs that from the income generated from the joint family business, other properties were acquired.
4. The Pransukhlal branch of the family started their independent business venture under name and style of Aum Jewels from the joint family funds. In the year 1979, Pransukhlal branch purchased Flat No.502, 5 th Floor, Queens Diamond Apartments, Mama Parmanand Marg, Mumbai 400 004 (the subject matter of this Notice of Motion), which is adjacent to Flat No.501, from the income of the joint family business. The Shraddha Talekar, PS 3/26 .. 4 .. NMS-2006-2018-S-119-2017.doc Pransukhlal Branch also acquired Flat No. 201 in the said Queens Diamond Apartments in 1982.
5. In 1980-1990, Natwarlal and Manharlal parted ways leaving M/s.Pransukhlal Brothers Jewelers business in the Pransukhlal branch of the family. The plaintiffs further aver that thereafter the Pransukhlal branch acquired a number of other properties described in Eih.'H' of the Plaint from-out of the joint family funds.
6. In the year 2013, differences arose between the plaintiffs and the defendants. The plaintiffs instituted Suit No.3856 of 2013 before the Bombay City Civil Court seeking the relief of permanent injunction restraining the defendant Nos.1 to 4, 7 to 9, 11 to 13, 29 and 58 from disturbing plaintiffs' possession over the joint family properties. Though a statement was made before the City Civil Court that the defendants would not disturb the use, occupation and possession of the plaintiffs over the area of Flat Nos.501 and 502 in Queens Diamond Apartments, marked in 'blue colour' on the rough sketch anneied to the Plaint in the said Suit, the defendants disturbed the possession of the plaintiffs and sought to encroach upon the area in occupation of the plaintiffs. The plaintiffs took out Notice of Motion No.2020 of 2016 seeking Shraddha Talekar, PS 4/26 .. 5 .. NMS-2006-2018-S-119-2017.doc injunctive reliefs. The City Civil Court rejected the said Notice of Motion by an order dated 16th September 2016 recording, inter- alia, the contention of the defendants that there has been no partition of the joint family properties by metes and bounds, and, thus, the plaintiffs could not claim eiclusive possession over any portion of Flat Nos.501 and 502. The plaintiffs were thus constrained to institute the suit seeking, inter-alia, a declaration that the businesses, frms and properties set out in Eih.F and Eih.H belong to the joint family of Pransukhlal and plaintiffs have a share therein and the consequential reliefs of partition, injunction etc.
7. By this Notice of Motion, the defendant Nos.1 to 4 have sought a preliminary decree of partition with regard to Flat No. 502, 5th foor, Queens Diamond Apartments ('the Subject Flat') only, with the assertion that the Subject Flat was purchased on 29th September 1981 jointly by the fve sons of Late Mr. Pransukhlal Sagar viz. Pradip Sagar (plaintiff No.1), Jagdish Sagar (defendant No.1), Subhash Sagar (defendant No.7), Manoj Sagar (defendant No.13) and Harshad Sagar, who passed away and is represented by defendant Nos.19 and 20, for an aggregate consideration of Rs.2,50,000/- from out their respective separate Shraddha Talekar, PS 5/26 .. 6 .. NMS-2006-2018-S-119-2017.doc funds. Each of the above-named sons of Pransukhlal contributed Rs.50,000/- towards the consideration and thus have an undivided 1/5th share, right, title and interest in the Subject Flat and are thus joint owners thereof. Defendant No.13-Manoj, according to defendant Nos.1 to 4, eiecuted a Deed of Gift, on 20 th June 2015, in favour of defendant No.1 and gifted his undivided 1/5th share in the Subject Flat to defendant No.1. Thus, the defendant No.1 has 2/5th share in the Subject Flat.
8. The defendant Nos.1 to 4 assert that, to the aforesaid eitent, the plaintiff No.1's right in the Subject Flat (1/5th share) is admitted by the defendants. Therefore, whilst disputing and denying the remainder of the plaintiffs' claim in the Suit, it is undisputed that the plaintiff No.1 is a co-owner of the Subject Flat and holds 1/5th undivided right, title and interest therein, a decree for partition only for and in respect of the Subject Flat can be passed.
9. In justifcation of the aforesaid prayer, the defendants have adverted to various alleged acts of commission and omission attributable to the plaintiffs which made it eitremely diffcult for the rest of the co-owners to occupy the portions of the Subject Flat. On account of the continual disputes, the familial relations Shraddha Talekar, PS 6/26 .. 7 .. NMS-2006-2018-S-119-2017.doc of the defendants with the plaintiffs have been severely strained and it is impossible to live under the same roof. Moreover, in the light of the confguration of the Subject Flat, it is impossible to partition the individual share of the joint owners of the Subject Flat, nor the Subject Flat is susceptible to equitable partition, and, therefore, it is necessary to pass an order to value and thereafter sale the share of the plaintiffs in the Subject Flat. The applicants-defendant Nos.1 to 4 are willing to purchase the share of the plaintiffs therein. Hence, this Notice of Motion.
10. The plaintiffs have resisted the prayers in the Notice of Motion by fling an affdavit-in-reply. At the outset, the plaintiffs contend that the Notice of Motion is fled with an oblique motive to dis-house the plaintiff Nos.1 and 2 from the Subject Flat. The instant Suit has been instituted for partition of several joint family businesses and properties set out in Eih.F and Eih.H to the Plaint. However, to derive an undue advantage of the straitened fnancial position, which the plaintiff Nos. 1 and 2 fnd themselves in, the defendant Nos.1 to 4 have sought a preliminary decree for partition in respect of Subject Flat and thereby snatch away the roof over the head of the plaintiffs.
Shraddha Talekar, PS 7/26
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11. The plaintiffs further contend that the defendant Nos. 1 to 4 have taken out this Notice of Motion to wriggle out of the situation which obtained on account of an order passed by this Court in Appeal From Order (Stamp) No. 26972 of 2016, whereby the interim protection granted by the City Civil Court, in the Notice of Motion, which came to be eventually dismissed, is continued.
12. It is contended that the claim of the defendants that the plaintiffs' claim as regards the Subject Flat only has been admitted by the defendants is incorrect. In fact, in a communication addressed by the counsel for the defendants on 26th December 2014, the defendants had shown willingness to have limited partition of Flat Nos. 502, 501 and 201, as well. Likewise, in the affdavit-in-reply to the Notice of Motion (L.) No.3553 of 2016, it was admitted that the property situated at Bhavnagar (Eih. 'B' to the Plaint) was also a joint family property and the plaintiffs also have a share therein. Thus, the very premise of the Notice of Motion that the Subject Flat is the only property in which the rights of the parties are undisputed is untrue. On these, amongst other, grounds, the plaintiffs have prayed for rejection of the Notice of Motion.
13. I have heard Mr.Ashish Kamat, the learned counsel for Shraddha Talekar, PS 8/26 .. 9 .. NMS-2006-2018-S-119-2017.doc applicants-original defendant Nos.1 to 4, Mr.Melvyn Fernandes, the learned counsel for defendant Nos.13 to 18 and Mr.Sarosh Bharucha, the learned counsel for the plaintiffs, at some length. With the assistance of the learned counsels for the parties, I have perused the material on record.
14. Mr.Kamat, the learned counsel for the applicants-defendant Nos.1 to 4 submitted that from the averments in the Plaint, especially paragraph Nos.19 and 20, it becomes eiplicitly clear that there is no dispute over the fact that the plaintiffs, defendant No.1, defendant No.7, defendant No.13 and defendant Nos.19 and 20 are the co-owners of the Subject Flat with defnite shares. The fact that the share of the defendant No.1 stood augmented in view of Deed of Gift eiecuted by defendant No.13 in favour of defendant No.1, dated 20th June 2015, is also rather incontestable. Since the acquisition of the Subject Flat by the sons of Pransukhlal was in the capacity of tenants in common, as is evidenced by the Indenture dated 29th September 1981, the aforesaid assertions in the Plaint furnish a justifable ground for passing a preliminary decree for partition under Order XII Rule 6 of the Code of Civil Procedure, 1908 ('Code').
15. In order to lend support to the aforesaid submissions, Mr. Shraddha Talekar, PS 9/26 .. 10 .. NMS-2006-2018-S-119-2017.doc Kamat placed a strong reliance on the judgments of the Supreme Court in the cases of Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India & Others 1 and V.M. Salgaocar and Bros. Vs. Board of Trustees of Port of Mormugao & Anr. 2 and a judgment of a learned Single Judge of this Court in the case of SRL Limited Vs. Techtrek India Limited 3.
16. Mr.Kamat further submitted that the legal position is absolutely clear that a decree on admission can be sought by a defendant, as well. In the peculiar facts of the case, where it has become impossible for the plaintiff No.1 and the rest of the co- owners to occupy the portions of the Subject Flat in a peaceful manner, it would be just and equitable to pass a preliminary decree and allow the co-owners to acquire the share of the plaintiffs and/or any other co-owner, at a fair value, to be determined by a recognised Valuer. To buttress the submission that a decree on admission can be passed at the instance of the defendant, Mr.Kamat placed reliance on the judgment of a learned Single Judge of this Court in the case of Ramila Kilachand Vs. Harsh Rajnikanth Kilachand & Ors. 4, and a judgment of Madhya 1 (2000) 7 SCC 120 2 (2005) 4 SCC 613 3 2014 SCC OnLine Bom. 193 4 2011 SCC OnLine 373 Shraddha Talekar, PS 10/26 .. 11 .. NMS-2006-2018-S-119-2017.doc Pradesh High Court in the case of The Arun General Industries Ltd. Vs. The Rishab Manufacturers (Pr.) Ltd. & Ors.5.
17. Mr.Bharucha, the learned counsel for the plaintiffs, on the other hand, submitted that the motive behind the prayer for a preliminary decree, which on its face appears innocuous, must enter the judicial verdict. The defendant Nos.1 to 4 are aware of the fact that the plaintiff Nos.1 and 2 are not in a position to shell out money to buy the shares of the other co-owners. Thus, the defendants have moved this Notice of Motion to throw the plaintiffs out of the joint family house. Since, the plaintiff Nos.1 and 2 have no other place to reside, apart from the Subject Flat, a decree for partition in respect of a minor portion of a joint family property would operate to the eitreme prejudice of the plaintiffs. The defendants are fully cognizant of the fact that the amount, which 1/5th share of the plaintiffs in the Subject Flat would fetch, would be wholly inadequate to acquire a roof over their head. Thus, according to Mr. Bharucha, such discretionary order under Order XII, Rule 6 cannot be passed which would cause manifest injustice to the plaintiffs, especially when there are other joint family properties; over the character of which, the parties are not 5 AIR 1972 MP 147 Shraddha Talekar, PS 11/26 .. 12 .. NMS-2006-2018-S-119-2017.doc at issue.
18. It was further submitted that the contention that on account of the strained relations, the parties have not been in a position to occupy the portions of the Subject Flat, was a ruse to dis-house the plaintiffs. None of the defendants are occupying the portions of the Subject Flat, since they are comfortably placed in other residential premises. In the circumstances, the defendants do not deserve eiercise of discretion in their favour. To emphasize the discretionary nature of the jurisdiction under Order XII Rule 6 of the Code, Mr.Bharucha placed reliance on a judgment in the case of Himani Alloys Limited Vs. TATA Steel Limited 6.
19. Ordinarily, it is at the instance of the plaintiff, who banks on an admission in the pleadings or otherwise a decree on admission is passed. However, it is not an immutable rule of law that the decree on admission at the instance of the defendant who voluntarily confesses to a portion of the plaintiffs' claim, cannot be passed. The reliance placed by Mr. Kamat on the judgments of this Court in the case of Ramila Kilachand (Supra), and of Madhya Pradesh High Court in the case of The Arun General Industries Ltd. (Supra) is well founded. Thus, the position in law 6 (2011) 15 SCC 273 Shraddha Talekar, PS 12/26 .. 13 .. NMS-2006-2018-S-119-2017.doc has crystallized to the effect that it is open to a defendant to admit a part of the plaintiff's claim and seek a decree. This position in law applies with even greater force where the Suit is for partition of the joint family properties. In a suit for partition, a defendant, who has a share in the joint family properties, is as much entitled to a decree for partition as the plaintiff.
20. The defendant Nos.1 to 4 are well within their rights in seeking a preliminary decree for partition in respect of a part of the joint family properties. The question that wrenches to the fore is whether, in the facts of the case, the Court should eiercise the discretion and pass a decree on admission by invoking the power under Order XII, Rule 6 of the Code?
21. Order XXII, Rule 6 of the Code reads as under :-
"Order XII Rule 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 ft, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-
rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
Shraddha Talekar, PS 13/26
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22. From the phraseology of the aforesaid sub-rule (1) of Rule 6, it becomes evident that the legislature has designedly conferred jurisdiction on the Court to pass judgment on admission. The legislature has taken care to ensure that the source of admission is not of decisive signifcance. Firstly, the admissions can be found either in the pleadings or otherwise. Secondly, the insistence for admission being in writing is done away with. The admission may be oral or in writing. Thirdly, the stage of the suit does not matter. The Code eipressly empowers the Court to pass judgment on admission at any stage of the suit. The said aspect is further reinforced by the words "without waiting for the determination of any other question between the parties". Fourthly, the party, in whose favour the admission is made, need not apply. The Court, on its own motion, can pass a judgment on admission if it comes to the conclusion that the claim or part of the claim of one party is admitted by the other. Lastly, the eiercise of the said power is undoubtedly discretionary. But, in view of the wide ambit and unhinged nature of the powers conferred on the Court to pass a judgment on admission, the Court may not be justifed in refusing the relief where a case falls within the four corners of the said provision. For the ultimate object of the provision is to give an Shraddha Talekar, PS 14/26 .. 15 .. NMS-2006-2018-S-119-2017.doc eipeditious relief to a party when its claim is admitted by the adversary.
23. A proftable reference in this conteit can be made to the judgment of the Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India & Ors. 7, relied upon by Mr. Kamat, wherein the object of the aforesaid rule was eipounded and the approach eipected of the Court was delineated, in the following words :
"12 As to the object of the Order 12 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 object of the Rule is to enable the party to obtain a speedy judgment at least to the eitent 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."
(emphasis supplied)
24. The aforesaid pronouncement was followed by the Supreme Court in the case of Karam Kapahi & Others Vs. Lal Chand Public Charitable Trust . The Supreme Court traced the historical 8 7 (2000) 7 SCC 120 8 (2010) 4 SCC 753 Shraddha Talekar, PS 15/26 .. 16 .. NMS-2006-2018-S-119-2017.doc backdrop of the said provision, including the amendment introduced therein by the Amendment Act, 1976 pursuant to the recommendations of the Law Commission, and instructively enunciated the true nature and import of the said provision. The observations of the Court are as under :
"37 The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about `which there is no controversy' [See the dictum of Lord Jessel, the Master of Rolls, in Thorp versus Holdsworth in (1876) 3 Chancery Division 637 at 640]. 38 In this connection, it may be noted that order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:-
"6. Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just."
39 In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it `ei debito justitial, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter of pronouncing judgment.
40. If the provision of order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider in as much as the provision of order 12 Rule 1 is limited to admission by `pleading or otherwise in writing' but in Order 12 Rule 6 the Shraddha Talekar, PS 16/26 .. 17 .. NMS-2006-2018-S-119-2017.doc eipression `or otherwise' is much wider in view of the words used therein namely: `admission of fact.........either in the pleading or otherwise, whether orally or in writing'.
41. Keeping the width of this provision in mind this Court held that under this rule admissions can be inferred from facts and circumstances of the case [See Charanjit Lal Mehra and others v. Kamal Saroj Mahajan (Smt.) and another, (2005) 11 SCC 279 at page 285 (para
8)]. Admissions in answer to interrogatories are also covered under this Rule [See Mullas's commentary on the Code, 16th Edition, Volume II, page 2177].
42. In the case of Uttam Singh Duggal & Co. Ltd., v. United Bank of India and others, (2000) 7 SCC 120, this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment.
43. In that case it was contended on behalf of the appellant, Uttam Singh Duggal, that:
(a) Admissions under Order 12 Rule 6 should only be those which are made in the pleadings.
(b) The admissions would in any case have to be read along with the frst proviso to Order 8 Rule 5 (1) of the Code and the Court may call upon the party relying on such admission to prove its case independently.
(c) The eipression `either in pleadings or otherwise' should be interpreted ejusdem generis. [See para 11, pages 126-127 of the report] Almost similar contentions have been raised on behalf of the Club. In Uttam Singh (supra) those contentions were rejected and this Court opined no effort should be made to narrow down the ambit of Order 12 Rule 6.
44. In Uttam Singh (supra) this Court made a distinction between a suit just between the parties and a suit relating to Specifc Relief Act where a declaration of status is given which not only binds the parties but also binds generations. The Court held such a declaration may be given merely on admission (para 16, page 128 of the report). But in a situation like the present one where the controversy is between the parties on an admission of non-payment of rent, judgment can be rendered on admission by Court.
Shraddha Talekar, PS 17/26
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45. Order 12 Rule 6 of the Code has been very lucidly discussed and succinctly interpreted in a Division Bench judgment of Madhya Pradesh High Court in Shikharchand v. Bari Bai reported in AIR 1974 Madhya Pradesh 75. Justice G.P. Singh (as His Lordship then was) in a concurring judgment eiplained the aforesaid rule, if we may say so, very authoritatively at page 79 of the report. His Lordship held : (AIR para 19) "... I will only add a few words of my own.
Rule 6 of Order 12 of the Code of civil Procedure corresponds to Rule 5 of Order 32 of the Supreme Court Rules (English), now rule 3 of Order 27, and is almost identically worded (see Annual Practice 1965 edition Part I. p. 569). The Supreme Court Rule came up for consideration in Ellis v. Allen (1914) Ch
904. In that case a suit was fled for ejectment, mesne profts and damages on the ground of breach of covenant against sub-
letting.
Lessee's solicitors wrote to the plaintiff's solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under rule 5 and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that rule. Sargant, J.
rejected the argument that the rule is confned to admissions made in pleadings or under rules 1 to 4 in the same order (same as ours) and said:
"The rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed."
Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargent, J. The words "either on the pleadings or otherwise"
in rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial."
46 This Court eipresses its approval of the aforesaid interpretation of Order 12 Rule 6 by Justice G.P. Singh (as His Lordship then was). Mulla in his commentary on Shraddha Talekar, PS 18/26 .. 19 .. NMS-2006-2018-S-119-2017.doc the Code has also relied on ratio in Shikharchand (supra) for eiplaining these provisions.
47 ........
48 However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word "may" has been used. But in the given situation, as in the instant case, the said provision can be applied in rendering the judgment."
(emphasis supplied)
25. In the case of Himani Alloys Limited (Supra), on which reliance was placed by the learned counsel for the plaintiffs, the Supreme Court emphasized the discretionary nature of the jurisdiction under Order XII, Rule 6. The observations of the Supreme Court in paragraph 11 are material and, thus, eitracted below :
"11 It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on eiamination of the facts and circumstances, has to eiercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be eiercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear "admission" which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [2000 (7) SCC 120], Karam Kapahi vs. Lal Chand Public Charitable Trust [2010 (4) SCC 753] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC 601]. There is no such admission in this case.Shraddha Talekar, PS 19/26
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26. On the aforesaid touchstone, reverting to the facts of the case, frst and foremost, it may be apposite to eitract the averments in paragraph Nos.19 and 20 of the Plaint, which constitute the substratum of the defendant Nos.1 to 4's claim and to which the defendants profess to accede to. They read as under :
"19 In or around 1979, the Pransukhlal branch of the family purchased Flat No. 502 in Queens Diamond Building from the said income of the said joint family business forming part of Pransukhlal branch of family, which was adjoining to Flat No.501. The said Flat No.502 was acquired on the personal recommendation of one Mr.Hosie Hoosein who was at that time part of the Managing Committee of Defendant No.58 and a close school friend Plaintiff No.1. The Plaintiffs crave leave to refer to Affdavit of Plaintiff No.1. The Plaintiffs crave leave to refer to Affdavit dated 04.04.2016 made by the said Mr.Hosi Hussain which is already part of the papers and proceedings of the said City Civil Suit.
20. The said Flat No.502 in Queens Diamonds Building was purchased in the joint names of all the sons of the said Late Pransukhlal, i.e., Plaintiff No.1, Late Harshad Sagar and Defendant Nos.1, 7 and 13 hereto. At the time when Flat No.502 was purchased, the Plaintiff No.1 was married and had three children. Late Harshad Sagar was married and had two children and Defendant Nos. 1, 7 and 13 were unmarried. Their mother, i.e., the wife of Late Pransukhlal (Defendant No.29 herein) continued to live in Flat No.501, along with Late Harshad Sagar and his family and along with Late Minal Sagar. The Plaintiff No.1 and his family, i.e., the remaining Plaintiffs along with Defendant Nos.1, 7 and 13 shifted to Flat No.502."
27. Mr. Kamat, the learned counsel for the applicants-defendant Nos.1 to 4, banking upon the aforesaid averments, strenuously submitted that these averments make it beyond the pale of controversy that the Subject Flat was jointly acquired by the Shraddha Talekar, PS 20/26 .. 21 .. NMS-2006-2018-S-119-2017.doc plaintiff No.1 and defendant No.1, defendant No.7, defendant No.13 and Harshad Sagar, the predecessor-in-title of defendant Nos.19 and 20. As the acquisition is evidenced by the Indenture, dated 29th September 1981, a document of unimpeachable evidentiary value, there is no impediment in allowing the co-owners to have partition of the Subject Flat, keeping open the rest of the contentious issues.
28. Mr.Bharucha, the learned counsel for the plaintiffs joined the issue by canvassing a submission that the premise of the defendants that the Subject Flat is the only property over which the claims of the parties are undisputed, is factually incorrect. Once this position is appreciated, the ulterior motive to evict the plaintiff Nos.1 and 2 from the Subject Flat becomes abundantly clear, urged Mr.Bharucha.
29. Two circumstances were pressed into service to bolster up the submission that there are other properties, which are undisputedly impressed with the character of joint family properties. First, a communication dated 26 th December 2014, addressed in the wake of the proceedings in Suit No.5638 of 2008 before the City Civil Court, by the defendant Nos.1 to 4, wherein, it was conveyed to the counsel for the plaintiffs that the Shraddha Talekar, PS 21/26 .. 22 .. NMS-2006-2018-S-119-2017.doc defendants were willing to have the share of the plaintiffs in Flat Nos.502, 501 and 201 valued and purchase out the plaintiffs. Paragraph No.3 of the said communication, dated 26 th December 2014 reads as under:-
"3. With reference to unnumbered para 3 of your letter under reply, my clients have instructed me to request your clients to have Flat No. 502 and Flat No. 501 as well as Flat No. 201 valued and my clients would be willing to pay your clients 1/5th share of Flat No. 502, 1/8th share of Flat No. 501 and 1/5th share of Flat No.201. I hope your clients get all the three properties valued at the earliest and you are requested to forward the Valuation Reports to me as soon as possible so that my clients can arrange to pay for your clients' share as per the prevailing market value. Needless to mention, your clients will have to relinquish their right, title and interest from Flat Nos.501, 502 and 201 upon receiving their share in each of the aforesaid properties. Kindly treat this as urgent as the Hon'ble Court has given us a last chance for settlement."
(emphasis supplied)
30. Second, reliance was placed on the affdavit-in-reply to Notice of Motion No.496 of 2017 in the instant Suit fled on behalf of defendant Nos.35 to 42, wherein, the fact that the Bhavnagar Property, described in Eihibit 'B' to the Plaint, was a joint family property was admitted and the claim of the plaintiffs for partition of the said property was supported.
31. In the backdrop of the aforesaid stand of the defendants, it is pertinent to note that the plaintiffs have instituted a Suit for partition in respect of as many as 14 immovable properties Shraddha Talekar, PS 22/26 .. 23 .. NMS-2006-2018-S-119-2017.doc enumerated in Eih.H, apart from the Schedule of businesses at Eih.F. In a comprehensive Suit for partition, the averment that a particular property was acquired out of the joint family funds constitutes a foundational fact to sustain the action. The fact that the defendants admit the claim of the plaintiffs in a particular property, thus, by itself may not ipso facto furnish a sustainable ground for passing a decree for partition in respect of that property only, without delving into the attendant and peculiar facts of the case.
32. In such a situation, the element of discretion comes to the fore. In the case at hand, where the defendants have admitted that the plaintiffs have 1/8th share in Flat No.501 and 1/5th share in Flat No.201, apart from 1/5th share in the Subject Flat, the prayer to pass a preliminary decree for partition in respect of Subject Flat alone, is required to be appreciated in the conteit of the attendant circumstances. Indisputably, the plaintiffs are in possession of a portion of the Subject Flat. Without delving into the allegations and counter-allegations as regards the use and occupation of the portions of the Subject Flat to the eiclusion and consternation of other co-owners, it would be suffce to note that the plaintiffs have made consistent effort to protect their alleged Shraddha Talekar, PS 23/26 .. 24 .. NMS-2006-2018-S-119-2017.doc eiclusive possession over the portion of the Subject Flat. Eventually, in Appeal from Order (L.) No. 26972 of 2016, with the consent of the parties and without going into merits, by an order dated 2nd July 2020, a workable arrangement as regards the use and occupation of Flat Nos.501 and 502, by the contesting parties, is made. By the said order, the hearing of the instant Suit as well as Suit No.3856 of 2016 before the City Civil Court has also been directed to be eipedited.
33. Viewed through the aforesaid prism, the endeavour of the defendants to pray for a preliminary decree for partition qua the Subject Flat, particularly value and buy out the share of the plaintiffs, cannot be countenanced de-hors the consequences it would entail on the plaintiffs. The submission that let the plaintiffs buy out rest of the co-owners, if the plaintiffs do not intend to sell their share, at the frst blush, appears attractive. However, the submission, if acceded to, subjugates the rights in the joint family properties (unity of possession and community of interest) to the vicissitudes of the fnancial fortunes of the parties. The plaintiffs assert that they have neither any other premises to reside in, nor the wherewithal to buy out the shares of the defendants. The Court cannot loose sight of these factors which Shraddha Talekar, PS 24/26 .. 25 .. NMS-2006-2018-S-119-2017.doc bear upon the eiercise of discretion. From this stand-point, in the peculiar facts of the case, the submission of Mr.Bharucha that the defendants cannot selectively seek a preliminary decree for partition, which would have the consequence of dis-housing the plaintiffs, during the pendency of Suit for partition appears justifable.
34. The matter can be looked at from another angle. In a case of general partition, where there are multiple joint family properties amenable to partition, it is not necessary that each and every partible item be partitioned by metes and bounds. The process of partition is dynamic. Myraid situations may emerge. One sharer may be allotted a specifc property with no part in one or more other properties being allotted to him.
35. For the foregoing reasons, in the peculiar facts of the case, it may not be eipedient to pass a preliminary decree as regards the Subject Flat which ostensibly operates to the prejudice of the plaintiffs as it entails the consequence of eviction of the plaintiffs from the portion of the Subject Flat, whilst a suit for general partition of multiple joint family properties, in few of which their right to seek partition is not disputed, awaits adjudication.
36. Resultantly, the Notice of Motion deserves to be dismissed. Shraddha Talekar, PS 25/26
.. 26 .. NMS-2006-2018-S-119-2017.doc
37. Hence, the following order :
ORDER
The Notice of Motion stands dismissed.
No costs.
(N. J. JAMADAR, J.)
Shraddha Talekar, PS 26/26