A family settlement, even if unregistered, is binding if acted upon, and courts can issue a decree on admission when clear admissions exist, emphasizing the discretionary nature of Order XII Rule 6.

JUDGMENT :

M.S. JAWALKAR, J.

1. Rule. Rule made returnable forthwith.

2. The petitioners are challenging the order dated 18.07.2023 passed Below Ex.26 in Special Civil Suit No.46/2020 by 6th Jt. Civil Judge, Senior Division, Nagpur, by which the application filed by the petitioners/Orig. Plaintiffs under Order XII Rule 6 of CPC for passing a decree on admission is rejected.

3. The petitioners/Orig. Plaintiffs and respondent/Ori. Defendant are the real brothers and sisters and children of Late Shri Khurshedji Edulji Doongaji and Smt. Najoo w/o Khurshedji Doongaji. The petitioners/Orig. Plaintiffs have filed a suit for Partition, Separate Possession, Mesne Profit and Perpetual Injunction against the Respondent/Ori. Defendant in respect of the 'suit property', which is described in Para 2 of the plaint.

4. According to the petitioners/Orig. Plaintiffs the petitioners and respondent each are entitled to 1/3^rd share in the suit property. The names of petitioners/Ori. Plaintiffs and respondent/Ori. Defendant have been duly recorded in the revenue record and the same has also attained finality.

5. The suit property was jointly purchased in the name of the parents of the petitioners and the respondent namely Shri Khurshedji Edulji Doongaji & Smt. Najoo Khurshedji Doongaji. On 23/07/1987 Shri Khurshedji Edulji Doongaji expired leaving behind petitioners, respondent and their mother Smt. Najoo w/o Late Khurshedji Doongaji as his only surviving legal heirs. After his demise undivided share in the suit property devolved upon the petitioners/ Orig. Plaintiffs and the respondent / Orig. Defendant and their mother Smt. Najoo Doongaji by way of succession with equal undivided share in it. On 18/12/2016, Indenture of Family Settlement was executed between the petitioners and the respondent wherein they agreed to partition the suit property and their mother Smt. Najoo Doongaji relinquishing her undivided 1/4^th share in the suit property in favour of the petitioners and the respondents.

6. After execution of the ‘Indenture of Family Settlement’ the Company Petition No. 28/2016 JehangirVs. M/s. Stewols India was unconditionally withdrawn by the respondent. The petitioners filed Spl. C. S. No.46/2020 for Partition and Separate Possession of the suit property. The respondent/Orig. Deft. filed his written statement wherein he unequivocally admitted the 1/3 share of petitioner No.1 & petitioner No.2 in suit property. On 30/11/2022, Application was filed by the petitioners at Exh.-26 under Order 12, Rule 6 of CPC for passing a Decree on admission dated 31/03/2023. Reply at Exh.-28 is filed by the respondent opposing the application for passing a decree on admission. Learned Trial Court on 18/07/2023 rejected the application on unsustainable grounds. The aforesaid order is the subject matter of challenge in the present writ petition.

7. Learned Counsel for the petitioner contended that the Learned Trial Court failed to consider that from the perusal of the pleadings of the parties, it is clear that the parties are not at issue with respect to their right, title and interest in the suit property at all. The respondent in his paragraph B (Preliminary Objection) has clearly admitted the right and title of the Plaintiffs in the suit property. In paragraph 6 of the written statement, the respondent has not denied the joint ownership as well as the family settlement executed by them. Further, in paragraph 13 of the written statement, the respondent has also admitted the plaintiffs right in the suit property.

8. Apart from this, the respondent had unconditionally withdrawn the Company Petition No.28/2016, after execution of Family Settlement dated 18/12/2016 wherein he unconditionally agreed to partition to suit property. As such, Plaintiffs' right, title and interest in the suit property not only admitted in the written statement but is also admitted by the Respondent in the "Indenture of Family Settlement dated 18/12/2016" pursuant to which the Company Petition No.