The admission of title should be clear, unambiguous, and unequivocal for granting a preliminary decree. The court should consider the written statement and offer justified reasons before making a decision. The title of the properties should be determined before granting a preliminary decree.

JUDGMENT

Subhasis Dasgupta, J. - This appeal arises from the judgment and preliminary decree dated 16th July, 2018, in an application (GA 4050 of 2017) under Order XII Rule 6 of the Code of Civil Procedure, declaring the shares of the heirs of late Prabhat Kumar Mahapatra, in respect of the immovable properties, shown in the schedule appended to the amended plaint, and further appointing a learned advocate Commissioner to effect partition to the extent of shares declared in the preliminary decree.

2. A suit for partition and administration of properties, left by the late Prabhat Kumar Mahapatra came to be instituted in the year 2009.

3. The appellant company/defendant No. 6 along with the defendant No. 1 filed a written statement jointly in such suit. Besides filing the written statement, the appellant filed an affidavit to challenge the application under Order XII Rule 6 C.P.C. was filed.

4. By reason of the amendment of the plaint, the first respondent/plaintiff restricted his claim to the three (3) immovable properties, left by his father, late Prabhat Kumar Mahapatra, which is more fully described in the schedule "M" of the plaint.

5. The learned trial court by its impugned judgment and order, granted a preliminary decree on the alleged admission of the defendants in their respective written statement with respect to the title of immovable properties of late Prabhat Kumar Mahapatra, as covered in the scheduled properties, keeping in mind that though the defendant Nos. 2a and 2b had raised objection with regard to the representation of defendant No. 1 in the suit by her solicitor for her mental incapacity, but no objection was ever raised with regard to the entitlement of share of defendant No. 1.

6. Mr. Ratnanko Banerji, learned senior advocate for the appellant/ defendant no. 6 company challenging the preliminary decree, made the following submissions:

7. That the said three properties shown in the schedule to the plaint, though claimed by the first respondent/plaintiff to be the properties belonging to his late father, Prabhat Kumar Mahapatra, but the said properties were not the properties of late Prabhat Kumar Mahapatra but belonged to the Company. Reference was drawn to the audited balance sheets submitted for the year 1993-1994, wherein Prabhat Kumar Mahapatra had signed the audited balance sheets being a director of appellant company for challenging the title of late Prabhat Kumar Mahapatra.

8. That there was no conspicuous and express categorical, unequivocal and unqualified admission of appellant/defendant company admitting the title of late Prabhat Kumar Mahapatra with respect to the three (3) immovable properties shown in "M" schedule of the plaint, thereby justifying the necessity of having held a trial for determination of title of the properties, for which partition was sought for, without which preliminary decree is not sustainable.

9. That the assets of appellant/defendant company could no be made part of the subject matter of the partition for distribution amongst the heirs of late Prabhat Kumar Mahapatra. The shareholders were not the owners of the properties and assets belonging to the company, at best the personal shares held by late Prabhat Kumar Mahapatra in the appellant's company might be liable for distribution amongst the heirs of late Prabhat Kumar Mahapatra, according to their entitlement.

10. Reliance was placed by Mr. Banerji on a decision reported in rendered in the case of Bacha F. Guzdar, Bombay Vs. Commissioner of Income Tax, Bombay, (1955) AIR SC 74 that the concept of partners is not akin to shareholders in a company, as the company is a separate juristic entity distinct from the shareholders. In Halsbury's Laws of England, Vol. 6 (3rd Edn.), Page- 234, the law regarding the attributes of shares is stated as follows:

"A share is right to a specified amount of the share capital of a company carrying with it certain rights and liabilities while the company is a going concern and in its wind