HIMA KOHLI, J. (Oral)

1. The present suit is instituted by the plaintiff for possession, partition and rendition of accounts against his brother, defendant No.1 and his sister, defendant No.2. Pleadings were completed in the suit and the matter was listed on 19.8.2008, for framing of issues. It was further ordered that the plaintiff shall be present in the Court for recording his statement under Order X Rule 2 of the Code of Civil Procedure (CPC). On 19.8.2008, the statement of the plaintiff was duly recorded and four issues were framed. Issue No.2 was framed as below: 2. Whether the suit of the plaintiff is liable to be disposed of under Order 12 Rule 6 CPC in view of the admissions made by the plaintiff as recorded under Order 10 Rule 2 CPC (OPP)

2. Thereafter, the matter was adjourned to 30.9.2008 at the request of the plaintiff, to enable him to arrive at a negotiated settlement with the defendants. On 30.9.2008, further time was sought on behalf of the plaintiff for exploring the possibility of arriving at a settlement with the defendants and the matter was renotified for today. It was clarified in the aforesaid order that in case a settlement is not arrived at between the parties, issue No.2 referred to hereinabove, shall be treated as a preliminary issue for the purposes of arguments.

3. Today, it is stated by the counsel for the defendants that no settlement has been arrived at between the parties as the plaintiff neither approached the defendants nor their counsel. As a result, arguments have been addressed by the counsels for the parties on issue No.2.

4. Counsel for the plaintiff submits that the statement of the plaintiff as recorded on 19.8.2008 is itself not sufficient for passing a judgment on admissions under the provision of Order XII Rule 6 CPC. In this context, he refers to the certified copies of the documents filed by the defendants under an index dated 13.12.2007 and states that the first Memorandum of Family Arrangement (hereinafter referred to as `the Family Arrangement) dated 15.3.1978 and the second Memorandum of Family Arrangement dated 15.12.1979 were executed during the lifetime of the parents of the parties. However, the affidavit of the date 11.12.1995, was executed by the plaintiff prior to the demise of the parents and cannot be treated as a relinquishment deed in respect of the estate of the parents after their demise. He states that the original of the affidavit executed on 11.12.1995 has not been filed by the defendants on the record and hence no reliance can be placed on the same. He contends that the said document was fraudulently got executed from the plaintiff and even if the same is admitted, it does not have any legal and binding force, as it was executed without consideration. It is canvassed that such a document amounts to transfer of title and thus mandatorily requires registration under the provisions of the Registration Act, 1908 and in the absence of any registration, the same cannot be taken note of. He relies on a judgment in the case of Sher Singh and others Vs. Pirthi Singh and others reported as AIR 1975 Allahabad 259 to state that a statement made under Order X Rule 2 CPC cannot be taken into consideration, so as to pass a judgment on admissions.

5. Per contra, counsel for the defendants submits that the plaintiff has withheld material information from the Court by intentionally failing to mention in the plaint, the affidavit executed by him on 11.12.1995, and thus the plaintiff has approached the Court with unclean hands, thereby disentitling him to any relief. Counsel for the defendants further states that the affidavit dated 11.12.1995 filed with the list of documents on 13.12.2007, is a certified copy of the original, which was placed on the records of Suit No.160/2002 filed by the plaintiff against the defendants in the District Court. It is pertinent to note that the plaint of the aforesaid suit was returned to the plaintiff for being filed in the appropriate Court

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