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2017 Supreme(Del) 4858
IN THE HIGH COURT OF DELHI AT NEW DELHI
JAYANT NATH, J.
Indra Kaushal & Another – Plaintiffs
Versus
Ravinder Kaushal & Others – Defendants
CS(OS) 38 of 2014 and I.A.No.197 of 2014
Decided On : 30-11-2017
For the Plaintiffs : Mr. O.P. Aggarwal & Mr. K.N. Singh, Advs.
For the Defendants : Mr. Rajesh Singh, Adv.
The entitlement to the suit property was determined based on the Hindu Succession Act, and the court's decision was influenced by the admissions in the written statements of the defendants.
Headnote:
Order 12 Rule 6 CPC - Partition Suit - 6 of the Specific Relief Act, 1963 - Hindu Succession Act - [Order 12 Rule 6 CPC, Section 6 of the Specific Relief Act, 1963, Hindu Succession Act]
Fact of the Case:
The suit sought a decree of partition for a property claiming 2/5th share for the plaintiffs and 3/5th share for the defendants. The plaintiffs alleged forcible dispossession and sought possession and mesne profits. The defendants opposed the prayer but had no objection to the plaintiffs' possession as per the will of Late Dr.S.S.Kaushal.
Finding of the Court:
The court found that the plaintiffs were entitled to 2/5th share in the suit property even if the validity of the will was denied by the defendants. The court passed a decree in favor of the plaintiffs for the portion bequeathed to them by the will of Late Dr.S.S.Kaushal.
Issues: Dispute over the validity of the will, entitlement to the suit property, and possession rights.
Ratio Decidendi: The court relied on Order 12 Rule 6 CPC and the Hindu Succession Act to determine the entitlement of the plaintiffs to the suit property, irrespective of the validity of the will. The court also considered the admissions in the written statements of the defendants to pass the decree in favor of the plaintiffs.
Final Decision: A decree was passed in favor of the plaintiffs for partition and possession of the portion bequeathed to them by the will of Late Dr.S.S.Kaushal.
JAYANT NATH, J.
IA No. 2067/2015(u/O XII Rule 6 CPC)
1. This application is filed under Order XII Rule 6 CPC seeking passing of a decree on admissions.
2. This suit is filed seeking a decree of partition in respect of the property bearing No.24/1, Shakti Nagar, Delhi-110007 claiming 2/5th share as that of the plaintiffs and 3/5th share of the defendants; a decree for possession is also sought for the 2/5th share of the plaintiffs; and a decree for mesne profits @ Rs.50,000/- per month.
3. It is stated in the plaint that Dr.S.S.Kaushal, the father of the plaintiffs, defendants No.1 and 2 and Late Sh.Rajiv Kaushal who is now represented by defendant Nos.3 to 5 owned the said property bearing No.24/1, Shakti Nagar, Delhi-110007 measuring 500 sq. yds comprising of ground floor, first and second floor. Dr.S.S.Kaushal expired on 24.02.1998. His wife had expired prior to his death. It is stated that during his life time Dr.S.S.Kaushal executed a Registered Will dated 17.08.1994 in respect of the suit property in favour of the plaintiffs and his three sons. The plaintiffs were given two living rooms and one dressing room adjacent to the bath room on the ground floor, which is shown in red colour in the site plan. In addition the bath room and latrine in the mid-stairs and miyani above the clinic was also given to the plaintiffs. The said portion was said to be in possession of the plaintiff jointly. However, on return from USA on 22.03.2012, plaintiff No.1 found the portion to be locked, and all the articles/belongings of the plaintiffs kept in their portion were removed/stolen. The plaintiffs were also not allowed to enter into the said premises. It is stated that they have been forcibly dispossessed by defendant Nos.3 and 4 and appropriate police complaint is said to have been lodged with Police Station, Shakti Nagar, New Delhi. A suit was also filed under Section 6 of the Specific Relief Act, 1963. However, the said suit was withdrawn with liberty to file a fresh suit before this court.
4. The learned counsel appearing for defendant Nos.1 and 2 submits that they oppose the prayer in the suit but they have no objection in case the plaintiffs are given possession of the portion of the property bequeathed to them as per Will of Late Dr.S.S.Kaushal dated 17.08.1994 as owners thereof.
5. None has appeared for defendant Nos.3 to 5 despite a pass over. I may also note that defendants No. 3 to 5 have not filed any reply to the present application of the plaintiff under Order XII Rule 6 CPC. A perusal of the written statements filed by the said defendants would show that they have denied the execution of the Will dated 17.08.1994 and claimed it to be a forged and fabricated document.
6. The learned counsel for the plaintiffs has pointed out that if for some reasons this court comes to conclusion that Late Dr.S.S.Kaushal did not validly and legally execute the said Will dated 17.08.1994, in that eventuality, the plaintiffs would be entitled to 2/5th share in the suit property. It is submitted that 2/5th share which the plaintiffs would be entitled in case of intestate succession would be a larger share than that has been bequeathed in favour of the plaintiffs by their father Late Dr.S.S.Kaushal. He submits that even if defendant Nos.3 to 5 deny the validity and legality of the Will dated 17.08.1994 executed by Late Dr.S.S.Kaushal, the plaintiffs still have rights in the suit property, namely 2/5th share.
7. Order 12 Rule 6 CPC reads as follows:-
“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 an 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 fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in a
