The court's discretion to pass a preliminary partition decree under Order XII Rule 6 of the Code of Civil Procedure, based on the admitted facts and unsubstantiated defense.

ORDER

I.A. 13622/2022 (U.O. XII R. 6r/w S. 151 CPC)

1. The present application purporting to be under Order XII Rule 6 of the Code of Civil Procedure, 1908 [Code] seeks the drawl of a preliminary decree of partition in respect of property no.14/1 Shakti Nagar, Delhi-1100072 [suit property].

2. For the purposes of considering the prayer for a judgment on admission being entered, the Court deems it apposite to notice the following facts.

3. The suit property, undisputedly, was purchased by the late Sh. Hem Chander Gupta on 12 September1976. Sh. Hem Chander Gupta is stated to have died intestate on 31 December 1999 leaving behind his wife and five sons whose details appear below:

i. Smt. Premwati Gupta

ii. Sh. Mange Ram Gupta

iii. Sh. Rajinder Kumar Gupta

iv. Sh. Santosh Kumar Gupta

v. Sh. Satish Chander Gupta

vi. Mr. Bhushan Kumar Gupta

4. The mother, Premwati Gupta also died intestate on 12 July 2018. Consequently, her 1/6th undivided share in the suit property devolved upon her five surviving sons and as a consequence of which the plaintiffs contend that all the five surviving sons became the owner of 1/5th undivided share in the suit property. Sh. Mange Ram Gupta, the eldest son of the deceased Sh. Hem Chander Gupta and Smt. Premwati Gupta, is stated to have gifted his 1/5th undivided share to his daughter-in-law Smt. Shalini Gupta. It becomes pertinent to note that Sh. Santosh Kumar Gupta and Sh. Satish Chander Gupta, Sh. Bhushan Kumar Gupta and Smt. Shalini Gupta have instituted the present suit as plaintiffs. The relief for partition is opposed solely by Sh. Rajender Kumar Gupta, the other son of the deceased Sh. Hem Chander Gupta and Smt. Premwati Gupta.

5. According to the case set up in the plaint, the plaintiffs approached the defendant for partitioning of the suit property by mutual consent with each party thereto being entitled to 1/5th share therein. The plaintiffs are stated to have approached the defendants for partition being affected by metes and bounds. Since the aforesaid request was not acceded to, the present suit came to be filed on 18 April 2022.

6. The defendant has filed a written statement in these proceedings. It becomes pertinent to note that in the written statement the factum of the suit property having been purchased by the late Sh. Hem Chander Gupta is not disputed. The property thus and indubitably would be liable to be viewed as the self-acquired property of the late Sh. Hem Chander Gupta. The solitary defense which is proffered is that on or about March 1999 late Sh. Hem Chander Gupta during his lifetime called upon all his sons, being the Class-1 legal heirs, to partition the suit property. According to the defendant, parties agreed to an equitable partition of the suit property and that an oral partition came about at that time.

7. In the written statement, it is stated that the defendant as well as the other plaintiffs consequently and in terms of the said oral partition came to occupy the identified portions in the suit property. It is based on the aforesaid plea of an oral partition stated to have been arrived at in March 1999 that the defendant avers that the suit is barred by limitation.

8. Learned counsel appearing for the plaintiffs submitted that, in light of the admitted position appearing from the pleadings of parties that the property was self-acquired, the plea of an oral partition is clearly liable to be negatived. It was further submitted that since the property was self-acquired by the father of the parties and he remained the owner thereof during his lifetime, at least till his demise there could have been no partition in terms of which the property may have been divided amongst his legal heirs. It was also contended that the property, if at all the father did so desire, could have been transferred either by way of a gift or a conveyance. It was submitted that neither the plea of oral partition nor the plea of such a partition having been made by the father during his lifetim