,,,,,
S.V.N. Bhatti, J",,,,,
1. Defendant Nos. 4 and 5 in C.S. (O.S.) No. 701/2021 are the Appellants, and the Civil Appeal is directed against the Judgment and Decree dated",,,,,
11.10.2022 in RFA (O.S.) No. 15/2022, on the file of the High Court of Delhi.",,,,,
2. Respondent Nos. 1, 2, and 3, in the Appeal, filed the subject suit for partition, separate possession, and permanent injunction, concerning Property",,,,,
admeasuring about 471 square yards, together with the built-up area of a house described as D â€" 897, New Friends Colony, New Delhi-110025 [Suit",,,,,
Property].,,,,,
3. For convenience, the parties are adverted to as arrayed in the Original Suit.",,,,,
AVERMENTS IN THE PLAINT,,,,,
4. It is averred that Sheila Kapila was the sole and absolute owner of the Suit Property. On 08.04.2003, Sheila Kapila died, and her husband, the late",,,,,
Sh. P.K. Kapila pre-deceased her on 15.02.1994. Sheila Kapila was practising the Hindu religion and died intestate. The parties claim to be governed,,,,,
by Hindu Law. To appreciate the inter se relationship between the parties and the claims/counterclaims for partition of the Suit Property, the",,,,,
genealogy of the parties is noted hereinunder:,,,,,
5. Therefore, the succession or inheritance to the Suit Property is governed by the principles of intestate succession applicable to a Hindu woman.",,,,,
Plaintiff Nos. 1 to 3 are the grandchildren of Sheila Kapila through Mrs. Sudha Panda, who is the first daughter of Sheila Kapila. Mrs. Sudha Panda",,,,,
died on 10.11.2019. The Plaintiffs claim one-fourth right in the Suit Property as co-owners and hence, have filed the Suit for partition, separate",,,,,
possession, etc. Defendant Nos. 1 and 2 are the daughter and son of the Late Sheila Kapila, respectively. Defendant Nos. 4 and 5 are the daughters",,,,,
of late Dr. Rajendra Kapila, through his first wife, Mrs. Bina Kapila, and are also the grandchildren of Sheila Kapila. On 21.15.2008, the marriage",,,,,
between Dr. Rajendra Kapila and Mrs. Bina Kapila stood dissolved. On 14.02.2009, the marriage between Dr. Rajendra Kapila and Dr. Deepti",,,,,
Saxena/ Defendant No. 3 was solemnized. On 28.04.2021, Dr. Rajendra Kapila died. Hence, the Plaintiffs in the array of parties included Defendant",,,,,
No. 3 and also Defendant Nos. 4 and 5 as party Defendants to the Suit.,,,,,
5.1 The Plaintiffs aver that the Suit Property is inherited by the four children of Sheila Kapila and therefore, at the foremost, the Suit Property is",,,,,
partitioned into four equal shares, allotted one such share individually to the Plaintiffs and Defendant Nos. 1 and 2. The share of Dr. Rajendra Kapila",,,,,
is deposited in the Court till a final decision on intestate disputes between Defendant No. 3 on one hand, and Defendant Nos. 4 and 5 on the other",,,,,
hand, are adjudicated by a separate legal proceeding.",,,,,
5.2 The Plaintiffs claim a share in the Suit Property as co-sharers/joint owners on the principle of devolution. The averments essential for disposing of,,,,,
the Appeal are adverted to. Defendant Nos. 4 and 5, through their mother, Mrs. Bina Kapila, have sent threatening and intimidating communication to",,,,,
Plaintiff No. 1, claiming an undetermined share in the Suit Property through e-mail. Defendant No. 4 alleged that the Late Sheila Kapila left behind a",,,,,
Will providing for succession to the Suit Property. In other words, Defendant Nos. 4 and 5 claim that the Suit Property is divided and enjoyed as per",,,,,
the last Will of Late Sheila Kapila. The Plaintiffs deny the existence of the Will said to have been executed by their grandmother. The Plaintiffs,",,,,,
Defendant Nos. 1, 2, and 3 are together in their pleas on the presence of the Will alleged to have been executed by Sheila Kapila. Therefore, the",,,,,
Plaintiffs, Defendant Nos. 1, 2, and 3, claim intestate succession to the Suit Property.",,,,,
5.3 The Plaintiffs deny the copy/photograph of the Will of Late Sheila Kapila, communicated by the Advocate of Defendant No. 4. The alleged",,,,,
original Will of Sheila Kapila is not furnished to the Plaintiffs. In this background, while the Plaintiffs deny the existence of the Will, they raise an",,,,,
alternative plea that the purported Will relied upon by Defendant No. 4, even if construed as valid, would provide an absolute legacy in favour of the",,,,,
four children of Late Sheila Kapila. Therefore, the Plaintiffs contend that succession to the Suit Property as governed by a Will, firstly, is untenable",,,,,
and illegal, and, secondly, the Will confers absolute bequest in favour of her four children. Therefore, Defendant Nos. 4 and 5 did not succeed to the",,,,,
estate of Late Sheila Kapila. Defendant Nos. 4 and 5, all these years, maintained silence on the existence of the Will including during the lifetime of",,,,,
their father, Dr. Rajendra Kapila. Defendant Nos. 4 and 5 propound the said Will of Late Sheila Kapila, after 18 years of her demise. The Plaintiffs",,,,,
resist the claim of Defendant Nos. 4 and 5 for a share in the Suit Property. Alternatively, it is averred that the Suit Property can be sold, and the sale",,,,,
proceeds be partitioned into four equal shares and are allotted to (i) Plaintiffs, (ii) Defendant No. 1, and (iii) Defendant No. 2 and the fourth share of",,,,,
Dr. Rajendra Kapila is divided among Defendant Nos. 3, 4 and 5 as finally adjudicated by a legal proceeding. The parties agree that the Suit Property",,,,,
cannot be partitioned by metes and bounds and enjoyed as a separate allotted partition.,,,,,
6. The Plaintiffs, pending Suit filed an I.A. No. 17202/2021 under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure, 1908 [CPC], pray for the",,,,,
following reliefs: -,,,,,
“,,,,,
(A) Directing sale of the Suit Property, and proceeds thereof being divided in the ratio of 25% each for the Plaintiffs, Defendant No. l and",,,,,
Defendant No.2, and the proceeds qua share of Dr. Rajendra Kapila being deposited before this Hon'ble Court until adjudication thereof;",,,,,
and,,,,,
(B) Restraining the Defendants No. 4 and 5 or their agents, assigns and representatives, from interfering with the peaceful possession of the",,,,,
Suit Property of the Plaintiffs till such time that the Suit Property is sold; and,,,,,
(C) Directing the parties to maintain status quo qua title and possession of the Suit Property.â€,,,,,
6.1 The dates of posting of the I.A. and the original Suit are also examined at an appropriate stage of our consideration.,,,,,
WRITTEN STATEMENT OF DEFENDANT NO. 1,,,,,
7. Defendant No. 1, as noted in the genealogy, is the daughter of Sheila Kapila and aged 84 years. Defendant No. 1 supports and admits the claim for",,,,,
partition among the children of the Late Sheila Kapila as legal heirs. Defendant No. 1 joins issue with Defendant Nos. 4 and 5 on the existence or,,,,,
genesis of the Will dated 18.11.1999, said to have been executed by Late Sheila Kapila. Defendant No. 1 stated a few circumstances shared by the",,,,,
Late Sheila Kapila with her, on how her children should maintain a good relationship after Late Sheila Kapila’s demise and how the Suit Property",,,,,
is inherited and enjoyed by her four children. Defendant No. 1 avers that her mother died intestate. The long gap in surfacing the Will definitely raises,,,,,
suspicion on the existence of the Will. Defendant Nos. 4 and 5 are advancing a claim not put forth or accepted by Dr. Rajendra Kapila. Having,,,,,
seriously objected to the existence of the Will dated 18.11.1999 of Late Sheila Kapila, it is also stated that sufficient circumstances are presented to",,,,,
raise suspicion on the existence of the Will. In a nutshell, it can be narrated that Defendant No.1 in all fours joined issues with Defendant Nos. 4 and 5",,,,,
on the mode and manner of administration of the Suit Property by the heirs of Late Sheila Kapila. Defendant No. 1 supports the partition and mode of,,,,,
partition and, hence, prayed for passing a decree in terms of the prayer made in the plaint. We hasten to add that the frame of the Suit is for partition",,,,,
through intestate succession and not by testamentary succession.,,,,,
WRITTEN STATEMENT OF DEFENDANT NO. 2,,,,,
8. Defendant No. 2, in all material particulars, supports the case of the Plaintiffs and Defendant No. 1. In other words, Defendant No. 2 is praying for",,,,,
partition of the Suit Property by way of intestate succession and is contesting the existence or otherwise of the Will dated 18.11.1999 of Late Sheila,,,,,
Kapila. Defendant No. 2 prays for passing a decree for a partition of immovable Property in terms of the prayer made in the plaint.,,,,,
9. We would have referred to the case of Defendant No. 3 at this juncture, but for convenience and the continuity in understanding the real issue in",,,,,
the matter, we would take up the case of Defendant No. 3 after adverting to the case of Defendant Nos. 4 and 5.",,,,,
WRITTEN STATEMENT OF DEFENDANT NO. 4,,,,,
10. Defendant No. 4 admits that the Suit Property was owned and held by Sheila Kapila as an absolute owner. Defendant No. 4 categorically raises a,,,,,
plea that Sheila Kapila did not die intestate, but she died leaving behind the Will dated 18.11.1999. Sheila Kapila, the testatrix, in her Will dated",,,,,
18.11.1999, dealt with the Suit Property. According to Defendant No. 4, a copy of the Will was provided to Defendant No. 4’s father and mother.",,,,,
The original Will was with the testatrix and her first daughter, Mrs. Sudha Panda, who was taking care of the testatrix during the last days of her life.",,,,,
Defendant No. 4 asserts that the Suit Property could be divided in terms of the Will dated 18.11.1999. Defendant No. 4 relies on a few clauses in the,,,,,
Will, which read thus:",,,,,
“i. The house shall belong to all four children with each having a 25% share in the property.,,,,,
ii. The beneficiaries will not have any power to dispose of their share of the property in any manner whatsoever. They Will have the right to,,,,,
enjoy their share of the property but will not have the right to make any will with respect to their share.,,,,,
iii. If any of the four beneficiaries die then his/her share of property shall devolve upon his/her children, who will have the full ownership",,,,,
of the property with the power of disposal. However, if the children of the deceased beneficiary intend to dispose of their share of the",,,,,
property, then they shall first offer it to the other beneficiaries or their children in case they are dead.â€",,,,,
10.1 In terms of the operative clause in the Will dated 18.11.1999, the four children of Sheila Kapila have a beneficial life interest in the Suit Property.",,,,,
The children can enjoy the Suit Property during their lifetime and do not have a right to dispose of any share in it. Similarly, Defendant No. 3 does not",,,,,
have any right in the Suit Property that can support the prayer for partition or claim the share of Dr. Rajendar Kapila. Defendant No. 4 asserts that his,,,,,
father, Dr. Rajendra Kapila, had a life interest, and he could not have executed a will in favour of Defendant No. 3. Defendant No. 4 claims to have",,,,,
acquired the share under the Will upon the demise of Dr. Rajendra Kapila along with Defendant No. 5. The written statement emphasizes a dispute,,,,,
between Defendant No. 4 and Defendant No. 5 on one hand, and Defendant No. 3 on the other hand. In the said context, it is averred that Dr.",,,,,
Rajendra Kapila’s Will dated 22.02.2020, for which a probate is obtained by Defendant No. 3, does not refer to the Suit Property. In terms of",,,,,
testamentary succession dated 18.11.1999 desired by Sheila Kapila, Dr. Rajendra Kapila could not have included the share in the Suit Property in the",,,,,
Will executed by him in favour of Defendant No. 3. According to Defendant No. 4, Sheila Kapila died by leaving behind her last Will dated",,,,,
18.11.1999. The Plaintiffs have placed a copy of the Will on record and Defendant No. 4 prays for division of the Suit Property in terms of the Will,,,,,
dated 18.11.1999. Defendant No. 4 contests the interpretation placed by the Plaintiffs and Defendant Nos. 1, 2 and 3 on the operative portion of the",,,,,
Will dated 18.11.1999. Defendant No. 4 claims that the right in the Suit Property is opened up with the demise of Dr. Rajendra Kapila/Father on,,,,,
28.04.2021. It is explicitly averred that the Plaintiffs have placed a part of the correspondence exchanged between the parties and all the e-mails are,,,,,
not placed on record. Defendant No. 4 prays for the division of Suit Property, and the prayer reads thus;",,,,,
“Pass a decree of partition of immovable Property described as 'D-897 New Friends Colony New Delhi' admeasuring about 471 Sq.,,,,,
Yards in terms of the Will dated 18 November 1999 of Late Mrs. Sheila Kapila, who was the absolute owner; of the Suit Property at the time",,,,,
of her death.â€,,,,,
11. Defendant No. 5, though filed a separate written statement, which is verbatim in line with the narrative of Defendant No. 4. For brevity, we are",,,,,
not adverting to the case of Defendant No. 5.,,,,,
WRITTEN STATEMENT OF DEFENDANT NO. 3,,,,,
12. The marriage between Dr. Rajendra Kapila and his second wife, Mrs. Deepti Saxena Kapila (Defendant No. 3), was solemnized on 14.02.2009.",,,,,
On 28.04.2021, Dr. Rajendra Kapila died. Late Dr. Rajendra Kapila upon the demise of Sheila Kapila had become one of the four co-sharers in the",,,,,
Suit Property. Defendant No. 3 states that a copy of the alleged Will was never made available or handed over to Dr. Rajendra Kapila during his,,,,,
lifetime. According to Defendant No. 3, Dr. Rajendra Kapila had no knowledge of any Will of Sheila Kapila. Dr. Rajendra Kapila, being very close",,,,,
with his mother, was never sounded on the execution of a Will by Sheila Kapila in favour of her children and grandchildren. Sheila Kapila always",,,,,
intended that each of her children is entitled to an equal share in the Suit Property. Dr. Rajendra Kapila treated his twenty-five per cent share in the,,,,,
Suit Property as an owner and incorporated it in the terms of his divorce from his first wife, Dr. Bina Kapila. Dr. Bina Kapila and her children, in spite",,,,,
of the knowledge of the mode and manner in which the Suit Property is to be partitioned, have moved the court with untenable pleas. Defendant No. 3",,,,,
prays for a decree in terms of the prayer in the plaint.,,,,,
13. In essence, it is captured that the Plaintiffs and Defendant Nos. 1 to 3 claim intestate succession to the Suit Property, and Defendant Nos. 4 and 5",,,,,
press on the existence of the Will dated 18.11.1999, and hence, claim testamentary succession to the Suit Property. The parties, through an",,,,,
independent application, moved for admission/ denial of documents on which the respective pleas are relied. We will excerpt these exchanges",,,,,
between the parties at the appropriate stage of our consideration.,,,,,
14. The following Orders of the Learned Single Judge of the High Court of Delhi are referred to as a background to appreciate arguments on,,,,,
Impugned Judgment advanced by the Counsel appearing for the parties:,,,,,
“ORDER DATED 22ND MARCH, 2022",,,,,
C.S. (O.S.) NO. 701/2021 AND I.A. NO. 17202/2021 [U/O-XXXIX, RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE, 1908 (CPC)]:",,,,,
“Pursuant to the order passed by this Court on 14th March, 2022, the counsel for the defendants No. 4 and 5 has taken instructions",,,,,
from his clients and submits that the defendants No. 4 and 5 are not inclined to purchase the respective shares of the remaining parties in,,,,,
the Suit Property at the circle rate.,,,,,
The written statements filed on behalf of the defendants No. 2, 4 and 5 are lying under objections.",,,,,
The counsels to take steps to remove the objections and have the same placed on record within two weeks from today.,,,,,
In their reply to I.A. 17202/2021, the defendants No. 4 and 5 have taken objection to the sale of the Suit Property being ordered under the",,,,,
provisions of Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (Code of Civil Procedure, 1908 (CPC).",,,,,
In response, the counsel for the plaintiffs submits that the dehors the aforesaid application, the plaintiffs are invoking powers of the Court",,,,,
under Section 2 of the Partition Act, 1893 to direct sale of the Suit Property. She states that under Section 2 of the Partition Act, sale can be",,,,,
directed suo moto by the Court.,,,,,
The parties shall address submissions on this aspect on the next day of hearing.,,,,,
List on 11th April, 2022.",,,,,
The parties may file short written submissions, not exceeding three pages, in support of their submissions within two weeks from today,",,,,,
along with the judgments sought to be relied upon.,,,,,
Interim orders to continue.â€,,,,,
ORDER DATED 11TH APRIL, 2022",,,,,
C.S. (O.S.) NO. 701 OF 2021 AND I.A. NO. 17202/2021 [U/O-XXXIX RULES 1 AND 2 of CODE OF CIVIL PROCEDURE, 1908 (CPC)] :",,,,,
“For the reasons stated in the application, the same is allowed.",,,,,
The written statements are stated to have been filed on behalf of the defendants No. 4, 5 and the defendant no. 2, but are still not on record.",,,,,
The counsels to take steps to have the written statements placed on record.,,,,,
The written submissions have been filed on behalf of the plaintiffs and the defendants no. 4 and 5.,,,,,
The counsel for the defendants No. 1 and 2 states that written submission have also been filed on behalf of the defendants no. 1 and 2,",,,,,
however, the same are not to record.",,,,,
It is made clear that the matter Will be heard on the next date of hearing even if the written statements/submissions of the parties are not on,,,,,
record.,,,,,
List on 10th May, 2022.",,,,,
Interim orders to continue.â€,,,,,
S.
No.","Particulars
of the Suit
Property","S hare of
Plaintiff
Nos. 1 to
3","S h a r e of
Defendant
Nos. 1","S h a r e of
Defendant
No. 2","Share of the
legal heirs of
late Dr.
Rajendra
Kapila
i.,"D-897
New Friends
Colony
New Delhi",25%,25%,25%,25%
confirmed the Judgment dated 10.05.2022. A close look at the Impugned Judgment discloses that the Division Bench proceeded on the premise that,,,,,
the Will dated 18.11.1999 is not disputed, and an interpretation of clauses in the Will dated 18.11.1999 arises for consideration. The operative portion",,,,,
of the Judgment reads thus:,,,,,
“The sole issue for consideration before us hinges upon the interpretation of one sanguine document â€" Will dated 18.11.1999, which,",,,,,
being admitted by all parties, is not under challenge. Relevant clauses for purposes of adjudication of disputes inter-se parties, being",,,,,
clauses (i), (ii) and (iii) of the said Will.â€",,,,,
Hence, the Civil Appeal.",,,,,
19. We have heard Learned Senior Counsel Mr. Dhruv Mehta, Mr. Shyam Divan and Mr. Ritin Rai for Defendant Nos. 1, 4 and 5 and the Plaintiffs,",,,,,
respectively and Ms. Manisha Sharma for Defendant No. 3.,,,,,
19.1 Mr. Dhruv Mehta contends that the Courts below committed serious illegality by pronouncing a judgment and passing a decree under Order XII,",,,,,
Rule 6, read with Order XV of the CPC; the main issue for consideration is whether the Suit for partition of the Suit Property belonging to Late Sheila",,,,,
Kapila is by devolution or through testamentary succession. There is no admission on this crucial aspect in a suit for partition and further, when the suit",,,,,
is initiated by one of the co-sharers, the Judgment is rendered on the ground that the children of Late Sheila Kapila are entitled to one-fourth share",,,,,
each. The basis of this partition is the core issue. By inviting our attention to the pleadings of the parties, he argued that the admission through e-mail",,,,,
by Defendant Nos. 4 and 5 is not an admission or unequivocal admission because the existence of the Will is seriously contested by the Plaintiffs,",,,,,
Defendant Nos. 1, 2 and 3. Therefore, unless and until there is a clear admission on the existence of the Will, which is proved by interpreting clauses",,,,,
in the Will, a Judgment on admission is impermissible. There is no categorical admission by the contesting parties on the existence of the Will. The",,,,,
assumption on the existence of the Will by the Impugned Judgments is illegal and to that extent, the findings are unsustainable and have been rendered",,,,,
contrary to the judicial discretion available under Rule 6 of Order XII and Rule 2 of Order XV. It is contended that there are serious and triable issues,,,,,
in the Suit for partition. Learned Single Judge committed illegality by disposing of the Suit while considering the application filed for selling and,,,,,
disposing of the Suit Property. Subject to the outcome of the above arguments, he further argued on the interpretation of the Will under Section 83,",,,,,
Indian Succession Act, 1925. A few precedents are also relied on, mainly touching upon the construction of a Will under Sections 87 and 88 of the",,,,,
Indian Succession Act, 1925.",,,,,
20. Learned Senior Counsel appearing for the Plaintiffs and Defendant Nos. 1 and 3 argued that the parties in the Suit for partition are fairly aged and,,,,,
that the Judgment on admission by the Learned Single Judge cannot be faulted with on any ground. It is argued that the Learned Single Judge, to",,,,,
appreciate the admission in the pleading, relied on the pre-litigation correspondence between the parties, read with the pleading by admission. In the",,,,,
circumstances set out by the parties, there is no dispute on the entitlement of the Plaintiffs and Defendant Nos. 1 and 2. The entitlement to the share",,,,,
of Dr. Rajendra Kapila is an inter se dispute between Defendant No. 3 on one hand and Defendant Nos. 4 and 5 on the other hand. Therefore,",,,,,
irrespective of admission or no admission on the existence of the Will, the Decree dated 10.05.2022 is legal and valid. Inviting our attention to the",,,,,
pleadings, it is argued that the differentiation between the admitted case and the disputed case comes within the scope of Order XV, Rule 2 of the",,,,,
CPC, and a decree to the extent where it is governed by admission has been made and the dispute is relegated to independent proceedings. Therefore,",,,,,
no exception could be taken to the Impugned Judgment. On the alternative argument of Defendant Nos. 4 and 5, viz., interpretation of clauses in the",,,,,
Will, a few judgments are relied on to commend that correct and available interpretation of the disputed clauses has been legally and validly carried",,,,,
out.,,,,,
21. We are, in the Civil Appeal, examining the correctness of the Judgment and Decree made on admission and confirmed by the intra Court Appeal.",,,,,
22. The examination of merits can be compartmentalized as to whether the pronouncement of judgment on alleged admission is legal and if so,",,,,,
whether the interpretation of clauses is held valid and confirms the precedents on this point. From the above preface, it is appreciated that the second",,,,,
part of the examination arises subject to a view or conclusion on the first part of our examination.,,,,,
22.1 The judicial discretion conferred on the Court is structured on the definition of admission under Section 17 of the Evidence Act, 1872 and Rule 5",,,,,
of Order VIII, Rule 6 of Order XII and Rules 1 & 2 of Order XV of the CPC.",,,,,
22.2 An “admission†means, ‘a statement, oral or documentary or contained in electronic form, which suggests any inference as to",,,,,
any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned’. [P",,,,,
Ramanatha Aiyar’s Advanced Law Lexicon, 5th Edition, Volume 1 (A-C), p. 140.]",,,,,
22.3 Admission in pleadings means a statement made by a party to the legal proceedings, whether oral, documentary, or contained in an electronic",,,,,
form, and the said statement suggests an inference with respect to a fact in issue between the parties or a relevant fact. It is axiomatic that to",,,,,
constitute an admission, the said statement must be clear, unequivocal and ought not to entertain a different view. Coming to admission in pleadings,",,,,,
these are averments made by a party in the pleading, viz., plaint, written statement, etc., in a pending proceeding of admitting the factual matrix",,,,,
presented by the other side. To constitute a valid admission in pleading, the said admission should be unequivocal, unconditional, and unambiguous, and",,,,,
the admission must be made with an intention to be bound by it. Admission must be valid without being proved by adducing evidence and enabling the,,,,,
opposite party to succeed without trial. A court, while pronouncing a judgment on admission, keeps in its perspective the requirements in Order VIII",,,,,
Rule 5, Order XII Rule 6 and Order XV Rules 1 & 2, CPC read with Sections 17, 58 and 68 of the Indian Evidence Act.",,,,,
22.4 The logic behind such jurisprudential examination of an admission is that a judgment pronounced on admission, not only denies the right of trial on",,,,,
an issue but denies the remedy of appeal. Hence, discretion has to be exercised judiciously and objectively while making a judgment on admission in a",,,,,
pleading. The existence of the power to pronounce a judgment on admission under Rule 6 of Order XII and Rules 1 and 2 of Order XV, is not an issue",,,,,
in the appeal but rather the issue is whether pronouncing judgment on alleged admission is valid and legal.,,,,,
Order XII Rule 6,,,,,
Judgment on admissions.â€"(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 any 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 accordance with the judgment and the decree shall bear the date on which the judgment,,,,,
was pronounced.,,,,,
Order XV,,,,,
Rule 1. Parties not at issue.â€"(1) Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the",,,,,
Court may at once pronounce judgment. Rule 2. One of several defendants not at issue.â€"2 [(1) Where there are more defendants than one, and any",,,,,
one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such",,,,,
defendant and the suit shall proceed only against the other defendants.] 3 [(2) Whenever a judgment is pronounced under this rule, decree shall be",,,,,
drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced.,,,,,
23. When the admissions are categorical and unequivocal, the remedies available against such a decree are limited. In a given case, as in the present",,,,,
appeal, if there is an argument on whether there is an admission of a fact or a document, before examining the merits of the matter, this Court ought to",,,,,
verify whether admission exists or not and also whether the circumstances relied upon by the Learned Single Judge can be constituted as admission,,,,,
for rendering a Judgment. At this juncture, we would like to place on record the answer of the Learned Counsel appearing for the Plaintiffs and",,,,,
Defendant Nos. 1 and 3, to our query, whether their clients are admitting the existence of the Will dated 18.11.1999 or the Will is contested. We",,,,,
notice that the Learned Counsel, going by the pleadings, reply that their clients do not admit the existence and the execution of the Will dated",,,,,
18.11.1999, which is said to have been executed by Sheila Kapila.",,,,,
24. In Uttam Singh Dugal v. United Bank of India (2000) 7 SCC 120, reiterating the objects and reasons set out while amending Rule 6 of Order XII,",,,,,
CPC, it was stated that “where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the",,,,,
admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the,,,,,
admission of the defendant, the plaintiff is entitledâ€.",,,,,
24.1 Further, the Trial Court can refuse to pass a decree “when a statement is made to a party and such statement is brought before the court",,,,,
showing admission of liability by an application filed under Order XII, Rule 6 and the other side has sufficient opportunity to explain the said admission",,,,,
and if such explanation is not accepted by the court.â€,,,,,
24.2 In the same judgment, the scope and effect of “admissions†was examined and it was held that “admissions generally arise when a",,,,,
statement is made by a party in any of the modes provided under Sections 18 to 23 of the Evidence Act, 1872â€.",,,,,
24.3 Further, this Court in Uttam Singh Duggal (supra), while adverting to Section 17, Indian Evidence Act, 1872, which provides for admissions",,,,,
through statements in oral, documentary and in electronic form, expanded the scope of admissions and recognised that “admissions are of many",,,,,
kinds: they may be considered as being on the record as actual if that is either in the pleadings or in answer to interrogatories or implied from the,,,,,
pleadings by non-traversal. Secondly as between parties by agreement or noticeâ€. The case on hand considers an alleged admission in the pleading,,,,,
including the reply given on admission and denial of documents. The provisions under Rule 5 of Order VIII, Rule 6 of Order XII, and Rules 1 and 2 of",,,,,
Order XV of the CPC, enable a court to pronounce a judgment on admission. The court is called upon to exercise judicial discretion conferred on it by",,,,,
the CPC and the Indian Evidence Act, 1872. The judicial discretion shall always be in addition to the provisions covering the judgment on admission",,,,,
and guided by the best of wit and wisdom of the Court in pronouncing a judgment on admission. The bottom line is that while ensuring judicial,,,,,
discretion, the court does not avoid a trial on an issue where a trial is needed, and findings recorded; alternatively, the court does not try an issue in",,,,,
which there is no contest between the parties. The weighing of options or judicial discretion is dependent on the peculiar circumstances of the case or,,,,,
the nature of the controversy that the court is considering.,,,,,
25. In Himani Alloys Ltd. v. Tata Steel Ltd (2011) 15 SCC 273 it is held that ‘Admissions’ should be categorical and intentional, as Order XII,",,,,,
Rule 6, CPC allows discretion rather than obligation. Admissions result in judgments without trial which permanently deny any remedy to the",,,,,
defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous, and unconditional, the discretion of the Court is not",,,,,
exercised to deny the valuable right of a defendant to contest the claim. Hence, discretion should be used only where there is a clear and unequivocal",,,,,
admission. The relevant paragraphs read thus:,,,,,
“11. It is true that a judgment can be given on an “admission†contained in the minutes of a meeting. But the admission should be,,,,,
categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6",,,,,
being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and",,,,,
circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which",,,,,
permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous and",,,,,
unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the",,,,,
discretion should be used only when there is a clear “admission†which can be acted upon. There is no such admission in this case.â€,,,,,
(Emphasis Added),,,,,
26. The controversy is on the applicable legal principle to the dispute of partition between the parties. The crux of consideration narrows down to the,,,,,
existence, execution and validity of the alleged Will dated 18.11.1999. A will in legal parlance is a testament of a testator/testatrix and is a posthumous",,,,,
disposition of the estate of the testator, directing the distribution of his/her estate upon his/her death. The Indian Succession Act, 1925 provides for",,,,,
legal requisites of a will, and proof of the execution is a sine quo non for giving effect to a will. The reasoning of limited assumption of the Will dated",,,,,
18.11.1999 for interpretative purposes of the operative portion of clauses ignores the method and manner of establishing a will as governing the estate,,,,,
of the testator/testatrix. It is useful to refer to Gopal Swaroop v. Krishna Murari Mangal and others (2010) 14 SCC 266, wherein this Court held that",,,,,
as per the provisions of Section 63 of the Indian Succession Act, 1925, the due execution of the Will consists of the following:",,,,,
i. The testator should sign or affix his mark to the Will;,,,,,
ii. The testator’s signature or the mark of the testator should be so placed that,,,,,
it should appear that it was intended to give effect to the writing as a Will;,,,,,
iii. Two or more witnesses should attest the Will;,,,,,
iv. Each of the said witnesses must have seen the testator signing or affixing his mark to the Will, and each of them should sign the Will in the",,,,,
presence of the testator.,,,,,
26.1 Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, stipulate the proof required of a Will. The",,,,,
proof of execution and attestation of a Will are strictly by the scheme of the Indian Evidence Act, and the Indian Succession Act. A Will by the",,,,,
execution is an instrument and becomes an enforceable legal document by proof in accordance with law. A court treats a Will as a legally enforceable,,,,,
document only upon proof in accordance with law. This Court in Ramesh Verma (D) Through Lrs. v. Lajesh Saxena (D) By Lrs. and another (2017),,,,,
1 SCC 257 referred to Savithri and others v. Karthyayani Amma and other (2007) 11 SCC 621, and held as follows:",,,,,
Plaint,Written Statement,,,,
Paragraph 11:
Defendant No.4 in his communications has
alleged that late. Mrs. Sheila Kapila left behind a
purported Will which allegedly gives rights to
Defendant Nos. 4 and 5 in the Suit Property in
respect of their father's share. The Plaintiffs are
not aware of any such Will. The Defendant No.
l and Defendant No.2 also informed the
Plaintiffs that too are not aware of any Will of
their late mother Mrs. Sheila Kapila and
confirmed that she died intestate. All the family
members have always believed that upon the
demise of Mrs. Sheila Kapila, the Suit Property
devolved upon Mrs. Sudha Panda, Mrs. Leela
Kapila, Mr. Jitendra Kapila, and Dr. Rajendra
Kapila in equal (25%) undivided share each.","Paragraph 24:
The contents of paragraph 11 of the Plaint are
incorrect and denied to the extent that the
Plaintiffs, Defendant No. 1 and 2 are not aware
of the Will. The Plaintiffs, Defendant No. 1 and
Defendant No. 2 were always aware of the Will
and the present suit is only an attempt to usurp
the share of Defendant No. 4 and 5 in the Suit
Property.",,,,
Paragraph 12:,Paragraph 25:,,,,
In another communication from Advocate on
behalf of Defendant No.4, reliance has been
placed on photographs of a document which is
purportedly the Will of Late Mrs. Sheila Kapila.
The original document has not been furnished to
the Plaintiffs. Without prejudice, even assuming
without conceding that the purported Will relied
upon by Defendant No.4 was a valid document
(though it is not), the said purported Will contains
an absolute bequest in favour of the four
children i.e. Mrs. Sudha Panda, Mrs. Leela
Kapila, Dr. Rajendra Kapila and Mr. Jitendra
Kapila granting them 25% share each in the Suit
Property. As such, Defendant Nos.4 and 5 do
not stand to gain any share in the Suit Property
after the demise of their father, late Dr.
Rajendra Kapila.","With respect to the contents of paragraph 12 of
the Plaint, It is denied that the Will contains an
absolute bequest in favour of the four children i.e.
Mrs. Sudha Panda, Mrs. Leela Kapila, Dr.
Rajendra Kapila and Mr. Jitendra Kapila granting
them 25% share each in the Suit Property. It is
reiterated that the Will clearly grants only
beneficial life interest to the aforesaid persons as
it clearly states that the aforesaid persons cannot
dispose of or will the Suit Property. It is only the
grandchildren of Mrs. Sheila Kapila who have
absolute rights on the Suit Property, including the
right to dispose of the same.",,,,
Paragraph 13:,Paragraph 26:,,,,
It is also not out of place to mention that prior to
the demise of Dr. Rajendra Kapila, in April
2021, neither the Defendants No.4 or 5 asserted
any rights in respect of the Suit Property. It is
only after the unfortunate demise of their father
that Defe11dants No.4 and 5 have propounded
the purported Will of Mrs. Sheila Kapila, after
more than 18 years of her demise. Thus, any
claim of Defendants No.4 and 5 is not only
belated but also barred by delay and laches.","The contents of paragraph 13 of the Plaint are
incorrect and therefore denied. It is denied that
the claim of Defendant No. 4 and 5 is barred by
delay and laches. It is clear from the Will that the
Defendant No. 4 and 5 had no right in the Suit
Property till the time Late Dr. Rajendra Kapila
was alive. Defendant No. 4 and 5 became
entitled to 25% share in the Suit Property only
upon the demise of Late Dr. Rajendra Kapila.",,,,
Thus, there is no dispute that the Suit Property is
to devolve upon the four children of Mrs. Sheila
Kapila, in equal share.",,,,,
Paragraph 14:,Paragraph 27:,,,,
Since a dispute has been created by Defendant
No.4 limited to the share of late Dr. Rajendra
Kapila in the Suit Property, the Plaintiffs are
constrained to institute the present Suit for
Partition, by Sale of the Suit Property and
division of the Sale Proceeds thereof among the
Plaintiffs. Defendant No. I, Defendant No.2a nd
Defendant No.3 in the ratio of 25% each. As
evident from the aforesaid, to the extent of share
of the Plaintiffs, Defendant No.1 and Defendant
No.2 there can be no dispute. The Suit Property
is not capable of division by metes and bounds.
As per the Plaintiffs, the following persons are
entitled to a share in the Suit Property: -","The contents of paragraph 14 of the Plaint are
incorrect and denied. It is denied that there is no
dispute to the extent of share of Defendant Nos.
1 and 2 in the Suit Property. Defendant Nos. 1
and 2 are only entitled to a beneficial interest in
the Suit Property in their lifetime and are not
entitled to sell or will their share in the Suit
Property. It is therefore denied that the dispute in
the present proceedings is limited to the share of
the late Dr. Rajendra Kapila only. It is further
denied that Defendant No.3 has any share in the
Suit Property whatsoever.",,,,
Plaintiffs No. I to 3: 25 % share (i.e., 8.33%
share each)",,,,,
Defendant No. l: 25%,,,,,
Defendant No.2: 25%,,,,,
Defendant No.3: 25%,,,,,
S. No.,Particulars,Page Numbers,Admitted/ Denied,,
1.,Photocopy of Will of Mrs. Sheila,1-4,Denied,,
2.,Affidavit of Mrs. Bina Kapila,4-6,Denied,,
3.,"Emails dated 2 October 2021 from
Madhu Sehgal to Plaintiff No.1 and
from Defendant No.4 to Plaintiff No.1",7,"R e c e i p t admitted
contents denied",,
4.,"Email exchanged between Mrs. Bina
Kapila and Plaintiff No.1 between 29
July 2021 to 10 August 2021",8,"R e c e i p t admitted
contents denied",,
5.,"Email exchanged between Defendant
No.4 to Plaintiff No.1 between 22 July
2021",9-11,"R e c e i p t admitted
contents denied",,
6.,"Email exchanged between 20 May 2021
from Defendant No.4 to Plaintiff No.1",12,"R e c e i p t admitted
contents denied",,
7.,"Email dated 4 May 2021 from
Defendant No.4 to Plaintiff No.1",13,"R e c e i p t admitted
contents denied",,
8.,"Affidavit to compliance of Section 65B
of Evidence Act, 1872",14-16,Denied,,
b) Whether the Will propounded by Defendant Nos. 4 and 5 is valid, legal and binding on the parties?",,,,,
c) Whether Defendant No. 3 is entitled to succeed to Dr. Rajendra Kapila’s share to the exclusion of Defendant Nos. 4 and 5?,,,,,
d) Whether Dr. Rajendra Kapila could bequeath the share in the suit property in favour of Defendant No. 3 or not?,,,,,
38. These are stated as available issues in the Suit however, it is for the Learned Single Judge to frame the issues. Though these are the probable",,,,,
issues, our expression may not be treated as issues framed by this Court but are adverted to emphasizing that pronouncing the judgment on admission",,,,,
in the case on hand, is erroneous and illegal. We notice that the Division Bench had straightaway assumed the existence of the Will and proceeded",,,,,
with interpreting the clauses in the Will. We notice the said approach begs the question and leaves more questions than answers. For the reasons,,,,,
already discussed, the decree and Judgment dated 10.05.2023 and 11.10.2022 are interfered with and set aside except the direction in Paragraph No.",,,,,
45 of the Judgment dated 10.05.2022, and the matter is remitted to the Learned Single Judge for trial and disposal of O.S. No. 701/2021, uninfluenced",,,,,
by any of the findings rendered till the Judgment of this Court.,,,,,
39. The above discussion takes us to the view expressed by the Learned Single Judge in directing the sale of property as set out in Paragraph No. 45,,,,,
of the Judgment dated 10.05.2022 of the Learned Trial Court. I.A.17202/2021 was filed under Order XXXIX Rules 1 and 2 of the CPC and the,,,,,
jurisdiction independent of the Partition Act 1893, to grant a prayer as made in the application is a moot question. Therefore, we hold and authorise the",,,,,
sale of the Suit Property without a Preliminary Decree in terms of Section 2 of the Partition Act, 1893.",,,,,
39.1 The majority of the parties to the lis are either septuagenarian or octogenarian. We appreciate the need for speedy and timely adjudication of the,,,,,
issues between the parties. The finding in the Judgment dated 10.05.2022, wherein it is stated that even in the event of partition, division by metes and",,,,,
bounds cannot conveniently be carried out, it is not disputed or contested by the parties. We have excerpted the prayer in I.A. No. 17202 of 2021",,,,,
above, and therefore, to avoid repetition, are not adverting to the prayer once again. The partition and apportionment in the case would be the",,,,,
proceeds realised from the sale of the suit property. Therefore, the directions issued in Paragraph No. 45 of the Judgment dated 10.05.2022 are",,,,,
adopted with a few additions and incorporated by allowing prayers made in I.A. No. 17202 of 2021 and made part of this Judgment. The additions,,,,,
made by us are shown in separate italics:,,,,,
I. At first, the Local Commissioner shall take steps to get the property converted from leasehold to freehold.",,,,,
II. The statutory fees/charges for conversion of the suit property from leasehold to freehold shall be borne by the plaintiffs and the defendants no.1,,,,,
and 2 in proportion to their share in the suit property.,,,,,
III. It is agreed that defendants no.1, 2 and 3 will execute a power of attorney in favour of plaintiff no.1 to sign all the requisite documents, forms,",,,,,
applications, and the like for the conversion of the suit property from leasehold to freehold.",,,,,
IV. The Local Commissioner shall be authorized to sign all the requisite documents, forms, applications, and the like on behalf of the defendants no.4",,,,,
and 5 for the conversion of the suit property from leasehold to freehold.,,,,,
V. The Delhi Development Authority (DDA) shall accept all the aforesaid requisite documents executed by the Local Commissioner on behalf of the,,,,,
parties for conversion of the suit property from leasehold to freehold.,,,,,
VI. After conversion of the suit property from leasehold to freehold, the Local Commissioner will conduct a private sale of the suit property and the",,,,,
parties hereto shall be given the opportunity to participate.,,,,,
VII. The Local Commissioner is requested to carry out the sale as finalized or found expedient within three months from receipt of a copy of the,,,,,
Judgment.,,,,,
VIIA. (a) The Local Commissioner is directed to initiate, conduct and complete the sale of the suit property by exploring all IT-enabled solutions such",,,,,
as (i) Group WhatsApp consisting of the Local Commissioner and the parties to the suit, (ii) An e-mail ID be opened to receive communication and",,,,,
correspondence not only with the parties and their Counsel, but also with the prospective bidders.",,,,,
(b) The Local Commissioner will complete the said process of creating a WhatsApp Group and e-mail ID within one week from today.,,,,,
(c) The Local Commissioner and the parties will explore the feasibility of hiring e-platforms that provide services for e-auction. Thereafter, the parties",,,,,
are directed and also given liberty to serve a work memo on the Local Commissioner, on the mode, manner (including paper publication,",,,,,
advertisement, minimum price, etc.) and method of conducting a private sale of the Suit Property.",,,,,
(d) The Local Commissioner is directed to go by the consensus in suggestions arrived at between the parties.,,,,,
(e) In the event of disagreement on any of the issues/suggestions in conducting the sale, etc., the Local Commissioner is given liberty to move and",,,,,
proceed as directed by the Court.,,,,,
(f) The sale of Suit Property and the realization of proceeds are completed expeditiously, preferably within three months from receipt of a copy of the",,,,,
Judgment, the sale proceeds are deposited to the credit of CS (OS) No. 701/2021, for division and disbursement in terms of the Decree made therein.",,,,,
The Registry of this Court, communicates the copy of the Judgment to the Local Commissioner appointed by the Trial Court immediately.",,,,,
VIII. In the event that the private sale is not successful, the Local Commissioner will take steps to auction the suit property under intimation by filing",,,,,
an interim report before the High Court of Delhi.,,,,,
IX. The fees of the Local Commissioner is fixed at Rs. 5,00,000/- plus out of pocket expenses, shall be borne by the plaintiffs, the defendant nos.1 and",,,,,
2 each twenty-five percent and Defendant Nos. 3, 4 and 5 put together twenty-five percent. In the event of one the claimants of Dr. Rajendra Kapila",,,,,
fails to contribute, the same is paid by the others to be adjusted or reimbursed subject to the outcome of their issues, in proportion of their share in the",,,,,
suit property in the first instance.,,,,,
X. The fees paid to the Local Commissioner as well as any other statutory fees/charges paid towards conversion of the suit property from leasehold to,,,,,
freehold shall be recovered by the plaintiffs and the defendants no.1 and 2 from the sale proceeds of the suit property as a first charge.,,,,,
XI. The parties to the suit shall render all assistance to the Local Commissioner in carrying out the aforesaid tasks.,,,,,
40. We request the Learned Single Judge on remand to dispose of O.S. No. 701 of 2021 as expeditiously as possible, preferably within four months",,,,,
from receipt of a copy of this Judgment. We make the above observation keeping in perspective the age of the contesting parties.,,,,,
41. By applying the settled position of law and ratio of the Judgments referred to in the preceding paragraphs, we are convinced, the Judgments",,,,,
impugned suffer from a substantial error of law. For the above reasons, we are of the view that the impugned Judgments rendered on admission are",,,,,
liable to be set aside, accordingly set aside in the manner indicated above and the matter be remitted to the Learned Single Judge for framing issues",,,,,
and affording an opportunity of trial to the parties, to prove their respective cases and pronounce the Judgment.",,,,,
42. It is contextual to note that in a suit filed for partition, the courts must endeavour to comprehensively adjudicate and decide the right entitlement",,,,,
and share of the parties in the same proceeding and must avoid multiplicity of proceedings or relegating parties to a fresh round of litigation. The,,,,,
partial adjudication in the circumstance of the case is erroneous and ought to have been avoided.,,,,,
43. Accordingly, the Civil Appeal and I.A. No. 17202/2022 are allowed as indicated above. There is no order as to costs.",,,,,
