Sanjay Kishan Kaul, J.— Property seems to be the genus of family disputes. Late Subhash Chand passed away on 20.3.1991 leaving behind his second wife, Meera Gupta, the appellant herein and his adopted daughter Rashi, respondent No. 3 herein to fight over his estate. Late Subhash Chand and his first wife Smt. Parkash did not have any issue and had adopted respondent No. 3 vide registered adoption deed dated 24.7.1981 It may be added that respondent No. 3 is the natural child of respondent No. 4. A decade of litigation does not seems to be suffice for these parties.
2. The appeal arises from the impugned order dated 28th May, 1999 disposing of the application filed by respondent No. 3 herein being IA No. 11944/92 under Order 12 Rule 6 and under Order 40 Rule 1 read with Section 151 CPC for judgment on admission and for the appointment of a Receiver of the suit property.
3. The appellant filed suit for partition, rendition of account and for permanent injunction in the year 1991. The appellant was married to late Subhash Chand on 10.12.1990 But Subhash Chand passed away soon thereafter on 20.3.1991 The appellant claimed interest in the property of late Subhash Chand as his wife to the extent of 50%. The other respondents have been made parties to the suit in view of the fact that certain properties were held jointly by late Subhash Chand with his brother. Thus according to the appellant, she and respondent No. 3 are entitled to 50% share each in the estate of late Subhash Chand.
4. The controversy does not rest at this claim. It is a further claim of the ap pellant that the estate of Smt. Parkash, the first wife of late Subhash Chand who passed away on 16.7.1988, as claimed by respondent No. 3 in the written statement should also be treated as part of the estate of Sh. Subhash Chand as Smt. Parkash had no independent source of income and the assets in her name were actually the assets of late Subhash Chand. Thus in that estate of Smt. Parkash also the appellant claims equal share with respondent No. 3.
5. The claim of the appellant was resisted by respondent No. 3. In so far the estate of late Smt. Parkash is concerned, it was the contention of respondent No. 3 that the same was only the estate of Smt. Parkash and on her death would devolve in equal share on late Subhash Chand and respondent No. 3. It was the further contention of respondent No. 3 that on 16.9.1988, Subhash Chand had executed a registered will bequeathing all his property to respondent No. 3. Thus respondent No. 3 claimed rights in the entire estate of late Subhash Chand.
6. So far as the present controversy is concerned, it is suffices to say that the Will propounded by respondent No. 3 is alleged to have been revoked by late Subhash Chand vide deed of revocation dated 5.3.1991 as claimed by the appellant. The result of these claims and counter claims is that if the Will of late Subhash Chand is treated to have been legally revoked then the appellant and respondent No. 3 would have equal share in the estate of late Subhash Chand. Further assuming that estate of Smt. Parkash was in fact not her estate but the estate of late Subhash Chand, in that case also the same would also be equally shared between the appellant and respondent No. 3. It is this fact which weighed with the learned Single Judge while deciding the application under Order 12 Rule 6 of the Code of Civil Procedure (hereinafter referred as Code) and the relief was granted to respondent No. 3 by the judgment on admission and preliminary decree for partition was passed in respect of the estate to the extent of her admitted share. It may be added that the learned Single Judge has, however, treated the estate of Smt. Parkash as her own and thus held that respondent No. 3 would be entitled to 1/2 of her estate within her own right and 1/4th of the total estate as legal heir of late Subhash Chand totalling to 3/4th share. Respondent No. 3 was thus declared as owner of 3/4th share in the properties mentioned in Annexure ‘A’ which were owned by Late Smt. Parkash and 1/2 share in the properties of late Subhash Chand which are mentioned in Annexure ‘B’.
7. At the stage of hearing of the present appeal we put a query to Mr. V. B. Andley, Learned Sr. Counsel for the appellant that in view of these categorical admissions, at best the only question in the appeal would arise in respect of 1/4th of the estate of late Smt. Parkash. This was so as if the claim of the appellant that the estate of Smt. Parkash was actually the estate of Late Subhash Chand was to be believed then the appellant would have 1/2 share did not 1/4th share in the said Annexure ‘A’. However, the answer to the said query from the learned Senior Counsel for the appellant was that though it was factually so but there could not be a preliminary decree passed in terms of the impugned order as the admission have to be read as a whole. In nut-shell the contention is that either the appellant also gets her 1/2 share if respondent No. 3 is getting 1/2 share or nobody gets anything till the decision of the suit. In our view such a stand of the appellant cannot be sustained for reasons set out hereinafter.
8. Mr. V.B Andley, learned Sr. Counsel for the appellant cited a number of authorities on the law laid down as to the circumstances under which the court should exercise powers to pass judgment on admissions under Order 12 Rule 6 of the Code. Learned Sr. Counsel referred to the judgment of Motabhoy Mulla Essabhoy v. Mulji Haridas, AIR 1915 Privy Council 2 to contend that admission in pleading cannot be dissected and if it is made subject to a condition, it must either be accepted subject to the condition or not accepted at all. It was thus argued that since the admission of the appellant of the share of the respondent No. 3 is subject to the condition of her share in the estate of late Subhash Chand. a judgment on admission could not have been passed without granting to share of the appellant as claimed for in the plaint. To the same effect he relied upon the judgment of the Supreme Court in Dudh Nath Pandey v. Suresh Chandra Bhgattasali, AIR 1986 SC 1509 where it was held that it is not permissible to rely on a part of the admission made by the defendant ignoring the other.
9. Mr. Andley further referred to a Division Bench judgment of the J & K High Court in Union of India v. M/s. Feroze and Co., AIR 1962 J&K 66 to contend that the admission must be un-conditional and where the admission is made subject to a condition, the decree under Order 12 Rule 6 of the Code could not be passed. The said judgment dealt with certain security deposits which the plaintiff was entitled to, subject to plaintiff furnishing a ‘No Demand Certificate’ as per condition of agreement between the parties. Mr. Andley further relying on the judgment drew our attention to the portion of the judgment where it is stated that judgment on admission under Order 12 Rule 6 of the Code is a matter of discretion and not a matter of right and the court would not entertain an application for such judgment when the case involves question which cannot be conveniently dealt with in a motion under the Rule. Learned Sr. Counsel for the appellant further referred to a case of State Bank of India v. Midland Industries and others, AIR 1988 Delhi 153 to contend that raising objections going to the root of the case or raising specific issues, in spite of admission, imply that a decree under Order 12 Rule 6 cannot be passed. A reference was also made to the case of Baljit Kaur v. United Insurance Company Ltd., 70 (1997) DLT 742 to contend that Order 12 Rule 6 of the Code can be acted upon only when the admission are clear, unambiguous and unequivocal where serious questions of fact or law are not to be determined. Another judgment referred to was of Kanti Singh and others v. Project & Equipment Corporation of India Ltd., 70 (1997) DLT 419. Learned Sr. Counsel for the appellant also referred to the judgment in Smt. Radha Lal v. M/s. Jessop & Company, AIR 1992 Delhi 331 and Dena Bank v. Bindal Construction (Pvt.) Ltd., AIR 1992 Delhi 171 in support of the same contention.
10. Mr. Andley, learned Sr. Counsel for the appellant then referred to the case of Kanti Singh (supra) to contend that the provisions of Order 12 Rule 6 of the Code should be invoked only at certain stages of the proceedings and not at every stages in the suit. In the case of Kanti Singh (supra) issues had been framed and dates of trial were fixed and the learned Single Judge of this Court came to the conclusion that without recording evidence of the parties, relief cannot be granted at that juncture. Learned Sr. Counsel further referred to another judgment of the learned Single Judge of this Court in Punjab National Bank & Anr.… v. S. Kartar Singh…., 66 (1997) DLT 857 to contend that once evidence has started then it is incumbent on the Court to go through the entire trial and judgment on admission as envisaged in Order 12 Rule 6 of the Code cannot be granted at that stage.
11. Mr. Arun Mohan, learned Senior Counsel for the respondent has more or less supported the reasoning given in the impugned judgment of the learned Single Judge granting preliminary decree on the basis of admissions. Learned Sr. Counsel for the respondent also drew our attention to the fact that the application under Order 12 Rule 6 was filed soon after filing of the written statement in the year 1991 and not at a later stage. Thus jurisdiction of the court was invoked at an early stage itself but unfortunately the application was not decided for one reason or the other. Learned counsel also referred to the fact that though the will of late Subhash Chand relied upon by respondent No. 3 was not in doubt, the alleged writing claimed to be the revocation of the will by the appellant dated 5.3.1991 can hardly be claimed to be any revocation in law. The said document contains a number of sentences which have been scored off. Not only this, the alleged revocation is not even mentioned in the plaint. Learned Sr. Counsel also drew our attention to the Annexure ‘A’ which was the estate of late Smt. Parkash. Annexure ‘A’ consists of various lady jewellery items, Sarees, sewing machine etc. apart from certain shares and debenture. It is also relevant to state that estate of late Subhash Chand also had a number of shares and debentures separately.
12. We have duly considered the submissions made by learned Senior counsel for the parties and have gone through the record. At the stage of deciding an application under Order 12 Rule 6 of the Code, controversy on merits on disputed question of fact cannot be considered. It is only the admission which have to be seen. There is no doubt that the admissions should be un-conditional, unequivocal and unambiguous. The question, however, is whether the admission made by the appellant in the instant case can be said to be un-conditional and un-ambigous to the extent that the decree was liable to be passed on admissions in terms of the impugned order?
13. As discussed above, it is an un-disputed position that if case of the appellant is taken at the highest and the estate of late Smt. Parkash is also treated as an estate of Late Subhash Chand, even in that case respondent No. 3 would be entitled to 50% of the properties mentioned in both the Annexures ‘A’ and ‘B’. On the other hand the share of the appellant is clearly in dispute. The appellant has an onerous task to establish in respect of Annexure ‘A’ that the items mentioned in the said Annexures were not the estate of late Smt. Parkash. A further fact that also to be kept in mind is the very nature of items mentioned in it consisting of Jewellery of ladies and personal belongings apart from shares and debentures. Be that as it may a dispute has been raised and thus in our considered view only 50% of the estate of late Smt. Prakash can be stated to be the un-disputed share to which respondent No. 3 would be entitled. Similarly if the will propounded by respondent No. 3 is ultimately proved to have validly been revoked by late Subhash Chand in that case also respondent No. 3 would be entitled to 50% share of the estate.
14. Admissions made by the appellant to the aforesaid extent cannot be stated to be conditional. If the appellant succeeds respondent No. 3 gets the aforesaid share and if the appellant fails the complete estate goes to respondent No. 3 and the appellant gets nothing. Thus for the appellant to contend that respondent No. 3 should get nothing till she gets her disputed 50% share is a dog in the manger policy. The appellant wants to keep on the sword of litigation hanging over the head of respondent No. 3 to even deprive her of the un-disputed share. In fact, the appellant has managed to do this for the last almost 10 years. The only relief which is liable to be permitted to the appellant is in view of her plea in respect of the estate of late Smt. Parkash that since the same formed a part of the estate of late Subhash Chand, she would be entitled to 1/2 of the estate in case she succeeds.
15. It would be also appropriate to consider the plea of the appellant about the stage of invocation of the provisions of Order 12 Rule 6 of the Code. It may be relevant to re-produce the said provision which is reads:
“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 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.
16. A bare reading of the said provision would show that the parties to suit are entitled to invoke the said provision and claim relief “at any stage of the proceedings”. The expression used is un-ambiguous - “at any stage of the suit”. In view of this clear provision, it would not be permissible to lay down a cut off point in the process of the proceedings in the suit to deny the invocation of the said provision. Thus the mere fact that issues have been framed would not be a good ground to reject an application under Order 12 Rule 6 of the Code. It may, however, be said that in the present case the application under Order 12 Rule 6 of the Code was filed by the respondent much prior to the framing of issues but for no fault of her it remained un-decided for one reason or the other.
17. In view of the aforesaid conclusion, the law laid down in the case of Punjab National Bank & Anr.… v. S. Kartar Singh…., 66 (1997) DLT 857 and Kanti Singh and others v. Project & Equipment Corporation of India Ltd., 70 (1997) DLT 419 cannot be held to lay down good law and are thus over ruled. The wording of Order 12 Rule 6 of the Code are couched in very wide language and the powers of the court are accordingly quite wide and not circumstances by any stage in the suit. Undoubtedly to invoke said provision, the admission must be clear, un-ambiguous, un-conditional and unequivocal.
18. We may add at this stage that during course of disposing of the application of respondent No. 3 by the impugned order, the learned Single Judge has been constrained to observe about the large number of cases on the original side and in view thereof has come to the conclusion that respondent No. 3 is entitled to judgment on admission. In our considered view this cannot be a good reason for grant of decree under Order 12 Rule 6 and to this extent the observations made by the learned Single Judge cannot be held to be laying down good law.
19. We are thus of the considered view that the respondent was rightly held entitled to judgment on admission. On the extent of the share the judgment and decree of the learned Single Judge is liable to be modified to the extent that respondent No. 3 is entitled to 1/2 share each in properties described in Annexure ‘A’ and Annexure ‘B’.
20. The result is that the appeal is partly allowed. The aforesaid observations of the learned Single Judge about exercise of power under Order 12 Rule 6 of the Code on ground of delay in suits is set aside. The preliminary decree passed by learned Single Judge in terms of the impugned order is sustained with the modification that respondent No. 3 is held to be the owner of 1/2 share each in properties described in of Annexure ‘A’ and Annexure ‘B’ of the schedule attached to the written statement.
21. The parties are left to bear their own costs.