P.S. Batra v. S. Anoop Singh

Hima Kohli, J. (Oral)— 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 v. Pirthi Singh and others, 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 on account of lack of pecuniary jurisdiction and thus the present suit came to be entertained in this Court.

6. Counsel for the defendants submits that the affidavit of the plaintiff is nothing but a reiteration of the averments made in the Family Arrangement dated 15.12.1979, and that it is settled law that a Family Arrangement does not require registration. He submits that there was no requirement of any consideration to be paid to the plaintiff for executing the affidavit in question for the aforesaid reason. He further submits that it is not the case of the defendants that the affidavit executed by the plaintiff be treated as a relinquishment deed, as the same only repeats the stand of the parties as taken in the Family Arrangement dated 15.12.1979, which is binding on all the parties.

7. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order XII in the CPC, by way of an amendment. The said provision is reproduced below for ready reference:—

Order XII—Admissions

Rule 6:—(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 of which the said judgment was pronounced.”

8. The scope and ambit of Order XII, Rule 6 CPC was discussed by the Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. v. Union Bank of India, AIR 2000 SC 2740. In the aforesaid case, the Supreme Court observed as under:—

Para 12:—“As to the object of the Order 12 Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that ‘where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on 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 entitled.’ We should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.” (emphasis added)

9. In the case of ITDC Ltd. v. Chander Pal Sood & Son, 84 (2000) DLT 337 DB : 2000 (53) DRJ 96 (DB), a Division Bench of this Court interpreted the provisions of Order XII Rule 6 CPC by holding as below:—

“Para 17:—Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application of any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing…”

10. Another Division Bench of this Court had the occasion to interpret the expression ‘otherwise’ as used under Order XII Rule 6 CPC in the case of Rajiv Srivastava v. Sanjiv Tuli and Anr., 119 (2005) DLT 202 (DB). It was observed as below:

“Para 10:—“The use of the expression ‘otherwise’ in the aforesaid context came to be interpreted by the Court. Considering the expression the Court had interpreted the said word by stating that it permits the Court to pass judgment on the basis of the statement made by the parties not only on the pleadings but also de hors the pleadings i.e either in any document or even in the statement recorded in the Court. If one of the parties' statement is recorded under order 10 rules 1 & 2 of the code of civil procedure, the same is also a statement which elucidates matters in controversy. Any admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and the Court can proceed to pass judgment on the basis of the admission made there in a……………” (emphasis added)

11. Before proceeding to deal with the respective submissions of the parties, it is relevant to reproduce the statement of the plaintiff as recorded on 19.8.2008, under the provisions of Order X Rule 2 CPC. On the said date, the plaintiff stated as below:—

“I have seen the certified copy of an affidavit dated 11.12.1995 filed by the defendant and enclosed with the list of documents filed by the defendant under index dated 13.12.2007 I admit my signatures on the aforesaid affidavit marked as Exb. ‘D-2’ is at three places marked as ‘A’, ‘B’ and ‘C’. I admit stating in the affidavit in question that I shall not claim any interest in the estate of my father and my mother respectively either during their life time, or after their death. I also admit the contents of the Memorandum of Family Arrangement dated 15.12.1979 I admit that this affidavit was executed by me to settle all my disputes with my family during the lifetime of my father.

I have seen the certified copy of the Memorandum of Family Settlement dated 15.12.1979 enclosed with the list of documents filed by the defendant under the index dated 13.12.2007 I admit my signatures on all the three pages of the Memorandum of Family Settlement marked as Exb. ‘D-3’. My signatures find mention at mark ‘D’, ‘E’ and ‘F’. I admit having recoded in the aforesaid family arrangement, the modification of the earlier family arrangement dated 15.3.1978 and I also admit that it was recorded that I shall remain bound by the terms and conditions of the said family arrangement. As per the Memorandum of Family Settlement dated 15.12.1979, in lieu of giving up my 50% share in the Naraina property, I was given share to the extent of 50% in the plot No. K-84, Green Park, New Delhi and full share in plot No. D-1.B, Green Park, New Delhi. I admit that there is no reference to the property in Naraina in the family arrangement. I admit that I have not made any mention of my affidavit dated 11.12.1995 in the plaint.

Ques: Why did you not mention the execution of the affidavit dated 11.12.1995 in the plaint?

Ans: I did not recall the said affidavit and hence, did not make a mention of the same in my plaint.”

12. A perusal of the aforesaid statement establishes the fact that the plaintiff has admitted executing the affidavit dated 11.12.1995 In the affidavit the plaintiff stated that he shall not claim any interest in the entire estate of his parents either during their lifetime, or after their death. He also admitted that the said affidavit was executed by him to settle all his disputes with his family during the lifetime of his father. The plaintiff further admitted his signatures on the Memorandum of Family Settlement dated 15.12.1979 and the fact that the same was a modification of the earlier Memorandum of Family Arrangement dated 15.3.1978 While the plaintiff admitted in his statement that there was no reference to property mentioned in para 4(b) of the plaint, i.e property bearing No. A-53, Naraina Industrial Area, he volunteered that as per the Memorandum of Family Arrangement dated 15.12.1979, in lieu of giving up his 50% share in the Naraina property, the plaintiff was given a share to the extent of 50% in the plot bearing No. K-84, Green Park, New Delhi and full share in plot No. D-1.B, Green Park, New Delhi. Upon being specifically asked as to why the plaintiff did not mention the execution of the affidavit dated 11.12.1995 in the plaint, the plaintiff replied that he did not recall the said affidavit and hence did not make a mention of the same in the plaint.

13. The aforesaid conduct of the plaintiff shows that the present suit is nothing but a gross abuse of the process of the Court. The plaintiff has sought to brush under the carpet the affidavit executed by him on 15.12.1995 There is not a whisper in the plaint in respect of the aforesaid affidavit. When the defendants filed their written statement mentioning the aforesaid affidavit, in the replication, the plaintiff for the first time sought to take a stand that the said affidavit was a fraudulent transaction and that the same was never executed.

14. The aforesaid stand taken by the plaintiff in the replication stands demolished in view of the admissions made by him in his statement recorded on oath under Order X Rule 2 CPC. Thus, the very basis of the institution of the present suit for possession, partition and rendition of accounts stands negated. Admittedly, the plaintiff had during the lifetime of his parents, executed the affidavit in question categorically admitting therein, the execution of the Memorandum of Family Arrangement dated 15.12.1979 where under he was allotted 50% share of the property mentioned in para 4(a) of the plaint, i.e premises bearing No. K-84, Green Park, New Delhi and the entire share of the family plot bearing No. D-1.B, Green Park, New Delhi measuring 48 sq.yds He further stated in para 5 of the affidavit that he shall not claim any interest in the estate of his father and mother during their lifetime or after their death. In para 9 of the affidavit, the plaintiff stated that the said affidavit was being executed by him to set at rest the anxiety of his father and to straighten the affairs of the family so that there is no dispute either during the life time, or after the death of his father. In his statement, recorded on oath under Order X, Rule 2 CPC, the plaintiff admitted that in lieu of giving up his 50% share in the Naraina property, mentioned in para 4(b) of the plaint, he was given 50% share in plot No. K-84, Green Park, New Delhi and the full share in plot No. D-1.B, Green Park, New Delhi.

15. In view of the aforesaid clear, categorical, and unambiguous admissions made by the plaintiff, the present suit instituted by him is liable to be rejected. The aforesaid documents read in conjunction with the statement made by the plaintiff clearly establishes that the properties mentioned in para 4 of the plaint were duly distributed between the parties, i.e plaintiff and the defendant No. 1 during the lifetime of their father, and the parties are in possession of the properties that have fallen to their share. Thus, there is no scope of any further partition thereof. In other words, the present suit is instituted without there being any cause of action.

16. It may further be noted that the judgment referred to by the counsel for the plaintiff in the case of Sher Singh (supra) to contend that the statement made under Order X Rule 2 CPC can be taken into consideration but cannot take place of a statement made on oath, has to be examined in the light of the observations of the Court in the aforesaid case.

17. The facts of the aforesaid case were that the plaintiff therein filed a suit for cancellation of a deed of gift executed by him, on grounds of undue influence. Under the impugned gift deed, the plaintiff, who was an illiterate, physically infirm and mentally in distress, rustic villager aged about 80/90 years, was deprived of all his transferable properties during his lifetime. Thus, the plaintiff instituted a suit stating inter alia that the defendants therein, who were the grandsons of his uncle, colluded and taking advantage of the plaintiff's weakness and illiteracy, in the absence of his family members, got a gift deed executed by him in their favour. Having regard to the facts and circumstances of the aforesaid case, the Court held that the defendants were in a position to dominate the will of the plaintiff due to old age, infirmity, ignorance and illiteracy, which resulted in his being tricked. Holding that there is no apparent reason for the plaintiff therein to deprive his daughter and their sons of the right of inheritance to his property upon his death, onus lay on the defendants to rebut the presumption and establish by way of cogent evidence that the confidence reposed by the plaintiff in them was not abused, which the defendants failed to discharge. In the aforesaid background, the Court referred to the deposition of the plaintiff made in the Court that he was misled to understand that he had executed a Will in favour of his daughters. When the statement of the plaintiff made under Order X Rule 2 CPC, wherein he admitted having executed a deed of gift, was drawn to the notice of the Court, it held that the said statement has to be taken into consideration but cannot take the place of a statement made in the Court on oath and such an admission could not be treated as a conclusive statement as the statement made by him under Order X Rule 2 CPC related only to the land and made no reference to certain other immovable properties covered by the impugned gift deed.

18. The facts of the aforesaid case have no application to the facts of the case in hand. The plaintiff is neither illiterate or infirm, mentally weak or a disabled person; nor is he unaware of his rights. Rather, the plaintiff appears to be a person who has sought to hoodwink the Court by withholding a material document executed by him. The conduct of the plaintiff is nothing but a gross abuse of the process of the Court. As noted above in the case of ITDC Ltd. (supra) and Rajiv Srivastava (supra), the Court is well empowered to give a judgment on the basis of admissions made in the pleadings or otherwise, whether orally or in writing.

19. The plaintiff cannot be permitted to wriggle out of the affidavit by claiming it to be a fraudulent transaction. Nor is his stand that he did not recall the said affidavit at the time of institution of the suit, acceptable. Courts have attached great sanctity to Memorandums of Family Settlements, in the interest of upholding the institution of families and ensuring that parties who are signatories thereto remain bound by the arrangement arrived at within the four walls of their homes, thus obliterating the scope of any future litigation. In the case of Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119, the Supreme Court, while discussing the object of a family arrangement has stated as below:—

“Para 9:….The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds… (emphasis added)

Para 24. This Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates as an estoppels so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same.”

20. The attempt on the part of the plaintiff to claim failure to recall having executed an affidavit in furtherance to the Family Arrangement, can be treated as nothing but an attempt to undo what was done about 20 years ago, during the life time of the parents of the parties. In the teeth of the Family Arrangement, followed by the affidavit the plaintiff is estopped from denying the existence of a comprehensive family settlement or questioning the validity thereof, more so, when all the parties have acted on it and are already in possession of the portions allocated to them. The present suit is thus an attempt to overreach the Court and has to be treated as a gross abuse of the process of the Court. The plaintiff ought not to be permitted to misuse the Court process to realize his ill-intentions. The present suit is actuated by sheer greed and deserves to be weeded out at this stage.

21. In view of the foregoing discussion, the suit instituted by the plaintiff is dismissed with costs quantified at Rs. 50,000/-.