MR AMIT AGARWAL vs MR TANUJ AGARWAL
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 29.02.2024
+ CS(OS) 135/2022, I.A. 3735/2022, I.A. 13767-68/2022
MR AMIT AGARWAL ….. Plaintiff
Through: Mr. Aaditya Vijay Kumar, Mr. Akshit Mohan, Ms. Shreya Shree Singh, Advs.
versus
MR TANUJ AGARWAL ….. Defendant
Through: Ms. Malavika Rajkotia, Ms. Akriti Tyagi, Advs.
CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH
: JASMEET SINGH, J (ORAL)
I.A. 13766/2022
1. This is an application under Order XV Rule 1 read with Order XII Rule 6 of CPC seeking preliminary decree declaring the plaintiff as ½ owner of the property located at D-421, Palam Extension, Harijan Basti, Sector 7, Dwarka – 110075 (suit property).
2. The case of the plaintiff is that the plaintiff is the co-owner of the suit property along with defendant (his brother in law – wifes brother) by virtue of a registered sale deed dated 18.06.2014 which was executed through General Power of Attorney (GPA) holder. The sale deed in favour of the plaintiff is registered as Registration No. 7,384 on Page Nos. 94 to 99 in Book No. 1 of Volume 7,744 at the office of Sub-Registrar IX, New Delhi and makes him the owner of one half of undivided share of the suit property. Further, the defendant is the owner of the other ½ undivided share in the suit property. The sale deed in favour of the plaintiff has been executed on the same day by the plaintiff in his own favour by virtue of a GPA.
3. In the written statement, the stand taken by the defendant is that the defendant has paid the entire consideration for purchase of the suit property and since the plaintiff was subjecting his own wife to extreme cruelty and asked her to demand money from her brothers, under extreme pressure the defendant was forced to purchase half of the suit property in favour of the plaintiff. Paras 3, 4 and 5 of the written statement are relevant and read as:
3. Over the years, plaintiff has subjected his wife, i.e., the defendant’s sister to extreme cruelty and has from time to time asked her to demand money from her brothers on the threat of being thrown out from the matrimonial house. Under this extreme pressure, the defendant was forced to purchase the suit property and also has given money to the plaintiff many times.
4. Despite having met the financial demands of the Plaintiff, his greed remained unsatisfied. He threw the sister of the defendant out of the matrimonial home and is now disipitating all his assets to deprive his wife of her rightful entitlements in accordance with her status. To the knowledge of the Defendant, one of such properties that the plaintiff sold is Basement No. A-2, Block A-1, situated in Marble Arch Apartment, 9, Prithviraj Road, New Delhi.
4. On 28.04.2022 the Plaintiff has filed the divorce case before the Family Court, Patiala House, New Delhi in pursuance of the aforementions objective.
5. In the year 2011, the Plaintiff demanded money as a condition to keep his wife happy in the matrimonial home. The answering Defendant was thus compelled to buy the half share of the suit property and he paid the entire sale consideration. It was agreed that the rent received by the Plaintiff from lessee M/s MRG Fashions Pvt. Ltd. was to be used for the house and for his wife which however he has never done.
Without prejudice to the right of the Defendant and admitting anything it is submitted that the present suit has been filed with an ulterior motive in order to sellout the partitioned portion of the suit property so that the Plaintiff could show his net worth as NIL/zero before the matrimonial Court in order to defeat the legal rights of his wife. The wife has thus a claim on the property in lieu of maintenance.
Intention apart, the plaintiff cannot claim full rights title and interest in the suit property given that the sale consideration was paid by the defendant for the benefit of his sister who is the wife of the defendant.
4. It is to be noted that the sale deed in favour of the plaintiff has been admitted by the defendant in the admission denial of documents.
5. The purpose of Order XII Rule 6 of CPC is to avoid unnecessary trial and pass a decree once there are clear and unambiguous admissions on behalf of the defendant. The admissions as stated in the Order XII Rule 6 cannot be by any stretch of imagination mean that the defendant has to state I hereby admit the averments in the plaint. The clear and unequivocal statement/admissions have to be inferred and culled out from a meaningful reading of the pleadings. Recently, the Honble Supreme Court in Vikrant Kapila v. Pankaja Panda, 2023 SCC OnLine SC 1298 has observed as under:-
33. 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.
6. Also, the Honble Supreme Court in Karan Kapoor v. Madhuri Kumar, (2022) 10 SCC 496 has observed as under:-
24. Thus, legislative intent is clear by using the word may and as it may think fit to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the court can refuse to invoke the power of Order 12 Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by the other, and the court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the court if thinks fit may pass an order at any stage of the suit. In case the judgment is pronounced by the court a decree be drawn accordingly and parties to the case is not required to go for trial.
7. Admittedly, the defendants only stance in the written statement is that the consideration amount towards the purchase of the suit property has been paid by the defendant. However, the defendant has not filed any suit for declaration seeking cancellation of the sale deed in favour of the plaintiff or seeking declaration that the sale deed executed in favour of the plaintiff is invalid/void document.
8. Ms. Rajkotia, learned counsel states that she has filed documents showing payments made to the plaintiff.
9. A perusal of the account details show that the account is registered in the name of M/s India Trading Corporation and not of the defendant.
10. Assuming the best case of the defendant that the defendant is able to show that he had paid the entire sale consideration for purchase of the suit property and consequently, ½ share of the property was benami in the hands of the plaintiff, even then this Court cannot set aside the sale deed in favour of the plaintiff, in the absence of prayer/counter-claim to that effect. The only consequential relief that has to follow is to pass a preliminary decree.
11. From the aforesaid narration, the following facts emerge:
a) there is a duly registered sale deed in favour of the plaintiff making the plaintiff owner of undivided ½ share in the suit property.
b) The defendant admits that the sale deed is in favour of the plaintiff for ½ but in the defence only states that the amounts for purchase of the suit property were paid by the defendant.
c) There is no prayer/counter-claim by the defendant seeking cancellation of the sale deed in favour of the plaintiff. In the absence of any challenge, the sale deed cannot be set aside.
12. In view of the aforesaid, I am clear that the admission vis-a-vis the title of the plaintiff is clear and unequivocal and the plaintiff is entitled to a preliminary decree of partition holding that the plaintiff is owner of half undivided share in property No. D – 421, Palam Extension, Harijan Basti, Sector 7, Dwarka- 110075.
13. For the said reasons, the application is allowed and disposed of.
CS(OS) 135/2022
14. Since a preliminary decree is passed in favour of the plaintiff and against the defendant holding the plaintiff as ½ undivided owner of the suit property, at request of learned counsel for the plaintiff for appointment of an Local Commissioner (LC), Ms. Vidhi Gupta, Adv. (Mobile No.- 9910170303) is appointed as LC to visit the suit property and suggest modes of partition by metes and bounds.
15. The fee of the LC is fixed at Rs. 1 lakh to be paid by the plaintiff. The LC shall give notice of the visit to the parties. In case it is required, the SHO shall provide police protection to the LC.
16. List on 23.07.2024 for report of the LC.
JASMEET SINGH, J
FEBRUARY 29, 2024/DM
(Corrected and released on 18th March, 2024)
CS(OS) 135/2022 Page 6 of 6