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2017 DIGILAW 192 (CAL)

Sarmila Bose v. Krishna Bose

2017-02-17

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : Ashis Kumar Chakraborty, J. 1. The subject matter of challenge in this revisional application is the order dated December 20, 2016 passed by the learned Civil Judge (Senior Division), 4th Court, at Alipore in the partition suit, being Title suit No. 12608 of 2014. By the impugned order, the learned Court below rejected application filed by the revisional petitioner, the plaintiff in the suit, under Order XII Rule 6 of the Code of Civil Procedure, 1908 (in short "the Code"). 2. The facts giving rise to the present revisional application lay in a narrow compass. The petitioner is the daughter of Dr. Sisir Kumar Bose, since deceased while the opposite party No. 1 is her mother, the opposite party Nos. 2 and 3 are her two brothers. The petitioner has filed the partition suit claiming, inter alia, a preliminary decree declaring the respective shares of herself and the opposite party Nos. 1 to 3 in the estate of her said deceased father, including the property at Premises No. 19, Sarat Bose Road, Kolkata, (hereinafter referred to as the "said property"), a decree directing the opposite parties to disclose the details of the estate of her deceased father and a final decree for partition in respect of the estate of her said deceased father, including the said property by metes and bounds. The petitioner has also claimed that if any of the properties or portion thereof is found to impartible, to sell the said property and distribute the sale proceeds thereof amongst the parties, as per their shares. 3. In the plaint it is the case of the petitioner that her deceased father was the absolute owner of the said property and after his father died intestate, leaving behind herself and the opposite parties as his only heirs/heiress and legal representatives, they jointly inherited the entire estate including the said property in equal shares as per the provisions of the Hindu Succession Act, 1956. According to the petitioner, she herself and the opposite parties are jointly the absolute owners of the said property, each having undivided one-fourth share therein and in spite of her repeated demands, the opposite parties are not agreeable to partition the estate of her deceased father, including the said property. On these averments, the petitioner filed the partition suit against the opposite parties. On these averments, the petitioner filed the partition suit against the opposite parties. The opposite parties are contesting the suit and they have jointly filed their written statement in the suit. In the written statement, the opposite parties have claimed that the area of the said property (described as the "suit property") is 6 cottahs and 9 chittaks and the petitioner's share in the said property comes to 1181.25 square feet, the division of the said property according to their share by metes and bounds will lead to diminution of its value which is their family dwelling house and they are entitled to retain the same. The opposite parties have further alleged in the written statement that they are not willing to sell their share in the said property which is one of the well known houses in India, that is, a house of considerable historical and national significance. They further alleged that they will not sell their share in the said property at any price, hence for justice equity and good conscience the petitioner should sell her share to them at proper price. In paragraph 5 of the written statement the opposite parties have averred that subject to their said requirement that the plaintiff should sell her share, they do not deny the petitioner's one-fourth share in the said property. 4. After filing of the written statement of the opposite parties, the petitioner filed an application in the partition suit, under Order XII Rule 6 of the Code praying for, the following reliefs: "(a) Preliminary decree determining the shares of the parties in the suit as mentioned in paragraph 4 herein above upon judgment on admission. (b) Appoint a Learned Commissioner of Partition to partition, divide and demarcate the estate of Late Sisir Kumar Bose by metes and bounds according to the respective shares of the parties as detailed in paragraph 4 hereinabove. (c) Direction be given upon the Learned Commissioner to partition and demarcate the estate by metes and bounds and/or dispose of the same within a particular time framed as may be fixed by this Learned Court. (d) Such further order or orders as Your Honour may deem fit and proper." 5. In paragraph 4 of the above application the petitioner averred that in the written statement the defendants admitted that they jointly have three-fourth share and the plaintiff one-fourth share in the said property. (d) Such further order or orders as Your Honour may deem fit and proper." 5. In paragraph 4 of the above application the petitioner averred that in the written statement the defendants admitted that they jointly have three-fourth share and the plaintiff one-fourth share in the said property. The opposite parties contested the application for judgment upon admission and filed their written objection raising objection with regard to the maintainability of the suit on the ground that the petitioner having claimed possession of the said property has not paid appropriate court fees. In paragraph 4 of the said written objection, the opposite parties made an averment that though the shares of the parties are not disputed, but they are willing to keep/retain the said property as a unit which has been well known house in Kolkata and the division of the said property, a family dwelling house for a long time, will lead to diminish the intrinsic value of the property. The opposite parties also made an averment that if the petitioner is willing to sell her share in the said property, she may get the market value of her share as may be determined amicably or by the learned Court in terms of Section 3 of the Partition Act for retaining the building with the family. 6. By order dated December 20, 2016 the learned Court below rejected the contention raised by the opposite parties that the suit is not maintainable. The learned Court below held that a plain reading of the written statement filed by the opposite parties shows that they have admitted that the petitioner has one-fourth share and they themselves jointly have three-fourth share in the said property, but the opposite parties have not admitted the claim of the petitioner for making the partition of the said property. The learned Court below further held that it can safely be said that the opposite parties have not admitted the main relief claimed in the suit by the petitioner for partition and the judgment on admission is not a matter of right but is discretionary in nature. The learned Court below concluded that having considered the facts and circumstances, she is of the clear opinion that it will not be just and proper to pass a judgment on admission. The learned Court below concluded that having considered the facts and circumstances, she is of the clear opinion that it will not be just and proper to pass a judgment on admission. As mentioned earlier, it is the said order dated December 20, 2016 which is the subject matter of challenge in this revisional application at the instance of the petitioner plaintiff. 7. Assailing the impugned order, Mr. Saptangsu Basu, learned Senior Advocate appearing for the petitioner plaintiff strenuously contended that it is well settled that in a partition suit, the preliminary decree declares the shares of the respective parties to the suit and it is the final decree which declares the final rights of parties in their respective shares in the suit property, which is executable. He submitted that in this case, it is only after the passing of preliminary decree in the suit declaring the shares of the respective parties to suit in the said property, the question will arise, whether the petitioner is entitled to have partitioned her one-fourth share in the said property by metes and bounds or the opposite parties will purchase her share. It was contended that from a reading of paragraph 5 of the written statement filed in the suit, it is evident that the opposite parties in clear, unambiguous and unequivocal terms admitted that the petitioner plaintiff has one-fourth share in the said property and, as such, the learned Court below committed a grave error of law in rejecting the application filed by the petitioner under Order XII rule 6 of the Code. 8. On the contrary, Mr. Malay Kumar Basu, learned Senior Advocate representing the opposite parties strongly contended that the power of a Court to pass a judgment upon admission under Order XII Rule 6 of the Code is discretionary in nature and in the present case, the discretion exercised by the learned Court below in rejecting the application filed by the petitioner suffers from no infirmity calling for any interference by this Court in exercise of revisional jurisdiction. He urged that in the partition suit the opposite parties have already filed applications under the Partition Act, claiming to purchase the share of the petitioner in the said property and in the written statement, the opposite parties accepted the case of the petitioner claiming one-fourth share in the said property, subject to their right to purchase her share. He urged that in the partition suit the opposite parties have already filed applications under the Partition Act, claiming to purchase the share of the petitioner in the said property and in the written statement, the opposite parties accepted the case of the petitioner claiming one-fourth share in the said property, subject to their right to purchase her share. Thus, he contended that the averments made by the opposite parties in their written statement to the effect that the petitioner has one-fourth share in the said property and they are entitled to purchase the petitioner's share in the said property by no means can be construed to constitute an admission on their part, giving any right to the petitioner to obtain a preliminary decree declaring her one-fourth share in the said property. He submitted that in the application, the petitioner has also prayed for appointment of the learned Commissioner of Partition to partition, divide and demarcate the said property according to the respective shares of the parties in the said property. It was contended that in the present case, a specific issue has arisen with regard to the right of the opposite parties to purchase the one-fourth share of the petitioner in the said property and until the decision of the Court on the said issue, the application filed by the petitioner under Order XII Rule 6 of the Code was not maintainable. In support of such contention, reliance was placed on behalf of the opposite parties on the decision of the Supreme Court in the case of S.M. Ashif vs. Verender Kumar Bajaj reported in AIR 2015 SC 3658 : (2015) 9 SCC 287 . 9. In reply, it was submitted on behalf of the petitioner that neither did she pray before the learned Court below nor is she pressing before this Court any relief, except for passing of the preliminary decree and thereafter the rights sought to be enforced by the opposite parties under the Partition Act be decided by the learned Court below. 10. I have considered the materials on record, as well as the submissions advanced by the learned counsel appearing for the respective parties. The suit filed by the petitioner in this case is a partition suit. The petitioner has claimed partition of the estate of her deceased father including the said property. 10. I have considered the materials on record, as well as the submissions advanced by the learned counsel appearing for the respective parties. The suit filed by the petitioner in this case is a partition suit. The petitioner has claimed partition of the estate of her deceased father including the said property. In a suit for partition it is the preliminary decree which declares the rights and liabilities of the parties. In a suit for partition there are two decrees namely, the preliminary decree and the final decree. A preliminary decree is one which declares shares of the respective parties in the suit property leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is the final decree. It is the final decree which is executable. It is settled law that in a partition suit there may be more than one preliminary decree for various reasons. In this regard ready reference may be made to the decisions of the Supreme Court in the cases of Phoolchand and Ors. vs. Gopal Lai reported in AIR 1964 SC 1470 and Rachakonda Venkat Rao vs. R. Satya Bai reported in (2003) 7 SCC 452 . It is also trite that in a given case, more than one final decree can be passed. 11. In this case, undisputedly the petitioner and the opposite parties are the only heirs and legal representatives of the said Dr. Sisir Bose, since deceased who died intestate. In the plaint the petitioner has claimed that she herself and the opposite parties, have one-fourth share each in the estate of the said deceased, including the said property. In their written statement the opposite parties have admitted the one-fourth share of the petitioner in the said property. 12. In this regard, paragraph 5 of the written statement filed by the opposite parties are set out hereinbelow: "5. As the plaintiff almost never lived in the suit property which is also a property of historical and national significance and as the defendants will not sell their share at any price, hence for justice, equity and good conscience the plaintiff should sell her share at proper price. As the plaintiff almost never lived in the suit property which is also a property of historical and national significance and as the defendants will not sell their share at any price, hence for justice, equity and good conscience the plaintiff should sell her share at proper price. Subject to this requirement of the defendants, the defendants do not deny the plaintiff's one fourth share, sticks to two broad facts that (i) plaintiff almost never lived in this property, (ii) the property apart from being personal dwelling house of Dr. Sisir Bose is also a house of national importance where numerous leaders of India belonging to different parties came for discussion or meeting on several occasions during the last 40 years. Once again the defendants asserted that the property ought not be sold or divided, the defendants will preserve the property in a befitting manner and (iii) the plaintiff who is out of possession should see reason and sell her share at the market price, as may be determined by the Court." 13. It was submitted that the opposite parties have already filed an application(s) in the partition suit to exercise of their right under the Partition Act claiming that the Court should allow them to purchase the share of the petitioner in the said property. The object of the provisions contained in Rule 6 Order XII of the Code is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to admission of the defendant the plaintiff is entitled. As held by the Supreme Court in the case of S.M. Ashif (supra), it is also well settled that before passing a judgment upon admission under Order XII Rule 6 of the Code, the Court has to satisfy that the admission of the liability by a party is clear and unequivocal. Even a party is entitled to explain the admission made by him. In the instant case, the suit filed by the petitioner is the partition suit wherein she claims to have inherited one-fourth share in the said property from his said deceased father, along with the opposite parties also having one-fourth share each. In a partition suit it is the preliminary decree passed by the Court which declares the shares of the respective parties to suit in the suit properties. In a partition suit it is the preliminary decree passed by the Court which declares the shares of the respective parties to suit in the suit properties. From the averments made by the opposite parties in their written statement, as recorded above, it is clear that they have admitted the petitioner has one-fourth share in the said property, but they claim that the petitioner should sell her said share in the said property to them at proper price. The applications under Sections 2 and 3 of the Partition Act can only be filed by a party in a suit for partition. It is well settled that passing of a preliminary decree does not bar to Section 3 of the Partition Act being attracted. An authority for this view can be found in the decision of a learned Single Judge of this Court in the case of Manik Lai Dutt and Ors. vs. Pulin Behari Pal and Ors. reported in AIR 1950 Cal 431 . In a suit for partition when the shares of the parties to the suit in the properties are undisputed, the Court can pass a preliminary decree without making a further investigation with regard to the shares of the respective parties. Therefore, in the present case, when the opposite parties admitted that the petitioner has one-fourth share and each of them have one-fourth share in the said property, there was no bar on the learned Court below to pass a preliminary decree declaring that the petitioner and the opposite parties have one-fourth share each in the said property. Of course, the preliminary decree is not the final decision in the partition suit which can be executed and in view of the pendency of the application filed by the opposite parties under the Partition Act, before proceeding to pass the final decree in the suit the said applications of the opposite parties has to be decided by the learned Court below. Ultimately upon making further enquiry, the Court below may not pass a decree for partition of the said property, by metes and bounds and allow the opposite parties claim to purchase the share of the petitioner. Ultimately upon making further enquiry, the Court below may not pass a decree for partition of the said property, by metes and bounds and allow the opposite parties claim to purchase the share of the petitioner. Further, in the facts of the present case when the petitioner has given up prayers (b) and (c) of her application as quoted above, I find no merit in the ground of objection raised on behalf of the opposite parties with regard to the prayer of the petitioner for obtaining a preliminary decree in respect of the said property. 14. I have not been referred to any text on the law of partition or any decided case that even in a case where the partition suit comprises more than one properties and the parties admit their respective shares in one the properties, the Court cannot pass a preliminary decree in respect of the said property, pending adjudication of their shares in the remaining properties. 15. For all the foregoing reasons, I find that the learned Court below fell into an error of law to reject the application filed by the petitioner under Order XII Rule 6 of the Code and the impugned order passed by the learned Court below cannot be sustained. The revisional application CO. 127 of 2017 succeeds and the impugned order dated December 16, 2016 passed by the learned Court below in Title Suit No. 12608 of 2014 stands set aside. 16. The learned Court below is directed to decide the application filed by the petitioner under Order XII Rule 6 of the Code afresh, in the light of the above findings. 17. There shall, however, be no order as to costs. 18. Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.