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In the case, Supreme Court has said there was no categorical admission by the contesting parties on the existence of the Will and 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
The Supreme Court has said in a suit filed for partition, the courts must endeavour to comprehensively adjudicate and decide the right entitlement and share of the parties and must avoid multiplicity of proceedings or relegating parties to a fresh round of litigation.
A bench of Justices Aniruddha Bose and S V N Bhatti thus allowed an appeal filed by Vikrant Kapila and others against the Delhi High Court's division bench order with regard to a suit property situated at upscale New Friends Colony, New Delhi.
In the case, the court noted the Single Judge in terms of discretionary jurisdiction under Order XII, Rule 6, read with Order XV, Rule 1 of the CPC, passed a decree without conducting a trial.
The bench did not approve of the conclusion by the single judge in view of contradictory statements by defendants on existence and possession of the Will.
"We record that a decree has been passed, and it does not appear merely as a preliminary decree, but rather appears to be both, i.e., preliminary and final in more than one sense. We notice that the inference drawn by the Single Judge where a case for a Judgment and Decree on admission is made out, suffers from serious legal flaws. The very basis for the Judgment and Decree is that Defendant Nos. 4 and 5 failed to produce the original copy of the Will dated 18.11.1999," the bench said.
Subsequently, the division bench confirmed the order by the single judge bench, as it proceeded on the premise that the Will of November 18, 1999 is not disputed, and an interpretation of clauses in the Will arises for consideration.
The appellants contended the courts committed serious illegality by pronouncing a judgment and passing a decree under Order XII, Rule 6, read with Order XV of the CPC as the main issue for consideration was whether the Suit for partition of the Suit Property belonging to Late Sheila Kapila is by devolution or through testamentary succession.
They said 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.
The plaintiff, on their part, said parties in the Suit for partition are fairly aged and that the Judgment on admission by the Single Judge cannot be faulted with on any ground.
Upon this, the bench said the logic behind the 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 bench also noted both the plaintiffs and defendants do not admit the existence and the execution of the Will of November 18, 1999.
It pointed out the controversy was on the applicable legal principle to the dispute of partition between the parties and the crux of consideration narrowed down to the existence, execution and validity of the alleged Will.
"The foundation of the claim in the opposing parties can be summarised as intestate succession on one side and testamentary succession on the other. The plaint averments principally proceed for partition of Suit Property as co-sharers, but the Judgments impugned have laid emphasis on the interpretation of the Will, holding that the children of Late Sheila Kapila are entitled to the Suit Property as absolute owners and a decree for partition in four equal shares could be made," it said.
The bench also noted the contesting parties are not admitting the existence, leave alone the execution of the Will.
"The case on hand, in our considered view, presents both triable issues in facts and law. For arriving at such a view, we also take note of the categorical reiteration of the Senior Counsel appearing for the Plaintiffs and Defendant Nos. 1 and 2, from the pleadings, their clients are not accepting the existence of the Will dated 18.11.1999. Therefore, pronouncing a view on the operating clauses of document yet to satisfy the requirements of Section 63 of the Indian Succession Act read with Sections 58 and 68 of the Indian Evidence Act, is an illegal exercise of discretion. In our considered view in the case on hand, the admissions are not unequivocal and absolute to pave way for a Judgment on admission," it added.
The bench noticed 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," the bench said.
While authorizing the sale of the Suit Property without a Preliminary Decree in terms of Section 2 of the Partition Act, 1893, the bench remitted the matter back to the single judge for framing issues and affording an opportunity of trial to the parties, to prove their respective cases and pronounce the Judgment.
The court asked the Single Judge to dispose of the matter on demand as expeditiously as possible, preferably within four months from receipt of a copy of this Judgment.
"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," court has said.
Case Title: VIKRANT KAPILA AND ANOTHER vs. PANKAJA PANDA AND OTHERS
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