Partition of properties cannot occur until exclusive title over the said properties has been ascertained: Calcutta High Court

If any judgment or decree is passed pertaining to the partition of properties, then the exclusive right over such said property should be ascertained prior. The present appeal arose from the judgment and preliminary decree dated 16th July, 2018, in an application (GA 4050 of 2017) under Order XII Rule 6 of the Code of Civil Procedure. The quorum of Subhasis Dasgupta J. and I.P. Mukerji J. were faced with trial court’s decree declaring the shares of the heirs of late Prabhat Kumar Mahapatra, in respect of the immovable properties and further appointment of an advocate Commissioner to effect partition to the extent of shares declared in the preliminary decree in the matter of City Centre Properties Pvt. Ltd. v Prasanta Kumar Mahapatra & Ors. [APO No. 232 of 2018].

The case of the first respondent/plaintiff claiming partition, found its basis from the disclosure made, wherein it was averred that Prabhat Kumar Mahapatra during his lifetime purchased three (3) properties, mentioned in the schedule of the plaint, out of his own income, being a businessman, who established and promoted several companies, and one of such company is “City Centre Properties Private Limited/appellant company,” which was promoted as family company, and incorporated as such on 15th July, 1966

It was narrowed down by the bench that the fight between the parties claiming partition was with respect to three (3) immovable properties, shown in the schedule to the plaint. The appellant/company by filing a written statement, jointly with the defendant no. 1, proceeded to answer the claim of the respondent no. 1/plaintiff.

Further while observing the lowers court’s approach to the matter, it was revealed that learned trial court granted the preliminary decree having found admission of title, mentioned in the respective written statement of defendants. Though the respondent/plaintiff referred to some of the paragraphs in the written statement of appellant/defendant company to reveal the admission of title, but for ascertainment of categorical, unambiguous and unconditional admission, the learned trial court was under an obligation to consider each and every averment contained in the written statement of the appellant/defendant company, even to infer admission of title of the properties, if it was a deliberate, conscious act of appellant/defendant company making such admission.

It was contended before the court that the determination of the question of whether certain properties are the joint properties of the parties or the exclusive properties of any of them, cannot be delegated by the Judge to the Commissioner for partition, and thus the necessity of conducting a trial was focused, and further reliance was placed on Upendra Nath Banerjee & Anr. Vs. Umesh Chandra Banerjee (1910-11) 15 CWN 375. The bench however opined otherwise and stated that it was necessary that the learned trial court should reveal in its judgment that it duly exercised its discretion judicially to find out clear, unambiguous and unconditional admission.

The court passed the judgment that “Since, the appellant/defendant company claimed its exclusive title over the scheduled properties, the determination of the question, whether the properties actually are the exclusive properties of the parties proposing partition, or of some other person, as claimed by appellant/defendant company, in our considered view, is obligatory.”

Further, the court held, while observing the judgment passed by the lower court that, the ascertainment of the title of properties appears to be pre-requisite prior to effecting a preliminary decree, while rendering a judgment on admission under Order XII Rule 6 of C.P.C. and thus quashed the aforesaid judgment.

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