ORDER
Shivashankar Bhat, J
1. Revision Petition is by the first defendant in a suit for partition, filed by the first respondent herein. On the death of the father of the main parties hereto, it is said that the first defendant is in possession of the properties, of which partition is sought through the Court. By consent of the learned Counsel, matter was heard for final disposal.
2. First defendant admitted in his written statement that the property described in schedule-A is a residential house belonged to the deceased and was partible amongst the parties. But 1st defendant denied the property described in schedule-B, which is a running railway catering business, as not partible. 1st defendant asserted that there was one more property in the State of Maharashtra, which should have been included for partition; as the said property was not included, maintainability of the suit was questioned. At para-19, 1st defendant claimed reimbursement of a sum of Rs. 60,000/-which, he, allegedly had spent to get possession of the 'A' schedule house. According to the first defendant, there was an agreement amongst parties to sell the house and share the sale price, after deducting the expenses incurred by the first defendant to have the house vacated by the tenants.
3. On the basis of the main averment of the first defendant about the portability of schedule-A, plaintiff filed an application under Order 12 Rule 6 CPC praying for a preliminary decree for partition of the said property, alleging that, the first defendant has admitted the rights of all the sharers in the said property. Lower Court has accepted this application and directed the drawing up of a preliminary decree for partition of schedule-A property.
4. Smt. Shobha Patil, the learned Counsel for the petitioner, contended that, in a partition suit, partition is to be effected of all the partible properties, by adjusting the equities inter-se and it was not practical nor appropriate to direct the partition of one item of the property alone. The learned Counsel referred to the various averments in the written statement of the first defendant to point out that, in case those pleas were accepted, one more property belonging to these sharers situated in Maharashtra State has to be included for partition; further, if the agreement alleged regarding the expenses incurred by the first defendant to get schedule-A property vacated, is accepted, the said property has to be sold and the realisation has to be partitioned, after paying a sum of Rs. 60,000/- to the first defendant towards the expenses incurred by him.
5. Sri Appa Rao, the learned Counsel for the respondents, however, contended that, the lower Court has exercised its discretion properly by directing a preliminary decree to be made in respect of the property over which there is no dispute at all and therefore Order 12 Rule 6 CPC was rightly applied. It was also contended by the learned Counsel that there is no impediment to pass more than one preliminary decree in a partition suit, until the making of final decree and he cited BAI CHANCHAL AND ORS. v. SYED JALALUDDIN AND ORS. : [1971]2SCR171 SHIKHAR CHAND AND ORS. v. Mst. BARI BAI AND ORS. : AIR1974MP75 and KANNEGANTI VENKATASUBBAYYA (died) AND ORS. v. P. RANGA RAO TOBACCO CO. AND ORS. : AIR1972AP62
6. The last proposition of Sri Appa Rao, as to the permissibility of making more than one preliminary decree, admits of no doubt. However, the decisions referred by the learned Counsel are based on facts, which have no relevancy to the facts of this case. The question here, is whether, the trial Court exercised its discretion under Order 12 Rule 6 CPC by applying proper principles and whether there is an unequivocal admission of the first defendant, to attract the said provision of law. A partition suit should comprise of all available properties, as far as possible. This avoids multiplicity of proceedings between the parties regarding the properties available for partition and facilitates settlement of all inter-se disputes in connection with the partible properties amongst the claimants. Though, a sharer has a right to seek his share in specie as far as practicable in the immovable property, circumstances may justify the Court to direct partition in a fair manner by working out the equities, which, may result in one of the sharers not getting the share in each item of the partible immovable properties. Adjustment of conflicting rights and liabilities, is an essential requirement of the partition. 'To ignore the liability of one of the parties to the other or others and proceed merely to effect a division without regard to it, is to ignore the very character of the suit and the nature of the relief, which the Court is bound to grant.' (Shambu Mitra, on Co-ownership & Partition 2nd Edn. page 242).
7. When more than one property is to be partitioned, partition to be fair, Court may allot a share to one of the sharers from one property, while another may be allotted share from the 2nd property. Direction to pay owelty by a party allotted with a more valuable portion, is an accepted practice (if the situation so warrants). If a building cannot be properly divided, its sale and distribution of the sale price also, is a permitted mode effecting partition.
8. In this case, first defendant has claimed reimbursement of a substantial amount allegedly incurred by him to get vacant possession of the house; he has also set up an agreement in this regard, which includes a term, to sell the schedule-A property. He has also asserted existence of one more partible property, which ought to be included in the suit. In such a situation, it cannot be held that there has been an unequivocal admission empowering the Court to direct a preliminary decree to be made straightaway in respect of one item of the partible property.
9. An admission contemplated by Order 12 Rule 3 CPC, has to be an absolute admission, capable of being worked out by itself. The other questions to be determined in the suit, on decree being made under Order 12 Rule 6, should be such independent questions, reliefs granted on which should be capable of being granted without affecting the former decree (i.e., the one passed on the basis of admission). If the admitted fact cannot independently stand, and the ultimate relief or reliefs to be granted in the suit is interlinked with those facts, then, it will not be a proper exercise of the discretion, to make a decree under Order 12 Rule 6 CPC.
10. On the facts of this case, it is clear, that in case, the first defendant succeeds in his other pleas, different conditions would govern the effecting of partition of the properties.
11. In the result, for the reasons stated above, this petition is allowed, the order under revision is set aside and I.A.No. II filed in the trial Court is rejected. There will be no order as to costs.