Jawahar Lal And 3 Others vs Smt. Kanti Devi And Another
2019 Latest Caselaw 3214 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 30
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2070 of 2019
 

 
Petitioner :- Jawahar Lal And 3 Others
 
Respondent :- Smt. Kanti Devi And Another
 
Counsel for Petitioner :- Surendra Kumar Tiwari
 
Counsel for Respondent :- Chandan Sharma
 

 
Hon'ble Harsh Kumar,J.

Heard Sri S.K. Tiwari, learned counsel for petitioners, Ms. Shambhavi Tiwari, Advocate holding brief of Sri Chandan Sharma, learned counsel for respondent no.1 and perused the record.

The present petition under Article 227 of Constitution of India has been filed with the prayer that judgment and order dated 22.11.2018 passed by District Judge, Basti in Civil Revision No.61 of 2018 (Jawahar Lal and others Vs. Smt. Kanti Devi and another) A-5 as well as order dated 9.2.2018 passed by Civil Judge (Junior Division), Khalilabad, Basti on application 83-A-2 in Civil Suit No.289 of 2006 A-3 be set-aside and the court below be directed to re-consider the amendment application and decide the civil suit within a stipulated period.

Learned counsel for petitioners submitted that petitioners filed Civil Suit No.289 of 2006 in the Court of Civil Judge (Junior Division), Khalilabad against respondents for obtaining a decree for cancellation of gift deed dated 14.8.2001; that petitioners, the plaintiffs of Civil Suit No.289 of 2006 were cousin brothers of defendant-respondent no.1 Smt. Kanti Devi, who is daughter of defendant-respondent no.2 Smt. Murati Devi, deceased the Chachi of plaintiffs-petitioners; that defendant-respondent no.2 was having love and affection towards plaintiffs-petitioners and by way of family settlement (not on record) she agreed to not to transfer her property by way of sale-deed, gift-deed or will deed to any other person except the plaintiffs and on the basis of above family settlement names of plaintiffs-petitioners were mutated in revenue records; that on getting knowledge of the gift deed allegedly executed by defendant-respondent no.2 Smt. Murati in favour of defendant-respondent no.1 Smt. Kanti Devi, the plaintiffs-petitioners filed Civil Suit No.289 of 2006 for cancellation of gift deed dated 14.8.2001 as Smt. Murati Devi had no right to execute gift deed in view of family settlement between her and plaintiffs-petitioners; that during pendency of suit defendant-respondent no.2 Smt. Murati died and in plaint word "deceased" was added against her name vide order dated 19.1.2013 on amendment application of plaintiffs-petitioners; that on 18.12.2017 petitioners-plaintiffs moved application 83-A for amendment of plaint and for addition of Relief-B for cancellation of will-deed dated 14.8.2001 allegedly executed by defendant-respondent no.2 Smt. Murati in favour of defendant-respondent no.1 Smt. Kanti Devi; that since at the time of institution of Civil Suit No.289 of 2006 Smt. Murati was alive, relief for cancellation of will deed dated 14.8.20001 could not have been sought in her life time and after her death in the year 2010 when requisite amendment were sought in the plaint regarding her death, the amendment for adding relief for cancellation of will deed could not be prayed due to mistake by earlier counsel for plaintiffs-petitioners; that learned trial court acted wrongly in rejecting amendment application of plaintiffs-petitioners vide order dated 9.2.2018 and learned District Judge also committed mistake in dismissing civil revision filed by plaintiffs-petitioners, vide impugned order dated 22.11.2018; that two orders are liable to be set-aside and matter is required to be remanded back to trial court for afresh disposal of amendment application.

Per contra, learned counsel for defendant-respondent no.1 submits that frivolous petition has been filed to harm and harass the defendant-respondent no.1 and the same is liable to be dismissed with special costs; that plaintiffs-petitioners have neither disclosed date of alleged family settlement between them and their Chachi Smt. Murati defendant-respondent no.2 (mother of answering respondent) nor have filed copy of alleged family settlement; that any condition in alleged family settlement or any undertaking by Smt. Murati for not transferring her property by way of sale deed, gift deed or will deed to any person other than plaintiffs is against law and such family settlement is void ab-initio; that in any case on the basis of alleged family settlement mutation was made in favour of plaintiffs-petitioners over the properties without any transfer deed by her in favour of plaintiffs-petitioners is wrong, illegal and collusive; that defendant-respondent no.1 is daughter of defendant-respondent no.2 and it is wrong to say that mother of answering respondent was having more love and affection towards plaintiffs-petitioners; that plaintiffs-petitioners being cousin brothers of defendant-respondent no.1 have no locus standi to file Civil Suit No.289 of 2006 for cancellation of gift deed executed by defendant-respondent no.2 in favour of defendant-respondent no.1; that plaintiffs-petitioners had full knowledge of will deed dated 14.8.2001 in life time of Smt. Murati Devi as according to Paper No.89-C on lower court record, which is copy of statement of Smt. Murati dated 31.10.2009 in the case of State of U.P. Vs. Jawahar Lal and others before the Consolidation Officer, Basti, stating on oath that she bequeathed all her movable and immovable properties in favour of defendant-respondent no.1 by way of registered will deed dated 14.8.2001; that after death of Smt. Murati in the year 2010, amendment of plaint was sought as a consequence thereof in the year 2013 and application for seeking time barred amendment for adding time barred relief for cancellation of will deed is not permissible under law; that limitation for a suit for cancellation of will deed prescribed under Indian Limitation Act is three years from the date of knowledge and the plaintiffs-petitioners had full knowledge at the latest by 31.10.2009; that it is not a case of plaintiffs-petitioners that they had no knowledge of will deed; that there is no illegality in the impugned order; that petition is liable to be dismissed.

Upon hearing parties counsel and perusal of record, I find that plaintiffs-petitioners did not deny the knowledge of will deed since before death of Smt. Murati in 2010 as they have stated that relief for cancellation of will deed could not have been sought in her life time. Even in view of Paper No.89-C on record they had full knowledge of will deed in question latest by 31.10.2009. This is not the case of plaintiffs-petitioners that they obtained knowledge of will deed in question within 3 years of moving of amendment application. The contention that relief of cancellation of will could not have been sought in life time of Smt. Murati Devi is also substantiated by any law. It is settled principle of law that a suit barred by time may not be entertained in view of provisions of Section 3 of Indian Limitation Act. Similarly no time barred amendment seeking the relief for which suit would have been time barred may not be allowed.

In the case of K. Raheja Vs. Alliance Ministries, 1995 (2) Alld. Rent Cases, 242, Apex Court held that

"amendment to add relief which has become barred by time, cannot be allowed."

Similar view was taken by Apex Court in the case of Munni Lal Vs. Oriental Insurance Company, 1996 (1) Alld. Law Reporter 91 (SC) .

In the case of Pronoy K. Sanyal Vs. Beni Madhav Sanyal, 2001 (1) J.C.L.R. 86, the Apex Court held that

"it is not correct to allow amendment without considering the question of limitation on ground that it may be raised at the time of trial of case."

This legal position is not disputed by learned counsel for plaintiffs-petitioners rather his only excuse is that there was mistake on the part of earlier counsel for plaintiffs-petitioners. This fact has not been mentioned in amendment application and in any case mistake of counsel may not be a ground to allow time barred amendment.

In view of discussions made above, I find that learned counsel for plaintiffs-petitioners has failed to show any manifest error of fact or law or any perversity in the impugned orders and there is no sufficient ground for interfering with the impugned order or for setting it aside by exercising jurisdiction provided under Article 227 of Constitution of India. The petition is devoid of merits and is liable to be dismissed.

The writ petition is dismissed, accordingly.

Order Date :- 19.4.2019

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