Malwinder Kaur And Anr. vs Tej Pratap Singh
1993 Latest Caselaw 243 Del

JUDGMENT

Dalveer Bhandari, J.

(1) By this order, I propose to dispose of three separate applications which have been filed by the plaintiff under Order Vi Rule 17, Civil Procedure Code . in this Suit. 1.A.3642/90

(2) The plaintiff filed I.A. 3642/90 under Order 6 Rule 17, Civil Procedure Code . The plaintiffs by this application had sought amendment, and want permission of this court to add paras 14A, 14B, 14C, 14D and some additions in para 17. I.A.4144/90

(3) The plaintiffs had filed another I.A.4144/90 under Order 6 Rule 17 read with Section 151 Civil Procedure Code . In this application, the plaintiffs want to add para 9A, after para 9. I.A.3376/92

(4) Thereafter, the plaintiffs filed another I.A.No-3376/92 under Order 6 Rule 17 read with Section 151 Civil Procedure Code . In this application, the plaintiffs want that para no.5 of the plaint and para no. 10A be added after para 10 of the plaint.

(5) The central question and main prayer sought in all the three applications is the same, therefore all the three I.As. are being disposed of by this order.

(6) In order to properly appreciate the amendments, which have been sought by the plaintiffs in these applications, it is necessary to understand the plaintiffs' case, as disclosed in the plaint and thereafter to examine the effects of these amendments on the case.

(7) In para 2 of the plaint, the pedigree table of late Rai Bahadur Narain Singh has been given, which is reproduced herein below:- R. B. Narain Singh Wife Wife Smt Attar Kaur Smt. Labh Kaur , , , , Ranjit Singh JagjitSingh dead dead ___________________________________________________________________________ Balwant Jagmair Shamsher Bhupinder Malvinder Kaur (dead) Singh Singh Kaur Kaur , (dead) (dead) (dead) (Alive) , No Issue , , Plaintiff no.1 Mohinder Son daughter Singh/Son Tejpratap MrS. Ravi Sarup (Dead) Singh/Defdt. plaintiff no:2 No Issue Son Inder Pratap Singh. ----------------------------------------------------------------------------

(8) In para 3, the details of the property which were left by Rai Bahadur Narain Singh have been mentioned. In para 4, it is mentioned that Rai Bahadur Narain Singh executed the Will dated 12th July, 1934, bequeathing half of the above said properties mentioned in para 3 to Tej Pratap Singh and other half to his son Jagmair Singh with the condition, that if no son was born to Jagmair Singh, then after his death, defendant Tejpratap Singh, would be considered as owner of Jagmair Singh's one-half share in the said property, but if a son would be born to Jagmair Singh, on that eventuality the son was to get the entire one-half share of Jagmair Singh. Jagmair Singh died without an issue. In para 5 of the plaint, it is mentioned that Jagmair Singh died issueless on 15th March, 1968. In para 6 of the plaint, the plaintiffs gave their interpretation of Section 124 of the Indian Succession Act. In para 7, it is mentioned that by virtue of the provisions of Section 124 of the Indian Succession Act, if at the time of death of Rai Bahadur Narain Singh, Jagmair Singh had already died without leaving a son then the entire one-half property bequeathed to Jagmair Singh would have gone to Tejpratap Singh-defendant.

(9) Para 8 relates to the interpretation of the Will. In para 9, it is mentioned that the plaintiffs and defendants are joint owners of the properties mentioned in para 3. In paras 119 10, 11 and 12, it is mentioned that since 1.1.1989, the relations between the plaintiffs and the defendants were not cordial and so the plaintiffs wanted partition of their one-fourth share each, in the same. In paras 13, 14 and 15, it is mentioned that the defendants were contemplating to demolish the property no.23, Barakhamba Road, New Delhi to construct a multi-storeyed building to which the defendants had got no right without the consent of the plaintiffs. Para 16 relates to cause of action which arose at Delhi, therefore this court has jurisdiction. Para 18 is regarding partition of the properties. Therefore, in substance, the case of the plaintiffs is that Jagmair Singh died without a son and this averment has been repeated in various paragraphs in the plaint.

(10) In the instant case, the plaintiffs now want to introduce the facts by way of amendment under Order 6 Rule 17, Civil Procedure Code that in fact Jagmair Singh did not die issueless but had a male child Mahesh Inder Singh who was born on 10.10.1947. The short question which falls for the determination in all these three applications is whether the plaintiffs can be permitted to introduce this version that, in fact Jagmair Singh did not die issueless but Mahesh Inder Singh was his son.

(11) The instant suit has been filed in this court on 20.1.1989. According to the plaintiffs, Mahesh Inder Singh was the son of Jagmair Singh and he was born on 10th October, 1947. Even this suit which has been filed almost after 42 years did not incorporate the fact that Mahesh Inder Singh was the son of Jagmair Singh. On the contrary, it has been pleaded in the plaint and replication that Jagmair Singh died issueless. Whether by these amendments, the plaintiffs ought to be permitted to introduce him ? The introduction of Mahesh Inder Singh is going to have very wide repercussions and consequences, therefore, these amendment applications have been keenly contested by the defendants. The fate of the plaintiffs, solely depends on the introduction of the fact that Jagmair Singh did not die issueless but Mahesh Inder Singh was his son. In the light of the above submissjons, the plaintiffs' applications need to be examined and scrutinized.

(12) After para 14 of the plaint, the plaintiffs want to add para 14A in which it is mentioned that the executors of the Will, Ranjit Singh and Jagjit Singh moved a petition under Section 301 of the Indian Succession Act before the High Court at Simla, praying that, they may be permitted to retire from the executorship. The petition was accepted on 20th December, 1949 by the judgment and order passed in S.B. Ranjit Singh and another v. S. Santokh Singh Rais and others, reported in Air (38) 1951 Punjab, 318. In this case, the Court while dismissing the application under order 1 Rule 10, Civil Procedure Code observed that Mahesh Inder Singh cannot be regarded either as a necessary or a proper party. The court in the concluding portion of para 14 observed:- "IT seems to me that the application under Order 1 Rule 10 and Section 151 appears to me to have been made for a collateral purpose and does not appear to be bona fide. I can see no reasons, therefore, for considering this application with favor."

(13) The learned Judge in the concluding portion of para 16 of the judgment has observed:- "1 regarded this as an abuse of the process of the court and indicated quite clearly that I was not prepared to countenance the proposal of impleading him as a party to the petition under Section 301 which had been presented by the executors or to embark on a long and complicated enquiry with the object of determining the paternity of the infant, though I would have had no objection to giving him a hearing if his paternity was not denied by the parties or if it had been established by a court of competent jurisdiction."

(14) Against the said judgment, L.P.A. was filed before the Division Bench of the High Court. In Lpa No. 13 of 1950 ultimately, a compromise was arrived at between the parties, under which the properties of Tejpratap Singh were separated from the rest of the estate, and the remaining estate was to be administered in accordance with the Will. The property mentioned in list 'B' of the compromise petition was allotted to the defendant Tejpratap Singh and the property mentioned in List 'A' thereof was to continue to be administered by the Executors/Trustees. In place of Ranjit Singh and Jagjit Singh, Tejpratap Singh, S. Santokh Singh and Bibi Bhupinder Kaur constituted the three executors in respect of the properties of Jagmair Singh.

(15) The learned counsel for the plaintiffs want para 14B also to be added. It is mentioned in this para that Jagmair Singh had filed a Suit no.32 of 1958 for removal of S. Santokh Singh and Tejpratap Singh from the executorship. The suit was transferred to Punjab High Court at Chandigarh. On 5.1.1961, a compromise was arrived at among Santokh Singh, Bhupinder Kaur, Tejpratap Singh and Jagmair Singh whereby Santokh Singh and Bhupinder Kaur were removed from the office of the executor and Nirbhay Singh Mann and Birender Singh were appointed as Executor who were to manage the above-mentioned estate Along with Tejpratap Singh. Thus, Tejpratap Singh, Nirbhay Singh Mann and Birender Singh became the three executors who were to manage the share of Jagmair Singh.

(16) "THE plaintiffs also want para 14C to be added in which it is mentioned that S. Rajinder Singh and Smt. Inder Kaur, claiming as the son and the second wife respectively, ofJagmairSingh filed the suit claiming interest in the property of Jagmair Singh. They claimed that they jointly had equal share in the property along with Smt. Rup Kaur first wife of JagmairSingh. In the suit Nirbhay Singh Mann, S. Birender Singh and Rup Kaur were also imp leaded as defendants. Mahesh Inder Singh had died issueless on 27.7.68 just three months before he was to attain the age of 21 years. In that suit, Tejpratap Singh disputed the factum of Mrs. Inder Kaur and Rajinder Singh being the wife and son of Jagmair Singh. The suit was withdrawn unconditionally by them on receipt of Rs.12.5. lakhs from the estate. Thus, the claim of Rajinder Singh and Smt. Inder Kaur to be the son and the wife of Jagmair Singh was closed against them for all times to come.

(17) Smt. Rup Kaur who succeeded to the estate of Jagmair Singh died in 1980. Smt. Rup Kaur died without leaving any issue. Plaintiff No. 1 and Smt. Bhupinder Kaur jointly succeeded to the estate of Jagmair Singh and after the death of Smt. Bhupinder Kaur, plaintiff no.2 succeeded to the interest of her mother.

(18) The plaintiffs want para 14D to be added. In para 14D, it is mentioned that out of the three executors Nirbhay Singh has died leaving behind two sons. No executor was appointed in his place. Birender Singh and Tejpratap Singh were never removed/discharged from the executorship. They held the estate as representing the plaintiffs and are bound to hand over the same to the plaintiffs. In para 14E, it is mentioned that facts mentioned in paras 14A and 14D came to the knowledge of the plaintiffs from the documents filed by the defendants in the instant suit. Para 17 is regarding court fees. In prayer clause (C), the plaintiffs want that mandatory injunction be issued against the defendants/executors directing them to deliver the possession of the abovementioned properties to the plaintiffs. In prayer (D), it is mentioned that S. Birender Singh son of S. Balwant Singh be added as defendant no.2. In prayer (E), it is mentioned that defendants 1 and 2 may be directed to account for the properties falling in the estate of Jagmair Singh and render account with respect to these properties for the period of their management till the restoration thereof to the plaintiffs.

(19) Reply to this I.A. has been filed. This application has been seriously opposed by the other side, on the ground that allowing this application would be permitting the plaintiffs to change the entire character of the suit which they cannot to be permitted by an amendment under Order 6 Rule 17, Civil Procedure Code .

(20) In reply, it is mentioned that the plaintiffs were never in possession of any portion of 23, Barakhamba Road and the defendants and Nirbhay Singh as executors, are under no obligation to hand over the property to the plaintiffs. It is further mentioned that the defendants have got the property, under a will and have every right to the peaceful enjoyment of the property.

(21) In the reply, it is mentioned that it is incorrect to suggest that the application was moved because the facts came to the knowledge of the plaintiffs through the written statement filed by the defendants. The written statement was filed by the defendants in March, 1989 whereas the application was filed after one year and two months i.e. in May, 1990.

(22) In reply, regarding adding para 14A, it is mentioned that this amendment has no bearing on the case inasmuch as it does not help the case of the plaintiffs and there is no need to have the plaint amended. The plaintiffs ought not to be permitted to add para 14B because the plaintiff has not stated as to why this amendment was sought and how it would help his case. This amendment is consequently liable to be rejected. The plaintiff should not be allowed to add para 14C because the facts mentioned therein have no bearing on the controversy involved in the case. The plaintiff No. 1 and Smt. Bhupinder Kaur could not have jointly succeeded to the estate of Jagmair Singh as there was never any estate with Jagmair Singh under the Will dated 12.7.1934. The will was explicitly clear and never bequeathed any right in favor of Jagmair Singh. Therefore, there is no question of the plaintiffs or anyone succeeding to the estate of Jagmair Singh as there was never any estate with Jagmair Singh. Since the plaintiffs were never in possession of property no.23, Barakhamba Road, and consequently this amendment must be rejected. Since no relief is claimed against Birender Singh, there fore, he ought not to be imp leaded as a defendant in the suit.

(23) The plaintiffs should not be permitted to add para 14E because the plaintiffs have taken totally contradictory and untenable stand. On the one hand, the plaintiffs are saying, they arc in possession of the property, and on the other hand, they are claiming possession. According to the defendants the plaintiffs in the facts of this case cannot be permitted to amend the plaint. The amendments ought to para 7-B is also without any basis because there is no question of rendition of accounts. The amendments sought in paras 7-B, C, D and E be also rejected. 122

(24) I have heard learned counsel for the parties. Mr. S.K.Kaul, learned counsel for the plaintiffs submitted that amendments to the plaint be liberally allowed to secure ends of justice.

(25) Mr. Kaul has submitted that Section 124 of the Indian Succession Act relating to bequest contingent upon specified uncertain event, no time being mentioned for its occurrence, therefore, the legacy cannot take effect unless such event happens before the period when fund bequeathed is payable or distributable. Mr. P.C. Jain, learned counsel for the defendants submitted that the amendments sought by the plaintiffs cannot be allowed otherwise the entire character of the suit would be changed. Mr. Jain also submitted that the plaintiffs cannot be permitted to take mutually destructive picas and permitting this amendment would be negation of the earlier stand and permitting inconsistent and contradictory pleas.

(26) Mr. Jain submitted that these applications have been filed with a sole purpose of delaying the disposal of the suit and harassing the plaintiffs. These applications are total abuse of the process of the court.

(27) Learned counsel for the defendants also submitted that if Mahesh Inder Singh was born on l0.10.1947, then why was this fact not brought to any of the courts till January, 1989. In the plaint, it is categorically mentioned that Jagmair Singh died issueless and Rup Kaur also died issueless. This fact is clearly mentioned at various places in the plaint and even in the replication. In fact, even now also in the amendment application, the plaintiffs do not seek amendment of para 4 of the plaint. In para 5 of the plaint, it is mentioned that Jagmair Singh died on March 15, 1968 issueless. The suit was filed in 1989. The fact of the death of Mahesh Inder Singh is not mentioned anywhere. In fact, the plaintiffs have filed another substantive suit i.e. Suit no-3561/91 (pending in this court) but the fact of the other suit has not been mentioned even during the course of the arguments before this court. Mahesh Inder Singh died in the year 1968 but at no point of time, they ever mentioned that a son was born to Jagmair Singh. Smt. Rup Kaur died in the year 1980 but she has also never claimed any share in the property which would otherwise come to her after the death of her son. It maybe pertinent to mention that Smt. Bhupinder Kaur died on 20th December, 1988 and thereafter this suit has been filed on 15.1.1989.

(28) MR.JAIN, learned counsel for the defendants have mentioned that adding of 14A is totally uncalled for amendment. It is only repetition of the will. Para 14B is nothing but an evidence is being pleaded in the application whereas in the application only a bundle of facts ought to be mentioned. Consequently, amendment as sought in para 14C is totally irrelevant and has to be rejected.

(29) In suit no.115/71, Rup Kaur was defendant no.1.She in her written statement did not mention that Mahesh Inder Singh was herson. In reply to para 10 of the plaint also, she had not mentioned this fact. As a matter of fact, the specific averments regarding murder and death of Mahesh Inder Singh in suspicious circumstances has been denied in the written statement filed by Suit. Rup Kaur.

(30) The plaintiffs by way of these amendments want this court to permit them to change the entire character of their suit. The plaintiffs want this court to allow them to plead that Jagmair Singh did not die issueless but a son (Mahesh Inder Singh) was born to him on 10.10.1947. The fact has not been pleaded before any court or forum at any stage in last almost 42 years. On the contrary, for all these years, there has been consistent stand that Jagmair Singh died issueless. This very stand was taken by Rup Kaur wife of Jagmair Singh in her written statement. The plaintiffs could not offer any plausible explanation why this fact was deliberately withheld from all courts or forums for more than four decades. This amendment, if allowed, would change the entire character of the suit.

(31) Law has been crystallized by various judgments of the Supreme Court and High Courts. Ordinarily, there is no doubt that amendment must be liberally allowed to secure the ends of justice at any stage in the suit. But in this respect, the Court must be guided and governed by the rule of justice, as clearly expressed by the Privy Council in Ma Shwe Mya v. Maung Po Hnaung, Air 1922 Pc 249 at pp.250-251.

(32) It is mentioned that all rules of Court are nothing but the provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit.

(33) In Kashi Nath Dass vs. Sada Shiv Patnayak, (1893) 20 Calcutta, 504 at page 508, a clear proposition of law has been laid down. It is mentioned that the Code of Civil Procedure distinctly provides that amendment so long as it does not alter the character of the suit may be allowed at any time before judgment. The restriction is only as to the nature of the suit; the law prohibits any such amendment as would change the fundamental character of the suit; for example, a plaint cannot be so amended as to convert a claim based on contract into an action on tort but an alteration in the relief does not alter the character of the suit. This judgment has been followed till this date with approval.

(34) The Supreme Court in Suraj Prakash Bhasin Vs. Smt. Raj Rani Bhasin and others, , has approved the principles as laid down by the Privy Council and followed in subsequent cases. The Supreme Court in the said Judgment, had mentioned that amendments which do not totally alter the character of the suit are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment of pleadings. The court must be guided by the rule ofjustice.

(35) When the ratio as laid down by these cases is applied to the instant case, then the conclusion becomes irresitible. Allowing amendments, as sought, would lead to gross prejudice of irremediable character and enormous injustice to the defendants. The entire character of the suit would be altered leading to far-reaching consequences and repercussion for the parties. In the guise of amendments, plaintiffs cannot be permitted to entirely alter the character of the suit. The courts must be governed and guided by the principles of equity, fair play and justice in allowing or disallowing amendment application.

(36) In the extraordinary facts and circumstances of this case, amendments as sought, if allowed would lead to grave miscarriage ofjustice, therefore, applications for amendments being devoid of any merit, are dismissed with costs. Counsel's fee is assessed as Rs 3, 300.00 . I.A.2735/89, 3644, 3641/92

(37) To be listed on 20th July, 1993.