Sumitra Sahai vs Arya Orphanage
1996 Latest Caselaw 87 Del

JUDGMENT

Devinder Gupta, J.

(1) This is an application seeking amendment in the plaint.

(2) The facts leading to the filing of the suit were stated in the order passed on 30th January, 1995 while disposing of an application under Order 39 Rules 1 and 2 Civil Procedure Code . but again a brief resume of the same deserves to .be made while disposing of this application. Some of the facts as are relevant are taken as such from the order dated 30th January, 1995.

(3) One Narayan Dutta was the perpetual lessee of immoveable property bearing No.l3, Barakhamba Road, New Delhi and owned the residential house and out houses standing thereupon. Narayan Dutta expired on 7.11.1950 leaving behind a son Krishan Dutta and three daughters, namely, Vidyawati, Kaushlaya and Sumitra Sahai and widow Karam Devi. Only Sumitra Sahai, the plaintiff, is alive. The other two daughters expired in the year 1990. Widow Karam Devi expired in 1969 and the son Krishan Dutta expired on 24.9.1976.

(4) It is the plaintiffs case that Narayan Dutta expired intestate and on his death property was jointly inherited by his son Krishan Dutta, widow and three daughters in equal shares and on the death of widow, her estate also devolved equally on the son and the three daughters. According to the plaintiff, her brother Krishan Dutta was entitled to only l/4th share in the entire estate as an heir of Narayan Dutta. His possession on the entire property was not objected to by the plaintiff and the other two sisters, out of respect and reverence to the brother. Krishan Dutta had been looking

(5) Version of defendant No.l in the written statement is that Narayan Dutta was a honorary governor of orphanage house for several years during his life time and had special attachment with the orphanage. He had made a distinctive contribution to its development. His son Dutta also fell into the shoes of his father and gave liberal donations to the orphanage from time to time either himself or through a trust which had been set up in the name of his father Lala Narayan Dutt of which Krishan Dutta was the one of the functionaries. On the death of Narayan Dutta, which took place prior to coming into force Hindu Succession Act 7.11.1950, all his rights, title and interest were inherited by his sole son Krishan Dutta and during his life time he exercised the right of ownership to the exclusion of all concerned. Plaintiff and other two sisters acquired no right, title or interest. Krishan Dutta had no issue. He executed a will on 7.6.1976 by virtue of which he bequeathed the property in dispute to the orphanage, namely, defendant No.l and the will also provide that his wife Rani Dutta would have a right to live in the property and all income therefrom would also be hers and after her death and if she so wished, during her life time, the possession of the property would be taken by the orphanage. Krishan Dutta also bequeathed a sum of Rs.50,000.00 each to the plaintiff and her two sisters. After the death of Krishan Dutta, his wife Rani Dutta being the sole executrix applied for grant of letters of administration. After due notice to the sisters, including the plaintiff, letters of administration were granted on 8.11.1978 to which plaintiff had also given her consent. Pursuant to the grant of letters of administration, Rani Dutta paid a sum of Rs.50,000.00 each to the plaintiff and other the other two sisters of by separate pay orders of Syndicate Bank,R.K.Puram, New Delhi. The plaintiff also acknowledge the receipt of Rs.50,000.00 towards full and final settlement of her claim. Thus, defendant's version is that on the basis of will, after death of Rani Dutta, it has every right to remain in occupation of property and to get back possession from its occupants.

(6) It is stated in the application under Order 6 Rule 17 Civil Procedure Code . that essence of the plaintiffs case is that she is one of the co- owners in the property having inherited share therein on the death of her father Narayan Dutta in 1951. Due to an error in . calculation, it was stated in the plaint that she has l/4th share in the property whereas in fact she has a less undivided share. This error of calculation in the plaint, according to the plaintiff, is the basis for claiming amendment to the plaint. Thus the plaintiff wants amendment to be carried out in the plaint by subsisting the claim that she inherited a share in the property on the death of her father Narayan Dutta to a claim that she inherited a share in the property on the death of her mother late Karam Devi. Amendments are thus sought in para-5 of the plaint.

(7) Reading of the entire application for amendment would suggest that the plain tiff now claims herself to be entitled to l/8th undivided share in the property, alleging that according to the law prevailing at the time of Narayan Dutta's death, property devolved by intestate succession on his son Krishan Dutta and widow Karam Devi in equal shares. Karam Devi's interest, which she inherited was that of a restricted estate under Hindu Women's Right to Property Act, 1937. Karam Devi expired in 1964, prior to which her 1/2 undivided restricted estate became 1/2 absolute undivided share and on the death of her mother, the plaintiff inherited from out of the share of her mother and thus in the entire property held by late Narayan Dutta, she has got l/8th share. Amendments prayed, according to the plaintiff,, are otherwise necessary for clarifying her stand.

(8) The application is vehementaly contested and opposed by defendant No.l on a number of grounds, namely, allowing the amendment will have the effect of changing the entire complexion of the suit; one cause of action is sought to be substituted by another and different cause of action; amendment if allowed will not only cause extreme prejudice to the defendant but will also have the effect of causing irreparable loss and injury. By lapse of time, the plaintiff is debarred from raising the pleas now sought to be raised by claiming l/8th share. It is also stated that the proposed amendment is highly malafide and had been sought after the initial pleadings were completed. Because of delay and latches, the plaintiff is not entitled to be granted any indulgence.

(9) I have heard learned counsel for the parties at length, who have taken me through the entire record.

(10) Though on the face of it, the proposed amendment appears to be simple one liable to be allowed without much prejudice to the right of the opposite party, on the application of the general principles for the grant of amendment in such like cases, but on a careful consideration of the submissions made at the bar, I do not find that in the facts and circumstances such an application can be allowed or that the plaintiff can be permitted to carry out amendment to the plaint, as prayed, for. It will not only cause material prejudice to the defendant but will also have the effect of changing the entire complexion of the suit by permitting the plaintiff to substitute one distinct cause of action to another, for which no foundation is laid in the plaint as originally filed.

(11) In the plaint, as originally filed, plaintiff averred that Narayan Dutta expired intestate in 1951 leaving behind his widow, three daughters and one son, who jointly inherited the said property by intestate succession in equal shares. These averments were made by the plaintiff in para 5 of the plaint. She thus laid a claim to the property as a successor of late Narayan Dutta and not in any other or different capacity or to any other part of the estate. The facts as pleaded by the defendant in the written statement and noticed on 7th November, 1950, were that Narayan Dutta died leaving behind his widow, son and three daughters. The daughters had no right of inheritance before the enforcement of Hindu Succession Act, 1956. Kishan Dass became the owner of all the properties left by Narayan Dutta, who was also living with his parents at the time of his death. Mutation of inheritance was duly attested and recorded in the records maintained by Land & Development Office. It was Kishan Dass alone who was managing the entire property treating himself to be the absolute owner. Krishan Dutta during his life time on 7th June, 1966 bequeathed the property to Arya Orphanage with life interest in the said property in favour of his wife Smt.Rani Dutta and on her death portions in her personal occupation were to revert back to Arya Orphanage, defendant No.l. Will also made a provision for payment of Rs.50,000.00 each to the three sisters. Krishan Dutta died on 24th September, 1976. An application was moved on 15th December, 1977 by Smt.Rani Dutta under Section 276 of the Indian Succession Act for probate of the will. In the list of relations, name of three sisters was also mentioned. After notice, a joint written statement was filed by the three sisters including the plaintiff staling that they had no objection to the grant of probate. On 24th August, 1978, the District Judge granted letters of administration on add davit of Smt.Rani Dutta on the basis of the will. As per the stipulations in the will, Smt.Rani Dutta wife of Krishan Dutta handed over pay orders of Rs.50,000.00 each to the three sisters including the plaintiff. The plaintiff along with the other two sisters filed their respective affidavits on 17th March, 1980 acknowledging the receipt of Rs.50,000.00 each. There are other averments made in the written statement that plaintiff is estopped from filing the suit due to her acts, conduct and acquiesance.

(12) At this stage to permit the plaintiff to change the entire basis of the suit and convert it to be a suit for title founding it on the allegation that she did not inherit the estate left by Narayan Dutta but inherited the estate of Smt.Karam Devi, the widow of Narayan Dutta, who had inherited to the extent of 1/2 share as a limited owner, which limited ownership on coming into force the Hindu Succession Act, 1956 ripened into full ownership, would amount to changing the entire cause of action, basis of the suit and ultimately the entire complexion of the suit.

(13) All amendments are generally to be allowed where nature of the suit is not altered, provided it does not cause prejudice or surprise to the opposite party. But Court cannot by way of amendment inheritenace one distinct cause of action for another or change the subject matter of the suit. In other words as a general rule the Court will not,in the exercise of its descretion, allow an amendment for converting a suit of one character into a suit of another character. Cause of action in the proposed amendment is sought to be related back to the date of death of Smt.Karam Devi, claiming inheritance to the estate of Karam Devi and not to the estate of Narayan Dutta. In the plaint as originally filed, cause of action was the death of Narayan Dutta whereas in the proposed amendment it is death of Karam Devi. Amendment, if allowed, would take away a valuable right of limitation to the opposite party and would constitute allowing an altogether new plea to be taken beyond period of limitation.

(14) Supreme Court in Lj .Leach and Co. Ltd. and another v. Messrs.Jardine Skinner and Co., held that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. It is a factor, which is to be taken into account in exercise of the discretion as to whether amendment should be ordered but does not affect the power of the Court to order it, if that is required in the interests of justice.

(15) Examining the application in the light of this decision, there no manner of doubt that as on the date of application a fresh suit on the amended claim would be barred by limitation, in which right to inheritance is claimed to the estate of Smt.Karam Devi, who expired 30 years ago in the year 1964. The suit, as noticed above, was instituted on 11th March, 1994.

(16) In Pirgonda Hondonda Patil v. Kalgonda Shidgonda Patil and others, , the Apex Court noticed the general principles governing the grant of amendments and approved following the observations made by Bachelor, J. in his judgment in Kishan Dass Roop Chand v. Rachappa Vithoba, 33 Bom.644 and held:- "All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties...... but I refrain from citing further authorities, as in my opinion,they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. IT is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up afresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defense to the claim. The ultimate test therefore still remains the same; can be amendment be allowed without injustice to the other side, or can it not?"

(17) The proposed amendment cannot' be said to be a different approach on the same cause of action for obtaining the same relief, but is a separate and distinct cause of action. In other words, the plaintiff now wants to completely give up the plea, which she has taken in the original plaint that she had inherited to the estate of Narayan Dutta. After giving up that plea she now wants to set up a totally new case that she did not inherit the estate on the death of Narayan Dutta, 'which was inherited by his son and widow. The estated inherited by the widow was limited estate, which ripened into full ownership on coming into force of Hindu Succession Act, 1956 and thus on the death of widow she along with her two sisters and brother inherited the estate of Karam Devi. This claim is in fact a distinct cause of action from the one which was pleaded in the original plaint. Allowing such an amendment would not only cause material prejudice but also result in irreparable loss to the defendant and will render plea of limitation nugatory since as on the date of the filing of an application, the claim for the cause of action sought to be pleaded would definitely be barred, if a fresh suit on that cause of action has to be filed. Consequently, the application is dismissed.

S.N0.785/94

LIST for directions before the appropriate court on 5th February, 1996.