Ved Mehta And Ors. vs Commander Ashok Mehta
2000 Latest Caselaw 729 Del

JUDGMENT

S.K. Mahajan, J.

1. The plaintiffs filed this suit for declaration, mandatory injunction and prohibitory injunction on the allegations that the plaintiffs and the defendant are the successors in interest of late Dr. Amolak Ram Mehta; Dr. Amolak Ram Mehta owned a double storied house with a barsati floor and out house on plot No. C-1, Nizamuddin East, New Delhi: he executed a Will dated 23rd December, 1981 appointing plaintiff No. 1 as the executor of the Will; in terms of the Will, the property was to devolve on Smt. Shanti Mehta, the wife of the deceased, for her life and after her death to her children i.e. plaintiffs 2 to 6 and defendant in equal shares; plaintiff No. 1 was excluded from the Will as per the wishes of the said plaintiff. On 21st November, 1985 Dr. Amolak Ram Mehta executed a Codicil partially modifying the terms of the Will declaring that the defendant shall have a right to stay with his family on the first floor of the house for a period of 15 years from the date of the Codicil. Dr. Amolak Ram Mehta died on 26th July, 1986 and Smt. Shanti Mehta died on 13th May, 1990.

2. It is alleged in the plaint that with a view to maintain cordial relations and to avoid any discord between the brothers and sisters, an oral family settlement was arrived at the instance of plaintiff No. 1 and the same was subsequently recorded in a memorandum. This memorandum of settlement provided that the terms of the Will dated 23rd December, 1981 and Codicil dated 21st November, 1985 executed by Dr. Amolak Ram Mehta would be binding on everybody and that peaceful possession of (he defendant in relation to the first floor of the property would not be disturbed. It was further recorded that the rest of the house would be available for the benefit of the plaintiffs 2 to 6 and the defendant who were equal beneficiaries under the Will. It was also recorded in the memorandum of settlement that it will be left to plaintiff No. 1 to decide as to how the house was to be dealt with either by sale, lease or licence and that the keys of the house except the first floor would be kept in the custody of plaintiff No. 1 or with such party as he desires and it was left to the first plaintiff to permit the use of the house to any party he desired. There appears to have arisen certain disputes between the parties about the modalities of working of this settlement which resulted in the plaintiff filing this suit for declaration, prohibitory and mandatory injunctions.

3. In the written statement, (he defendant has not denied the execution of the Will and the Codicil by Dr. Amolak Ram Mehta, however, it is stated that while the rights of the parties were determined, crystalised and circumscribed by the Will and Codicil of their late father and mother, the defendant was pressurised into affixing his signatures on the so called memorandum of family settlement, the terms of which were intrinsically contrary to the wishes of the lather of the parties. It is stated in the written statement that the defendant had all along suggested that ground floor of the property be let to a tenant and the rental could be shared equally by the parties after meeting expenses for the upkeep and maintenance of the property, however, plaintiffs insisted only upon the sale of the same. The suit, it is alleged, has been filed only with a view to pressurise the defendant into submitting to the sale which is alleged to be contrary to the wishes of the parents of the parties.

4. On 4th August, 1995, the Court after recording that "defendant having admitted signatures on memorandum of family settlement which has been marked as Ex.P-3, there is no need to record defendant's statement at this stage under Order 10 Rule 1 of the Code of Civil Procedure", framed the following issues:-

1. Whether the defendant was pressurized into affixing his signatures on the memorandum of family settlement, Ext.P-3, as alleged? If so, its effect? OPD.

2. Relief.

5. Though, the Court had fixed a date for recording of evidence, however, till date no witness had been produced by any of the parties in this suit.

6. This application has now been filed by the defendant for amendment of the written statement. It is stated in the application for amendment that admitted case of the parties was that Smt. Shanti Mehta, the mother of the parties, had executed a Will wherein she bequeathed all her assets to which she was found entitled at the time of her death and for which no specific provision had been made in the Will in favour of Mr. O.P. Mehta, plaintiff No. 5 and the defendant equally. It is, therefore, contended in the application that by virtue of this Will, the plaintiffs except Mr. O.P. Mehta were left with no right, title or interest in the property and the parties could not have entered into memorandum of family settlement which was subject matter of the suit. It is stated that the factum of the mother's Will was deliberately concealed from the memorandum of family settlement. As already staled, it was the case of the defendant in the written statement that he was pressurised into affixing his signatures on the so called memorandum of family settlement, terms of which were intrinsically contrary to the wishes of the father of the parties.

7. The plaintiffs have objected to the amendment being allowed in the written statement on the ground that by way of amendment the defendant was seeking to change nature and character of the defense and trying to resile from the admissions already made in the pleadings and documents. It is stated that the defendant having admitted the memorandum of family settlement, the amendment sought to incorporate the plea that the settlement is void ab-initio was not permissible.

8. Mr. Kaul, learned Senior counsel, appearing on behalf of the plaintiffs has relied upon the judgments reported as Gauri Shankar v. Hindustan Trust (Pvt.) Limited and Ors., ; Kale and Ors. v. Deputy Director of Consolidation and Ors., ; Modi Spinning & Weaving Mills Company Limited and Anr. v. Ladha Ram and Company, and Heeralal v. Kalyan Mal and Ors., , in support of his contention that amendment of the nature sought by the defendant cannot be permitted in the facts and circumstances of the present case.

9. In Gauri Shankar v. Hindustan Trust (Pvt.) Limited (Supra), it was held that a pure question of law not agitated or abandoned in the lower appellate Court can be allowed to be raised in second appeal under Section 39(2) but the Court in exercise of its discretion has to consider whether it should be permitted to be raised and while giving permission the Court has to look at all the facts and circumstances, the conduct of the party seeking to raise it being of great importance. It was held that an amendment in the written statement to take a plea of absence of a valid notice terminating the contractual tenancy should not be permitted to be taken after eight years. What had weighed in the mind of the Supreme Court to hold that such an amendment should not be permitted was that if a technical plea of the nature sought to be raised by the amendment had been raised at an earlier stage, the landlord could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. By not raising that pica for 8 years, a great deal of precut caused to the landlord. It was held that the course the litigation between the had taken and the manner in which the plea was sought to be raised by an amend after eight years of the institution of the eviction petition and further the abandoned of any contention based on that plea before the Rent Control Tribunal, were more than sufficient to persuade the Court that any argument based on the absence of valid notice should not have been allowed. In my opinion, this judgment will not be applicable to the facts of the present case. In the aforesaid case, the amendment which was sought to be taken was of a technical nature and it was in that context that the Supreme Court held that in case this objection was taken at the earlier stage, the landlord could have withdrawn the petition for eviction with permission to file another petition. That is not the position in the present case inasmuch as the plea which is now sought to be taken by the defendant in the written statement is pure interpretation of the Will of the mother of the parties.

10. The case Kale and Ors. v. Deputy Director of Consolidation and Ors. (Supra) deals with interpretation of the family settlement and it was held that a family settlement was binding on all the parties to the same and more so when it was acted upon by them. It is not understood as to how this judgment will be applicable to the facts of the present case. It is the case of the defendant even in the written statement that the family settlement was signed by him under pressure and he has only admitted his signatures on the family settlement. In my view, this judgment is also not applicable to the facts of the present case.

11. In Modi Spinning & Weaving Mills Company Limited and Anr. v. Ladha Ram and Company (Supra) the defendant by way of amendment sought to substitute certain paragraphs in the written statement by which an entirely new case was sought to be set up seeking to displace plaintiff completely from admissions made by the defendant in the written statement. The Court, therefore, held that the defendants cannot be allowed to change completely the case already made in the written statement and substitute the same with an entirely different and a new case. Similarly in Heeralal v. Kalyan Mal and Ors. (Supra), it was held by the Supreme Court that withdrawal of admissions made in the written statement by the defendant which would displace the plaintiffs case and cause him irreparable prejudice was not permissible. In my view, the law laid down by the Supreme Court in the aforesaid two judgments is not in any way applicable to the facts of the present case.

12. In the present case all that the defendant is seeking to add by way of amendment is that by virtue of the Will of the mother of the parties, the plaintiffs except plaintiff No. 5, do not get any right in the property and consequently the family settlement could not have been arrived at. It is his case even in the original written statement that family settlement was arrived at under pressure. In my view, the defendant is neither trying to resile from any admission, alleged to have been made by him in the written statement nor he is setting up any new case by way of the proposed amendment which would cause injustice and irreparable loss to the plaintiffs. It is a pure question of the interpretation of the Will of the mother of the parties to find out whether the plaintiffs (SIC) entitled to any share in the property.

13. (SIC) now well settled that all amendments ought to be allowed which satisfy the (SIC) conditions, namely, i) no injustice is caused to the other side; and ii) are necessary (SIC) the purpose of determining the real question of disputes between the parties. The amendment should be refused only where the other party cannot be placed in the same position as if the pleadings have been radically correct and the amendment would cause him an injury which could not be compensated in costs. It is no doubt that there is some delay in filing the application for amendment but, in my view, delay in itself cannot be a ground to dismiss the application for amendment in case the amendment sought is necessary for deciding the real matter in controversy between the parties. In my view, the amendment now sought is relevant and necessary for deciding the real matter in dispute in the case inasmuch as in case this Court interprets the Will in the manner suggested by the defendant, some of the plaintiffs may not be entitled to a share in the property. It is a pure question of law which is now sought to be added by way of amendment in the written statement. In my view, as the parties have not led any evidence, no prejudice would be caused to the plaintiff in case the amendment proposed by the defendant is allowed.

14. I, accordingly, allow this application and permit the defendant to amend the written statement in the manner proposed in the application, subject to payment of Rs.10,000/- as costs.

IA. No. 5505/93

15. This application was filed by the plaintiff for (i) an ad-interim injunction restraining the defendant from alienating, transferring , encumbering or parting with possession in any manner whatsoever of any portion of the property being C-1, Nizamuddin East, New Delhi; and (ii) directing the defendant to hand over the keys of the ground floor portion and barsati of property No. C-1, Nizamuddin East, New Delhi to plaintiff No. 1 or his nominee. It is not denied that under the Will and Codicil of the father, the defendant was entitled to retain possession of the first floor of the property for a period of 15 years from the date of the Codicil dated 21st November, 1985. Pursuant to the Will executed by the parents of the parties and after their death, the parties had arrived at a family settlement on 22nd May, 1991 whereby it was agreed that save and except the right of defendant to occupy the first floor for a period of 15 years, keys of all the portions of the house except the first floor would be kept in the custody of plaintiff No. 1 or with such party as he desires to which the parties hereto will have no objection. It is, therefore, the submission of the plaintiffs that as the defendant has a right only to live on the first floor, he does not have a right to continue to occupy the keys of the ground floor so as to deprive the other heirs of the deceased Dr. Amolak Ram Mehta the benefit of the use and occupation of the ground floor of the property.

16. In reply to the application, defendant has denied that there was any threat of his creating third party interest in the suit property, he further states that the defendant himself had on several occasions requested the plaintiffs to let out the premises so that all the expenses which are presently borne by the defendant cab be shared by all the co-owners. He further states that he did not want to sell, alienate, transfer, encumber or part with possession in any manner of any portion of the property in suit. He has, however, objected to the handing over of the keys of the ground floor and second floor of the property to plaintiff No. 1.

17. From a perusal of the pleadings of the parties, it is clear that the defendant also does not dispute that all the parties to the suit are entitled to the ground floor and second floor of the property. The defendant, therefore, cannot be permitted to exclusively use both the floors of the property. Admittedly ground floor and the second floor of the property are lying vacant for a number of years and is not being put to use by any of the parties because of the obstructions created by the defendant. In my view, as all the parties to the suit have a right to occupy the ground and the second floor of the property, the defendant has no right whatsoever to occupy the keys exclusively to himself.

18. It is argued by Mr. Uppal that this Court has no power to grant mandatory injunction at an interim stage so as to direct the defendant to hand over the keys of the ground floor and second floor to plaintiff No. 1 or to permit any of the plaintiffs to use the said floors. I am not impressed with the argument of Mr. Uppal. All the parties to the suit are admittedly entitled to the user of the ground floor and second floor. Till such lime the rights of the parties arc decided in this suit, the defendant cannot obstruct the plaintiffs from using these floors of the property. The Court is competent to pass an order even in mandatory form even at an interim stage, though doubtless the circumstances of the case must be very strong to warrant this particular species of temporary relief. With a view to advance the cause of justice, Court has unfettered powers to pass such an order both under Order XXXIX as well as under Section 151 CPC.

19. Defendant has himself admitted in the written statement that the ground floor of the properly is meant for use of all the parties to the suit but still he has successfully obstructed the plaintiffs from using the same. One co-owner does not have any right to appropriate to himself the entire property nor does he have any right to obstruct others from using the same. I am of the considered opinion that the act of the defendant in not handing over the keys of the ground floor and second floor to plaintiff No. 1 and not permitting other plaintiffs to use those floors of the property is clearly high handed and he cannot be encouraged to continue to act in that manner by the Courts.

20. I, accordingly, direct the defendant to hand over the keys of the ground floor and second floor of the properly to plaintiff No. 1 within one week so that this floor could be used by any of the parties to the suit at the sole discretion of the said plaintiff. The order dated 28th May, 1993 is also made absolute till the disposal of the suit. The application stands disposed of.