R.K. Malhotra vs Smt. Santosh Kaur
2000 Latest Caselaw 223 Del

ORDER

S.K. Agarwal, J.

1. This order will dispose of an application for amendment of the written statement under Order 6, Rule 17 and Section 151 of the Code of Civil Procedure, 1908 (for short CPC) whereby para 7 of the written statement is sought to be amended by the defendant. Plaintiff filed a reply opposing the application.

2. Brief facts necessary for disposal of the application are ; that the plaintiff filed a suit for partition of the property bearing Municipal No. II-J-33/A, Lajpat Nagar - II, New Delhi (hereinafter referred to as the suit property) alleging therein that her grandmother Smt. Bhagwanti Devi owned properties in Pakistan and after partition she acquired and got a plot measuring 100 sq. yards, on which two storey building was constructed and after the death of Smt. hagwanti Devi, the suit property was mutated/transferred in the name of her father Sh. Joginder Singh Malhotra, husband of the defendant, who till his death was occupying and staying therein with his family; ground floor of the suit property was being used by the family members of the defendant and her sons who are doing business of denting and painting of three wheeler scooters. Sh. Joinder Singh expired on 5.1.90 and after his death, it is alleged that certain blank papers were got signed from the plaintiff and the suit property was got mutated in the name of the defendant, with an understanding plaintiff would be given her share. The plaintiff signed the blank papers in good faith. Mr. Joginder Singh Malhotra, left behind four married daughters (including the plaintiff) three sons' and his wife (defendant), who are equally enti-tled to 1/8th undivided share of the suit property. It was pleaded that the suit property was ancestral and was inherited from the forefathers, as such under the Indian Succession Act the same devolved upon all the legal heirs in equal shares and hence the plaintiff is entitled to 1/8th shares (undivided) in the suit property. The plaintiff amended the plaint which was allowed, vide orders dated 28.7.98 (IA. 5936/98).

3. The defendant filed a written statement taking several preliminary objections submitting therein that as per plaintiff's own showing the defendant with her family members has been in sole possession and occupation of the suit property; that the plaintiff is not the member of the joint family of late Sh. Joginder Singh Malhotra, that the suit is barred by limitation and by the provisions of Section 41(h) of Specific Relief Act. In the written statement it was pleaded that the plaintiff or other legal heirs has no share in the ancestral property; only the land underneath was an ancestral property in character and not the built up superstructure thereon; and that the land in question being leasehold property under the Government of India and the same is indivisible. In paragraph 7 of the written statement it is pleaded as under :-

"Para No. 7 of the plaint is denied. The plaintiff or other legal heirs has no share in the ancestral property. Only the land underneath is ancestral property in character and not the built up superstructure. The land in question is a leasehold proerty under the Government of India and the same is indivisible. The superstructure was constructed with the funds from late Shri Joginder Singh and his three sons and the personal savings and assets of the defendant, without any contribution from the plain tiff. The plaintiff is not entitled to 1/8th share in any share in the suit property under any law."

4. The above paragraph of the written statement is now sought to be ubstituted with the following:-

"Only the land underneath was ancestral in character initially and not the built up superstructure and with the mutation of the entire property in favour of the defendants late husband, and, then, in favour of the defendant, the said land ceased to be of an ancestral character."

5. I have heard arguments of learned counsel for the parties and have een taken through the record.

6. Learned counsel for the plaintiff has argued that by way of amendment defendant wants to withdraw his admission regarding the status of the plot of land in question, being ancestral property, which shows that the defendant is entitled to 1/8th undivided share in the same being one of the legal heirs of late Sh. Joginder Singh. It is further argued that the amendment of written statement was sought only when the plaintiff clarified the status of the property in the application that the mutation was got done by the defendant in her favour only by misusing lank papers, which the sons of defendant got signed from her on the pretext that they was required for the purpose of distributing the shares. Learned counsel for the defendant argued to the contrary.

7. The approach to be adopted by the courts while dealing with the applications seeking amendment of the pleadings is now well settled. The Supreme Court in catena of decisions has laid down, the law even when an admission in the pleadings is sought to be explained or withdrawn.

8. In Panchdeo Naraina Srivastava Vs. Km. Jyoti Sahay & Anr., . Supreme Court made the following observation :-

"An admission made by a party may be withdrawn or may be exlained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn.

Trial Judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary, and, therefore, the High Court ought not to have interfered in its revisional jurisdiction.

9. Similarly Supreme Court, in Akshaya Resturant Vs. P. Anjanappa & Anr., 1995(2) SCALE 698, made the following observations :-

"It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In the view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 CPC in permitting amendment of the written statement."

10. Applying the above principles to the facts of the present case, it is clear that the case of the defendant, as pleaded in the written statement, throughout has been that plaintiff has no share in the property, that superstructure on the land was raised out of self acquired funds by Sh. Joginder Singh, and that only the land underneath was ancestral in character; this expression is now sought to be explained by pleading that the land underneath was ancestral initially but that subsequent to the mutation of the plot firstly in the name of Sh. Joginder Singh and then in the name of defendant, it had ceased to be ancestral. The suit is still at the initial stages. This amendment will not change the nature of the suit. It would also not cause any injustice to the defendant. It is necessary for the purposes of determining the real controversy between the parties.

11. For the foregoing reasons in order to effectively adjudicate upon the dispute between the parties amendment application is allowed, subject to payment of costs of Rs. 2,500/-. Amended written statement be taken on record. Plaintiff may file amended replication within a period of two weeks.

Application stands disposed of.

12. List the matter before the Joint Registrar for completion of pleadings, filing of documents and admission/denial on 4th July, 2000, the date already fixed.