Sh. Ram Nath Sharma And Ors. vs Sh. Vinod Kumar Sharma And Ors.
2001 Latest Caselaw 1021 Del

ORDER

A.K. Sikri, J.

IA No. 6211/2001

1. This application is filed by the defendants 1-6 under Order VI Rule 16 and 17, Section 153 read with Section 151 CPC. Learned counsel for the plaintiffs has accepted notice of this application and submits that no reply is required to be filed. Both the parties have addressed arguments on this application.

2. Before adverting to the allegations/averments made in the application on the basis of which amendment in the written statement is sought, it would be necessary to state in brief the developments which have taken place in this case. The plaintiffs have filed the present suit for partition of property that is left behind by deceased late Sh. Ganga Ram Sharma. The case set up in the plaint was that late Shri Puran was the owner of 1/5th share of land in Khasra No. 553/418 in Village Kotla Mubarakpur, New Delhi measuring 2 bighas 16 biswas. This 1/5th share of Puran on his death devolved upon his four sons namely Munshi, Ganga, Jaga and Om Prakash. There was a partition amongst these four brothers after the death of Puran and the area falling to the share of each one of them was about 100 sq. yds. Kotla Mubarakpur was urbanised and was named as Masjid Moth area. Municipal numbers were allotted by Municipal Corporation of Delhi to the properties and the area of 100 sq. yrds. which had fallen to the share of Ganga Ram Sharma was allotted municipal No. 277 Masjid Moth, New Delhi. Ganga Ram Sharma expired on 20th December, 1984 in Delhi leaving behind the plaintiffs and defendants as his only legal heirs. While the plaintiffs 1 and 2 and the defendant No. 1 are the sons of the deceased Ganga Ram Sharma, the plaintiff No. 3 is his widow. The defendants 7 and 8 are the daughters of deceased Ganga Ram Sharma while the defendant no. 2 is the widow of predeceased son of the deceased Ganga Ram Sharma. The defendants 3 to 6 are the daughters of the pre-deceased son of Ganga Ram Sharma. This suit has been filed by the plaintiffs now for partition of the property bearing No. 277 Masjid Moth, New Delhi on the allegations that the legal heirs of the deceased namely, the plaintiffs, defendants 1, 7 and 8 and the defendants 2 to 6 have inherited 1/7th share each in the said property.

3. The defendants appeared and filed the written statement. In the written statement, the defendants did not deny the allegations made in the plaint and it was admitted by all the parties that they had 1/7th share each in the property. Although defendants 5 and 6 are minors, IA No. 3762/97 was filed by the plaintiffs sueing them through their mother and natural guardian defendant No. 2. The defendant No. 2 submitted that she had no objection to act as the natural guardian and next friend of the defendants 5 and 6. After recording that she had no interest adverse to those of minors, by order dated 22nd September, 1998 this court appointed defendant No. 2 as the guardian ad-litem and next friend of defendants 5 and 6 and disposal of IA No. 3762/97. In suit, on the basis of the admitted case of the parties, namely, the plaintiffs as well as the defendants the plaintiffs, defendants 1, 7 and 8 and defendants 2 to 6 have inherited 1/7th share each, a preliminary decree dated 22nd September, 1998 was passed.

4. After the passing of the preliminary decree, the defendants 1-6 filed appeal against the same. In this appeal it was, inter alia, alleged that the deceased Ganga Ram Sharma had executed an affidavit dated 6th April, 1984 whereby he had bequeathed the aforesaid property in a different manner. Application under Order 41 Rule 27 CPC was also filed along with the said appeal, namely, RFA(OS) No. 51/99 with the prayer to take the said document on record and allow the defendants (appellants herein) to lead evidence in support of the said affidavit. It was also alleged that this document was not known to the defendants nor in their possession which came in their possession later on and therefore, the defendants be permitted to rely upon the said affidavit dated 6th April, 1984. After hearing the parties, the Division Bench of this court dismissed the said RFA(OS) No. 51/99 by order dated 12th July, 2000. This order reads as under:

"This appeal is against preliminary decree dated 22nd September, 1998. The preliminary decree shows that it is based on admitted fact that each party has 1/7th share in the suit property. The learned Single Judge has accordingly declared shares of the parties as 1/7th each. Learned counsel for the appellant wants to rely upon an affidavit dated 6th April, 1984 alleged to have been sworn by Shri Ganga Ram Sharma, father of the parties. This affidavit was never placed before the court during the trial. In our view the appellant cannot be allowed to rely upon this affidavit particularly when in 1989 the parties had entered into a settlement thereby agreeing to their 1/7th share each in the suit property. The appeal has not merit and is accordingly dismissed.

CMs. 1910/99 & 1909/99

Since we have decided the appeal on merits, no orders are called for on these applications."

5. The defendants herein preferred SLP against the aforesaid order dated 12th July, 2000 which was also dismissed by the Supreme Court observing that there was no merit in the petition. In this manner preliminary decree passed by the Single Judge of this court has become final as attempts of the defendants to challenge the same have failed at the level of highest court.

6. After having been unsuccessful in their attempts to project the said affidavit dated 6th April, 1984, and to bring the same on record and to reopen the preliminary decree passed, present application is filed for amendment of the written statement. In the application, the defendants want to place on record the same affidavit dated 6th April, 1984 and incorporate the plea in view of the said affidavit plaintiffs are now entitled to 1/7th share each in the suit property. In view of the events narrated above, the defendants cannot be allowed to amend the written statement in this manner the effect of which would be to unsettle the preliminary decree dated 22nd September, 1998 which has been upheld by Division Bench of this court as well as Supreme Court in SLP. The grounds on which the said affidavit is sought to be brought on record and amendment to that effect proposed to be taken in the written statement are the same on which appeal was filed and particularly the averments made by the defendants in application under Order 41 Rule 27 CPC. This plea did not find favor by the Division Bench of this court as well as the Supreme Court. There is yet another reason for rejecting the prayer for proposed amendment. If the amendment is allowed, it would change the entire nature of the defense/plea taken in the written statement filed by the defendant earlier. Whereas the defendants had in the written statement filed earlier accepted the case of the plaintiffs and also accepted the position that the parties in question are entitled to 1/7th share each in the suit property, the defendants now want to take somersault and adopt diametrically opposite stand. Amendment of this nature cannot be allowed. Another important fact which also needs to be mentioned is that the parties had entered into family settlement dated 7th July, 1989 whereby all the parties had agreed that they had 1/7th share each in the suit property. This settlement had taken place much after the alleged affidavit dated 6th April, 1984 allegedly executed by late Sh. Ganga Ram Sharma. This family settlement dated 7th July, 1989 was accepted by the parties when preliminary decree dated 22nd September, 1998 was passed. The defendants are now trying to even over-reach this family settlement dated 7th July, 1989 in their attempt to amend the written statement by means of this application.

7. Learned counsel for the applicants/defendants relied upon certain judgments in support of his plea that application for amendment can be allowed even after the preliminary decree is passed. He referred to: 1. , C.M. Vereekutty Vs. C.M. Mathukutty, 2. , Phoolchand and Anr. Vs. Gopal Lal and 3. , Kalkonda Pandu Rangaiah Vs. Kalkonda Krishnaiah and Ors. While the proposition of law laid down in these cases cannot be questioned, none of these case have any application to the facts and circumstances of the present case, particularly keeping in view the events which have taken place in the instant case because of which, neither the defendants can be allowed to file this document at this stage nor the proposed amendment is permissible due to the reasons mentioned above. It was also sought to be argued that the defendants had right to place on record the document at this stage if it was not within their knowledge earlier and two judgments of this court in the cases of Raghunandan Saran Ashok Saran Vs. Amrit Lal Chopra and Ors. and Asman Investments Ltd. K.L. Suneja & Anr. were cited in support of this proposition. For same reasons mentioned above, even these judgments are not applicable in the instant case. It is stated at the cost of repetition that the same very attempt, on the basis of same plea taken by the defendants in RFA(OS) No. 51/99 and particularly taken in application filed under Order 41 Rule 27 CPC having ben failed.

8. The other amendment sought in the plaint, as argued by learned counsel for defendants, was that the settlement is not binding upon the defendants 5 and 6 who are minors, and therefore, they are not bound by the same. This plea is again without merit and is hereby rejected. It may be stated in the first instance that the plea is not taken by defendants 5 and 6 who are still minors but by defendant No. 2 acting as guardian of defendants 5 and 6. As already pointed out above, in IA No. 3762/97 order dated 22nd September, 1998 was passed appointing defendant No. 2 as natural guardian and next friend of defendants 5 and 6 and after taking no objection of defendant No. 2 had no interest adverse to those of minors. Taking up this plea of defendant No. 2 after passing of the preliminary decree, shows desperate attempt of defendant No. 2 to somehow unsettle the settle position. It is, to say the least, dishonest and mala fide. For these reasons, this application is dismissed with cost quantified at Rs. 2,000/-.

IA No. 6212/2001

9. In view of order passed in IA No. 6211/2001 dismissing the same, this application has no merit and is accordingly dismissed.

Suit No. 843/97

10. It is already listed on 8th October, 2001. It is expected that in the meantime the Local Commissioner shall complete the proceedings and submit his report.