Mrs. Sarabjit Singh vs Mr. Gurinder Singh Sandhu And Ors.
2006 Latest Caselaw 656 Del

JUDGMENT

Anil Kumar, J.

IA NO.7711/2002

1. This is an application by the defendant No. 3 under Order XII Rule 6 read with Section 151 of Code of Civil Procedure for passing the judgment on the admission of the parties.

2. The defendant No. 3/applicant has contended that partition of the properties of late Lieutenant Colonel Gurpuran Singh is sought by the plaintiff who is one of his daughters. The properties sought to be partitioned are given by the plaintiff in Schedule 1 to 7 annexed along with the plaint. The applicant contended that plaintiff has erroneously included Khasra Nos. 4919, 4929, 4930, 5038-5048 in village Banur, Tehsil Rajpura, District Patiala, Punjab which had been bequeathed by late Lieutenant Colonel Gurpuran Singh to defendant No.3 by his will and testament dated 29th January, 1982. Applicant contended that the said will was duly accepted by all the legal heirs who also affixed their signatures on the said will stating that they had no objection in respect of said will. The applicant/defendant No. 3 contended that the other legal heirs of late Lieutenant Colonel Gurpuran Singh, plaintiff, defendant No. 1, defendant No. 2 and defendant No. 4 were given agricultural lands at village Banaur, Tehsil Rajpura, District Patiala, Punjab by virtue of various suits for declarations/possession filed and in order to maintain a parity and equity amongst all the legal heirs, the aforesaid will dated 29th January, 1982 was executed which was accepted by everyone.

3. The plaintiff relied on the averments made by the plaintiff in para 6 of the plaint which is as under:

Since none of the lands at the aforementioned villages had been given to the defendant No. 3 'Mrs. Ranjit Kaur pursuant to the aforementioned court decrees, a will dated the 29th January, 1982 was executed by the plaintiffs' father - Lt. Col. Gurpuran Singh bequeathing some of the remaining lands which were held by him absolutely in village Banur, Punjab. In addition to the witness to the said will, the said will dated the 29th January, 1982 was also countersigned by the defendant No. 1 as a token of ratification of the partition that had earlier been effected and in recognition of the fact that Lt.Col. Gurpuran Singh was the exclusive owner of the said land and competent to execute the said will.

4. The applicant/defendant No. 3 also relied on the written statement of defendant No. 1 contending that in the written statement defendant No. 1 admitted that by virtue of will dated 29th January, 1982 the agricultural land was devised in favor of defendant No. 3. The applicant/defendant No. 3, therefore, in view of the categorical admission on the part of the plaintiff and defendant No. 1 sought a judgment in her favor and against the plaintiff and other defendants declaring that the agricultural land bearing Khasra Nos. 4919, 4929, 4930, 5038-5048 in village Banur, Tehsil Rajpura, District Patiala, Punjab belongs solely to defendant No. 3 and the same be excluded from schedule 1 of the suit property and decree be accordingly passed in respect of the same in favor of defendant No. 3.

5. The admissions made in the pleadings have to be taken as a whole and not in part. The provisions of Order XII Rule 6 are discretionary and not mandatory and it is not incumbent on the courts in all cases to pass a judgment upon admission. Specially, if a case involves questions which cannot conveniently be disposed of but an application under this rule or if the case is such that it is not safe to pass a judgment on admission, the court may in exercise of its discretion refuse the motion. It is no more res integra that before a court can act under Order XII Rule 6, admissions must be clear and unambiguous. When the admission is clear and unequivocal and the pleadings of the parties raise serious preliminary pleas which are likely to non-suit a party, a court in its discretion can refuse to pass a decree. It can also be not disputed that the court is vest with discretion to ask for independent corroboration of a fact not specifically denied in the pleadings considering the peculiar nature of the facts and circumstances of the case. At the same time, the court can suo moto pass judgment under Order XII Rule 6 where the parties have conceded the rights of other parties.

6. In AIR 1986 SUPREME Court 1509, Dudh Nath Pandey v. Suresh Chandra Bhattasali the Apex Court had held that the admission must be taken as a whole and it is not permissible to rely on a part of admission ignoring the other. In this matter, the appellate court had given a finding that the plaintiff?s claim was barred by limitation and had dismissed the suit and plaintiff feeling aggrieved took up the matter to the High Court. This finding was, however, reversed by the High Court relying on an admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of defendant. On merits, it was held that High Court was not right in relying upon the alleged admission as the admission ought to have been taken as a whole and it was not permissible to rely on a part of the admission. In AIR 1971 Supreme Court 1542, Chikkam Koteswara Rao v. Chikkam Subbarao and Ors. the Apex Court had held that the admissions must be clear in their meaning holding that before right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear cut and conclusive.

7. In 1997 (V) AD (Delhi) 627, Madhav Leasing Finance (P) Ltd. v. Erose Educational Infotech Pvt. Ltd. a single Judge of this Court had held that a decree under Order XII Rule 6 cannot be passed unless the admission made is clear cut and unambiguous.

8. The plaintiff has filed the suit for partition of the properties of late Lieutenant Colonel Gurpuran Singh on the basis of an alleged will dated 4th March, 1992 contending that the will dated 4th March, 1992 was the last will of late Lieutenant Colonel Gurpuran Singh. If the plaintiff is propounding a subsequent will of the deceased, even if an earlier will is admitted by the plaintiff, on the basis of alleged admitted will, the beneficiary shall not be entitled for any relief on the basis of previous will.

9. In the circumstances, though the plaintiff has admitted that the will dated 29th January, 1982 was executed by late Lieutenant Colonel Gurpuran Singh and the plaintiff had given his no objections on the said will, the fact that it is not the last will of the deceased, the bequest could not be made on the basis of the same. Similarly, defendant No. 1 though has admitted the will dated 29th January, 1982, however, has also raised the pleas regarding the properties being HUF properties. The defendant No. 1 has categorically contended that there had not been any partition and late Lieutenant Colonel Gurpuran Singh had not become the exclusive owner of the properties which remained with HUF and the defendant No. 1 has relied on yet another will of late Lieutenant Colonel Gurpuran Singh dated 3rd August, 1991. The relevant plea of the defendant No. 1 is as under:-

So far as giving of certain properties to the plaintiff and defendants 2 to 4 by means of various suits are concerned, the same are matter of record. Balance left after execution of various decrees was with HUF. From this, it cannot be concluded that there was any partition or that the deceased father had become exclusive owner of the properties which remained with HUF, the facts are given by deceased father in his will dated 3rd August, 1991.

10. The defendant No. 1, in the circumstances, though admitted that late Lieutenant Colonel Gurpuran Singh bequeathed certain agricultural land to defendant No. 3 by will dated 29th January, 1982 claiming these lands as his shares of HUF properties, however, at the same time, he also pleaded that another will dated 3rd August, 1991 was executed by late Lieutenant Colonel Gurpuran Singh. If the will dated 29th January, 1982 was not the last bequest made by late Lieutenant Colonel Gurpuran Singh and since defendant No. 1 has relied on yet another will which is subsequent to the will relied on by the defendant No. 3, on the basis of the will dated 29th January, 1982 no rights can be ascribed to defendant No. 3 nor any decree can be passed.

11. From the pleadings of plaintiff and defendant No. 1, it cannot be inferred that there are such specific admissions which will entitle defendant No.3/applicant for the relief that the properties which were devised to defendant No. 3 by will dated 29th January, 1982 are her absolute properties and can not be subject matter of this suit and should be deleted from the properties which are sought to be partitioned.

12. Even according to the application of the plaintiff under Order XII Rule 6 of the Code of Civil Procedure, there are no admissions on the part of defendant No. 2 and defendant No. 4. In a suit for partition among the co-owners, all the persons have equal rights and unless there are specific admissions on behalf of defendant No. 2 and defendant No. 4 also, no decree as claimed by the defendant No.3 can be passed.

13. In the circumstances, the inevitable inference is that in the pleadings of defendant No. 2 and defendant No. 4, there are no such categorical or specific admissions which will entitled defendant No. 3 for a decree that the lands consisted of Khasras No. 4919, 4929, 4930, 5038, 5048 in village Banaur, Tehsil Rajpura, District Patiala, Punjab are the properties which were devised by late Lieutenant Colonel Gurpuran Singh absolutely on defendant No. 3 and she has become the owner thereof and these properties are not liable to be partitioned in the suit for partition filed by plaintiff and are not liable to be deleted from the schedule of properties to be partitioned filed by the plaintiff. The application is, therefore, without merit and is dismissed.

IA No. 5945/2002

14. This is an application by the defendant No. 1 under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure Code seeking amendment of the written statement filed by him in a suit for partition.

15. The plaintiff has filed the suit for partition of her father's, late Lt. Colonel Gurpuran Singh, properties contending that he executed a will dated 4th March, 1992 by which he bequeathed his properties in favor of plaintiff and defendants No. 1 to 4 who are brother and sisters. ?

16. The plaintiff had contended that Major Autar Singh, grand father of plaintiff and defendants No. 1 to 4, owned several properties in Pakistan (West) which were left behind on partition and in lieu of those properties at Pakistan, he was allotted properties described in Schedule 1 to 3 of the plaint at Village Banaur, Tehsil Rajpura in District Patiala and village Patti Mehar in District Tambola, Haryana. These properties were inherited by late Lt.Colonel Gurpuran Singh, father of the plaintiff.

17. The plaintiff also asserted that in or around 1970, applicant/defendant No. 1 expressed his desire to partition his share in the ancestral land in Village Banaur, Rajpura Tehsil, District Patiala and Village Patti Mehar in District Tambola, Haryana and thereafter a family arrangement was entered between late Lt.Colonel Gurpuran Singh, father of the parties, and defendant No. 1/applicant, his only son, where it was agreed that the applicant would get the entire agricultural land at Village Banaur, Rajpura Tehsil, District Patiala and agricultural land was given as his share in the ancestral properties. Remaining properties became the absolute properties of late Lt.Colonel Gurpuran Singh.

18. The defendant No. 1/applicant filed a written statement contending inter alia that no family arrangement as was alleged by the plaintiff was entered into between late Lt.Colonel Gurpuran Singh? and defendant No. 1/applicant for partitioning of the properties. The applicant categorically averred in the written statement dated 2nd January, 1996 that the HUF which was formed consisted of, father of defendant No. 1, his mother and his father. The applicant/defendant No. 1 specifically stated that some of the properties were given to plaintiff and defendants No. 2 to 4 by means of various suits which are the matter of record, however, in respect of remaining properties it cannot be concluded that there was any partition or that the deceased father had become exclusive owner of the properties which remained with HUF.

19. In para 12 of the written statement, the defendant No. 1/applicant categorically contended as under:-

The properties with three sisters, that is, defendants were obtained by them through court decrees through mother's will. Father, however, gave by will dated 29th January, 1982 certain agricultural lands to defendant No. 3 (which the answering defendant accepts) claiming these lands as his share of HUF consisting of this land plus some more agricultural land and Banaur house and vacant plot.

20. By the present application, the applicant wants to amend the written statement to contend that in case the will dated 4th March, 1992 is held to be validly executed by late Lt.Colonel Gurpuran Singh though it is not conceded by defendant No. 1, then the same is to be read without the effect of additions and interpolations made thereof and the properties subject matter of the will dated 4th March, 1992 were held by late Lt.Colonel Gurpuran Singh? as Karta of HUF and he had no right to bequeath the entire HUF properties. The defendant No. 1/applicant also contended that though the will dated 4th March, 1992 is not admitted by him but in case the said will is proved then will dated 29th January, 1982 will stand revoked and the defendant No. 3 will not be entitled for the properties which were devised to her by virtue of the said will which will has been accepted by the defendant No. 1 in his written statement. The applicant also denied that there was any family arrangement/ partition in March 1970 or at any other time.

21. The defendant No. 1/applicant sought amendment to the written statement incorporating these pleas contending that the amendments are necessary for determination of real controversies between the parties and the suit is still at pre-trial stage and issues have not been framed and the provisions of amendment to the Code of Civil Procedure 2002 shall not be applicable in view of Section 16(b) of the Code of Civil Procedure (Amendment) Act, 2002.

22. The applicant relied on Sampath Kumar v. Ayyakannu and Anr. , Estralla Rubber v. Dass Estates (Pvt.) Ltd; , Jayanti Roy v. Dass Estates Pvt. Ltd.; , G. Nagamma and Anr. v. Siromanamna and Anr; , Arundhati Mishra v. Ram Charitra Pandey; (1995) Suppl. 3 SCC 179, Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary and Ors.; Misha Vadera v. Ravi Kumar 1996 (39) DRJ; B.K. Narayana Pillai v. Parmeswaran Pillai and Anr.; , Punjab National Bank v. Indian Bank and Anr. to contend that amendments can be allowed to put forth and seek determination of real controversies between the parties. The defendant No. 1/applicant contended that by proposed amendments, he is neither withdrawing any admissions made by him nor there is any other impediment in allowing the amendments.

23. The application is opposed by plaintiff contending that the written statement was filed by the defendant No. 1/applicant in 1996 and application for amendment has been filed in July 2002 almost after eight years and this has been done with a view to delay the disposal of the suit and consequently, the amendment to the written statement should not be allowed. The defendant No. 3 has also contested the application for amendment contending inter alia that by the proposed amendment, the defendant No. 1/applicant is seeking to withdraw the admissions already made by him. It was asserted that in the written statement filed by the defendant No. 1 earlier, it was averred that agricultural lands were devised to defendant No. 3 by will dated 29th January, 1982 and by the proposed amendments, the defendant No. 1/applicant seeks to withdraw his admission that defendant No. 3 has been given those lands and there may not be any dispute regarding the same and in fact an application had been filed under Order XII Rule 6 of the Code of Civil Procedure being IA No. 7711/2002 on the basis of which the defendant No. 3 had sought that the properties bearing Khasras No. 4919, 4929, 4930, 5038, 5048 in village Banaur, Tehsil Rajpura, District Patiala be excluded from Schedule I of the suit and the decree in respect of the said properties be passed in favor of defendant No. 3. The application of the defendant No. 3 seeking a decree in her favor on the basis of alleged admissions in the written statement of the defendant No. 1 has already been dismissed.

24. The defendant No. 3/non-applicant has also relied on (1998) 1 SCC 278, Heeralal v. Kalyan Mal and Ors.; (1976) 4 SCC 320, Modi Spinning and Weaving Mills Company Limited and Anr. v. Ladha Ram and Company to contend that the amendment to the written statement cannot be allowed when the effect would be displace a party and to deprive him or her from a valuable right already accrued to him. The non applicants contended that a party seeking amendment cannot be allowed to set up an entirely new case.

25. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down in various precedents. The purpose and object of Order 6 Rule 17 is to allow either party to alter or amend his pleading in such manner and on such terms as may be just. Though the amendment cannot be claimed as a matter of right and under all circumstances but the Courts while deciding such prayer do not adopt a hyper technical approach. Liberal approach is the general rule particularly in cases where the other side can be compensated with costs. Technicalities of law can not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. It is also no more res integra that pretrial amendments are allowed more liberally than those which are sought to be made after the commencement of trial or after conclusion thereof. Mere delay usually cannot be a ground for refusing a prayer for amendment because merits of amendment sought to be incorporated by way of amendments are not to be judged at the stage of allowing prayer for amendment. From the perusal of the written statement already filed by the defendant No. 1, it is apparent that he has asserted categorically that there was no family settlement in 1970. The same plea defendant No. 1/applicant further seeks to elaborate and in the circumstances it cannot be inferred that defendant No. 1/applicant is taking up an entirely different plea. ?

26. In para 6 of the written statement already filed the defendant No. 1 averred as under:-

No such family arrangement was entered into between plaintiff's father and defendant No. 1 for partitioning of the properties as alleged.

27. The other plea which is sought to be raised by the defendant No. 1 is that he does not admit that the will dated 4th March, 1992 was executed by late Lt.Colonel Gurpuran Singh, father of the parties, however, in case the said will is proved, the bequest of properties by will dated 29th January, 1982 will not be permissible as on the proof of the will dated 4th March, 1992, the will dated 29th January, 1982, which the defendant No. 1 admits, will not be the last will of the deceased Lt.Colonel Gurpuran Singh. The defendant No. 1 has also propounded the will dated 3rd August, 1991 of Late Lt. Col. Gurpuran Singh. Considering the entirety of the averments made in the written statement, it cannot be said that the defendant No. 1 is trying to withdraw any admission made by him. The defendant No. 1 has admitted in his written statement that late Lt.Colonel Gurpuran Singh by will dated 29th January, 1982 gave agricultural lands to defendant No. 3. But the complete plea of the defendant No. 1 is that if another will of late Lt.Colonel Gurpuran Singh dated 4th March, 1992 will be proved then the will dated 29th January, 1982 will not be his last will in view of the subsequent bequest made by him. Considering the provisions of Indian Succession Act it can not be inferred the plea now sought to be raised by the defendant No. 1 tantamount to withdrawal of admission or setting up an entirely new plea. The plea of the defendant No. 1/applicant is also that a will dated 3rd August, 1991 was executed by the deceased. If the deceased had executed a will after 29th January, 1982 and if the defendant No. 1 has stipulated about the same in his written statement, it can not be inferred that the defendant No. 1 is trying to withdraw an admission made by him.

28. The plea for amendment is also contested by defendant No. 3 on the ground that in the written statement, it was admitted by the defendant No. 1 that the properties in respect of which bequest was made by late Lt.Colonel Gurpuran Singh to defendant No. 3 were not his exclusive properties whereas by amendment, the defendant No. 1 is trying to set up a case that these were HUF properties. Perusal of the contents of the written statement which have also been referred to hereinabove, it is apparent that the defendant No. 1 did not state that there was no HUF or these lands in respect of which bequest was made by will dated 29th January, 1982 were not the properties of HUF. What was stated was that the deceased had made a bequest in favor of defendant No. 3 claiming those lands to be his share of HUF properties. The inevitable inference in the facts and circumstances on the basis of the averments of defendant No. 1 is that nowhere it has been stated that these properties were the exclusive properties of late Lt.Colonel Gurpuran Singh and are not the HUF properties.

29. The precedents relied on by the non applicants are distinguishable and do not support their pleas and contentions. In , Modis Spinning and Weaving Mills Co. Lted. v. Ladha Ram and Co amendment to the written statement was disallowed as the proposed amendment in that case entailed depriving the plaintiff of a valuable right accrued on account of admission already made by the defendant in the written statement. In the un-amended written statement it was contended that pursuant to agreement with the defendant, plaintiff worked as stockiest cum distributor but the agreement was not applicable to the transactions in which the plaintiff acted as principal. By amendment the defendant wanted to contend that the plaintiff was appointed as mercantile agent and the plaintiff acted in that capacity in placing order on the defendant and wanted to deny that the plaintiff placed order on the defendant in plaintiff's capacity as purchaser. This was held to be completely displacing the plaintiff from the admissions made by the defendant and the amendment to the written statement was not allowed. Similarly in Heera Lal v. Kalyan Mal and Ors. amendment to incorporate inconsistent pleas in the written statement was disallowed. The defendant in that case had filed a written statement taking a definite stand that out of the listed ten properties in schedule A only three properties exclusively belonged to the defendants and were not joint family properties thus admitting that the remaining seven properties were joint family properties and the plaintiff was entitled for 1/3rd share in them. As regards schedule B the defendants? stand was that the plaintiff had no interest in them. Issues were framed in the matter after the suit remained pending for a number of years and thereafter an application was filed for appointment of receiver of seven properties which were admitted by the defendants to be joint family properties was filed by the plaintiff. At that stage an application for amendment was filed contending that because of incomplete information admission was made in the written statement in respect of seven properties of schedule A. Regarding the properties mentioned in schedule B the amendment sought was that even those properties are also not in his possession and are in possession of trespassers. While disallowing the amendment it was held that once the written statement contains an admission in favor of the plaintiff, by amendment such admission of the defendants can not be allowed to be withdrawn. It was held that such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice.

30. In M/s. Estralla Rubber (supra) relied by the applicant/defendant No. 1 the apex Court held that it is open for the defendant to take an alternative or additional defense and merely because there was delay in making an amendment application will not cause any prejudice or shall take away any right accrued and in such circumstances the amendment should not be rejected. In Pankaja v. Yellappa , the Supreme Court held that so far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. The Supreme Court observed that the Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application. Considering whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments, it was observed that the law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

31. In the facts and circumstances, the inevitable inference is that the amendments sought by the defendant No. 1 are necessary for the determination of real controversies between the parties and the pleas sought to be raised by the amendment do not withdraw any admissions made by defendant No. 1 in his written statement already filed in 1996. The correctness of the pleas raised by the defendant No. 1 which have already been taken in the earlier written statement also, cannot be determined at the time of adjudication of the application seeking amendment to the written statement. However, for the delay in seeking the amendment, the parties can be compensated. The applicant had contended about the HUF. The plea about the HUF is not a new plea set up sought to be raised by the present application for amendment. The plea regarding the wills of 29th January, 1982, 3rd August, 1991 and 4th March, 1992 are also not new. The proposed amendment by the defendant No. 1 is rather elucidatory and can not be termed as new pleas resulting into withdrawal of any admission in the present facts and circumstances.

32. Consequently, the application for amendment of written statement by defendant No. 1 is allowed, subject to costs of Rs. 5,000/- payable to plaintiff, Rs. 5,000/- payable to defendants No. 2 and 3 and Rs. 5,000/- payable to defendant No. 4.

33. Amended written statement be filed within two weeks.

IA No. 8226/1996

34. This is an application by defendant No. 1 seeking direction for modification of order dated 30th September, 1994 whereby permission was granted to the defendant No. 1 to let out the property at Defense Colony on lease for a period of two years only to a foreign national or companies after taking prior permission of the Court. The applicant now prays that the said order be modified and applicant be allowed to let out the premises to any foreign company/foreign national or any other person, organization or company for a period of more than two years without any prior permission.

35. In order to appreciate the controversy and adjudicate this application, the orders already passed by this Court on various dates be considered. In a suit for partition by the sister against her brother, defendant No. 1, and other sisters, by an order dated 19th August, 1994, the defendant No. 1/applicant, his agents, successors, legal heirs and assignees, etc. were restrained from selling, alienating, mortgaging or parting with the possession in many manner of the premises bearing No. C-184, defense Colony, New Delhi during the pendency of the suit. The order dated 19th August, 1994 was further modified permitting defendant No. 1/applicant to let out the property to an agency like UN, WHO, World Bank or any other reputed foreign concern at a minimum rent of Rs. 20,000/- per month for a period of two years. The order dated 30th September, 1994 is as under:-

I.A. Nos. 7633-34/94

At this stage learned Counsel for the parties have agreed that without going into the merits and de-merits of these applications, the Court may order that the defendant is allowed to rent out property in dispute to an Agency like U.N., W.H.O., World Bank or any other reputed foreign concern at a minimum rent of Rs. 20,000/- per month for a period of two years. It is further agreed that in the meanwhile defendant No. 1 shall keep a separate account in his own name and keep depositing 1/8th of the rent in that account which may be handed over to plaintiff if ultimately she succeeds in the case. It is further agreed that the property may be rented out to some foreign National also but that will be subject to written consent of the plaintiff. This concession is also being granted on behalf of the plaintiff without admitting that her share is only 1/8th. It is ordered accordingly. The applications are, therefore, disposed of at this stage and either of the parties will be at liberty to seek variation of the above order in future, if circumstances so dictate. The modification is only to the extent indicated above and in other respect the interim order will continue. List the matter before Joint Registrar on the date already fixed

36. The present application being IA No. 8226/1996 was wrongly ordered as disposed of, however, this was clarified by order dated 12th December, 2000 which is as under:-

IA No. 8226/1996

It has inadvertently been recorded in the order dated 3rd September, 1998 that this application stands disposed of. Learned counsel for the parties are agreed that this application is still pending.

Pleadings in this application are complete.

Learned counsel for the Applicant says that he does not have a copy of the reply filed by the plaintiff. Learned counsel for the plaintiff says that he will supply a copy of the reply during the course of the day

37. In another application seeking permission by defendant No. 1 for letting out the premises, pursuant to order dated 30th September, 1994 an order dated 15th December, 2004 was passed holding that defendants 2 and 3 who had filed the application seeking their share in the rent, will also be entitled to receive rent to the extent of 1/8th share each. No order was passed in respect of 1/8th share of defendant No. 4 as no application was filed on behalf of defendant No. 4 and the permission was granted to defendant No. 1 to let out the premises to suitable party at the prevailing market rent and out of the rent received by defendant No. 1, 1/8th share each of plaintiff and defendant No. 3 was directed to be deposited in the court. Defendant No. 1 was also directed not to carry out any renovation or repair, however, he was allowed to deduct the statutory deductions and the order was passed without prejudice to the rights and the claims of the parties in relations to the rights in the suit. An appeal was filed against order dated 15th December, 2004 being FAO(OS) No. 21/2005 titled Gurinder Singh Sandhu v. Sarabjeet Singh and Ors. By order dated 23rd February, 2005, the order dated 15th December, 2004 was modified. The modified order was as under:

(i) The amount deposited in 1/8th share of first respondent (plaintiff) shall be invested by appellant in FDR within one week and future share of her rent shall also be invested by him in FDRs, after every six months and all the FDRs will be renewed periodically on their expiry subject to further orders of the Court.

(ii)Impugned direction to deposit 1/8th share each of respondent Nos. 2 and 3 in the Court is set aside. Instead appellant shall furnish an undertaking stating that in the event of these respondent Nos. 2 and 3 succeeding in their claim, he shall pay the entire amount due as their share of rent with 4% interest within three months from disposal of first respondent's suit. Undertaking be furnished within two weeks. In case of default to pay respondent Nos. 2 and 3 their amount, it shall be recoverable from appellant and it will be a charge on the share of appellant in this immovable property.

(iii)In respect of any expenditure incurred by appellant on any repairs, carried out by him in the suit property, a statement of accounts shall be submitted to the court supported by documents and it shall be open to respondents herein to examine that statement of account.

38. In the circumstances, by various orders passed from time to time, the defendant No. 1 is entitled to let out the property to a foreign company or national for a period of two years after taking prior permission. The applicant/defendant No. 1 is also entitled for the statutory deductions from the rent received and he is liable to deposit 1/8th share of the plaintiff in the rent, in the FDRs which are to be renewed periodically and the details of which are to be given to the plaintiff.

39. By this application, the defendant No. 1 seeks that instead of two years, he may be allowed to let out the premises for a longer period and instead of letting out to the foreigners only, he may also be allowed to let out the premises to any person, organization or company and the restriction on letting out with prior permission be also waived, as it takes considerable time in taking the permission and in the process the plaintiff is not able to let out the property to an appropriate tenant commensurable with the nature of the property and the rent which can be received for the property. The applicant has also prayed that he may be allowed to let out the property for longer period as that may fetch higher rent for the property. Assertion of the applicant is that getting more rent for the property will be in the interest of plaintiff and other defendants in case the plaintiff succeeds in her suit.

40. The defendant No. 1 contended that there have been changes in the circumstances and market conditions. Condition of letting out the premises only for two years that too to a foreign national or company for a short period and with prior permission, is restricting the choice of tenant and the rent receivable from the tenant and causing loss. A number of persons who are interested in taking the premises on rent paying higher rents, are dissuaded because of these conditions and the rent commensurating with the property is not realized. It was emphasized by the Learned Counsel for the defendant No. 1 that if the defendant No. 1/applicant is allowed to let out the property for longer period without prior permission of the Court, but with a stipulation in the lease deed to be executed in favor of tenants, that the tenancy created shall be subject to the decision of the case and the order passed by the Court, no prejudice shall be caused to the plaintiff and other defendants and rather it will be in the interest of the plaintiff and defendant No. 1 as more rent would be realized and consequently the plaintiff's 1/8th share will also go up and she will be entitled for more money in case she succeeds in the suit ultimately. The application is contested by the plaintiff contending that the application of defendant No. 1 is an abuse of process of law and is not maintainable. The application is also opposed on the ground that the facts pertaining to CCP No. 174/2003 and 73/2000 have been suppressed from the Court and the defendant No. 1 has let out the property to other companies or institutions than what is permitted by order dated 30th September, 1994. The plaintiff/non-applicant has also contended that lease value of the properties have gone up and the earlier letting by the defendant No. 1 was for Rs. 57,500/- for two years with effect from 9th may, 2004 to 8th May, 2006 whereas the property could fetch a rent up to Rs. 1.00 lakh per month.

41. I have heard the learned Counsel for the applicant/defendant No. 1 and plaintiff and other defendants at length and have also perused the various orders passed by the Court and the application and the replies. From perusal of various orders passed and the documents of parties, what emerges is that the defendant No. 1 has been allowed to let out the property at defense Colony for a period of two years at a time on taking prior permission from the Court and 1/8th share of the rent after statutory deduction is to be deposited in FDRs which are to be renewed periodically as a share of the plaintiff. In respect of the share of defendant No. 2 and 3 an undertaking has been given that in case it will be found that defendant Nos. 2 and 3 are also entitled for share of the rental income, the same shall be paid by defendant No. 1 to defendant Nos. 2 and 3.

42. The learned Counsel, Mr. Sharma, appearing on behalf of plaintiff opposes the application on the ground that letting out the property for more than two years will result into defendant No. 1 taking part of the rent from the tenant without disclosing about the same and causing loss to the plaintiff. The learned Counsel for the plaintiff/non-applicant also objected to the premises being let out by defendant No. 1 without prior permission to the Court on the ground that defendant No. 1 may be able to let out the premises at under value and thus deprive the plaintiff of her share claimed by her from the rental income.

43. The objection of the plaintiff about contempt petitions filed against the applicant for not disclosing the details of the FDRs does not survive. The contempt petitions CCP No. 174/2003 and 73/2000 have been disposed off and do not survive. The contempt petitions have been disposed of with direction to defendant No. 1 to supply up-to-date details of 1/8th share of rent of plaintiff's share deposited by defendant No. 1 in the fixed deposits which have been renewed by defendant No. 1 from time to time.

44. Next what is to be considered is whether the defendant No. 1 should be allowed to let out the premises for a period for more than two years and should also be allowed to let out the premises to companies, organizations and persons other than foreign companies and foreign national and that too without the prior permission of the Court.

45. The learned Counsel for defendant No. 1 contended very emphatically that by letting out the premises for short duration of two years that too with prior permission, in the booming economy of the city and the country, various companies, organization and the persons who may take the premises for longer period and at higher rent are dissuaded, resulting into loss not only to the defendant No. 1 but even to the plaintiff, in case she will succeed in the suit finally. The objection of the learned Counsel for the plaintiff that in case the premises is let out for a period of two years or less, the defendant No. 1 will not be able to let out the property at under value but if the property is let out for a period of more than two years than the defendant No. 1 will be able to let out at undervalue, does not seem to be rational and justifiable in the present facts and circumstances of the case.

46. Letting of premises at defense Colony at under value will not be enhanced on account of longer leases than letting for shorter period. In order to ascertain whether the premises has been let out commensurating with the letting value what is to be seen is as to what is the market rent during a particular period and at what rent premises is let out.

47. In case by letting out the premises at Defense Colony for longer period to any person, company or organization other than only foreign companies or nationals, the defendant No. 1 can get more rent, he cannot be denied the benefit of more rental income by letting out to any person, organization or company and for a period of more than two years. In the changed circumstances and prevailing conditions, the plaintiff can not be permitted to insist that the premises should be let out only for two years and that too to only foreign companies or national. Such an insistence by the plaintiff is irrational and should not be permitted. Insistence of such conditions by plaintiff will cause greater inconvenience to the defendant No. 1/applicant, in case plaintiff does not succeed in her claim in the suit. The apprehensions of the plaintiff that if the defendant No. 1 is allowed to let out the property for a period of more than two years, then the applicant will manipulate the rent payable by the tenant and may let out the property at undervalue is also without any rational and legal justification and seems to be based on her own unfounded apprehensions.

48. In order to protect the interest of the plaintiff what is to be seen is that defendant No. 1 does not demise the rights in the property in perpetuity. In the circumstances, if the defendant No. 1 is permitted to let out the premises at Defense Colony for a period of more than two years, it will not be deemed to be a demise in perpetuity. Plaintiff No. 1 cannot complain about it. The next point for consideration is whether the demise of rights in the property should be restricted only to foreign national or companies or the defendant No. 1 be allowed to let out the property to any person or company. The share of rent of defendant No. 1 is substantial in comparison to the share of plaintiff and other defendants, if any. By letting out the premises to persons and companies other than foreign companies and foreign national if defendant No. 1 can get more rent then it will be unreasonable or irrational and without any justifiable reason to restrict the letting only to foreign national and companies in view of changed circumstances. The learned Counsel for the plaintiff is unable to point out any prejudice which may be caused to the plaintiff in case the property is demised to the persons and companies other than foreign national or foreign companies. In the circumstances, it will be appropriate to allow defendant No. 1 to let out the property at Defense Colony to any persons or companies who will pay rent commensurating with the market rent of the property.

49. Considering various parameters pertaining to the property and the submissions made by the respective counsels, in my opinion, it will be in the interest of parties if the defendant No. 1 is allowed to let out the property at Defense Colony for a period up to 10 years. If the premises is let out for a period of ten years or less, it will not be construed as a demise of the property in perpetuity and the plaintiff and other parties can not complain about it. If letting out the premises for a period longer than two years will result into loss of rental, it will not only affect the plaintiff but the defendant No. 1/applicant also who has much larger share in the property even on the allegations of the plaintiff.

50. The rights claimed by the plaintiff in the property can be safeguarded, if the applicant is allowed to let out the property with the stipulation that `the rights demised in the premises shall be subject to the outcome of the decision in the present suit or any order which may be passed pertaining to the property between the parties?.

51. The next issue is whether the defendant No. 1 should seek prior permission before letting out the property or the defendant No. 1 be allowed to let out the property without prior permission of the Court but subject to stipulation that any rights demised in favor of any person shall be subject to outcome of this suit or any order passed pertaining to said property between the parties. Judicial notice can be taken of the facts that in case a party applies for prior permission to let out a property, it takes considerable period for disposal of such applications, on account of large pendency of cases in the Court. Longer period before the premises can be let out after prior permission do dissuade a number of prospective tenant from taking the property on lease commensurating with the market rent.

52. Prior permission may entitle the plaintiff to counter the eventuality of applicant letting out the property at undervalue but at the same time it hinders the letting resulting into various prospective tenants getting dissuaded from taking the property at market rent. When a prior permission is sought, a party letting out the premises gives the particulars of the prospective tenant to other parties who becomes entitled to file his objections to the letting at a particular value. If this right of a party objecting to letting at a particular value can be kept alive or plaintiff's right that the property is being let out at lower rent be allowed to be adjudicated after letting, the plaintiff can not insists that letting should only be after prior permission. Considering the various proposition of the counsels for the parties, the rights of the plaintiff can be safeguarded by directing the defendant No. 1 to intimate the plaintiff before letting out the details of prospective tenant and the proposed rent to be paid by such a party by defendant No. 1, to plaintiff before finalizing the tenancy by defendant No. 1 so that if the plaintiff has some other party who can give more rent or could offer better terms for taking the premises on rent, the premises may be let out by defendant No. 1 to such party which may be recommended by plaintiff.

53. Therefore, the application is allowed and the applicant is allowed to let out the property at Defense Colony to any person, organization or company without prior permission of the Court but subject to the stipulation in the lease deed that `the rights demised in the premises shall be subject to the outcome of the decision in the present suit or any order which may be passed pertaining to the property between the parties?. The defendant No. 1 will also be liable to intimate to the plaintiff the details about the person, organization or company to whom the premises is to be let and the proposed rate of rent, fifteen days before the letting so that any better offer of letting to any other person, organization or company, if any, be also considered by the Defendant No. 1. However, the defendant No. 1 will be free to decide which is the better offer and let out the premises accordingly. The plaintiff shall, however, be also entitled to raise any objections regarding letting to any person, organization or company which may be adjudicated later on. The defendant No. 1 will continue to comply with other directions regarding 1/8th share of rent of the plaintiff.

54. With these directions the application of the defendant No. 1 is allowed and disposed of.

IA No. 7278/1994

55. This is an application by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure seeking a restrain against defendant No. 1 from selling, alienating, mortgaging or parting with the possession in any manner whatsoever of the premises bearing No. C-184, defense Colony, New Delhi. On the application of the plaintiff, interim order dated 19.8.1994 was passed which was modified by orders dated 30.9.1994. The interim order was also modified by order dated 15th December, 2004 and by order dated 23rd February, 2005 in FAO(OS) 21 of 2005 and has also been modified by the order in IA No. 8226/1996.

56. By order dated 30.9.1994 the defendant No. 1 was allowed to rent out the property to an agency like U.N. WHO, World Bank or any other reputed foreign concern at a minimum rent of Rs. 20,000/- per month for a period of two years and he was directed to maintain a separate account in his own name and keep depositing 1/8th share of the rent which defendant No. 1 would be directed to hand over to the plaintiff, if ultimately plaintiff succeeds in the case. During the pendency of the suit defendant No. 1 had been letting out the premises bearing No. C-184, defense Colony, New Delhi with prior permission of the Court. By order dated 15.12.2004 the defendant No. 1 was directed to deposit 1/8th share of rent in the name of defendant No. 2 and 1/8th share of rent in the name of defendant No. 3 in the Court. The order of 15.12.2004 was modified in FAO(OS) No. 21/2005.

57. On the application of the defendant No. 1 being IA No. 8226/1996 the order has been further modified holding that defendant No. 1 shall be entitled to let out the premises to any foreign concern or any Indian concern or person for a period exceeding two years. The defendant No. 1 has been allowed to let out the property without prior permission from the Court, however, the tenancy to be created in respect of the property shall be subject to the outcome of the suit and any order passed by this Court in respect of the property between the parties. The defendant No. 1 has also been directed to intimate the particulars of the tenants and the rent to be realized from the proposed tenant 15 days before the letting of the premises to plaintiff.

58. The parties have agreed that in view of the various orders passed regarding the letting of the premises No. C-184, Defense Colony, New Delhi, the application under Order 39 Rules 1 and 2 be disposed of. Application is accordingly disposed off in view of various orders already passed regarding letting of said property and that the defendant No. 1, however, shall not be entitled to sell or mortgage the said property during the pendency of the present suit.

IA No. 5946/2002

59. This is an application on behalf of defendant No. 1 under Order 11 Rules 14 and 15 read with Section 151 of the Code of Civil Procedure contending that the plaintiff has propounded a Will dated 4.3.1992 alleged to have been executed by Late Lt.Colonel Gurpuran Singh, however, the plaintiff has not filed the original Will. It has also been contended that plaintiff has also referred to another Will dated 29.1.1982 alleged to have been executed by Late Lt.Col. Gurpuran Singh and a family arrangement alleged to have been arrived at sometime in 1970 between Lt.Col. Gurpuran Singh and defendant No. 1.

60. The defendant No. 1 contended that these documents are relevant for determination of controversies between the parties and no prejudice shall be caused to the plaintiff in case she makes discovery of original Will dated 4.3.1992, original Will dated 29.1.1982 and the alleged family settlement. The defendant No. 1/applicant has contended that plaintiff has already stated on oath that she is not in possession of original Will dated 4.3.1992. Even defendant No. 5 had deposed in the Court about the Will dated 4.3.1992 and made a statement in the Court on 15.10.2001 that he does not have the original Will dated 4.3.1992. Defendant No. 3 is the executor of the alleged Will dated 29.1.1982 and it is stated to be in her possession.

61. Considering nature of the documents and the controversies between the parties it is apparent that the documents whose discovery and production has been sought by the defendant No. 1 are very material and relevant for adjudication of controversies between the parties.

62. Therefore considering the facts and circumstances and the relevance of the documents, it is appropriate to direct the plaintiff and defendant No. 3 to make discovery of the Wills dated 4.3.1992, 29.1.1982 and alleged original family settlement and in case they are in their possession to produce the same within four weeks.

63. With these directions the application is disposed of.

IA No. 2376 /2005

64. This is an application by plaintiff under Order 11 Rules 1 and 2 read with Section 151 of CPC contending that defendant Nos. 1 and 2 were looking after the affairs of Lt.Col. Gurpuran Singh and they have full knowledge about the details of various bank accounts and deposits held by Late Lt.Col. Gurpuran Singh.

65. The plaintiff/applicant contended that deceased Lt.Col. Gurpuran Singh was having the accounts, the details of which are given in paragraph 4 of the application.

66. The plaintiff has sought information regarding the accounts of deceased Lt.Col. Gurpuran Singh joint with defendant Nos. 1 and 2. The plaintiff/applicant seeks leave to serve interrogatories upon the defendants. The application is contested by the defendant No. 1 contending that some of the accounts were personal to defendant Nos. 1 and 2 and the amounts belonging to defendant Nos. 1 and 2 used to be deposited, however, late Lt.Col. Gurpuran Singh was also a second account holder and plaintiff is not entitled for details of accounts.

67. The plaintiff has sought five interrogatories from defendant Nos. 1 and two interrogatories from defendant No. 2. Considering the averments made by the parties , the interrogatories by the plaintiff pertains to matters in issue and relevant and the defendants can be directed to answer them. Consequently considering the disputes between the parties, the defendant No. 1 is directed to answer the interrogatories Nos. 1 to 5 and the defendant No. 2 is also directed to answer the interrogatories Nos. 1 and 2. The reply to interrogatories be filed within four weeks. With these directions the application is disposed of.