Delhi High Court

Raj Kumar Malhotra vs State on 13 August, 2009

Author: Manmohan Singh

.*                   HIGH COURT OF DELHI : NEW DELHI

+              I.A No. 559/2002 in Test Case No. 47/2000

%                          Judgment reserved on :     4th August, 2009

                           Judgment pronounced on : 13th August, 2009

Raj Kumar Malhotra                                               ... Petitioner
                  Through :      Mr. G.L. Rawal, Sr. Adv. with
                                 Mr. Kuljeet Rawal, Adv.

                     Versus
State                                                      ...Respondent
                     Through :   Mr. Masand Mirza, Adv. with Mr. Aly
                                 Mirza, Advs.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

 1. Whether the Reporters of local papers may                    Yes
   be allowed to see the judgment?

 2. To be referred to Reporter or not?                           Yes

 3. Whether the judgment should be reported
   in the Digest?                                                Yes

 MANMOHAN SINGH, J.

1. I.A No. 559/2002 was filed on January 16, 2002 by the petitioner

herein under Order VI Rule 17 read with Section 151 of the Civil Procedure

Code, 1908. I propose to dispose of the above-mentioned application by this

order.

2. Through the present application, the petitioner has prayed for an

amendment to be allowed in Annexure P-2 to the Will dated January 18,

1999 of the deceased Sh. Kasturi Lal Malhotra. The said Annexure provides

a description of the moveable properties bequeathed in the will, the relevant

portion of which reads as under :

"MOVEABLE PROPERTIES Of Kasturi Lal Malhotra & Smt. Sushila Malhotra"

3. The petitioner has submitted that the inclusion of the name of Smt.

Sushila Malhotra has been added to the title of the said list of moveable

properties only for „operational‟ purposes and that as the said Smt. Sushila

Malhotra has no interest in the same, it is pleaded that her name be deleted

from the title of Annexure P-2. The petitioner has claimed that the said error

is a minor typographical one.

4. The brief facts of the present case are as follows. The deceased Sh.

Kasturi Lal Malhotra was the late father of the petitioner. The petitioner filed

this case for grant of probate of the Will dated January 18, 1999 wherein as

per the petitioner, following is the devolution of the deceased‟s assets :

a) all moveable and immovable properties are bequeathed to the

petitioner,

b) the wife of the deceased Smt. Sushila Malhotra has been given

the right to reside with the petitioner on the ground floor of

property no. M-6, Lajpat Nagar III, New Delhi, to recover the

rent from property no. 11, Shyam Bhawan, Darya Ganj, Delhi

and to a monthly allowance/maintenance of Rs. 10,000/- from

the petitioner.

c) lump sum payment by the petitioner of Rs. 2 lac each to the

daughters of the deceased namely Smt. Shashi Shroff, Smt.

Veena Rahan and Smt. Reena Kapoor.

5. The petitioner, in order to keep the court informed and so as to not

appear to be concealing anything, has also submitted that the wife and

daughters of the deceased, i.e. the petitioner‟s mother and his sisters have

collectively filed a suit on 18.07.2000 for partition being CS (OS) No.

1591/2000.

6. The objectors in the present case of probate i.e. the deceased‟s wife

and daughters have stated in their reply that the relations between the

deceased, the deceased‟s wife and the petitioner have never been cordial, in

fact, the petitioner has always mistreated and even physically assaulted

them.

7. Due to the hurtful behavior of the petitioner, the deceased Sh. Kathuri

Lal Malhotra and his wife Smt. Sushila Malhotra, both kept the petitioner at

a distance and indulged in as sparse communication with him as possible.

8. The objectors herein submitted that late Sh. Kathuri Lal Malhotra was

suffering from ill-health since 1996-97. In 1998, it was discovered that he

was suffering from prostrate cancer. Despite being operated upon, the cancer

had spread and he had to be hospitalized. The said deceased died on

September 13, 1999.

9. The objectors have contended that the alleged will of the deceased,

based upon which the petitioner is attempting to ensnare all of the

deceased‟s property, is nothing but a forged and fabricated document. The

reasons given by the objectors in support of this contention are that (i), the

signatures on the alleged Will after comparison with authentic documents

are on the face of it not the signatures of the deceased, (ii) that the deceased

was in no state to affix his signatures on any document as he was at that time

an invalid and in much pain due to his illness and (iii) that the petitioner had

caused much grief and harassment to the deceased, his wife and his

daughters and in such a state of affairs, the deceased had no reason to

bequeath anything to the petitioner, much less to bequeath him everything

and that too to the exclusion of his wife and daughters.

10. The objectors have further submitted that since no Will has been left

by the deceased, the objectors have filed a suit for partition of all the

properties owned by him. The objectors have clearly stated that in the

present circumstances, all the legal heirs of the deceased including the

petitioner would be entitled to 1/5th share of his estate.

11. In their reply to the present application filed by the petitioner, the

respondents/objectors have stated that the petitioner is only trying to retract

his admission in Annexure P-2 to the probate petition and elude the question

posed in Smt. Sushila Malhotra‟s I.A No. 2499/2001 filed under Order VI

Rule 5 CPC, 1908. The „admission‟ referred to is the factum of the title of

Annexure P-2, wherein clearly the movable properties have been mentioned

as the joint properties of the deceased and his wife. As for the above-

mentioned application filed by Smt. Sushila Malhotra, the said application

prays that the items mentioned in Annexure P-2 be detailed properly, and

also states that no probate can lie to the moveable properties mentioned

therein as Smt. Sushila Malhotra is very much alive and joint owner of the

same.

12. It is submitted by the objectors that in various places in the suit

proceedings initiated by the objectors as well as in I.A No. 8820/2000 filed

by the petitioner in CS (OS) No. 1591/2000 (wherein the petitioner herein is

the defendant), the petitioner has stated that Smt. Sushila Malhotra‟s name

has been added to various bank accounts and fixed deposit‟s etc. of the

deceased only for operational purposes and/or as an expression of affection.

In view of the above, it is submitted that the petitioner cannot be allowed to

get the relevant portion of Annexure P-2 amended by now claiming that the

name of Smt. Sushila Malhotra has appeared thereon due to a typographical

error.

13. The petitioner has relied upon certain judgments, pertinent of which,

along with their relevant portions are reproduced hereinbelow:

a) Akshaya Restaurant v. P. Anjanappa and Anr., 1995 Supp

(2) SCC 303

"5. We find no force in the contention. 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 para 6 of the written statement a definite stand was taken but subsequently in the application for amendment it was sought to be modified as indicated in the petition. In that 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."

b) Mangal Dass Sant Ram Gauba v. Union of India and Ors.

AIR 1973 Delhi 96 (V 60 C 28)

"5. Shri M.L. Rawal, learned counsel for the petitioner, contended that the learned Subordinate Judge committed a material irregularity in the exercise of his jurisdiction by disallowing the amendment on the ground that the plea or ground sought to be raised by the amendment was not available

to the petitioner (plaintiff). The learned counsel argued that the learned Subordinate Judge was not to go into that aspect on the merits of the amendment at that stage, and that he erred in giving a finding on the merits of the amendment without even allowing the amendment in the first instance. The learned counsel referred to the decision in Krishna Rao vs. Sri Gangadeswarar Temple, AIR 1949 Mad 433. There is considerable force in the contention. As pointed out in the aforesaid decision, the learned Subordinate Judge ought not to have given his finding on the ground contained in the intended amendment without first allowing the amendment, framing an issue thereon, if necessary, and allowing both parties to adduce relevant oral and documentary evidence thereon. The effect of recording his finding on the merits of the plea sought to be raised by way of amendment and then refusing to allow the amendment, was to shut out the plea of the petitioner (plaintiff), with the result that the party would not have the advantage of canvassing the said plea later on in appeal against the judgment in the suit as the plea would not be in the plaint. The impugned order passed by the learned Subordinate Judge was clearly vitiated by a material irregularity in the exercise of his jurisdiction."

(c) In Guru Nanak Vidya Bhandar Trust v. Union of India,

ILR (2006) 1 Del 527, it was held as follows:

"9. No doubt, while considering an application for amendment, the merits of the controversy are not to be gone into in depth, but where an amendment sought for is a futile exercise and that too after 26 years, the Court cannot be a silent spectator to the attempts on the part of the applicant to further delay a decision in the suit."

(d) Further, in Modi Spinning & Weaving Mills Co. Ltd. v.

Ladha Ram & Co., (1976) 4 SCC 320, it was held as follows:

"10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the

defendants. The High Court rightly rejected the application for amendment and agreed with the trial court."

14. In the present case, the petitioner had filed an application being I.A

No. 11193/2008 under Section 151 CPC, 1908 for cross-examination of Mr.

Madan Lal Malhotra, one of the attesting witnesses of the alleged Will, at

an earliest stage and the request was allowed by this Court by passing an

order dated 3rd July, 2009.

15. I find the amendment sought as „unnecessary‟ because there is a civil

suit for partition as well as the present probate pending with regard to the

same properties. Be that as it may, the petitioner will have to prove the

authenticity of the alleged Will dated January 18, 1999. On one hand, it is

prayed that cross-examination of witnesses be expedited and on the other, an

amendment which is apparently unnecessary is being prayed for.

16. If the petitioner is able to get the alleged Will probated based on

proper evidence, automatically the name of Smt. Sushila Malhotra will get

deleted from the list of movable properties as once the Will is probated, all

the movable properties will belong to the petitioner as per the Will itself. By

letting Smt. Sushila Malhotra‟s name appear on Annexure P-2, the petitioner

suffers no disadvantage. However, in the event that the petitioner is unable