Bhai Manjit Singh vs Bhai Analjit Singh And Ors.
2009 Latest Caselaw 4453 Del

27
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1673/2006

       BHAI MANJIT SINGH                                          ..... Plaintiff
                       Through Mr. P.V. Kapur, Sr. Advocate with Mr. Anil Airi
                       and Ms. Alpana Poddar, Advocates

                      versus

       BHAI ANALJIT SINGH AND ORS.           C+                  ..... Defendant
                       Through Mr.Amarjit S. Chandhiok,Sr. Advocate with Mr.
                       B.K. Sood, Advocate for Defendant no.1
                       Mr. Rajul Nayar, Sr. Advocate with Mr. K.R. Chawla,
                       Advocate for defendant no. 2
                       Mr. Sandeep Sethi, Sr. Advocate with Mr Nikhil Bhalla,
                       Advocate for Defendant no. 3
                       Mr. Sanjeev Puri, Sr. Advocate with Mr. Sonal Sinha, and
                       Ms.Mansi Chadha, Advocates for defendant nos. 4 to 6.
                       Mr. B.B. Sawhney, Sr.Advocate with Mr.Amit K. Singh
                       and Mr.Lakshay Sawhney, Advocates for defendant no. 7
                       with defendant no. 7 in person.
                       Mr. A.K. Sharma, Advocate for defendant no. 9.


       CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT
                   ORDER

%                    04.11.2009
I.A.No. 4546/09

       Heard Counsel for the parties.

By the present application defendant no. 1 seeks permission of the court to amend

the written statement existing on record.

The suit claims partition, declaration, permanent and mandatory injunction. The

plaintiffs seek partition of 1/3rd shares of the estate of late Dr. Bhai Mohan Singh and

declaration of the shares of second defendant (Company) are to be dealt with in

accordance with the family settlement recorded in the Memorandum of Family Settlement dated 30.12.1989 and Aide Memoir and Supplementary Aide Memoir,

mentioned in the suit and other reliefs including consequential injunctions.

The first defendant had filed a written statement in these proceedings on

27.11.2006. It is contended that the present application for amendment of the amended

written statement is necessary because the applicant has noticed that its omission, by

inadvertence in amending certain averments in amplification in existing pleas. Learned

counsel points out that averments pertain to four broad issues i.e. firstly ownership of the

property which are sought to be partitioned, of the second defendant company. The

applicant seeks to modify the existing pleading that the company is not a part of the

family settlement and therefore would not be bound by it. The second aspect upon which

the applicant seeks amplification of the suit of the plaintiff cannot abbrobate and

reprobate. The third aspect upon which the first defendant wishes to incorporate

amendment is as to trust which is a party to the suit. In this regard it is submitted that all

the prospects of the present suit are not maintainable. The last aspect concerns description

of properties and para 17 , 31 and 33 of the suit which is sought traversed by the

amendment.

After some hearing learned counsel for the applicant submitted that the

amendment is sought only in respect of para 17 and 19 of preliminary objections which

are sought to be introduced by the applicant, with the consequential amendment of para

31 ( in the reply on merits).

The Court has considered the submissions. The description of the properties

finds mentioned in para 31 and 33 of the suit along with the schedule. The original

written statement as well as the amended written statement, duly traverse those pleadings are as follows:

"31. Allegations contained in paragraph 31 of the plaint are misconceived are wrong and are denied While defendant no.1, as one of the Executors along with other Executors have applied for grant of Probate of Will of late Dr. Bhai Mohan Singh, Defendant no. 4 to 6 have already given their no objections to the grant of probate of Will of late Dr. Bhai Mohan Singh. It is denied that plaintiff is entitled to 1/3rd share in the estate of late Dr. Bhai Mohan Singh, as alleged or at all. In any event, Will of late Dr. Bhai Mohan Singh did not touch upon the property bearing no. 15, Aurangzeb Road, New Delhi since the same is owned by defendant no.2, as has been admitted by plaintiff.

33 & 34. Allegations contained in paragraphs 33 and 34 of the plaint are misconceived, are wrong and are denied. It is denied that this court can restrain the defendant no.1 and defendant no. 7 to 9 from acting as Executors of the Will of late Dr. Bhai Mohan Singh, as alleged or at all, having regard to what has been stated hereinabove."

By the amendments which are now sought to be introduced, the application

wishes to incorporate details of the properties which it wishes to traverse in relation to

para 17. The new para 19 which is sought to be introduced as a preliminary objection

states that plaintiff has not paid ad valorem Court Fee. In the new para 31 the applicant

seeks to incorporate by reference, the averments in para 17 and 19, the proposed

preliminary objections.

The plaintiff has opposed the application on the ground that it amounts to

withdrawal of admissions; by omission, as disclosed in the existing amended written

statement. The plaintiff relies upon the decision in Gautam Swaroop vs Leela 2008, (4)

SCALE 459, Narayan Swami Vs. Manu SC 172494) 459 (CA 6921/2001 decided on

9.10.2009). It is contended that the defendant is seeking to introduce by amendment

elements which already exist on the record, and that the present application is just an

attempt to delay the proceedings.

The Court has considered the statements. Para 17, 19 and 31 of the amended written statement sought to be introduced by way of amendments read as follows:

"17. That the properties or share in properties mentioned in the Schedule 1 at serial No. 3 - House No. 9, Sector 4, Chandigarh No. 4 - 10% share in 23, Cuffe Parade, Colaba, Mumbai, No.5-share in Waldorf Hotel, Colaba Couseway, Colaba,Mumbai and the securities/investments shown at serial numbers 6 (i) to (xxix) subject to pecuniary bequests and expenses stood vested in the Trustees of defendant No.3, the C\Foundation. It is pertinent to add that the 10% share in Cuffe Parade property is in any case disputed. The said property is a residential house of family of in-laws of Dr. Bhai Mohan Singh whohave disputed/not acceded to this share.

Similarly, the amounts lying with Standard Chartered Bank and Bank of Punjab and Bank of India mentioned at Serial No. 7 in the schedule of properties besides the Mercedes Benz (Black) referred at serial no. 8, belong to the Trustees of defendant no. 3. Thus, there is no right and in any event none pleaded or can be granted, in respect of any assets of defendant No.3. Defendant no.3 was not a party to any of the documents on which reliance has been placed by the plaintiff. The suit, as framed, is therefore liable to be dismissed.

19. The plaintiff is not in possession, actual or otherwise, of any properties. He is liable to pay ad valorem court fee on the market value of each of the items mentioned in the schedule -I separately. The suit is grossly undervalued. In the absence of proper court fee, there is no proper plaint before this Hon'ble Court. The plaint is liable to be rejected.

31. Allegations contained in paragraph 31 of the plaint are misconceived, are wrong and are denied. While defendant no.1 as one of the Executors along with other Executors have applied for grant of Probate of Will of late Dr. Bhai Mohan Singh, Defendant no. 4 to 6 have already given their no objection to the grant of probate of Will of late Dr. Bhai Mohan Singh. It is denied that plaintiff is entitled to 1/3rd share in the estate of late Dr. Bhai Mohan Singh, as alleged or at all. In any event, Will of late Dr. Bhai Mohan Singh did not touch upon the property bearing no. 15, Aurangzeb Road, New Delhi since the same is owned by defendant no.2, as has been admitted by plaintiff. Averments in paragraphs 11 to 19 of preliminary objections hereinabove may be read in reply to Paragraph 31 of the plaint. It is submitted that there is no requirement of obtaining probate in respect of Will of deceased within the State of Delhi . The Will of deceased Bhai Mohan Singh, as such came into operation on his death and the properties bequeathed therein vested in the legatees.Executors named in the Will have taken steps in respect of properties bequeathed by taking out probate petition to complete the formalities required to be completed for the purposes of meeting the requirements of local authorities."

The existing amended written statement while dealing with the property in schedule (1) did not claim what is sought to be introduced now. The Schedule to the suit

reads as follows :-

"SCHEDULE-1

1. Property bearing no.15, Aurangzeb Road, New Delhi admeasuring 5730 sq. yds fallen to the share of parents under family settlement dated 30.12.1989.

2. 1,60,680 shares (64.28%) equity shares holding of defendant no.2 company.

3. Property bearing house no. 9, Sector 4, Chandigarh.

4. 10% share in Property bearing no. 23, Cuffe Parade, Colaba, Mumbai-400005.

5. 10% share in Waldorf Hotel, Colaba Causeway, Colaba, Mumbai 400

6. Shareholding in the following companies:

                          i. JCT Ltd.                                  5399
                         ii. Milk Foods Ltd.                           3400

                        iv.  Industrial Development Bank of India      100



                      viii.  Perfect Circle India Ltd.                 8,000
                        ix.  Victor Gaskets India ltd.                 2,000

xi. National Organic Chemical Industries Ltd. 640 xii. Hindustan Lever Ltd. 1,500

xxvi. Franklin Templeton Fund (Mutual Fund) Rs.150 Lakhs xxvii. Reliance Mutual Fund Rs.27.50Lakhs xxviii. Birla MIP Rs.80,000 xxix. UTI MutualFund (7999.6 untis) Rs.218.30lakhs

7. Amounts lying in i. Standard Chartered Bank, H, Block, Connaught Circus, New Delhi C.A/c No. 527-0-501152-2 ii. Bank of Punjab, Khan Market, New Delhi-110 001 S.B. A/c No. 1113382 iii. Bank of India, Khan Market, New Delhi S.B. A/c No. 34837

8. Motor cars: Mercedes Regn. No. DL-3CJ-0096 (Black) Mercedes Regn. No. DL-2CM-5916 (Silver)

9. Jewellery, silver, artifacts etc.

10. All other movable and immovable assets which plaintiff would come to know after filing of the suit."

As is evident the existing pleading mentions about Probate Proceedings and also

states that the Will does not touch upon the property in 15, Aurengzeb Road. By the

proposed amendments (particularly para 17, 19 of the preliminary objection), the

defendant seeks to introduce entirely new elements. There is no explanation

fourthcoming as to why these averments, (though available when the original written

statement was filed and even when the amendment was permitted earlier ) were not made

earlier. A juxtaposition of both the existing pleadings, and both para 17 and 19 of the

preliminary objection and para 31 of the reply on merits shows that the defendant is

seeking to improve upon what was stated before. In the opinion of the Court such

amendment would fall within mischief of withdrawal of admission. This Court is of the

opinion that the amendment sought for cannot be granted. I.A. No.4546/2009 is

rejected.

I.A. No. 5230/2009

This application for amendment is moved by the third defendant. Learned

counsel urges that the essential amendments which are being pressed for relate to the

reply on merits at two places. These concern the absence of a specific claim for

declaration in respect of shares owned by the third defendant.

The third defendant/applicant claims to be a Public Charitable Trust owning

1,33,880 equity shares donated by Late Dr. Bhai Mohan Singh. This constitutes 53.36%

out of 64.28% of the total equity shares of the defendant company. Learned Senior

Counsel for third defendant seeks the introduction of Preliminary Objection no. 2 and 4.

The said proposed amendments read as follows:-

"2. Admittedly, in July, 2004, Dr. Bhai Mohan Singh transferred and donated 1,33,880 equity shares of defendant no. 2 in favour of defendant no. 3. The same vested absolutely in the applicant/defendant no.3. The plaintiff has sought an injunction in prayer © without seeking any declaration that the said transfer of shares was null or void. Suit for bare injunction, without seeking such declaration, is not maintainable

4. The suit is not maintainable against the answering defendant as the plaintiff has not sought any declaration that registered trust deed dated 28.07.2004 is null and void document".

The amendment is opposed by non-applicant/plaintiff. The Senior Counsel who

sates that these amendments are legal in nature, and as they concern Paras 32 and 37 (b),

can be urged during final hearing; it is contended by plaintiff's counsel that these can be

framed suitably as issues for trial.

The application is therefore disposed of; the matters sought to be introduced

through amendment can be appropriately incorporated at the stage of framing issues.

IA No. 2867/09

Learned Counsel states that he has not pressed his application. The same is

dismissed as withdrawn.

S. RAVINDRA BHAT,J NOVEMBER 04, 2009 HL