Harcharan Singh Hazooria vs Kulwant Singh Hazooria & Ors.
2010 Latest Caselaw 3923 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.382/2010 & CM No.10282/2010

Harcharan Singh Hazooria           .....Appellant through
                                   Mr.Vikas Dhawan &
                                   Mr. Sita Prasad Das, Advs.

                  versus

Kulwant Singh Hazooria & Ors.      .....Respondent through
                                   Mr. A.S. Chandhiok, Sr. Adv.
                                   with Mr. D.D. Singh &
                                   Ms. Sweta Kakkad, Advs.
                                   for Respondent Nos.1 &3
                                   Mr. M.S. Ramamurty, Adv.
                                   for Respondent No.2

%                            Date of Hearing: August 10, 2010

                             Date of Decision: August 25, 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MS. JUSTICE MUKTA GUPTA
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                No
      2. To be referred to the Reporter or not?      Yes
      3. Whether the Judgment should be reported
         in the Digest?                              Yes

VIKRAMAJIT SEN, J.

1. The Appellant/Plaintiff has filed a Suit for Partition,

Declaration and Injunction in which an interim Order directing

parties to maintain status quo has been passed. The Plaintiff is

in possession of one bedroom on the Second Floor of the suit

property, that is, 60, Ring Road, Lajpat Nagar-III, New Delhi.

The suit property is extremely valuable as the construction is on

a large plot of land admeasuring 790 square yards comprising

Ground Floor, First Floor, Second Floor and Terrace thereon.

Defendant Nos. 1 and 3, who are the brother and sister-in-law of

the Plaintiff, are in possession thereof except for the one room

occupied by the Appellant. The sister of the Appellant is

supporting the Appellant. It is evident that the interim Order,

while avowedly protecting the possession of the

Plaintiff/Appellant so far as the said one room is concerned,

does not cause prejudice to the Defendants/Respondents 1 and 3

who are in possession and enjoyment of the overwhelmingly

predominant portion of the Bungalow.

2. The pleadings sought to be introduced by way of

amendment application is reproduced for facility of reference:-

The Defendant No.1, being the elder son of late Jaswant Kaur and Defendant No.3 being the daughter- in-law of late Jaswant Kaur, were persons standing in a fiduciary relation to late Jaswant Kaur and had a duty to protect the interest of late Jaswant Kaur. The said Defendant Nos.1 and 3, in breach of their confidential relation with late Jaswant Kaur, purported to have got the alleged gift deed dated 23-5-2007 and 2-6-2008 executed in their favour. The said Defendants took undue advantage of the advanced age and lack of capacity of late Jaswant Kaur conferring the benefit to them by virtue of the alleged gift deeds. It is stated that late Jaswant Kaur was not only incapable of validly

executing the gift deeds but also did not have any competent and independent advice with regard to the gift deeds. Late Jaswant Kaur, was not conversant with English language, which is the language in which the alleged gift deed dated 23-5-2007 and 2-6-2008 have been executed. The Plaintiff verily believes and categorically states that the said gift deeds were created to grab the property of late Jaswant Kaur. The beneficiaries of the said alleged gift deeds, namely Defendant Nos.1 and 3, were in an active, confidential and/or fiduciary relationship with late Jaswant Kaur and being in a dominating position executed undue influence and fraud to get the alleged gift deeds executed in their favour.

3. A plain reading of the Plaint leaves no manner of doubt

that the Plaintiff's grievance is that his late mother, who died at

the age of 98 years and who, at the relevant time, was over 90

years of age and therefore not capable of independent thinking,

had been prevailed upon by Defendant Nos. 1 and 3 to sign Gift

Deeds in favour of the latter. The late mother of the parties

uncontrovertedly resided with Defendant Nos.1 and 3. There are

already pleadings in the existing plaint indicative of the

Plaintiff's view that Defendant Nos.1 and 3 were in a fiduciary

relationship with the aged mother of two parties. In these

circumstances, the amendments sought for in the application

under Order VI Rule 17 of the Code of Civil Procedure, 1908,

which has been dismissed by the impugned Order, do not

present a totally new case and should not have been disallowed.

There is no gainsaying, and the Hon'ble Supreme Court has

repeatedly observed, that amendment to pleadings should be

freely and liberally allowed except where the endeavour is to

withdraw an admission or to introduce a fresh case. Significant

amount of argument has been generated on the endeavour of

the Plaintiff to mention the fact that the late mother of the

quarrelling brothers "was not conversant with English language,

which is the language in which the alleged gift deed dated 23-5-

2007 and 2-6-2008 have been executed".

4. The learned Single Judge has rightly kept in view the fact

that amendments to pleadings are very often used, nay abused,

to delay and protract proceedings. However, in the facts of the

present case, we do not think that this is apposite since it is

Defendant Nos.1 and 3 who are enjoying the possession and

usufruct of the overwhelmingly major part of the property. The

Plaintiff, therefore, has nothing to gain whatsoever by delaying

the suit.

5. In the Written Statement filed by Defendant Nos.1 and 3,

they have pleaded that their late mother was conversant in

English. In her Written Statement, Defendant No.2, who is the

sister of the two warring brothers, has denied that their mother

was familiar or conversant with English. This has, therefore,

already become a critical contention between the parties and we

cannot conceive of any reason why an Issue on this question

should not be framed at the appropriate time. In the present

state of pleadings, an Issue will be necessary pertaining to the

knowledge of the late mother/owner of English and the onus

would lie on the party who had asserted it, that is, Defendant

Nos.1 and 3. We are unable to agree with the learned Single

Judge that by introducing these averments a new case is being

introduced.

6. At the present moment, a Replication has not been filed

because of the pendency of the amendment application. It is

submitted on behalf of learned counsel for the Plaintiff that the

Plaintiff desires to file a Replication. In any event, since the

Replication is still to be filed, it would always be open and

available to the Plaintiff to plead facts which he considers to be

germane to the lis.

7. It is trite that once a Replication is filed, it constitutes

pleadings. We are mindful of the fact that if these questions are

elucidated and introduced in the Replication, the contesting

Defendants would have no opportunity to controvert or explain

the situation. The fairest course to be chartered is, therefore, to

allow the amendments since the contesting Defendants will have

the opportunity to deal with the asseverations in the proposed

paragraph 17A.

8. Appeal is allowed in these terms. Parties to bear their

respective costs.

                                       ( VIKRAMAJIT SEN )
                                             JUDGE




                                       ( MUKTA GUPTA )
August 25, 2010                             JUDGE
tp