Gita Abhayankar vs Vikram Abhyankar & Ors.
2011 Latest Caselaw 4263 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Pronounced on: 01.09.2011

+ CS(OS) 1166/2004

GITA ABHAYANKAR                      ..... Plaintiff
             Through: Mr Jeevesh Nagrath, Adv.

                              versus


VIKRAM ABHYANKAR & ORS.              ..... Defendants
               Through: Mr P.V. Kapur, Sr. Adv with
               Mr R.N. Karanjawala, Mrs Gauri
               Subramaniun, Mr Manu Aggarwal,
               Advs for D-1
               Mr Manish Vashisht and Mr Sameer
               Vashisht, Advs for D-2
               Mr Varun Singh, Adv for D-7
               Ms Sumi Anand and Mr Abhinav
               Tandon, Adv for D-4

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                       No.

2. To be referred to the Reporter or not?                 No.

3. Whether the judgment should be reported                No.
   in Digest?

V.K. JAIN, J. (ORAL)

IA No. 11848/2011 (O. 6 R. 17 of D-2)

1. This is an application by defendant No. 2 seeking

amendment of the written statement. By way of proposed

amendments, defendant No. 2 wants to add the following

paras after para 2, under the heading 'Submissions of

Defendant No.2.'

2. Property No. 1/31, Shanti Niketan, New Delhi was

admittedly owned by late Shri Kewal Singh, father of the

plaintiff and maternal grandfather of defendants No. 1 and

2, who are the children of the plaintiff. The case of the

plaintiff, as set out in the plaint, is that under a family

settlement dated 30th July, 1969, half of this property came

to the share of the plaintiff, whereas the remaining half

came to her mother Shamie Singh. Defendant No. 2 is

supporting the case set out by the plaintiff in this regard.

The case of defendant No. 1, however, is that vide a Will

executed on 25th September, 2003, the whole of this

property was bequeathed by Mrs Shamie Singh, exclusively

to him. The Will dated 25th September, 2003 is a registered

a Will.

3. In her written statement, defendant No. 2 stated

that on various occasions, her grandmother Mrs Shamie

Singh had confirmed to her that the plaintiff had 50% share

in the aforesaid house, whereas the balance 50% was held

by her (Mrs Shamie Singh). It was further alleged that

defendants No. 1 and 2 have 25% share in the aforesaid

property, whereas the plaintiff is the owner of 50% share in

this property, they having inherited it in terms of the joint

and mutual Wills of their grandparents dated 30 th August,

1985 and 26th June, 1986. As regards the Will setup by

defendant No. 1, it was denied and disputed and it was

alleged that the Will was neither legal nor a valid document

and defendant No. 1 cannot claim any right pursuant to the

aforesaid Will.

4. Thus, though defendant No. 2 in her statement

had disputed the Will set up by defendant No. 1 and had

also claimed that it was not a legal or valid Will, the specific

grounds on which the validity of the Will was being disputed

was not specified in the written statement.

5. Vide proposed amendment, defendant No. 2 wants

to plead various ground on which she is disputing the Will

set up by defendant No. 1.

6. The proposed amendment has been opposed by the

learned counsel for defendant No. 1 on the grounds that

since the denial of the Will dated 25th September, 2003 was

an evasive denial, it amounts to admission and if the

proposed amendment is allowed, it would amount to

allowing defendant No. 2 to withdraw the admission made

by her with respect to the Will set up by defendant No. 1. It

is also submitted by the learned senior counsel appearing

for defendant No. 1 that defendant No. 2 was very well

aware of the Will since it had been filed in the Court before

she filed her written statement.

7. In my view, the written statement filed initially by

defendant No. 2 cannot be said to contain an admission

either with respect to execution or with respect to validity of

the Will set up by defendant No. 1. As noted earlier, not

only has the Will been disputed, its validity has also been

denied though the specific grounds on which the validity of

the Will was disputed, were not pleaded in the written

statement which was initially filed. The proposed

amendment of the written statement, to my mind, is more or

less by way of elaboration of the plea already taken by

defendant No. 2, denying the validity of the Will setup by

defendant No. 1. Since there is no admission by defendant

No. 2 with respect to the execution or the validity of the Will

set up by defendant No. 1, it is difficult to accept the

contention that the proposed amendment, if allowed, would

have the effect of permitting withdrawal of the admissions

made by defendant No. 2 in the initial written statement

filed by her.

8. It is settled proposition of law that while

considering an application for amendment, the Court

cannot go into truthfulness or otherwise the averments

sought to be pleaded by way of proposed amendment. The

case is at the initial stage since issues have not been

framed. Defendant No.1 can, therefore, be compensated in

terms of costs, for the delay in seeking amendment.

9. Mr Kapur states that since the validity of the Will

is being disputed in the written statement of defendant No.

2, he has no opportunity to revert these allegations. That, in

my view, can be taken care of by permitting defendant No. 1

to file an additional written statement/replication to the

written statement of defendant No.1, spelling out his reply

to the averments sought to be made by defendant No. 2 in

her written statement.

10. Mr Kapur states that these amendments have been

sought after he has argued at length before this Court in IA

No.7030/2004, 8157/2004, 3857/2005, 4671/2005,

4702/2007 and 8753/2008, which were disposed of vide

order dated 7th April, 2010. That, to my mind, is absolutely

irrelevant and can be no ground to reject the proposed

amendment.

For the reason given in the preceding paragraphs,

the application is allowed, subject to payment of Rs 5,000/-

as costs.

The IA stands disposed of.

CS(OS) 1166/2004

Amended written statement be filed within four

weeks. Defendant No. 1 will be at liberty to file additional

written statement/replication to written statement of

defendant No.2, controverting the plea taken by way of

amendments which have been allowed in terms of this

order.

Renotify on 08th September, 2011.

IAs No. 7518/2010 (under Section 151 CPC) and 16511/2010 (under Section 5 of Limitation Act.)

Mr Kapur states that he needs some time to make

submissions on these applications.

Hence, renotify for hearing on 08 th September,

2011.

Since defendant No. 1 is seeking adjournment, the

interests of the other parties need to be protected till the

applications are heard on merits. Hence, till further orders,

the parties to the suit will not withdraw the amount of Rs

25 lakh, which is stated to be lying deposited with Standard

Chartered Bank.

(V.K. JAIN) JUDGE SEPTEMBER 01, 2011 BG