Smt. Sukho Devi (Deceased) ... vs Smt. Laxmi Devi & Ors.
2013 Latest Caselaw 3565 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 13th August, 2013

+                         RFA No.211/1994
      SMT. SUKHO DEVI (DECEASED)
      THROUGH LR's                              .....Appellant
                        Through: Mr. Rjeshwar Tyagi, Adv.

                                   Versus
    SMT. LAXMI DEVI & ORS.                 ....Respondents

Through: Mr. Anand Maheshwari, Adv.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 3 rd December, 1993 of the Court of the Addl. District Judge, Delhi in Suit No.568/1993 filed by the appellant for partition of property No.3481 Gali Kartar Singh Subzimandi, Delhi.

2. The appeal was admitted for hearing and vide ex parte ad interim order dated 2nd May, 1994 the parties were directed to maintain status quo in respect of possession as on 2 nd May, 1994. The said ex parte order was confirmed vide order dated 13th February, 1995. The appellant/plaintiff died during the pendency of the appeal and no steps were taken for substitution of her legal representatives. The respondents applied for dismissal of the appeal as abated. At that stage an application was filed by the legal representatives i.e. the son and daughter of the deceased appellant/plaintiff Smt. Sukho Devi for substitution in her place. Thereafter the son of the deceased

appellant/plaintiff Smt. Sukho Devi also died and application for substitution of his legal representatives was filed. The respondent no.4 Smt. Yashoda Devi also died during the pendency of the appeal. Vide order dated 24th January, 2012 the delays in applying for substitution of the various legal representatives were condoned and the legal representatives of the son of Smt. Sukho Devi and the deceased respondent no.4 Smt. Yashoda Devi were substituted.

3. The appellants/plaintiffs have filed CM No.8151/2011 under Order 41 Rule 27 of the CPC and which application was on 24th January, 2012 ordered to be considered at the time of hearing of the main appeal. Thereafter the matter was adjourned from time to time on request of the counsels. Yet another application was filed by some of the legal representatives of the deceased appellant/plaintiff Smt. Sukho Devi for transposition of the other legal representatives of the deceased appellant/plaintiff Smt. Sukho Devi as respondents and which was also allowed on 24th July, 2013.

4. The counsel for the appellants/plaintiffs i.e. Shri Hari Shankar and Smt. Rajeshree being the son and daughter of the appellant/plaintiff Smt. Sukho Devi and the counsel for the respondent no.2 Shri Harish being the son of the earlier sole defendant in the suit Shri Chunni Singh have been heard.

5. In view of what has transpired in the hearing today, need is not felt to elaborate the facts in detail. Suffice it is to state that the deceased appellant/plaintiff Smt. Sukho Devi had filed the suit for partition from

which this appeal arises in the year 1987 pleading that the house/property aforesaid belonged to her grandfather Shri Chatar Singh who had died leaving two sons namely Shri Samman Singh and Shri Chunni Singh as his only legal heirs; that Shri Samman Singh had also died leaving the deceased appellant/plaintiff Smt. Sukho Devi as his only legal heir and thus the deceased appellant/plaintiff Smt. Sukho Devi had a 50% share in the said house.

6. The learned Addl. District Judge in the impugned judgment/decree has held that Shri Chatar Singh grandfather of the deceased appellant/plaintiff Smt. Sukho Devi having died in the year 1947 and Shri Samman Singh father of the deceased appellant/plaintiff Smt. Sukho Devi having died on 10th December, 1955 i.e. both prior to the coming into force of the Hindu Succession Act, 1956 on 17th June, 1956, and which was not retrospective, the premise on which the suit has been filed was fallacious. It was thus held that though the deceased appellant/plaintiff Smt. Sukho Devi had not inherited any share in the property, she was entitled to residence therein during her lifetime in the one room which she had proved before the learned Addl. District Judge, was in her use and occupation. Thus, while dismissing the suit for the relief claimed of partition, the defendants/respondents were restrained from creating any hurdles in the peaceful use/enjoyment by the deceased appellant/plaintiff Smt. Sukho Devi of the said room during her lifetime. Now that Smt. Sukho Devi is no more, the said injunction also is not operative.

7. The counsel for the appellants/plaintiffs has not challenged the aforesaid reasoning and has not pointed out any flaw therein. What has been

argued is, (a) that Shri Chatar Singh, being the grandfather of the deceased appellant/plaintiff Smt. Sukho Devi, at the time of his death besides the two sons Shri Samman Singh and Shri Chunni Singh had also left a widow namely Smt. Dhanno Devi; (b) that by virtue of the provisions of Section 3 of the Hindu Women's Right to Property Act, 1937 then in force, the said Smt. Dhanno Devi acquired the same share as her sons; (c) that on the demise of Shri Samman Singh on 10th December, 1955 leaving the deceased appellant/plaintiff Smt. Sukho Devi as his daughter and Smt. Dhanno Devi as his mother, the said Smt. Dhanno Devi acquired right to one half share of Shri Samman Singh in the suit property; (d) that the Succession Act came into force during the lifetime of Smt. Dhanno Devi and by virtue of Section 14 thereof the said limited estate of Smt. Dhanno Devi (under the Hindu Women's Right to Property Act) got converted into an absolute estate and on the demise of Smt. Dhanno Devi on 13 th May, 1957, the deceased appellant/plaintiff Smt. Sukho Devi being the daughter of a pre-deceased son of Smt. Dhanno Devi inherited one half share in the said share of Smt. Dhanno Devi in the property.

8. The counsel for the respondent no.2 objects and states that the arguments urged do not form part of the pleadings or contentions before the learned Addl. District Judge.

9. The counsel for the appellants/plaintiffs has fairly admitted the said position. Though he initially contended that the said pleas have been raised in the Memorandum of Appeal but on going through the same further fairly confirms that all that has been stated therein even is the date of demise of Smt. Dhanno Devi and the pleas as are now sought to be urged have not

been taken in the Memorandum of Appeal also. He however states that all these pleas and contentions have been raised in the application under Order 41 Rule 27 of the CPC and the factual aspect thereof has not been denied in the reply filed by the respondent thereto. The counsel for the appellants/plaintiffs states that additional evidence under Order 41 Rule 27 of the CPC is sought to be given of the certified copy of the Death Certificate of Smt. Dhanno Devi showing her date of death as 13 th May, 1957. He has further contended that even though the appellants/plaintiffs and/or their predecessors may not have claimed the relief of partition through Smt. Dhanno Devi but the suit being for the relief of partition and this appeal having arisen from such a suit, the appellants/plaintiffs in the interest of justice should not be permitted to claim a share through Smt. Dhanno Devi.

10. An application under Order 41 Rule 27 of the CPC is intended only to seek the permission of the Appellate Court to lead evidence that ought to have been admitted but was refused by the Trial Court or where the appellant/plaintiff establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence be produced at the time when the decree appealed against was passed or where the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial clause. The compass or ambit of an application under Order 41 Rule 27 is to the said limited extent only and an application under Order 41 Rule 27 cannot take the form of a plaint and the reply thereto, that of the written statement.

11. Not only so, additional evidence can be permitted by the Appellate Court only in support of the case pleaded. Here admittedly the evidence sought to be led in the form of the Death Certificate of Smt. Dhanno Devi is not in support of any plea in the plaint in as much as the appellant/plaintiff neither in the plaint nor in the appeal has claimed any share in the house/property as an heir of Smt. Dhanno Devi. The share claimed was as an heir of her father Shri Samman Singh. There is a world of difference in two claims and merely because the respondents/defendants in their reply to the application under Order 41 Rule 27 of the CPC may have not pleaded any defence to such a claim cannot deprive them of taking any such defences as may be available to them upon the same being pleaded in accordance with law by the appellants/plaintiffs.

12. Though the counsel for the appellants/plaintiffs have invoked the principles of justice and equity but the said principles cannot be permitted to override the procedure prescribed by law and which procedure does not permit this Court to decide or to grant relief on the basis of a case with which the appellants/plaintiffs have not approached this Court and which the respondents/defendants have not had an opportunity to defend/meet.

13. The Supreme Court in Srinivas Ram Kumar Vs. Mahabir Singh AIR 1951 SC 177 was concerned with a suit for recovery of Rs.30,000/- pleaded to have been paid to the defendant by way of part consideration for purchase of immovable property which the defendant had failed to convey. The defendant contested the suit denying any agreement for sale of immovable property, though admitting the receipt of Rs.30,000/- from the plaintiff but pleading the same to be by way of loan. The case

pleaded by the plaintiff of the defendant having agreed to sell his immovable property to the plaintiff was disbelieved but a decree for recovery of Rs.30,000/- with interest was still passed. The High Court in appeal set aside the said decree on the ground that since the plaintiff had not filed the suit with the case of Rs.30,000/- having been loaned to defendant, the decree for recovery of the money as loan amount could not have been passed. The Supreme Court in appeal, observing that the plaintiff in the plaint could have alternatively sought recovery of Rs.30,000/- as loan and which had not been done, posed the question, whether in the absence of such alternative case in the plaint it was open to the Court to give relief on that basis and held:

"The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings."

However, the present case does not fall in the exception carved out by the Supreme Court. The respondents/defendants have nowhere in the written statement admitted that the plaintiff though was not entitled to a

share in the property through her father as claimed in the plaint, but is entitled to a share through her grandmother Smt. Dhanno Devi.

14. Reference in this regard may also be made to Manohar Lal (D) by Lrs. Vs. Ugrasen (D) by LRs. (2010) 11 SCC 557 where also after noticing a plethora of case law in this regard it was reiterated that a decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found and without an amendment of the plaint the Court is not entitled to grant the relief not asked for. It was further reiterated that though the Court has very wide discretion in granting relief, the Court however cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not prayed for.

15. It has in the circumstances been enquired from the counsel for the appellants/plaintiffs whether any application for amendment of the plaint has been filed. Though the answer is in the negative but the counsel for the appellants/plaintiffs seeks adjournment to move such an application.

16. This appeal is nearly twenty years old and as aforesaid has been repeatedly adjourned. The lis from which this appeal arises is more than 35 years old. In these circumstances and especially when the counsels have been heard, it is not deemed appropriate to so adjourn the hearing of the appeal to enable the appellants/plaintiffs to make an application for amendment of the plaint. It is significant that the appellants/plaintiffs when after sixteen years of the pendency of the appeal i.e. in or about the year 2011 awakened to the possibility of having a share in the property through

Smt. Dhanno Devi even then did not file any application for amendment and were satisfied by merely making an application under Order 41 Rule 27 of the CPC. More than two years have lapsed since the filing of the said application also and adjournment cannot be granted for this reason also.

17. There being no challenge to the reasoning given for denying the relief of partition to the appellants/plaintiffs on the basis of the case pleaded by the appellants/plaintiffs, the appeal has but to fail.

18. The appeal is thus dismissed; however in the circumstances no costs.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J

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