Sugeeta Chhabra vs Harish Nayar
2013 Latest Caselaw 149 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+       I.A. No.8998/2012 (by the defendant u/O VI R 17 CPC)
        in CS(OS) No. 1342/2011


                                      Reserved on:        27.08.2012
                                      Date of decision:   10.01.2013

IN THE MATTER OF:
SUGEETA CHHABRA                                           ..... Plaintiff
                         Through: Mr. Sanjeev Sindhwani, Advocate


                   versus

HARISH NAYAR                                           ..... Defendant
                         Through: Mr. R.P. Sharma, Advocate


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

1. This application has been filed by the defendant under Order VI

Rule 17 CPC praying inter alia for permission to amend the written

statement.

2. The brief background of the present case is that the plaintiff,

who is the sister of the defendant, has instituted the accompanying

suit for partition, permanent injunction and rendition of accounts

against her brother, the defendant herein, praying inter alia that a

decree of partition be passed, declaring her to be the 50% shareholder

in the property bearing No.41, Prithvi Raj Road, New Delhi and 50%

shareholder in the movable properties owned by the father of the

parties, i.e., late Shri R.G.Nayar. Apart from the aforesaid relief, the

plaintiff has also prayed for a decree of rendition of accounts and

permanent injunction against the defendant.

3. The present suit was registered on 27.05.2011 and notice was

issued to the defendant returnable before the Joint Registrar on

01.09.2011. Appearance was entered on behalf of the defendant on

01.09.2011 and a written statement was filed on 18.10.2011.

Replication to the written statement was filed by the plaintiff on

14.11.2011. Admission and denial of documents was concluded on

25.01.2012 and thereafter the present amendment application was

filed by the defendant on 05.05.2012. In the present application, the

defendant seeks permission to amend the preliminary objections taken

in the written statement by adding para 8 and renumbering the

existing para 8 as para 9.

4. Mr. R.P. Sharma, learned counsel for the defendant stated that

the proposed amendment is bona fide and is sought to be incorporated

in the written statement for giving effect to Section 6 of the Hindu

Succession Act, 1956 (hereinafter referred to as „the Act'). He

submitted that the defendant had pleaded in paras 1 to 12 of the

written statement that the grandfather of the parties, late Shri

Lachhmandas Nayar had left a registered will that had been probated

by the High Court of Bombay vide order dated 11.08.1972 passed in

Probate Petition No.350/1969 and as per the said will, the immovable

property had to vest in equal shares in favour of seven male members

of the family of late Shri Lachhmandas Nayar. The father of the

parties herein, Shri R.G. Nayar had got 1/7th undivided share in Shri

Lachhmandas Nayar HUF and the income in his hand had accrued out

of the immovable property that was left by late Shri Lachhmandas

Nayar and further that Shri R.G. Nayar did not have his separate or

independent income.

5. It was submitted on behalf of the defendant that notwithstanding

the fact that late Shri R.G. Nayar had purchased the suit premises in

joint name alongwith his wife, the money for purchasing the same was

generated out of various movable and immovable properties left by his

father, late Shri Lachhmandas Nayar and as such the suit premises

had become a joint Hindu family property of late Shri R.G. Nayar, who

was the Karta of R.G. Nayar HUF and upon his demise, his son, Shri

Harish Nayar, the defendant herein became the Karta of R.G. Nayar

HUF and on the basis of the explanation to sub-section (3) of Section 6

of the Act, partition of the properties of late Shri Lachhmandas Nayar

would have to take place as if Shri R.G. Nayar was alive. He

submitted that Shri R.G. Nayar‟s family comprised of himself, his son

(the defendant herein), his daughter (the plaintiff herein), a grandson

and a great grandson and therefore, each of the aforesaid persons

would acquire 1/5th share in the movable and immovable properties

held by Shri R.G. Nayar and upon his demise, his 1/5th share would

further get divided into five shares and the share of the plaintiff would

be 3/10th and that of the remaining HUF of which the defendant is the

Karta, would be 7/10th.

6. It is submitted that in view of the above legal position, the

written statement filed by the defendant is required to be amended so

as to clarify that in the absence of any will left by late Shri R.G. Nayar,

the suit premises would be divided in such a manner that R.G. Nayar

HUF, of which the defendant is the Karta, would get 7/10th share in the

suit premises and the plaintiff would get 3/10th share therein. The

explanation offered by the defendant for the need to carry out the

proposed amendment in the written statement at this stage is that he

had obtained advise from his Chartered Accountant, who had opined

on 21.04.2012 that the share of the plaintiff in the suit premises would

be 3/10th and that of R.G. Nayar HUF and his family would be 7/10th.

7. In support of his submission that it is open for the defendant to

take even a contrary stand in his written statement, learned counsel

for the defendant referred to the judgment in the case of Basavan

Jaggu Dhobi vs. Sukhnandan Ramdas Chaudhary reported as 1995

Supp (3) SCC 179 and he relied on the decision in the case of Hari

Kishan vs. Prem Narain reported as 1985 RLR 488 to urge that a

party can be allowed to amend his pleading for raising an additional

approach to his plea and merely giving further reasons to a plea would

not amount to changing the nature of the plea.

8. The present application filed by the defendant has been strongly

opposed by Mr. Sanjeev Sindhwani, learned counsel for the plaintiff,

who urged that the same is misconceived and not maintainable. He

denied the fact that the dispute sought to be raised by the defendant

in the present application relates to the interpretation of Section 6 of

the Act as alleged and instead submitted that it was neither the case

of the defendant as per the averments made in the written statement,

nor of the plaintiff that Shri R.G. Nayar, the father of the parties had

an HUF that owned the suit premises. He stated that as per the case

that has been set up by the plaintiff, Shri R.G. Nayar was the absolute

owner of half share in the suit premises and his absolute ownership

therein has been duly admitted by the defendant in his written

statement. In support of the aforesaid submission, learned counsel

had drawn the attention of the Court to the averments made by the

defendant in his written statement, particularly, the averments made

in paras 1 to 12 on merits, read in conjunction with the corresponding

paras of the plaint. He pointed out to para 4 of the plaint where the

plaintiff has stated that the entire sale consideration for purchase of

the suit premises was paid by Mr. R.G. Nayar, father of the parties

exclusively from his own funds and other statutory demands in respect

of the said property were also borne by him entirely and in paras 1 to

12 of his written statement, the defendant has admitted to the

contents of the corresponding paras 1 to 12 of the plaint, as being a

matter of record and has gone on to state that he is the owner to the

extent of 50% undivided share in the suit premises and the remaining

50% share therein was bequeathed by late Shri R.G. Nayar in favour

of his grandson, Mr. Raghav Nayar.

9. Learned counsel for the plaintiff stated that the present

application for amendment to the written statement, if allowed, would

amount to withdrawal of the admissions that have been made by the

defendant in his written statement to the effect that the suit premises

was not a self-acquired property of Shri R.G. Nayar. It was contended

that it is settled law that an amendment cannot be allowed when it

results in permitting a party to withdraw the admission and set up a

new case contrary to the earlier one as such a withdrawal would

displace the case of the plaintiff causing irretrievable prejudice to her.

He canvassed that the entire defence taken by the defendant in the

written statement is premised on the stand that Shri R.G. Nayar,

father of the parties had left a will, whereunder his grandson, Shri

Raghav Nayar had succeeded to 50% share in the suit premises and in

view of the fact that such a succession was based on the will executed

by Shri R.G. Nayar, this would constitute a clear admission on the part

of the defendant that the suit premises was self-acquired and an

absolute property of the deceased. He submitted that having

benefitted from the admitted absolute ownership of the suit premises,

the defendant cannot be permitted to retract and take a stand that the

said premises was purchased out of HUF funds and was a part of a

joint hindu family property.

10. In addition to the aforesaid submission, learned counsel for the

plaintiff stated that a previous suit for specific performance in respect

of the suit premises, was instituted by Shri R.G. Nayar and his wife,

Smt. Sharda Nayar against the previous owners thereof, i.e., Shri B.S.

Bhambri and Shri R.S. Bhambri and after the death of Smt. Sharda

Nayar (mother of the parties), the defendant had got himself

impleaded and subsequently succeeded to her share on the basis of a

will. He submitted that Smt. Sharda Nayar‟s share in the suit

premises could have devolved on the defendant only if her share

therein was absolute and the nature of ownership thereof in her hands

as also in the hands of Shri R.G. Nayar was identical. It was urged that

having taken the benefit of claiming 50% share in the suit premises on

the basis of the will left by Smt. Sharda Nayar and having specifically

taken a stand that the remaining half share had devolved on Shri

Raghav Nayar (son of the defendant), on the basis of the will left by

late Shri R.G. Nayar, it is not open for the defendant to now claim that

the suit premises was purchased by Sh.R.G.Nayar from out of HUF

funds, as such a stand would amount to withdrawal of admissions

made by him and would result in raising an entirely new plea, which

was never taken initially in the original written statement.

11. Learned counsel for the plaintiff relied upon the case of Allora

Electric & Cable Co. vs. M/s Shiv Charan & Bros. & Ors. reported as

72(1998) DLT 761, wherein the provisions of Order VIII Rule 5 CPC

were interpreted in the light of the judgment of the Supreme Court in

the case of Badat & Co. vs. East India Trading Co. reported as AIR

1964 SC 538 and it was observed that a vague or evasive reply by

the defendant cannot be considered to be a denial of a fact alleged by

the plaintiff and that a party is expected to expressly deny the fact,

which is within its knowledge and a general denial is not a specific

denial by "necessary implication". In other words, learned counsel

submitted that denial by the defendant should have been definite and

unambiguous and in view of the categorical admission made by the

defendant in reply to paras 1 to 12 of the plaint, it has to be assumed

that he had admitted to the fact that the entire sale consideration for

purchase of the suit premises was paid by Shri R.G.Nayar exclusively

from his own funds.

12. To fortify his submission that an amendment that seeks to set up

a totally new case, is impermissible and that the defendant cannot be

permitted to completely change his case and substitute it with an

entirely new case and if such amendments are allowed, then the

plaintiff shall be irretrievably prejudiced, learned counsel for the

plaintiff referred to the case of M/s Orissa Industries Ltd. vs. Sh.

Hardayal & Sons (HUF) reported as 2001 V AD (Delhi) 824.

13. The Court has considered the respective stands of the parties in

the light of the averments made in the application as also the

pleadings as originally filed.

14. The object of Order VI Rule 17 CPC is to allow a party to

alter/amend his pleadings in such a manner and on such terms as may

be just and proper. It is settled law that Courts must not refuse

bonafide, legitimate, honest and necessary amendments and should

never permit malafide, worthless and/or dishonest amendments. The

basic test which must govern the grant or refusal of amendment is

whether such amendment is necessary for the purpose of determining

the real question and the controversy between the parties or the same

is necessary for proper and effective adjudication of the case. [Refer:

Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and

Others (2009) 10 SCC 84]. Amendments should also be allowed to

avoid uncalled for multiplicity of litigation. Undoubtedly, an

amendment cannot be claimed as a matter of right, but the guiding

factor in dealing with such applications is that all rules and procedures

are intended to sub-serve the ends of justice and technicalities of law

should not be permitted to hamper the courts in dispensing justice and

therefore the approach of the court ought to be liberal.

15. While the principles applicable to amendments of a plaint are

applicable in equal strength to amendments of a written statement,

however, ordinarily the courts are more liberal in permitting

amendments of the written statement for the reason that there is

lesser likelihood of prejudice being caused in such an event. In this

context, the Supreme Court had observed in the case of Usha

Balasaheb Swami & Ors. vs. Kiran Appaso Swami & Ors., reported as

AIR 2007 SC 1663, as below :

"15. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable."

16. Although the power to allow amendment is wide and the Court

can exercise its discretion at any stage of the proceedings, the power

must be exercised with great care. As noted above, there are a few

riders attached to exercising this wide discretion. As for example, such

amendments that are not bona fide, are unnecessary or work serious

prejudice/injustice to the other side or those amendments which are

aimed at overreaching the court or would result in placing the opposite

side in a situation which cannot be compensated by awarding costs,

ought not to be allowed.

17. As a defendant, a party has a right to take inconsistent pleas or

alternative pleas in defence, subject to the condition that by virtue of

the proposed amendment, the opposite party should not be subjected

to injustice and that any admission made in favour of the plaintiff is

not withdrawn. But, as observed by the Supreme Court in the case of

B.K.N. Narayana Pillai vs. P. Pillai & Anr., reported as AIR 2000 SC

614, inconsistent and contradictory allegations in negation to the

admitted position of facts or mutually destructive allegations of facts

should not be allowed to be incorporated by means of amendment to

the pleadings. It was also observed that no amendment should be

allowed which amounts to or results in defeating a legal right accruing

to the opposite party on account of lapse of time. The delay in filing

the application for amendment of the pleadings should be properly

compensated by costs and error or mistake which, if not fraudulent,

should not be made a ground for rejecting the application for

amendment of a plaint or a written statement.

18. In the case of Jai Jai Ram Manohar Lal vs. National Building

Material Supply, Gurgaon, reported as AIR 1969 SC 1267, the

Supreme Court has held that amendment causing injury to an

opponent which may not be compensated for by an order of costs

would be an exception to the exercise of liberal power to amend.

Similarly, it was held in the case of Haridas Aildas Thadani & Ors. vs.

Goderej Rustom Kermani, reported as AIR 1983 SC 319, that an

amendment causing or likely to cause serious injustice or irreparable

loss to the other side, should not be allowed.

19. For deciding the present application, it is necessary to examine

the stand of the defendant in response to the averments made by the

plaintiff in the plaint. As per the plaintiff, Shri R.G. Nayar and Smt.

Sharda Nayar, the parents of the parties had entered into an

Agreement to Sell dated 24.05.1972 with the previous owners of the

suit premises and upon their failure to have performed their

obligations under the said Agreement to Sell, they had instituted a suit

for specific performance in the High Court. During the pendency of the

aforesaid suit, Smt. Sharda Nayar had expired on 27.12.1976. Upon

her demise, the defendant had filed an application for impleadment

seeking to substitute himself in place of Smt. Sharda Nayar, which

application was duly allowed and the said suit was ultimately decreed

vide judgment and decree dated 09.07.1985 whereafter, a Sale Deed

was executed and registered in respect of the suit premises.

20. Upon the demise of her father, the plaintiff now claims 50%

share in the suit premises, but has made an averment in the plaint

that in view of the stand of the defendant that he had succeeded to

50% share in the suit premises on the basis of a will executed by their

mother, the plaintiff was willing to give a concession to the defendant

in the interest of maintaining good relations in the family and sought

to restrict her claim to 25% share in the suit premises, out of one half

that was inherited from the estate of late Shri R.G. Nayar.

21. In response to the aforesaid stand taken by the plaintiff, the

defendant has averred in his written statement that Shri R.G. Nayar

and Smt. Sharda Nayar were co-owners of the suit premises and that

Smt. Sharda Nayar had executed a will, whereunder he had become

owner of 50% share held by her. It was further averred that in

accordance with the judgment and decree dated 09.07.1985 passed in

the suit for specific performance instituted by the parents of the

parties in respect to the suit premises, a Sale Deed was executed in

favour of Shri R.G. Nayar, the father of the parties and the defendant

herein, being the beneficiary under the will of his mother. Thus, the

defendant claimed that he is the owner of the suit premises to the

extent of 50% undivided share and the remaining 50% share was

bequeathed by Shri R.G. Nayar in favour of his grandson, Shri Raghav

Nayar. The defendant also adverted to the Probate Petition

No.350/1969 decided by the High Court of Bombay on 11.08.1972,

whereunder the will dated 21.06.1965 executed by late Shri

Lachhmandas Nayar was probated. Under the said will, Shri

Lachhmandas Nayar had bequeathed his properties in favour of the

male members of his family. The defendant thus submitted that the

suit premises was purchased by Shri R.G. Nayar and his wife, Smt.

Sharda Nayar and that the plaintiff did not have any share therein.

22. In reply to para 13 of the plaint, wherein the plaintiff had stated

that Shri R.G. Nayar was a coparcener of late Shri Lachhmandas Nayar

HUF, in respect whereof proceedings were pending in the High Court of

Bombay, the defendant admitted to the said fact in the corresponding

paras 13 and 14 of the written statement but expressed his ignorance

about the legal proceedings in the said court.

23. A plain reading of the written statement as originally filed by the

defendant reveals that though he had ample opportunity to explain the

manner in which the suit premises had become a joint Hindu family

property in the hands of late Shri R.G. Nayar, particularly, in response

to the averments made by the plaintiff in para 12 of the plaint, he had

refrained from doing so and instead, he took a categorical stand that

the suit premises was the absolute property of the parents of the

parties and it belonged to him to the extent of 50% undivided share,

which he had inherited on the basis of the will that was left by Smt.

Sharda Nayar, the mother of the parties and that the remaining 50%

undivided share had devolved on his son, Shri Raghav Nayar on the

basis of the will that was executed by Shri R.G. Nayar, the father of

the parties.

24. Now by way of the proposed amendments, the defendant is

seeking to withdraw from the aforesaid admissions and seeks to claim

that Sh.R.G.Nayar, father of the parties had received 1/7th undivided

share in the assets of late Shri Lachhmandas Nayar HUF and as the

income that was derived from the aforesaid movable and immovable

properties had accrued to Shri R.G. Nayar, who had purchased the

suit premises. As a result, it is now claimed that the said property had

acquired the colour of a joint Hindu family property in the hands of

Shri R.G. Nayar as the Karta of R.G. Nayar HUF and upon his demise,

the defendant had stepped into his shoes and he had become the

Karta of the said HUF.

25. By invoking the provisions of Section 6 of the Act, the defendant

now claims that as it is the case of the plaintiff that Sh. R.G. Nayar

had not left any will, the suit premises would be divided by granting

7/10th share to Shri R.G. Nayar HUF and 3/10th share to the plaintiff. If

the aforesaid plea of the defendant is permitted to be incorporated in

his written statement, it would undoubtedly result in permitting him to

renege from the admissions made by him in the original written

statement as to the absolute ownership of the suit premises and set

up an entirely new case to the prejudice of the plaintiff, which is

impermissible in law. Further, the aforesaid amendment, if allowed,

would result in the defendant taking mutually destructive pleas, which

cannot be permitted.

26. There is merit in the submission made by the counsel for the

plaintiff that if permission is granted to the defendant to amend the

written statement, as prayed for, then it shall cause serious injustice

to the plaintiff inasmuch as it will result in permitting the defendant to

take contradictory and inconsistent pleas in negation of the position

taken in his original written statement, wherein he had averred that

Mr.R.G. Nayar had left a will, whereunder, his son, Shri Raghav Nayar,

was bequeathed one half undivided share in the suit property. Such a

bequest could have taken place only on the premise that the suit

property was a self-acquired property of late Shri R.G.Nayar and not if

it was a HUF property as now sought to be claimed by the defendant.

Similarly, the validation of the claim of the defendant to half undivided

share of his mother, Smt. Sharda Nayar in the suit premises on the

basis of devolution made by a will executed by her in his favour would

be sustainable only if the suit property was an absolute property of the

parents of the parties and not if it was purchased by Shri R.G. Nayar

as a karta of a hindu undivided family, as claimed in the proposed

amendments.

27. In the teeth of the aforesaid categorical stand taken by the

defendant in his written statement, it does not lie in his mouth to turn

around and urge that he may be permitted to amend the written

statement and incorporate therein facts to the effect that the suit

property had been purchased out of HUF funds and that Sh. R.N.

Nayar was a Karta of a HUF and upon his demise, the defendant had

become the Karta of the said HUF. This would amount to permitting

the defendant to change the very nature of his original defence and

set up an entirely new case, which had not been taken by him in the

written statement as originally filed. In fact, it is not merely a case of

taking inconsistent pleas or addition of new grounds of defence, but an

attempt on the part of the defendant to build up an entirely different

and mutually incompatible defence.

28. Further, the contention of the counsel for the defendant that the

amendments sought to be incorporated are only a consequence of the

interpretation of Section 6 of the Act, based on an opinion dated

21.04.2012 received by the defendant from his Chartered Accountant

does not inspire the confidence of the court and can hardly be treated

as a bonafide ground for permitting amendment to the written

statement. Even in the absence of an opinion from his Chartered

Accountant, if the defence of the defendant was that the suit property

was a HUF property, then nothing precluded him from laying the

foundation of his case in the original written statement and then seek

to elaborate the same by way of an amendment. However, the written

statement filed by the defendant originally is absolutely silent on this

aspect. Having failed to do so at the time of filing the written

statement, the defendant cannot be permitted to incorporate the

aforesaid amendments under an excuse that an opinion has been

received from his Chartered Accountant.

29. In view of the aforesaid facts and circumstances, this Court is of

the opinion that the present application does not appear to be bonafide

and allowing the same would cause serious prejudice to the plaintiff.

The same is accordingly dismissed while leaving the parties to bear

their own costs.

                                                      (HIMA KOHLI)
JANUARY     10, 2013                                      JUDGE
rkb/mk/sk/rs/mk