Manu Markande & Anr vs The State & Ors
2016 Latest Caselaw 276 Del

$~62
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      TEST.CAS. 51/2010
MANU MARKANDE & ANR                                 ..... Petitioner
                          Through:     Mr. Rajiv Aneja, Adv.

                          versus

THE STATE & ORS                                     ..... Respondents
                          Through:     Ms. Anusha Ojha, Adv. for R-1.
                                       Mr. Vipin Kumar Gupta and Mr.
                                       Birjesh Singh, Advocates for R-4
                                       with R-4 in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
                  ORDER

% 14.01.2016

I.A.No.21049/2014(U/o 6 Rule 17 CPC by R-3 and 4)

1. Petitioners who are the son and daughter of late Smt. Suraksha

Markande claim letters of administration to the properties of their maternal

grandparents Sh. Pyare Lal Sharma and Smt. Shanta Sharma. The mother of

the petitioners Smt. Suraksha Markande expired on 16.3.1999 i.e before the

death of the grandfather and the grandmother who expired on 20.8.2000 and

10.12.2000 respectively. Essentially the petitioners claim rights as Class-I

legal heirs to the properties of their maternal grandparents and for which

TEST.CAS. 51/2010 page 1 of 9 purpose this testamentary case seeking letters of administration has been

filed.

2. By this application for amendment respondent no.3 and 4 in the

petition seek amendment of their written statement to add the following

pleas/stands:-

(i) The mother of the petitioners Smt. Suraksha Markande had in her life

time executed a family agreement dated 11.10.1993 whereby the mother

Smt. Suraksha Markande had waived of her rights in the property bearing

no. C-113, Naraina Vihar, New Delhi. It is contended that on account of the

negligence of the earlier counsel this most important plea was not taken

earlier. This plea which is now sought to be raised is supported by filing the

original agreement dated 11.10.1993 executed by Smt. Suraksha Markande.

(ii) Late Sh. Pyare Lal Sharma the grandfather died leaving behind his

Will dated 16.8.2000 as per which the petitioners received a sum of Rs.1

lakh each and gave up of their rights in the properties of their grandparents.

Accordingly, the written statement is sought to be amended with other

related facts that on account of the Will dated 16.8.2000 of late Sh. Pyare

Lal Sharma, petitioners have no rights to the properties of the grandparents.

TEST.CAS. 51/2010 page 2 of 9

(iii) The petition for letters of administration is pleaded to be barred by

limitation as the period of limitation is 3 years with respect to the probate

case and thus this letters of administration case which has been filed in the

year 2010 is time barred as the Will of late Sh. Pyare Lal Sharma is dated

16.8.2000.

(iv) The petition is also barred by limitation because the respondent nos. 3

and 4 had got mutated the suit property in their names in the year 2001 and

the claim of the petitioners to the suit property is hence time barred.

3. Learned counsel for the petitioners has very vehemently opposed the

amendments which are sought, by arguing that there is considerable delay in

filing of the present amendment application which has been filed in the year

2014 although the suit was filed 4 years back in 2010. It is also argued that

the family agreement dated 11.10.1993 relied upon by the respondent nos. 3

and 4 is a forged and fabricated document and that the Will dated 16.8.2000

of late Sh. Pyare Lal Sharma is also a forged and fabricated document.

4. It is trite that at the stage of deciding the amendment application

courts do not very minutely examine the merits of the matter because by

allowing an amendment only a case is allowed to be set up and it is not

TEST.CAS. 51/2010 page 3 of 9 that the case as is allowed to be set up by amendment is believed by the

court. Whether the case as stated in the amendment application sought to be

introduced is correct or not, will be a subject matter of decision in the suit,

and merits will be decided after framing of issues and leading of evidence at

the stage of final arguments in the suit. Courts ordinarily therefore do not

look at the merits of the amendment sought unless and until the merits

categorically show such a gross amount of malafides for the amendments

sought being disallowed. If two views are possible with respect to a

particular plea and a document, courts will ordinarily allow parties who have

committed mistake in the conduct of their cases to rectify the mistake by

allowing amendment of pleading to add the plea, subject of course to the

other side being monetarily compensated. Also, it is settled law that

amendment of a written statement is to be more liberally allowed then

amendment of a plaint because whereas amendment of plaint is

circumscribed by the principle that a totally new cause of action cannot be

introduced or a plea which is time barred cannot be inasmuch as a suit on the

basis of time barred plea would be dismissed and an application for

amendment of the written statement is essentially towards a plea of defence

TEST.CAS. 51/2010 page 4 of 9 to which limitation period does not apply and so also does not apply the

aspect of bringing in a new cause of action by amending of a written

statement which only contains defence. As per these principles let us

examine the amendments which are prayed for on behalf of respondent nos.

3 and 4.

5. So far as the first amendment prayed for as also the aspect of the Will

of Sh. Pyare Lal Sharma dated 16.8.2000 with its related pleas is concerned,

it is seen that the respondent nos. 3 and 4 have filed the original family

agreement dated 11.10.1993 as also the original Will dated 16.8.2000. In

my opinion today at this stage itself there is no ground to hold that this Court

should hold these original documents containing the signatures of the

executants and the witnesses of these documents to be forged without trial

being held. Whether these documents are genuine documents or are forged

and fabricated documents pertain to merits of the matter and at the stage of

allowing of amendment application, and which is only allowing a plea to be

set up, this Court ought not to give a summary finding on existence/validity

or otherwise of such documents. Therefore, amendments sought by placing

reliance upon the family agreement dated 11.10.1993 and the Will dated

16.8.2000 alongwith the other consequential factual amendments sought in

TEST.CAS. 51/2010 page 5 of 9 the written statement are allowed to be made.

6. So far as the plea of the respondent nos. 3 and 4 that the suit is time

barred because the date of the Will is 16.8.2000 and to question which legal

proceedings had to be initiated within three years of the execution of the

Will, but the present proceedings are initiated in the year 2010, this stand of

the respondent nos. 3 and 4 is ex facie misconceived because a limitation

period for arising of a cause of action to challenge the Will only commences

when the Will is set up and brought to the knowledge of the person who

ought to file legal proceedings to challenge the same. Nothing in this case

has been pointed out to this Court to show that the Will dated 16.8.2000 was

brought to the knowledge of the petitioners three years prior to the filing of

the present suit. Therefore, once the plea which is set up is ex facie

impermissible in law, I do not propose to allow this amendment to permit

the respondent nos. 3 and 4 to plead that the suit is barred by limitation as it

has been filed after three years of the Will dated 16.8.2000 or three years

after the death of the grandfather Sh. Pyare Lal Sharma on 20.8.2000.

7. So far as the fourth amendment sought is concerned of the suit being

barred by time on the ground of mutation having been done in favour of the

TEST.CAS. 51/2010 page 6 of 9 respondent nos. 3 and 4 of the Naraina Vihar property in 2001, this

amendment also cannot be allowed for the reason that not only mutation in

the municipal record does not confer title, but for any right to accrue on the

basis of the mutation which is an assertion to hostile title of adverse

possession, it must be shown that 12 years period have expired for the

petitioners to have lost the right to the property under law of adverse

prescription under Section 27 of the Limitation Act. Mutation is of the year

2001 and the present petition is of the year 2010 i.e the present proceedings

are filed before the expiry of 12 years and hence this plea of limitation of the

respondent nos. 3 and 4 is also ex facie misconceived and therefore

amendment accordingly sought is dis-allowed.

8. I may note that there is no gross delay in filing of the present

amendment application inasmuch as issues in this petition have not yet been

framed. After the amendment of CPC in 2002 courts have to strictly look to

the amendments prayed for being disallowed only when trial has

commenced and which is not so in the present case. The amendments which

are sought for by the respondent nos. 3 and 4 are to be allowed by the Court

as they are crucial to determine the matters in controversy and hence the

TEST.CAS. 51/2010 page 7 of 9 amendments to the extent as permitted above are allowed to be incorporated

in the written statement subject to payment of costs of Rs.25,000/- to the

petitioners.

9. Amended written statement be now filed within a period of six weeks

by the respondent nos. 3 and 4 confining the amendments thereto to the

extent as allowed by the present order, and replication to this amended

written statement be filed by the petitioners within a period of six weeks

thereafter as prayed. Costs also be paid to the petitioners in terms of the

present order alongwith the filing of the written statement by the respondent

nos. 3 and 4.

I.A is allowed to the limited extend stated above and disposed of

accordingly.

I.A Nos.13679/2013 (u/O 12 R 6 CPC by petitioner), 11249/2015(U/o 8 R 1A(3) CPC by R-3 and 4) and 15049/2015 (U/o 7 Rule 2 & 9 CPC by petitioner)

10. Counsel for the parties state that I.A Nos.13679/2013, 11249/2015

and 15049/2015 have become infructuous in view of disposing of I.A

21049/2014 and are therefore disposed of as such.

TEST.CAS. 51/2010 page 8 of 9 I.A.No.587/2016(U/o 7 Rule 11 CPC(d) by R-3 and 4)

11. This application is disposed of as not pressed with liberty to the

respondent nos. 3 and 4 to urge all grounds of facts and law at the stage of

final arguments in the suit.

Test Cas.51/2010

12. Parties will file additional documents, if any, in their power and

possession to the amendments as now allowed within a period of six weeks

and admission/denial thereof be done within a period of six weeks thereafter

by filing an affidavit attaching thereto an index of documents of the other

side containing an additional column of the endorsement of

admission/denial.

13. List before the Joint Registrar for marking of exhibits to the

documents on 27th April, 2016.

14. List in Court for framing of issues on 25th May, 2016.

                                             VALMIKI J. MEHTA, J

JANUARY 14, 2016
ib
TEST.CAS. 51/2010                                           page 9 of 9