Beena Sharma And Anr. vs Sarla Paul And Others
2016 Latest Caselaw 1823 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Date of decision: March 8, 2016
+                    IA 17395/2013 in CS(OS) 1651/2013


         BEENA SHARMA AND ANR.                ..... Plaintiff
                    Through: Mr.Harish Malhotra, Sr. Adv. with
                             Mr.R.K.Modi, Adv.

                           versus

    SARLA PAUL AND OTHERS                    ..... Defendants
                  Through: Mr.Rajesh Yadav, Adv. with
                           Ms.Richira Arora, Mr.Dhananjay,
                           Advs. for D1 and D2
                           Mr.Rakesh Kumar, Adv. for D3 &
                           D4
                           Ms.Saroj Bidawat, Adv. for UOI
                           Ms.Arti Bansal, Adv. with
                           Ms.Nandita Mishra, Adv. for D7
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.(Oral)

IA 17395/2013

1.

By this order, I would decide the application i.e. IA 17395/2013 filed

by the original plaintiff under Order 6 Rule 17 CPC read with Section 151

CPC for amendment of the plaint.

2. I may note here that vide order dated May 29, 2014 the defendant No.3

has been transposed as plaintiff in the suit. The amended memo of parties has

been filed which reveals Beena Sharma and Vinay Paul as the plaintiffs. I

may also note here the order dated May 29, 2014 has been challenged by the

defendants No.1 and 2 in O.A. No.137/2014 which is pending consideration.

The present application has been filed by the plaintiff No.1 before the order

dated May 29, 2014 was passed and shall be referred as "plaintiff" in this

order.

3. The plaintiff, by this application, is seeking to add paragraphs 18(a),

18(b) , 18(c) and 18(d) to 18(h), then, para 20A, para 21A and prayer clauses

(g) to (j) to the plaint.

4. The reply has been filed to this application by the defendant Nos. 1, 2

and 5.

5. Rejoinder to the replies filed by the defendant Nos. 1 and 2, has been

filed by the plaintiff.

6. It is the submission of Mr. Harish Malhotra, learned Senior Counsel

for the plaintiff that the property i.e. C-291, Defence Colony, New Delhi was

purchased by Late Wg Cdr Rajinder Paul, son of Late Niranjan Dass from

L&DO and the same was got converted from leasehold to freehold during the

lifetime of Late Wg Cdr Rajinder Paul. It is submitted that Late Wg Cdr

Rajinder Paul died intestate on November 4, 2002 and on his demise, the

property devolved on his wife Mrs. Sarla Paul (defendant No. 1) as well as his

two sons and two daughters, named in the suit, and thus, the plaintiff became

the co-owner of equal share in the suit property.

7. It is the case of the plaintiff in the application that the defendant Nos. 1

and 2 in their written statement have alleged that there exists a registered will

dated March 25, 1998, whereby the property in question has been bequeathed

to defendant No. 1, mother of the parties to the exclusion of all heirs.

According to the plaintiff, it is also alleged by the defendant Nos. 1 and 2 , in

their written statement that based on some family settlement dated April 3,

2010, the defendant Nos. 1 and 2 have already secured mutation in their

favour in the municipal records without furnishing the documents required by

MCD in law. It is also stated by the plaintiff that it has been alleged in the

written statement that the defendant No. 1 has gifted the second floor with

terrace rights of the said property to defendant No. 2 vide registered gift deed

alleged to have been executed by the defendant No. 1 in favour of defendant

No. 2 on January 11, 2011, registered as document No. 623 in book No. 1 on

pages 183 to 191 on January 13, 2011.

8. It is averred by the plaintiff in the application that no will was ever

executed and the father of the parties died intestate; the alleged will dated

March 25, 1998 is forged and fabricated which has now been produced by the

defendant Nos. 1 and 2 only to oust the plaintiff of her valuable right in the

property; the said will came to have been executed on March 25, 1998 has

now been produced for the first time in the present suit proceedings by the

defendant Nos. 1 and 2. It if further averred that the letter dated July 16, 2012

written jointly by plaintiff and defendant Nos. 3 and 4 to defendant No. 1

makes it abundantly clear that no will of father was ever propounded by

anyone. It is also averred that the subsequently gift deed allegedly executed

on January 11, 2011 based on the mutation is a void-ab-initio. The will and

the subsequent gift deed was never in the knowledge of plaintiff nor was it

ever disclosed to the plaintiff and it is for the first time that the plaintiff has

come to know about the aforesaid documents from written statement filed by

the defendant Nos. 1 and 2. It is averred that in view of the aforesaid facts

coming to the knowledge of the plaintiff on receipt of a copy of written

statement, it has become necessary to seek amendment of the plaint and

paragraphs sought to be added in the plaint [paras 18(a) to 18(h), para 20A to

the existing para 20 of the plaint, para 21A to the existing para 21 of the plaint

and prayers (g) to (j) to the exiting prayers in plaint] are as under:

"18(a) That the alleged will dated 25th March, 1998 is a forged and fabricated document which has been now produced by defendant no. 1 and 2 only to oust the Plaintiff of its valuable rights in the property C-291, Defence Colony, New Delhi. That the said will came to have been executed on 25th March, 1998 has now been produced for the first time in the present suit proceedings. That the said will is otherwise a totally forged and fabricated document and doesn't bear the genuine signatures of the father who was otherwise incapacitate of making any will on 25.03.98 as he was ill and had become of very weak mind due to his prolonged illness and thus was not of sound disposing mind on 25.03.98 as is also clear from the letter dated 16.07.12 executed jointly by plaintiff and defendant No.3 & 4.

l8(b)That the mutation effected with MCD on the strength of the said will is also invalid in view of the fact that no "No

Objection Certificate" was ever secured by defendant no. 1 from the legal heirs of late Wing Commander Rajender Paul. That the said mutation was effected by MCD in respect to the said property is thus totally a farce and the said mutation has to be revoked/cancelled. It is further submitted that the moment mutation effected by MCD is revoked the subsequent document namely Gift Deed alleged to have been executed by defendant no. 1 in favour of defendant no. 2 on 11th January, 2011 registered as document no. 623, in Book no. I, 10484 on pages 183 to 191 on 13th January, 2011 is void ab-initio. It is submitted that the defendants have cleverly worded the mutation effected in favour of defendant no. 1, Smt. Sarla Paul, the mother of the parties on the strength of the will of the father which is in clear violation of MCD's own instructions which clearly set out mutation to be effected only on furnishing the following documents:

I. Death Certificate II. Copy of Will or Succession certificate III. Indemnity Bond on Rs.100/-stamp paper.

IV. Affidavit on Rs.10/-stamp paper duly attested by Notary V. Clearance of up to date property tax

18 (c) That the gift deed executed by Smt. Sarla Paul was accepted by the Sub-Registrar and Registered on the strength of the mutation effected by MCD while mutation itself is illegal based on false and mis leading information & forged documents and thus liable to be revoked/cancelled.

That the Gift Deed has been cleverly drafted so as to camouflage the illegalities effected by defendant no. 1 and 2 in order to deprive the other legal heirs of Wing Commander Rajender Paul of their valuable rights in the properties. The mutation has been secured on the basis of an unnamed document dated 03/04/10 which is just a hand written note of defendant No.1 and is neither a WILL nor an undertaking nor even a family settlement is alleged to have been signed by all the family members. In the affidavit submitted to the South MCD the defendants have, however, used the said document dated 03.04.10 to be a 'family settlement'(unregistered cannot be looked into). The plaintiff never signed any such document nor gave any NOC. The mutation thus secured on the basis of

false information and forged documents is liable to be revoked/cancelled. The said document has not been signed by the plaintiff and the signatures are forged on the said document.

18(d) That the said undertaking which has 'been enclosed by defendant no. 1 was never signed by the Plaintiff as is being claimed and the said document alleged to have been executed on 3rd April, 2010 was notarized on 14th august, 2012 purely with the intent to grab the property and to oust the Plaintiff of her valuable rights in the property. The said undertaking as claimed by the defendants in terms of the English translation is claimed to be a "Will". Thus the mutation so effected on the strength of the said document is invalid as the defendant no. 1 is alive and such documents can only be acted upon after demise of the individual.

18(e) That the Collaboration Agreement claims executed on 15th June, 2O12 much prior alleged to have been effected by MCD.

l8(f) That the builder and the defendant no. 1 and 2 have connived with the officers of the MCD in getting the plans sanctioned on the strength of the mutation manipulated by giving false information and forged documents. The said mutation being bad, and the documents executed subsequently on the strength of the said mutation and the alleged will cannot be acted upon and totally contrary to law and are void ab-initio.

18(g)That the sanction plans have been secured on the strength of the mutation effected by the South Delhi MCD, gift deed and the collaboration agreement. That the mutation so effected and the affidavit of Vijay Paul claims that the document dated 3rd April, 2010 to be a "Family Settlement" and "Family Undertaking" is factually incorrect.

l8(h)That the alleged will dated 25th March, 1998 setup by defendant no. 1 and 2 is forged and fabricated document That Wing Commander Rajender Paul neither executed a will nor

the said will can be proved in accordance with law. That during his last ' years including the entire year of 1998 late Wing Commander Rajender Paul was under the influence of defendant no. 2 and was not keeping good health and was very weak. He was not having sound disposing mind and had become forgetful and as such could not have otherwise executed any will which can be legally valid and binding upon the parties in view of his ill health and thus the will is a forged and fabricated document and cannot be treated a legal and valid will after a lapse of nearly 14 years of having been executed or having seen the light of the day. That the mutation effected on the strength of the said will and on a family undertaking as being claimed by defendant no. 1 and 2 is contrary to the policies/circulars issued by MCD for effecting mutation in case of will. The said document dated 3rd April, 2010 in terms of the English translation is being treated as a will of defendant no. 1 thus cannot be read in any way an undertaking/family settlement effected by the parties in order to secure mutation of the properly or act in furtherance of the said will. Even if assuming the said document is treated to be a "Family Settlement" unregistered family settlement cannot be looked into for lack of registration and appropriable stamp fee not paid on the said document. In order to term it to be a Family Settlement the said document has to be duly registered with the Sub-Registrar in respect of immovable properties. Thus the said document even though the Plaintiff claims to be forged document cannot be treated either as a Family settlement or a Declaration and thus is bad in law. That the gift deed executed by the mother which has been registered as document no. 623,in Book No. 1, Volume no. 10484 on pages 183 to 191 on the strength of the mutation is bade in law and is void ab-initio. Thus the said gift deed which was duly registered bi the sub registrar cannot be treated as invalid That the plans sanctioned in respect of C-219, Defence Colony, New Delhi secured by Defendant no. 1 and 2 and builder, Defendant no.5 on the strength of the mutation of gift deed is totally bad in law in view of the fact that the mutation and the gift deed have not been validly executed and thus the sanctioned, plans are liable to be revoked and the construction being carried on by defendant no. 5 should be stopped forthwith.

XXX XXX XXX

20A That the cause of action accrued in favour of the Plaintiff and against the defendants when the defendants filed their written statement and have set up mutation of the property by defendant no. 7 in their favour. The cause of action further accrued when the Plaintiff through the written statement came to know of the Will dated 25.03.98 and Gift Deed dated 13.01.11. The cause of action is subsisting and continuing".

XXX XXX XXX

21A. That since the gift deed executed by defendant no. 1 in favour of defendant no. 4 which does not effect the Plaintiff has now seen the light of. the day . A fixed court of Rs. 1000/- is affixed on the said suit.

           XXX               XXX                XXX

                 g)    Pass a decree for declaration declaring that Gift

deed dated 13th January 2011 executed by Sarla Paul in favour of defendant No. 2 registered as document No. 623, in Book No. 1, Volume No. 10484 on pages 183 to 191 in respect of 2 nd floor with terrace rights of C-291, Defence Colony, New Delhi be declared as null and void and the same be revoked/cancelled having no effect on the share of the plaintiff in the said property and accordingly an order be passed cancelling the aforesaid document;

h) Pass a decree for declaration declaring that Will dated 25.03.98 produced by defendants as forged and null and void.

i) Mutation secured on the basis of gift deed in favour of defendant No. 2 be also revoked and cancelled since the gift deed itself was based on an illegal mutation.

j) Pass a prohibitory decree in favour of the plaintiff and against the defendant prohibiting the defendants from carrying on construction on the strength of the sanctioning plans obtained by defendant No. 1 & 5 by securing mutation on misrepresentation and also revoke the sanction plan of C-

291, Defence Colony, New Delhi obtained on the basis of false representation and the mutation and the gift deed being bad in law".

9. In the reply filed by the defendant Nos. 1 and 2 to the application, it is

stated that the proposed amendments sought, were in the knowledge of the

plaintiff at the time of filing of the suit and it cannot be said that in spite of

due diligence, the same were not in the knowledge of the plaintiff. It is

averred in the reply that the amendments cannot be sought by the plaintiff as a

matter of right. It is averred that the amendments sought are not necessary for

the purpose of determining the real question of controversy between the

parties.

10. It is further averred in reply, the plaintiff is changing the entire cause of

action as well as the nature of the suit, which is not permissible in law as the

original cause of action is also being substituted. The defendant Nos. 1 and 2

has denied the allegations of the plaintiff that Will dated March 25, 1998 and

the gift deed January 11, 2011 were never in the knowledge of the plaintiff.

The defendant Nos. 1 and 2 have denied the allegations of the plaintiff that

Wg Cdr Rajinder Paul has died intestate.

11. It is the case of the defendant Nos. 1 and 2 that the plaintiff had the

complete knowledge of documents and the Will of Late Wg Cdr Rajinder

Paul was never challenged by the plaintiff within the period of limitation.

12. The following submissions have been made by the defendant Nos. 1

and 2 in support of their stand in the application:

"(a) That the Plaintiff was always aware that wing commander Rajinder Paul had left behind a duly registered will dated 25.03.1998, registered as Document No.232g, in Addl. Book No.lll, Volume No.57, on pages 83-BS, registered with Sub- Registrar, New Delhi on 25.03.1gg8. By virtue of this Will, wing commander Rajinder paul bequeathed all his rights and interest in the House No.C-291, Defence Colony, New Delhi-110024 unto the Defendant No.1. It was specifically mentioned in the Will .that except Mrs. Sarla Paul, the present Defendant No.1 herein, none else shall have any right or claim whatsoever in respect of the estate of wing commander Rajinder Paul and any objection and claim shall be null and void in the face of the document (Will).

(b) That Wing Commander Rajinder paul died on 04.11.2002. After the death of late Wg. Cdr Rajinder Paul (Retd.), the Ground Floor and Second Floor with Terrace of the property No.C-291, Defence Colony, New Delha-110024, came to be devolved upon the Defendant No.1. The Defendant No.1 by virtue of the said bequest became an absolute owner of the said property, having all the rights, title, interest and entitlement to deal with the said property, in any manner she liked.

(c) That the Plaintiff had on innumerable occasions read the said will and was having a copy thereof with her, having been furnished more than a decade back.

(d) That subsequently, in order to keep the family harmony intact and expecting her four children to respect her and take care of her in old age, the Defendant No.1 prepared a document, without any nomenclature as such, on 03.04.2010. lt was mentioned in the said document that the Defendant No.1 wants to make a will and that the Ground Floor portion. would be given to her three children, namely, Mr. Vinay Paul (Defendant No.3), Mrs. Beena Sharma (Plaintiff) and Mrs. Neena Bhardwaj (Defendant No.4) and second Floor with terrace rights would be given to her eldest son Mr. Vijay Kumar Paul (Defendant No.2). The said document was

signed by all the four children on 03.04.2010, in acknowledgement of the fact that they all agree with the will made by their late father. In this manner, the plaintiff and the Defendant Nos.2 to 4 admitted the genuineness and authenticity of the will dated 25.03.1998 of their late father. The Will was binding on them. Nobody, including the Plaintiff, challenged the said Will.

(e) That the Plaintiff in total derogation and contravention of the document dated 0s.04.2010, after categoric acceptance of the will of her late father, issued a letter dated 16.07.2012 to the Defendant No.1, which was also signed by the Defendant Nos.3 and 4, mischievously alleging that their father late wing commander Rajinder paul has not left any will. The said letter was immediately responded by the Defendant No.1 vide her written reply dated 18.07.2012, reminding the Plaintiff that a Declaration was signed on 03.04.2010. She was reminded about the registered Will of late Wing Commander Rajinder Paul, whereby the said property had been bequeathed to the Defendant No.1.

f) That after receiving the reply dated 18.07.2012 of the Defendant No.1, the Plaintiff issued another letter dated 30.08.2012 to the Defendant No.1. A reading of the said letter would itself show that the plaintiff has always been well-aware of the Will of late Wing Commander Rajinder Paul as well as the Documen/Declaration dated 03.04.2010, though she erroneously claimed that the Declaration dated 03.04.2010, if any, was executed for limited purpose for maintaining peace and not to create any disputes relating to partition of the family property.

g) That vide notice dated 23.03.2013 issued by Shri Manish Raghav, Advocate of Law Consults, Advocates and Consultants, to the Defendant Nos.1 end 2 and Mr. Rajesh Khattar, S.S. Construction, the Plaintiff allegedly claimed that she is wholly unable to recollect of having any information about any existing Will of her revered father. The plaintiff allegedly claimed to have 1/5th undivided share

in the suit property. The plaintiff referred to her letter dated 30.08.2012, detailed herein-in-above, in her notice.

h) The notice dated 23.03.2013 of the Plaintiff was replied by the defendant No. 1 through her advocate Rajesh Yadav, vide reply dated 05.04.2013. In this reply, reference was made to the Will dated 25.03.1998 and the document dated 03.04.2010. In the said reply, reference was also made to letter dated 16.07.2012 of the plaintiff and reply dated 18.07.2012 of the defendant No. 1.

(i) That the challenge of the plaintiff to the Will, by way of amended prayer clause is barred by limitation, as she had full knowledge of the Will as demonstrated in the Written Statement as well as the facts stated hereinabove. Since the relief is patently time barred, therefore, no amendment is liable to be permitted to incorporate the relief of declaration for declaring the Will dated 25.03.1998 as forged and null and void".

13. The reply filed by the defendant No. 5 has also challenged the

amendments sought by the plaintiff in the application.

14. Mr.Harish Malhotra, learned Senior Counsel for the plaintiff, apart

from reiterating the stand taken by the plaintiff in her application, has drawn

my attention to para Nos. 11 and 12 of the plaint to contend that the plaintiff,

in her plaint itself has stated that the defendant No. 1 has propounded a forged

and fabricated will.

15. During the submissions, he has drawn my attention to the various

documents including the Will, the document dated April 3, 2010, the legal

notice, the letter dated July 16, 2012 written by the plaintiff along with Vinay

Paul and Neena Bhardwaj, so also the response of the defendant No. 1 dated

July 18, 2012 to contend that in the document dated April 3, 2010 and

response dated July 18, 2012, there was no reference to the date of the Will so

also to the date of the gift deed (in the later document). He states, even

though in the reply dated April 5, 2013 to the legal notice dated March 23,

2013 got issued by the plaintiff, defendant No. 1 has for the first time,

disclosed the date of the Will as March 25, 1998 of Late Wg Cdr Rajinder

Paul, the Advocate for the plaintiff had, in a further communication dated

May 10, 2013, asked the advocate of the defendant No. 1 to furnish the copy

of the Will dated March 25, 1998, gift deed, which request has not been

acceded to. Hence the cause of action to challenge the veracity of the Will and

gift deed, would be only when the copy of the same is surfaced. It is

immediately thereafter, the plaintiff without filing a replication has filed this

application seeking amendment of the plaint. He states that the Will being

invalid, no no-objection was ever secured by the defendant No. 1 from the

legal heirs of Late Wg Cdr Rajinder Paul and the mutation effected in respect

of the said property is invalid. It is submitted, the moment the mutation

effected by MCD is revoked, the subsequent document namely gift deed dated

January 11, 2011 would also became invalid. He states that the present

application is bona fide.

16. He would also contend that the plaintiff, in her rejoinder has denied,

her signatures on the document dated April 3, 2010, on which heavy reliance

is placed by the defendant Nos. 1 and 2. He states, this being a disputed

question of fact, needs to be decided at the time of trial. He also draw

sustenance from the prayer clause in the plaint to submit that as, in the

absence of availability of Will and the gift deed, the plaintiff had proceeded in

the plaint, on the premise that, that, Wg Cdr Rajinder Paul had died intestate,

and as such, the plaintiff is co-owner of the suit property and has accordingly

sought a declaration of being owner of 1/5 th share. According to him, even

the plea of limitation is a mixed question of fact and law and prayer for

amendment, would not be dismissed, at this stage, as such an issue, need to be

decided after trial, when better evidence would be available. He would rely

on the following judgments in support of her contention, which were filed on

March 4, 2016:

(i) 2006 (5) SCC 658 Bala Saria Construction (P) Ltd. Vs. Hanuman Seva Trust and Ors.

(ii) AIR 2014 SC 1476 Surjit Kaur Gillo and Anr. Vs. Adarsh Kumar Gillo and Anr.

17. On the other hand, Mr. Rajesh Yadav, learned counsel appearing for

the defendant Nos. 1 and 2 heavily relies upon the document dated April 3,

2010 to contend that the plaintiff being the signatory was aware of the Will

executed by the Late Wg Cdr Rajinder Paul. He would also state that in

response to the letter dated July 16, 2012, the defendant No. 1 on July 18,

2012 again made a reference to the Will of Wg Cdr Rajinder Paul and the

declaration signed by the plaintiff along with Mr. Vijay Paul and Neena

Bhardwaj. According to him, the plaintiff at page 65 of the documents filed

by the defendant Nos. 1 and 2, had acknowledged the declaration dated April

3, 2010. He would state that the plea of Mr. Malhotra denying the plaintiff's

signatures in the settlement dated April 3, 2010 is belied by this very

statement of the plaintiff and the amendment laying a challenge to the Will

dated March 25, 1998 of Wg Cdr Rajinder Paul despite being aware, is barred

by limitation and such an application should be summarily dismissed. That

apart, Mr. Yadav states, the defendant No. 1 in reply dated April 5, 2013 to

the notice, had made reference to the Will dated March 25, 1998 of Wg Cdr

Rajinder Paul, but still the plaintiff had not challenged them in the suit, which

itself, would make the prayer challenging the Will and gift by way of an

amendment, hit by the provisions of Order 2 Rule 2 CPC as on the date of

filing the suit, the plaintiff was aware of the date of Will being March 25,

1998 and gift deed dated January 11, 2011. He states, the application need to

be dismissed on that ground as well. He would rely upon the following

judgments in support of his contention:

(1) (2009) 10 SCC 84 Revajeetu Builders & Developers Vs. Narayanaswamy & Sons and Others (2) (1996) 7 SCC 486 Radhika Devi Vs. Bajrangi Singh & Ors.

(3) (2008) 14 SCC 364 Rajkumar Gurawara (Dead) through LRs Vs. S.K.Sarwagi & Company Private Limited & Another

(4) 1995 Supp (3) SCC 17 K. Raheja Constructions Ltd. & Another Vs. Alliance Ministries and Others

18. Learned counsel appearing for the defendant No. 5 reiterates the

submissions as made in the reply to the present application.

19. Having heard the learned counsel for the parties, there is no dispute on

proposition of law that if amendments sought to the suit, would be beyond

limitation, such amendments should not be allowed. It is also not in dispute

that the Will dated March 25, 1998 and gift deed dated January 11, 2011 have

been filed by the defendant No. 1 along with the written statement on

September 13, 2013. In the document dated April 3, 2010, where, the

plaintiff's signatures appears, a reference was made to the Will of Wg Cdr

Rajinder Paul, but, no date of Will was referred to. The date of Will was, first

revealed by the defendant No. 1 in her reply dated April 5, 2013. The

plaintiff in her plaint, refers to the Will dated March 25, 1998 and has made

averments that the same is forged and fabricated propounded with an

intention to defeat the right of the plaintiff. No doubt, Mr. Yadav has placed

reliance on the document dated April 3, 2010, but, the signatures have been

denied by the plaintiff in rejoinder. The reliance placed by Mr. Yadav on the

letter dated August 30, 2012 to contend the stand of the plaintiff is belied by

acknowledgement, is appealing, but, the submission of Mr. Malhotra that it is

the case of the plaintiff in the plaint in paras 11 and 12, which have been

reproduced hereunder, that the said Will has not seen the light of the day in

the last several years after the demise of the father of the plaintiff and has

been set up only to usurp the right, interest and claim of the plaintiff in the

property to her detriment, requires consideration.

"11. That while L/5 share of the defendant has clearly been admitted by defendant No.1 in her reply dated 5.4.2013, she has propounded a forged and fabricated WILL of plaintiff's father which is contrary to the fact. The said Will had not seen the light of the day in the last several years after the demise of the father of the plaintiff and has been set up only to usurp the right, interest and claim of the plaintiff in the property to her detriment. That the alleged Will has not been probated or acted upon nor has been shown shown to any one it seems the defendants have forged a Will in order to defeat the legitimate rights of the plaintiff in the property of her father.

12. The plaintiff through her attorney and counsel as well already replied to the above legal notice dated 05.04.13 asking the defendant No.1 to furnish copies of documents mentioned therein which request stands declined. Refusal to provide copies of documents namely alleged declaration' dated 03.O4.2010, copy of alleged registered WILL dated 25.03.98, alleged 'gift deed' etc by defendant No.1 leaves no scope for any doubt about the said documents having been forged by the defendant at the back of the plaintiff to usurp the share of the plaintiff. The entire

creation of documents is only to defeat the right of the plaintiff as she resides in USA.

Reply to the letter written on behalf of the plaintiff reg inspection of record file received from SMCD reads as under:

" That Sh Vijay Kumar Paul assessee of SF with terrace and Smt Sarla Paul assessee of GF of property in question have submitted their request not to reveal/give any copies or information relating to their property to any body" It further confirms that defendant No.1 and defendant No. 2 in connivance with defendant Nos. 5 and 7 are already through a mischief to harm the plaintiff s and are liable to be STOPPED from perpetuating further illegality".

20. Given the averments made, it is not the case of the defendant Nos. 1

and 2, despite notifying the date of the Will as March 25, 1998, no reference

was made by the plaintiff to the said Will in the plaint. The plaintiff did make

a reference to the Will dated March 25, 1998. The plea of Mr. Malhotra that

the plaintiff despite asking the copies of the Will and the gift from the

defendant No. 1, and failure of the defendant No. 1 to supply the same and in

the absence of a physical copy, there was no occasion for the plaintiff to seek

a prayer with respect to the Will and gift, is also appealing. In other words,

the existence of a Will is known, if it is shown/given which the defendants

have given in the written statement/documents. Assuming the Will and the

gift deed, had not been produced along with the written statement, the

defendants No.1 and 2 could not have proved their case and there was no

occasion for the plaintiff to amend the plaint. Given the plea taken in the

plaint, and the stand of the defendant Nos. 1 and 2 in the written statement

and filing of the Will and gift deed, rightly resulted in filing of this

application.

21. Even the plea of Mr. Yadav on Order 2 Rule 2 CPC is not tenable in

view of the explanation given by the plaintiff for seeking amendment of the

plaint. The plaintiff could have made a challenge to the Will and the gift deed

at the time of filing of the plaint, provided the same were in her possession.

The amendments sought would not change the nature of case as they relate to

the same cause of action relating to the suit property. It needs to be

determined in the trial, whether the Will is false and forged or genuine. That

apart, the plea of limitation as urged by Mr. Yadav also needs to be decided in

the trial being a question of fact given the nature of the pleadings.

22. Insofar as the judgments relied upon by Mr. Yadav are concerned, in

Revajeetu Builders & Developers (supra), the relevant paras i.e. para 31 and

63, on which reliance was placed by Mr. Yadav, reveal that the following are

the factors to be taken into consideration while dealing with the applications

for amendment:

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application".

23. There is no dispute on the proposition of law laid down by the Supreme

Court. What is important is, whether in the facts, the application under Order

6 Rule 17 CPC is justified. As I have held above, the same is justified.

24. In Radhika Devi (supra), the Supreme Court was concerned with a

case, where the appellant instituted the partition suit in the Court of

Sub-Ordindate Judge, Aurangabad for certain properties. The respondent

Nos. 16 to 20 therein, filed written statement on June 15, 1988 wherein, they

pleaded that Ramdeo Singh had executed and registered a gift deed in their

favour on July 28, 1978 bequeathing the properties covered thereunder. They

became owners of those lands and the appellant was bound by the same.

Pending the suit, the appellant filed an application under Order 6 Rule 17

CPC on November 11, 1992 seeking declaration that the gift deed was

obtained by the respondents illegally and fraudulently and therefore, it was

ineffective and does not bind the appellant. The Trial Court allowed the

petition; the High Court in revision, set aside the order directing the

amendment of the plaint. The Supreme Court, in further appeal, while

rejecting the appeal in para 6 was of the view that the gift deed was executed

and registered as early as July 28, 1998, which is a notice to everyone. That

apart,, I note, the respondents in the written statement filed on June 15, 1988

have specifically pleaded about the gift being made by Ramdeo Singh in their

favour. Even after the filing of the written statement for 3 years, no steps

were taken to file an application for amendment of the plaint, thereby, accrued

right in favour of the respondent, would be defeated by permitting the

amendment in the plaint. The Supreme Court upheld the order of the High

Court. On facts, the judgment is distinguishable.

25. In Rajkumar Gurawara (Dead) through LRs (supra), wherein Mr.

Yadav relied upon para 18 of the judgment, the Supreme Court has held as

under:

"18. Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and

intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge".

The Supreme Court on facts, held that the plaintiff has failed to satisfy the

conditions prescribed in Proviso to Order 6 Rule 17 CPC and also observed,

even on merit, his claim is liable to be rejected. The same was on the facts of

that case and would not be applicable to the facts of the present case.

26. In K.Raheja Construction Ltd. and Anr. (supra), in para 4, the

Supreme Court has held as under:

"4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent".

Suffice to state, the aforesaid judgment is distinguishable on facts and the

same would not be applicable, more particularly, keeping in view the facts of

this case.

27. In view of the discussion above, the application under Order 6 Rule 17

CPC filed by the plaintiff is allowed. The plaintiffs to file amended plaint,

incorporating the amendments, within two weeks from today along with the

difference of the Court Fees. The amended written statements by the

defendants be filed within four weeks thereafter. Replication before the next

date of hearing on May 2, 2016, before the Joint Registrar.

28. The application is disposed of.

(V.KAMESWAR RAO) JUDGE MARCH 8, 2016 akb