Mrs. Harwant Kaur Sabharwal vs Mrs. Davinder Kaur Chadha & Ors
2018 Latest Caselaw 4927 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of decision: 21.08.2018
+      CS(OS) 693/2017
       MRS. HARWANT KAUR SABHARWAL              ..... Plaintiff
                       Through Mr.Sandeep Sethi, Sr.Adv.                          with
                               Mr.P.S.Bindra, Adv.

                           versus

       MRS. DAVINDER KAUR CHADHA & ORS ..... Defendants
                    Through Mr.Tanmay Mehta, Mr.Anurag Sahay
                            and Mr.Siddhant Singh, Advs. for D-
                            1 to 3.
                            Mr.Amit Sethi, Adv. for D-4.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, (ORAL)

IA No.3715/2018
1.

This application is filed seeking amendment in the plaint.

2. The plaintiff has filed the suit seeking a decree of specific performance of the Oral Family Settlement dated 30.08.2015. The plaintiff has also sought a decree of declaration declaring the Will dated 25.05.2017 as null and void; a decree declaring the Codicil dated 31.05.2017 as null and void. Further a decree is sought declaring the Nominee Transfer Form dated 07.04.2017, Bond Transfer Form dated 24.05.2017 and Gift deed dated 20.03.2017 as being null and void. Other connected reliefs are also sought.

3. In the present application, it is pleaded that if, in the eventuality, this

court comes to a conclusion that the plaintiff is not entitled to a relief of specific performance of the oral family settlement and this court declares the Will, Codicil, Nominee and Bond Transfer Forms and Gift Deed as null and void, in that eventuality, the assets as stated in the said oral family settlement would be treated as the personal assets of the father of the plaintiff and accordingly, as the father of the plaintiff had expired intestate, the same are to be partitioned amongst the plaintiff and the defendants. Hence, it is pleaded that the plaintiff seeks to add this alternative relief of partition stating that if for some reason the plaintiff is not entitled for specific performance of the family settlement dated 30.08.2015 and this court if also declares that the Will, Codicil, Nominee and Bond Transfer Form and Gift Deed as null and void, in that case, alternative relief of preliminary decree of partition of the estates of the late father as stated above is also sought.

4. The learned counsel appearing for defendant No.4 submits that he has no objection to this application.

5. The learned counsel for defendants No.1 to 3 has opposed the present application. He relies upon the judgment of the Supreme Court in the case of C.Beepathuma v. Velasari Shankaranarayana Kadambolithaya & Ors., AIR 1965 SC 241 to press his submission that on account of doctrine of election, the present amendment cannot be allowed. He also submits that the plaintiff has chosen to file the present application based on the oral family settlement. In case, the plea regarding the existence of the family settlement is dismissed by the court and the Will etc. are not accepted as legal and valid documents, in that eventuality, the rights of the plaintiff would get affected on account of the res-judicata/constructive res-judicata

and also under Order 2 Rule 2 CPC.

6. I may first deal with the pleas raised by the learned counsel for defendants No.1 to 3 regarding the doctrine of election. Reference may be had to the judgment relied by the learned counsel for defendants No. 1 to 3, namely, C.Beepathuma v. Velasari Shankaranarayana Kadambolithaya & Ors., (supra), where the court held as follows:

"17. The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland -

"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."

(see Maitland's Lectures on Equity, Lecture 18) The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows :

"Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.........

That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."

7. Reference may also be had to the judgment of the Supreme Court in the case of Transcore v. Union of India & Anr., (2008) 1 SCC 125, where the court held as follows:

"64. In the light of the above discussion, we now examine the doctrine of election. There are three elements of election, namely, existence of two or more remedies; inconsistencies between such remedies and a choice of one of them. If any one

of the three elements is not there, the doctrine will not apply. According to American Jurisprudence, 2d, Vol. 25, page 652, if in truth there is only one remedy, then the doctrine of election does not apply. In the present case, as stated above, the NPA Act is an additional remedy to the DRT Act. Together they constitute one remedy and, therefore, the doctrine of election does not apply. Even according to Snell's Principle of Equity (Thirty-first Edition, page 119), the doctrine of election of remedies is applicable only when there are two or more co- existent remedies available to the litigants at the time of election which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no application."

8. In this case original plaint seeks relief of specific performance of the Oral Family Settlement dated 30.08.2015. It also seeks declaration that Will, Codicil, Nominee Transfer Form and Bond Transfer Form be declared as null and void. In the eventuality, if for some reasons, if this court does not grant specific performance to the plaintiff and also grants relief of declaration declaring the Will, Codicil, Nominee Transfer Form and Bond Transfer Form and Gift Deed as null and void, in that eventuality, the relief which is now being sought, namely, partition of the property would get attracted. Clearly, there is no conflict of interest. Relief now being sought to be added by way of amendment cannot be said to be repugnant or inconsistent with the reliefs already sought in the plaint. Hence, there is no merit in the said objections raised by the learned counsel for defendants No.1 to 3.

9. Regarding the second objection raised by learned counsel for defendants No.1 to 3, namely, that the relief sought may also be hit by the principle of res-judicata/constructive res-judicata and also under Order 2

Rule2 CPC, these are the issues on merits which are not to be adjudicated upon at the time of amendment of pleadings.

10. I may look at the accepted principles of amendment. Reference may be had of the judgment of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and Ors., (2009) 10 SCC 84 wherein it was held as follows:-

"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application 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."

11. Similarly, the Supreme Court in the case of Abdul Rehman & Anr. Vs. Mohd.Ruldu and Others, (2012) 11 SCC 341 held as follows:-

"18. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice

between the parties."

12. The facts sought to be added are necessary for the purpose of determining the real question in controversy between the parties. The proposed amendments are necessary and proper for complete adjudication of the disputes between the parties. I may also note that the suit is at the preliminary stage. The issues has not yet framed. Hence, the application is allowed subject to cost of Rs.20,000/-. Amended plaint may be taken on record.

JAYANT NATH, J.

AUGUST 21, 2018/v Corrected and released on 07.09.2018.