Delhi High Court
Yashaswi Aggarwal And Anr. vs Sh. Rakesh Aggarwal And Ors. on 12 February, 2018
$~OS-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12.02.2018
+ CS(OS) 1561/1994
YASHASWI AGGARWAL AND ANR. ..... Plaintiffs
Through Mr.Jeevesh Nagrath and Mr.Pratham
Sharma, Advs.
versus
SH. RAKESH AGGARWAL AND ORS.F+ ..... Defendants
Through Mr.Ankit Sharma, Adv. for D-8.
Mr.Lalit Gupta, Adv. for D-9 to D-13
Mr.Sanjeev Sindhwani, Sr. Adv. with
Mr.Manish K.Srivastava, Adv. for
D-14.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
IA No.1899/2018
1. This application is filed under Order VI Rule 17 CPC seeking
amendment of the plaint. It has been pleaded in the present application that
the parties to the present suit are the grandsons of late Shri Lala Manohar
Lal. The suit is filed for partition of two properties in Sunder Nagar. It has
also been pointed out that the original ancestor Late Shri Rai Saheb Chiranji
Lal had left behind a vast estate which is said to be a joint family property
which was subject matter of a suit CS(OS)387/1973 where a preliminary
decree was passed on 19.10.1978. The family of Late Shri Manohar Lal is
CS(OS) 1561/1994 Page 1
said to have appropriate shares in the said properties in terms of the
preliminary decree dated 19.10.1978. By the present amendment application
the plaintiff seeks to enlarge the scope of the present suit by also seeking
partition of the alleged HUF properties which were left behind by late Shri
Rai Saheb Chiranji Lal and in which the parties to the present suit also have
rights.
2. Learned senior counsel appearing for defendant No.14, whose
submissions are also adopted by other learned counsel appearing for the
defendant No8 and defendants No. 9 to 13, states that the properties which
are subject matter of CS(OS)387/1973 where a preliminary decree has been
passed cannot be jumbled up into the present suit as that would change the
entire nature of the suit. It is pleaded that the plaintiff is free to take steps as
per law regarding his share in the properties which are subject matter of
CS(OS)387/1973.
3. I may note that the present suit is filed for partition of the two
properties 42-44, Sunder Nagar, New Delhi which were bought in the name
of the three daughters-in-law of late Sh. Lala Manohar Lal. It has been
pleaded in the plaint that the said properties were purchased in the name of
defendant No.3, by her husband Late Shri Mai Dayal Aggarwal out of joint
family fund and income which he had been receiving for a considerable
period before his marriage in 1949. Similar is the position regarding the cost
of construction. Hence, it is pleaded that the said two properties are HUF
properties and the plaintiffs have got 8/27th share in the properties. By the
present amendment application what the plaintiff seeks to do is to add
additional properties being subject matter of the suit for partition being
CS(OS)387/1973 and in which the plaintiffs also have a share in view of a
CS(OS) 1561/1994 Page 2
preliminary decree that has been passed in that suit. The properties which
are subject matter of CS(OS)387/1973 have been reproduced in paragraph 2
of the plaint as follows:-
i) Property bearing No.14-F, Connaught Place, New Delhi which
has four shops on the ground floor which were on rent and there
was residential accommodation available on the first floor;
ii) Five garages in Deputy Ganj, Sadar Bazar, Delhi;
iii) Ten houses in Sadar Bazar,. Delhi;
iv) Two brick kilns at Kalka and Mathura;
v) Groves at Dehra Dun;
vi) 50% share-holding in Ram Laxman Sugar Mills,Mahi-Ud-Din
Pur, U,P,
vii) Substantial share-holding in Upper Doab Sugar Mill;
viii) Commercial buildings at Motia Khan, Delhi;
ix) Commercial buildings at Nabi Karim, Delhi;
x) Houses at Sarai Rohilla, Delhi;
xi) About 175 quarters at Palam Village, Delhi.
4. It is quite clear that the framework of the present suit is the two
Sunder Nagar properties bought in the name of three daughters-in-law of
late Shri Manohar Lal. Plaintiff sought partition of these properties on the
ostensible ground that they were bought from joint family funds. The fact as
to whether these two properties are joint family properties or the self
acquired properties of defendants/daughters-in-law of late Sh. Manohar Lal
is a highly contested issue.
Properties which are now sought to be added for seeking partition
belong to the estate of the ancestor Late Shri Rai Saheb Chiranji Lal. Late
Shri Rai Saheb Chiranji Lal was survived by four sons including Late Shri
Manohar Lal whose branch are parties to the present suit. The said
properties are joint family properties belonging to the larger family. The said
suit CS(OS)387/1973 is still pending for passing of a final decree of
CS(OS) 1561/1994 Page 3
partition inasmuch as only a preliminary decree has been passed. Hence, the
branch of Late Shri Manohar Lal who are parties to the present suit do not
have any defined share in the suit properties which are subject matter of
CS(OS)387/1973. CS(OS) 387/1973 has many other parties other than the
branch of Sh. Manohar Lal.
5. It is quite clear that allowing the present application would change the
entire nature of the suit. The main issue in the present suit is as to whether
the two properties in Sunder Nagar are HUF properties and if so, are liable
to be partitioned by the present suit filed by the plaintiffs who were minors
at the time of institution of the suit. The properties which are now sought to
be brought in by this amendment application belong to the estate of late Sh.
Rai Saheb Chiranji Lal who was survived by four sons including late Sh.
Manohar Lal. The issues that would arise for adjudication and the evidene
required are totally different for the two set of properties.
6. Reference may be had to the judgment of the Supreme Court in the
case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons
& Ors, (2009) 10 SCC 84. The Supreme Court held as follows:-
"63. On critically analyzing 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;
CS(OS) 1561/1994 Page 4
(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.
These are some of the important factors which may be
kept in mind while dealing with application filed under Order
VI Rule 17. These are only illustrative and not exhaustive."
7. Clearly the proposed amendment would fundamentally change the
nature and character of the case and cannot be allowed.
8. It would be for the plaintiffs to take steps, as per law, regarding their
claim on the share of the properties left behind by late Shri Rai Saheb
Chiranji Lal, which are subject matter of CS(OS)387/1973.
9. The application is dismissed.
CS(OS) 1561/1994
List on 22.2.2018.
On that date all applications under Order 7 Rule 11 CPC shall be
taken up.
JAYANT NATH, J.
FEBRUARY 12, 2018/n
CS(OS) 1561/1994 Page 5
