Balraj Tahim & Anr vs Kaushalya Tahim & Ors.
2018 Latest Caselaw 539 Del

$~OS-2
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                              Date of decision: 22.01.2018
+      CS(OS) 980/2013 & I.A.No.8648/2017
       BALRAJ TAHIM & ANR                                 ..... Plaintiffs
                    Through             Mr.Shekhar Gupta and Mr.Pratyush
                                        Srivastava, Advs.

                           versus

       KAUSHALYA TAHIM & ORS.                ..... Defendants
                   Through  Mr.Kunal Madan, Adv.              for
                            Mr.Shekhar Dassi, Adv. for D-4a, 4b
                            and 4c.
                            Mr.J.S.Vohra, Adv. for D2 &D3

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
I.A.No.8648/2017
1.

This application is filed under Order 6 Rule 17 of the CPC seeking to amend the plaint.

2. In this case the issues have been framed on 29.04.2016. However, the plaintiffs have yet to lead evidence.

3. The plaintiffs have filed the present suit seeking preliminary decree of partition in favour of plaintiffs No.1 and 2 and against the defendants to declare that plaintiffs No.1 and 2 are entitled to receive 1/6th share in all the immovable properties as mentioned in para 2 of the plaint and in schedule 'A' attached to the plaint. Other connected reliefs are also sought. The properties in question are (i) Property No.K-39, Green Park (Main), New

Delhi-110016 built on a plot of land measuring about 200 sq.yds.; (ii) Property No.X-56, Green Park (Main), New Delhi-110016 built on a plot of land measuring about 130 sq.yds.; and (iii) Shop/stall No.1 allotted by NDMC at Yusuf Zia Market (Municipal Market), Outer Circle, Connaught Circus, New Delhi -110001.

4. The parties are the children/grand children of Late Sh.Om Prakash Tahim and Late Mrs.Kaushalya Tahim. Sh.Om Prakash Tahim passed away on 04.02.2009. Mrs.Kaushalya Tahim has also passed away after filing of the present suit. Plaintiff No.1 and defendant No.5 are the sons of Mr. and Mrs.Tahim. Defendant No.4 is the married daughter of Mr. and Mrs.Tahim. Defendant No.1 was Mrs.Kaushalya Tahim in the original plaint. Defendants No.2 and 3 are the widow and grandson of the predeceased son whereas plaintiff No.2 is the daughter of the deceased son.

5. It is pleaded in the plaint that Sh.Om Prakash Tahim were four brothers all being sons of Late Mr.Rulia Ram and Mrs.Manso Devi. The family of Mr.Rulia Ram along with his wife Mrs.Manso Devi and their four sons with their respective families were joint Hindu family having their joint family business. They lived together having joint kitchen in Punjab. It is the case of the plaintiffs that these properties had been purchased from the joint family funds and hence became part of the Joint Hindu Family properties.

6. Defendants No.1, 2, 3 and 5 have filed a written statement pointing out that the property No.K-39, Green Park (Main), New Delhi-110016 was purchased by Mrs.Kaushalya Tahim vide sale deed dated 18.06.1962 and the property No.X-56, Green Park (Main), New Delhi-110016 was purchased by Sh.Om Prakash Tahim vide sale deed dated 12.04.1993 from his own resources. Sh.Om Prakash Tahim vide a registered Will dated 12.09.2006

bequeathed all his rights with regard these two properties in favour his wife Mrs.Kaushalya Tahim. Hence, it is pleaded that the properties are the self acquired properties of the parents, namely, Mrs.Kaushalya Tahim and Sh.Om Prakash Tahim. Mrs.Kaushalya Tahim, defendant No.1 also, pleaded that the properties have been gifted by her to the other defendants and their children out of her own sweet will and choice vide gift/sale deeds. Copies of the gift/sale deeds have been filed along with the written statement.

7. To complete the narration of facts, it may also be mentioned that the plaintiffs thereafter also filed a suit being CS(OS) No.2728/2014 which was also listed today on the Board. In the said suit, they have sought a decree of declaration declaring the five gift deeds dated 05.11.2012, 09.11.2012, 03.12.2012, 03.12.2012 and 04.12.2012 executed by Mrs.Kaushayla Tahim as illegal and null and void.

8. Now the present application is filed seeking amendment of the plaint. By amendment application, the plaintiffs seek to add the plea that the sale deed dated 18.06.1962 in favour of Mrs.Kaushalya Tahim and sale deed datged 12.04.1993 in favour Sh.Om Prakash Tahim and Will dated 12.09.2006 alleged to have been executed by Sh.Om Prakash Tahim are of no consequences. It is pleaded that Sh.Om Prakash had no right to execute the alleged Will as he was not the absolute owner of the said properties inasmuch as the properties are the Joint Hindu Family properties.

9. The prayers are also sought to be added seeking a decree of declaration in favour of the plaintiffs and against the defendants that the suit properties are the Joint Hindu Family properties in the hands of Sh.Om Prakash Tahim and their children.

10. I have heard the learned counsel for the parties.

11. The learned counsel for the defendants have strongly objected to the application stating that the properties are the self acquired properties of Sh.Om Prakash Tahim and Mrs.Kaushalya Tahim. It is also pleaded that in view of the above noted pleadings, under the provisions of Prohibition of Benami Property Transaction Act, 1988, the widow i.e. Mrs.Kaushalya Tahim family would be the absolute owner of the suit property. It is also pleaded that the written statement was filed by the defendants in August, 2013. Now in 2017, the plaintiffs have sought to move the present amendment application seeking declaration regarding the sale deeds dated 18.06.1962, 12.04.1993 and Will dated 12.09.2006. Hence, the claim is barred.

12. As far as the plea of the defendants is concerned regarding suit/reliefs being barred under the provisions of Prohibition of Benami Property Transaction Act, 1988, I may only refer to the judgment of the Supreme Court in the case of Raj Kumar Bhatia v. Subash Chander Bhatia, 2018 (167) DRJ 19. In that case, the High Court dismissed the application for amendment of the written statement on the ground that the proposed amendments which were sought to be introduced do not lead a conclusion of the existence of a coparcenary property. The Supreme Court held as follows:

"11. .......This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. .........."

Hence, the plea about the proposed amendment being barred under the provisions of Prohibition of Benami Property Transaction Act, 1988 is

untenable at this stage. At this stage the court cannot go into the merits of the plea that are sought to be incorporated by way of amendment.

13. So far as the plea of limitation is concerned, a perusal of the plaint would show that the entire tenure of the argument raised by the plaintiffs is that the property is a joint family property which was purchased from the joint family funds inasmuch the family was joint since 1948. The plaint very clearly elaborates that grand parents Late Mr.Rulia Ram and Mrs.Manso Devi had four sons including Sh.Om Prakash Tahim. The said family was a joint Hindu family and also their business was joint. They lived together having joint kitchen in Punjab. Mr.Rulia Ram is said to be passed away in 1932 much before Hindu Succession Act, 1956 came into force and hence, the properties situated in Punjab devolved upon his Class-I legal heirs and his sons and they inherited the property as Karta of their respective own family. The family originally belonged to Toto Mazra Village in Hosiarpur, Punjab and shifted to Delhi in 1948.

14. It is further pleaded that four brothers namely Sh.Om Prakash Tahim and three brothers kept on living as joint Hindu family and having jointness in estate and also in their food and worship and together they were doing the tailoring business which was very popular under the name "Prominent Tailors." All the brothers and family used to live as one big family with joint kitchen. It is pleaded that respective brothers purchased the properties in Green Park from joint family funds and the common family business of Prominent Tailors. Similarly, the joint family property in Karol Bagh was sold by Sh.Om Prakash and three brothers in 1992. Thereafter they bought the property in Patel Nagar, New Delhi and then the property at X-56, Geeen Park (Main), New Delhi was purchased. It is pleaded in the plaint that the

said properties are also joint Hindu family properties in the hands of Sh.Om Prakash Tahim and his sons including his widow and one daughter. Similar is the plea regarding the shop allotted by the NDMC at Yusuf Zia Market (Municipal Market), Outer Circle, Connaught Circus, New Delhi.

15. By the present amendment, the plaintiffs are only seeking to add a prayer seeking additional relief of a decree of declaration that the suit properties are the joint Hindu family properties. The pleas have already been taken in great detail in the plaint. The facts on the basis of which the present relief is sought to be added are already on record. The nature of suit is not sought to be changed.

16. Regarding the issue of limitation reference may be had to the judgment of the Supreme Court in the case of Pankaja & Anr. v. Yellappa (dead) by LRs. & Ors., (2004) 6 SCC 415. The Supreme Court held as follows:

"14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case."

17. The amendments sought are necessary for the purpose of determining the real question in controversy between the parties.

18. In view of the fact that the nature of pleadings already envisages the contention that the properties are actual joint family properties, in my opinion, no prejudice is caused to the defendants in case the present amendment is allowed.

19. Reference may also 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;

(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."

20. In my opinion, the amendments sought by the plaintiff are necessary for adjudication of the disputes between the parties. Hence, the above noted amendment which is sought is bonafide.

21. Accordingly, I allow the present application subject to cost of Rs.15,000/-. Amended plaint be filed within four weeks from today. Defendants may file written statement to the amended plaint within four weeks thereafter.

CS(OS) 980/2013

22. List before the Joint Registrar for further proceedings on 10.04.2018.

JAYANT NATH, J.

JANUARY 22, 2018/v