Punjab-Haryana High Court
Manoj Kumar Sharma And Ors vs Manju Kaushik And Ors on 18 December, 2023
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C. R. No. 3340 of 2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 3340 of 2023
Pronounced On : December 18, 2023
Manoj Kumar Sharma and others .... Petitioners
vs.
Manju Kaushik and others .... Respondents
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. Ashok Aggarwal, Senior Advocate
with Mr. Himanshu Arora, Advocate
and Mr. Mukul Gupta, Advocate
for the petitioners.
Mr. Amit Jain, Senior Advocate
with Mr. Aryaman Thakur, Advocate
and Mr. Anupam Mathur, Advocate
for respondents no.1 and 3.
* * *
GURBIR SINGH, J. :
1. Challenge in this revision petition is to the order dated
19.11.2022 (wrongly mentioned as 15.10.2022) (Annexure P-1), passed by
learned Civil Judge (Junior Division), Gurugram (for brevity - Trial Court),
whereby application moved by the petitioners/defendants no.4, 6 and 7
(hereinafter referred to as - the defendants), seeking amendment of written
statement, has been dismissed.
2. The brief facts of the case are that plaintiffs/respondents no.1 to
3 (hereinafter referred to as - the plaintiffs) filed a suit for declaration and
partition against the defendants, seeking consequential relief of permanent
injunction inter alia on the ground that the suit property was ancestral
property in the hands of their father late Shri Ravi Dutt Sharma, when he
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inherited the same from his father late Shri Ram Chander Bhardwaj and
plaintiffs have co-parcenary rights in the suit property. The plaintiffs have
1/8th share each i.e. 3/8th share in the suit property. The decree dated
10.06.1983 and mutation in the revenue record, pursuant to the said decree,
are illegal, null and void and not binding upon the plaintiffs as the said
decree was result of fraud. The sons of late Shri Ravi Dutt Sharma did not
acquire any land during life time of Shri Ravi Dutt Sharma on the basis of
said decree, which was never acted upon.
3. The defendants contested the suit, filed written statement and
submitted that the plaintiffs have no right in the ancestral property and they
were not co-parceners, when Shri Ravi Dutt Sharma died in the year 1966.
Shri Ravi Dutt Sharma, in the family settlement, made all his five sons as
joint owners of the suit property and said family settlement was confirmed in
the judgment and decree dated 10.06.1983, passed by the competent Court.
Since Shri Ravi Dutt Sharma died prior to the year 2005, the plaintiffs being
daughters, could not have become the co-parceners in the suit property.
4. The written statement was originally filed on 29.04.2014.
Thereafter, the plaintiffs sought amendment of the plaint, which was allowed
vide order dated 17.10.2016. The defendants made the statement that
written statement originally filed by them be read as amended written
statement. Later, defendants moved application dated 08.04.2021, seeking
amendment of their written statement. Plaintiffs contested the application
and filed reply to the application. However, the said application was
dismissed vide impugned order dated 19.11.2022.
5. Learned senior counsel appearing for the defendants has
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submitted that Civil Suit(OS) No.110 of 2021 by Baby Aranyee Sharma
against defendants and others was filed and is pending in the Hon'ble High
Court of Delhi for partition and other reliefs. The suit property of this case
is also subject matter of that suit. While preparing written statement for
filing in that suit, when her uncle Keshav Dutt Sharma was searching the
documents, he found registered Will dated 27.04.1966, executed by late Shri
Ram Chander Bhardwaj in favour of his three sons namely Ravi Dutt
Sharma, Vishnu Dutt Sharma and Keshav Dutt Sharma. As a result of
consultation with senior Advocates, it came to their knowledge that the suit
property in question was never ancestral property in the hands of late Shri
Ravi Dutt Sharma or the defendants. The written statement filed in the
instant case was due to lack of understanding of Hindu Law and because of
some communication gap between the counsel concerned and the defendants
resulting in an incorrect opinion provided to the defendants. They could not
take the plea that late Shri Ram Chander Bhardwaj, during his lifetime, was
the sole and absolute owner of the suit property, having purchased the same
from his own funds. He had left behind registered Will dated 27.04.1966.
The property, which came in the hands of his sons, was self-acquired
property. There was an oral family partition between said three sons,
pursuant to which Late Shri Ravi Dutt Sharma became owner of the suit
property.
6. It is further argued that Court can allow any party to amend the
pleadings at any stage of proceedings for the purpose of determining real
controversy between the parties if the prayer is bona fide one and there is no
serious injustice or irreparable loss caused to the other side. There cannot be
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any doubt about Will dated 27.04.1966, which is registered document. The
said Will was not in the knowledge of defendants earlier. So, there was no
reason to produce the same earlier. The production and proving of Will
executed by late Shri Ram Chander Bhardwaj is essential and necessary
document. It is further argued that purpose of allowing amendment is to
minimize the litigation and for promoting the ends of justice. The proposed
amendment is necessary for just decision of the case. The learned senior
counsel for the defendants has relied upon judgments of Hon'ble Supreme
Court in Life Insurance Corporation of India vs. Sanjeev Builders
Private Limited and another reported as 2022 AIR (Supreme Court)
4256 and in Baldev Singh and others vs. Manohar Singh and another
reported as (2006) 6 Supreme Court Cases 498. Learned counsel has also
relied upon judgments passed by this Court in Aadish Aggarwal vs.
Brijeshwar Swaroop reported as 2018 (2) Law Herald 1822 and in Sagar
Singh Slathia vs. Surinder Pal Singh reported as 2009(3) R.C.R.(Civil)
37.
7. Learned counsel for the plaintiffs has argued that trial of the
case has already commenced. The issues have been framed on 15.02.2017
and the case was listed for evidence on 06.03.2017. Thereafter, number of
witnesses have been examined by the plaintiffs. It is further argued that the
application has been moved after many years of filing of written statement.
The defendants now want to withdraw the admission, which has already
been made by them that the suit property is ancestral. There had been
several rounds of litigation between the parties and plea of the alleged Will
has never been taken by the defendants. Reliance in support of the aforesaid
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contentions has been placed on Pandir Malhari Mahale vs. Monika
Pandit Mahale and Ors. reported as 2020(11) SCC 549, Ajendraprasadji
N. Pande & Anr. vs. Swami Keshavprakeshdasji N. & Ors. reported as
2007(1) RCR(Civil) 481, Vidyabai & Ors. vs. Padmalatha & Anr.
reported as 2009(1) RCR(Civil) 763, Jeet Singh vs. Charanjit Singh and
others reported as 2021(2) PLR 292, M/s Batta Provisions Store and
others vs. Darbari Lal (died) through his LRs and others reported as
2022(4) RCR(Civil) 193 and Bhagirath @ Bhaga (deceased) thr. LRs vs.
Ranjit Singh and others reported as 2022(4) ALL MR 45.
8. I have heard submissions made by learned counsel for the
parties and perused the case record.
9. Recently, in the case of Sanjeev Builders (supra), the law of
amendment has been summed up as under :-
"70. Our final conclusions may be summed up thus :
(i) Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for
application thereof are satisfied and the field of
amendment of pleadings falls far beyond its
purview. The plea of amendment being barred
under Order II Rule 2 CPC is, thus, misconceived
and hence negatived.
(ii) All amendments are to be allowed which are
necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word "shall", in the
latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
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(i) if the amendment is required for effective
and proper adjudication of the controversy
between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in
injustice to the other side,
(b) by the amendment, the parties seeking
amendment does not seek to withdraw
any clear admission made by the party
which confers a right on the other side
and
(c) the amendment does not raise a time
barred claim, resulting in divesting of
the other side of a valuable accrued
right (in certain situations).
(iv) A prayer for amendment is generally required to
be allowed unless
(i) by the amendment, a time barred claim is
sought to be introduced, in which case the
fact that the claim would be time barred
becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the
suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a
valid defence.
(v) In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be
compensated by costs.
(vi) Where the amendment would enable the court to
pin-pointedly consider the dispute and would aid
in rendering a more satisfactory decision, the
MONIKA prayer for amendment should be allowed.
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(vii) Where the amendment merely sought to introduce
an additional or a new approach without
introducing a time barred cause of action, the
amendment is liable to be allowed even after
expiry of limitation.
(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material
particulars in the plaint.
(ix) Delay in applying for amendment alone is not a
ground to disallow the prayer. Where the aspect of
delay is arguable, the prayer for amendment could
be allowed and the issue of limitation framed
separately for decision.
(x) Where the amendment changes the nature of the
suit or the cause of action, so as to set up an
entirely new case, foreign to the case set up in the
plaint, the amendment must be disallowed. Where,
however, the amendment sought is only with
respect to the relief in the plaint, and is predicated
on facts which are already pleaded in the plaint,
ordinarily the amendment is required to be
allowed.
(xi) Where the amendment is sought before
commencement of trial, the court is required to be
liberal in its approach. The court is required to
bear in mind the fact that the opposite party would
have a chance to meet the case set up in
amendment. As such, where the amendment does
not result in irreparable prejudice to the opposite
party, or divest the opposite party of an advantage
which it had secured as a result of an admission by
the party seeking amendment, the amendment is
required to be allowed. Equally, where the
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amendment is necessary for the court to effectively
adjudicate on the main issues in controversy
between the parties, the amendment should be
allowed. (See Vijay Gupta v. Gagninder Kr.
Gandhi & Ors., 2022 SCC OnLine Del 1897)."
10. In case Ajendraprasadji N. Pande (supra), the amendment of
written statement was disallowed by Hon'ble Apex Court because of the
reason that the issues had already been framed, evidence of three witnesses
was over and the documentary evidence had already been tendered. In case
Baldev Singh (supra), trial of the case had yet not commenced and it was
opined by Hon'ble Supreme Court as under :-
"17. Before we part with this order, we
may also notice that proviso to Order 6 Rule 17 of
the CPC provides that amendment of pleadings
shall not be allowed when the trial of the Suit has
already commenced. For this reason, we have
examined the records and find that, in fact, the
trial has not yet commenced. It appears from the
records that the parties have yet to file their
documentary evidence in the Suit. From the
record, it also appears that the Suit was not on the
verge of conclusion as found by the High Court
and the Trial Court. That apart, commencement of
trial as used in proviso to Order 6 Rule 17 in the
Code of Civil Procedure must be understood in the
limited sense as meaning the final hearing of the
suit, examination of witnesses, filing of documents
and addressing of arguments. As noted herein
after, parties are yet to file their documents, we do
not find any reason to reject the application for
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amendment of the written statement in view of
proviso to Order 6 Rule 17 of the CPC which
confers wide power and unfettered discretion to
the Court to allow an amendment of the written
statement at any stage of the proceedings."
11. It is true that before the amendment is allowed, the Court
should satisfy itself whether such an amendment is necessary for
determining the real controversy between the parties. The Court is required
to weigh the prejudice or injustice, which would be caused to the other side.
If that party can be compensated with costs, then there is no harm in
allowing the amendment but if an irreparable loss is going to be caused to
the other side, then such an amendment cannot be allowed. Amendment of a
written statement is to be liberally construed than amendment of a plaint.
The Court should not refuse bona fide and legitimate amendment and at the
same time, it should not allow mala fide or dishonest amendment. If there
was suit on intended cause of action but is barred by limitation on the date of
filing of application, such amendments should be rejected. If amendment is
necessary for just decision of the case in order to do justice between the
parties, then such amendment is required to be allowed, even after
commencement of the trial, as held in the case of Baldev Singh (supra).
12. Keeping in view the above legal position and applying the same
to the case in hand, plaintiffs no.1 to 3 have filed a suit for declaration,
partition, with consequential relief of permanent injunction on the ground
that plaintiffs and defendants no.1 to 7 are the members of the Hindu Joint
Family. Pt. Ram Chander Bhardwaj was owner in possession of the
ancestral and coparcenary agricultural land comprised in suit land which is
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the property of Joint Hindu Family and the properties are in joint possession
of the plaintiffs and defendants no.1 to 7. The properties originally belonged
to Pt. Ram Chander Bhardwaj - grand father of plaintiffs. After his death,
the properties, mentioned at i) to vii) in para no.3 of the plaint, fell to the
share of Shri Ravi Dutt Sharma, as per family settlement. Shri Ravi Dutt
Sharma died in the year 1996 leaving behind his eight legal heirs. So, share
of all the plaintiffs in all the afore-mentioned properties is 1/8 th share. No
partition ever took place amongst his legal heirs since he wished that till his
wife Smt. Vidya Devi is alive, all the aforesaid properties be kept joint.
Smt. Vidya Devi - mother of plaintiffs/respondents no.1 to 3 died in the year
2012. The plaintiffs acquired 1/8th share each in the aforesaid properties i.e.
properties of their father. Petitioners/defendants no.4, 6 and 7 filed written
statement raising preliminary objection that the suit is barred by limitation
and the plaintiffs have no locus standi to file the suit. Shri Ravi Dutt Sharma
died in the year 1996. Since that date, daughters have no right in the suit
property as they were not coparceners. Shri Ravi Dutt Sharma suffered
decree admittedly on 10.06.1983, on the basis of family settlement, arrived
at between him and his sons. The plaintiffs had been seeing the sons of Shri
Ravi Dutt Sharma as owners in possession of the suit property, who were so
recorded in the revenue record, but they never challenged it for more than 30
years. It is denied that the plaintiffs and defendants are members of Joint
Hindu Family. Para no.2 of the plaint was replied as matter of record, in
which it was written that Pt. Ram Chander Bhardwaj was owner in
possession of the properties mentioned in the said para as ancestral and
coparcenary agricultural land. Other averments were denied. Defendants
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no.4, 6 and 7 moved application dated 08.04.2021 to substitute preliminary
objection no.2. The preliminary objection no.2 in the written statement filed
on 29.04.2014 is as under :-
"2. That the plaintiffs have no locus standi to
file the present suit. Admittedly Shri Ravi
Dutt Sharma died in the year 1996. Till that
date daughters had no right in the ancestral
property, as they were not coparceners.
Ravi Dutt suffered the decree admittedly on
10.06.1983 on the basis of family settlement
arrived at between him and his sons who
constituted a joint Hindu family. Thus, the
plaintiffs have no locus standi to challenge
the said decree."
13. Now, defendants no.4, 6 and 7 want to substitute the following
preliminary objection no.2 :-
"2. Late Sh. Ram Chandra Bharadwaj
was the sole and absolute owner of the entire land
at Gurgaon. All his rights in the said land were
bequeathed upon his three sons namely Sh. Ravi
Dutt, Sh. Vishnu Dutt, and Sh. Keshav Dutt as per
his last will and testament dated 27-4-1966. This
will was registered in the office of Sub-Registrar
as Document 482 Book No. III Volume No. 9 at
pages 44 to 46 on 08.09/1966- Sh. Ram Chandra
Bharadwaj died on 05.12.1967 and thereafter his 3
sons named above became owner of all his
properties including the land at Gurgaon. In the
revenue records also the land was
mutated/transferred in the name of said 3 persons
on the basis of the said registered will. When
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property is bequeathed by way of Will by Late Sh.
Ram Chander to his sons, it became self acquired
property in the hands of his said three sons and it
is so mentioned in the Will also.
There was an oral partition amongst the three sons
of Late Sh. Ram Chander on 05.12.1978 to
separate 1/3'd share of each of them pursuant to
which Sh. Ravi Dutt became owner of the
following lands :-
i. Agricultural land measuring 108 kanals 19
marlas, Khewat No.147, Khatoni no.200,
Rect. No.8, Killa no.6(7-7),7 (8-16 0, 11/2
(1-14), 14(6-0),15(8-0), 16(8-0), 17(8-0),
18(8- 0), 19 (7-18), 20/1 (3-3) 20/2 (0-12),
22/2 (2-15), 23 (7- 18), 24 (8-0), 25(8-0),
no.9, Killa no. 15/2/2 (0-3), 16/2 (3-15),
Rect no.11, Killa no.3/2 (3-12), 4/1 (4-0),
51/2 (1-6), vide mutation no.579 situated in
revenue estate of Village Silokhra, Tehsil
and District Gurgaon.
ii. 1/3rd share out of total agricultural land
measuring 16 Kanals bearing Khewat
no.147, Khata no.200, Rect no.11, Killa no.
6(6-5), 7/2/1 (2-3), 8/2 (0-10), 26 (1-12),
Rectangle no.12, Killa no.27 (5-10), vide
mutation no.578, situated in the revenue
estate of village Silokhra, Tehsil and District
Gurgaon.
An oral family settlement took place on 17.05.1980
between the five sons namely Sh. Vinod Kumar, Sh.
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Pramod Kumar, Sh. Subodh Kumar, Sh. Amod
Kumar and Sh. Manoj Kumar and their father Sh.
Ravi Dutt pursuant to which all the five sons
became joint owners of the entire land which had
earlier fallen to the share of Late Sh. Ravi Dutt. In
the said oral family settlement, no right in the said
land was retained by Sh. Ravi Dutt.
Part of this land was acquired and proceedings for
compensation and enhancement were Initiated by
Sh. Ravi Dutt and by his said five sons. The
remaining land was proposed for acquisition and a
notification under Sec.4 of The Land Acquisition
Act was issued. This proposed acquisition was
challenged by the said five brothers and as per
judgment dated 27.01.2011 writ petition
no.6081/1963, notification was quashed and the
land continued to belong and owned by these five
brothers.
A suit for Declaration was also filed by the five
sons against their father Sh. Ravi Dutt to declare
that after the family settlement held about three
years back Sh. Ravi Dutt was not left with any
right, title or interest in the said land and that it
belongs to his five sons only. Sh. Ravi Dutt
appeared in the said suit and admitted the calm of
his five sons pursuant to which a judgment and
decree dated 10.06.1993 was passed by Sh. R.S.
Behmani, Sub-Judge, IInd Class, Gurgaon in sult
no. 377/1983 titled as Sh. Vinod Kumar and Ors.
Versus Sh Ravi Dutt. As such, the said property
has always remained self acquired property in the
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hands of these five persons. There has been no
partition of the said properties amongst these five
persons till date. By no stretch of imagination, the
said land ever became ancestral or HUF property.
After passing of the Hindu Succession Act and
particularly Sec. 8 of the said Act, Inheritance of
even the ancestral properties does not result in
creation of an HUF or ancestral property. Such
Inheritance is as self acquired property in the
hands of the successor and not as ancestral
property even if the succession is with respect to
an ancestral property.
A bare perusal of the above confirms that the suit
property never became ancestral property and
therefore plaintiffs have no right therein.
A collaboration agreement dated 19.01.2012 was
entered between defendant no.8 on the one hand
and defendant no.1 to 7 and Sh. Keshav Dutt
Sharma, on the other hand as per which defendant
no.8 has agreed to develop the land of defendant
no.1 to 7 and also of Sh. Keshav Dutt Sharma
which in all is measuring 12.90 acres (app.)
situated in village Silokhera, District Gurgaon,
Haryana. The built up superstructure is to be
shared in the ratio of 60% by Defendant no.8 and
40% by the remaining parties to the said
agreement.
During all this process, none of the other legal
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heirs of Late Sh. Ravi Dutt swung into action.
When the plaintiffs realized that the land at
Gurgaon is being developed and has become
valuable, they have become dishonest and started
claiming their right in the said lend though they
were fully aware that in the family settlement Sh.
Ravi Dutt had given this land to his five sons only.
In the backdrop of above facts plaintiffs have no
right or locus stand to allege and claim that the
suit properties are ancestral properties and that
they have right therein being coparceners.
Sh. Ramchandra Bharadwaj was sole and absolute
owner of the land at Gurgaon. He executed his will
dated 27-4-1966 whereby he has bequeathed entire
said land to his three sons and excluded other two
sons and six daughters from Inheritance. The
property stood devolved upon the said three sons
as the absolute owners and they have owned and
possessed the same as their self acquired property.
It is so mentioned in Para 2(c) of his will also
wherein he has categorically mentioned and
named his three sons as the absolute owners and
that they shall own and possesses the same as their
self acquired property. Thus, the intent was clear
to make the land at Gurgaon as the self acquired
property in the hands of his three sons and not to
make this property as ancestral or HUF.
Later on, an oral family partition took place
between the said three sons of Late Sh. Ram
Chandra Bharadwaj pursuant to which land at
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Gurgaon referred above fell in the ownership of
Sh. Ravi Dutt who in an oral family settlement
made his five sons as the joint owners which was
also confirmed in the Judgment dated 10.06.1983.
Thus, at no stage the suit property attained the
status of ancestral or HUF property.
The plaintiffs have no locus standi to file the
present suit. The succession to the suit land,
opened In the year 1996. At that time, under the
Hindu Law as it stood, females were not treated as
co-parceners and they did not acquire any interest
by birth in the same. The females were
incompetent under law to challenge alienation of
ancestral co-parcenary property made by a Karta.
However the suit property at all material times has
been the self acquired property earlier in the
hands of Late Sh. Ram Chander thereafter Sh. Ravi
Dutt thereafter with his three sons and now with
defendant no.1 to 7."
14. The reason for taking the said plea is given in para no.4 of the
application which is as under :-
"4. While preparing written statement to
be filed in the said suit CS (OS) No.110/2021,
various consultations and meetings took place with
the Senior Advocates and all of them have
rendered legal opinion that the suit property was
never ancestral property in the hands of Late Sh.
Ravi Dutt Sharma nor with the applicants/
defendants. It appears that written statement filled
in the present suit was the result of lack of
communication between the applicants and their
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counsel and it may also be due to lack of
understanding of Hindu Law on the part of
applicants/defendants and the incorrect legal
opinion rendered to them."
15. The merit of the case is not to be seen at this stage. The
defendants, in fact, want to take a stand that Pt.Ram Chandra Bhardwaj died
on 05.12.1967 and thereafter, his three sons including Shri Ravi Dutt
Sharma became owners of all his properties including the land at Gurgaon.
In the revenue record, the land was mutated/transferred in the names of said
three persons, on the basis of said registered Will. A copy of registered Will
dated 27.04.1966 has also been placed on the file as Annexure P-5.
16. Keeping in view the fact that the rights of the parties depend
upon whether the property is ancestral property or not and plaintiffs are
required to prove by way of evidence that nature of the property is ancestral
by proving the same but if property is devolved upon legal heirs by way of a
Will, then it requires consideration whether property is still ancestral or not.
So, the petitioners have a right to take the said defence, keeping in view the
law laid down in the case of Sanjeev Builders (supra) and Baldev Singh
(supra). No doubt, by act of the petitioners, the trial of the case has been
delayed and the petitioners have moved the application at a belated stage,
posing hardship to the plaintiffs but that cannot be considered as a ground to
reject the application. The petitioners can be burdened with heavy costs.
17. In the light of the above discussion, this revision petition is
allowed. Application for amendment of written statement, moved by the
petitioners, is hereby allowed, subject to payment of Rs.75,000/- as costs,
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out of which Rs.15,000/- be deposited in the funds of concerned Legal
Services Authority and remaining amount be paid to plaintiffs.
18. The revision petition stands allowed in the aforesaid terms.
Parties are directed to appear through their counsel before the learned Trial
Court on 21.12.2023.
19. Pending applications, if any, shall stand disposed of along with
this judgment.
December 18, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
