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2011 DIGILAW 482 (GAU)

Kulbir Singh v. Prithpal Shdev

2011-06-03

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. Heard Ms. P.D.B. Baruah, learned Counsel for the Petitioner as well Mr. K. Khan, learned Counsel appearing for the Respondent Nos. 1, 4 and 5. 2. The Petitioner who is the Plaintiff in Title Suit No. 1(H)/93 is aggrieved by the order dated 03.02.2011 passed by the learned Trial Court (Asstt. District Judge, Shillong) refusing to grant the prayer for amendment of the plaint. In the plaint, the prayer of the Plaintiff/Petitioner is as follows: (i) for a decree against the Defendants for a declaration that the Plaintiff is exclusive owner of the property mentioned in schedule 'A' herein below and a co-owner to the extent of 1/5th shares in the properties described in schedule 'B' herein below by virtue of the WILL dated 30.04.77 executed by (L) S. Parma Singh. (ii) For a preliminary decree for portion of this properties described in the Schedule 6' herein below under order 26 Rule 13 of the Code of Civil Procedure by allotment of 1/4th share of the properties to the Plaintiff by separating the same for his separate use and enjoyment and also for allotment of the exclusive and separate share of the Plaintiff in respect of the entire land properties as described in schedule 'A' herein below. Including share of the rent and profit out of properties as 31.10.77. (iii) For a final order on the above basis under order 20, Rule 14 of the Code of Civil Procedure (iv) For a permanent injunction retaining the Defendant No. 2, his agents, laborers and any one claiming through or under him, from interfering and disturbing the possession and occupation of the Plaintiff in the running of his Hotel business under the name of Hotel Indiana in Parm building, situated at Police Bazar Shillong and also from interfering in any manner or disturbing the peaceful occupation and possession of the Plaintiff and his family member over the residential portion (1st floor) of Parm Building and also restraining the Defendants Nos. 1, 2, 3, 4 and 6 from transferring, setting or on covering the properties mentioned in Schedule 'A' and Sl. Nos. 1, 5 and 6 of Schedule 'B' and further restraining the Defendant No. 5 from transferring, setting encumbering or making any construction work in respect of the landed property mentioned in Sl. No. 2 Schedule 'B' here in below. 3. Nos. 1, 5 and 6 of Schedule 'B' and further restraining the Defendant No. 5 from transferring, setting encumbering or making any construction work in respect of the landed property mentioned in Sl. No. 2 Schedule 'B' here in below. 3. The cause of action for the suit has been indicated in paragraph -17 of the plaint with is reproduced below. 17. That the cause of action for this suit arose on 30.04.77 when the WILL was executed; on 31.10.77 when S. Parma Singh expired; 03.03.93 when tow unknown persons came to look into/survey the hotel premises for purchasing both the hotel and the residential portion of the Plaintiff; 03.03.93 when Plaintiff also learnt that the Defendant No. 2 has transferred the property mentioned in Sl. No. 2 schedule 'B' herein below to Defendant No. 5 on different dates of demand for partition including 08.03.93 when Plaintiff last demanded partition and another subsequent date or dates within the jurisdiction of this Court. 4. The suit is now pending in the trial court for the last 18 years and it is submitted by the learned Counsel for the parties that presently the stage of the suit is that the evidence in chief by way of affidavit has been submitted and one of the witnesses (PW 1) has been partially cross examined on 07.05.2009. 5. The Plaintiff/Petitioner filed an application on 25.11.2010 seeking amendment to the plaint. The amendment sought for is as follows: (a) In the original paragraph No. 7 the following sub Para may be added which read as follows: ... besides the properties mentioned in schedule A, B the father of the Plaintiff also acquired properties namely- a landed property forming a part of the present fire brigade field which stood in the name of Sardar Parma Singh, landed property in Upper New Colony, Shillong in the name of Smt. Atam Kaur, landed house hold property in Chatribari Road, Guwahati, Assam which was mortgaged to Sardar Parma Singh of Singh Jewelers. The details of these properties are mentioned in Schedule C to the plaint. (b) That after Para 7 of the plaint a new Para numbered as Para 7A to be added which reads as follows ... New Para 7A ... The details of these properties are mentioned in Schedule C to the plaint. (b) That after Para 7 of the plaint a new Para numbered as Para 7A to be added which reads as follows ... New Para 7A ... That all the properties movable and immovable purchased and acquired by father of the Plaintiff was mainly out of the income derived from the jewellery business of M/s. Singh Jewellers and to some extent from his other sources of income including money brought from Pakistan. During the life time of the Plaintiff's father the entire family was for all purpose and intent and in spirit was a joint Hindu family and as such the properties were acquired in the names of different members of the family out of the common income. The family members also irrespective of the fact in whose name of the properties stood have been occupying and enjoying the properties as members of the joint Hindu family. Even after the death of the Plaintiff's father on 31.10.77 the family continued to remain as a joint Hindu family without any formal partition of the joint family properties. The members of the family have been using, occupying and enjoying all the properties of the joint Hindu family because they are members of the joint family. It be mentioned here that the father of the Plaintiff started the business of M/s. Singh Jewellers as its Proprietor and over the years it became the main source of income and livelihood of the family as the joint family business. Plaintiff had also contributed to the growth and income of the said jewellery business as a member of the joint family. Copies of the some of the correspondence in connection with the business of Singh Jewellers are annexed herewith as Annexure II in series. Copy of the Agreement of Partnership in business and some of the receipts showing the income of Late Parma Singh are annexed as Annexure -III in series. Copy of letter dated 23.12.77, 27.09.67, 10.02.68 are annexed as Annexure IV in series. Copy of the Agreement of Partnership in business and some of the receipts showing the income of Late Parma Singh are annexed as Annexure -III in series. Copy of letter dated 23.12.77, 27.09.67, 10.02.68 are annexed as Annexure IV in series. (c) That after Para 9 a new Para may be added numbered as Para 9A which reads as follows: Para 9A ...That after the death of the Plaintiff's father, the Plaintiff as well as other legal heirs of Late Parma Singh, have acquired a right over the joint family properties by inheritance and as a member of the joint family and the Plaintiff as well as the other legal heirs have acquired the legal right to enjoy their respective shares in the joint family properties. It be mentioned here that the nucleus of the joint family is the business of M/s. Singh Jeweler, which is a joint family property and over which every legal heir of Late Parma Singh as a member of the joint family has got their right, title and interest. However, the Defendant No. 2, 5 and 6 and their respective legal heirs have been enjoying all the income and profit of the business of Singh Jewellers since after the death of the father of the Plaintiff and thereby depriving the other legal heirs of their lawful share. The Plaintiff as a member of the joint Hindu family has every right under law to enjoy the income and profit of the said jewellery business which is a joint family business. It be mentioned here that the Defendants namely Nos. 2, 5 and 6 have been most illegally enjoying all the rents and profit out of the building known as Parm Building, which is a joint family property thereby depriving the Plaintiff and other legal heirs. The Plaintiff is also entitled to his share of the rent and profit of the said building. The Defendant No. 2, 5 and 6 and their respective legal heirs are also enjoying the rent and profit of the schedule A property to which the Plaintiff is exclusively entitled to. The Plaintiff is also entitled to his share of the rent and profit of the said building. The Defendant No. 2, 5 and 6 and their respective legal heirs are also enjoying the rent and profit of the schedule A property to which the Plaintiff is exclusively entitled to. (d) That the original Para 10 may be amended and read as follows: Para 10 ...That after the death of the Plaintiff's father on 31.10.77, Plaintiff has inherited his proportionate share in the joint family property and entitled under law to exclusive right of use and enjoyment of his share in the joint family properties to the exclusion of others till thee is formal partition of the property. However, now in view of the WILL dated 30.04.77 left by Late Parma Singh, the Plaintiff is entitled to his 1/5th (now 1/4th) share in the respect of all the properties described in schedule B, C and exclusive and sole owner of the property mentioned in schedule A. The Plaintiff demanded partition of the properties to which he is entitled to under law and also as per terms of the WILL dated 30.04.77 but the same was refused by the Defendants. Plaintiff had applied for probate of the said WILL in PRO MISC. CASE No. 1(H) 89 in the Court of District Judge, Shillong, where Defendant No. 1 was the only objector. However, the said probate was withdrawn due to some technical reason. (e) That in original Para 11, the following line may be added; ... That the Defendants have surreptitiously sold the properties mentioned in schedule C to the plaint and enjoyed the sale proceed without giving the share to the other legal heirs including the Plaintiff to which they are entitled under law. (f) That after Para 14 a new Para numbered as 14A to be added which reads as follows: Para 14A ...That during the pendency of the suit the original Defendant No. 1 Smt. Atam Kaur, W/o. Late Parma Singh expired on 11.09.95 and after her death her 1/5th share in the property mentioned in Schedule B devolved equally on the sons who are the other beneficiaries of the WILL dated 30.04.77 in equal proportion of 1/4th share each. (g) That the earlier prayer (i), (ii) be amended as follow: (i) For a decree for declaration that Plaintiff is the exclusive owner of the property mentioned Schedule A and entitled to 1/4th equal share in the properties described in schedule B, C of the plaint being a co-owner of the said joint family property and also entitled to the same by virtue of the WILL dated 30.04.77. (ii) For a declaration that Plaintiff is entitled to his proportionate respective share in the sale proceed of the properties mentioned in schedule C in the income and profit of the business of M/s. Singh Jewellers and to the rent and profit of the Parma Building. And schedule A property w.e.f. 31.11.77. (h) A new schedule may be included may be added as schedule C to the plaint. SCHEDULE - C" (A) Sale proceed from the sale of the landed property which was part of the fire brigade, Shillong and was standing in the name of Sardar Parma Singh. (B) Sale proceed of the landed property situated at New Colony, Shillong which was standing in the name of Smt. Atam Kaur. (C) Sale proceed of the house hold property situated at Chatribari Road, Guwahati, Assam which was mortgaged to Sardar PARMA Singh, Proprietor of Singh Jewellers. Plaintiff craves leave of the Court to supply better information regarding the schedule-C properties on collecting the same. 6. Against the aforesaid prayer for amendment, the Defendants/Respondents filed their objection inter alia contending that if the amendment sought for is allowed, same would change the nature and character of the suit. In the said objection, it was also contended that the whole basis of the claim of the Plaintiff/Petitioner in the suit being the Will dated 30.04.77 and not any other documents, the amendment, if allowed, would entirely change the nature and character of the suit. It was also pleaded that the amendment sought for is barred by law of limitation, principles of waiver and acquiescence and that same cannot be entertained after 33 years of making the Will and 45 years of disposal of the property sought to be incorporated as Schedule-C of the plaint. 7. It was also pleaded that the amendment sought for is barred by law of limitation, principles of waiver and acquiescence and that same cannot be entertained after 33 years of making the Will and 45 years of disposal of the property sought to be incorporated as Schedule-C of the plaint. 7. Referring to the above quoted paragraph-17 of the plaint wherein the Plaintiff/Petitioner has shown cause of action of the suit, it was contended that the whole basis of the suit being the said Will, the amendment prayed for seeking proportionate share of the purported Hindu undivided joint family property, if allowed, would change the nature and character of the suit. 8. The learned Trial Court considering the materials placed before it and on perusal of the applications for amendment and the objection thereto and also appreciation of the arguments advanced by the learned Counsel for the parties, having declined to allow the amendment prayed for, the Plaintiff/Petitioner has now invoked the revisional jurisdiction of this Court assailing the said order. 9. Ms. Baruah, learned Counsel for the Plaintiff/Petitioner submits that in the matter of amendment Court must always take lenient view to avoid multiplicity of litigation. She further submits that only prayer of the Plaintiff/Petitioner being incorporation of the properties which were not included in the plaint, the learned Trial Court ought to have allowed the amendment. 10. On the other hand, Mr. Khan, learned Counsel appearing for the Defendants/Respondents submits that the Plaintiff/Petitioner cannot project his case for amendment with a different cause of action. He has also emphasized on the law of diligence on the part of the Plaintiff/ Petitioner. 11. I have considered the rival submissions made by the learned Counsel for the parties and also have gone through the entire materials on record. The whole basis of the suit is the cause action recorded in paragraph-17 of the plaint as quoted above. During the course of hearing of this proceeding, it was submitted that the Will is yet to be probated for which an application was filed in 1989. However, the said application was withdrawn in the year 2003. Presently no application seeking probate of the said Will is pending before the competent court. This is precisely the reason as to why Mr. However, the said application was withdrawn in the year 2003. Presently no application seeking probate of the said Will is pending before the competent court. This is precisely the reason as to why Mr. Khan, learned Counsel for the Defendants/Respondents has submitted that the Plaintiff/Petitioner perhaps cannot make any claim on the basis of the Will which is yet to be probated. 12. Ms. Baruah, learned Counsel for the Plaintiff/Petitioner submits that above is precisely the reason as to why the Plaintiff/Petitioner should be permitted to amend the plaint so as to entitle him to get his share of the joint family property in the event of failure to get his share of the property in terms of the Will. During the course of hearing of this proceeding, Ms. Baruah has urged for allowing the amendment on the basis of the following prayer. (i) For declaration that the Plaintiff is entitled to his share of schedule 'A, 'B' properties as per the WILL dated 30.04.77 and/or otherwise entitled to his 1/8th proportionate equal share of the schedule 'A' and 'B' properties for his exclusive use, possession and enjoyment. (ii) For a preliminary decree for partition of this properties described in Schedule 'A', 'B' below under order 26 Rule 13 Code of Civil Procedure allotment of the proportionate share of the Plaintiff by separating the same for his separate use and enjoyment including the rent and profit out of the said properties. 13. Opposing the aforesaid prayer, Mr. Khan, learned Counsel for the Defendants/Respondents submits that the Plaintiff/Petitioner cannot be allowed to go on changing his plaint. He also submits that the prayer of the Plaintiff/Petitioner being based on both the Will and the claim that he is entitled to his share of the joint Hindu family property, the amendment prayed for cannot be allowed which will change the basic foundation of the suit leading to the change in nature and character of the same. 14. The amendments prayed for by the Plaintiff/Petitioner by his application dated 25.11.2010 have been noted above. 14. The amendments prayed for by the Plaintiff/Petitioner by his application dated 25.11.2010 have been noted above. While in paragraph - 7A and 9A the Plaintiff has claimed his share of the property on the ground of being a member of the Hindu undivided joint family, but in paragraph-10 it has been stated that he is also entitled to Schedule-A and B (1/5th of the property) on the basis of the Will dated 30.04.77, which, however, is yet to be probated. Thus, on the face of it, there is inherent contradictions in the claim of the Plaintiff/Petitioner. He has also prayed for incorporation of Schedule-C property in the plaint which according to him is the joint family property which the Defendants/Respondents surreptitiously sold out to the deprivation of the Plaintiff/ Petitioner. 15. The amendment petition was filed after long 16 years of filing of the suit with the aforesaid statements and prayer. It is in this context, learned Trial Court has held that there was lack of due diligence and that if the amendments are allowed, same would cause prejudice to the Defendants/ Respondents. It has also been observed that the amendment would change the very basis of the claim of the Petitioner/Plaintiff in the suit and consequently would lead to change in the nature and character of the suit. 16. While it is true that as per the principles of law laid down in different decisions relating to prayer for amendment during the pendency of the suit and the stages thereof, a liberal approach is required to be adopted. However, at the same time, it will have to be considered in the context of the nature and character of the suit. If the amendments tend to change the nature and character of the suit to wide extent, it cannot be allowed. Under Order 6 Rule 17 of the Code of Civil Procedure, the court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 17. Needless to say that on the strength of the aforesaid provision, a party cannot seek amendment of his pleadings so as to project altogether a different case than the one which was projected in the suit. In the instant case as noted above, the whole basis of the claim of the Plaintiff/Petitioner to Schedule A and B properties is the Will executed on 30.04.77. Now by the amended pleadings he seeks to incorporate the properties purportedly come to his share being the member of the Hindu undivided family. While doing so, he has not abandoned the properties enumerated in Schedule A and B. 18. Going by the nature of the amendments prayed for, there is no manner of doubt that the Plaintiff/Petitioner has now introduced altogether a new case than the one projected in the suit. This being the position and there being elements of change in nature and character of the suit, I am of the considered opinion that the amendments prayed for cannot be allowed. Consequently, the impugned order dated 03.02.2011 passed by the learned Trial Court in the suit, namely Title Suit No. 1(H)/93, is not liable to be interfered with. 19. Civil Revision petition is dismissed. Irrespective of this dismissal, it will always be open for the Plaintiff/Petitioner to take such course of action as may be available in law. 20. LCR may be transmitted to the lower court immediately. Petition dismissed