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2025 DIGILAW 554 (HP)

Harbans v. Bharat Subhash

2025-03-28

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has assailed order dated 8.6.2017, passed by the learned Civil Judge (Senior Division), Court No.1, Rohru, District Shimla in CMA No. 78-6 of 2017 in Civil Suit No. 22-1 of 2011. 2. Petitioner is the plaintiff and respondents are the defendants in Civil Suit No. 22-1 of 2011, pending on the files of learned (Senior Division), Rohru. The parties hereafter shall be referred to by the same status, as they hold before the learned trial Court. 3. Initially, the plaintiff filed the suit against the sole defendant Sh. Bharat Subhash on the premise that the Will of late Sh. Miyan Ram propounded by Sh. Bharat Subhash was not legal and valid Will and that the plaintiff and all other legal heirs of deceased Miyan Ram including defendant Sh. Bharat Subhash were entitled to the estate of Sh. Miyan Ram in equal shares. 4. The suit of the plaintiff was dismissed by the learned trial Court. Plaintiff filed appeal under Section 96 of the Code of Civil Procedure (for short, the ‘Code’) against the judgment and decree passed by the learned trial Court, which came to be registered as Civil Appeal No. 11-R/13 of 2016 in the Court of learned Additional District Judge-1, Shimla. The Appellate Court vide judgment and decree dated 18.3.2017 allowed the appeal of the plaintiff and the suit was remanded to learned trial Court with direction to grant one opportunity to the plaintiff to implead all legal heirs of late Sh. Miyan Ram as party and further to grant one opportunity to the defendants to lead evidence, if any, on the issue of execution of Will. It was also directed that thereafter the learned trial Court would afford two opportunities to lead rebuttal evidence to the plaintiff qua the execution of Will. 5. Learned Appellate Court had framed additional issues and had also recast issue No.1 as under:- “1. Whether plaintiff along with all legal heirs of late Miyan Ram is entitled to inherit the suit property on the basis of succession? OPP 2-A. Whether late Miyan Ram executed a valid Will dated 16.12.2010 in favour of defendant No.1? OPP 2-B. In case, issue No.2-A is proved in affirmative, whether Will dated 16.12.2010 is a result of fraud, fabrication and as such, the same is illegal, wrong, null and void, as alleged? OPP 2-A. Whether late Miyan Ram executed a valid Will dated 16.12.2010 in favour of defendant No.1? OPP 2-B. In case, issue No.2-A is proved in affirmative, whether Will dated 16.12.2010 is a result of fraud, fabrication and as such, the same is illegal, wrong, null and void, as alleged? OPP 2-C. Whether the suit of the plaintiff is bad for non joinder of necessary parties, as all legal heirs of late Miyan Ram are not impleaded as party? OPD.” 6. After the remand of the case, plaintiff filed composite application under Order 6 Rule 17 and Order 1 Rule 10 of the Code before the learned trial Court. Plaintiff made a prayer to implead all the legal heirs of deceased Sh. Miyan Ram, as defendants. In addition, a prayer was made to amend the plaint by adding paras-8-A and 8-B in following terms:- “D). New para 8-A is to be added as "That upon the death of late Shri Miyan Ram, he has been succeeded by all his legal heirs i.e. plaintiff, defendant No. 1 to 5 and widow Kundal Mani in equal shares i.e. 1/7 share each with respect to his entire estate/holding. But now during the pendency of the suit Smt. Kundal Mani has also died on 23-7-2012. Smt. Kundal Mani has executed an unregistered will on 12-5-2012 qua her aforesaid 1/7 share in favour of the plaintiff. So now the plaintiff is entitled to succeed the entire estate / holding to the extent of 2/7, whereas the defendants 1 to 5 are entitled to succeed to the extent of 1/7 each." E). New para 8-B I sto be added as "That as a matter of fact deceased Kundal Mani had been staying continuously with plaintiff. The plaintiff and his family members have taken care of her every time. She was maintained and looked after by the plaintiff. All the basic necessity and amenities were provided. She was happy for the services rendered by plaintiff. So during her life time Smt. Kundal Mani in the presence of two respectable witnesses namly ward member Sh. Dalip Kumar and Sh. Padam Singh, on 12-5-2012 executed one unregistered Will qua her entire share / estate falling in all the chacks such as Gajyani, Busari and Sunda-Bhondaetc Tehsil Chirgaon in favour of plaintiff voluntarily with free wishes. The plaintiff does not participated in the execution of the will. Dalip Kumar and Sh. Padam Singh, on 12-5-2012 executed one unregistered Will qua her entire share / estate falling in all the chacks such as Gajyani, Busari and Sunda-Bhondaetc Tehsil Chirgaon in favour of plaintiff voluntarily with free wishes. The plaintiff does not participated in the execution of the will. The deceased handed over the will for safe custody to attesting witness Shri Padam Singh. So the will was not in the knowledge of the plaintiff. Shri Padam Singh has recently handed over the Will to the plaintiff. The will is legal and genuine document and has been executed and attested as per provisions of the law." 7. In addition, a prayer was made to subsequently amend the prayer clause of the plaint by adding clause A (i) and A (ii) in following terms:- “A-1. Is to be added as "a decree for declaration to the effect that unregistered will dated 12 -05-2012 executed by deceased Kundal Mani in favour of the plaintiff Harbans is legal, genuine and valid document and the share/estate of deceased Kundal Mani has devolved upon plaintiff by virtue of the said will." A-2. Is to be added as "a decree for declaration that the plaintiff is entitled to succeed to the extent of 2/7 share (including the share of Kundal Mani), whereas the defendants 1 to 5 are entitled to succeed to the extent of 1/7 each of the estate/holding of deceased Miyan Ram," 8. It was averred in the application that during the pendency of the suit, the wife of late Sh. Miyan Ram i.e. the mother of the plaintiff had died on 23.7.2012. She had executed an unregistered Will of her share/estate in favour of the plaintiff. On such basis, the plaintiff claimed to be entitled to succeed the share of his mother. 9. Learned trial Court allowed the application of the plaintiff partially in so far as the prayer was made for impleadment of legal heirs of Sh. Miyan Ram as defendants. The second prayer with respect to amendment of plaint has been declined. Hence this petition. 10. I have heard learned counsel for the parties and have also gone through the record carefully. 11. The impugned order reveals that the learned trial Court has refused to exercise discretion in favour of the plaintiff on the ground that he had slept over the matter for more than five years. Hence this petition. 10. I have heard learned counsel for the parties and have also gone through the record carefully. 11. The impugned order reveals that the learned trial Court has refused to exercise discretion in favour of the plaintiff on the ground that he had slept over the matter for more than five years. It was noticed that Smt. Kundal Dei wife of Sh. Miyan Ram had died on 23.7.2012. The plaintiff was fully aware about the death of Smt. Kundal Dei as also the Will allegedly executed by her in favour of the plaintiff. Thus, applying the rigors of proviso appended to Order 6 Rule 17 of the Code, the prayer for amendment was disallowed with only exception that the plaintiff was allowed to amend the plaint to the extent of changing the name of proforma-defendant in the plaint since they were ordered to be impleaded as defendants in the main suit. 12. Noticeably, the learned Appellate Court while passing the judgment and decree dated 18.3.2017 had framed a specific issue No. 2C as to the effect on the suit of non-joinder of necessary party, if any. After framing such issue, the direction was issued to the learned trial Court to offer one opportunity to the plaintiff to implead all legal heirs of late Sh. Miyan Ram. It was in this context that after the remand of the suit, the plaintiff had filed an application under Order 1 Rule 10 of the Code for impleadment of the legal heirs of late Sh. Miyan Ram. 13. As per plaintiff, late Sh. Miyan Ram was survived by the plaintiff, defendants and his wife Smt. Kundal Dei. In view framing of additional issue No. 2C by the appellate court, the learned trial Court was required to adjudicate said. As a consequence, the entitlement of the legal heirs of Sh. Miyan Ram other than the plaintiff and original defendant Sh. Bharat Subhash also came up for adjudication. That being so, the request of the plaintiff for making necessary amendments in the plaint arising from the factum of execution of alleged Will by Smt. Kundal Dei in favour of the plaintiff, cannot be said to be belated, as it was the stage, when the plaintiff for the first time got the cause and opportunity to put forth his case on the basis of the Will of Smt. Kundal Dei. There was no need for the plaintiff to incorporate the pleadings with respect to the Will of his mother before impleadment of legal heirs of Sh. Miyan Ram. 14. Thus, the learned trial Court has erred in applying the proviso appended to Order 6 Rule 17 to the facts of the case. 15. In any case, the amendment sought to be made in the plaint is directly relatable to the issue involved and will be necessary for adjudication of real matter in dispute. In case the plaintiff succeeds in the suit, the question as to the inheritance of shares of the legal heirs of late Sh. Miyan Ram will arise and, in such situation, the plaintiff in the same suit can prove his title to the estate of Smt. Kundal Dei. 16. The amendment if allowed will save the multiplicity of litigation. 17. In result, the petition is allowed. Order dated 8.6.2017, passed by the learned Civil Judge (Senior Division), Court No.1, Rohru, District Shimla in CMA No. 78-6 of 2017 in Civil Suit No. 22-1 of 2011 is set aside to the extent it rejected the prayer of the plaintiff for amendment of the plaint. The application for amendment of plaint filed by the plaintiff is allowed. 18. The petition is accordingly disposed of along with pending applications, if any.