Nareshbhai Champaklal Patel vs Ritaben Bharatbhai Patel on 19 July, 2022

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Gujarat High Court

Nareshbhai Champaklal Patel vs Ritaben Bharatbhai Patel on 19 July, 2022

Bench: Umesh A. Trivedi

    C/SCA/15664/2021                           JUDGMENT DATED: 19/07/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 15664 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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1    Whether Reporters of Local Papers may be
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair
     copy of the judgment ?

4    Whether this case involves a substantial
     question of law as to the interpretation of the
     Constitution of India or any order made
     thereunder ?

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             NARESHBHAI CHAMPAKLAL PATEL
                          Versus
               RITABEN BHARATBHAI PATEL
======================================
Appearance:
MR JIGAR M PATEL(3841) for the Petitioner(s) No. 1
MR.NANDISH H THACKAR(7008) for the Respondent(s) No. 1
======================================

CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                         Date : 19/07/2022

                          ORAL JUDGMENT

[1.0] By way of this petition under Article 227 of the Constitution of India the petitioner - original plaintiff Page 1 of 7 Downloaded on : Wed Jul 20 21:12:44 IST 2022 C/SCA/15664/2021 JUDGMENT DATED: 19/07/2022 challenges the order dated 25.08.2021 passed below Exh.24 application in Regular Civil Suit No.359 of 2018 whereby the request of the petitioner - original plaintiff to amend the plaint came to be rejected.

[2.0] The petitioner - original plaintiff filed the aforesaid suit claiming declaration to the effect that the sale deed dated 31.05.2015 executed in favour of the original defendant by the father of the plaintiff does not give the original defendant the right as owner of the suit property. Alongwith the same, the suit claims the declaration that the sale deed executed by the father of the original plaintiff is illegal and without any payment of consideration, and therefore, the revenue entry mutated in the record of rights is also claimed to be illegal in the suit. Over an above that relief, the original plaintiff claim that he is the owner of the suit property based on a codicil /will dated 10.07.2009 (may be 09.07.2009) registered with the Sub-Registrar on 30.07.2009 and based thereon the original plaintiff had also claimed declaration that he is the owner of the suit property.

[2.1] On the suit being filed against the respondent - original defendant, he filed a written statement vide Exh.9 where a claim is made that not only the original defendant is the owner of the suit property by way of sale deed as also codicil /will dated 10.02.2014, which is registered with the Sub-Registrar dated 15.02.2014 and by the said Page 2 of 7 Downloaded on : Wed Jul 20 21:12:44 IST 2022 C/SCA/15664/2021 JUDGMENT DATED: 19/07/2022 codicil /will dated 10.02.2014, the earlier codicil /will dated 10.07.2009 came to be cancelled and the codicil /will dated 10.02.2014 is the last codicil /will of the deceased. On such defence being raised, the petitioner - original plaintiff vide application, Exh.24 requested the Court to permit him to amend the plaint as suggested in the application to add the prayer in the relief vide paragraph 3(a) in the relief clause that the registered codicil /will dated 10.02.2014, which is stated to be 11.02.2014 registered on 15.02.2014 is illegal, non-existent, non-est and not binding to the original plaintiff as it has been obtained under a suspicious circumstances of the mental stability of the deceased - father of the original plaintiff. Such amendment to the plaint came to be rejected by the impugned order.

[3.0] Mr. Jigar Patel, learned advocate for the petitioner - original plaintiff, submitted that not only the sale deed, which is challenged under the suit, is non-est and without consideration, even the right to the suit property is claimed by the petitioner - original plaintiff under a codicil /will dated 10.07.2009, which is a registered will, as prayed in the suit. It is further submitted that with a view of defeat the right of the original plaintiff, in the written statement, it is claimed that subsequent to the codicil /will dated 10.07.2009, there is a registered codicil /will dated 10.02.2014 claimed to be executed by the father of the original plaintiff Page 3 of 7 Downloaded on : Wed Jul 20 21:12:44 IST 2022 C/SCA/15664/2021 JUDGMENT DATED: 19/07/2022 cancelling the earlier codicil /will dated 10.07.2009 qua suit property based on which a declaration is sought for by the petitioner - original plaintiff, it has necessitated such amendment to challenge the subsequent codicil /will qua the suit property. He has further submitted that by such an amendment, nature of the suit is not being changed as both the parties will have their right to lead the evidence to justify the codicil /will in their favour to be just and proper and executed beyond any suspicious circumstances and to be the last will of the deceased. He has further submitted that by such amendment, there is no prejudice to the original defendant in leading evidence in respect thereof, and therefore, the said amendment, which was necessitated because of the written statement, has to be granted.

[4.0] As against that, Mr. Nandish Thackar, learned advocate for the respondent - original defendant, submitted that by granting such an amendment, whole nature of suit would be changed. He has further submitted that when the earlier will dated 10.07.2009 is cancelled by a subsequent codicil /will dated 10.02.2014 in respect of the suit property, there remains no right of the petitioner - original plaintiff in the suit property based on the codicil /will. He has further submitted that once that codicil /will is cancelled, no such amendment challenging the execution of the codicil /will dated 10.02.2014 can be permitted to be examined by the Page 4 of 7 Downloaded on : Wed Jul 20 21:12:44 IST 2022 C/SCA/15664/2021 JUDGMENT DATED: 19/07/2022 Court, and therefore, he has submitted that the order passed by the learned Judge is just and proper, and therefore, this petition is required to be rejected.

[5.0] Having heard the learned advocates for the appearing parties and perusing the impugned order as also the documents annexed alongwith it, it is undisputed that the suit filed by the petitioner - original plaintiff seeking declaration of cancellation of a sale deed in respect of the suit property as it being without consideration is illegal and is executed under a suspicious circumstances and alongwith said relief claimed in the suit, the petitioner - original plaintiff claim to be the owner of the suit property based on the will dated 10.07.2009, and therefore also the sale deed executed in the year 2015, which came to be registered on 12.06.2015 is also challenged. Furthermore, by way of written statement, the respondent - original defendant came out with a case that the right claimed under a codicil /will dated 10.07.2009 came to be superseded by way of registered codicil /will dated 10.02.2014, and therefore, necessity to amend the prayer in the suit has arisen. The case of the respondent - original defendant in the written statement is two fold. The respondent - original defendant claims ownership to the suit property based on registered sale deed as also the original defendant has come out with a case that the ownership of the suit property claimed by original plaintiff based on codicil /will, is already Page 5 of 7 Downloaded on : Wed Jul 20 21:12:44 IST 2022 C/SCA/15664/2021 JUDGMENT DATED: 19/07/2022 superseded, which has effect of non-suiting the petitioner

- original plaintiff so far as challenge to the subsequent codicil /will is concerned based on which the original defendant claims right to the ownership of the property.

[5.1] If the original defendant has come out with the case that the ownership right of the suit property based on codicil /will is not there of the original plaintiff, that too, based on the codicil /will dated 10.02.2014 in the year 2009 in view of registered codicil /will dated 10.07.2009 the petitioner - original plaintiff has all the more right to claim amendment to the plaint that the execution of the registered codicil /will dated 10.02.2014 is under suspicious circumstances and has been obtained because of the age of the executor of the will and the mental status of the executor was not stable at that time. If the original defendant wants to deprive original plaintiff of his right to ownership of the property based on codicil /will because of subsequent codicil /will executed by the executor, he may equally be given right to challenge that will, that too, in the same suit. By such amendment, no nature of suit is being changed as both the reliefs challenging the sale deed being without consideration, illegal and non-est as also claiming ownership to the suit property is based on the will that is already there in the suit. Over and above that by such amendment no right of the respondent - original defendant is going to be prejudiced.

Page 6 of 7 Downloaded on : Wed Jul 20 21:12:44 IST 2022

C/SCA/15664/2021 JUDGMENT DATED: 19/07/2022 [5.2] In view thereof, the impugned order passed by the Court concerned ignoring the relief claimed in the suit concentrating on the relief qua the sale deed requires to be interfered with under supervisory jurisdiction, and therefore, the impugned order dated 25.08.2021 passed below Exh.24 in Regular Civil Suit No.359 of 2018 is hereby quashed and set aside and the amendment sought for vide application, Exh.24 is hereby granted. The petitioner - original plaintiff is hereby directed to submit the amended plaint within a period of 30 days hereof. In view of the above, the present petition stands disposed of as allowed to the aforesaid extent (UMESH A. TRIVEDI, J.) siji Page 7 of 7 Downloaded on : Wed Jul 20 21:12:44 IST 2022

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