Chanchal Chopra vs Subhash Duggal & Ors. on 4 April, 2019

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Delhi High Court

Chanchal Chopra vs Subhash Duggal & Ors. on 4 April, 2019

1. This application is filed under Order 6 Rule 17 CPC for amendment of written statement of defendant No.1. The present suit is filed by the plaintiff seeking a preliminary decree of partition in favour of plaintiff and against the defendants thereby partitioning the suit property and declaring the plaintiff to be owner of 1/4th share of the suit property i.e. property situated at E-79, Anand Niketan, New Delhi. Other reliefs are also sought.

2. The parties are siblings and the dispute pertains to the division of the said aforenoted property after the death of their parents. Plaintiff is the sister of defendants No.1, 2 and 3. Defendant No.3 is also a sister of defendants No.1 and 2. Defendants No.1 and 2 i.e. the brothers claim that the property CS(OS) 122/2017 Page 1 of 7 belongs exclusively to them. They rely upon a Will dated 7.5.1979 said to have been executed by their father late Shri Ram Chand Duggal whereby he had allegedly bequeathed the estate to his wife/mother of the parties for her life time and thereafter to his sons. The plaintiff relies upon a Will said to have been executed by the father of the parties on 29.6.1998 whereby he had bequeathed the property only to his wife Smt.Agyawati Duggal. It is pleaded by the plaintiff that on the basis of the Will dated 29.6.1998 the late mother became absolute owner of the property. She died on 16.3.2012 and hence on her death it is pleaded that each of the siblings got equal share in the suit property.

3. The bone of contention in the present application is that the conveyance deed dated 8.10.2007 is said to have been executed by DDA in favour of the mother and the mutation has been carried out in the name of the mother dated 27.9.2000. Defendant No.1 seeks to add in his written statement by this amendment application that for getting the conveyance deed dated 8.10.2007 executed in favour of the mother the plaintiff and defendant No.3 had concealed registered Will dated 7.5.1979 from the documents filed before DDA. Defendants No.1 and 2 have now filed an application seeking cancellation of Mutation and Conveyance Deed and filed a complaint before Vice Chairman, DDA dated 5.2.2019.

4. Learned counsel for the plaintiff has objected to the proposed amendment stating that the proposed amendment has an effect of withdrawal of admission by defendants No.1 and 2 inasmuch as defendants No.1 and 2 in the admission/denial of documents have admitted the conveyance deed dated 8.10.2007. It is pleaded that he seeks to withdraw from an admission made which is not permissible.

CS(OS) 122/2017 Page 2 of 7

5. Learned counsel for the defendants No.1 and 2 has, however, pleaded that pursuant to an order of this court dated 6.3.2018 DDA had filed necessary documents and it is only thereafter that the defendants No.1 and 2 have moved a complaint before the Vice Chairman, DDA.

6. The legal position regarding amendment is quite clear. It is also an admitted position of law that the admissions made can be explained away. In the present case defendants are not being permitted to resile from the admission/denial of documents which they have carried out. They seek to amend the written statement by adding as follows:-

Amended Paragraph:

"7... That the Defendants got the knowledge of the fraud played by the Plaintiff in connivance with Defendant No.3 wherein they had used the false and fabricated alleged Will dated 29.6.1998 in the applications seeking Mutation and Conveyance and concealment of the valid registered Will dated 7.5.1979 from the documents filed by the DDA before this Hon'ble court on 2.4.2018. The Defendants No.l and 2 have thereafter filed an application seeking cancellation of Mutation and Conveyance Deed before the Vice Chairman DDA vide complaint dated 5.2.2019. The complaints have been filed on basis of the following clauses mentioned in the Mutation Deed dated 27.9.2000 and Conveyance Deed dated 8.10.2007:

That the Mutation Deed dated 27.9.2000 provides "Please note that in case the documents furnished by the legal heirs of the deceased sub lessee are found to be false at any later stage then it will be a case of misstatement/concealment of facts then the mutation so allowed will be cancelled and the property shall automatically vest with the lessor"

Under the Conveyance Deed dated 8.10.2007 it is provided under Clause 4 as under:

CS(OS) 122/2017 Page 3 of 7

"4. If it is discovered at any stage that this deed has been obtained by suppression of any fact or by any mis-statement, mis-representation or fraud, then this deed shall become void at the option of the vendor, which shall have the right to cancel this deed and forfeit the consideration paid by the purchaser. The decision of the vendor in this regard shall be final and binding upon the purchaser and shall not be called in question in any proceedings."

Therefore, the said documents cannot be relied upon by the Plaintiff in the present suit."

7. The above addition essentially seeks to place on record the subsequent complaints made by the defendants No.1 and 2 after filing of the written statement. It cannot be said that they change the nature of the defence raised by the defendants No.1 and 2 in any manner. There is no admission that is sought to be resiled from. At best it can be argued that the defendant No.1 is seeking to explain the circumstances under which the Conveyance Deed was executed by DDA in favour of the mother. The Supreme Court in Ram Niranjan Kajaria and Ors. vs. Sheo Prakash Kajaria and Ors., 2005 (10) SCC 203 noted as follows:-

"24.We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled.

25. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. .."

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8. It follows from the above judgment that an admission can be clarified or explained away by way of amendment.

9. In my opinion, there is no bar in allowing the present application for amendments whereby the applicant seeks to place on record facts which are essentially subsequent developments. The amendments sought are necessary for the purpose of determining the real questions of controversy between the parties. The suit is at an initial stage.

10. Application is allowed subject to payment of costs of Rs.15,000/-. Amended WS is taken on record. Amended written statement be filed within one week from today. Replication may be filed by the plaintiff to the amended written statement within four weeks from today.

IA No.9688/2018

1. This application is filed by defendant No.3 seeking to register the counter -claims and to issue notice on the Counter Claims filed by defendant No.3. The grievance of the applicant/defendant No.3 is that while her house was reconstructed she had sought permission from defendants No.1 and 2 to be allowed to shift in the suit property to enable her to complete reconstruction of her house. The said defendants No.1 and 2 had failed to give necessary permission. Hence, the applicant has filed counter claim seeking mesne profit.

2. Learned counsel appearing for defendants No.1 and 2 have objected to the issue of notice on the counter claim stating that it does not arise in the partition suit.

3. Learned counsel for the applicant relies upon a judgment of the Madras High Court in A.Mohamed Sulaiman and Another vs. A.Ameena Beevi (deceased) and others, 2013(2) CTC 735 to argue that in a partition CS(OS) 122/2017 Page 5 of 7 suit defendant can file a claim against another co-defendant.

4. In my opinion, it is an admitted case that defendant No.3 is supporting the case of the plaintiff. The two sisters have a grievance against the two brothers regarding the claim of the brothers that they are the absolute owners of the suit property. In case the suit was to be decreed in favour of the plaintiff and defendant No.3 the said parties would certainly be entitled to claim mesne profits against the two brothers who are in actual physical possession of the suit property. The counter-claim raised by defendant No.3 is a necessary and logical consequence that arises from the facts of the case.

5. Madras High Court in the aforenoted judgment A.Mohamed Sulaiman and another vs. A.Ameena Beevi (deceased) and others (supra) noted as follows:-

"19. Therefore, when a defendant in a partition suit can be considered as a party suing also, I am of the view that such defendant can also make a counter claim under Order 8 Rule 6A in a partition suit against the co-defendant. When such claim is exercised, certainly, the person making such plea becomes the plaintiff insofar as that relief is concerned and the person against whom such claim is made, becomes the defendant in the very same suit. That is why sub-clause (2) of Order 8 Rule 6A was very specific in saying that such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce the final judgment in the same suit both on the original claim and on the counter claim. Therefore, in my considered view, it cannot be said that Order 8 Rule 6A in stricto sensu is applicable only as against the plaintiff and not against a co-defendant."

.....

37. All the above decisions relied on by both sides only indicate that an issue which is raised by the defendant by way of counter claim even arising out of fresh cause of action can be considered within the same suit as a cross suit in order to avoid CS(OS) 122/2017 Page 6 of 7 multiplicity of proceedings between the parties. In this case the counter claim made by the first defendant cannot be said to be as the one outside the scope and lis between the parties in the suit. The plaintiff filed the suit for partition of her 1/6th share of the suit property. The first defendant supported the plaintiff and claims her 1/6th share also. But the defendants 2 and 3 claimed that the first defendant had released her right of 1/6th share in the suit property by way of disputed release deed."

6. Keeping in view the above legal position, I allow the present application. Any objections that the defendants No.1 and 2 may have on the maintainability of the counter-claim are kept open to be adjudicated at the time of adjudication of the main matter.

7. Application is allowed.

CC No. /2019 Counter- claim may be registered. Defendant may file objection/ written statement to the counter-claim within 30 days from today. Replication, if any, be filed within 30 days thereafter.

List on 19.7.2019.

JAYANT NATH, J.

APRIL 04, 2019/n CS(OS) 122/2017 Page 7 of 7

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