Himachal Pradesh High Court
Smt. Swarna Devi vs Of on 4 May, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 224 of 2006
Reserved on: 27.04.2016
.
Decided on: 04.05.2016
Smt. Swarna Devi ..... Appellant
Versus
of
Smt. Ruko & others ...... Respondents
Coram : rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. K.D. Sood, Senior Advocate with
Mr. Rajnish K. Lal, Advocate.
For the respondents: Mr. Ajay Sharma, Advocate, for
respondents No. 1 and 2.
Mr. Rajesh Verma, Advocate vice
Mr. Rajinder Dogra, Advocate, for
respondent No. 3.
Ajay Mohan Goel, J.:
This appeal has been filed against judgment and decree dated 27.02.2006 passed by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, in Civil Appeal No. 157-G/04/01 titled Smt. Swarna Devi Vs. Smt. Ruko & Ors., whereby the learned Appellate Court has affirmed the judgment and decree passed by learned Sub Judge First Class 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ::: Downloaded on - 15/04/2017 20:16:04 :::HCHP 2 (1), Dehra, dated 23.10.2000 in Civil Suit No. 25 of 1988 titled Gian Chand Vs. Swarna Devi & Ors.
2. This appeal was admitted on 27.02.2007 on the .
following substantial question of law:-
"Whether the amendment of plaint allowed by the trial Court at the instance of the legal heirs of Gian Chand after the death of original plaintiff Gian of Chand, thereby permitting them to substitute the earlier plea that the parties were governed by custom in the matter of alienation and succession rtby the plea that the parties are Hindus and the suit property was coparcenery property, was illegal?"
3. Gian Chand, predecessor-in-interest of the present respondents, filed a suit dated 16.01.1988 for declaration to the effect that he is owner to the extent of 1/3rd share and in joint possession of the suit land measuring 3-39-48 Hecs., situated in Muhal Ucchar Mauza Amb, Tehsil Dehra, District Kangra, H.P. and Will dated 16.02.1981 purported to have been made by Shri Sant Ram deceased father of the plaintiff in favour of defendant No.1, is false, fabricated and is result of misrepresentation and coercion and also against the natural mode of succession and against Kangra custom and same does not affect the right of the plaintiff to succeed to the estate of the deceased to the extent of 1/3rd share. He also prayed for decree of permanent injunction restraining ::: Downloaded on - 15/04/2017 20:16:04 :::HCHP 3 defendant No. 1 from changing the nature of the suit land in any manner, cutting, felling and removing any tree from the suit land, alienating any part of the suit land by way of sale, .
gift or mortgage or in any other manner.
4. The case set up by the plaintiff was that the suit land was owned and possessed by the father of the plaintiff and defendants late Sant Ram, who died on 17.11.1987 and is of survived by the plaintiff (son) and defendants (daughters) and that all three heirs are entitled to succeed to property of the rt deceased in equal shares. He further stated that defendant No. 1 was a very clever lady and she had set up a false and fabricated Will purported to have been executed by Sant Ram deceased in her favour in respect of his entire property. The plaintiff further contended that the said Will if proved to have been executed by Sant Ram is the result of fraud, misrepresentation and coercion and the same does not effect the right of the plaintiff to succeed to the extent of 1/3rd share in the suit land. It was further mentioned that in case Will is proved to have been executed by the deceased of his free volition even then it does not affect the right of the plaintiff to succeed to the suit land to the extent of 1/3rd as the land was ancestral qua the deceased and the parties who are 'girths' by caste are governed by the Kangra custom in the matter of succession and alienation, according to which, no male member can alienate his property to exclusion of his ::: Downloaded on - 15/04/2017 20:16:04 :::HCHP 4 male lineal descendant. Therefore, according to him, even if the Will is proved to have been duly executed it does not affect the right of the plaintiff to succeed to the suit land to .
the extent of 1/3rd share.
5. Written statement was filed to the suit by both the defendants. Whereas, defendant No.1 contested the suit, defendant No. 2 admitted the contents of the plaint.
of Defendant No. 1 in her written statement denied that deceased Sant Ram was survived by plaintiff and defendants or that all rt the three heirs were entitled to succeed to the property of the deceased in equal shares. The said defendant also denied that she being a clever lady had set up a false and frivolous Will executed by Sant Ram deceased. According to defendant No. 1, she being daughter of Sant Ram deceased, used to live with Sant Ram and helped him in cultivation and had rendered services to him and the deceased had accordingly, executed a registered Will in her favour on 16.02.1981 with his free will in the presence of marginal witnesses. She further denied that the suit land was ancestral qua the deceased and the parties to the suit, or that they were governed by the Kangra Customs in the matter of succession and alienation. As per defendant No.1, deceased Sant Ram had every right to alienate his property in the manner he liked. She further denied that no male member can alienate his ancestral property to the ::: Downloaded on - 15/04/2017 20:16:04 :::HCHP 5 exclusion of male lineal descendant. This written statement is dated 24.05.1988.
6. During the pendency of the case, original plaintiff .
Gian Chand died on 22.06.1999. After his death, Ruko Devi and Bambi, both widows of Gian Chand were substituted as plaintiffs.
7. Thereafter, an application was filed under Order 6 of Rule 17 read with Section 151 C.P.C. dated 22.02.1999 by the substituted plaintiffs for amendment of the plaint. Proposed rt amendment was that by way of Para No. 4-A, the plaintiff be permitted to add that in case plaintiff fails to prove that parties are governed by Kangra custom in matters of alienation and succession then in that case parties are governed by Hindu Law (Mitakshra) and suit property being ancestral/co- parcenary in the hands of deceased Sant Ram, Gian Chand son of Sant Ram (now deceased) had 1/3rd share in the suit land from his very birth and Sant Ram had no right to alienate Gian Chand's share being his son by means of Will or otherwise and if the Will was proved to have been executed by Sant Ram, even then the same has no effect upon the rights of Gian Chand and now his widows to succeed to 1/3rd share in the suit land being co-parcenary property.
8. Reply was filed to this application and the proposed amendment was opposed on the ground that ::: Downloaded on - 15/04/2017 20:16:04 :::HCHP 6 amendment was not alternative plea but was foundation of claim, which was being asserted after a period of 11 years, which could not be permitted. This amendment was however .
allowed vide order dated 26.10.1999.
9. This amendment was challenged by way of Civil Revision No. 318/1999 by the present appellant before this Court. The revision petition was dismissed as withdrawn on of 05.01.2000 by the following order:-
rt "During the course of hearing the learned counsel for the petitioner has craved for leave to withdraw the present petition with liberty to raise the issue involved in appeal if the occasion so arises. Leave granted. The present petition is dismissed as withdrawn.CMP No. 334/1999
The interim order dated 13.12.1999 stands vacated."
10. Thereafter, the defendants filed written statement to the amended plaint. Again, defendant No. 2 admitted the claim of the plaintiff, whereas, defendant No. 1 contested the same on merit. The amended written statement is dated 31.01.2000. Defendant No.1 in her written statement to the amended Para No. 4-A of the plaint, stated that the plaintiffs who claim to be widows of late Gian Chand had no locus-
standii to challenge the Will or claim succession on the basis of Hindu Law. It was mentioned that marriage of either of two widows is illegal. Hindu Law does not permit two marriages. ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 7 It was further mentioned that the plaintiffs could not plead and make a new case which was not set up by their predecessor i.e. original plaintiff. The defendant No.1 therein .
denied that the suit land was coparcenary property. It was mentioned that deceased Gian Chand had separated himself from his father just after his marriage in the year 1959-60 and never possessed the land in suit despite his claiming share in of the property. It was further mentioned that in 1963 even Ruko widow of Gian Chand filed a criminal case under Section rt 376 I.P.C. against deceased Sant Ram in connivance with her husband Gian Chand to get share in the suit land. It was mentioned that defendant No. 1 since 1962 after the death of her husband was staying in the house of deceased and managing property. It was further mentioned that in case suit land is proved to be coparcenary property, even then the suit land is in adverse possession of defendant No. 1 and prior to her Sant Ram who denied the claim of Gian Chand since January 1963 openly with a hostile intent to the knowledge of Gian Chand.
11. On the basis of the pleadings and evidence on record, the learned lower Court decreed the suit partially in favour of the plaintiff in the following terms:-
"The suit of the plaintiff succeeds partly. The plaintiff is declared to be owner to the extent of 1/3rd share in the suit land except Khasra No. 578 and 579. A decree for joint possession is also ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 8 passed in favour of the plaintiff and against defendant No. 1. By way of consequential relief, a decree for permanent prohibitory injunction is also passed in favour of the plff. restraining the .
defendant No. 1 from changing the nature and character of the suit land till such time the same is partitioned in accordance with law. Parties are left to bear their own costs."
of
12. Feeling aggrieved, the present appellant filed an appeal, which was also dismissed by the learned Additional rt District Judge, Fast Track Court, Kangra at Dharamshala on 27.02.2006. The learned Appellate Court held that the learned trial Court had rightly concluded that except land falling in two khasra numbers detailed in the plaint i.e. Khasra No. 578 and 579, the remaining suit land was coparcenary property amongst Sant Ram and Gian Chand and the plaintiff would be deemed to be entitled for his share in the joint coparcenary property which would have come to him immediately at the time of death of Sant Ram because after the death of Sant Ram, the coparcenary ended. The learned Appellate Court further held that the plaintiff had claimed only 1/3rd share by stating that he was entitled for 1/3rd share of the suit property and the learned trial Court had rightly held that the plaintiff having not claimed more than the share for which he was entitled, the relief was rightly granted by holding plaintiff to be ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 9 entitled for 1/3rd share in the suit property excluding the land comprising Khasra No. 578 and 579.
13. It is in these circumstances, the present appeal .
has been filed before this Court, which stands admitted on the Substantial Question of Law already mentioned above.
14. Mr. K.D. Sood, learned Senior Advocate, appearing for the appellant has strenuously argued that both the of learned Courts below have erred in decreeing the suit partly in favour of the plaintiff by not appreciating that the plea which rt was taken by defendant No. 1 by introducing Para No. 4-A in the plaint by way of amendment was wrong and not permissible in law. The contention of Mr. Sood is that the original suit was filed in the year 1988 and at the time when the suit was filed, the original plaintiff was Gian Chand. In the original suit filed by him, the plea of property being coparcenary was never taken by him. He died on 23.05.1999. It was thereafter that his two widows came on record as plaintiffs by substituting the original plaintiff. Mr. Sood states that it is settled principles of law that a legal heir cannot take a plea which is not available to his predecessor-in-interest. In other words, according to him, a person who is impleaded as legal representative of the deceased can raise only such objection as could have been taken by the deceased party himself. Mr. Sood placed a strong reliance on a judgment passed by this Court in Smt. Amar Devi Vs. Smt. ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 10 Shakuntla Devi, (ILR Himachal Series 1975 Page 375). Mr. Sood has submitted on the basis of this judgment that in the case of death of sole plaintiff where right to sue survives and .
legal representative is made a party and he proceeds with the suit, he cannot take any plea which suits his character. The presumption is that his plea is confined, to that very plea which was open to the deceased plaintiff. Therefore, on these of basis, he has strenuously argued that the judgments and decrees passed by the learned Courts below in favour of rt defendant No. 1 are not sustainable in law and liable to be set aside. According to Mr. Sood, the plea which was permitted to be taken by the legal representatives of deceased Gian Chand by allowing the plaint to be amended was not available to Gian Chand. This aspect of the matter has been completely ignored by both the learned Courts below. It has not been appreciated by either of the Courts below that the legal heirs of Gian Chand in law could not have taken a plea which was not available to Gian Chand. Mr. Sood further argued that even if it is assumed that alienation was bad then the limitation to challenge the same was three years. He submitted that Gian Chand died on 23.05.1999. Till Gian Chand was alive, he never took the stand that the suit land was coparcenary property, therefore, this plea which was taken by his legal representatives by way of amendment incorporated in ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 11 the plaint, was a new and additional plea, which otherwise was not available to Gian Chand.
15. Mr. Ajay Sharma, learned counsel appearing for .
respondents No. 1 and 2, has on the other hand argued that there is no infirmity with the judgments and decrees passed by both the learned Courts below and there is no merit in the present appeal. He further argued that the case which is now of being set up in appeal is not borne out either from the written statement filed to the amended plaint or from the grounds of rt appeal filed before the first Appellate Court. According to him, the scope of Order 6 Rule 17 is not so myopic as is being tried to be demonstrated by the appellant. Therefore, he contended that in fact no illegality was committed when the plaintiffs were permitted to amend the plaint and further there is nothing wrong with the judgments and decrees passed by both the learned Courts below.
16. I have heard learned counsel for the parties and have also gone through the records of the case.
17. The learned lower Court on the basis of the pleadings on record had come to the conclusion that it was proved on record that except for land bearing Khasra No. 578 and 579, the remaining suit land was inherited by Sant Ram from his father and as such, the same was ancestral and coparcenary property in the hands, qua the plaintiff. The learned trial Court further held that it is well settled law that a ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 12 coparcener acquires an interest in the coparcenary property by his birth in the joint family. It further held that Sant Ram last holder of the coparcenary property died on 17.11.1987 .
leaving behind one son and two daughters. Therefore, at the time of his death, the coparcenary was consisting of deceased Sant Ram and his son Gian Chand. As Sant Ram died leaving behind two daughters who were Class I heirs, of therefore, his interest in the coparcenary property did not devolve upon the plaintiff by way of survivorship but the same rt was to devolve by testamentary or instate succession in accordance with the provisions contained in Hindu Succession Act. It further held that at the time of his death, the interest of Sant Ram in coparcenary property by way of notional partition comes to be ½ share in the coparcenary property in his hands. Therefore, in view of the provisions of Section 30 of Hindu Succession Act, deceased Sant Ram was competent to bequeath his ½ share in the coparcenary property by way of Will. However, remaining ½ share in the suit land belonged to the plaintiff and Sant Ram was not competent to bequeath it by way of Will or other testamentary disposition. It further held that the land bearing Khasra No. 578 and 579 was not proved to be coparcenary property and the plaintiff, therefore, was not entitled to make any grievance qua the said land. Therefore, on the basis of said ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 13 conclusions, the learned lower Court partly decreed the suit in terms already mentioned above.
.
18. In the appeal which was filed against the judgment and decree of the learned lower Court by the present appellant, various grounds were taken. It is pertinent to mention that the appellant had challenged the judgment and of decree passed by the learned lower Court, inter alia, on the grounds that the learned lower Court wrongly held that the rt widows of deceased Gian Chand were coparceners since Gian Chand never based his claim in the suit land as coparcener and legal representatives cannot claim rights and disability which were not pleaded by Gian Chand and that they can raise only such objections which could have raised by the deceased himself, as the female cannot challenge the male alienation. However, surprisingly, in the grounds of appeal, the issue of the amendment to the plaint having been allowed by the learned lower Court erroneously or wrongly or illegally was not raised.
19. In other words, the plea which has been raised by way of substantial question of law, which has been framed by this Court was not in fact raised at all by the present appellant before the learned first Appellate Court. The plaint was allowed to be amended by the legal representatives of Gian ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 14 Chand in the year 1999. The provisions of Order 6 Rule 17 as they stood at that relevant time are as under:-
"17. Amendment of pleadings - The Court may .
at any stage of the proceedings 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 of questions in controversy between the parties."
20. rt It is further pertinent to take note of the provisions of Order 22 Rule 3 and Order 22 Rule 4 of the Code of Civil Procedure. Order 22 Rule 3 C.P.C., inter alia, provides that where a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Order 22 Rule 4 C.P.C. envisages that where a defendant dies and the right to sue survives, the Court, on an application made in this behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Order 22 Rule 4 (2) further provides that any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. This is not contemplated in Order 22 Rule 3. But the fact of the matter is that Order 6 Rule 17 C.P.C. permits parties to amend the pleadings. Pleadings include both plaint as ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 15 well as written statement. There is no express bar under Order 22 Rule 3 that a legal representative of sole deceased plaintiff cannot file an application for amendment of the plaint. The only .
inference which can be drawn after harmoniously reading the provisions of Order 22 Rule 3 and Order 22 Rule 4 is that whereas a person who has been impleaded as legal heir of a deceased defendant may make any defence appropriate to his of character as legal representative of the deceased defendant, this prerogative is not available to the plaintiff.
rt In my considered view, this is rightly so as the legal representative of the deceased plaintiff(s) enters into the first step of the plaintiff to proceed with the suit as was filed by the plaintiff. On the other hand, the legal heir of the defendant(s) not only has to defend the interest of deceased but he has also to defend his own interest.
21. In this background, this Court has to see whether the amendment which was allowed by the learned lower Court in the case at hand was permissible in law or not? The plea which was permitted to be incorporated by addition of Para No. 4-A of the plaint was inter alia to the effect that in case the parties fail to prove that parties are governed by Kangra Custom in the matter of alienation, then in that case parties are governed by Hindu Law (Mitakshra) and the suit property being coparcenary in the hands of the deceased Sant Ram, his son Gian Chand had 1/3rd share in the suit land from his ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 16 birth and the deceased Sant Ram had no right to alienate this share of his son.
22. In my considered view by no stretch of imagination .
it can be said that this plea was not available to Gian Chand in his capacity as a plaintiff, whether or not he took this plea when he filed the plaintiff is a separate issue. In my considered view, if Gian Chand had so desired, he could have very easily of taken up this plea as an alternative plea.
23. rt It is settled law that when a party to a suit dies, legal representatives are appointed in order to ensure that the suit may proceed and a decision be arrived. It is the original parties' rights which are to be considered and not those of legal representatives. Therefore, a person who is impleaded as legal representative of the deceased party can raise only such objections as could have been taken by the deceased party itself. Therefore, as such, the touchstone is that where the amendment sought is one which the deceased plaintiff himself could not have asked, then his legal representatives cannot ask for it.
24. In my considered view, the amendment sought by the defendants and permitted by the learned Courts below was not such which the deceased plaintiff himself could not have asked for. Therefore, the amendment was rightly allowed by the learned lower Court and the same cannot be said to be wrongly or illegally allowed by the learned lower Court. The ::: Downloaded on - 15/04/2017 20:16:05 :::HCHP 17 substantial question of law is also answered accordingly. In this view of the matter, there is no merit in the present appeal.
25. Thus, there is no infirmity or illegality with the .
judgments and decrees passed by both the learned Courts below and the appeal is dismissed. No orders as to costs. Interim order, if any, also stands vacated.
of
(Ajay Mohan Goel),
May 04, 2016 Judge
(BSS)
rt
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