Himachal Pradesh High Court
Master Anmol Sharma Through His Mother vs Shri Vikrant Seth & Another on 6 September, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1 HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.495 of 2007 Reserved on: 23.08.2019 Decided on: September 06, 2019.
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Master Anmol Sharma through his mother ..........Appellant/Plaintiff.
Versus Shri Vikrant Seth & Another ........Respondents/Defendants.
_______________________________________________________________ Coram:
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes. For the appellant : Mr. I.S. Chandel, Advocate.
For the respondents : Mr. Bhupender Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate, for respondent No.1.
Respondent No.2 already exparte. __________________________________________________________________ Jyotsna Rewal Dua, Judge.
Plaintiff being unsuccessful before learned Courts below in establishing that suit property was coparcenary and therefore, sale of same effected by his father (defendant No.2 Suresh Kumar) in favour of defendant No.1 was null and void, preferred present Regular Second Appeal.
2. This appeal was admitted on 26.11.2007, on the following substantial questions of law:-
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 2
"i). Whether the suit property was a coparcenary property in the eyes of law and whether 1987 SC 558 and 2007 (2) SLC 56 were rightly applied by the Courts below?
ii). Whether the rejection of the application under Order 6 Rule 17 is proper and the order dated .
24.07.2007 is sustainable in law in view of the grounds taken in the memo of appeal?"
I have heard Mr. I.S. Chandel, learned counsel for the appellant and Mr. Bhupender Gupta, learned senior counsel, for respondent No.1, and carefully gone through the record.
3. 3(i).
Question of Law No.1.
To answer this question of law, simplified facts spanning from the year 1954, alongwith discussion thereupon, are:-
Pedigree table of Bajira Mal is drawn hereinafter for sake of convenience:-
Bajira Mal
Yog Raj Mukti Nath @ Mohan Lal Sharma Gian Chand
(son) (son) (son)
Suresh Kumar (son)
defendant No.2) (who sold land to defendant No.1) Anmol (son) (plaintiff) ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 3 3(ii). Suit property, alongwith various other properties, was held by Bajira Mal, who constituted a Joint .
Hindu Family with his three sons. Bajira Mal died. Though his exact date of death is not available on record, however, mutation of inheritance after his death was entered on 31.12.1954 and attested on 24.04.1955 (Ext.P-20). Bajira Mal died before coming into force of Hindu Succession Act, 1956, therefore, succession in this case had opened before 1956. The succession, thus, had to be in accordance with old Hindu Law and not in accordance with Hindu Succession Act, 1956. The status of property in the hands of successors of Bajira Mal, i.e. his three sons Yog Raj, Mukti Nath @ Mohan Lal Sharma and Gian Chand, remained coparcenary.
3(iii). Jamabandies for the years 1956-57 (Ext.P-8), 1960-61 (Ext.P-9), 1964-65 (Ext.P-10), 1967-68 (Ext.P-11), 1972-73 (Ext.P-12), recorded the possession of three brothers over the property of their father late Bajira Mal.
3(iv). Mukti Nath @ Mohan Lal Sharma (grand father of plaintiff) was missing since January, 1966. This fact is recorded in the family partition (Ext.PW-2/1), effected between three brothers on 27.10.1972. The shares of three brothers were ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 4 separated and suit property came to the share of Mukti Nath @ Mohan Lal Sharma (grand father of plaintiff), who was missing. Property was, therefore, actually possessed by his .
wife Kamla Devi and son Suresh Kumar (defendant No.2), aged about 8 years at that time.
3(v). Before going further into the facts, it is apt to notice the contention raised by Mr. Bhupender Gupta, learned senior counsel for respondent No.1 (purchaser of suit property), to the effect that after the family partition of property of Bajira Mal in 1972, the coparcenary nature of the property ceased to exist as the property was succeeded by three brothers in terms of Section 8 of the Hindu Succession Act, 1956. Learned senior counsel, on this basis, further contended that the suit property, which in family partition came to Mukti Nath @ Mohan Lal Sharma, had thus lost the status of coparcenary property. Learned senior counsel for respondent No.1, relied upon (2016) 4 SCC 68, titled Uttam versus Saubhag Singh and (1986) 3 SCC 567, titled Commissioner of Wealth Tax, Kanpur and Others versus Chander Sen and Others, (2008) 3 SCC 87, titled Bhanwar Singh versus Puran and Others; (1987) 1 SCC 204, titled Yudhishter versus Ashok Kumar; & AIR 1994 Himachal Pradesh Page 102, titled Ruli Ram (deceased) ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 5 through L.R. and others versus Amar Singh, to contend that after the family partition in 1972, the coparcenary property lost its such nature and became self-acquired .
property of Mukti Nath @ Mohan Lal Sharma.
On the other hand, learned counsel for the appellant, relied upon AIR 1994 HP 102, titled Ruli Ram (deceased) through L.R. and others versus Amar Singh;
AIR 1997 Orissa 88, titled Gitanjali Mishra and others versus Gangadhar Upadhyay and others; AIR 1967 SC 1153, titled Valliammai Achi versus Nagappa Chettiar and another, AIR 1961 SC 1570, titled Bishan Das and others versus State of Punjab and others, to contend that suit property remained coparcenary and therefore, the same could not be sold by defendant No.2 Suresh Kumar(father of appellant) to defendant No.1.
3(vi). It is an admitted fact that in the instant case, the succession had opened prior to coming into force of the Hindu Succession Act, 1956. Three sons of Bajira Mal, including Mukti Nath @ Mohan Lal Sharma, had inherited the property of late Bajira Mal under old Hindu Law and not under the Hindu Succession Act. Therefore, the property continued to be coparcenary. Thus, the suit property which came to the share of Mukti Nath @ Mohan Lal Sharma, after family partition of ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 6 1972, continued to be in coparcenary of Mukti Nath @ Mohan Lal Sharma and his son Suresh Kumar, defendant No.2.
Reference in this regard can be made to a judgment passed by .
Hon'ble Apex Court, in Civil Appeal No.5124 of 2019 (arising out of SLP(Civil) No.6788 of 2019), titled Arshnoor Singh versus Harpal Kaur & Ors., decided on 01.07.2019, wherein, it was held as under:-
"7.2. In Shyam Narayan Prasad v. Krisha Prasad & Ors., this Court has recently held that:
"12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.' (emphasis supplied) 7.3. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 7.4. In Yudhishter v. Ashok Kumar, this Court held that:
"11. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [1986] 161 ITR 370 (SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 7 him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, .
his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity."
(emphasis supplied) 7.5. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 7.6. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-a-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956.
7.7. In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by Inder Singh's sons would remain as coparcenary property qua their male descendants upto three degrees below them."
(emphasis supplied) ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 8 Uttam's case, relied upon by learned senior counsel for respondent No.1, will not be applicable to the facts of instant case till 1984. This is also the observation of Hon'ble .
Apex Court in Arshnoor Singh's case (supra), the relevant paras of which reads as follows:-
"7.8. The judgment in Uttam v. Saubhag Singh (supra) relied upon by the respondents is not applicable to the facts of the present case. In Uttam, the appellant therein was claiming a share in the coparcenary property of his grandfather, who had died in 1973 before the appellant was born. The succession opened in 1973 after the Hindu Succession Act, 1956 came into force.
The Court was concerned with the share of the appellant's grandfather in the ancestral property, and the impact of Section 8 of Hindu Succession Act, 1956. In light of these facts, this Court held that after property is distributed in accordance with Section 8 of Hindu Succession Act, 1956, such property ceases to be joint family property in the hands of the various persons who have succeeded to it. It was therefore held that the appellant was not a coparcener vis-a-vis the share of his grandfather.
7.9. In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of Inder Singh by the court vide a decree of partition dated 04.11.1964. The shares allotted in partition to the coparceners, continued to remain coparcenary property in their hands qua their male descendants. As a consequence, the property allotted to Dharam Singh in partition continued to remain coparcenary property qua the Appellant.
(emphasis supplied) ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 9 7.10. With respect to the devolution of a share acquired on partition, Mulla on Hindu Law (22 nd Edition) states the following:
"§ 339. Devolution of share acquired on partition. - The effect of a partition is to .
dissolve the coparcenary, with the result, that the separating members thenceforth hold their respective shares as their separate property, and the share of each member will pass on his death to his heirs.
However, if a member while separating from his other coparceners continues joint with his own male issue, the share allotted to him on partition, will in his hands, retain the character of a coparcenary property as regards the male issue [§ 221, sub§ (4)]."
r (emphasis supplied) 7.11. This Court in Valliammai Achi v. Nagappa Chettiar and Ors.,4 held that:
"10. ... It is well settled that the share which a cosharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: [see Hindu Law by Mulla, Thirteenth Edition p. 249, para 223 (2)(4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son."
(emphasis supplied) 7.12. The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son - the Appellant herein, who ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 10 became a coparcener in the suit property on his birth i.e. on 22.08.1985.............."
Thus, in 1972, suit property allotted to Mukti .
Nath @ Mohan Lal Sharma, continued to remain coparcenary of Mukti Nath @ Mohan Lal Sharma and his son Suresh Kumar, defendant No.2.
3(vii). To proceed further with the facts, Mukti Nath @ Mohan Lal Sharma, father of defendant No.2 (Suresh Kumar), missing since 1966, was presumed dead in 1984. Therefore, mutation of inheritance qua suit property, which had fallen to his share in the family partition, was attested vide mutation No.136 (Ext.D-27), dated 05.06.1985. Another mutation, qua some other property of Mukti Nath @ Mohan Lal Sharma, was attested vide mutation No.135 (Ext.D-25), dated 15.06.1984.
Both these mutations, i.e. mutations No.135 and 136, were attested in favour of his wife Kamla Devi and his son Suresh Kumar (defendant No.2). Accordingly, in Jamabandi for the year1987-88 (Ext.P-15), suit property was shown with Kamla Devi and Suresh Kumar (defendant No.2). Similar position continued in Jamabandi (Ext.P-16) for the year 1993-94.
3(viii). Therefore, succession in 1984 opened in terms of provisions of Section 6 read with Section 8 of Hindu Succession Act, as it existed then. In other words, after presumption of ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 11 death of Mukti Nath @ Mohan Lal Sharma, since he was survived by his wife, i.e. a female legal heir, therefore, by virtue of provisions of Section 8 of Hindu Succession Act, the .
interest devolved by means of intestate succession, i.e. under Section 8 of Hindu Succession Act. The coparcenary nature of suit property ceased to exist in 1984. Law laid down in Uttam's case (supra), becomes applicable to the property.
3(ix). Kamla Devi and Suresh Kumar, defendant No.2, filed a suit for possession for redemption of mortgage against some persons in possession of suit property, on 13.11.1984, which was decreed in their favour on 29.03.1989 (Ext.P-21). In the judgment, passed in this civil suit, learned Court declared Kamla Devi and Suresh Kumar (defendant No.2) to be owners in possession of the suit land by virtue of mutation No.136, dated 15.06.1984.
3(x). Subsequent to decreeing of above suit, Kamla Devi and Suresh Kumar (defendant No.2), instituted an eviction petition under Section 14 of H.P. Urban Rent Control Act, 1987, against the occupants of suit property, on 23.07.1990.
The eviction petition was allowed on 20.07.1992 (Ext.PX).
Respondents in eviction petition preferred revision petition before learned Appellate Authority.
::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 123(xi). Smt. Kamla Devi died during the pendency of ejectment proceedings. Suit property, therefore, completely devolved upon her son Suresh Kumar (defendant No.2). This .
position was reflected in subsequent Jamabandies. One such Jamabandi on record is for the year 1998-99 (Ext.P-17).
3(xii). While the litigation in respect of suit property was going on, agreement to sell (Ext.D-20) in respect of the suit property was executed by defendant No.2 Suresh Kumar in favour of respondent No.1 Shri Vikarant Seth on 09.03.1994.
The reason for executing the agreement to sell the suit property, as has been spelt out by respondent/ defendant No.1 in his written statement to the suit, is the alleged illness of Kamla Devi, who ultimately died of cancer, expenses on her treatment, unemployment of Suresh Kumar (defendant No.2), expenses on his marriage, expenses on construction of house and meeting other day to day expenses, repayment of loans taken by defendant No.2 etc. Defendant No.1 Vikrant Seth was also bearing expenses of litigation, which at that time was pending between defendant No.2 and the occupants of suit premises. On account of these necessities, Suresh Kumar (defendant No.2), entered into an agreement on 09.03.1994, to sell the suit property in favour of defendant No.1 Vikrant Seth. As per this agreement, the sale consideration was ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 13 Rs.1,00,000/-, out of which Rs.75,000/- was paid to defendant No.2 Suresh Kumar, through Cheque No.MOL/774813, dated 09.03.1994 and remaining sale consideration amount of .
Rs.25,000/- was agreed to be paid at the time of execution and registration of sale-deed, which was admittedly paid by defendant No.1 to defendant No.2 Suresh Kumar on 14.09.2001. Execution of agreement to sell and sale deed as well as legal necessity to execute the documents, were not denied by defendant No.2 in his written statement. However, he did not step into witness box and was proceeded exparte.
3(xiii). Mukti Nath @ Mohan Lal Sharma, who was presumed to be dead from 1966 onwards, re-surfaced in 1994 and filed a Civil Suit on 21.11.1994 for declaration against his son defendant No.2 that mutation No.135, attesting his property in favour of Kamla Devi and Suresh Kumar (defendant No.2), is null and void and not binding upon him.
A compromise in this civil suit was effected between Mukti Nath @ Mohan Lal Sharma and Suresh Kumar (defendant No.2), on 13.01.1995, vide Ext.P-24 and Ext.P-25, whereunder, Mukti Nath @ Mohan Lal Sharma got the rights over land comprised over Khasra No.208/31, measuring 5-7 bighas, and Suresh Kumar (defendant No.2) got rights over 6 ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 14 Biswas of land in the same Khasra Number. Revenue entries to the contrary, were declared as wrong and illegal.
Significantly, Mukti Nath @ Mohan Lal Sharma .
did not challenge mutation No.136, which was attested in favour of Kamla Devi and Suresh Kumar, qua the suit property.
3(xiv). Mukti Nath @ Mohan Lal Sharma died on 05.11.1996. His death certificate is Ext.P-23. Mutation was attested after death of Mukti Nath @ Mohan Lal Sharma in respect of his property, i.e. Khasra No.208/31, measuring 5-7 bighas, exclusively in the name of defendant No.2 Suresh Kumar on 19.03.1997 (Ext.P-19). Remaining property of Mukti Nath @ Mohan Lal Sharma, including the suit property, was already with Suresh Kumar.
3(xv). The possession of the entire suit property was handed over to defendant No.1 on 14.09.2001 at the time of execution of power of attorney by defendant No.2 Suresh Kumar. Plaintiff was not even born at that time. Plaintiff (son of defendant No.2) was born on 12.10.2001. The sale-deed was actually executed in favour of defendant No.1 on 18.10.2001.
After two & half months later, i.e. on 09.01.2002, instant suit was filed by plaintiff, minor son of defendant No.2, aged about 3 months, through his mother, against his father (defendant No.2) and defendant No.1/the purchaser, for declaration that ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 15 suit property was coparcenary and thus could not have been sold by defendant No.2 in favour of defendant No.1; it was further the contention of the minor son, aged around 3 months .
at that time that the suit property had been sold without there being any legal necessity. Decree for declaration was sought by him to the effect that sale-deed dated 18.10.2001 is illegal, inoperative, null and void and without there being any legal necessity; praying for further direction to defendant No.1 to hand-over the peaceful possession of the suit property to the plaintiff. In the alternative, it was asserted that plaintiff has right of redemption of the suit property and for this purpose he is ready and willing to pay the sale consideration of Rs.1 lac to defendant No.1 and he be declared as exclusive owner for sale consideration of Rs.1,00,000/-. Consequential decree, for permanent prohibitory injunction was also prayed for. Both learned Courts below have held against the plaintiff.
3(xvi). Mukti Nath @ Mohan Lal Sharma missing from January, 1966, was presumed dead in 1984. Mutation No.136 in respect of suit property was attested in favour of Kamla Devi and Suresh Kumar (defendant No.2) on 05.06.1985 (Ex.D-
27), under proviso to Section 6 read with Section 8 of Hindu Succession Act, 1956. The suit property, thus, ceased to be coparcenary in 1984. It became self acquired property in the ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 16 hands of Kamla Devi and Suresh Kumar (defendant No.2).
Succession opened in 1984 under the provision of Hindu Succession Act, 1956. In (2016) 4 SCC 68, titled Uttam .
versus Saubhag Singh and otters, Hon'ble Apex Court observed as under:
"18(v). On the application of section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship."
3(xvii).
Kamla Devi also died in 1992 and entire property of Mukti Nath @ Mohan Lal Sharma, which had fallen to her share, under mutation No.136, was succeeded by her son Suresh Kumar (defendant No.2). In this manner, entire property which had fallen to Mukti Nath @ Mohan Lal Sharma in family partition became self acquired property of Suresh Kumar. It is after that defendant No.2 Suresh Kumar executed agreement to sell the suit property to defendant No.1. The agreement to sell was in accordance with law as there was no embargo upon defendant No.2 Suresh Kumar from alienating the suit property, which had ceased to be coparcenary.
3(xviii). Mukti Nath @ Mohan Lal Sharma, presumed dead, surfaced from oblivion in 1994 and challenged the mutation of inheritance in favour of his son Suresh Kumar (defendant No.2), but, limited his challenge only to mutation ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 17 No.135. No challenge was laid by him to mutation No.136, which was in respect of suit property. Even, the challenge to mutation No.135 ended in a compromise, whereunder, he .
( Mukti Nath @ Mohan Lal Sharma) agreed to have the rights only qua part of the property covered vide mutation No.135 and rights over remaining property were accepted to be in terms of mutation No.135, i.e. with his son Suresh Kumar (defendant No.2). After death of Mukti Nath @ Mohan Lal Sharma on 05.11.1996, even the part of the property covered vide mutation No.135, which had reverted to Mukti Nath @ Mohan Lal Sharma in terms of compromise decree dated 13.01.1995, again came back to his son Suresh Kumar (defendant No.2) vide mutation Ext.P-19, attested on 19.03.1997.
3(xix). Thus, it is evident from the record that the suit property had lost its status of coparcenary property on 05.06.1985, when mutation No.136 in respect of the property in question was attested in favour of Kamla Devi and defendant No.2 Suresh Kumar (wife and son of Mukti Nath @ Mohan Lal Sharma). This mutation remained as it was, without there being any challenge to it from any quarter, including Mukti Nath @ Mohan Lal Sharma. Therefore, it can safely be concluded that on the date of execution of agreement to sell, ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 18 i.e. 09.03.1994, the suit property was not coparcenary. There was no embargo upon defendant No.2 Suresh Kumar to alienate and encumber the suit property in any manner. In any .
case, on the date of handing over the possession of suit property to defendant No.1, i.e. 14.10.2001, and on the date of execution of sale deed, i.e. on 18.10.2001, there was no embargo upon defendant No.2 to execute these documents in favour of defendant No.1. The substantial question of law No.1, is answered accordingly against the appellant.
3(xx). Having answered the question of law No.1 in favour of defendants, there is no necessity for going into the other factual aspect of the matter regarding legal necessity on the part of defendant No.2 Suresh Kumar, for executing the agreement to sell/ sale-deed. Appeal has not even been admitted on such questions of law.
3(xxi). Before parting with this issue, it is pertinent to notice here that entire property of Bajira Mal, including the suit property, in the documents on record, including Jamabandi for the year 1952-53 (Ext.P-7) onwards, has been reflected in the ownership of the State Government and in non-occupants tenancy of Bajira Mal and thereafter, his successors. Both learned Courts below have held that after coming into force of H.P. Tenancy and Land Reforms Act, 1972, the proprietary ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 19 rights over the land in question, stood automatically vested in favour of the non-occupancy tenants. Therefore, it has been held by learned Courts below that by automatic operation of .
law, the property, including the suit property, came to be owned and not just possessed by the non-occupancy tenants, i.e. the successors of Bajira Mal. Since neither the appeal has been admitted on any question of law, arising from these observations of learned Courts below, nor any argument has been addressed before me on this aspect of the matter by either of the parties, therefore, the observations of learned Courts below, in this regard, have not been discussed in the present judgment.
4. Substantial Question of Law No.2:
On 24.07.2007, i.e. on the date of pronouncement of the judgment by learned 1st Appellate Court, the plaintiff moved an application under Order 6 Rule 17 CPC, for amendment of the plaint. Following para was sought to be added in the plaint by way of amendment:-
"Para 3A "that the plaintiff besides being the son of the defendant No.1 also claims that the property in suit was a coparcenary property as the defendant No.1 even if he be considered as the exclusive owner of the property had thrown it voluntarily into the common stock with intention of abandoning all separate claims upon it and thus constituting the property in suit as coparcenary property with the plaintiff who was the member of joint family with defendant No.1 ::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 20 after his birth and conjointly used the same as coparcener".
By way of proposed amendment, plaintiff wanted to take the plea that even if the suit property is not considered .
as coparcenary, then also it has to be considered having been voluntarily thrown into the common stock by defendant No.2 with an intention to abandon all his separate claims on it.
The basis of the plea, so taken by the plaintiff, was even contrary to the case set up by him; there were no pleadings to the effect that father of plaintiff had considered suit property as a common stock and had no intention to treat it as his separate property; application was not even properly presented; it was not accompanied by an affidavit; there were no pleadings in the application as to why the same could not be moved before learned trial Court; why the plea could not be taken before learned trial Court; what was the reason for delay in moving the application; & why the amendment was necessary; application was moved in a very callous manner on the day of pronouncement of the judgment by 1st Appellate Court; in the application, plaintiff called himself as son of defendant No.1 whereas he is son of defendant No.2.
Reference in this regard can be made to 2019(4) SCC 332, titled M. Revanna versus Anjanamma (Dead) by Lrs & Others, wherein, Hon'ble Apex Court held as under:-
::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 21"5. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."
It was not even explained in the application as to why such plea was being sought to be taken on the day of pronouncement of the judgment by 1st Appellate Court. The application was not bonafide. The parameters laid down under Order 6 Rule 17 for amendment of the plaint were not met.
Therefore, the application was rightly rejected by learned 1 st Appellate Court. The substantial question No.2, is answered accordingly against the appellant.
No other point was urged.
::: Downloaded on - 29/09/2019 03:56:57 :::HCHP 225. In view of the above observations, I find no merit in the instant appeal and the same is accordingly dismissed.
No orders as to costs. Pending miscellaneous application(s), if .
any, shall also stand disposed of.
(Jyotsna Rewal Dua)
September 06, 2019. Judge
(Yashwant)
r to
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