* + IN THE HIGH COURT OF DELHI AT NEW DELHI I.A. No.8998/2012 (by the defendant u/O VI R 1.CPC) in CS(OS) No. 1342/2011 Reserved on: Date of decision: IN THE MATTER OF: SUGEETA CHHABRA 27 08.2012 10.01.2013 ..... Plaintiff Through: Mr. Sanjeev Sindhwani, Advocate versus HARISH NAYAR ..... Defendant Through: Mr. R.P. Sharma, Advocate CORAM HON'BLE MS.JUSTICE HIMA KOHLI HIMA KOHLI, J.
1. This application has been filed by the defendant under Order VI Rule 17 CPC praying inter alia for permission to amend the written statement.
2. The brief background of the present case is that the plaintiff, who is the sister of the defendant, has instituted the accompanying suit for partition, permanent injunction and rendition of accounts against her brother, the defendant herein, praying inter alia that a decree of partition be passed, declaring her to be the 50% shareholder in the property bearing No.41, Prithvi Raj Road, New Delhi and 50% shareholder in the movable properties owned by the father of the parties, i.e., late Shri R.G.Nayar. Apart from the aforesaid relief, the plaintiff has also prayed for a decree of rendition of accounts and permanent injunction against the defendant.
3. The present suit was registered on 27.05.2011 and notice was issued to the defendant returnable before the Joint Registrar on 01.09.2011. Appearance was entered on behalf of the defendant on 01.09.2011 and a written statement was filed on 18.10.2011. Replication to the written statement was filed by the plaintiff on 14.11.2011. Admission and denial of documents was concluded on 25.01.2012 and thereafter the present amendment application was filed by the defendant on 05.05.2012. In the present application, the defendant seeks permission to amend the preliminary objections taken in the written statement by adding para 8 and renumbering the existing para 8 as para 9.
4. Mr. R.P. Sharma, learned counsel for the defendant stated that the proposed amendment is bona fide and is sought to be incorporated in the written statement for giving effect to Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). He submitted that the defendant had pleaded in paras 1 to 12 of the written statement that the grandfather of the parties, late Shri Lachhmandas Nayar had left a registered will that had been probated by the High Court of Bombay vide order dated 11.08.1972 passed in Probate Petition No.350/1969 and as per the said will, the immovable property had to vest in equal shares in favour of seven male members of the family of late Shri Lachhmandas Nayar. The father of the parties herein, Shri R.G. Nayar had got 1/7th undivided share in Shri Lachhmandas Nayar HUF and the income in his hand had accrued out of the immovable property that was left by late Shri Lachhmandas Nayar and further that Shri R.G. Nayar did not have his separate or independent income.
5. It was submitted on behalf of the defendant that notwithstanding the fact that late Shri R.G. Nayar had purchased the suit premises in joint name alongwith his wife, the money for purchasing the same was generated out of various movable and immovable properties left by his father, late Shri Lachhmandas Nayar and as such the suit premises had become a joint Hindu family property of late Shri R.G. Nayar, who was the Karta of R.G. Nayar HUF and upon his demise, his son, Shri Harish Nayar, the defendant herein became the Karta of R.G. Nayar HUF and on the basis of the explanation to sub-section (3) of Section 6 of the Act, partition of the properties of late Shri Lachhmandas Nayar would have to take place as if Shri R.G. Nayar was alive. He submitted that Shri R.G. Nayars family comprised of himself, his son (the defendant herein), his daughter (the plaintiff herein), a grandson and a great grandson and therefore, each of the aforesaid persons would acquire 1/5th share in the movable and immovable properties held by Shri R.G. Nayar and upon his demise, his 1/5th share would further get divided into five shares and the share of the plaintiff would be 3/10th and that of the remaining HUF of which the defendant is the Karta, would be 7/10th.
6. It is submitted that in view of the above legal position, the written statement filed by the defendant is required to be amended so as to clarify that in the absence of any will left by late Shri R.G. Nayar, the suit premises would be divided in such a manner that R.G. Nayar HUF, of which the defendant is the Karta, would get 7/10th share in the suit premises and the plaintiff would get 3/10th share therein. The explanation offered by the defendant for the need to carry out the proposed amendment in the written statement at this stage is that he had obtained advise from his Chartered Accountant, who had opined on 21.04.2012 that the share of the plaintiff in the suit premises would be 3/10th and that of R.G. Nayar HUF and his family would be 7/10th.
7. In support of his submission that it is open for the defendant to take even a contrary stand in his written statement, learned counsel for the defendant referred to the judgment in the case of Basavan Jaggu Dhobi vs. Sukhnandan Ramdas Chaudhary reported as 1995 Supp (3) SCC 17.and he relied on the decision in the case of Hari Kishan vs. Prem Narain reported as 1985 RLR 48.to urge that a party can be allowed to amend his pleading for raising an additional approach to his plea and merely giving further reasons to a plea would not amount to changing the nature of the plea.
8. The present application filed by the defendant has been strongly opposed by Mr. Sanjeev Sindhwani, learned counsel for the plaintiff, who urged that the same is misconceived and not maintainable. He denied the fact that the dispute sought to be raised by the defendant in the present application relates to the interpretation of Section 6 of the Act as alleged and instead submitted that it was neither the case of the defendant as per the averments made in the written statement, nor of the plaintiff that Shri R.G. Nayar, the father of the parties had an HUF that owned the suit premises. He stated that as per the case that has been set up by the plaintiff, Shri R.G. Nayar was the absolute owner of half share in the suit premises and his absolute ownership therein has been duly admitted by the defendant in his written statement. In support of the aforesaid submission, learned counsel had drawn the attention of the Court to the averments made by the defendant in his written statement, particularly, the averments made in paras 1 to 12 on merits, read in conjunction with the corresponding paras of the plaint. He pointed out to para 4 of the plaint where the plaintiff has stated that the entire sale consideration for purchase of the suit premises was paid by Mr. R.G. Nayar, father of the parties exclusively from his own funds and other statutory demands in respect of the said property were also borne by him entirely and in paras 1 to 12 of his written statement, the defendant has admitted to the contents of the corresponding paras 1 to 12 of the plaint, as being a matter of record and has gone on to state that he is the owner to the extent of 50% undivided share in the suit premises and the remaining 50% share therein was bequeathed by late Shri R.G. Nayar in favour of his grandson, Mr. Raghav Nayar.
9. Learned counsel for the plaintiff stated that the present application for amendment to the written statement, if allowed, would amount to withdrawal of the admissions that have been made by the defendant in his written statement to the effect that the suit premises was not a self-acquired property of Shri R.G. Nayar. It was contended that it is settled law that an amendment cannot be allowed when it results in permitting a party to withdraw the admission and set up a new case contrary to the earlier one as such a withdrawal would displace the case of the plaintiff causing irretrievable prejudice to her. He canvassed that the entire defence taken by the defendant in the written statement is premised on the stand that Shri R.G. Nayar, father of the parties had left a will, whereunder his grandson, Shri Raghav Nayar had succeeded to 50% share in the suit premises and in view of the fact that such a succession was based on the will executed by Shri R.G. Nayar, this would constitute a clear admission on the part of the defendant that the suit premises was self-acquired and an absolute property of the deceased. He submitted that having benefitted from the admitted absolute ownership of the suit premises, the defendant cannot be permitted to retract and take a stand that the said premises was purchased out of HUF funds and was a part of a joint hindu family property.
10. In addition to the aforesaid submission, learned counsel for the plaintiff stated that a previous suit for specific performance in respect of the suit premises, was instituted by Shri R.G. Nayar and his wife, Smt. Sharda Nayar against the previous owners thereof, i.e., Shri B.S. Bhambri and Shri R.S. Bhambri and after the death of Smt. Sharda Nayar (mother of the parties), the defendant had got himself impleaded and subsequently succeeded to her share on the basis of a will. He submitted that Smt. Sharda Nayars share in the suit premises could have devolved on the defendant only if her share therein was absolute and the nature of ownership thereof in her hands as also in the hands of Shri R.G. Nayar was identical. It was urged that having taken the benefit of claiming 50% share in the suit premises on the basis of the will left by Smt. Sharda Nayar and having specifically taken a stand that the remaining half share had devolved on Shri Raghav Nayar (son of the defendant), on the basis of the will left by late Shri R.G. Nayar, it is not open for the defendant to now claim that the suit premises was purchased by Sh.R.G.Nayar from out of HUF funds, as such a stand would amount to withdrawal of admissions made by him and would result in raising an entirely new plea, which was never taken initially in the original written statement.
11. Learned counsel for the plaintiff relied upon the case of Allora Electric & Cable Co. vs. M/s Shiv Charan & Bros. & Ors. reported as 72(1998) DLT 761.wherein the provisions of Order VIII Rule 5 CPC were interpreted in the light of the judgment of the Supreme Court in the case of Badat & Co. vs. East India Trading Co. reported as AIR 196.SC 53.and it was observed that a vague or evasive reply by the defendant cannot be considered to be a denial of a fact alleged by the plaintiff and that a party is expected to expressly deny the fact, which is within its knowledge and a general denial is not a specific denial by necessary implication. In other words, learned counsel submitted that denial by the defendant should have been definite and unambiguous and in view of the categorical admission made by the defendant in reply to paras 1 to 12 of the plaint, it has to be assumed that he had admitted to the fact that the entire sale consideration for purchase of the suit premises was paid by Shri R.G.Nayar exclusively from his own funds.
12. To fortify his submission that an amendment that seeks to set up a totally new case, is impermissible and that the defendant cannot be permitted to completely change his case and substitute it with an entirely new case and if such amendments are allowed, then the plaintiff shall be irretrievably prejudiced, learned counsel for the plaintiff referred to the case of M/s Orissa Industries Ltd. vs. Sh. Hardayal & Sons (HUF) reported as 2001 V AD (Delhi) 824.
13. The Court has considered the respective stands of the parties in the light of the averments made in the application as also the pleadings as originally filed.
14. The object of Order VI Rule 17 CPC is to allow a party to alter/amend his pleadings in such a manner and on such terms as may be just and proper. It is settled law that Courts must not refuse bonafide, legitimate, honest and necessary amendments and should never permit malafide, worthless and/or dishonest amendments. The basic test which must govern the grant or refusal of amendment is whether such amendment is necessary for the purpose of determining the real question and the controversy between the parties or the same is necessary for proper and effective adjudication of the case. [Refer: Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others (2009) 10 SCC 84]. Amendments should also be allowed to avoid uncalled for multiplicity of litigation. Undoubtedly, an amendment cannot be claimed as a matter of right, but the guiding factor in dealing with such applications is that all rules and procedures are intended to sub-serve the ends of justice and technicalities of law should not be permitted to hamper the courts in dispensing justice and therefore the approach of the court ought to be liberal.
15. While the principles applicable to amendments of a plaint are applicable in equal strength to amendments of a written statement, however, ordinarily the courts are more liberal in permitting amendments of the written statement for the reason that there is lesser likelihood of prejudice being caused in such an event. In this context, the Supreme Court had observed in the case of Usha Balasaheb Swami & Ors. vs. Kiran Appaso Swami & Ors., reported as AIR 200.SC 1663.as below :
15. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.
16. Although the power to allow amendment is wide and the Court can exercise its discretion at any stage of the proceedings, the power must be exercised with great care. As noted above, there are a few riders attached to exercising this wide discretion. As for example, such amendments that are not bona fide, are unnecessary or work serious prejudice/injustice to the other side or those amendments which are aimed at overreaching the court or would result in placing the opposite side in a situation which cannot be compensated by awarding costs, ought not to be allowed.
17. As a defendant, a party has a right to take inconsistent pleas or alternative pleas in defence, subject to the condition that by virtue of the proposed amendment, the opposite party should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. But, as observed by the Supreme Court in the case of B.K.N. Narayana Pillai vs. P. Pillai & Anr., reported as AIR 200.SC 614.inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. It was also observed that no amendment should be allowed which amounts to or results in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of a plaint or a written statement.
18. In the case of Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, reported as AIR 196.SC 1267.the Supreme Court has held that amendment causing injury to an opponent which may not be compensated for by an order of costs would be an exception to the exercise of liberal power to amend. Similarly, it was held in the case of Haridas Aildas Thadani & Ors. vs. Goderej Rustom Kermani, reported as AIR 198.SC 319.that an amendment causing or likely to cause serious injustice or irreparable loss to the other side, should not be allowed.
19. For deciding the present application, it is necessary to examine the stand of the defendant in response to the averments made by the plaintiff in the plaint. As per the plaintiff, Shri R.G. Nayar and Smt. Sharda Nayar, the parents of the parties had entered into an Agreement to Sell dated 24.05.1972 with the previous owners of the suit premises and upon their failure to have performed their obligations under the said Agreement to Sell, they had instituted a suit for specific performance in the High Court. During the pendency of the aforesaid suit, Smt. Sharda Nayar had expired on 27.12.1976. Upon her demise, the defendant had filed an application for impleadment seeking to substitute himself in place of Smt. Sharda Nayar, which application was duly allowed and the said suit was ultimately decreed vide judgment and decree dated 09.07.1985 whereafter, a Sale Deed was executed and registered in respect of the suit premises.
20. Upon the demise of her father, the plaintiff now claims 50% share in the suit premises, but has made an averment in the plaint that in view of the stand of the defendant that he had succeeded to 50% share in the suit premises on the basis of a will executed by their mother, the plaintiff was willing to give a concession to the defendant in the interest of maintaining good relations in the family and sought to restrict her claim to 25% share in the suit premises, out of one half that was inherited from the estate of late Shri R.G. Nayar.
21. In response to the aforesaid stand taken by the plaintiff, the defendant has averred in his written statement that Shri R.G. Nayar and Smt. Sharda Nayar were co-owners of the suit premises and that Smt. Sharda Nayar had executed a will, whereunder he had become owner of 50% share held by her. It was further averred that in accordance with the judgment and decree dated 09.07.1985 passed in the suit for specific performance instituted by the parents of the parties in respect to the suit premises, a Sale Deed was executed in favour of Shri R.G. Nayar, the father of the parties and the defendant herein, being the beneficiary under the will of his mother. Thus, the defendant claimed that he is the owner of the suit premises to the extent of 50% undivided share and the remaining 50% share was bequeathed by Shri R.G. Nayar in favour of his grandson, Shri Raghav Nayar. The defendant also adverted to the Probate Petition No.350/1969 decided by the High Court of Bombay on 11.08.1972, whereunder the will dated 21.06.1965 Lachhmandas Nayar was probated. I.A. No.8998/2012 in CS(OS) No.1342/2011 executed by late Shri Lachhmandas Nayar had bequeathed his properties in favour of the male members of his family. The defendant thus submitted that the suit premises was purchased by Shri R.G. Nayar and his wife, Smt. Sharda Nayar and that the plaintiff did not have any share therein.
22. In reply to para 13 of the plaint, wherein the plaintiff had stated that Shri R.G. Nayar was a coparcener of late Shri Lachhmandas Nayar HUF, in respect whereof proceedings were pending in the High Court of Bombay, the defendant admitted to the said fact in the corresponding paras 13 and 14 of the written statement but expressed his ignorance about the legal proceedings in the said court.
23. A plain reading of the written statement as originally filed by the defendant reveals that though he had ample opportunity to explain the manner in which the suit premises had become a joint Hindu family property in the hands of late Shri R.G. Nayar, particularly, in response to the averments made by the plaintiff in para 12 of the plaint, he had refrained from doing so and instead, he took a categorical stand that the suit premises was the absolute property of the parents of the parties and it belonged to him to the extent of 50% undivided share, which he had inherited on the basis of the will that was left by Smt. Sharda Nayar, the mother of the parties and that the remaining 50% undivided share had devolved on his son, Shri Raghav Nayar on the basis of the will that was executed by Shri R.G. Nayar, the father of the parties.
24. Now by way of the proposed amendments, the defendant is seeking to withdraw from the aforesaid admissions and seeks to claim that Sh.R.G.Nayar, father of the parties had received 1/7th undivided share in the assets of late Shri Lachhmandas Nayar HUF and as the income that was derived from the aforesaid movable and immovable properties had accrued to Shri R.G. Nayar, who had purchased the suit premises. As a result, it is now claimed that the said property had acquired the colour of a joint Hindu family property in the hands of Shri R.G. Nayar as the Karta of R.G. Nayar HUF and upon his demise, the defendant had stepped into his shoes and he had become the Karta of the said HUF.
25. By invoking the provisions of Section 6 of the Act, the defendant now claims that as it is the case of the plaintiff that Sh. R.G. Nayar had not left any will, the suit premises would be divided by granting 7/10th share to Shri R.G. Nayar HUF and 3/10th share to the plaintiff. If the aforesaid plea of the defendant is permitted to be incorporated in his written statement, it would undoubtedly result in permitting him to renege from the admissions made by him in the original written statement as to the absolute ownership of the suit premises and set up an entirely new case to the prejudice of the plaintiff, which is impermissible in law. Further, the aforesaid amendment, if allowed, would result in the defendant taking mutually destructive pleas, which cannot be permitted.
26. There is merit in the submission made by the counsel for the plaintiff that if permission is granted to the defendant to amend the written statement, as prayed for, then it shall cause serious injustice to the plaintiff inasmuch as it will result in permitting the defendant to take contradictory and inconsistent pleas in negation of the position taken in his original written statement, wherein he had averred that Mr.R.G. Nayar had left a will, whereunder, his son, Shri Raghav Nayar, was bequeathed one half undivided share in the suit property. Such a bequest could have taken place only on the premise that the suit property was a self-acquired property of late Shri R.G.Nayar and not if it was a HUF property as now sought to be claimed by the defendant. Similarly, the validation of the claim of the defendant to half undivided share of his mother, Smt. Sharda Nayar in the suit premises on the basis of devolution made by a will executed by her in his favour would be sustainable only if the suit property was an absolute property of the parents of the parties and not if it was purchased by Shri R.G. Nayar as a karta of a hindu undivided family, as claimed in the proposed amendments.
27. In the teeth of the aforesaid categorical stand taken by the defendant in his written statement, it does not lie in his mouth to turn around and urge that he may be permitted to amend the written statement and incorporate therein facts to the effect that the suit property had been purchased out of HUF funds and that Sh. R.N. Nayar was a Karta of a HUF and upon his demise, the defendant had become the Karta of the said HUF. This would amount to permitting the defendant to change the very nature of his original defence and set up an entirely new case, which had not been taken by him in the written statement as originally filed. In fact, it is not merely a case of taking inconsistent pleas or addition of new grounds of defence, but an attempt on the part of the defendant to build up an entirely different and mutually incompatible defence.
28. Further, the contention of the counsel for the defendant that the amendments sought to be incorporated are only a consequence of the interpretation of Section 6 of the Act, based on an opinion dated 21.04.2012 received by the defendant from his Chartered Accountant does not inspire the confidence of the court and can hardly be treated as a bonafide ground for permitting amendment to the written statement. Even in the absence of an opinion from his Chartered Accountant, if the defence of the defendant was that the suit property was a HUF property, then nothing precluded him from laying the foundation of his case in the original written statement and then seek to elaborate the same by way of an amendment. However, the written statement filed by the defendant originally is absolutely silent on this aspect. Having failed to do so at the time of filing the written statement, the defendant cannot be permitted to incorporate the aforesaid amendments under an excuse that an opinion has been received from his Chartered Accountant.
29. In view of the aforesaid facts and circumstances, this Court is of the opinion that the present application does not appear to be bonafide and allowing the same would cause serious prejudice to the plaintiff. The same is accordingly dismissed while leaving the parties to bear their own costs. JANUARY 10 2013 rkb/mk/sk/rs/mk I.A. No.8998/2012 in CS(OS) No.1342/2011 (HIMA KOHLI)