Jagannath Bardhan (Dead) After Him Sakhi Bewa W/O Jagannath Bardhan and ors. Vs. Kailash Bardhan and ors. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - this arrangement was decided to be reduced to writing and accordingly a document was executed and registered on 21-4-1964 between padan and his sons as well as rebati. 4. the learned single judge took into consideration the evidence of the pws 5, 6 and 7 and came to hold that their evidence is totally reliable and nothing substantial has been elicited in cross-examination to discard their testimony. 7. it is well-settled in law that an application for amendment has to be liberally allowed and the courts are to take a lenient view in the matter of entertaining a prayer for amendment either of the plaint or of the written statement. the court always gives leave to amend the pleading of a party unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. it has also been stated that he signed the said documents in good faith thinking that he was signing the document for his maintenance. 1 had stated in his evidence that he signed the document, and he has admitted that he also signed the map annexed to annexure-2. he has stated in his cross-examination that he knows how to write his name but is not able to read well. he has clearly asserted that the parties executed it after understanding the contents to be correct. dw 6 has clearly stated that the parties approached him to settle their disputes. it is a battle well fought regard being h3d to the facts almost closed in a small compass admitting no intrusion.dipak misra, j. 1. being aggrieved by judgment in first appeal no. 187 of 1932 passed by the learned single judge reversing the judgment and decree of the learned trial judge at the instance of defendant nos. 2 to 4, the plaintiff no. 2 had preferred this appeal under clause 10 of the letters patent questioning the propriety of the aforesaid judgment, and presently the appeal is being continued after his death by his legal representatives.2. one padan had filed t. s. no. 148/72 claiming 1/5th share in the schedule 'a' properties and the entire properties described in schedule 'b' on a declaration that the deed of partition dated 21-4-1964 was void, inoperative and not binding. he had also prayed for an injunction against the defendants therein from raising any construction on the 'b' schedule properties. as averred in the plaint he had four'- sons : jagannath. baidyanath, kailash and jaikrushna. the properties described in 'a' schedule were the ancestral properties which padan himself had obtained in a suit for partition in t. s. no. 5/52. schedule 'b' properties were self-acquired properties of padan as he had purchased the same out of his own personal income. as the plaint allegations proceed, while the earlier partition suit was in progress kailash and jaikrushna were looking after the litigation on behalf of padan and in course of that litigation they had come to know the lawyer and the advocate's clerk. as differences and disputes arose between padan and his sons and padan being old was not looked after by them, a suggestion came from kailash and jaikrushna that each of the sons would pay rs. 15/- per month to him towards his maintenance and rebati, the wife of kailash, would look after padan. this arrangement was decided to be reduced to writing and accordingly a document was executed and registered on 21-4-1964 between padan and his sons as well as rebati. padan was under the impression that the deed in question was a deed for his own maintenance as the parties to the documents had paid maintenance as agreed to for some time. however, with the passage of time the sons stopped paying maintenance for which he was compelled to serve a notice on his two sons, namely, jagannath and kailash. kailash replied by denying his liability. on making queries padan iearnt that in a clandestine- manner the deed of partition had been executed and registered in respect of the properties described in schedules 'a' and 'b' of the plaint, though there was no discussion or arrangement for effecting a partition of this nature. the original plaintiff padan alleged that he was not bound by the fraudulent and illegal deed of partition purported to have been executed by him on 21-4-1964 as the same has come into existence by . perpetration of fraud. on this background, he sought the reliefs as indicated earlier. jagannath who was originally defendant no. 1 in the suit got himself transposed as plaintiff no. 2 and supported the case of padan his father. baidyanath did not contest the suit and chose to remain ex parte. kailash and rebati filed a written statement denying the plaint allegations. jaikrushna filed a separate written statement controverting the allegations made in the plaint. the stand of the defendants in their respective written statements is that four sons of padan had constituted a joint hindu family and baidyanath, was staying at calcutta and was not coming to cuttack. after the. death of padan's wife dissension arose between the brothers and they. claimed for partition. as baidyanath had settled in calcutta he expressed his desire not to take any share and accordingly relinquished his interest. as it was decided that rebati would take care of her father-in-law and render service, jaiakrushna and rebati would get half share in the properties described in schedule 'b' of the plaint and in return they agreed to pay rs. 500/- and rs. 400/- respectively to padan. jagannath,kailash and jaikrushna agreed to pay rs. 15/- per month to radan towards his maintenance. with these agreed terms and conditions they approached their counsel sri haricharan mukherjee and with his advice a family settlement was drawn up. after formalities being complied with it was executed and registered on 22-4-1964. as stated in the written statement a deposit of rs. 900/- was kept with the lawyer and a deed of agreement was also executed by jagannath, kailash and jaikrushna who agreed to pay maintenance to their father padan. as jagannath had got a vacant land it was agreed that he would get rs. 150/- from kailash towards construction of his house. it was also pleaded that the properties described in schedule '6' had been acquired out of the joint family funds or in the alternative the same having been blanded with the joint family properties, it had assumed the character of joint family coparcenary properties and the same having been partitioned a suit for fresh partition was not . maintainable.3. on the aforesaid pleadings the learned additional subordinate judge framed nine issues and decreed the suit on 19-6-1975. on appeal being preferred forming the subject-matter of first appeal no, 109/75, the judgment and decree passed by the original court were set aside and the matter was remanded for retrial by framing an issue, namely, whether ext. 2 the deed of partition is binding on padan and executants thereof. fadan died during psndency of the first appeal. baidyanath having no iegal heir none was substituted in his place. alter remand fie parties adduced fresh evidence and ultimately the learned trial jude decreed the suit by corning to hold that the properties described in schedule 'b' of the plaint were self-acquired properties of padan and the plea of earlier partition was a myth and never been acted upon and the registered deed, ext. 2, was not binding on padan as he was old and lost his eyesight. on such conclusion the trial judge directed that padan having died and baidyanath having no interest properties could be partitioned between the three sons namely, jagannath. kailash and jaikrushna. the aforesaid judgment was called in question in first appeal no. 187/82. before the learned single judge it was contended that the oral evidence and other materials on record would categorically go to show that by virtue of execution of ext. 2 there was a prior partition and the question of further partition did not arise. it was also contended that there was no reason to declare of the ex. 2 as invalid and inoperative in the eye of law. on behalf of the respondent therein it was canvassed that ext.2 having not been read over and explained to padan the conclusion arrived at by the original court was unassailable.4. the learned single judge took into consideration the evidence of the pws 5, 6 and 7 and came to hold that their evidence is totally reliable and nothing substantial has been elicited in cross-examination to discard their testimony. he has also recorded a finding that the contents of ext. 2 had been fully read over and explained to the parties whereafter they had signed the document knowing the contents thereof. he placed reliance on exts. a and b/1 to arrive at the conclusion that jagannath had admitted partition between the father and the other brothers and there is no explanation on record, as far as the admission is concerned. on the basis of the oral and documentary evidence, the learned single judge came to hold that a partition had already been effected between padan and his three sons and ext. 2 being valid in the eye of law a fresh suit for partition would not lie. coming to these conclusions, he allowed the first appeal and dismissed the suit. hence, this appeal by the present appellants.5. during the pendency of this appeal, two applications have beep filed, one is for amendment of the plaint and the other is for acceptance of the original of ext. 2 as additional evidence. before we proceed to deal with the respective ' contentions of the parties, we would address ourselves with regard to the aforesaid two petitions.6. the amendment sought for is in effect for substantiating the allegations of fraud, mis-representation, manipulation, the status of jagannath, his lack of education and non-compliance of certain other formalities in execution of ext. 2. in the proposed amendment it is alleged that jagannath was not a conscious party to the document and he signed without knowing the contents tnereof. there is also denial of the lawyer's notice dated 15-1-1971. the prayer for amendment seriously opposed to by the respondents on the ground that if amendment is allowed the same would cause serious prejudice to the respondents and the whole suit would be re-opened. it is also resisted on the ground that the suit is of the year 1972 and jagannath was transposed as plaintiff long back and he also became the sole plaintiff after the matter was remanded by this court in the previous appeal but at no stage, amendment was sought for and the belated prayer cannot be given indulgence. it is also furiously objected on the ground of mala fide stating that it is an intentional subterfuse to frustrate and defeat the judgment passed in the first appeal.7. it is well-settled in law that an application for amendment has to be liberally allowed and the courts are to take a lenient view in the matter of entertaining a prayer for amendment either of the plaint or of the written statement. it is needless to say an amendment can be filed at any stage of the proceeding and delay is not always a factor to refuse the prayer for amendment. it is the court's discretion but this discretion is not absolute. the discretion of the court cannot be equated with wild humour. in this regard, we may quote a passage from justice cardozo :'the judge even when he is free is still not wholly free. he is not to innovate at pleasure. he is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. he is to draw his inspiration from consecrated principles. he is not to vield to spasmodic sentiment to vague and unregulated benevolence. he is to exercise a (discretion) disciplined by system, and subordinated to the primordial necessity of order in the social life'. wide enough in all conscience is the field of discretion that remains 'keeping the aforesaid concept of discretion, we have to see whether the discretion can be called in aid in favour of the plaintiff-appellant. use of discretion should be in the interest of justice and should not affect or cause prejudice to the other side. the apex court in the case of pirgonda hongonda v. kalgonda shidgond patil and ors., reported in air 1957 sc 363. held that all amendments are to be allowed if they satisfy two conditions, namely, if it does not cause injustice to the other side and if it is necesary for the . purpose of determining the real questions in controversy between the parties.again in the case of jai jai ram manohar lal v national building material supply, gurgaon, reported in air 1969 sc 1267, the apex court held as follows : 'rules of procedure are intended to be a handmaid to the administration of justice. a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. the court always gives leave to amend the pleading of a party unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. however, negligence or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.'this court in the case of dr. padmini mishra v. dr. rameshs chandra mishra, reported in 1991 orl. 263 observed that if by allowing amendment serious prejudice and injustice would be caused to the other side the same should be rejected.in the case of lucy narona v. sri raghunath jew bije chhauni math, represented through mohant ajodhyananh das, reported in 74 (1992) clt 463, this court ruled thus :'whereas a result of the amendment the parties are to litigate afresh with reference to the subject-matter of the suit, as substituted by the emendment from the stage of filing of a written statement and which evidently would require fresh set of evidence to be adduced by both parties. the amendment cannot be allowed to the prejudice of the other side...'8. the learned hounsel for the appellant has referred to the decision in the case of puna bawa and ors. v. dinabandhu mangaraj and anr., reported in air 1985 ori. 130. in support of his prayer for amendment. appreciating the factual matrix the totality of the circumstances, the nature of litigation, its long continuance, availability of opportunities by the plaintiff at various stages, the nature of evidence adduced by the parties, the prejudice that is likely to be caused to the defendants and the injury to be sustained by them, we are of the considered view the prayer for amendment cannot be allowed to the prejudice of the other side as the whole suit would be re-opened afresh almost after a quarter century. we, therefore, rejact the application for amendment.9. we may now deal with the prayer for adducing additional evidence. the certified copy of the partition deed dated 21-4-1964 has already been marked as ext. 2 and in the present application, the prayer is to accept the original document since it has become available. as contended by the learned counsel for the appellant, the same is essential to arrive at a proper conclusion in regard to the literacy and physical ability of padan. it is also submitted that these aspects can be appreciated in proper perspective by visual observation of the signatures of the said padan. while dealing with an application under order 41. rule 27 of the code of civil procedure, the real test is pronouncement of judgment in a more satisfactory manner keeping in view the interest of justice. this view finds support from the decision in the case of k- venkataramiah v. seetharama, reported in air 1963 sc 1526, and mukha nayak an j ors. v. umakanta sahu and ors. reported in 1996 (i) olr 505. keeping in view the aforesaid parameters vve are of the considered opinion that the application under order 41, rule 27, cpc should be allowed to demolish the obscurities and pronounce the judgment in a more satisfactory manner.10. now, we will address ourselves with regard to the contentions of the parties raised in the present appeal. sri b. das. learned ' counsel for the appellant has challenged the judgment passed by the learned single judge on many a ground and the essential aspects of his contentions can be enumerated as under:(a) the learned single judge has not discussed the suspicious circumstances, namely, the division of entire property among the sons and a daughter-in-law, depriving any share to padan the old father; distribution of self-acquired propety of padan, denying him any benefit; allotment of a share in favour of the daughter-in-law who is not a co-sharer; the scribe, the adviser and the attesting witness belong to a singe office ; the conduct of other sons and their behaviour towards padan; and non-allotment of shares.to the wives of jaganath and jaikrushna. (b) as admitted in ext. 2 padan was an old man and affected by blindness and therefore, was handicapped. that appart he only knew how to put his signature but was not able to read and write. in view of this incapacity the onus is on the beneficiaries of ext. 2 to establish that the said document was properly executed after the contents thereof was read over and explained to padan. in absence of that the onus is not discharged and they cannot derive the benefit of the said document. (c) there are averments in the plaint and ample materials on record that it was decided that the sons would pay rs. 15/-per month to padan towards his maintenance and therefore, padan signed the document being under the impression that he was executing a document for getting his own maintenance but the defendants colluded with the scribe, adviser and the witnesses obtained his signature on a deed of partition, and therefore, the said deed is tainted with fraud and misrepresentation and hence void and inoperative. 11. controverting the submissions of sri das, sri. r. k. mohapatra. the learned senior counsel for the respondents, contended that there is no specific pleading with regard to fraud and misrepresentation. he has also submitted that padan was a wordly-wise man and was dealing with his properties in a prudent manner and had experience of series of litigations in his life and had dealt with his properties in independent manner, and therefore, it cannot be said that he was an illiterate man who was unaware of the contents of the deed. it has been strenuously urged by sri mohapatra that padan was advised by a senior and respected counsel of the bar, and had also the advice of jagannath, the son who supported him, and therefore, it is difficult to conceive that both padan and jagannath were unaware of the contents of the deed. the learned counsel has also relied on ext. a and has referred to the concession given by the counsel for jagannath in first appeal that no explanation had been offered to explain away the admission contained in ext. a. he has also pressed into service of the lawyer's letter, ext. b/1.12. we have perused the judgment passed by the learned single judge. we have also gone through the plaint, written statement and the evidence on record. we find from the averments in the plaint that padan believed the versions of his two sons namely jaikrushna and kailash and put his signature at various places. similarly, his other two sons jagannath and baidyanath also signed on the said documents. it has also been stated that he signed the said documents in good faith thinking that he was signing the document for his maintenance. apart from this it has been stated in paragraph 11 of the plaint that the document having been fraudulently taken is a void one. thus, it becomes plain as day that except the nature of document, nothing else has been questioned by the plaintiff. it is settled in law, that the averments regarding fraud has to be made specifically and the manner of fraud is also to be indicated. in the absence of any specific and definite assertion of fraud it is difficult to accept the plea of practice of fraud. the mere use of the word 'fraud' or receipt would not suffice. in this regard we may refer to the decisions reported in tom boevey barrett v. african products ltd. : air 1928 pc 261 and bishnudev narain and anr. v. seogani rai, reported in air 1951 sc 280. the only specific mis-representation in the case in hand, is padan was given the impression that he was executing a deed for his own maintenance. in this regard, we may refer to the evidence of padan :'they told him it was a document to ensure my maintenance and since it was already late there was no time to read over and explain the contents to me. so i execute the document believing that it was a document providing for my maintenance.'jaganath who was transposed as plaintiff no. 1 had stated in his evidence that he signed the document, and he has admitted that he also signed the map annexed to annexure-2. he has stated in his cross-examination that he knows how to write his name but is not able to read well. to prove their bona fides the defendants have examined the sctibe as defendant witness no. 5 and the senior advocete as dw 6. the scribe has stated in detail with regard to the execution of the document. he has clearly asserted that the parties executed it after understanding the contents to be correct. the advocate, dw 6 has categorically stated that padan had approached him for drafting a partition dead which the parties had amicably settled. he has also stated that he drafted petition deed and with consent of the parties the partition deed was finally prepared. apart from this evidence the defendants have also examined some witnesses to show that the deed has been soted upon and it has been properly executed. they have also brought on record ext. a to indicate the admission of jagsnnath. from perusal of these documents and the evidence on record, we are of the considered view that the onus has been discharged by the defendants.13. in a case of this nature, the onus shifts. the contention of the learned counsel for the appellant is that the suspicious circumstances have been ignored by the learned single judge and padan and jagannath have signed the documents without being aware of the contents and there has been mis-representation. after holding that the defendants have discharged their initial onus, we will presently advert with regard to the discharge of burden by the plaintiff. padan had the advice of a very senior counsel. the scribe has deposed in unequivocal terms that the signatories to the document put their signatures after understanding the contents thereof. sri ashok mukherjee and sri aruna misra, advocates, are the attesting witnesses to the documents. no steps were taken to call those attesting witnesses to the witness box to demolish the contents of the documents. dw 6 has clearly stated that the parties approached him to settle their disputes. from the aforesaid evidence on record, it cannot be inferred that padan being an old man was not aware of the nature of the document. he has put his signature on all pages. taking into consideration the totality of facts, it can be safely concluded that padan was aware of the nature of the document. jagannath, the plaintiff no. 2 and a supporting pillar to his father, has admitted in ext. a that there was a partition between the father and jagannath and two other brothers. the same admission is also contained in ext. b/1, the reply of the advocate of jagannath.that apart,jagannath has written in ext. 2 that he has understood the contents thereof. interestingly enough, he has also signed on the sketch-map attached to ext. 2. it is astonishing that if ext. 2 was purported to be an agreement for maintenance, there would not have been a sketch-map attached to the same. a man involved in any property transactions in normal course would not have put his signature on the sketch-map if he was not conscious of the situation. all these indubitably lead to a singular' conclusion that both padan and jagannath were aware with regard to the nature of the documents and signed the same after fully understanding the contents thereof. once the said document is accepted, the plea of prior partition has to be accepted. once there is a prior partition between the parties, a fresh suit for partition would not be tenable and therefore, no relief can be granted to the appellants in the present appeal.14. resultantly, we conclude and hold that the appeal is devoid of merit and is liable to be dismissed and we accordingly do so. however, the parties shall bear their own costs throughout.15. before we part with the gase, we must record our appreciation for the valiant effort made, by sri b. das, the learned counsel for the appellant. it is a battle well fought regard being h3d to the facts almost closed in a small compass admitting no intrusion.s. chatterji, a.c.j. i agree.