FAO(OS)/190/2016 of MANU MARKANDE AND ANR Vs STATE & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on :October 15, 2018Judgment pronounced on: November 01, 2018

+FAO(OS) 114/2016 AND CM APPL. 13061/2016

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE A. K. CHAWLA

J U M N T

A.K. CHAWLA, J.

1.These two appeals impugn the order dated 14.01.2016passedbythelearnedSingleJudge,partlyallowinganapplication (IA No.21049/2014) seeking amendments in the

reply/objections (written statement) filed Ajay Sharma, (appellantin FAO(OS) No.114/2016, hereafter “Ajay” and Vijay KumarSharma(thirdrespondent,hereafter“Vijay”)inTest.Cas.51/2010).

2.The relevant facts are that one Pyare Lal Sharma and hiswife Shanta Sharma (both since deceased) had two sons and threedaughters namely, Vijay, Ajay, Ms. Surakasha Markande (sincedeceased hereafter “Suraksha”); Ms. Sudesh Khanna (“Sudesh”hereafter);and,Ms.VinaySharma(“Vinay”hereafter).Surakasha predeceased her parents and died on 16.03.1999. PyareLal Sharma died on 20.08.2000 and Shanta Sharma died on10.12.2000. Suraksha was married and had two children namely,(Manu Markande and Manishree Markande- (hereafter “Manu”and “Manishree”). They are appellants in FAO(OS) 190/2016.

3.What emerges from the chequered history of the case isthat in 2007, the surviving sons and daughters of Pyare LalSharma (viz. Vijay, Ajay, Sudesh and, Vinay) filed petitionunder Section 372 of the Indian Succession Act (Succession Cas.No. 183/2007 i.e. Sudesh Khanna & Ors. vs. State & Ors.)seeking succession certificate in respect of debts and securityetc. of Pyare Lal Sharma and Shanta Sharma.

4.In the petition, (before the Administrative Civil Judge,Delhi) Manu and Manishree were arrayed as the second and thirdrespondents. During the pendency of the petition, sometime inJuly, 2010, Manu and Manishree filed Test. Cas. No.51/2010

before this court under Section 270, 278 and 300 of the IndianSuccession Act for grant of Letters of Administration in respectof the estate of the deceased Pyare Lal Sharma and ShantaSharma. In that petition, Sudesh, Vijay, Ajay and Vinay werearrayed as second to fifth respondents. Later, on transferpetition (being TR.P.(C) 32/2010) filed by Manu, on an orderdated 12.04.2012, the Succession Case No. 183/2007 titledMs.Sudesh Khanna and Ors. vs. State & Anr. pending before theAdministrative Civil Judge was transferred to this court andtagged along with Test. Cas. No.51/2010. Succession Cas. No.183/2007 on transfer was registered as Test. Cas.46/2012.

5.Pleadings in both the cases were complete, when Ajay andVijay filed I.A. no.21049/2015 under Order 6 Rule 17 CPCseeking amendment of the common reply/objections dated03.10.2012, in short, 'the said application'. Adverting to therecord of the proceedings and the conduct of their counsel inprosecuting the case on their behalf and the fact that at therelevant time they were residents of West Indies and Canadarespectively and there was communication gap between them andtheir counsel, they sought amendments to their reply/objections(written statement), which are well enumerated in para 2 of theimpugned order. Suffice to say, by the amendment sought, Ajayand Vijay sought to incorporate the plea of execution andexistence of family agreement dated 11.10.1993, in short, 'thesubject family agreement' by Surakshsa and elaborate the due

execution of the Will dated 16.08.2000, in short, 'the subjectWill'. Besides such pleas, Ajay and Vijay also sought toincorporate the plea that Test. Cas. no. 51/2010 was barred bylimitation alleging that the immovable property bearing no. C-113, Naraina Vihar, Delhi stood mutated in their favour in theyear 2001 itself and in view of the fact that the subject Will wasdated 16.08.2000, the petition seeking Letters of Administrationin the year 2010, was time barred.

6.The amendment sought was opposed by Manu andManishree on the premise that both the documents viz. thesubject family agreement and the subject Will were forged andfabricated and that the said pleas were not only inconsistent, buthad the effect of wriggling out of the admissions made and anapplication under Order XII Rule 6 was already filed.

7.By the impugned order, the learned Single Judge decliningthe amendments as regards the questions of limitation, grantedthe said application to incorporate the pleas of the execution ofthe subject family agreement by Suraksha and the subject Will byPyare Lal Sharma. On account of the amendments partly allowedand partly declined, both the parties have preferred theirrespective appeals in hand.

8.It is submitted on behalf of Manu and Manishree that theimpugned order is unsustainable in law. It is argued that theamendments permitted not only had the effect of resiling fromthe admissions made, but also had the effect of permitting

inconsistent pleas founded on forged and fabricated documentsand the said application was not bonafide. Placing reliance uponReevajeetu Builders and Developers vs. Narayanaswamy andsons and others, (2009) 10 SCC 84, it was strenuously contendedthat ignoring the dishonest and mala fide conduct, the applicationwas granted on the substantial aspects in casual manner.

9.It was also contended that by granting the said application,the learned Single Judge has allowed Ajay and Vijay to set up anew case and rendered the application under Order XII Rule 6filed by Manu and Manishree infructuous and that was contraryto the law laid down in Gautam Sarup vs. Leela Jetly and others,(2008) 7 SCC 85. Placing reliance upon S. Malla Reddy vs.Future Builders Cooperative Housing Society and others, (2013)9 SCC 349, it was argued that the said application was maliciousin the given facts and circumstances inasmuch as the plea ofnegligence of counsel was not sustainable, especially, when aplea of the similar nature was rejected earlier by the court.

10.Learned counsel for Ajay and Vijay however contendedthat the amendments were necessary to decide the real disputeamongst the parties and that for the laxity or the negligenceattributable to an advocate, litigant should not suffer. It wasalso contended that the request for amendment of plaint and thewritten statement stand on different footing inasmuch as in thewritten statement even alternate inconsistent pleas can be taken.In support of such submissions, reliance was placed on Rajesh

Kumar Aggarwal & Ors. vs. K.K. Modi & Ors., 2006(3) SCALE312 and Usha Balasaheb Swami vs. Kiran Appaso Swami, AIR2007 SC 1663.

11.The records of Succession Cas.183/2007 (since transferredto this court & numbered Test. Cas.46/2012 Ms. Sudesh Khannaand Ors. vs. State & Anr.) and Test. Cas. 51/2010 ManuMarkande & Ors. vs. State & ors. were called for and perused.

12.The single judge culled out the amendments sought in thesaid application, which is too exhaustive, in para 2, as follows :

"(i)The mother of the petitioners Smt. Suraksha Markandehad in her life time executed family agreement dated11.10.1993 whereby the mother Smt. Suraksha Markande hadwaived of her rights in the property bearing no. C-113, NarainaVihar, New Delhi. It is contended that on account of thenegligence of the earlier counsel this most important plea wasnot taken earlier. This plea which is now sought to be raised issupported by filing the original agreement dated 11.10.1993executed by Smt. Suraksha Markande.

(ii)Late Sh. Pyare Lal Sharma the grandfather died leavingbehind his Will dated 16.8.2000 as per which the petitionersreceived sum of Rs.1 lakh each and gave up of their rights inthe properties of their grandparents. Accordingly, the writtenstatement is sought to be amended with other related facts thaton account of the Will dated 16.8.2000 of late Sh. Pyare LalSharma, petitioners have no rights to the properties of thegrandparents.

(iii)The petition for letters of administration is pleaded to bebarred by limitation as the period of limitation is 3 years withrespecttotheprobatecaseandthusthislettersofadministration case which has been filed in the year 2010 istime barred as the Will of late Sh. Pyare Lal Sharma is dated16.8.2000.

(iv) The petition is also barred by limitation because therespondent nos. 3 and 4 had got mutated the suit property in

their names in the year 2001 and the claim of the petitioners tothe suit property is hence time barred."

13.The amendments at serial nos. (i) and (ii) in the precedingpara, it requires no elaboration, relate to material factual aspectsand are concerning the valuable rights of the parties in the estateleft behind by Pyare Lal Sharma and Shanta Sharma, especially,the immovable property bearing no. C-113, Naraina Vihar, Delhi.It is matter of record that in Succession Cas. no. 183/2007 Ajayand Vijay along with their two sisters Sudesh and Vinay soughtissuance of succession certificate for distribution of only themovable assets comprising of the savings and fixed depositamounts lying with various banks and shares etc. Furthermore, itis also matter of record that in the reply, Manu and Manishreestated that no Will was left behind by Pyare Lal Sharma and inrejoinder, signed only Ms. Sudesh Khanna, it was not disputed.In this background, it appears, Manu and Manishree filed Test.Cas.51/2010 seeking Letters of Administration in respect of theestate left behind by Pyare Lal Sharma and Shanta Sharma.Whether the purported admission in the rejoinder in SuccessionCas. no. 183/2007 (Test. Cas. 46/2012) in the hand of Sudesh hadthe effect of binding Ajay and Vijay on the material aspects ofthe existence of the subject Will, (on which basis the immovableproperty bearing no. C-113, Naraina Vihar, Delhi, is said to havebeen mutated in favour of Ajay and Vijay way back in the year2001), would be matter of consideration by the court. So wouldbe case with regard to the factual aspects of due execution and

existence of the subject family agreement and the subject Will.Facts cannot be erased or obliterated. It is different matter that aparty in its pleadings admits or denies the existence of fact. It isonly when dispute is raised as to the existence of fact, that thecourt would proceed to adjudicate thereupon.

14.In the above background, when the court adverts to thecase in hand, it would be relevant to note that in thereply/objection dated 03.10.2012 filed by Ajay and Vijay in Test.Cas.51/2010, which they sought to amend, there was no anyadmission of non-existence of the subject Will or the subjectfamily agreement. To the contrary, they have averred for the dueexecution of the subject Will by Pyare Lal Sharma. Here, it isalso relevant to note that in such reply/objections (writtenstatement), they have also specifically averred that both Manuand Manishree have even received the amounts as per the wish ofthe testator under the subject Will to show that the subject Willwas even acted upon to the knowledge of Manu and Manishree.In this background, the purported admission made in therejoinder in Succession Cas. 183/2007 (Test. Cas.46/2012),which is signed only by Sudesh prima facie, cannot be said to bean un-equivocal admission of non-existence of the subject Willby Ajay and Vijay.

15.In the reply/objections dated 03.10.2012, Ajay and Vijayon their part also seek to explain that the Succession Cas.183/2007 was filed to seek succession certificate only in respect

of movable assets of Pyare Lal Sharma and Shanta Sharma.Whether such plea is sustainable or not and/or would invite penalaction(s) against them or Ms. Sudesh Khanna, of course, cannotbe gone into at the stage of consideration of the said applicationseeking amendment of the pleadings. All amendments of thepleadings, it is settled law, are to be allowed as long as these arenecessary for the determination of the real controversy in relationto the subject matter of an action. Though, it is equally true thatan amendment cannot be allowed, when it has the effect ofwithdrawing an admission made by party in the originalproceedings, it is matter of record that in the originalreply/objections, which was sought to be amended, Ajay andVijay did not make any admission, which the amendmentsallowed have the effect of being taken away. Then, whether anyof the documents viz. the subject family agreement and/or thesubject Will are forged and fabricated is matter that can beadjudicated only on trial.

16.In the given facts and circumstances of the case therefore,the reliance placed on Reevajeetu's case (supra) by Manu andManishree is misplaced. The Supreme Court in that decision infact reiterated that the basic test governing the grant or refusal ofamendment is whether such amendment is necessary fordetermination of real question in controversy or for proper andeffective adjudication of the case. In doing so, supreme court hasalso said that the principles enumerated in the judgment supra

were only illustrative and not exhaustive. It is thus clear from thesaid judgment also that each case has to be decided on its ownmerits. Gautam Sarup's case is equally of no avail to Manu andManishree because in Ajay and Vijay’s original pleadings, whichwere sought to be amended, there is even no implied admissionthat Pyare Lal Sharma did not leave behind any Will. Noquestion of any inconsistency in the pleas is therefore attracted.At the same time, it is equally well settled that even inconsistentpleas can be raised in the written statement. S. Malla Reddy'scase (supra) is also distinguishable on facts inasmuch as in thatcase the plaintiff had sought to amend the plaint after 13 yearshaving exhausted full run of appeals up to the Supreme Courtand had lost on two earlier applications under Order 6 Rule 16and under Order 8 Rule 9 for the similar relief more-so when thehearing of the suit had already commenced. Here, however, theissues are not yet framed. In view of the foregoing, the FAO(OS)190/2016 must fail.17.This court further does not find any merit in FAO(OS)114/2016 filed by Ajay and Vijay as regards the declining of theamendments on the questions of limitation. Suffice to say,learned counsel for Ajay and Vijay did not even advert to anyprovision of law on the premise whereof Ajay and Vijay havesought to raise the questions of limitation. Said appeal is whollymeritless and must fail with costs.

18.In view of the foregoing, FAO(OS) 190/2016 is dismissedwithout any order as to costs. FAO(OS) 114/2016 is howeverdismissed with costs of `50,000/- to be deposited with Delhi HighCourt Legal Services Committee within four weeks.

A. K. CHAWLA, J

NOVEMBER 01, 2018rc

S. RAVINDRA BHAT, J