Chandra Prabha (Smt.) vs Shri Satish C. Sharma and Others De+

Mukta Gupta, J.—By this application under Order VI Rule 17 CPC the Plaintiff seeks to amend the plaint. It is the case of the Plaintiff that from the issues framed on legal advice it has come to its notice that there are some deficiencies in the drafting of the plaint. During the pendency of the suit one of the Defendants Bawa Daan Singh, Defendant No. 4 died, who had been impleaded as legal representative of Bawa Milkha Singh one of the five trustees appointed. The only relief sought against Bawa Milkha Singh was an order directing him to produce such accounts and other records relating to the Trust, as may have fallen into his possession on the death of his father-in-law. Since law does not permit substitution by another Segal representative of the original legal representative, the name of Bawa Daan Singh was ordered to be deleted without any substitution and thus the same has necessitated consequential and incidental modification in the plaint By the proposed amendment the Plaintiff seeks to omit Paragraphs 4, 6, 8, 9 and 11 in the original plaint and add amended paragraphs 5, 8, 9, 11 and 12. The prayer clause is also sought to be amended to improve its conformability in an administration suit The case of the Plaintiff is that late Pandit Mulchand Sharma, father of the Plaintiff died on 25th December, 1939, leaving behind five minor surviving children and his widow. Late Pandit Mulchand Sharma executed an instrument in the form of a Will on 10th December, 1937 which came into operation on the date of his death, that is, 25th December, 1939. The said instrument was in fact a Trust in terms of Section 59 of the Indian Trust Act, 1882 which inter alia declared that his entire estate consisting of movable and immovable properties shall vest on his death in five trustees named therein who shall act jointly to manage it for the benefit of the minor children and widow. It is further stated that the document dated 28th May, 1941 filed in Suit No. 2166/1990 was neither the original copy of Will much less a certified copy of the original Will proved before the Probate Court registered and deposited with the Registrar of Wills maintained by the District Judge, Delhi in accordance with the provisions of Section 294 of Indian Succession Act. The instrument had been kept concealed from the Plaintiff till the middle of the year 1993. It is further alleged that after obtaining the probate the trustees misused the same for their ulterior motives and not for the purpose for which it was granted. The trustees started transferring the property to the main beneficiaries soon after the Plaintiff attained the majority. Though the issues have been framed, however since the amendments are essential the same be permitted to be carried out. Reliance is placed on Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, and Mangal Dass Sant Ram Gauba Vs. Union of India and Others, .

Learned counsel for the Defendants contends that the Plaintiff had filed the applications being I.A. Nos. 6043/2007, 6044/2007 and 6045/2008 u/s 151 CPC read with Section 55 and 56 of Indian Trust Act, 1882, u/s 74 read with Section 60 of Indian Trust Act and Section 68 of the Indian Trust Act respectively. This Court vide a detailed order dismissed these three applications on the ground that it was not inclined to pass any order in favour of the Plaintiff in those applications since the rival submissions raised by the parties were required to be examined at the time of trial of the matter. The Plaintiff filed an appeal before the Division Bench which was also dismissed. In fact the plaint itself is not maintainable. Further there is no cause of action in the amended plaint. The prayers have also been changed. Thus the amendments at this belated stage when the issues have already been framed are impermissible. The Plaintiff has failed to show that in spite of due diligence the parties could not have sought the amendments before the commencement of trial. Reliance is placed on Ajendraprasadji N. Pande and Another Vs. Swami Keshavprakeshdasji N. and Others, and Vidyabai and Others Vs. Padmalatha and Another, .

I have heard learned counsel for the parties.

The facts leading to the filing of the present suit are that the Plaints is the daughter of late Pandit Mulchand Sharma who died on 25th December, 1939, He was survived by his widow and five minor children. Late Pandit Mulchand Sharma left behind a Will dated 10th December, 1937 whereby he vested his entire properties immovable and as well as movable in five persons who were to manage the said properties and ensure that the family of the deceased was looked after and the children are educated and married. In a probate petition filed, a certificate of probate was granted on 28th May, 1941. The grievance of the Plaintiff is that the entire estate of her late father was distributed amongst the brothers of the Plaintiff which factum she came to know from the proceedings in Suit No. 2166/1990 and thus by the present plaint she prays for a decree of execution of the Trust by seizure and impounding of the properties mentioned in the prayer clause. The case of the Plaintiff in the plaint itself is that the Will dated 10th December, 1937 was an instrument of Trust and the executors-cum-trustees were under a duty to give information as to the instrument of the Trust to the Plaintiff as one of the legatees of the trust however, they deliberately omitted to do so. The Defendant Nos. 1, 2 and 3 herein failed to implead the Plaintiff herein in the Suit No. 2166/1990 where she herself got impleaded as a Defendant under the orders of the Court on an application under Order I Rule 10 CPC. The Plaintiff who was one of the legatees was a minor when the executors obtained the Probate in 1941 and continued to be the same even after her marriage in 1951. The Trust was not a passive Trust but an expressly created active trust for the benefit of the minors.

As noted above the Plaintiff had filed three applications under the Indian Trust Act which applications were dismissed by this Court and the appeals against the same were also dismissed. Finally on 17th August, 2011 this Court framed the issues whereafter the present application seeking amendment of the plaint has been filed.

Order VI Rule 17 CPC provides that the Court may at any stage of the proceedings allow either party to alter or amend its pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties, provided that no application for amendment shall be 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 trial. Thus the twin requirements are whether the amendment is necessary for the determination of the real question in controversy and that the party could not have sought the amendment despite due diligence before the commencement of trial. It may be noted that the stand now taken was also the stand of the Plaintiff in the original plaint. The stand of the Plaintiff is that in view of the issues framed on legal advice it noticed deficiencies in the pleadings. In the present case the issues have been framed. However, the evidence of the Plaintiffs witnesses has not been recorded as yet. While framing the issues, learned counsels for the parties had duly consented to the issues to be framed, thus now the Plaintiff cannot take a plea that since it will not be able to prove its case on the basis of the pleadings already there, it should be permitted to change the pleadings and consequently the prayer clauses.

The proposed amendments are as under:

It is not the case of the plaintiff that the proposed amendments were not in her knowledge when the plaint was filed. All these facts were in the knowledge of the plaintiff/applicant at the time of filing of the plaint. Hence, I find no merit in the application and the same is dismissed.