Deepak Kaur vs S. Hari Simran Singh & Ors

Jayant Nath, J

IA No.10164/2020

This application is filed on behalf of the plaintiff under Order VI Rule 17 CPC for amendment of the plaint.

The case of the plaintiff in the original plaint is that the property bearing no. 5, Jantar Mantar Road, New Delhi â€" 110001 (hereinafter referred to

as “the suit propertyâ€) was originally owned by the grandfather of the plaintiff, namely, late Sahib Basakha Singh vide a perpetual lease deed

dated 18.08.1920 executed in his favour by the Secretary of State for India. During his life time, Late Sahib Basakha Singh gifted the suit property to

his son Sardar Daya Singh (father of the plaintiff and defendant No.1) vide a Gift Deed dated 07.03.1956. Sardar Daya Singh then placed the suit

property into a Hindu Undivided Family of which he was the Karta, namely S. Daya Singh and Sons (HUF) (hereinafter referred to as “the

HUFâ€​). At the time of placing of the suit property in the said HUF, the HUF was said to consist of the following members:

i) Sardar Daya Singh,

ii) Sardarani Amarjit Kaur (W/o Sardar Daya Singh),

iii) Sardar Hari Simran Singh (S/o Sardar Daya Singh),

iv) Sardar Amolak Singh (S/o Sardar Daya Singh).

Sardar Amolak Singh passed away in 1998, leaving behind a Will dated 30.04.1998 by virtue of which he bequeathed 80% of his share in the HUF

(i.e. 20% share in the suit property) in favour of his sister, the plaintiff herein. Remaining 20% of his share in the HUF (i.e. 5% share in the suit

property) was bequeathed for charitable purposes. Thereafter, in 2010, the plaintiff being a co-owner of the suit property filed a suit for partition

before this court, which was registered as CS(OS) 738/2010. During the pendency of the said suit, a Memorandum of Agreement/Settlement dated

10.12.2011 was executed between the parties wherein it was agreed that the plaintiff has 20% undivided interest in the suit property and that an area

equal to 20% of the overall area of the plot was agreed to be allocated to the plaintiff. The suit was decreed and disposed of on 23.11.2011 in terms of

the aforesaid Memorandum of Agreement/Settlement dated 10.12.2011. It is stated that on an application filed by the parties, the court on 22.05.2012

clarified that the decree in the suit was not a partition decree and was merely a decree of declaration of the shares of the parties.

Thereafter, in terms of the judgment and decree dated 23.12.2011, the plaintiff was substituted as holder of 20% undivided share in the suit property

in the records of the Land and Development Office, Ministry of Urban Development, Government of India. A conveyance deed was also registered in

favour of the parties on 28.03.2014 wherein it was recorded that the plaintiff is the owner of 20% undivided share in the suit property.

The plaintiff, thereafter on account of certain impediments by the defendants, decided that she was not interested to continue to own and enjoy the

suit property in co-ownership with the defendants and requested for partition of the suit property. Hence, the present suit was filed by the plaintiff

seeking a final decree of partition of the suit property by metes and bounds in respect of her 20% undivided share in the suit property as stated by the

decree dated 23.12.2011.

It is stated that now in view of the judgment of the Supreme Court dated 11.08.2020 in the case of Vineeta Sharma v. Rakesh Sharma & Ors.,

(2020) 9 SCC 1 the Supreme Court while interpreting section 6 of the Hindu Succession Act, 1956 held that the said provision confers the status of a

coparcener on the daughter born before or after the amendment in the same manner as that of a son. It is stated that the right as a coparcener is by

birth and it is not necessary that the father as a coparcener should be alive as on 09.09.2005. It is pleaded that when the suit was filed, the plaintiff

claimed 20% undivided share in the suit property by virtue of the Will of Sardar Amolak Singh. It is also pointed out that Sardar Daya Singh who

passed away on 26.09.2001 left a Will dated 22.10.1999 by virtue of which he bequeathed his 25% share in the HUF to his two grandsons, i.e.

defendant Nos.2 and 3 herein. It is stated that now by virtue of the said judgment of the Supreme Court, the plaintiff has aggregate of 36.66%

undivided interest in the suit property, i.e. 20% share acquired by virtue of the Will of Sardar Amolak Singh and 16.66% on account of being a

coparcener in her own right. Since the present suit was filed by the plaintiff seeking partition in respect of her 20% undivided share in the suit

property, the plaintiff has filed the present application seeking an amendment in the plaint to the extent that her undivided share in the suit property

stands at 36.66% and not 20%, as stated in the plaint.

I have heard learned counsel for the parties.

Learned senior counsel for the plaintiff strongly urges that what was passed in the earlier suit was a preliminary decree ascertaining the shares of

the parties and no final decree of partition for the suit property was passed. He relies upon the judgments of the Supreme Court in the case of

Maddineni Koteswara Rao v. Maddineni Bhaskara Rao & Anr., (2009) 13 SCC 179 and Prema v. Nanje Gowda & Ors., (2011) 6 SCC 462 to argue

that once a preliminary decree is passed, a court is free to amend the preliminary decree as there is no finality to the same. Hence, he states that the

amendment is occasioned on account of subsequent judgement of the Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma & Ors.

(supra).

Learned senior counsel appearing for the defendants has opposed the present amendment. He has pointed out that issues were already framed and

the matter was fixed for final arguments. The parties had agreed that no evidence needs to be lead. Reliance is placed on the judgments of this court

in the case of Subhash Chander Bhatia v. Raj Kumar Bhatia, 2016 SCC OnLine Del 5626 and Yashaswi Aggarwal & Anr. v. Sh. Rakesh Aggarwal

& Ors., 2018 SCC OnLine Del 7234 to plead that allowing the amendment would change the entire nature of the suit, which would not be permissible.

On 05.12.2019, this court framed the issues and passed the following orders:

“ xxxxx

CS(OS) 453/2017

Plaintiff had earlier filed a suit being CS (OS) No.738/2010 titled as Mrs. Deepak Kaur vs. S. Hari Simran Singh & Ors. seeking partition of the suit

property being 5, Jantar Mantar Road, New Delhi besides injunction.

In the said suit a compromise decree dated 23rd December, 2011 was passed after the parties had entered into a settlement ascertaining the shares

of the plaintiff and the defendants in the suit property. Plaintiff was apportioned 20% in the suit property. The parties continued to be in joint

possession of the suit property and enjoyed their respective shares. Pursuant to the compromise decree, the property was converted to freehold

wherein the share of the plaintiff to be 20% in the suit property was also described. However, the suit property has not been divided by metes and

bounds till date and hence the present suit wherein the plaintiff inter alia seeks a final decree of partition of the suit property by metes and bound

whereby declaring her partitioned share of the suit property, permanent injunction restraining defendants from interfering with her portion and a

mandatory injunction to fully comply with the obligations under the compromise decree dated 23rd December, 2011 passed in CS (OS) No.738/2010.

Pleadings in the suit are complete.

Parties have already filed their affidavits of admission/denial and the admission/denial of the documents has taken place.

Learned counsels for the parties state that two issues which would arise for consideration in the present suit would now be as under:

(i) Whether the plaintiff is barred by the principle of res-judicata or the principle of Order II Rule 2 CPC from seeking a partition of the suit property

by metes and bounds pursuant to a compromise decree dated 23rd December, 2011 passed in CS (OS) No.738/2010 and

(ii) Consequential relief, if any.

Learned counsels for the parties agree that to decide the issues as noted above, no evidence is required to be led by the parties and the same can

be decided based on the pleadings in the suit as also the documents filed by the parties.

List the suit for hearing on the two issues on 18th February, 2020.â€​

The fact is that in the earlier suit filed by the plaintiff being CS(OS) 738/2010, no final decree of partition was drawn up. This is obvious from a

perusal of the order dated 22.05.2012 passed in the said suit clarifying the decree. Relevant portion of the said order reads as follows:

“Heard the counsel for the plaintiff. A bare perusal of the order dated 23.12.2011 shows that the Registry in the present case, was directed to

draw up a decree sheet of declaration of the shares of the parties. I am, thus, of the opinion that the decree in the present case is not a partition

decree and does not require to be stamped.â€​

Reference may be had to the judgment of the Supreme Court in the case of Prema v. Nanje Gowda & Ors. (supra). That was a case in which a

suit for partition and separate possession of shares was filed by respondent No.1. After passing of the preliminary decree respondent No.1 instituted

final decree proceedings. At that stage, the appellant filed an application under Sections 151, 152 and 153 of CPC for amendment of the preliminary

decree and for grant of a declaration that in terms of Section 6A inserted in the Hindu Succession Act, 1956 by the Hindu Succession (Karnataka

Amendment) Act, 1990 the applicant was entitled to 2/7th share in the suit property. Respondent No.1 contested the application stating that the

preliminary decree passed is deemed to become final. In those facts, the Supreme Court held as follows:

“16. We may add that by virtue of the preliminary decree passed by the trial Court, which was confirmed by the lower appellate Court and the

High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can

be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her

share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is

amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take

cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court ceased with

the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order.

In this case, the Act was amended by the State legislature and Sections 6A to 6C were inserted for achieving the goal of equality set out in the

Preamble of the Constitution. In terms of Section 2 of the Karnataka Act No. 23 of 1994, Section 6A came into force on 30.7.1994, i.e. the date on

which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the Appellant had every right to seek

enlargement of her share by pointing out that the discrimination practiced against the unmarried daughter had been removed by the legislative

intervention and there is no reason why the Court should hesitate in giving effect to an amendment made by the State legislature in exercise of the

power vested in it under Article 15(3) of the Constitution.â€​

Similarly, reference may also be had to the judgment of the Supreme Court in Maddineni Koteswara Rao v. Maddineni Bhaskara Rao & Anr.

(supra) where the Supreme Court held as follows:

“18. It is well settled that a suit for partition stands disposed of only with the passing of the final decree. It is equally settled that

“in a partition suit, the court has [the] jurisdiction to amend the shares suitably, even if the preliminary decree has been passed, if some member of

the family to whom an allotment was made in the preliminary decree dies thereafter.â€​

The share of the deceased would devolve upon other parties to a suit or even a third party, depending upon the nature of the succession or transfer, as

the case may be. The validity of such succession, whether testate or intestate, or transfer, can certainly be considered at the stage of final decree

proceedings.

An inference to this effect can suitably be drawn from the decision of this Court in the case of Phoolchand v. Gopal Lal AIR 1967 SC 1470. In

that decision, it was observed as follows:

“7…. there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if the circumstances justify

the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other

parties are thereby augmented ... It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have

disputed rights finally settled and specifications of shares in the preliminary decree varied before a final decree is prepared. If this is done there is a

clear determination of the rights of the parties to the suit on the question in dispute and we see no difficulty on holding that in such cases there is a

decree deciding these disputed rights, if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be

passed by the court.â€​

Hence, the settled legal position is that a suit for partition stands disposed of only with the passing of a final decree. The court has jurisdiction to

amend the share of parties suitably if a preliminary decree has been passed in view of changed circumstances/ changed law.

Reference may also be had to the judgement of the Supreme Court in the case of “Revajeetu Builders and Developers vs. Narayanaswamy

and sons and Ors.â€​ (2009) 10 SCC 84 where the Supreme Court held as follows:

“63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while

allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whetherthe proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of

application.â€​

It is clear that the present suit is filed for final decree of the partition of the share of the plaintiff. By the amendment, the suit remains a suit

seeking a final decree of partition of the suit property. The only amendment sought by the present application for amendment, is to modify the stated

share of the plaintiff in the suit property. This is based on subsequent developments namely, the interpretation of the Hindu Succession Act as now

held by the Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma & Ors. (supra). At this stage, the court is not to look into the merits or

demerits of the averments that are sought to be introduced in the plaint by way of amendment. It cannot be said that the nature of the suit has

changed.

Clearly, in the earlier suit being CS(OS) 738/2010, no final decree of partition was passed as is manifest from the order dated 22.05.2012 noted

above. In view of the settled legal position, the plaintiff would be well within her right to amend the plaint as sought.

I may note that reliance of the learned senior counsel for the defendants on the judgment of this court in Yashaswi Aggarwal & Anr. v. Sh.

Rakesh Aggarwal & Ors.(supra) is misplaced. On the facts of the case, the court had held that the amendment application would change the entire

nature of the suit. This is obvious from a reading of para 6 of the judgment which reads as follows:

“6. It is quite clear that allowing the present application would change the entire nature of the suit. The main issue in the present suit is as to

whether the two properties in Sunder Nagar are HUF properties and if so, are liable to be partitioned by the present suit filed by the plaintiffs who

were minors at the time of institution of the suit. The properties which are now sought to be brought in by this amendment application belong to the

estate of late Sh. Rai Saheb Chiranji Lal who was survived by four sons including late Sh. Manohar Lal. The issues that would arise for adjudication

and the evidene required are totally different for the two set of properties.â€​

Further reliance of the counsel for the defendants on the judgment of this court in Subhash Chander Bhatia v. Rajkumar Bhatia (supra) is

misplaced. The above judgment was overruled by the Supreme Court in Rajkumar Bhatia v. Subhash Chander Bhatia, (2018) 2 SCC 87.

Keeping in view the settled legal position of law, the application is accordingly allowed. The amended plaint is taken on record.

CS(OS) 453/2017

List before the Joint Registrar for further proceedings on 24.05.2021.