Gurmail Singh vs Kartar Kaur

M.L. Singhal, J.—Vide order dated 21.4.1999 learned District Judge, Faridkot refused the prayer of the defendants (appellants before him) for amendment of the written statement made under Order 6 Rule 17 of the Code of Civil Procedure.

By way of amendment, Jang Singh and othersdefendants wanted to incorporate the following lines in para 4 of the written statement :

"Though Karnail Singh deceased executed valid Will in favour of defendants Nos. 1 to 3 yet, in case, Will is not proved, otherwise suit property was ancestral HUF and Coparcenary property in the hands of Karnail Singh deceased and the present defendants being sons of Karnail Singh were members of HUF and coparcenary and had interest in the suit property by birth. So, defendant No. 1 to 3 had 3/4 share in the property at the time of death of Karnail Singh deceased and only share of Karnail Singh deceased in the HUF property on his death which came out to the 1/4 share by way of notional partition can be inherited by his heir according to law. The suit property devolved upon Karnail Singh deceased from his father Kesar Singh. Karnail Singh was Jat Sikh and as such was Hindu and was governed by Mitakshra School of Hindu Law in matter of inheritance, alienation, and succession etc."

The proposed amendment of the written statement should have been allowed as the contest was between the sons and daughters of Karnail Singh qua the property standing in the name of Karnail Singh in the revenue record. Karnail Singh died leaving behind three sons and four married daughters. Kartar Kaur, Mukhtiar Kaur and Harpal Kaur daughters of Karnail Singh filed suit for possession against their bothers Jang Singh, Gurmail Singh, Mukand Singh and sister Amarjit Kaur sons and daughter of Karnail Singh, which was decreed. In appeal the defendants wanted to take the plea that the land held by Karnail Singh was ancestral/HUF/coparcenary property qua him and his sons, in which his sons had equal interest with him from the moment they were born to him and therefore each of the sons of Karnail Singh had 1/4 share each therein while Karnail Singh and 1/4 share therein and this 1/4 share of Karnail Singh would devolve on all his heirs in accordance with the provisions of Hindu Succession Act as if this 1/4 share was his selfacquired property as if he had in the contemplation of law become separate from his sons during his life time.

In my opinion, this was a legal plea which they were seeking to set up. Had they been permitted to set up that plea, there would have been no change in the nature of the case which the defendants of Karnail Singh had set up. In this case question for determination is what are the shares of the daughters of Karnail Singh visavis those of his sons. If the entire property in suit was the selfacquired property of Karnail Singh and there was no will then each of them will have equal share. If there was no will and the property was Joint Hindu Family/Coparcenary/Ancestral property in the hands of Karnail Singh, the daughters will have the right to succeed only to the share of Karnail Singh, which would be taken to have devolved upon him assuming him to have separated from the other coparceners i.e. his sons during his life time. If the proposed amendment is allowed, there will be no displacement of the defence sought to be set up by the defendants nor the plaintiffs will be taken by surprise. The law as to amendment of the pleadings is liberal. The law is still more liberal so far as amendment of the written statement is concerned.

The defendants are already rebutting the case of the plaintiffs on some grounds. It will be an additional ground which they seek to urge through amendment by which they will be rebuffing better the case of the plaintiffs.

So this revision is allowed and the proposed amendment is allowed to be incorporated in the written statement subject to payment of Rs. 7,000/ as costs. The payment of costs shall be condition precedent to the filing of the amended written statement.