Sheo Taj Singh and Others vs Shanti Devi and Others

G.C. Garg, J.—Shanti Devi and three others, the plaintiff, and defendants 1 and 2 are the daughters and sons of Bhuru. Bharu suffered a consent decree in favour of his two sons, defendants 1 and 2 in the year 1974 and thus transferred the land in dispute in their favour. Defendants 3 to 8, the petitioners herein purchased the land in dispute from defendants 1 and 2 in the year 1979 vide two registered sale deeds. Plaintiffs, the sisters of defendants 1 and 2 filed the suit for declaration against them and the petitioners on the allegation that their father was the owner of the land and on his death, they succeeded to the property with their brothers in equal shares and the transfer of land by their brothers beyond their shares in favour of defendants 3 to 8, was void and unauthorised. Suit filed by the plaintiffs was at the arguments stage, when defendants 3 to 8, moved an application for amendment of the written statement. It was averred in the application that they admittedly, purchased the suit land from defendants 1 and 2 vide registered sale deeds for valuable consideration and defendants 1 and 2 were in actual possession of the suit land as its owners prior to the sale. Land in dispute was purchased after verification regarding title to the property. It was further averred that they are the bona fide purchasers for consideration and they could not take this plea in the written statement originally filed. It was also alleged that it is necessary to plead this fact and it would otherwise help the court to appreciate the controversy raised in the suit. Prayer made in the application was opposed by the plaintiffs.

Learned trial court on a consideration of the matter came to the conclusion that the applicant-defendants have not given any reason why this plea could not be taken by them at the initial stage when they had filed the written statement and the issues were settled. Learned trial court further noticed in the order that the applicant-defendants filed written statement in the year 1989 and this plea was very much in their knowledge. Trial Court thus dismissed the application by order dated 26.11.1992 after observing that it has been filed at a belated stage and just to delay the proceedings in the suit. It is this order of the trial court which is under challenge in this revision petition at the instance of defendants 3 to 8.

Learned counsel for the petitioners submitted that the law regarding amendment is very liberal and the amendment of pleadings can be allowed even at the appellate stage. Learned counsel for the plaintiff-respondents on the other hand, submitted that the suit is at the arguments stage and if the application for amendment is allowed at this stage, it would re-open the whole case.

After hearing learned counsel for the parties I am of the opinion that this revision deserve to succeed. Admittedly, the plaintiffs and defendants 1 and 2 are sisters and brothers. Bhuru, father of the plaintiffs and defendants 1 and 2 was the owner of the property but for the decree suffered by him. In the absence of the decree, defendants 1 and 2 would inherit only 1/3rd share of the land under the Hindu Succession Act. Bhuru, however, transferred the entire land in dispute in favour of his two sons by a consent decree, which is unregistered. Defendants 1 and 2 thereafter sold the land in dispute in favour of the petitioners. The consent decree suffered by the Bhuru in favour of defendants 1 and 2 by which the whole land was given to them has been challenged by the daughters of Bhuru by filing the present suit in which the petitioners have also been arrayed as defendants. Defendants 3 to 8 in their written statement initially filed, specifically denied that father of the plaintiffs was the owner of the land at the time of his death. Defendants 3 to 8 purchased the land through registered sale deeds after making the payment of the price of that land, but in the written statement, they did not take the plea of bona fide purchasers for consideration. Now defendants 3 to 8 seek to take the plea of bona fide purchaser for consideration by amending the written statement. This plea is supplemental and is not contradictory to the plea already taken in the written statement. The applicants thus are entitled to take this plea in the written statement which according to them, could not be taken earlier due to inadvertence. As regards delay, the other party can well be compensated by way of costs. In this view of the matter, the revision petition is allowed, order under revision is set aside and the application moved by the petitioners for amendment of the written statement is allowed subject to payment of Rs. 2,500/- as costs. Costs shall be paid through a crossed demand draft favouring plaintiff Shanti Devi which shall be equally disbursed amongst all the four plaintiffs. Parties through their counsel are directed to appear in the trial Court on 17.9.1998. Amended written statement shall be filed and payment of costs made on that day itself. Trial Court shall thereafter frame an additional issue, "Whether defendants 3 to 8 are bona fide purchasers for consideration/OPD" and fix the suit for evidence of the defendants on the additional issue. Trial court shall afford only two effective opportunities to them for their evidence on this issue at short intervals which shall be produced at their own responsibility. Similarly two opportunities shall be afforded to the plaintiffs for their evidence thereafter. The suit shall be disposed of at a very early date, preferably within six months.