S.K. Batra vs Y.P. Batra and Others

Shiv Narayan Dhingra, J.

IA No. 12057/2008

This application has been made by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint. The plaintiff has stated that in the original suit filed by him for partition of HUF properties, he had named various properties in para 04 of the plaint. In addition to the properties named by him, the plaintiff, during the pendency of the suit, after verification from the locality, neighbors and close relatives had come to know that there were three more immovable properties in the name of the defendant or his family members involving HUF funds and resources. These three properties are 15, Ajmal Khan Park Road, Karol Bagh, property No. 6/24, East Patel Nagar and property No. B-65, New Rajinder Nagar. He stated that these properties were purchased by defendant No. 1 in his own name or in the joint names of his family members and property No. 6/24, East Patel Nagar was purchased in the year 2008 and was under construction. He stated that these properties were purchased like other properties out of HUF funds and therefore were liable to be subject matter of partition claimed in the suit. He therefore wants to introduce para 4A in the plaint wherein he wants to state that these three properties were acquired by Defendant No. 1 out of funds and resources of coparcenary assets and the funds generated from the sale of property No. R-765 New Rajinder Nagar, New Delhi. It is further stated that defendant No. 1 was developing property No. 6/24 East Patel Nagar and had intention to sell his present residence and move into the new property being developed so as to make the partition suit infructuous. The plaintiff also wants to add para 4B wherein he wants to state that Defendant No. 1 had purchased another property bearing No. B-65 New Rajinder Nagar in the year 1966 from HUF funds and which property he subsequently sold in the year 1997.

In reply to the application it is stated by the defendant No. 1 that application was a sheer abuse of process of law and was wholly misconceived of facts and was also barred by statutory provisions of law. It is submitted that evidence in the case had already started and the plaintiff�s evidence has been concluded and a substantial part of the defendant�s evidence has also been recorded. The application was only a mischief being played by the plaintiff and was hit by proviso to Order 6 Rule 17, which bars amendment of the suit after trial has commenced, unless the plaintiff shows that despite due diligence he could not have raised the matter before commencement of trial. It is further submitted that property No. 15, Ajmal Khan Park Road, Karol Bagh was the one, where the defendant was living even at the time of filing of suit by the plaintiff. The plaintiff was fully aware about this fact and this fact is reflected from memo of parties filed by the plaintiff at the time of filing the suit in 1998. The property in Karol Bagh was not an HUF property and the plaintiff has concocted a story. Similarly, it is that other two properties were not part of the HUF properties, neither any HUF funds were used for purchasing these properties nor the plaintiff has disclosed user of any HUF funds. The properties could not be subject matter of the suit and amendment cannot be allowed.

There is no denial of the fact that this application for amendment has been made at the stage when evidence of defendant was being recorded. The plea taken by the plaintiff that he learnt from the properties from neighbours & close relatives is totally untenable because the neighbours and close relatives were very much available to the plaintiff when he filed the suit and it was for the plaintiff to make full inquiries before filing the suit and place before the Court all facts. In between when the trial is proceeding, plaintiff cannot say that he made inquiries about the further properties of defendant and then learnt from the neighbours and friends that the other properties were also HUF properties. The plaintiff has also not disclosed the names of the neighbors and relatives, who told him that these properties were purchased out of the HUF funds during pendency of the suit.

Even if a person is member of a coparcenery he has a right to have independent properties apart from the coparcener property. Where a person alleges that the property standing in the name of the individual was a coparcenery property and not his individual property and was purchased out of HUF funds, he has to specifically allege as to what was the quantum of HUF funds used to purchase the property, where from these HUF funds came, for what amount the HUF property was sold and how much of the funds were invested in procuring the property in the individual name. A plaintiff does not have a right to include all the properties of a defendant standing in his individual name or in the name of his family members as HUF properties on the basis of vague allegations that the properties were acquired using HUF funds. He has to specify as to what the HUF funds were and where from these HUF funds came. In absence of any such averment made by the plaintiff, merely on the basis of vague allegation, properties of defendant or his family members cannot be made a part of or subject matter of partition. I find no force in the application. The application is hereby dismissed.

IA No. 12058/2008

This application has been made by the plaintiff under Order 39 Rule 1&2 read with Order 38 Rule 5 CPC with a prayer that defendant No. 1 be restrained from transferring, assigning, encumbering or creating third party interests in the property No. 15, Ajmal Khan Park Road, Karol Bagh and property No. 6/24, East Patel Nagar. Since the application of the plaintiff to amend the suit and include these two properties as subject matter of the suit has been dismissed, this application has become infructuous and is hereby dismissed as such.

CS(OS) No. 592/1998

The matter be listed before the Joint Registrar for completing the remaining evidence on the date already fixed.