Yashaswi Aggarwal And Anr vs Rakesh Aggarwal And Ors.F+

Jayant Nath, J

IA No.1899/2018

This application is filed under Order VI Rule 17 CPC seeking amendment of the plaint. It has been pleaded in the present application that the

parties to the present suit are the grandsons of late Shri Lala Manohar Lal. The suit is filed for partition of two properties in Sunder Nagar. It has also

been pointed out that the original ancestor Late Shri Rai Saheb Chiranji Lal had left behind a vast estate which is said to be a joint family property

which was subject matter of a suit CS(OS)387/1973 where a preliminary decree was passed on 19.10.1978. The family of Late Shri Manohar Lal is

said to have appropriate shares in the said properties in terms of the preliminary decree dated 19.10.1978. By the present amendment application the

plaintiff seeks to enlarge the scope of the present suit by also seeking partition of the alleged HUF properties which were left behind by late Shri Rai

Saheb Chiranji Lal and in which the parties to the present suit also have rights.

Learned senior counsel appearing for defendant No.14, whose submissions are also adopted by other learned counsel appearing for the defendant

No8 and defendants No. 9 to 13, states that the properties which are subject matter of CS(OS)387/1973 where a preliminary decree has been passed

cannot be jumbled up into the present suit as that would change the entire nature of the suit. It is pleaded that the plaintiff is free to take steps as per

law regarding his share in the properties which are subject matter of CS(OS)387/1973.

I may note that the present suit is filed for partition of the two properties 42-44, Sunder Nagar, New Delhi which were bought in the name of the

three daughters-in-law of late Sh. Lala Manohar Lal. It has been pleaded in the plaint that the said properties were purchased in the name of

defendant No.3, by her husband Late Shri Mai Dayal Aggarwal out of joint family fund and income which he had been receiving for a considerable

period before his marriage in 1949. Similar is the position regarding the cost of construction. Hence, it is pleaded that the said two properties are HUF

properties and the plaintiffs have got 8/27th share in the properties. By the present amendment application what the plaintiff seeks to do is to add

additional properties being subject matter of the suit for partition being CS(OS)387/1973 and in which the plaintiffs also have a share in view of a

preliminary decree that has been passed in that suit. The properties which are subject matter of CS(OS)387/1973 have been reproduced in paragraph

2 of the plaint as follows:-

i) Property bearing No.14-F, Connaught Place, New Delhi which has four shops on the ground floor which were on rent and there was residential

accommodation available on the first floor;

ii) Five garages in Deputy Ganj, Sadar Bazar, Delhi;

iii) Ten houses in Sadar Bazar,. Delhi;

iv) Two brick kilns at Kalka and Mathura;

v) Groves at Dehra Dun;

vi) 50% share-holding in Ram Laxman Sugar Mills,Mahi-Ud-Din Pur, U,P,

vii) Substantial share-holding in Upper Doab Sugar Mill;

viii) Commercial buildings at Motia Khan, Delhi;

ix) Commercial buildings at Nabi Karim, Delhi;

x) Houses at Sarai Rohilla, Delhi;

xi) About 175 quarters at Palam Village, Delhi.

It is quite clear that the framework of the present suit is the two Sunder Nagar properties bought in the name of three daughters-in-law of late Shri

Manohar Lal. Plaintiff sought partition of these properties on the ostensible ground that they were bought from joint family funds. The fact as to

whether these two properties are joint family properties or the self acquired properties of defendants/daughters-in-law of late Sh. Manohar Lal is a

highly contested issue.

Properties which are now sought to be added for seeking partition belong to the estate of the ancestor Late Shri Rai Saheb Chiranji Lal. Late Shri Rai

Saheb Chiranji Lal was survived by four sons including Late Shri Manohar Lal whose branch are parties to the present suit. The said properties are

joint family properties belonging to the larger family. The said suit CS(OS)387/1973 is still pending for passing of a final decree of partition inasmuch

as only a preliminary decree has been passed. Hence, the branch of Late Shri Manohar Lal who are parties to the present suit do not have any

defined share in the suit properties which are subject matter of CS(OS)387/1973. CS(OS) 387/1973 has many other parties other than the branch of

Sh. Manohar Lal.

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.

Reference may be had to the judgment of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons &

Ors, (2009) 10 SCC 84. The Supreme Court held as follows:-

“63. On critically analyzing 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) Whether the 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.

These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only

illustrative and not exhaustive.â€​

Clearly the proposed amendment would fundamentally change the nature and character of the case and cannot be allowed.

It would be for the plaintiffs to take steps, as per law, regarding their claim on the share of the properties left behind by late Shri Rai Saheb Chiranji

Lal, which are subject matter of CS(OS)387/1973.

The application is dismissed.

CS(OS) 1561/1994

List on 22.2.2018.

On that date all applications under Order 7 Rule 11 CPC shall be taken up.