NITASHA KOHLI vs ISH KUMAR ANAND & ORS.

2024-03-07 Information

$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 07th March, 2024
+ CS(OS) 421/2021
NITASHA KOHLI ….. Plaintiff
Through: Mr. Ankit Gupta, Advocate.

versus

ISH KUMAR ANAND & ORS. ….. Defendants
Through: Ms. Awaljot Kaur, for D-2 & 4.
Mr. Neeraj Jain & Mr. Dilraj Kumar, Advocates for D-3.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 13786/2022 (u/O VI Rule 17 r/w Section 151 of CPC, 1908)

1. By way of present application, the plaintiff seeks amendment of the Plaint.
2. It is submitted in the application that the plaintiff has filed the present Suit for Partition and Permanent Injunction in respect of Property bearing No. 16/17-B,Majlis Park, New Azadpur Subzi Mandi, Delhi-110033 (hereinafter referred to as the suit property). The suit property was owned by Shri Madan Mohan Anand, who died intestate leaving behind the plaintiff and the defendants as the only legal heirs.
3. The defendant No. 1/Ish Kumar, subsequent to the filing of the present Suit, informed the plaintiff that he and Late Sh. Anil Kumar Anand the husband of defendant No. 2/father of defendant Nos. 3 and 4 had orally partitioned the suit property amongst themselves and that the Property No. 16 was taken by the defendant No. 2 and the Property No. 17 was taken by the defendant No. 1/Ish Kumar.
4. It was also informed that they got the Relinquishment Deeds duly signed from the plaintiff and the defendant No. 5 by misrepresenting that they were required for Survivor Certificate Form and that they now want to settle the matter by paying Rs. 35,00,000/- to the plaintiff in respect of her share in the Property No. 17-B, Majlis Park, New Azadpur Subzi Mandi, Delhi-110033.
5. The applicant/plaintiff has claimed that the Relinquishment Deeds were got signed under misrepresentation and fraud and the same is evident from the fact that the suit property is a single built-up unit, but the same has been shown as two different properties in the Relinquishment Deeds.
6. The applicant/plaintiff, therefore, seeks permission to amend the Plaint to include the relief of Declaration of the Relinquishment Deeds as null and void and thus, change the original Title to that of Suit for Partition, Permanent Injunction and Declaration of the Relinquishment Deeds as null and void.
7. Likewise, in the various paragraphs of the Plaint where the suit property has been described as 16/17-B, Majlis Park, New Azadpur Subzi Mandi, Delhi-110033, the plaintiff seeks omission of 17 from the suit property and wants to amend the description to Property Bearing No. 16-B, Majlis Park, New Azadpur Subzi Mandi, Delhi-110033.
8. The applicant/plaintiff also intends to insert the Paragraph-6A to incorporate the information given to her by the non-applicant/defendant No. 1/Ish Kumar in July, 2022 as mentioned above and further seeks cancellation of Relinquishment Deeds claiming that they were fraudulently got executed from her.
9. Consequent amendments are sought to be made in the cause of action and the valuation paragraphs and also in the relief to include the cancellation of the Relinquishment Deeds.
10. The defendant No. 2/Rajesh Anand in his detailed Reply has refuted all the assertions made by the applicant/plaintiff. It is denied that there was no fraud committed in getting the Relinquishment Deeds signed from the applicant/plaintiff. It is further submitted that the Relinquishment Deeds were executed by the applicant/plaintiff herself on 10.08.2015 and thus, she was well aware about the execution of the Relinquishment Deeds and now, any relief to seek avoidance of the Relinquishment Deeds, is barred by time.
11. Furthermore, the applicant/plaintiff was well aware of the Will dated 31.03.1980 executed by Late Shri Madan Mohan Anand in favour of his sons, namely, the defendant No. 1/Ish Kumar Anand and Late Shri Anil Kumar Anand bequeathing the suit property in equal share to both the sons. In consonance with the aforesaid Will dated 31.03.1980, the plaintiff and defendant No. 5 executed the registered Relinquishment Deed dated 10.08.2015 in favour of Late Shri Anil Kumar Anand/husband of defendant No. 2 as has already been specified in the Written Statement.
12. It is claimed that the applicant/plaintiff is hand in glove with the defendant No. 1/Ish Kumar Anand, defendant No. 3/Sumati Anand Kwatra and the defendant No. 5/Smt. Uma Sachdeva whose intention is to usurp the lawful rights of defendant No. 2/Rajni Anand over the suit property.
13. All the averments made in the present application have been denied and it is submitted that the present application is liable to be rejected.
14. The defendant No. 3/Sumati Anand Kwatra in her Reply has taken the plea that by reducing the valuation of the suit property, the jurisdiction of this Court shall stand ousted. Moreover, the applicant/plaintiff by way of present application seeks to introduce a new cause of action and a new relief which is not permissible. Also, by the proposed amendment, the nature of the suit shall stand changed and would take away the vested legal rights of the answering defendant No. 3.
15. It is, therefore, submitted that the present application is without merit and is liable to be dismissed.
16. Submissions heard.
17. The applicant/plaintiff by way of present application is seeking to challenge the Relinquishment Deed dated 10.08.2015 by claiming that it was got executed fraudulently by the non-applicant/defendant No. 1 and, therefore, seeks to get it set aside.
18. The other amendment sought is that because of the Oral Agreement between defendant No. 1/Ish Kumar Anand and his brother pursuant to the Will dated 31.03.1980 of their father, the suit property got divided into two properties i.e., Property No. 16, Majlis Park, New Azadpur, New Delhi-110033 and Property No. 17, Majlis Park, New Azadpur, New Delhi-110033.
19. The applicant/plaintiff now intends to limit her Suit to Property No. 16-B, Majlis Park, New Azadpur, New Delhi-110033 and also to substitute the description of the suit property made originally in the Plaint as Property no. 16/17-B, Majlis Park, New Azadpur Subzi Mandi, Delhi-110033 to Property No. 16-B, Majlis Park, New Azadpur, New Delhi-110033.
20. The objections taken by the defendants are of limitation and of introducing a new cause of action by way of seeking cancellation of the Relinquishment Deed dated 10.08.2015. However, these contentions can be taken by the defendants in their respective Written Statements and the merits of these objections need not be considered at the stage of considering the amendment application. Furthermore, merely because the plaintiff intends to limit her claim to half the Property and the validity of Relinquishment Deed, does not essentially change the nature of the suit. Merely because it has led to consequential decrease in the valuation and the jurisdiction of this Court to continue the suit, can also not be valid grounds to deny the amendments.
21. In view of above, the present application is allowed and the applicant/plaintiff is permitted to amend the Plaint.
22. Amended Plaint be filed within 15 days.
23. The present application is disposed of.
CS(OS) 421/2021 & I.A. 11359/2021
24. In view of the Order passed in I.A. 13786/2022 under Order VI Rule 17 read with Section 151 of CPC, 1908, list before the Joint Registrar on 14.05.2024, for taking on record, the amended Plaint.
25. Thereafter, list the matter before this Court on 22.05.2024, for consideration of transfer of the present Suit to the District Court in view of the change in valuation of the Suit.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 7, 2024
S.Sharma

CS(OS) 421/2021 Page 1 of 6