SHRI GURBIR SINGH ALAG & ANR. vs SHRI ROBINDER SINGH ALAG & ANR

2024-02-16 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 8th February, 2024
Pronounced on:16th February , 2024

+ CS(OS) 583/2019, I.A. 11149-11150/2020, I.A. 4809/2021, I.A. 11450/2021, I.A. 14309/2021, I.A. 14381-14382/2021, I.A. 3204/2022, I.A. 5374/2022, I.A. 5378/2022, I.A. 16018/2022, I.A. 6672/2023, I.A. 19622/2023, I.A. 1543/2024

SHRI GURBIR SINGH ALAG & ANR. ….. Plaintiffs
Through: Mr. Sandeep Aggarwal, Mr. I.S. Alag, Sr. Advocates with Ms. Tanya Chanda, Advocates.

Versus

SHRI ROBINDER SINGH ALAG & ANR ….. Defendants
Through: Mr. Prashant and Mr. Soin Khan, Advocates for D-1.
Mr. Sandeep Tyagi, Advocate for D-2.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 2662/2021 (under Order VI Rule 17 CPC filed on behalf of the defendant No. 1 for amendment of the written statement) in CS(OS) 583/2019

1. The present application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC), has been filed on behalf of the defendant No. 1 Sh. Robinder Singh Alag, for amendment of the Written Statement.
2. It is submitted in the application that the plaintiffs have filed the suit for Declaration, Possession, Mesne profits/ Damages, Permanent and Mandatory Injunction. It is asserted in the plaint that the suit property originally belonged to the father Late Major Amolak Singh, who was martyred and on his demise, the property continued to be in favour of the parties to the suit being the real brothers, as well as, their mother Smt. Gurjit Kaur. An HUF was created namely, Smt. Gurjit Kaur HUF, and upon the desire of defendant No.1 to separate in the year 1984, a Memorandum of Partition dated 14.04.1984 was affected, which recorded the oral partition that had taken place amongst the four parties. Since the suit property was incapable of physical division by metes and bounds, the parties continued to be the co-owners of the same with 1/4th undivided share each, in the suit property.
3. The plaintiffs have further asserted in Paragraph 15 of their plaint that their mother suffered harassment at the hands of the defendants and she ultimately passed away on 10.03.2017, due to brain stroke. The plaintiffs further asserted that Smt. Gurjit Kaur left behind her Registered Will dated 21.04.2006 wherein the assets movable and Immovable mentioned therein had been distributed between the parties. In the said Will dated 21.04.2006, Mrs. Gurjit Kaur, the late mother of the parties, had reiterated the fact of the division of the HUF and the sale of the terrace floor i.e. the Second Floor of the property C-460, Defence Colony, New Delhi and proceeds thereof being given to the Defendant No.1, who thus, relinquished his rights, title and interest in the said property.
4. It is asserted that the defendant in his Written Statement had stated that he was neither aware nor a party to the alleged HUF or partition subsequent thereto. He placed reliance on Conveyance Deed dated 27.12.1995 executed by Land and Development Office (L&DO), in favour of the parties as well as the mother. In his reply on merits, he explained that he was staying abroad and also detailed the role that he played in the lives of the plaintiffs, being the younger brother. He also explained that he, along with his wife, shifted to India in the year 2010 and placed himself with his mother upon reaching the said property.
5. The defendant No.1 further asserted that he, in order to effectively store old documents, pictures and souvenirs, had taken storage space from Self-Storage Warehouse and had requested his wife to store and pack all the old and unused documents. The defendant No. 1 visited the warehouse on 13.02.2021 and opened some of the old cartons in which he found three files relevant to the present suit, which are as under:-
(i) Old handwritten letters exchanged between the mother and the defendant;
(ii) Bills of expenses done by the defendant in the house at question;
(iii) Medical records of the mother.
6. The defendant has thus sought, by way of the proposed amendments, to insert, paragraphs in the light of the documents so found.
7. After Paragraph 4 of para wise reply of the Written Statement, another paragraph is sought to be inserted to assert that the averments of the plaintiffs in regard to the desire of the defendant to separate or/and that a Memorandum of Complete Partition was executed, was absolutely false. He reiterated that he had relocated in Middle East in the year 1982, solely to earn and send money for his family and to the plaintiffs, who were minor at that time and were still studying. The defendant No.1 placed reliance on letters, which were the primary mode of communication at that time, and were sent by the mother as well as the plaintiffs to the defendant and his wife, during the year 1983 to 1986, to show the falsity of the claims of the plaintiffs. He has given the details of 24 letters, to corroborate his assertions that they had a cordial relationship and that in none of these letters, there was ever any mention of HUF or of intention of the defendant to dis-associate/separate from the family. Rather all these letters clearly depict that he was working to support his family and had been sending them money for the renovation of ground and first floor of the suit property. The letters also depict the love and affection, the cordiality and loving relations amongst the entire family. These letters also depict that the defendant was not in India on 14.04.1984 and that there was no mention of alleged partition in any of the letters written between 20.03.1984 and 22.04.1984.
8. The defendant has further sought to insert after Paragraph 5 in para wise reply of his Written Statement, a paragraph mentioning six letters written and exchanged between them from December 1985 to April 1987, to corroborate his assertion that no partition whatsoever took place and he had willingly permitted the family to utilize the income from the property realized by way of rents and that he also sent more money to support the plaintiffs in completing their education and to get established in their professions. The rent though was taking care of the needs, but the luxuries were still being provided by the defendant.
9. The defendant also wants to insert after Paragraph 14 in para wise reply that on his return to India, he was residing on the first floor of the premises in the capacity of an owner to look after his ailing mother. He further wants to clarify that he had spent massive sums for renovation and re-doing of the house and also on the comforts for his ailing mother. The repair, renovation stood concluded between the years 2013 to 2015 and this shows that he was not staying in the suit premises on any permission of the plaintiff.
10. The next amendment sought by the defendant is to insert after Paragraph 15 in para wise reply that on his return to India in the year 2010, the condition of his ailing mother was of great concern as she was suffering from skin diseases throughout her body. She had been left alone by the plaintiffs on a separate floor because of which her condition had further deteriorated and it is because of the years of neglect and loneliness that the ailing mother suffered a stroke and died. He, therefore, wants to incorporate the details of the medical treatment that he got done of his mother from 31.01.2011 till 17.04.2013 at his expense. It is also asserted that he had employed the maid/house-help from 28.03.2016 to 17.04.2016 dedicated to the ailing mother and the details of the help engaged are sought to be mentioned.
11. The defendant also seeks permission to add Paragraph 29 to the preliminary submissions, to mention that on receipt of the plaint, he reported the forgery and the fraud played by the plaintiffs to Police Station: Tilak Marg on 12.03.2020 vide a complaint praying for the registration of an FIR against them. It is asserted that this complaint having been made after the filing of the Written Statement, must be permitted to be brought on record.
12. Reliance has been placed on the case of Life Insurance Corporation of India v. Sanjeev Builders Pvt Ltd, Civil Appeal No. 5909 of 2022 decided on 01.09.2022 by the Honble Supreme Court of India.
13. The defendant No. 1 has thus sought that he may be allowed to carry out the amendments, as prayed for, in his Written Statement.
14. Learned counsel on behalf of the plaintiffs has opposed the amendment application by way of a Reply and had asserted that none of these proposed amendments are relevant to the controversy in hand and are repetitive, false and verbose. It is claimed that the proposed amendments, is only an endeavour by defendant No. 1 to retract the admissions made in order to defeat the application of the plaintiffs under Order XII Rule 6 read with Section 151 CPC, 1908, which was filed prior to this amendment application.
15. It is submitted that the mention of the Memorandum of Settlement and the separation of the defendant No. 1, is clearly reflected in the Agreement to Sell that was entered into by the parties with the prospective buyers of second floor in the year 2000 and that the Defendant No. 1 also executed a Deed of Relinquishment dated 21.06.1991, affirming the transaction.
16. Further, the Will of the mother, dated 21.04.2006 has been acted upon by the parties and all other assets of the mother except the suit property, have been equally divided amongst the plaintiffs and the defendants, in accordance with the Will, in equal share. The Will itself records about the Memorandum of Settlement and of defendant No. 1 having taken a share in the suit property for which reason, it had not been partitioned like all other properties of the deceased mother.
17. It is asserted that the execution of the Conveyance Deed dated 27.12.1995 in the names of the original four persons, in whose favour the lease holds rights had been transferred, i.e. the mother, the Plaintiffs and the defendant No. 1 herein, was never intended to, and did not in any manner supersede, affect or alter the already binding and concluded family arrangements and settlements, Relinquishment Deed, etc by way of which, the defendant No.1 had permanently given up his rights in the suit property.
18. It is submitted that the purported documents allegedly stored at Self Storage Warehouse are an afterthought and that they were all well within the knowledge of the defendant at the time of filing of the Written Statement. Further, the alleged documents have no bearing on the rights, title and interest of the defendant No. 1 in the Suit Property and thus, are not required for the purpose determining the real question of controversy between the parties.
19. In reply to insertions sought to be incorporated after Paragraph 4 in the Para Wise Reply of the Written Statement, it is asserted that the contents of the letters exchanged between 10.02.1983 to 23.11.1984 are wholly irrelevant.
20. In reply to insertions sought to be incorporated after Paragraph 5 in the Para Wise Reply of the Written Statement are also stated to be wholly irrelevant. In fact, it is asserted that it was the mothers pension which was taken and used by the defendant No. 1 to run the daily expenses. In addition to that, the Plaintiffs also extended support to the defendant No. 1 by giving him money for which reliance has been placed on receipts issued by the defendant No. 1 in this regard.
21. It is submitted that the amendments sought to be incorporated after Paragraph 14 in the para wise reply are false as the defendant No. 1 came back to India in 2011 after committing some financial irregularities in Middle East and to avoid any action, he relocated to India. It is further denied that any repair or renovation was ever done by the defendant No. 1 in the property and it is claimed that the alleged repair and renovation done in the property had been sourced by the plaintiffs and the mother. The defendant No. 1 was only extorting money from the mother who was a pensioner receiving pension from Ministry of Defence and the plaintiffs, as he was always short of funds and had no source of income. He was dependent on them for his expenses and has taken money from the Plaintiffs from time to time regularly to tide over his expenses.
22. The contents sought to be incorporated after Paragraph 15 in the para wise reply are also denied by the plaintiffs. It is asserted that the defendant No. 1 moved into the First Floor of the House in 2013 only and before then, whenever he came to the mother and the plaintiffs, it was only to seek money. The mother was looked after and taken care of only by the plaintiffs who stayed close to her during her entire lifetime. It is submitted that the defendant No. 1 and his wife moved into the First Floor of the House in 2013 as they had defaulted in the payment of rent of their tenanted premises in Greater Kailash-I. The defendant No.1 had asked for permission to stay along with them for a short time until he moved back to the Middle East in the near future and that the parties had an understanding that defendant No.1 or any of his family member do not have and shall not claim any right, title or interest in the said property and that the property shall be vacated when asked by the plaintiffs and /or the mother without any demur or objection.
23. It is asserted that even after the defendant No.1 had shifted to the property, it was the plaintiff No. 1 who had appointed two nursing attendants and two other domestic helps for the ailing mother who were taking care of her after the mother suffered the stroke for which all the money was paid by the plaintiffs. It is submitted that the Agreement dated 28.03.2016 executed between the defendant No. 1 and SMS Enterprises clearly mentions that the maid/ house help was engaged as a domestic help of the defendant No. 1 and not the nursing attendant dedicated to look after the mother.
24. It is claimed that the present application is liable to be dismissed.
25. Submissions heard and Brief Synopsis on behalf of the defendant No.1 perused.
26. The suit has been filed by plaintiffs for Declaration, Possession, Mesne profits/ Damages, Permanent and Mandatory Injunction wherein it is stated that the defendant No.1 does not have any right in the suit property as upon the desire of defendant No.1 to separate in the year 1984, a Memorandum of Partition dated 14.04.1984 was affected, which recorded the oral partition that had taken place amongst the four parties. Pursuant to this settlement, an Agreement to Sell dated 29.05.1991 was entered into in respect of the unconstructed Second Floor with the Purchaser with the understanding that the entire sale proceeds shall go to the Defendant No. 1 towards his complete share in the said property. Further, the defendant No.1 vide a Relinquishment Deed dated 21.06.1991 affirmed that he had no right over the suit property.
27. It is contended that, the Conveyance Deed, pursuant to the Perpetual Lease Deed executed in favour of their father in the year 1961, eventually came to be executed in the favour of the mother Smt. Gurjit Kaur and the plaintiffs and the defendant No. 1 in the year 1995. It has been detailed that because the Perpetual Lease Deed was in the name of Sh. Amolak Singh, the Conveyance Deed had to be necessarily executed in favour of all his legal heirs but merely because the Conveyance Deed had been executed in the year 1995, it does not wash away the oral partition and the Memorandum of Settlement dated 21.06.1991, which was executed between the parties and was even acted upon. The plaintiffs had further claimed that this Memorandum of Settlement found mention in the Agreement to Sell dated 29.05.1991, entered into by the parties with the prospective buyer of the second floor.
28. The defendant No. 1 all throughout had merely taken a plea that any settlement which may have taken place before the year 1995, was non-est because of the Conveyance Deed being executed in the year 1995, in the joint name of the plaintiffs and the defendant No. 1 and their mother. It was not denied by him that he had shifted to Middle East in the year 1982 and that he returned back to India in the year 2010. It is also not in dispute that he came to reside with his mother but shifted out for temporarily as the construction had to be carried out but when the same was not done, he shifted back with his mother on the first floor of the suit property, in the year 2013.
29. The defendant now proposes to introduce various amendments vide the present application whose relevance is being considered below.
30. The defendant No.1 has sought to add after paragraph 4 and 5 of the Written Statement, details of various letters exchanged between him and the mother, while he was in the Middle East to show that he had cordial relationship with the mother and the plaintiffs and that he had been sending gifts or money for their needs. However, the cordiality between the plaintiff and the defendants, is not an issue in the present case. Thus, the proposed amendment after Paragraphs 4 giving a gist of the contents of 24 letters and after paragraph 5 are not germane to the controversy in the present suit, which is limited to the aspect of whether the defendant No. 1 separated from the family, pursuant to the oral partition and Memorandum of Settlement dated 21.06.1991, and the same are hereby rejected.
31. By way of insertions after paragraph 14, the defendant No.1 wants to assert that he occupied the property as an owner and not because he was permitted to stay there. He has further sought to incorporate details of the expenditure incurred by him for renovation of the property to show his ownership. However, the same is not relevant for determining the controversy at hand of whether a partition had indeed taken place in 1961.
32. After Paragraph 15, the defendant No. 1 intends to insert the averments and the letters to corroborate that he had been taking care of his deceased mother and to show that he was not ill-treating the mother in her last days, when she was ailing. He also wants to provide details of expenditure incurred by him on taking care of the mother. It is to be noted that the defendant No.1 in his Written Statement in paragraph 15 has already stated that it was the answering defendant and his wife who looked after the ailing mother and made sure that all her needs including but not limited to medical assistance were taken care of. The amendments sought merely reiterates the same averments that has already been stated in the Written Statement but the impugned Will is of 21.04.2006 and the ailing condition of the mother who died much later, is not relevant for the controversy in hand. Thus, this amendment is not necessary as these facts already find mention in the Written Statement.
33. The Apex Court in case of Life Insurance Corporation of India (Supra) discussed the law on amendment of Written Statement and observed that amendments of the pleadings which are necessary for determination of the real controversies should be allowed but the amendment should not be allowed to alter or substitute a cause of action on the basis of which the original lis is raised or defence taken.
34. However, it is pertinent to note that the decision relied upon does not aide the case of the defendant No.1 as the amendments sought are not necessary and do not relate to determination of the controversies at hand.
35. It is also pertinent to note that the defendant No.1 has not provided any proof apart from mere bald assertions to show that the documents were only found and came to his knowledge only in 2021. Even if the contention of defendant No. 1 is believed that he got hold of the various old letters only in the year 2021, when he happened to open the boxes containing old documents which he had stored in the warehouse, then too these letters do not in any manner prove or disprove the defence taken by the defendant No 1. In any case the defendant is intending to support his assertions and defence as detailed in the Written statement by various documents, the contents of which need not be incorporated in the Written Statement, which in any case can be proved by him in his testimony or confront the plaintiff with those documents, in accordance to law. The fundamental principle of pleadings that only the facts necessary to disclose cause of action need be pleaded and not the evidence sought to be led in support of the facts.
36. As the proposed amendments after Paragraph 4, 5, 14 and 15 seek to incorporate details which are only in support of the facts already pleaded or to insert contents of the Letters which is essentially in the domain of evidence, the same are hereby rejected.
37. The defendant further seeks to add Paragraph 29 to the preliminary submissions that he has made a complaint on 12.03.2020, alleging fraud and forgery of the Will by the plaintiffs. This is a subsequent event after the filing of the Written Statement which was done on 28.02.2020 and is, therefore, allowed to be incorporated by the defendant No.1, in his Written Statement.
38. In view of the discussion, the application of the defendant No. 1 is allowed, only to the extent of incorporating Paragraph 29 to his Preliminary Submissions. The other amendments sought by the defendant No. 1, in his Written Statement, are denied.
39. The application is accordingly disposed of.
CS(OS) No. 583/2019

40. The amended Written Statement be filed in three weeks with replication to the amended Written Statement within fifteen days thereafter. Be placed before the Ld. Joint Registrar for completion of pleadings along with the connected suit i.e. CS(OS) 39/2022 on 22.05.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 16, 2024/RS/nk

CS(OS) 583/2019 Page 1 of 13