MRS VINTI MEHROTRA & ORS. vs MR KUMAR VAIBHAV & ORS.

2024-11-06 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 06th September, 2024
Date of Decision: 6th November, 2024

+ CS(OS) 96/2022 & I.As. 2793/2022, 1613/2023, 33649/2024, 33650/2024, 33653/2024

MRS VINTI MEHROTRA & ORS. …..Plaintiffs
Through: Mr. Amit Seth and Mr. D.N. Kumar, Advocates

versus

MR KUMAR VAIBHAV & ORS. …..Defendants
Through: Mr. Amit Agarwal, Mr. Shwetabh Sinha, Mr. Sidhant Pandita and Ms. Vatsala Pandey, Advocates for D-1 and 2
Mr. Arun Kumar, Mr. Vipin and Mr. Sunil Kumar Jha, Advocates for D-5 (through VC)
%
CORAM:
HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
J U D G M E N T

MANMEET PRITAM SINGH ARORA, J:
I.A. 17746/2023 (Application under Order VI Rule 17 CPC on behalf of the plaintiffs for seeking amendment of plaint)

1. This is an application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) for amendment of the plaint to the extent of incorporating the challenge to the Will dated 26.12.2000 executed by Shri Sharwan Kumar Khanna.
2. The captioned suit has been filed for partition of the 1/6th undivided share of S.K. Khanna and Sons (HUF) in the property located at 364 and 384 to 390, Chandi Chowk, Delhi (Suit Property) by metes and bounds in favour of the plaintiffs for their combined 1/5th share to be separated in the S.K. Khanna and Sons (HUF) qua the suit property.
2.1 In the suit, plaintiffs also seek a declaration that the sale deed dated 25.03.2021 executed by defendant no. 1 in favour of defendant no. 5 with respect to the Suit Property, to the extent of plaintiffs 1/5th share is null and void. The plaintiffs further seek a declaration that the declaration-cum-indemnity dated 26.08.2017 executed by plaintiff no. 1 is null and void.
Arguments of the Plaintiffs
3. Mr. Amit Seth, learned counsel for the applicant(s)/plaintiff(s) stated that the proposed amendments are set out at paragraph 14 of the application under consideration.
3.1 He stated that the applicant(s)/plaintiff(s) seek to insert paragraph 20A and corresponding new prayer clause (g) in the plaint seeking a declaration that the purported Will dated 26.12.2000 stated to have been executed by late Shri Sharwan Kumar Khanna is forged and hence void.
3.2 He stated late Shri Sharwan Kumar Khanna was the father of plaintiff no. 1 and grandfather of plaintiff nos. 2 and 3. He stated Shri Sharwan Kumar Khanna died on 27.07.2001.
3.3 He stated that in the month of August, 2017 the defendant no. 1 revealed and shared a copy of the purported Will dated 26.12.2000 with the plaintiff no. 1.
3.4 He stated that as per the alleged Will dated 26.12.2000 late Shri Sharwan Kumar Khanna had bequeathed his share in the suit property in favour of defendant no. 1 and defendant no.2 i.e., the widow of late Shri Sharwan Kumar Khanna.
3.5 He fairly stated that in the suit filed initially on 14.02.2022 no relief as regards the said Will dated 26.12.2000 has been sought.
3.6 He stated that, therefore, the present application has been filed on 25.08.2023 to challenge the said Will dated 26.12.2000 and seek a declaration that the alleged Will dated 26.12.2000, is inter-alia forged and void.
3.7 He stated that the copy of the purported Will dated 26.12.2000 shared with the plaintiff no. 1 in August, 2017 was illegible and was a mere photocopy of the said Will.
3.8 He stated that he relies upon the proceedings in Execution No. 1428 of 2006 in the District Court, New Delhi wherein after the death of late Shri Sharwan Kumar Khanna all the Class-I legal heirs were brought on record and there was no declaration of the existence of the alleged Will dated 26.12.2000. He stated that the said proceedings are dated January, 2007. He stated that in the said execution proceedings the mesne profits were shared with all the legal heirs including the plaintiff no. 1 herein.
3.9 He stated that considering the stage of the proceedings inasmuch as the issues have not been framed in the suit the proposed amendments may be allowed.
Arguments of the defendant nos.1 and 2
4. In reply Mr. Amit Agarwal, learned counsel for defendant nos. 1 and 2 stated that plaintiff no. 1s plea that she learnt about the existence of the Will dated 26.12.2000 for the first time in month of August, 2017 is incorrect and is falsified by the documents executed by plaintiff no. 1 and filed on record.
4.1 He stated that he relies upon the letter dated 06.06.2014 written in her own hand by plaintiff no. 1 to defendant no. 2 (i.e., mother of the plaintiff no.1) acknowledging the existence of the Will dated 26.12.2000 executed by late Shri Sharwan Kumar Khanna.
4.2 He stated that he also relies upon the e-mail exchanged between the plaintiff no.1 and defendant no. 1 on 15.04.2016, wherein once again the existence of the Will dated 26.12.2000 is duly acknowledged by the parties.
4.3 He stated that he further relies upon the content of the plaintiff no. 1s e-mail(s) dated 04.04.2017 and 28.05.2017 acknowledging the existence of the Will dated 26.12.2000.
4.4 He stated that in the original plaint at paragraph(s) 16 to 18 the plaintiffs have stated that plaintiff no.1 was made aware about the existence of the Will dated 26.12.2000 in the month of August, 2017. He stated that though this is incorrect as the record evidences that she was aware about the Will dated 26.12.2000 much prior to that, however, the plaintiff no.1 consciously elected not to challenge the said Will dated 26.12.2000 either in the year 2017 (when the plaintiff no.1 allegedly came to know about the Will dated 26.12.2000) or in the year 2022 when the plaint was filed.
4.5 He stated that in the declaration-cum-indemnity executed by plaintiff no. 1 on 26.08.2017 as well, she has categorically acknowledged the existence of the Will dated 26.12.2000 and admitted its genuineness.
4.6 He stated that in the aforenoted facts the knowledge of the existence of the Will dated 26.12.2000 of the plaintiff no.1 stands established at least since the year 2014.
4.7 He stated that late Shri Sharwan Kumar Khanna died on 27.07.2001, his Will is dated 26.12.2000 and the present amendment application filed in the year 2023 challenging the said Will dated 26.12.2000 is hopelessly barred by limitation.
4.8 He stated that it is well settled that any declaration qua the invalidity of the Will has to be raised by a party within a period of three (3) years from the date of knowledge as per Article 56 of the Schedule to the Limitation Act, 1963. In this regard, he relied upon the judgment of the Division Bench in Satya Prakash Gupta & Anr. v. Vikas Gupta1 and Coordinate Bench in Manu Markande & Anr. v. The State & Ors.2
4.9 He stated that, therefore, since the relief sought by way of proposed amendments is barred by limitation and more importantly since valuable right has accrued in favour of the defendant no.1, the amendments sought cannot be permitted.
Analysis and Findings
5. This Court has heard the learned counsel for the parties and perused the record.
6. The present suit has been filed by plaintiffs on the assertion that plaintiffs are co-parceners of the Hindu Undivided Family (HUF) known as Sharwan Kumar Khanna and Sons (HUF) and the said HUF admittedly held 1/6th undivided share in property allotted at 364 and 384 to 390, Chandni Chowk, Delhi i.e., the suit property.
7. The plaintiffs have filed the captioned suit stating that they are together entitled to 1/5th share of this undivided 1/6th share held in the name of Sharwan Kumar Khanna and Sons (HUF) in the suit property. It is stated that the said HUF after the death of the Sh. Sharwan Kumar Khanna on 27.07.2001 was taken over by defendant no.1 as the Karta of the Sharwan Kumar Khanna and Sons (HUF) being the eldest male member of the family.
8. The defendant nos. 1 and 2 filed a joint written statement dated 29.03.2022. The case setup by the defendant nos. 1 and 2 in the said written statement is that late Sh. Sharwan Kumar Khanna executed a Will dated 26.12.2000, whereby the suit property was bequeathed in favour of the defendant nos. 1 and 2 to the exclusion of plaintiff no.1, defendant nos. 3 and 4.
9. The defendant nos.1 and 2 contended in the said written statement that plaintiff no.1 had, out of her own free will, executed declaration-cum-indemnity bond dated 26.08.2017 qua her claim in the suit property, wherein she has also admitted the existence of a valid Will dated 26.12.2000.
10. It is after the filing of the said written statement that plaintiff no.1 moved the captioned application seeking to amend the plaint in order to raise a challenge to the Will dated 26.12.2000.
11. The principal opposition of the non-applicant(s)/defendant nos. 1 and 2 to the captioned application is that, firstly, by the amendments prayed for, the plaintiff no.1 is seeking to withdraw the admission(s) made by the plaintiff(s) with respect to the knowledge of existence of the Will dated 26.12.2000 executed by late Shri Sharwan Kumar in favour of the defendant nos. 1 and 2.
11.1 Secondly, the non-applicant(s)/defendant nos. 1 and 2 contend that no fresh suit for the relief sought i.e., declaration of the Will dated 26.12.2000 would be maintainable as on the date of the filing of the application (25.08.2023) as the said relief(s) have become barred by limitation.
12. In this background of the aforesaid twin objection(s) of the non-applicant(s)/defendant nos. 1 and 2 to this application, it becomes imperative to refer to the law settled by Supreme Court with respect to the conscious exercise of powers by Courts under Order VI Rule 17 CPC qua time barred claims sought to be incorporated by way of amendment to the original plaint.
12.1 In the first instance, it would be relevant to refer to the judgment of Supreme Court in Radhika Devi v. Bajrangi Singh and Ors.3, wherein the Supreme Court held that if the amendment being sought for if allowed takes away right of the opposite party accrued by bar of limitation, the said amendment of pleadings should not be allowed by the Court concerned. The relevant paragraph 6 reads as under:
6. In that case this Court considered the cross-objections to be treated as a cross-suit since no alteration was being made in the written statement to treat it as a plaint originally instituted. The amendment which was sought to be made was treated to be clarificatory and, therefore, this Court had upheld the amendment of the written statement and treated it to be a cross-suit. The ratio therein squarely applies to a fact situation where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleading, amendment in such circumstances would be refused. In the present case, the gift deed was executed and registered as early as 28-7-1978 which is a notice to everyone. Even after filing of the written statement, for 3 years no steps were taken to file the application for amendment of the plaint. Thereby the accrued right in favour of the respondents would be defeated by permitting amendment of the plaint. The High Court, therefore, was right in refusing to grant permission to amend the plaint.
(Emphasis supplied)
12.2 Thereafter, the Supreme Court in another authoritative judgment pronounced in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Ors.4, after considering all its relevant judgments on Order VI Rule 17 CPC, set out its conclusions on the discretion to be exercised by the Court while considering an application under Order VI Rule 17 CPC. In the said conclusion(s) while the Supreme Court reiterated that all amendments which are necessary for determining the real question in controversy ought to be allowed, however held that if by the amendment, a time barred claim is sought to be introduced by the party which fact becomes a relevant factor for consideration in adjudicating such a time barred claim ought not to be allowed. The relevant paragraph (71) reads as under:
71. Our final conclusions may be summed up thus:

71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived.

71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word shall, in the latter part of Order 6 Rule 17 CPC.

71.3. The prayer for amendment is to be allowed:
71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties.
71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and
(c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

71.4. A prayer for amendment is generally required to be allowed unless:
71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration.
71.4.2. The amendment changes the nature of the suit.
71.4.3. The prayer for amendment is mala fide, or
71.4.4. By the amendment, the other side loses a valid defence...

(Emphasis supplied)

12.3 Recently, the Supreme Court in the judgment of Basavaraj v. Indira and Ors.5 held that a time barred claim cannot be allowed to be incorporated by way of an amendment to the plaint as it would cause prejudice to the opposite party. The relevant paragraphs 13 to 16 reads as under:
13. Initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought. The same would certainly change the nature of the suit, which may be impermissible.

14. This Court in Revajeetu case [Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37] enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application.

15. If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application.

16. In the case in hand, the compromise decree was passed on 14-10-2004 in which the plaintiffs were party. The application for amendment of the plaint was filed on 8-2-2010 i.e. 5 years and 03 months after passing of the compromise decree, which is sought to be challenged by way of amendment. The limitation for challenging any decree is three years (reference can be made to Article 59 in Part IV of the Schedule attached to the Limitation Act, 1963). A fresh suit to challenge the same may not be maintainable. Meaning thereby, the relief sought by way of amendment was time-barred. As with the passage of time, right had accrued in favour of the appellant with reference to challenge to the compromise decree, the same cannot be taken away. In case the amendment in the plaint is allowed, this will certainly cause prejudice to the appellant. What cannot be done directly, cannot be allowed to be done indirectly.

(Emphasis supplied)

13. Adverting to the facts of the present case, it is apparent from record that the plaintiff no. 1 has duly disclosed her knowledge of the Will dated 26.12.2000 propounded by Sh. Sharwan Kumar Khanna at paragraph 17. The plaintiff no. 1 has also duly disclosed the execution of a declaration-cum-indemnity bond dated 26.08.2017 executed by her at paragraph 21 of the plaint. The plaintiff, however on 14.02.2022 when she filed the present suit consciously elected not to challenge the Will dated 26.12.2000 and the same is writ large from the documents on record.
14. Further the letter dated 06.06.2014 written in hand by plaintiff no.1 acknowledging the existence of the Will dated 26.12.2000 executed by late Shri Sharwan Kumar Khanna relied upon by the non-applicant(s)/defendant nos.1 and 2 to contest amendment sought has been fairly admitted by the plaintiff no.1 in her admission/denial of the documents.
15. In light of the fact that the plaintiff no.1 was aware of the existence of the Will dated 26.12.2000, at least since 2014, as evidenced by the document(s) on record, and because she was aware of the existence of the Will and had not challenged it in the original plaint, she had consciously accepted the same.
16. This Court, therefore, finds force in the submissions of non-applicant(s)/defendant nos. 1 and 2 that a valuable right has accrued in their favour as plaintiff no. 1 has admitted in her original plaint to the existence of the Will dated 26.12.2000 since 2014 and in addition to the admission the challenge to the validity of the said Will dated 26.12.2000 has clearly become barred by limitation.
16.1 To this effect the defendant no. 1 has placed on record the judgment of the Division Bench of this Court in Satya Prakash (supra) and Co-ordinate Bench in Manu Markande (supra), which unequivocally states that any declaration qua the invalidity of the Will has to be raised by the party within a period of three (3) years from the date of knowledge as per Article 56 of the Schedule to the Limitation Act, 1963.
17. In view of the facts and law discussed above, it is writ large that no independent suit could have been maintained by plaintiff no. 1 as on the date of the filing of this application i.e. 25.08.2023 and she, therefore, cannot seek to amend the plaint to include the additional reliefs since the same have become barred by limitation.
18. There is also another fact that this relief challenging the Will dated 26.12.2000 is separate and distinct from the reliefs and the scope of the original unamended plaint and by introducing this plea and relief, the plaintiff is seeking to change the nature of the suit.
19. The suit as initially filed is for asserting her rights as a co-parceners in the suit property and not as a Class-I legal heir of the late Shri Sharwan Kumar Khanna, whereas challenge to the Will dated 26.12.2000 is in her capacity as a Class-I legal heir, which is a separate and distinct right.
20. It is, therefore, apparent that suit when initially filed did not contemplate challenge the devolution of rights/share of Shri Sharwan Kumar Khanna in the HUF as per the Will dated 26.12.2000 and the same cannot be allowed to be done now. The plaintiff in the suit has claimed 1/5th share in the HUF in her independent capacity and has not claimed any rights in the share of late Shri Sharwan Kumar Khanna in the HUF.
21. For all the above reasons, the application is dismissed.
CS(OS) 96/2022 & I.As. 2793/2022, 1613/2023, 33649/2024, 33650/2024, 33653/2024

22. List on 04.02.2025 for further proceedings.

MANMEET PRITAM SINGH ARORA, J
NOVEMBER 06, 2024/sk

1 2011 SCC OnLine Del 4963.
2 2016 SCC Online Del 252.
3 (1996) 7 SCC 486.
4 AIR 2022 SC 4256.
5 (2024) 3 SCC 705.
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