VIJAY KUMAR AHIR vs SURINDER AHIR & ORS

$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 4th April, 2024
+ CS(OS) 267/2015 and I.A. 6283/2023
VIJAY KUMAR AHIR ….. Plaintiff
Through: Ms. Gurkamal Hora Arora and Mr. Jaisal Baath, Advs. (M: 9999720724)
versus

SURINDER AHIR & ORS. ….. Defendants
Through: Mr. Vishal Khattar, Ms Vandana Kapoor & Ms. Aneesha Sharma Advs. for D-1&2 with D-1 & 2 in person. (M: 9717182168) Mr. Amit Sood, Advocate for D-3. (M: 9810746589)
Mr. Akash Nagar & Ms. Akanksha, Advs. for Mrs. Shashi Devi, D-4 with D-4 in person. (M: 9899526250)
Mr. S.K. Chaturvedi & Ms. Ankita Agrawal, Advs. for Mrs. Veena Raj – D-5 with Mrs. Veena Raj in person. (M: 9811756975)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
I.A. 6283/2023 (for amendment) in CS(OS)-267/2015
Background
2. This is an application under Order VI Rule 17 filed by Defendant No.5 seeking to withdraw the earlier written statement and to file a fresh written statement. The allegation in the application is that there was some misunderstanding on account of misrepresentation by Defendant Nos. 1&2 and the written statement was jointly filed by Defendant No. 5 along with her other sister i.e., Defendant No. 4.
3. The dispute in the present suit is between the legal heirs of late Shri. Sadhu Ram Ahir who had four sons and two daughters. The Plaintiff claims to be the eldest son of late Shri Sadhu Ram Ahir and is based in London, United Kingdom. The father of the Plaintiff and Defendant Nos. l to 5 passed away on 23rd June, 2014. Subsequent to his demise, the property bearing No. A-8/1, Vasant Vihar, New Delhi (hereinafter ‘suit property’) is claimed to have devolved on the Plaintiff and Defendant Nos. l to 5 in equal proportion of 1/6th each. The Plaintiff and Defendant Nos. l to 3 are real brothers and Defendant Nos. 4 and 5 are the two daughters of late Shri Sadhu Ram Ahir, who had filed the joint written statement.
Submissions
4. The stand of Defendants 1 & 2 is that the father had executed a will in their favour. As per the written statement which is on record, the Defendant Nos. 4 and 5 had confirmed the execution of the Will registered on 15th October, 2021. The relevant extract from the written statement of Defendant No. 4 and 5 is set out below:
“2. That Late Sh. Sadhu Ram Ahir who is the father of Plaintiff and Defendant No. 1 to 5 had executed his last will duly registered on 15.10.2001 as document no. 2839, in Addl. Book No. I, Volume No. 1160, on pages 88 to 89, in the office of the sub-registrar, New Delhi, and had devised all his properties in favour of Defendant No. 1 and 2 and this fact was Imown to all the brother and sisters i.e. the Plaintiff and Defendant No. 1 to 5. Therefore the present suit is nothing but an arm twisting tactic used by the Plaintiff to blackmail his younger brothers.”

Thus, both the sisters, in their written statement had supported the Defendant Nos. 1 and 2.
5. Though the written statement was jointly filed by both the sisters, Mrs. Shashi Devi (Defendant No. 4) and Mrs. Veena Raj (Defendant No. 5) one of the sisters i.e., Defendant No. 5 wishes to resile from the said written statement, by way of this amendment application. The submission on behalf of Defendant No. 5 is that the Defendant No. 5 had reposed trust on Defendant Nos. 1 and 2, who had engaged a lawyer on her behalf and had filed the written statement, when the matter was in Mediation. However, now she does not wish to support the Defendant Nos. 1 and 2.
6. The evidence in this matter has already started. Plaintiff and Defendant No. 3 have already been examined. The evidence of Defendant No. 4 is to be led.
7. It is the stand of Defendant Nos.1 & 2 that Defendant No.5 was fully aware of the written statement that had been filed by her. Mr. Vishal Khattar ld. Counsel for Defendant Nos. 1 and 2 also submits that the said Defendant, i.e., Mrs. Veena Raj has been attending the Court proceedings along with her husband Mr. Hans Raj. Accordingly, it is his contention that she was fully aware of the fact that she was supporting the Defendant Nos. 1 & 2 and had consciously filed the written statement, at the relevant point of time. In view of this submission, which was made on the last date of hearing, this Court deemed it appropriate to direct the presence of Mrs. Veena Raj, Defendant No. 5.
8. Today, on behalf of Defendant No. 5, it is submitted by Mr. Chaturvedi, ld. Counsel that the plea in the amendment application is that the written statement was signed under the misrepresentation of two brothers, and, Mrs. Veena Raj, his client was not aware of the document that was being signed and contents thereof. Mr. Chaturvedi, ld. Counsel for Mrs Veena Raj submits that even the Lawyer was also provided by the Defendant Nos.1 & 2’s lawyer and Defendant No.5 simply went to Patiala House Court to sign the requisite documents. He submits that in respect of a written statement, the rule of amendment is quite liberal as compared to the amendment of plaint. Defendant No.5, having been under the influence of Defendant Nos.1 & 2 at the time when the earlier written statement was filed, wishes to change her stand and amend the same. The reasons given in the application may be referred to.
9. He further submits that even admissions can be either explained or withdrawn in case of a written statement as held in the following judgments.
? Baldev Singh & Ors. v. Manohar Singh & Anr., (2006) SCC 498
? Misha Vadera v. Ravi Kumar, 1996 (39) DRJ (DB)
? Sushil Kumar Jain v. Manoj Kumar and Anr., (2009) SCC 38
? Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami & Ors., (2007) 5 SCC 602
10. Per Contra, on behalf of the Defendant Nos.1 & 2, the following two judgments are relied upon.
? Heeralal v. Kalyan Mal & Ors., (1998) 1 SCC 278
? M/s. Modi Spinning & Weaving Mills Co. Ltd. & Anr. v. M/s. Ladha Ram & Co., (1976) 4 SCC 320
11. It is submitted by ld. Counsel for the Defendant Nos.1 & 2 that Defendant No.5 was working as a teacher and as she is highly educated. Consequently, it is his submission that she was not influenced in any manner and no misrepresentation had been made to her. He submits that allowing the amendment in the written statement would mean that this Court accepts the allegations against the Defendant Nos.1 & 2 that they had misrepresented Defendant No.5 and had influenced earlier written statement. He further submits that the written statement, which has been filed, is a joint written statement of Defendant Nos.4 & 5.
Statements of Defendant Nos. 4 and 5
12. As per the directions given vide order dated 9th January, 2024, both Defendant Nos. 4 & 5 are present in Court today. Their statements have been recorded separately, which are extracted below:
“Statement of Mrs. Veena Raj W/o Mr. Hans Raj, aged around 65 years, R/o H. No.4070, B-5 and 6, Vasant Kunj, Near Mother Dairy, New Delhi, South West Delhi, Delhi-110070.

On SA
I am qualified and have completed M.A. and B. Ed. I was teaching at Sarvodaya Co-Educational Vidyalaya, which is a Delhi Government school. Earlier I was teaching in Sarojini Nagar -I Branch school and I retired in 2007 while serving the Vasant Vihar school as its Vice Principal.
I do not know Mr. Akash Naagar, Advocate. I only know Mr. Vishal Khattar, Advocate. My brothers, Surinder Kumar Ahir and Mr. Rajeev Ahir took me to Mr. Vishal Khattar, Advocate. I do not know where Mr. Khattar’s office is. I had gone to Patiala House Court. It was in April, 2015. I know English but not fully. I did not read anything before I signed. Whatever papers were given to me, I signed them.
I have not come to the Court after 19th November, 2015.
My father had only one property in Vasant Vihar. I filed the application in 2019 when I came to know in 2018 that my brothers are claiming that I am supporting them. I filed the application in 2019.
I recognise my counsel Mr. S.K. Chaturvedi, Advocate. I was guided to Mr. Chaturvedi by another lawyer, who was my neighbour. According to me, all the brother and sisters should get 1/6th share of the property.
My sister’s name is Mrs. Shashi Devi. I am not in touch with my sister, Mrs. Shashi Devi. My sister is not speaking to me. There were three weddings in the families of two of my brothers, Defendant Nos.1 & 2. However, they sent the cards through their sons. They do not meet me anymore. I want to meet all the four brothers all together.

Statement of Mrs. Shashi Devi W/o Shri Vijay Kumar, aged around 59 years R/o, 3146, Sector-A, Pocket-B/C, Vasant Kunj, New Delhi.

On SA
I have studied till B.A. My father used to work in the Home Ministry. We had shifted to the Vasant Vihar residence by the end of the year 1975. I got married in 1978. We, brothers and sisters, had such a good relationship that the people used to cite us as an example. Disputes have arisen only after my father’s demise. I do not want any part of the property and I signed the written statement with full consciousness.
This suit has been filed by Mr. Vijay Kumar Ahir, who lives in London, who is my brother. After the Plaintiff – Mr. Vijay Kumar asked for a share, another brother Mr. Ramesh Kumar also asked for a share. Me and my sister signed in front of the Oath Commissioner in Patiala House Court where we both were together when the signatures were done. She never had any objection. We used to come together to the Delhi High Court before COVID-19. I had come to the Court on all dates when the case was listed except during the COVID-19 period. My sister used to come with me regularly, and sometime later, she stopped coming. When she signed the documents, she had signed them with her full consent, and I cannot understand as to what has happened to her now.
I recognise Mr. Akash Naagar, the counsel. I do not know with whom he is working, but I gave him the vakalatnama.

Court Query: Your sister says she does not recognise the counsel Mr. Akaash Naagar.
Ans. I have nothing to say about that. What can I say?”

Analysis and Findings
13. The Court has also considered the matter. In the present case, the dispute is between siblings in respect of shares of their late father’s property. In such cases, the parties being so closely related to each other, the fact, that the brothers may have taken Defendant No.5 to a lawyer for filing of the written statement was filed supporting Defendant Nos.1 & 2, cannot by itself be taken as a fact that would reveal any misrepresentation and undue influence or coercion.
14. The written statement is a joint written statement by Defendant Nos.4 & 5. Further, the statements recorded in Court and extracted above would show that the stands of Defendant No.4 and Defendant No.5 are contradictory to each other.
15. Ultimately, the Court has to go by written documents, which are on record. It is the admitted position that Defendant No. 5 does not dispute her signatures in the written statement or in the supporting affidavit. She even admits that she had gone to the Patiala House Court Complex to sign the requisite documents. Moreover, there is also a plea by Defendant no.4 that Defendant no.5 had been regularly attending the Court proceedings, which can also be verified through the Court Registry.
16. In order to verify the accuracy of the statements made by both the parties, the Registry was directed to furnish a report in respect of entry passes issued to Defendant No. 4 and 5. The said report has been received by the Court which reveals that there are at least three visits of Defendant No. 5 after 19th November, 2015, i.e. on 25th September, 2019, 17th February, 2020 and 18th February, 2020. It has also been verified and noted that on the said dates, the matter was listed before the ld. Joint Registrar for cross examination.
17. Thus, the statement of Defendant no.5 that she did not attend court proceedings after 9th November 2015 is a factually incorrect statement. In fact, both the Defendant Nos. 4 and 5 have been regularly attending the proceedings and the statement of Defendant No. 4 is more accurate. From the said report received from the Registry, the clear position that emerges is that prima facie, no confidence can be reposed in the statement and conduct of Defendant No. 5.
18. Coming to the judgments cited by ld. Counsel for the Defendant No.5, in Usha Balashaheb Swami (supra), the Court held that the bar to amend the written statement is much liberal but in the said case, trial had yet not commenced. A similar situation was observed in Sushil Kumar Jain (supra), where in paragraph 19 it is noted that trial had not commenced. In Misha Vadera (supra), the Court holds that there is no absolute bar against withdrawal of admission and it would be a question of discretion of the Court and jurisdiction to permit withdrawal is not barred. Finally, in Baldev Singh & Ors. (supra), the Court held that if serious prejudice or injustice is likely to be caused to anyone by withdrawal of the admission, it is held that amendment is not permissible.
19. In summary, judgments cited by ld. Counsel for Defendant No. 5 demonstrate that while there is a degree of flexibility in amending written statements and withdrawing admissions, such actions are subject to the discretion of the Court. Courts have consistently held that at the trial stage, the potential for prejudice or injustice, and the specific circumstances of each case are critical factors in determining whether amendments or withdrawals are permissible.
20. Finally, as observed earlier, the following facts persuade this Court not to allow the amendment.
a. Trial of the suit has already commenced;
b. Written statement is a joint written statement of Defendant Nos.4 & 5.
c. Defendant No.4 has stated that she and Defendant No.5 had gone together to sign the written statement and Defendant No.5 was fully conscious of the same. The Defendant no.5 is attempting to resile from this position;
d. The question as to whether there was misrepresentation and undue influence etc. would be a question of evidence. At this stage, allowing of amendment would, in effect, mean that the stand of Defendant No.5 is being accepted to the prejudice of Defendant Nos.1 & 2, to whom serious prejudice and injustice could be caused;
e. The manner in which Defendant No.5 does accept signatures on the written statement but denies the understanding of its contents, is not fully convincing.
21. Under these circumstances, this Court is not inclined to allow the amendment. Accordingly, this application for amendment is dismissed with costs of Rs.20,000/- to be deposited with the Delhi High Court Legal Services Committee within four weeks.
CS(OS) 267/2015
22. In view of the order passed above, the evidence before the Joint Registrar shall now be led in the following order:
* First of Defendant Nos.1 & 2
* Secondly – Defendant No.4
* Thirdly – Defendant No.5
23. List before the Joint Registrar on 9th April, 2024.
24. List before the Court on 29th August, 2024.

PRATHIBA M. SINGH
JUDGE
APRIL 4, 2024/dk/am

[corrected and released on 9th April, 2024]

CS(OS) 267/2015 Page 2 of 2