Allowed

Smt. Sarla Verma v. Ajay Kumar Kalia (Deceased) and 7 Others

Allahabad HC3 Jan 2019A227/9103/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the rejection of an amendment application under Order VI Rule 17 CPC. The court permitted adding a prayer to cancel a disputed will to the plaint, rejecting the lower court's finding of delay, and directed reframing of the determination issue regarding the will's genuineness.

What did the court decide?

The petition is allowed. The amendment application Paper No.153-Ka is allowed to add relief for cancellation of the Will. The lower court is directed to reframe issue no.4 and proceed to decide the su

Smt. Sarla Verma Vs Ajay Kumar Kalia (Deceased)… — Succession and Inheritance | Allahabad HC (2019)

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Court No. - 36

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Case :- MATTERS UNDER ARTICLE 227 No. - 9103 of 2018

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Petitioner :- Smt. Sarla Verma Respondent :- Ajay Kumar Kalia (Deceased) And 7 Others Counsel for Petitioner :- Rishikesh Tripathi Counsel for Respondent :- Asim Kumar Singh

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard learned counsel for the parties and perused the record.

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The present petition is directed against the order dated 15.11.2018 whereby the Xth Additional District Judge, Agra has rejected the amendment application Paper No.153-Ka filed under Order 6 Rule 17 C.P.C. claiming amendment in the relief clause of the plaint.

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By means of the amendment, the plaintiff is seeking a relief for declaration of the Will dated 12.4.1990, allegedly executed by the original owner namely Devraj Kalia being a void document. The categorical submission of learned counsel for the petitioner to assail the order impugned is that the Original Suit No.257 of 2006 (Smt. Sarla Verma v. Ajay Kumar Kalia & Ors.) has been filed with the relief seeking a decree of partition for declaration of 1/6^th share of the plaintiff in the house in question and put the plaintiff in exclusive possession of her 1/6^th share, so partitioned by evicting the defendants therefrom. In the written statement, the defendants, however, claimed their exclusive possession over the suit property by virtue of a Will dated 12.4.1990, allegedly executed by Devraj Kalia. There is no dispute between the parties regarding the suit property being self acquired property of Shri Devraj Kalia. The plaintiff in the replication has disputed the correctness of the Will with the assertions in Paragraphs '1' and '2' of the replication as follows:-

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" 1. That the facts mentioned in para no.1 of the W.S. filed by the defendant no.2 are wrong and not admitted. Sri Dev Raj Kalia never executed the alleged will dated 12.4.1990 in respect of this suit property. Since Sri Dev Raj Kalia died on 12.5.1990 and before death he was suffering from severe diseases having age of more than 80 tears. The mental faculty of Dev Raj Kalia in April 1990 before his death was not in working order and he was

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not in position to execute the will or to give instructions to the scrib to write the will. Sri Dev Raj Kalia never instructed to execute the will to the scrib.

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2 . That the allegations made in para no.2 of the W.S. are wrong and not admitted. It is wrong to allege that the property in suit plot no.22, 23, 24 were bequeathed by Sri Dev Raj Kalia to defendants no.1, 2 & 3. The alleged will was never attested by two attesting witnesses on 12.4.1990. The plaintiff and her husband never knowingly signed upon the alleged will dated 12.4.1990 as the same are forged and fabricated, as Sri Dev Raj Kalia never disclose the execution of the will and the defendants no.1, 2 & 3 never occupied the portion of the said property as of owner. The entries in the revenue record might have been obtained by playing fraud."

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In the light of the pleadings of the parties, additional issues have been framed by the trial court vide order dated 2.8.2016. Issue No.4 pertaining to the claim of the defendants of having exclusive ownership over the suit property by virtue of Will dated 12.4.1990, reads as follows:-

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**4- D;k nsojkt dkfy;k us ofl;r fnukafdr 12-4-90 izfroknhx.k ds gd esa fuLikfnr dh vkSj mDr ofl;r ds vk/kkj ij og nsojkt dh lEifRr ds okfjl gq,\ D;k ;g vuqys[k ;gkW fn;k tk ldrk gS\

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It appears that both the parties have proceeded to lead evidence and the suit has reached at the stage of conclusion of evidence. At the stage of preparation of the matter for arguments, counsel for the plaintiff had realised that he had committed a mistake in not seeking relief for cancellation of the Will which was set up by the defendants in the written statement. At this stage, application for amendment of the plaint relief has been filed which was registered as Paper No.153-Ka. This application was contested by the defendants on the ground that the amendments were sought at the belated stage and, therefore, are barred by virtue of proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908. The court below has proceeded to reject the amendment application on the ground of delay and has recorded that the factum of execution of Will was well within the

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knowledge of the plaintiff and the amendments to seek relief for cancellation brought at such a belated stage cannot be allowed.

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Learned counsel for the petitioner vehemently submits that in view of the pleadings in Paragraphs '1' and '2' of the replication, (as noted above) and the fact that the additional issue on the said pleadings namely issue no.4 (as reproduced above) has been framed by the court below, the proposed amendment application seeking addition in the plaint relief are only formal, and could not have been denied by the court below on technical grouds.

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Submission is that in the light of the pleadings of the parties evidence have been led and, in case, the plaintiff is denied to seek relief for cancellation of Will, his entire suit would frustrate.

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Placing reliance upon the judgments of Apex Court in Pankaja & Anr. v. Yellappa (D) by L.Rs & Ors . reported in AIR 2004 SC 4102 and Puran Ram v. Bhaguram & Anr. reported in 2008 AIR SCW 2265 , it is contented that even time barred relief can be allowed by way of amendment and the question of limitation cannot be pressed into service, in case, there is sufficient pleading on the part of the party seeking amendment.

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Considered the said submissions and noticed the law laid down by the Apex Court in Pankaja & Anr . and Puran Ram (supra), this Court is of the considered view that the proposed amendments seeking addition in the plaint relief cannot be denied on the ground of delay, inasmuch as in case of rejection of such amendment, the plaintiffs would not get substantial relief in the suit brought by her seeking partition of her 1/6th share in the house in question. It is further evident from the record that the plaintiff has denied the fact of execution of the Will dated 12.4.1990 by the original owner in favour of the dependant and has also disputed the fact that the testator was in a position to execute the Will out of his sweet will. Further, the plaintiff has also disputed the Will having been attested by the marginal witnesses.

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In the light of the said pleadings, it appears the issue no.4 has been framed by the court below but the determination on the question of correctness or genuineness of the Will would require reframing of

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issue no.4, which can be done by the court below on an appropriate prayer made by the counsel for the parties.

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Further, learned counsel for the petitioner submits that sufficient evidence have been led by the parties in the light of the pleadings made in the written statement and the replication, to dispute the genuineness of the Will and any addition in the nature of evidence on the issues framed by the Court is not required.

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For the aforesaid, this Court is of the considered view that, in case, the amendment application is allowed granting permission to the plaintiff to add relief in the plaint, it would help the court below in deciding the controversy and to do substantial justice between the parties. No inconvenience would be caused to any of the parties.

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In view of the above, while setting aside the order dated 15.11.2018 passed by the Xth Additional District Judge, Agra, the present petition is allowed with the observation that the amendment application namely Paper No.153-Ka is allowed only to the extent of seeking amendment in the plaint relief by addition of relief seeking cancellation of Will.

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Rest of the proposed amendments as prayed in the amendment application namely Paper No.153-Ka are not being pressed by the learned counsel for the petitioner, and hence rejected.

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The court below is, therefore, directed to allow the learned counsel for the plaintiff to incorporate amendment on the next date fixed. It shall reframe issue no.4 on the prayer of the counsel for the parties in the light of the pleadings in the replication filed by the plaintiff and shall proceed to decide the suit considering the evidence already led by the parties, as expeditiously as possible.

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(Sunita Agarwal, J.)

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Order Date :- 3.1.2019 Jyotsana

Smt. Sarla Verma v. Ajay Kumar Kalia (Deceased) and 7 Others

Case brief

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Smt. Sarla Verma v. Ajay Kumar Kalia (Deceased) and 7 Others

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