Dismissed

Mpower Realty Llp.. and 2 Ors. v. Sarojkumar Nathmal Agarwar, and 12 Ors.

Bombay HC8 Oct 2012APP/515/2012

Case brief

AI extract

What is this about?

The High Court dismissed the appeal challenging the trial judge's order allowing amendment of plaint to claim share as heir. The court held the amendment did not alter the suit's nature, affirmed the view that joining heir and coparcener claims for the same estate is permitted under Order 2 Rule 5 CPC, and dismissed the appeal without deciding limitation. The amendment was allowed subject to clari

What did the court decide?

Allowance of amendment of plaint carried out within two weeks.

Mpower Realty Llp.. and 2 Ors. Vs Sarojkumar Nathmal Agarwar, and… — Partition | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.515 OF 2012

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WITH

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NOTICE OF MOTION NO.2121 OF 2012

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CHAMBER SUMMONS NO.864 OF 2012

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SUIT NO.1366 OF 2011

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Mpower Realty LLP & Ors. ..Appellants Versus Saroj Kumar Nathmal Agarwal & Ors. ..Respondents.

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Mr.G.R. Joshi with Ms. Neeta Jain i/b. IC Legal for the appellants. Mr.Nitin Thakker, Senior Advocate with Mrs. Nityoah Suneel and Mr. Jay Mehta i/b. Nityoah Suneel & Associates for the respondents. Dr. Birendra Saraf with Ms. Pooja Kshirsagar i/b. Adhia & Adhia for defendant No.1.

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Mr.Bijal Gandhi i/b.Yusuf & Associates for Respondent Nos.6,8 to 10.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J.

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DATE : 08 October 2012.

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P.C.

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The appeal is directed against the order dated 8 August 2012 of the learned trial Judge of this Court allowing the Chamber Summons of the original plaintiffs, respondent Nos.1 to 5 herein, for amendment of the plaint.

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The plaintiffs have filed Suit No.1366 of 2011 as members of the Hindu Undivided Family and as co-partners in the HUF of Shivdanmal Agarwal. Plaintiffs have shown the suit property as HUF property. By partition of the HUF properties in the year 1971 Ramkuribai, the grand mother of the plaintiffs, became owner of the property which came to her share. According to the plaintiffs the registered Will dated 26 March 1972 of Ramkuribai was found and probate petition was filed thereon. The Will was probated after the suit was filed. Thereafter revocation petition has been allowed and the matter is still pending before the Testamentary Court.

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By the amendment in question the plaintiffs again claim 1/3^rd share in the estate of Ramkuribai, but in different capacity.

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Learned trial Judge has allowed the amendment and, therefore, this appeal at the instance of defendant Nos.9 to 11.

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As per the settled legal position, allowing amendment of pleadings is generally a matter of course and rejecting the application for amendment of pleadings is an exception.

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Learned counsel for the appellants submitted that the proposed amendment changes the nature of the suit and also permits the respondents-plaintiffs to raise the time barred claims.

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Learned trial Judge has not decided any rights of the parties. Ultimately the plaintiffs' case which is now put up as an alternative case to the original case in the plaint will be tested at the trial. Hence it cannot be said that any prejudice has been caused to the appellants-defendant Nos.9 to 11.

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As far as the defendants' claim about the proposed amendment raising time barred claim is concerned, it is clarified that the impugned order of the learned trial Judge allowing amendment shall not be treated as expressing any opinion on the defendants contention that the said claim is time barred. Even the contention whether the amendment should relate back to the date of the filing of suit or it should be treated as having been granted from the date of filing the Chamber Summons for amendment is also kept open and the learned trial Judge will decide all issues at the final hearing of the suit.

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Learned counsel for the appellants, however, submitted

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that the impugned amendment would be hit by the provisions of Order 2 Rule 5 of the Code of Civil Procedure, which reads as under;-

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(5). Claims by or against an executor, administrator or heir.

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– No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.

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The above contention has also been dealt with by the learned single Judge in the following terms:-

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“10. Under the aforesaid rule a plaintiff cannot claim as heir joining that claim against the defendant with another personal claim of the plaintiff unless that personal claim arises with reference to the estate for which the Plaintiff claims as heir. It is stated that the Plaintiffs’ personal claim is the one as coparceners to seek partition. That claim cannot be joined as coparceners with their claim as a heirs. That argument would be attractive until one reads the later part of the rule which constitutes the exception. The exception shows that the Plaintiff cannot claim personally (for e.g. for partition as member of the HUF) along with a claim as heir unless that claim is with reference to the same estate of which the Plaintiff claims as coparcener for partition. For part of that same estate the Plaintiff can claim as heir. The Plaintiff, therefore, falls within the exception to Order 2 Rule 5 under the later portion emphasized above.

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The reasoning behind this exception is important and simple. It is that the person need not file two suits for the same estate against the same defendants; One for partition of the property as coparcener and other for administration of the estate as heir. Even if two separate suits were filed, since they would relate to the same property and would be between the same parties, they would be directed to be tried together. That is the test to conclude that they would not be barred by misjoinder of causes of action.

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Upon this analogy the Plaintiffs could have sued from the beginning for both these reliefs either independently or alternatively. The Plaintiffs failed to do it.”

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In our view the reasoning given by the learned trial Judge cannot be said to be erroneous. The plaintiffs could have filed another suit for the reliefs now sought for in the proposed amendment and in that case both the suits would have been ordered to be heard together.

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In view of the above discussion, we do not find any merit in this appeal and subject to the clarification that the impugned order shall not be treated as deciding any rights of the parties and that it will be open to the defendants to raise all available contention including the bar of limitation, the appeal is dismissed.

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In view of dismissal of the appeal, the Notice of Motion stands disposed of.

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The amendment shall be carried out within two weeks from today.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Mpower Realty Llp.. and 2 Ors. v. Sarojkumar Nathmal Agarwar, and 12 Ors.

Case brief

What is this about?

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Mpower Realty Llp.. and 2 Ors. v. Sarojkumar Nathmal Agarwar, and 12 Ors.

Case brief

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