Gita Abhayankar vs Vikram Abhyankar and Others

V.K. Jain, J.

IA No. 11848/2011 (O. 6 Rule 17 of D-2) 1.

This is an application by Defendant No. 2 seeking amendment of the written statement. By way of proposed amendments, Defendant No. 2 wants to add the following paras after para 2, under the heading ''Submissions of Defendant No. 2.''

Property No. 1/31, Shanti Niketan, New Delhi was admittedly owned by late Shri Kewal Singh, father of the Plaintiff and maternal grandfather of Defendants No. 1 and 2, who are the children of the Plaintiff. The case of the Plaintiff, as set out in the plaint, is that under a family settlement dated 30th July, 1969, half of this property came to the share of the Plaintiff, whereas the remaining half came to her mother Shamie Singh. Defendant No. 2 is supporting the case set out by the Plaintiff in this regard. The case of Defendant No. 1, however, is that vide a Will executed on 25th September, 2003, the whole of this property was bequeathed by Mrs. Shamie Singh, exclusively to him. The Will dated 25th September, 2003 is a registered a Will.

In her written statement, Defendant No. 2 stated that on various occasions, her grandmother Mrs. Shamie Singh had confirmed to her that the Plaintiff had 50% share in the aforesaid house, whereas the balance 50% was held by her (Mrs. Shamie Singh). It was further alleged that Defendants No. 1 and 2 have 25% share in the aforesaid property, whereas the Plaintiff is the owner of 50% share in this property, they having inherited it in terms of the joint and mutual Wills of their grandparents dated 30th August, 1985 and 26th June, 1986. As regards the Will setup by Defendant No. 1, it was denied and disputed and it was alleged that the Will was neither legal nor a valid document and Defendant No. 1 cannot claim any right pursuant to the aforesaid Will.

Thus, though Defendant No. 2 in her statement had disputed the Will set up by Defendant No. 1 and had also claimed that it was not a legal or valid Will, the specific grounds on which the validity of the Will was being disputed was not specified in the written statement.

Vide proposed amendment, Defendant No. 2 wants to plead various ground on which she is disputing the Will set up by Defendant No. 1.

The proposed amendment has been opposed by the learned Counsel for Defendant No. 1 on the grounds that since the denial of the Will dated 25th September, 2003 was an evasive denial, it amounts to admission and if the proposed amendment is allowed, it would amount to allowing Defendant No. 2 to withdraw the admission made by her with respect to the Will set up by Defendant No. 1. It is also submitted by the learned senior counsel appearing for Defendant No. 1 that Defendant No. 2 was very well aware of the Will since it had been filed in the Court before she filed her written statement.

In my view, the written statement filed initially by Defendant No. 2 cannot be said to contain an admission either with respect to execution or with respect to validity of the Will set up by Defendant No. 1. As noted earlier, not only has the Will been disputed, its validity has also been denied though the specific grounds on which the validity of the Will was disputed, were not pleaded in the written statement which was initially filed. The proposed amendment of the written statement, to my mind, is more or less by way of elaboration of the plea already taken by Defendant No. 2, denying the validity of the Will setup by Defendant No. 1. Since there is no admission by Defendant No. 2 with respect to the execution or the validity of the Will set up by Defendant No. 1, it is difficult to accept the contention that the proposed amendment, if allowed, would have the effect of permitting withdrawal of the admissions made by Defendant No. 2 in the initial written statement filed by her.

It is settled proposition of law that while considering an application for amendment, the Court cannot go into truthfulness or otherwise the averments sought to be pleaded by way of proposed amendment. The case is at the initial stage since issues have not been framed. Defendant No. 1 can, therefore, be compensated in terms of costs, for the delay in seeking amendment.

Mr. Kapur states that since the validity of the Will is being disputed in the written statement of Defendant No. 2, he has no opportunity to revert these allegations. That, in my view, can be taken care of by permitting Defendant No. 1 to file an additional written statement/replication to the written statement of Defendant No. 1, spelling out his reply to the averments sought to be made by Defendant No. 2 in her written statement.

Mr. Kapur states that these amendments have been sought after he has argued at length before this Court in IA No. 7030/2004, 8157/2004, 3857/2005, 4671/2005, 4702/2007 and 8753/2008, which were disposed of vide order dated 7th April, 2010. That, to my mind, is absolutely irrelevant and can be no ground to reject the proposed amendment.

For the reason given in the preceding paragraphs, the application is allowed, subject to payment of Rs 5,000/as costs.

The IA stands disposed of.

CS(OS) 1166/2004

Amended written statement be filed within four weeks. Defendant No. 1 will be at liberty to file additional written statement/replication to written statement of Defendant No. 2, controverting the plea taken by way of amendments which have been allowed in terms of this order. Renotify on 08th September, 2011.

IAs No. 7518/2010 (under Section 151 Code of Civil Procedure) and 16511/2010 (under Section 5 of Limitation Act.)

Mr. Kapur states that he needs some time to make submissions on these applications.

Hence, renotify for hearing on 08th September, 2011.

Since Defendant No. 1 is seeking adjournment, the interests of the other parties need to be protected till the applications are heard on merits. Hence, till further orders, the parties to the suit will not withdraw the amount of Rs 25 lakh, which is stated to be lying deposited with Standard Chartered Bank.