Harbans Singh vs Mehnga Singh and Others

One Sajjan Singh is alleged to have purchased agricultural land in the names of his wife and three sons. One of the sons was a minor. On 4th April, 1962, by means of three deeds, major portion of the property was sold by the father, acting on behalf of his minor son, his two sons and his wife to Mehnga Singh and others. The remaining property was also gifted by the same persons to the vendees on 4th April, 1963. One of the sons, namely, Harbans Singh, on becoming a major, brought a suit in July, 1970 against the vendees for possession of his one-fourth share in the said property. His allegations were that this father had no right to sell his share without first obtaining permission from the court u/s 8 of the Hindu Minority and Guardianship Act, 1956. The sale regarding his share was therefore, void and he was entitled to get possession of the property from the vendees.

The suit was resisted by the vendees, but was ultimately decreed by the trial Court. Therefore, the vendees went in appeal before the learned Additional District Judge, Amritsar. During the pendency of the appeal, the defendants filed an application under Order 6, Rule 17, code of Civil Procedure, for the amendment of their written statement. Their prayer was that they should be allowed to take up a new plea, namely, that Harbans Singh, minor, was not the owner of the property but he was merely a benamidar for his father, who had in fact purchased the entire property and the belonged to him. Consequently, the father could sell the same. In any case, the minor should be asked to refund the benefits that he had derived under the said sale.

This application was opposed by the plaintiff and it was urged that the defendants should not be allowed to take inconsistent pleas. The same was, however, allowed by the learned Additional District Judge on payment of Rs. 250/- as costs to the plaintiff. Against that order, the plaintiff has come here in revision.

From the impugned order, it appears that the only point that was argued before the learned Judge was that the application for amendment was a mala fide one and should not be allowed at a belated stage. The learned Judge granted this application by merely observing that the amendment sought could not be said to be malafide and further that the fact that the defendants were coming late to the Court was only a circumstance for burdening them with heavy costs.

It was urged by the learned counsel for the petitioner that the real point that was argued before the learned Judge had not been noticed by him. Reference in this connection was made to the reply filed by his client to the amendment application. Therein, it was specifically stated that the defendants could not resile from the admission already made by them. In the original written statement, they had categorically stated that the property belonged to the minor and the sale had been made with his consent. The present plea that the minor was only a benamidar for his father was contradictory to the stand that they had originally taken in the written statement, and they should not be permitted to do so, especially at that belated stage.

There is no manner of doubt that originally the case set up by the defendants was that the plaintiff was the owner of 1/4th share in the property and the sale was made with his consent. There was no issue framed regarding the point as to whether the plaintiff owned 1/4th share in the property or not, for the simple reason that the defendants had not taken up the plea, which they now wanted to raise. As a matter of fact, when the evidence was led, the defendants wanted to establish that the sale had been made in their favour with the consent of the minor. Now by means of this amendment application, they want to give a complete go-by to the original stand and they want to urge that the plaintiff, minor, was only a benamidar for his father, who was the real owner of the property, and, consequently, the father could make a valid sale in favour of the defendants. Such an inconsistent plea should not be allowed by way of amendment of the pleadings at such a belated stage. Reference in this connection may be made to a Bench decision of the Lahore High Court in Fazal Nur v. Bibi Rani AIR 1930 Lah 278 where it was observed that amendments should always be allowed under Order 6, Rule 17, where such amendments facilitated a complete decision of the dispute between the parties. But if the proposed amendments displaced a plaintiff''s suit or introduced new and inconsistent case and the application was made at a late stage of the proceedings they should be refused.

On the same lines is another Bench decision of this Court in Kartar Singh Wazir Singh Vs. Sardara Singh Wazir Singh, .

A Division Bench of the Bombay High Court in Sitaram Krishna Padhye Vs. Chimandas Fatehchand, , has also taken the same view. There it was held:

"Amendment allowing the plaintiffs to introduce an entirely new and different cause of action, which would require a new trial, and which would involve quite different considerations and quite different evidence from that which were before the court, should not be allowed."

It appears that the real point mentioned above which arose in the case, was not touched by the learned Additional District Judge.

I will, therefore, accept this petition and quash the impugned order. There will, however, be no order as to costs. Parties have been directed to appear before the learned Judge on 12th June, 1972, for further proceedings in the case.

Petition allowed.