Stteaj Kumar Kaenani vs Indra Kumar Karnani

Mallick, J.—These are two applications for amendment of the defence. The suit in which the applications are made is a suit for partition of the properties belonging to the Karnani family. Sukhlal Karnani with his son Chandanmull and his grandsons Indra Kumar, Bejoy Kumar, Shewkumar and Suraj Kumar constituted a Mitakshara Hindu joint family. Sukhlal died in 1946 his son Chandanmull having predeceased him in 1938. It is a trading family and the family is possessed of vast properties moveable and immoveable and carries on a number of businesses in different names. Most of the businesses have been converted into private companies and the shares in these companies now belong to the joint family. Some of the very valuable immovable properties of the joint family have also been similarly conveyed to private companies and the shares in these companies now belong to the joint family.

India (Kumar ever since the death of Sukhlal in 1946 was, admittedly, the larta of the joint family and Mr. P.R. Das the learned Counsel for Indra Kumar admitted that the large block of shares appearing in the name of Indra Kumar do not belong exclusively to him as his personal property but belong to the joint family and he is holding them as karta. Shares in these companies also appear in the name of other members of the joint family and those shares also belong to the joint family and are not the personal properties of the registered holders of those shares.

On May 12, 1947 Dhapi Sethani, widow of Chandanmull executed a deed of surrender whereby she surrendered in favour of her sons and other members of the joint family all her claims and rights in the joint family properties and assets.

On May 13, 1949 Shewkumar instituted a suit for partition. On the day following, that is, on May 14, 1949 Bejoy Kumar instituted another suit for partition in this Court being Suit No. 1897 of 1949. Shewkumar''s suit was withdrawn on August 31, 1949. Bejoy''s suit ended m a compromise decree, dated January 26, 1950, whereby Bejoy and his branch separated from the joint family and some properties were allotted to him in severalty in lieu of his one-fourth share in the entire joint family (Properties. The other members, namely, the three other grandsons of Sukhlal, Indra Kumar. Shewkumar and Suraj Kumar and their respective sons continued joint and Indra Kumar continued to be the karta of the truncated joint family.

It appears that on November 24, 1950 Indra Kumar purporting to act as the karta of this truncated or new joint family entered into an agreement with Bejoy Kumar and his branch whereby Indra Kumar purported to exchange properties allotted to Bejoy and his branch for 3.58,740 fully paid up shares of Karnani Properties Limited belonging to the truncated joint family. It is alleged that subsequently Indra Kumar instituted a suit for specific performance of this agreement against Bejoy Kumar. Bejoy Kumar however having agreed that he would perform the agreement, the suit was by consent of parties dismissed.

The present suit has been instituted by Suraj Kumar for partition. Indra Kumar and his minor children and Sewkumar and his minor son Gajendra Kumar have been impleaded as parties Defendants. After pleading the pedigree and deaths of Suklal and Chandanmull, it is pleaded that Dhapi Sethani executed a deed of surrender of her interest in the joint family properties in favour of her sons the members of the joint family. It is father pleaded that Bejoy has separated from the joint family pursuant to the compromise decree in the suit No. 1897 of 1949. The properties now belonging to the joint family so far as the Plaintiff lias been able to ascertain are set out in the Schedule A to the plaint. The shares of the parties are set out and the usual reliefs claimed.

In the written statement filed by Sewkumar, it is alleged in paragraph 4 that after Sukhlal''s death Indra Kumar acted as the karta. In para. 6 of the written statement the deed of surrender is not challenged but reference to the document is made as to its scope and effect. In para. 7, reference is made to Bejoy Kumar''s suit for ascertaining its scope and effect. The consent decree has not been challenged. In para. 8 it is not admitted that the properties set out in the schedule to the plaint are the only joint properties. In para. 9, the Court is invited to declare the share of the parties but it is submitted that the right inter se of the members of the branch of Sewkumar may be determined if and when necessary. In para. 10 it is submitted that proper discovery should be made and, if necessary, accounts taken before final reliefs are granted in this suit.

On behalf of Gajendra voluntary statement has been filed by Arun Kumar Roy Solicitor, who was appointed guardian of the minor by me. The guardian was specifically ordered to obtain instructions from the mother and such other persons he thought proper. The voluntary statement is more or less on the same lines. In para. 7 of the voluntary statement, it is not admitted that the properties covered by the compromise decree in Bejoy''s suit were the only properties of the joint family. It is alleged that the minor has no knowledge of how the consent decree was brought about or the liabilities of the parties adjusted and the minor makes no admission with regard to the same. It is not admitted that all the joint family properties have been set out in the Schedule to the plaint and full discovery and inquiry as to what the joint family properties are have been claimed. In para. 10 it is alleged that "an account be taken of "the joint properties, the businesses and joint assets and the "adult members of the family be directed to make full and "complete discovery of their dealings with the joint estate". The guardian concludes by leaving the interest of the minor to the protection of the Court.

The written statement of Sewkumar was affirmed on December 5, 1955 and the voluntary statement of the guardian was affirmed on February 27, 1956. The present summons for amendment of the written statement was taken out by Sewkumar on February 19, 1957. The guardian took out his summons for amendment on January 11, 1957. It is to be noted that Sewkumar took out previously another summons on September 10, 1956 for amendment. This summons was abandoned and the present summons was taken out on February 19, 1957. The reasons for abandoning the previous summons and taking out a new summons is that the amendment previously sought was not comprehensive enough and after collecting more materials Sewkumar was advised to ask for a more comprehensive amendment of the written statement. The reason for seeking amendment is given in para. 10 of the petition of Sewkumar which reads as follows:

Until recently your Petitioner did not have an adequate picture of the various dealings by the said Defendant Indra Kumar with the various joint family assets, properties and funds. His enquiry is not yet complete. But in view of the directions of the learned Judge he is desirous of having his written statement amended in the manner indicated in red ink in the copy written statement annexed hereto and marked with the letter "A".

The usual allegation is made that the application is bona fide and in the interests of justice. The guardian in his affidavit affirmed on January 11, 1957 in support of his summons for amendment gives his own reasons for asking for amendment and his explanation for the delay. He states in para. 4 of his affidavit that the materials available to him for drawing the original voluntary statement were extremely limited. After filing the voluntary statement he caused enquiries, searches and inspection of the various proceedings and transactions relating to the joint family and in course of this investigation he came across considerable new material which were not available to him when the voluntary statement was filed. Paragraph 8 of the said affidavit of the guardian concludes with the following observation:

Under instructions for the said Sm. Jamuna Debi and in the light of the said materials, I have been advised to amend the voluntary statement in order to avoid further litigation and to adequately safeguard the interest of the said minor Defendant.

This affidavit also concludes with the usual averment that the application is bona fide and is made in good faith. It is clear that the father and son, so far as this litigation is concerned are acting in unison, as they must, and the two applications have; been made with the same object, namely, to expand the scope and complicate the present suit in every possible way. Indra Kumar and the Plaintiff are entitled to comment as they did that in the voluntary statement we recognise the hand of Jacob but the voice of Esau. The guardian''s voluntary statement is really the written statement of Sewkumar and in the submission of the Plaintiff both the amendments should be rejected on the ground of delay and mala fide. While however, I am not prepared to accept the explanation of Sewkumar for the long delay in making the application, I am prepared to stretch a point in favour of the guardian and hold that his explanation for the delay in coming to Court and asking amendment may be accepted. Sewkumar the father had full knowledge of all facts alleged now and, in my judgment, he could have in his original written statement made all the allegations which he is now seeking to incorporate in his written statement by the present amendment. He is guilty of long delay which must be held to be evidence of mala fide and absence of good faith.

The object of the amendment is to agitate in the present suit the following additional questions:

(2) That Indra Kumar acted as the karta of the joint family not merely after the death of Sukhlal in 1946 but from as far back as 1938 even during the life time of Sukhlal his grandfather.

This amendment is sought because most of the alienations of the joint family property took place before the death of Sukhlal and the object of the applicants is to hold Indra Kumar responsible for all these alienations and liable therefor. These alienations have been alleged to be unlawful, without any legal necessity and not for the benefit of the joint family.

(2) The Defendants now seek to make a positive case that the Deed of Surrender executed by Dhapi Sethani is void and inoperative and as such she is still interested in the joint family properties and as such a necessary party in this partition suit.

(3) The consent decree in Bejoy''s suit is challenged on the ground that there was absence of free consent. The legality of the consent decree is, however, not sought to be debated in this suit. Only the right to challenge it is reserved in a separate suit. What is sought to be challenged in this proceeding is the subsequent proceedings between Bejoy and Indra Kumar acting as karta of the new joint family culminating in a deed of exchange. This exchange is alleged to be improper and wrongful, without any legal necessity or for the benefit of the joint family and as such not binding on the joint family.

It is to be noted that so long as the consent decree stands, Bejoy is a stranger to the new joint family and the present question sought to be introduced by the amendment is a question of wrongful alienation by the karta in favour of a stranger.

(4) The real object of the amendment is to cause enquiry and establish title of the joint family in a large number of properties now in the possession of strangers and not available for partition now. It is alleged that the other persons in whose names the properties stand are only benamdars and nominees of Indra Kumar. Title to the properties which formerly belonged to the joint family and have since been alienated since 1938 to strangers are sought to be brought in within the purview of this suit. It is realised that the title of the joint family in these properties cannot be adjudicated in the absence of the alleged benamdars and alienees and in para. 12 it is pleaded that they should be added as parties. Paragraph 12 concludes with the following observation:

Further the suit is bad for non-joinder of Bejoy Kumar and his sons Chandra Kumar and Sudarshan Kumar and the said Dhapi Sethani.

(5) Indra Kumar is alleged to be guilty of waste, mismanagement and misappropriation and creation of fictitious debts in the name of the joint family.

No particulars have been given apart from the allegation of improper alienation. Strict account is claimed against Indra Kumar for all the above acts on the basis of wilful neglect and default.

(6) Lastly, remuneration earned by Indra Kumar as Director''s remuneration and commission by reason of his holding a large block of shares belonging to the joint family, is claimed to belong to the joint family and Indra Kumar is held to be accountable for that.

Very able and interesting arguments have been made by learned Counsel in this case and I need hardly say that such arguments have been of considerable assistance to me in arriving at a decision. Having regard to the stake, I do not consider the time taken up by learned Counsel was more than was necessary.

The power given to the Court to grant leave to amend, in my judgment should be exercised with great liberality. My practice has been to grant this leave freely unless I am fully satisfied that it would do injury to the other side which cannot be compensated by costs. In doing so, 1 am in the good company of such eminent Justices as Bramwell L.J. In the case of written statement, the Court should exercise this power with greater liberality for this power to grant leave to amend is less restricted in the case of written statements than in the case of a plaint. As pointed out by P. B. Mukherji J. in the case of Nrisingh Prosad Paul Vs. Steel Products Ltd., , that "the rule that the "Plaintiff cannot be allowed to amend the plaint so as to alter "materially or substitute his cause of action or nature of his "claim has necessarily no counterpart in the law relating to "amendment of the defence or written statement. Adding a new "defence or substituting or altering a defence does not raise the (1) A.I.R.(1953) Cal. 15. "same problem as adding, altering or substituting a new cause "of action". With this view of the law I respectfully agree. The Court, in my judgment, should grant leave to amend a written statement for adding any new defence not taken or even indicated in the original written statement. I do not agree with Mr. P.R. Das that a plea of fraud cannot be introduced in the written statement by way of amendment. I do not find either reason or authority in support of such a wide proposition. The learned Advocate-General cited the decision of the Supreme Court in the case of Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , in support of his contention that all amendments should be allowed which do not work injustice to the other side. There is force in Mr. Das''s comment, that the Supreme Court does not state anything new and states the law we all knew before the decision. The Supreme Court points out that in order to grant leave to amend the Petitioner, over and above satisfying the Court that the amendment would not work injustice to the other side, must satisfy the Court that the amendment is necessary for the purpose of determining the real questions in controversy between the parties. Order 6, Rule 17 directs that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. In the matter of amendment, in my judgment, the ''''real controversy rule" is the most important rule and the Court is to ascertain in each case whether the party seeking amendment has succeeded in satisfying "the real controversy rule". It is, therefore, necessary in the instant case to consider whether the amendment sought satisfies the "real controversy rule".

The instant case is a suit for partition simpliciter of the joint family properties owned and possessed by the joint family. In the schedule properties are set out. It is alleged that the Plaintiff is unable to give particulars of other properties which belong to the joint family. There is the usual prayer for declaration of shares, discovery and accounts. The written, statement does not raise any issue except perhaps one namely that the schedule of properties set out in the plaint is not exhaustive. Substantially what is sought by the proposed amendment is to ask for investigation in this suit as to whether properties of which third parties are ostensible owners, or whether properties alienated by the karta to third parties, are joint family properties or not. In other words, what is sought by the amendment is the determination of the question of title of joint family in properties of which the strangers are in possession and ownership. The Plaintiff does not want this question of title of strangers to be determined in this suit. Nor does the Defendant Indra Kumar and his branch. Mr. H.N. Sanyal, the learned Counsel for the Plaintiff, protested against any attempt to drag his client to any controversial question of title vis-a-vis strangers being gone into his suit. He very strongly urged that his simple suit for partition of the properties in joint possession and enjoyment of joint family and capable of being partitioned now should not be complicated by introducing questions of title to other properties in the ownership and possession of strangers which cannot be partitioned at the present time. Mr. P.R. Das contends that for finding out the real controversy between the parties, reference must be made to the original pleadings in every case, and on referring to the original pleadings in the instant case we find that the only controversy between the parties, if at all, is whether there are properties in ownership and possession of the joint family other than what is set out in the schedule to the plaint. On the present pleadings the Court will direct an enquiry on this point in the preliminary decree. The present amendment, however, seeks determination of question of title in properties not in ownership and possession of joint family or any member thereof but in ownership and possession of strangers. That is not the real question in controversy between the parties in this suit. Secondly, the question sought to be introduced by the amendment cannot be gone into in the absence of the persons who were in possession of the properties as owners thereof. To add them as parties in this suit would be bad on the ground of multifariousness. Lastly, the present amendment seeks to introduce a plea of fraud and no amendment should be allowed so as to introduce a plea of fraud.

It is argued by the learned Advocate-General and Mr. Subimal Eoy appearing in support of the applications for amendment that a partition suit normally must include all joint family properties, otherwise the suit will be bad for partial partition. It is conceded that there are exceptions to this rule and the Court may and in fact does, effect partial partition of joint family properties in certain cases. But this the Court does in exceptional cases, such as when the Court has no territorial jurisdiction over some properties belonging to the joint family or when some of the joint family properties are left out through mistake or inadvertence. Except in these cases, if a property jointly belonging to the parties are left out in a partition, there is the danger that in a subsequent suit parties may be precluded from contending that the issue is res judicata. To avoid this danger, Mr. Subimal Roy urged that the present amendment should be allowed so that the partition may cover not merely properties in joint possession and enjoyment of the joint family but also other properties in ownership and possession of strangers to which claim is made on behalf of the joint family by some member of the joint family. Mr. Roy concedes that the determination of the question of title of the joint family -vis-a-vis stranger- cannot he gone into in their absence and that the addition of all these strangers in this suit would lead to multifariousness. The proper procedure according to Mr. Roy, is either to make each one of them as temporary parties at the time when investigation of title to each property is made in the proceeding or to appoint a receiver who may be directed to institute suits against strangers to establish title of the joint family in these properties. A receiver is authorised to institute a suit as representing all the parties. But if the parties do not agree as to title, how can a receiver be asked to institute suit on behalf of all the parties as their representative? It seems to me that there is this difficulty in appointing a receiver to institute a suit to establish title as the representative of the parties. Apart from the difficulty, there are other difficulties as well. According to Mr. Roy, therefore these strangers are not to be joined as parties at this stage, namely, before the passing of the preliminary decree. They may come in the picture at a subsequent stage when enquiries are made pursuant to the preliminary decree as to what the joint family properties are. If that is the position, parties who want additional properties to be brought in can only raise the question in the subsequent proceedings. For example, at the enquiry stage the parties may be entitled to raise these questions in their respective state of facts. It follows from this argument that amendment of the pleadings at this stage would be wholly unnecessary. Further, "the substance of this argument is that the Court should allow a voll up in one partition suit a number of order 3uits against strangers to the joint family. In other words, though technically there would be one suit for partition, in substance and in fact there would be a number of other suits instituted and heard under the umbrella of one partition suit. It follows that the only result of the introduction of the question of title of the joint family in properties as against the strangers is to defer the final partition of properties in ownership and possession of the joint family till termination of all these title suits to be instituted under the umbrella of this partition suit. On the other hand, if the parties are left to decide the question of title in other properties as against strangers in separate suit or suits, such other properties may be partitioned in subsequent proceedings after the determination of question of title in favour of the joint family has been made in those suits. In my judgment there is no reason why adjustment of equity amongst the parties cannot be effected in this suit by leaving out other properties in ownership and possession of strangers to which title to the joint family may be subsequently adjudicated.

I do not agree with Mr. Roy that the only exception allowed by the Court to the Rule against partial partition is as stated by Mr. Roy. There are other exceptions as set out by Ram Chandra Mitra in his Law of Partition at pp. 396, 397 (2nd Ed.). One such exception recognised by the Court is that when any joint family property is not in the possession of the coparcener, the Court may effect partial partition by leaving out that property. The reason for exclusion would be all the more if the properties not merely not in possession of any coparcener but the ostensible ownership is also not with the joint family. In such cases the property is not available for partition amongst the coparceners and must of necessity be excluded from the Partition Suit. "When a title is claimed to a property in ownership and possession of strangers, the real controversy is between the stranger, on the one hand, and joint family, on the other, whether a property in ownership and possession of a stranger belongs to the joint family cannot be the real question of controversy between the members of the joint family inter se. The fact that some members claim it as belonging to the joint family while others do not admit such claim, does not make the question a real controversy between the parties in a partitkn suit. In my judgment, a property in ostensible ownership and possession of a stranger can only become the subject matter of a partition suit after the title to it has been declared in favour of the joint family and not before. Title of the joint family to such property can only be declared in a separate suit wherein the stranger who claims title, would be the real Defendant. Such questions of title to property cannot be investigated in a partition suit simpliciter, wherein properties in ownership and possession of joint family can be partitioned amongst the cosharers.

The learned Advocate-General submitted that one of the reasons why amendment of the written statement is sought, is to claim account against Indra Kumar on the basis of wilful neglect and default for having improperly alienated joint family property without any legal necessity. It may be that as against the alienee the joint family may not succeed in establishing title, for the title of the joint family in such properties will be negatived if the alienee succeeds in proving that he made enquiry as to the necessity of alienation. But as against the karta any member is entitled to claim account for improper alienation and if he succeeds in proving wrongful alienation, the karta would be debited with the value of the property alienated. If that be so. the enquiry as to alienation by the karta without any legal necessity can be gone into in the absence of the alienee. In further developing the point, Mr. Roy submitted that the established law is that the karta is not accountable for his past dealings with the income of the joint family, but he is certainly accountable for his dealing with the corpus of the joint family. For example if the karta makes a gift of the joint family property improperly or otherwise deals with the joint family property in such a way as to place it beyond the reach of the joint family, then the karta is certainly accountable. This proposition is disputed by Mr. Das and Mr. Sanyal. Their contention is that the karta is not accountable for his dealings either with the income or corpus of the joint family in the absence of fraudulent and improper conversion. If there is an alienation of joint family property by the karta, any copercener has the right to accept or repudiate the transaction. If alienation is without any legal necessity, they are entitled to repudiate the transaction on this ground and if it is proved that the alienation is without any legal necessity it would be joint family property and, hence there is no loss to be accounted for by the karta. In any event, therefore, the karta is not liable to account for the alienation of the joint family property by the karta and no action would lie against the karta on the ground that he has alienated joint family property wrongfully without any legal necessity. Moreover such alienee is a necessary party in such a suit against the karta and in the absence of the alienee the suit would be incompetent. Mr. P.R. Das challenged the Petitioners to cite a single case in which the karta has been held accountable for past alienation on the ground that the alienation was made without any legal necessity or that such suit can be heard in the absence of the alienee. The challenge has not been accepted and no case lias been cited in support of the proposition challenged.

The point sought to be raised by the present amendment is certainly a question of first impression and is a question of very great importance.'' Should this question be allowed to be introduced in the instant suit by way of amendment? In my judgment, the question is not covered by the "real controversy "rule" embodied in Order 6, Rule 17 of the Code of Civil Procedure. The real question in controversy in a suit for partition simpliciter is not what the joint family properties were before the disruption of the joint family. Nor the alleged wrongful alienation of the joint family properties by the karta in the past is within the purview of a suit for partition simpliciter. "Wrongful alienation by the karta of a joint family property constitutes an entirely different cause of action, for which the karta may or may not be accountable in law. Such an account is certainly different from the ordinary accounting liability of the karta in a suit for partition simpliciter. It may be that in appropriate cases the Court may allow in a single suit a joinder of causes of action, that is, joinder of claim for ordinary account in a partition suit with a claim for a account on the basis of wrongful alienation and if the case is proved, the Court may direct in the decree not merely ordinary account against the karta but further account on the basis of improper conduct in wrongfully alienating the joint family properties. But certainly this is not an appropriate case in which such joinder of causes of action should be allowed to be introduced by way of amendment and the parties must be relegated to canvass this accounting liability of the karta on account of wrongful alienation in a separate suit in which other necessary parties may be joined. I do not find any reason why the present simple suit of the Plaintiff for partition simpliciter and usual accounts should be complicated by such questions of title and account at the instance of one of the Defendants. The apprehension expressed by the Petitioner that in the subsequent suit to be filed claiming accounts and title, the Petitioner may be hit by the doctrine of res judicata is unreal. The right of the Petitioners to agitate the question sought to be introduced by the amendment must, therefore, be left to be determined in a separate suit, should the Petitioners so decide. In my judgment, it is not only not imperative, but on the other hand it would be improper and unjust, that these questions should be allowed to be raised and decided in this suit simpliciter for partition of the joint family properties instituted by one of the coparceners. Except, therefore, allowing minor amendments, I substantially hold against the Petitioners. I therefore, make the following order.

A. Shew Kumar''s petition

I disallow amendment sought of paras. 2, 3, 6, 7, 7A (a), (b), (c), 8A, 8B, 8C, 12 and 14 as indicated in the draft written statement annexed to the petition.

I allow amendment of para. 4, even though it is not necessary for the purpose of the suit. The only reason why I allow this amendment is that without amendment Shew Kumar perhaps may be prejudiced in a subsequent suit to challenge the previous alienation of joint family properties prior to the death of Sukhlal and Chandanmull.

I allow second paragraph of para. 13 and disallow the first paragraph of para. 13. I disallow the first paragraph of para. 13, because not a single act of misappropriation or creation of fictitious debt has been alleged. In the absence of particulars this averment is useless and would not be of any avail. Further, if after discovery, any misappropriation or fictitious debt is detected, they can be taken into account in the decree for accounts to be passed in this suit. For this no amendment is necessary.

B. Voluntary statement of the guardian I disallow amendment of paras. 3, 5, 7, 8A, 8B, 8C, 8D and 10 of the draft voluntary statement annexed to the petition.

I allow amendment of paras. 2 and 12.

The Petitioners must pay the costs of this application. Certified for Counsel.