BHAGWAN SINGH Vs. JAGDEV SINGH
HIGH COURT OF JAMMU AND KASHMIR
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(1.) THIS Civil Revision is directed against order dated 20th of February, 2004 of Munsiff, Jammu, allowing plaintiffs application for amendment of plaint.
(2.) FACTS giving rise to this Civil Revision may be stated thus:
A suit for declaration that WILL dated 01 -3 -1986 executed by Saro Devi devising property situated in Paloura, Tehsil Jammu in petitioner, Bhagwan Singh, is illegal, void and inoperative document and does not confer any right in favour of the petitioner,with consequential relief of permanent prohibitory injunction restraining petitioners from interfering in the peaceful possession of land, was filed on 19 -12 -1996. The whole suit was based on the plea raised in paragraphs No.3 and 4 of the plaint. For facility of reference, these paragraphs are reproduced hereunder:
"3. That in view of the bar under Section 31 of the Agrarian Reforms Act, Mst. Saro Devi was not competent to will away the property which she has done by executing will dated 1/3/1986 registered on 2/3/1986 in favour of defendant No.1 The said document is void, illegal and in -operative document and does not confer any title/right in favour of defendant No.1 in pursuance to said document and is to be declared as such. The plaintiffs and proforma defendant being the only heirs are entitled to inherit the estate of Saro Devi deceased and declaration to that effect is to be given. Defendant No.1 individually and in connivance with defendants 2 to 3 are determined to threatening to interfere in the peaceful possession of plaintiffs and proforma defendant with regard to the property in question and further threatened of alienations and raising construction thereon though none of the aforesaid defendants have any right to do the aforesaid overt acts."
"4. That the plaintiffs were never aware of execution of this deed in question and only a week back, they acquired knowledge about the same when the defendants who in connivance with defendants -2 and 3 tried to raise forcible construction over the estate in question and on confrontation, they openly stated that the will in question has been executed in their favour and mutation too attested in their favour. On getting copy of mutation, the same too has been challenged before the competent forum and the certified copy of the will too was received on 18/12/1996 and on the same day, the suit was drafted which is being presented on the next day viz. 19/12/1996. The suit is thus within time from the date, the plaintiffs acquired knowledge of will in question. Even otherwise a void document does not confer or create any rights, is a settled law."
Petitioners/defendants filed their written statement questioning, inter alia, the maintainability of the suit and that the suit was barred by time.
The Trial Court framed nine issues arising out of the pleadings of the parties on 29 -05 -2000 and treated issues -1 and 2 as preliminary issues.
It was on 16th of August, 2000 that the plaintiffs filed an application for amendment of their plaint seeking incorporation of paragraphs No.5 -A, 5 -B and 5 -C in the plaint. These paragraphs read thus:
"5 -A. That the deceased Saro Devi expired on 2.3.1986 at about 4 AM and was bed ridden and unconscious for about a week before her death although she was ill about 3 months before her death. The defendant No.1 connived with his father and prepared the alleged WILL and got it registered in the office of Sh R C Gandhi Advocate on 2.3.1986 by personation and misrepresentation. The WILL is alleged to have registered after the death of deceased by Fraud and deceitful means.
"5 -B. that the WILL is alleged to have been registered by Munsiff Jammu in the office of RC Gandhi advocate which is against the provisions of law. The WILL could be registered either in the office of Sub Registrar or in the house of the testator. There is no provisions in the law that WILL can be registered in the office an Advocate."
"5(C) That the alleged WILL is not witnessed by the independent witnesses of the village, The testator was alleged to have been identified by the father of the defendant who is interested and has connived with the defendant No.1 The alleged will is nothing but only a waste paper."
The plaintiffs/respondents had stated in paragraph No.5 of the application that they could not incorporate the pleas reflected in the aforesaid paragraphs, as they were not knowing the date of death of the deceased, which became known to them when they obtained death certificate of the deceased. It was urged by the plaintiffs/respondents in the application that the proposed amendment would neither change the nature of the suit nor would it cause any prejudice to the defendants/petitioners. This application of the plaintiffs/respondents was contested by the defendants/ petitioners, who submitted that the suit had been instituted after a period of ten years from the date of execution and registration of the will as also from the date of death of Mst. Saro Devi and that the suit was itself barred by time. The petitioners/defendants urged that the plaintiffs/ respondents, through the proposed amendment, wanted to change the very basis of the challenge to the validity of the WILL and that amendment to the plaint was impermissible in view of the provisions of Order VI Rule 17 of the Code of Civil Procedure. The petitioners specifically stated that the respondents/plaintiffs were resident of the same village and were from the same clan; they had, thus, complete knowledge of the death of Mst. Saro and they knew about the death of Mst. Saro on 2nd of March, 1986, but had made an incorrect plea of their not knowing the date of death of Mst. Saro, in their application, so as to carve out a new challenge to the WILL.
Learned trial Court allowed the application of the plaintiffs, permitting them to amend their plaint on payment of Rs.200/ - as costs. The trial Court allowed the amendment on the ground that the amendment sought for by the plaintiffs/respondents would not change the nature of the suit, in any manner, because the legality of the WILL was already a matter in dispute in the suit.
(3.) THE present Revision has, thus, arisen in the circumstances detailed hereinabove.
Shri S.D. Sharma, learned counsel for the petitioners/ defendants, submits that the proposed amendment would change the very
nature of the suit and that the same could not have been allowed because
the grounds raised in the amended plaint could not be permitted to be so
raised, as the adjudication of these grounds stood barred by time.
Learned counsel further submits that the plaintiffs had made an incorrect
statement in the application that they did not know about the death of
Mst. Saro at the time of filing of the suit and they came to know about
it only when they got the death certificate of Mst. Saro. Shri Sharma
refers to B.K. Narayana Pillai Versus Parameswaran Pillai and Another,
reported as (2000) 1 SCC 712, to urge that the amendment could be allowed
only if the addition of a new cause of action was not barred by time.
According to Shri Sharma, the proposed new cause of action was clearly
barred by time and the same could not have been allowed by the learned
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