M.M.KUMAR,J - (1.) THIS petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'), is directed against the order dated 3.8.1994, passed by the learned Additional District Judge, Sangrur, allowing the application of the plaintiff-respondents seeking an amendment in the plaint at the stage of appeal filed under Section 96 of the Code, which is pending consideration of the learned lower appellate Court.
(2.) BRIEF facts of the case are that the plaintiff-respondents had filed a suit for joint possession, declaration and permanent injunction by challenging two sale deeds dated 6.3.1990 executed by their father Gurdev Singh in favour of the defendant-petitioners. The defendant-petitioners are the nephews of Gurdev Singh, who is father of the plaintiff-respondents. One of the sale deeds was executed in favour of defendant-petitioner Nos. 1 to 4 and the other sale deed has been executed in favour of defendant-petitioner Nos. 5 and 6. A specific plea had been taken that the property is ancestral in nature as is evident from the pleadings in paras 3, 4 and 5 of the plaint which reads as under : "3. That previously Jangir Singh deceased was the owner of the suit land shown in part A of the head note of the plaint and it devolved upon him from his father Gandhi and land shown in Part B of the head note of the plaint was purchased by late Jangir Singh son of Khushala out of the joint labour, endeavour and income, from the common stock funds derived by late Jangir Singh with the joint labour and vigil of his sons as a benami transaction, though it was never purchased by his sons from their independent income of their own or by spending the consideration meant from their own pockets. So the property stated in Part "B" of the heading of the plaint became ancestral, coparcenary, joint Hindu family in nature since the time of its purchase (though it was benami purchase) as regards the rights of the plaintiffs as coparcener being born during the life time of their grand father. 4. That the plaintiff and defendant No. 1 constitute Hindu joint family and the plaintiffs are coparceners by birth in the 1/3rd share of their father to extent of 2/3 share. The defendant No. 1 had no right to alienate his share from the suit land without any legal necessity and except for the benefits of the estate. 5. That defendant No. 1 is karta (Manager) of the Joint Hindu family property and the 1/3rd share of defendant No. 1 out of the suit land detailed in Part "A" and "B" of the heading of the plaint is ancestral, and joint Hindu family property and which is the coparcenary property among the plaintiffs and defendant No. 1. The plaintiffs and defendant No. 1 constitute a joint Hindu family coparcenary and are governed by their personal law i.e. Mitakshra School of Hindu Law and Karta of a joint Hindu family had no right to alienate the coparcenary property without any legal necessity and except for the benefit of the estate because the coparceners had (possess) their respective share in the same". The parties have gone on trial after having fully understood the case. The trial Court in his decision dated 28.8.1993, under Issue No. 4 has dealt with the aforementioned controversy as is evident from the reading of portion of para 12 of its judgment. It is also evident from the reading of paras 23 and 26 that the plea had already been taken and the plaintiff-respondents had failed to establish the fact that the property was joint Hindu family and coparcenary property in the hands of their father. It has further been held that they failed to prove that they acquired right in the suit property by birth.
(3.) AGAINST the judgment of the trial Court, dated 28.8.1993, the plaintiff- respondents preferred an appeal under Section 96 of the Code. During the pendency of appeal an application under Order VI Rule 17 of the Code was filed by the plaintiff-respondents for incorporating the following amendment in the plaint :- "In the beginning of para 7, the following sentences are sought to be added : "It was told by the grand father of the applicant that the property mentioned in para (A) of the heading of the plaint was devolved from Khushala to Gandhi and then to Jangir Singh, being ancestral property. It was also told by Jangir Singh to the applicants that the property mentioned in para (A) of the heading of the plaint was ancestral in the hands of their sons, grand sons and great grandsons. It was also told to the applicants that he would not like to allow his property to go out of has family i.e. in the hands of his daughters in her in-laws family. Grand father of the applicants was aware of the legal consequences in the light of Hindu Succession Act in the absence of Will which was told by the grand father of the applicant to all the members of the family and also disclosed his intention in this respect. The grand father of the applicants told that he intended to execute will with the intention to keep the property in the hands of the male members of his family in each generation i.e to sons, grand sons and great grand sons but not to his daughters". The following lines were sought to be added in the last line of para 7 of the plaint : "With the condition that his sons, grandsons, great grandsons would be the owner of his land being coparcenary after his death. His property would remain ancestral in the hands of the male members of the family. But they cannot sell or transfer to any other person except the male members of their respective family i.e to their respective sons, grand sons, great grandsons". The applicants want to add further the following lines:- "The Will was handed over by Jangir Singh to his elder son Mohinder Singh which is in his possession and should be got produced. Certified copies of jamabandi for the year sammat 1960, 1964-65 BK to 2002 to 2003 BK, copy of mutation No. 1117 dated 14.7.1956, certified copy of sale deed No. 19 dated 5.1.1957, jamabandi for the year 1957-58 regarding land mentioned in para (B) of the plaint. Copy of jamabandi for the year 2002-2003 BK regarding khasra No. 2507/9-18, 259/9-1 total 18 bighas 10 biswas and other relevant documents will be produced. Excerpt will be got prepared with the permission of the Court". ;