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Court can concede amendment of pleading even if there is infringement of manners of procedure

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2366 of 2010

Decided On: 14.05.2015

Mahila Ramkali Devi and Ors.
Vs.
Nandram and Ors.

Hon’ble Judges/Coram: M. Yusuf Eqbal and Amitava Roy, JJ.

Citation: 2015(4) ALLMR 426 SC

This seductiveness by special leave is destined opposite a visualisation antiquated 01.03.2005 of a High Court of Madhya Pradesh, that authorised a Respondents’ seductiveness and discharged a fit filed by a Plaintiff-Appellants for stipulation of pretension and possession of a fit property.
The significant pattern of a box is that a fit skill was creatively owned by Hardayal who had dual sons Raghuvardayal and Mahadev Prasad. When Hardayal died, a fit skill fell to a share of Raghuvardayal and on his genocide it inspected on to his mother Sumitra and afterwards his son Radhakishan and afterwards Radhakishan’s mother Ajuddhibai.

The Plaintiff/Appellant No. 1 filed a fit for stipulation of pretension and possession of a fit skill in Gwalior opposite a defunct Nandram and defunct Kashiram, who were strange Defendant Nos. 1 and 2 respectively and are now being represented by authorised member and also opposite Defendant No. 3 Rukmani Bai. The box of a Appellants was that before Ajuddhibai died issueless in 22.6.1961, she had executed a Will antiquated 21.1.1961 in foster of Plaintiff/Appellant No. 1 who was a mother of Baijnath, son of Mahadev Prasad. The probate of a Will was also staid to have been obtained. The Appellants challenged a outcome of a sale help antiquated 19.12.1950 supposed to have been executed by Ajuddhibai in foster of Defendant No. 3-Rukmani Bai and sale help antiquated 1.2.1962 executed by Rukmani Bai in foster of defunct Nandram-Defendant No. 1 and defunct Kashiram-Defendant No. 2 and purported that Defendant Nos. 1 and 2 were so in bootleg possession of a fit property. The Defendants Nandram and Kashiram denied a averments done in a wail and contended that they had legally performed a pretension of a fit skill vide sale help antiquated 1.2.1962 nonetheless one Ram Singh who was a sub-tenant of Ajuddhibai.

The conference probity hold that a Will in foster of Plaintiff/Appellant No. 1 was current and that she had turn inheritor of Ajuddhibai by probate. The sale deeds antiquated 19.12.1950 in foster of Rukmani Bai were hold to be not current in perspective of a paradoxical statements done by a Defendants’ witnesses, a disaster of a Defendant No. 3 to attend probity and infer a sale deeds, a deficiency of a signatures of Ajuddhibai on a sale deeds, a disaster to mutate a fit skill in their names and as Ajuddhibai was in Vrindavan and not in Gwalior as purported during a time of execution of a sale deeds. Ram Singh was remarkable to have been in possession of a fit skill compartment his genocide in 1956 and a Defendants were hold to have not acquired pretension by inauspicious possession as a fit was filed in 1964. The Defendants Nandram and Kashiram were hold to have not acquired any pretension over a fit property. Hence, a fit was authorised and a Defendants were destined to palm over possession of a fit skill to a Plaintiff-Appellant.

Aggrieved by a visualisation of a conference court, a Defendant Nos. 1 and 2 elite an seductiveness before a District Court, that inspected a commentary of a conference probity and discharged their appeal.

The Defendants afterwards assailed a visualisation of a District Court by preferring second seductiveness in a High Court, that was eventually allowed. However, in a defence done before a Supreme Court by approach of seductiveness by special leave, a Apex Court set aside a sequence of a High Court and remitted a matter behind with directions to a High Court to initial support questions of law, if any, and afterwards ensue with a matter and confirm a same in suitability with law.

On remand, a High Court formulated estimable questions of law and afterwards listened a schooled Counsel appearing for both a parties and inspected a impugned judgment. The High Court hold that a fit was within a duration of reduction as a reduce courts have available point commentary as to a disdainful possession of one Ram Singh compartment his genocide in 1956. On a third issue, a High Court hold that there is a point anticipating of both a conference probity and appellate probity that a papers were forged, formed on a justification of a scratch consultant and a depositions of a witnesses who had staid that Ajuddhibai was staying during Vrindavan and not during Gwalior when a request was executed. The genuineness of a Will was also inspected as point significant commentary to a outcome were not probable to be interfered with.

On a second emanate as to either Appellant No. 1 would be a inheritor to Ajuddhibai, schooled Single Judge of a High Court celebrated that Sections 164 and 165 of a M.P. Land Revenue Code (hereinafter referred to as a ‘Code’), that dealt with devolution of seductiveness of a bhumiswamy and send of rights respectively were nice on 8.12.1961. Since Ajuddhibai had died before a amendment, a unamended sections were hold to be applicable. The unamended Section 165 was remarkable to be exclusive a bhumiswamy from transferring her seductiveness by a Will and Ajuddhibai was so hold to have had no right to govern a Will. Learned Single Judge also deserted a row that Defendant No. 3 was a inheritor Under Section 164(2)(b) as Ajuddhibai had not hereditary a fit skill from her father or father-in-law rather from Sumitra i.e. her mother-in-law. The Defendant No. 3 was offer hold to have not been a nearest flourishing successor of a father of Ajuddhibai generally when Baijnath, son of Mahadev Prasad and a father of a Appellant No. 1, was alive.

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As beheld above a second seductiveness was remanded to a High Court with a instruction to delineate estimable doubt of law and afterwards confirm a seductiveness afresh. Pursuant to a aforesaid sequence a High Court formulated a following estimable questions of law:

(1) Whether a fit filed by a Plaintiff on 29.4.64 severe a purebred as to deeds executed on 19.12.1950 can be pronounced to be within reduction in perspective of Section 3 of a Transfer of Property Act?

(2) Whether Ramkali is entitled to attain a fit skill left behind by Ayodhyabai Under Section 164 of a M.P. Revenue Code?

(3) Whether a commentary arrived during by a dual courts next that a papers Exs. D/2 and D2A are forged, is customarily formed on a consultant opinion and not upheld by any authorised justification on record?

Answering a initial question, a High Court hold that a fit can't be discharged as barred by limitation. Answering doubt No. 3, a High Court offer came to a end that a dual courts next have parallel found that a Will Ex. P.1 is a genuine request that is a anticipating of fact and can't be interfered with.
On a doubt as to either Ramkali is entitled to attain a fit skill left behind by Ajuddhibai, a High Court, after referring Section 164 of a M.P. Land Revenue Code, came to a end that Ajuddhibai had no right to govern a will in honour of rural land before to amendment of Section 164 of a Code. The High Court offer deserted a row done by a Defendant-Respondent that Rukmani Bai was a nearest flourishing successor of a father of Ajuddhibai and that she would be entitled to attain to her property. The Court held:

The evidence is though any force given a Plaintiff can attain customarily if Ajudhibai had hereditary a skill from her father or her father-in-law. In a benefaction box Ajudhibai has not hereditary skill from her father or father-in-law. In fact, she has hereditary a skill from Sumitra, her mother-in-law. Moreover, from a record it appears that on a date of filing of a fit Baijnath, father of Ramkalidevi was alive. Baijnath was a son of Mahadev Prasad who is a son of Hardayal. In such resources Ramkalidevi can't attain a skill left behind of Ajudhibai in perspective of Section 164 of a M.P. Land Revenue Code as she was not a nearest flourishing successor of a father of Ajudhibai.

The second estimable doubt of law is as to either or not Ramkali is entitled to attain to a fit skill left behind by Ajuddhibai (Ayodyabai) Under Section 164 of a M.P. Land Revenue Code. Ajuddhibai executed a Will antiquated 21.01.1961 in honour of an rural land, i.e., fit skill in foster of Ramkali Devi. The fit skill was afterwards governed by a Madhya Bharat Land Revenue and Tenancy Act. The devolution of seductiveness of a Bhumidar and send of rights by Bhumidar was governed by Section 164 and 165 of a Code respectively. Amendment was incorporated in these supplies on 8.12.1961, given Ajuddhibai died before to a amendment. Therefore, a legality of a Will shall be governed by unamended Section 164 of a Code. Section 164 of a Code, as it stood before a amendment in 1961, supposing for a sequence in that a devolution of a rights of a Bhumiswami would take place after his death. The Hindu Succession Act, 1956 had already come into force when Section 164 was enacted.
However, this Section was nice by a M.P. Land Revenue Code (Amendment) Act No. 38 of 1961 that came into force with outcome from 8.12.1961 and a personal law was done germane to devolution of Bhumiswami rights and skill of a Bhumiswami after his genocide was to pass by inheritance, survivorship or bequest, as a box might be.

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Transfer of seductiveness of Bhumiswami in his land differently than by Will theme to Section 164 was dealt with by a unamended Section 165 of a Code. However, a difference “otherwise than by will” was deleted by a amendment antiquated 8.12.1961 and a difference “bequest” was combined in Section 164. Therefore, a right of Bhumiswami to send his land by approach of a Will was not famous by law when Ajuddhibai executed a Will antiquated 21.1.1961. She had no right to govern a same before to amendment of Section 164 of a Code. Property could customarily be devolved in a sequence of period as mentioned in Section 164. Thus, a doubt of proof genuineness of a Will need not be considered.

However, a explain of Ramkali Devi does not mount current in perspective of a unamended Section 164 of a Code as she was not a nearest flourishing successor of a father of Ajuddhibai given her father (son of a brother-in-law of Ajuddhibai’s father-in-law) was alive on a date of filing a fit by Ramkali.

The doubt referred for caring to a Full Bench of a Madhya Pradesh High Court in a box of Nahar Hirasingh and Ors. v. Dukalhin and Ors. MANU/MP/0031/1974 : AIR 1974 MP 141, was either a sustenance for period of Bhumiswami rights Under Section 164 of a Madhya Pradesh Land Revenue Code, 1959 as it stood before a amendment in 1961, was a current sustenance or it was ultra vires in perspective of Section 4 of a Hindu Succession Act, 1956. The Court hold it to be a current provision. It was also celebrated that a M.P. Land Revenue Code, 1954, as also a M.P. Land Revenue Code, 1959, had perceived a recognition of a President, and therefore, by trait of Sub-clause (2) of Article 254 of a Constitution, that law would overcome in a State of Madhya Pradesh as opposite any supplies of a Hindu Succession Act, 1956. However, a matter would be opposite when a M.P. Land Revenue Code, 1959, after amendment of Section 164 by a M.P. Land Revenue Code (Amendment) Act, 1961, done a personal law of a parties germane to devolution to rural properties. Upon such amendment, a personal law as nice from time to time would be applicable.

The focus for amendment of wail filed by Appellant No. 1 to make Appellant Nos. 2 to 5 tumble underneath Class XVII of a Madhya Pradesh Land Revenue Code was deserted by schooled Single Judge of a High Court on a belligerent that a same would change a inlet of a fit that was filed 40 years ago, as a explain was done customarily on a basement of Will and not on a basement of inheritance. The High Court authorised a seductiveness vide a impugned visualisation as a Appellants had no area standi to record a fit as Ajuddhibai could not have eliminated her seductiveness by a Will. Hence, benefaction seductiveness by special leave by a Plaintiffs.

While rejecting a amendment petition, a High Court celebrated as under:

During a march of conference an focus is filed by a Respondents underneath Order 6 Rule 17 Code of Civil Procedure for amendment to a outcome that a Respondents Dinesh, Satish, Sanjay and Rajendra fails underneath Class XVII of a Madhya Pradesh Land Revenue Code. This amendment, during this stage, in fact can't be authorised given a same is going to totally change a inlet of a suit. The fit is filed in a year 1964 a fit was filed on a premises that Ramkali Devi has hereditary a skill from Ajudhibai on a basement of will. By a amendment in a pleadings Dinesh, Satish, Sanjay and Rajendra have assimilated as party. That amendment was incorporated on 18.7.1994 and their names were combined as Plaintiffs in a suit. In a means pretension also a word ‘Plaintiff’ is replaced by a word ‘Plaintiff’. However, there is no amendment in a averments done in a rest of a pleadings in a plaint. In such circumstances, now, it will not be in a seductiveness of probity to concede a focus for amendment that totally goes to change a premises of a fit after a relapse of some-more than 40 years. In a benefaction box a Plaintiffs have formed their pretension customarily on a basement of a will executed by Ajudhibai and, therefore, needing an focus for amendment creation explain on a basement of estate that too by Hardayal can't be available during this stage. Hence, a amendment focus is rejected.

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It appears so while disposing of a appeal, a High Court has not left into a nice plaint. By amendment, a Plaintiff-Appellant not customarily sought to supplement a names of Dinesh, Satish, Sanjay and Rajendra sons of Baijnath Prasad Saxena in a difficulty of Plaintiffs, though also sought to make required amendment in divide 3 of a plaint. The averment sought to be incorporated in divide 3 of a wail by amendment is reproduced hereunder:

Vikalp me yadi vasiyatnama vaidya na mana jave to be Ajudhibai ke karibtar varies vadini ke ladke Rajendra, Dinesh, Satish aur Sanjay hi hai jo abhi nabalig hai aur yeha dava unke hito ko paint karte huai unki maliki ke adhar standard bhi prastut hai. Vadini ke dekh-rekh me ladke rahte hai. Garj yahe hai ki har halat me prativadigan ki koi swatva v mukable vadini avam uske ladke nahi hai. Aur vadini vivadagrast aaraji ka kabja apne tatha ladkon ko aur se mirror ki patra hai.

As translated in English

In alternative, if a will is not hold valid, nonetheless a Plaintiff’s sons Rajendra, Dinesh, Satish, Sanjay, who during benefaction are minors are nearby family of Ajudhibai and this fit is submitted to paint their interests on basement of their ownership. The sons live in caring of Plaintiff definition thereby in each condition there is no right of Defendants competing Plaintiff. And a Plaintiff herself and on interest of her sons is entitled to get possession of a fit land.

It is good staid that manners of procession are dictated to be a domestic to a administration of justice. A celebration can't be refused only service merely given of some mistake, negligence, inadvertence or even infringement of manners of procedure. The Court always gives service to rectify a pleading of a party, unless it is confident that a celebration requesting was behaving malafide or that by his fumble he had caused damage to his competition that can't be compensated for by an sequence of cost.
In a view, given a Appellant sought amendment in divide 3 of a strange plaint, a High Court ought not to have deserted a application.

In a box of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon MANU/SC/0016/1969 : AIR 1969 SC 1267, this Court hold that a energy to extend amendment to pleadings is dictated to offer a needs of probity and is not governed by any such slight or technical limitations.

In Pandit Ishwardas v. State of Madhya Pradesh and Ors. MANU/SC/0021/1979 : AIR 1979 SC 551, this Court observed:

We are incompetent to see any piece in any of a submissions. The schooled Counsel seemed to disagree on a arrogance that a new defence could not be available during a appellate theatre unless all a element required to confirm a defence was already before a Court. There is no authorised basement for this assumption. There is no snag or bar opposite an appellate Court needing amendment of a pleadings so as to capacitate a celebration to lift a new plea. All that is required is that a Appellate Court should observe a obvious beliefs theme to that amendments of pleadings are customarily granted. Naturally, one of a resources that will be taken into caring before an amendment is postulated is a check in creation a focus seeking such amendment and, if done during a Appellate theatre a reason since it was not sought in a conference court. If a required element on that a defence outset from a amendment might be motionless is already there, a amendment might be some-more straightforwardly postulated than otherwise. But, there is no breach opposite an Appellate Court needing an amendment during a appellate theatre merely given a required element is not already before a Court.

In a light of a contention done hereinabove and also carrying courtesy to a fact that a amendment sought for by a Plaintiff-Appellant ought to have been authorised by a High Court, in a deliberate opinion estimable emanate No. 2, as formulated by a High Court, needs to be motionless by a High Court afresh.

We, therefore, concede a seductiveness in part, attest a anticipating available by a High Court on estimable doubt No. 1 and 3. However, a anticipating available by a High Court in a impugned visualisation on estimable doubt No. 2 is set aside and a matter is remitted behind to a High Court to confirm a aforementioned estimable doubt No. 2 afresh, holding into caring a service sought for by a Plaintiff-Appellant by amending a plaint.

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