Rajendra Singh & Ors. v. Bebi Devi & Ors.

Patna High Court CWJC No.17174 of 2011 (4) dt.20-03-2012 of Partition /suit No. 50 of 2006 it had come in light that there was a gift deed dated 4th January 1989 and this fact has come by way of written statement filed on 25th January 2007. It remained pending for quite long time and thereafter a long amendment petition of plaint was filed before the court below on 23rd December 2008. It appears from the written statement that the petitioners of this case, namely Rajendra Singh and Rabindra Singh defendants in the suit had specifically stated that land has been given to them by way of gift dated 4th January 1989. It was completely within the knowledge of the Plaintiff-respondent and if they were to challenge the deed of gift, they could have challenged within three years from the date of its execution but, even if, they say that they did not have knowledge of deed of gift but they came to know about the deed of gift on 25th January 2007 i.e. the day the written statement was served upon the plaintiff but the amendment petition has been filed after three years from the date of filing/service of written statement. In the amendment petition of one the reliefs sought for is as follows: “vii) That below paragraph no. 9(b) of the plaint the following relief as (b1) be written as follows “that on adjudication the deeds of gift dated 4.1.89 in favour of 3 Patna High Court CWJC No.17174 of 2011 (4) dt.20-03-2012 the defendant nos. 1 and 2 executed by deceased defendant no. 3 be declared null and void and not binding on the plaintiff and defendant nos. 4 to 7 and in consequent thereof any sale out of the alleged gifted property dated 4.1.89 by the defendant nos. 1 and 2 be declared null and void and not binding on the plaintiff and defendant nos. 4 to 7.” By addition of this relief in the plaint, the plaintiffs have sought that the deed of gift execute d on 4.1.89 be declared null and void. Learned counsel for the petitioners submits that he is basically aggrieved by this portion of amendment petition whereby this relief has been proposed to be added in the relief portion of plaint. It is well known principle of law that if a thing which cannot be done directly, the same cannot be allowed toe done indirectly. The plaintiff respondents could not have challenged the deed of gift by filing a separate suit on the date of filing of amendment petition as, certainly it is barred by limitation. This issue is no longer res integra as the Hon’ble Supreme Court in a case reported in AIR 1996 SC 2358 (Radhika Devi v. Bajrangi Singh) as the ratio decided in this case is squarely applicable to the fact and situation of this case where 4 Patna High Court CWJC No.17174 of 2011 (4) dt.20-03-2012 the party acquired right by bar of limitation and the same was sought to be taken away by amendment of the pleading in the relief portion of plaint, amendment in such circumstances was refused. In the Radhika Devi Case, there was partition suit, in which written statement w as filed where fact of execution of deed of gift in favour of defendant was specifically mentioned . An amendment application was filed in which one of the proposed amendment was to add a relief, declaring deed of gift deed ineffective and not binding as the same was obtained by defendant illegally and fraudulently. This amendment was resisted on the ground that plaintiff lost right to seek above declaration as being barred by limitation as plaintiff had come to know about registration deed of gift when written statement was filed but the plaintiff did not file such amendment petition within three year s, the Hon’ble Supreme Court held as follows: “We find no force in the contention of the appellant. No doubt, the amendment of the plaint is normally granted and only in exceptional cases where the accrued rights are taken away by amendment of the pleading, the Court refuse the amendment. This Court is Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala, (1964) 2 SCR 567 at 582 : (AIR 1964 SC 11 at p. 18), held thus : "It is, no doubt, true that, save in exceptional cases, leave to amend under 0.6, R.17 of 5 Patna High Court CWJC No.17174 of 2011 (4) dt.20-03-2012 the Code will ordinarily be refused when the effect of the amendment would be take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations added or fresh reliefs sought by way of amendments. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. The present is a fortiori so. The defendants here were not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed". In that case this Court considered the cross objections to be treated as a cross suit since no alteration was being made in the written statement to treat it as a plaint originally instituted. The amendment which was sought to be made was treated to be clarificatory, and, therefore, this Court had upheld the amendment of the written statement and treated it to be a cross suit. The ratio therein squarely applies to a fact situation where the party acquires right by bar of limitation and if the same is sought to be taken away by amendment of the pleading, amendment in such circumstances would be refused. In the present case, the gift deed was executed and registered as early as July 28, 1978 which is a notice to everyone. Even after filing of the written statement, for 3 years no steps were taken to file the application for amendment of the plaint. Thereby the accrued right in favour of the respondents would be defeated by permitting amendment of the plaint. The High Court, therefore, was right in refusing to grant permission to amend the plaint". Learned counsel for the respondents contradicts the argument of the petitioners and submits that at the threshold, the 6 Patna High Court CWJC No.17174 of 2011 (4) dt.20-03-2012 plaintiff cannot be deprived to bring that amendment. The amendment is not a final adjudication but only adding the same in the plaint and the issue that has been raised here is mixed question of fact and law which can be decided at the final stage of hearing. It is further submitted that it is basically a partition suit. The plaintiffs intend to get possession, of course, there is a prayer for declaration of deed of gift as null and void. Primarily it is for getting the possession and as such, limitation will be 12 years not 3 years. In support of his submission, learned counsel for petitioners has relied on a judgment reported in 2011 SC 41 (Van Vibhag Karamchari Sangh v. Ramesh Chander). In this case, during the pendency of the suit by way of amendment, the prayer of specific performance of contract was brought and the court held that even if it was allowed, it will not relate back to the date of filing of the suit and it will not cure the defect of limitation and ultimately the suit was dismissed and the same remained affirmed upto Hon’ble Apex Court. This case also does not contradict the earlier view rather supports the earlier view of the Hon’ble Supreme Court. In the present case, the issue is related to partition of the suit property and the plaintiff-respondents want s 7 Patna High Court CWJC No.17174 of 2011 (4) dt.20-03-2012 addition of relief by way of amendment of plaint. The facts of Radhika Devi’s case (supra) is completely applicable to the p resent case. The case of Van Vibhag (supra), is on different facts and con text and ratio decided therein does not support the contention of plaintiff-respondent and, as such, the addition of relief in plaint by way of amendment that has been sought in the present case cannot survive as the proposed relief to declare deed of gift null and void is not related to recovery of possession and, accordingly, the order dated 20th August 2011 passed in Partition Suit No.50 of 2006 is modified to that extent, other proposed amendment will form part of the plaint. Accordingly, the plaintiffs are allowed to add the rest proposed amendment in the plaint, except amendment in the relief portion. With the aforesaid observation and direction, this petition is partly allowed. Jay/- (Shivaji Pandey, J)