C.R. No.3959 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.3959 of 2007 Date of Decision: 19.2.2008 Surinder Kaur .....Petitioner Vs. Resham Singh and others ...Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.Vikas Bahl, Advocate for the petitioner. Mr.Sarju Puri,Advocate for respondents no.1 and 4. ... RAJIVE BHALLA, J (Oral) Prayer in this revision petition is to set aside an order dated 28.7.2007 passed by the Civil Judge (Junior Division), Nawanshahar, dismissing an application for amendment of the plaint. In order to place the present controversy in its correct perspective, a brief narrative of the facts would be appropriate. Gurnam Singh was admittedly owner of the suit land. After his demise, he was survived by his widow Pritam Kaur and his daughter Surinder Kaur (the petitioner). However, the mutation with respect to the estate of Gurnam Singh was sanctioned, by the revenue authorities, in favour of Pritam Kaur alone, mother of the petitioner. Pritam Kaur passed away, while residing in United Kingdom. Respondent no.1, a brother of Gurnam Singh, set up a Will, allegedly executed by Pritam Kaur, bequeathing the entire property to him. The revenue authorities, sanctioned a mutation in favour of respondent no.1 with respect to the entire property. C.R. No.3959 of 2007 2 The petitioner, a resident of United Kingdom for the last 25 years, filed a suit for declaration that she was owner in joint possession of land measuring 16K 3M and 5S being the sole heir of her mother Pritam Kaur, as also for setting aside mutation No.4572, sanctioned in favour of Resham Singh (respondent no.1). During the pendency of the suit, the petitioner, filed an application for amendment of the plaint praying that liberty be granted to amend the plaint, so as to assert that her mother Pritam Kaur was owner to the extent of ½ share and the mutation sanctioned by the revenue authorities, showing her as owner of the entire property was illegal and void. Vide order, dated 28.7.2007, the learned trial Court, dismissed the application, by holding that as the petitioner had admitted in her plaint that the suit property was owned by her mother and the proposed amendment was not necessary for a just decision of the suit. It was also held that if the proposed amendment was allowed, it would entail a de novo trial. Counsel for the petitioner contends that the amendment prayed for is necessary and essential, so as to effectively adjudicate the true rights of the parties. It is submitted that it is not denied that the petitioner is the daughter of Gurnam Singh and Pritam Kaur. Consequently, upon his demise, the petitioner, being a Class-I heir was entitled to inherit the estate of Gurnam Singh, in equal share with her mother Pritam Kaur. The mutation, however, shows Pritam Kaur as owner of the entire property and is, therefore, illegal, void being contrary to the provisions of the Hindu Succession Act (hereinafter referred to as `the Act'). It is further submitted C.R. No.3959 of 2007 3 that if the amendment is not allowed, it would cause serious prejudice. Pritam Kaur was entitled to inherit only ½ share and, therefore, entitled to execute a Will with respect to ½ share of the suit property and, therefore, the Will, if any, executed by Pritam Kaur can only operate with respect to ½ share of the suit property. In this view of the matter, in case the petitioner is not allowed to amend the plaint and plead that the petitioner is owner to the extent of ½ share in the estate of Gurnam Singh, it would cause serious prejudice as the Will allegedly set up by Resham Singh, and allegedly executed by Pritam Kaur would operate qua the entire estate of Gurnam Singh, deceased, despite the petitioner being a Class-I heir. It is further submitted that the alleged admission appearing in para 3 of the plaint that Pritam Kaur was owner of the land in dispute is a bonafide error. An erroneous admission can always be withdrawn or explained. Further more, the weight to be assigned to an admission is a matter to be considered by the trial Court during the final adjudication of the suit. Counsel for the respondents, on the other hand, asserts that by way of the present application for amendment, the petitioner seeks to withdraw her admission that the entire land was owned by Pritam Kaur. This admission on a material question of fact, cannot be withdrawn or explained and the petitioner cannot, therefore, be permitted to amend the plaint, so as to alter the cause of action and thus, set up a fresh case. It is further submitted that the petitioner's assertions before the trial Court that if the amendment is allowed, she would not lead any evidence and the amendment would merely supplement the evidence already on record, cannot be accepted. Pleadings precede evidence and not the other way around. Any evidence beyond pleading,has to be discarded and any C.R. No.3959 of 2007 4 amendment that seeks to supplement evidence already on record, cannot be permitted. I have heard learned counsel for the parties and perused the impugned order. The factual matrix of the dispute, as detailed herein above, do not merit repetition. However, it would necessarily merit mention that it is not denied that Gurnam Singh was survived by the petitioner (his daughter) and his widow Pritam Kaur. Gurnam Singh did not execute a Will, therefore, by operation of the provisions of the Hindu Succession Act, Surinder Kaur (petitioner), a Class-I heir, was entitled to ½ share of the property of Gurnam Singh. The mutation, sanctioned by the revenue authorities, showing Pritam Kaur as the full owner was thus, prima facie illegal being contrary to the provisions of the Hindu Succession Act. The admission made by the petitioner, with respect to her mother's ownership was contrary to the provisions of the Hindu Succession Act. Admissions by their nature, though relevant evidence of the fact they seek to admit but may circumstances permitting, be withdrawn or explained. The petitioner seeks to incorporate a plea that after the demise of Gurnam Singh, she inherited ½ share of his estate as a Class-I heir and that the revenue authorities could not have sanctioned a mutation in favour of her mother for the entire estate of Gurnam Singh. The aforementioned amendment, in my considered opinion, is not only essential but imperative for a just and appropriate decision of the case. It is true that the amendments made with the object of filling lacunae or supplementing evidence, already on record should be discouraged. However, where the facts so demand and the interest of justice so warrants an amendment that travels to the very root of C.R. No.3959 of 2007 5 the controversy, namely as in this case, to questions of right, title or interest of parties, should not fall prey to the vicissitudes of procedure. The power to allow amendments in pleadings though limited, must therefore, be exercised to advance and not thwart the cause of justice. Another aspect of the case that would merit mention is that if respondent no.1 succeeds in establishing the due execution of the Will, the petitioner would be deprived of her status as a Class-I heir and a right to succeed to a estate of her father, in accordance with the provisions of the Hindu Succession Act. It would also be necessary to mention here that entries in mutation registers are by their very nature mere evidence of a fact and not the fact itself. Mutations and revenue records reflects the status of parties and do not confer any status, right, title or interest, more particularly, where the disputes pertain to inheritance and title. It is, therefore, apparent that the learned trial Court, committed an error of jurisdiction by disallowing an amendment that was essential and necessary to establish the rights of the parties. In view of what has been stated herein above, the revision petition is allowed and the order dated 28.8.2007 is set aside. The petitioner is permitted to file the amended plaint. It is, however, made clear and as submitted by counsel for the petitioner, the petitioner would not lead any evidence in support of the amended plaint and the learned trial Court would proceed to decide the suit, on the basis of existing evidence, subject, however, to the right of the respondents to lead any evidence, that they may deem appropriate in view of the amendment to the plaint. The petitioner shall pay costs of Rs.5,000/-. Nothing stated herein before shall be construed to be an C.R. No.3959 of 2007 6 expression of opinion as to the rights of the parties as also to the merits of the case. 19.2.2008 ( RAJIVE BHALLA ) GS JUDGE