1 WP No.7066/03 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7066 of 2003 1. Damu Maruti Dadhe Aged 59 yrs, Occ.Agriculture 2. Bhima Maruti Dadhe Both petitioners are residing at village Vafale, Tal.Mohol, District Solapur ... Petitioners versus 1. Limba Maruti Dadhe Age 54 yrs, Occ. Agriculture 2. Sambha Maruti Dadhe Age 51 yrs, Occ. Agriculture 3. Baban Maruti Dadhe Age 49 yrs, Occ. Agriculture 4. Aprukabai Maruti Dadhe Age 79 yrs, Occ. Household 5. Jijabai Kisan Mane Age 51 yrs, Occ. Household 6. Hirkani Bramhadev Chavan Adult Occ. Household 7. Gangubai Bhagwat Magar Adult Occ. Household ... Respondents ... 2 WP No.7066/03 Mr.Shrishail Sakhare for the petitioners Mr.Niranjan Shimpi i/b P.K.Dhakephalkar for respondent nos. 1 to 4. CORAM : D.G. KARNIK, J DATED : 8th June 2011 ORAL JUDGMENT:­ 1. Heard learned counsel for the appearing parties. 2. The petition is directed against the judgment and order dated 7 July 2003 passed by the Civil Judge, Jr. Division, Mohol rejecting the application of the petitioners – (original defendant nos.1 and 2) for amendment of their written statement. 3. The application has been rejected on the ground that the proposed amendment seeks to withdraw the admissions given in the original written statement and make out a case contrary to the admissions contained in the original written statement. Counsel for the petitioner submitted that the proposed amendment does not seek to withdraw any admission nor seeks to make any case contrary to the case made in the original written statement. In view of this submission, it is necessary to look to the plaint and the written statement and what are the admissions contained in the original written statement. 4. Respondent nos.1 to 4 are the original plaintiffs and petitioners are the original defendants. For the sake of 3 WP No.7066/03 convenience, parties are hereinafter referred to by their status in the original suit. Plaintiff nos.1 to 3 as well as defendant nos.1 and 2 are the children of Maruti. Plaintiff no.4 is the natural mother of plaintiff nos.1 to 3 and the step mother of defendant nos.1 and 2. Plaintiffs filed a suit for partition of the joint family property which was initially owned by Maruti, father of plaintiff nos.1 to 3 and defendant nos.1 and 2. In the plaint, plaintiffs gave their genealogy and also showed the name of plaintiff no.4 as the wife of Maruti. They claimed partition of the suit properties. 5. In the written statement filed by defendant nos.1 to 2, they did not deny the relationship between the parties as mentioned in the plaint. Their defence in the written statement was that there was a previous partition in the family and therefore the suit for partition was not maintainable. They further contended that in the previous partition, the mother (the plaintiff no.4) had surrendered her share and therefore in the partition, shares were allotted only to the plaintiff nos.1 to 3 and defendant nos.1 and 2 in the year 1973. 6. The defendant nos.1 and 2 thereafter filed an application for amendment and sought to contend that the plaintiff no.4 was not the legally wedded wife of Maruti but was his concubine. By the proposed amendment they sought to contend that plaintiff nos.1 to 3 were not the legitimate children of Maruti and therefore were not entitled to a partition. Similarly, plaintiff no.4 being a concubine and not the wife of Maruti was not entitled to claim partition. 4 WP No.7066/03 7. In the light of the submissions made by the parties, the following points arise for my consideration: (a) Whether by the proposed amendment, the petitioners (defendant nos.1 and 2) are seeking to withdraw any admissions given in the written statement? (b) Whether the trial Court was right in rejecting the application on that ground? 8. At the beginning of paragraph 4 of the plaint, the plaintiffs have stated: “Plaintiff nos.1 to 3 and defendant nos.1 and 2 are the sons of plaintiff no.4 and defendant nos.3 to 6 are the daughters of plaintiff no.4. Maruti, the father of the plaintiffs and the defendants died around (portion torn) and after him the suit properties came in the hands of the plaintiffs, the defendants as widow, sons and daughters of Maruti.” In their written statement the defendants have not denied that the plaintiff nos.1 to 3 and defendant nos.1 and 2 are the sons of plaintiff no.4. In the written statement they contended that the plaintiffs, the defendant nos.1 and 2(i.e themselves) and their father formed a joint hindu family and all of them were jointly cultivating the lands. However as the family grew it was 5 WP No.7066/03 inconvenient to jointly cultivate the lands and so there was a partition in the family. Thus the defendants did not deny the relationship nor did they deny that the plaintiff no.4 was the wife of their father Maruti. However, by an amendment the defendants seek to contend that plaintiff no.4 is not their mother. They seek to contend that the defendants are the children of the first wife of Maruti and the plaintiff no.4 was never married to Maruti. She was a concubine and plaintiff nos.1 to 3 are the illegitimate children born to plaintiff no.4. The defendants also seek to delete aforementioned portions from their earlier written statement. The total effect of the portions to be deleted and portions sought to be added by amendment is to obliterate the admission contained in the written statement that the defendant no.4 is their step mother and plaintiff nos.1 to 3, like them, are the sons of plaintiff no.4. In my view, the finding recorded by the trial Judge that the proposed amendment seeks to take away admissions contained in the written statement, is a correct finding of fact. 9. Mr. Sakhare for the petitioners submitted that an amendment seeking to explain an admission contained in the original statement can be allowed. In support he relied on three decisions of the Supreme Court in (1) Sushil Kumar Jain v. Manoj Kumar, AIR 2009 SC 2544, (2) Andhra Bank v. ABN Amro Bank, (2007) 6 SCC 167, and (3) Akshya Restaurant v. P. Anjanappa, AIR 1995 SC 1498. 6 WP No.7066/03 10. In the case of Sushil Kumar Jain (supra), the Supreme Court has held that the Court should adopt liberal approach while allowing an application for amendment of a written statement than in case of allowing an amendment of the plaint. The Supreme Court has further held that admission made by the defendant in the written statement can be explained by filing an application for amendment of the same. Though the decision says that an amendment can be allowed to explain an admission contained in the written statement, the decision does not go far as to say that the admission given in the written statement cannot be allowed to be obliterated by the amendment. In the present case, allowing the amendment would obliterate the admission given by the defendants in the original statement that plaintiff nos.1 to 3 and they themselves (defendant nos.1 and 2) were the children of plaintiff no.4 clearly implying thereby that plaintiff no.4 was the legally wedded wife of their father Maruti. This decision, therefore, has no application to the facts of the present case. 11. The decision in the case of Andhra Bank (supra) is also not applicable to the facts of the present case. In that case, the Supreme Court has only held that the delay in filing of the application was no ground to refuse the prayer for amendment. 7 WP No.7066/03 The Court further held that the fact that the amendment sought to be introduce an additional ground was not a ground for rejecting the application. The case at hand is not a case of raising additional ground of defence but to obliterate or do away the admission contained in the original written statement. 12. The decision in the case of Akshaya Restaurant (supra) also does not further the case of the petitioner. In that case, the plaintiff had initially taken a stand that the defendant entered into an agreement for sale of the suit land and by proposed amendment he sought to modify it by saying that the defendant entered into an agreement for development. The fact of entering into an agreement was not being altered or denied by the proposed amendment but only the plaintiff was seeking to explain the nature of the document that it was not an agreement of sale but an agreement of development. That case also does not help the petitioner. 14. For these reasons, I find no error in the decision of the trial Court. The writ petition is dismissed. Rule is discharged with costs quantified at Rs.1000/­. Interim order stands vacated. (D.G.KARNIK, J)