Case: Raj Kumar Bhatia Vs. Subhash Chander Bhatia

2. On 11 October 2002, Sharda Rani Bhatia instituted a suit for the recovery of possession, arrears of damages and mesne profits against the appellant. The property in dispute is situated on the first floor at 1/6 Ramesh Nagar, New Delhi. The case of the original plaintiff is that Desh Raj Bhatia acquired the leasehold rights on 13 February 1962. On his death, his children are stated to have relinquished their rights and interest in favour of their mother, Lajwanti Bhatia. She executed a will bequeathing the property to her son Ratan Lal Bhatia who is stated to have become the exclusive owner of the property on her death. The original plaintiff, Sharda Rani Bhatia is the widow of Ratan Lal Bhatia. The appellant is the son of Ratan Lal Bhatia. Ratan Lal Bhatia died intestate. On his death, a registered deed of relinquishment was executed in favour of Sharda Rani Bhatia by the appellant and the respondent, the sons of Ratan Lal Bhatia and by Shakti Bhatia in favour of their mother. The original plaintiff is stated to have permitted the appellant and the respondent to reside along with her in the property. The suit was filed by Sharda Rani Bhatia for recovery of possession from the appellant and for consequential relief. The original plaintiff is stated to have executed a deed of gift in favour of the respondent in 2003 after which he was impleaded as. The original plaintiff died in 2005 and the suit is being pursued by the respondent3. The appellant filed his written statement in the suit on 22 February 2003. According to the appellant, the respondent had exercised undue influence in obtaining the deed of relinquishment. According to him, parties had lived together jointly even after the alleged relinquishment. The appellant claims that an oral understanding was arrived at by which he was to occupy the first and second floors together with the terrace whereas the respondent was to occupy the ground floor exclusively and their mother was to live on the ground floor or, with any of her sons, as she desired. Accordingly, it has been alleged that the family arrangement was acted upon and the appellant is in occupation of the first and second floors together with the terrace while the respondent is in possession of the ground floor4. Issues were framed on 14 August 2003. The respondent moved an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint on 7 February 2013, which was allowed on 21 September 2013. The appellant filed a written statement to the amended plaint. The appellant filed an application for amendment of the written statement in March 2016, which was opposed by the respondent. The Trial Court allowed the application by an order dated 11 April 20165. The respondent filed an application under Order 47 Rule 1 of CPC seeking review of the order dated 11 April 2016. On 3 June 2016, the respondent filed a writ petition under Article 227 of the Constitution. The petition was allowed by the impugned order dated 5 October 20166. By the proposed amendment, the appellant inter alia sought to introduce the following averments in the written statement:22. That as a matter of fact the property in question is the ancestral, joint Hindu Family Property as initially in view of the pleadings as well the same was purchased by Desh Raj Bhatia, grandfather of the plaintiff No. 2 and the defendant. After the death of Desh Raj Bhatia, who died intestate, the suit property was inherited by all the legal heirs namely Smt. Rajwanti Bhatia (widow), Sunita Rani Bhatia (Daughter), Walaityi Ram Bhatia (Son), Om Prakash Bhatia(Son), Tilak Raj Bhatia (Son), Ratan Lal Bhatia (son), Smt Sita Virmani (daughter), Smt Shakuntala Bhatia (daughter), Jagdish Lal Bhatia (son). All the said legal heirs have relinquished their rights in favour of their widow mother Smt. Lajwanti Bhatia. Thereafter, Smt Lajwati Bhatia before her expiry, have executed a Will in favour of Ratan Lal Bhatia, who is the father of the plaintiff No. 2 and the defendant and after death of Smt. Lajwanti Bhatia, the suit property was inherited by Ratan Lal Bhatia24. That it is an admitted position that on the death of Ratan Lal Bhatia, he was survived by his widow Shara Rani Bhatia, plaintiff No. 2, Subhash Chander Bhatia, defendant Raj Kumar Bhatia and one daughter namely Smt. Shakti Rani Bhatia and one daughter namely Smt Sakshi Rani Bhatia and the plaintiff No. 2, defendant and their sister was also having their two children. It is undisputed position that Ratan Lal Bhatia died intestate and the assets as well as the properties left behind by him stands inherited equally in the name of his legal heir and thus the properties left behind by Ratan Lal Bhatia become the coparcenary property for the rights of the grand children of Ratan Lal Bhatia. It is submitted that the grand children of Ratan Lal Bhatia have derived their coparcenary rights in the properties left behind by Ratan Lal Bhatia. Meaning thereby in case of plaintiff No. 2, although he derived 1/4th share in the suit property but legally his own son and daughter being coparcener then his share shall be terms as 1/12th each and likewise the share of defendant which he derived as 1/4th on the death of his father shall also be deemed as 1/12th each with his two sons and the share of Sharda Rani Bhatia which she derived as 1/4th is also to be legally deemed as 1/12th each alongwith her sons and daughter7. The High Court has held that the amendment sought in the written statement was not bona fide and was not necessary for determining the real question in controversy between the parties. The suit was instituted in 2001 and the written statement was filed in 2003. The High Court held that based on facts which were known to the appellant in 2003, a belated attempt was made thirteen years later in 2016 to amend the written statement to introduce an averment on the existence of coparcenary / hindu undivided property. On merits, the High Court held that it is a settled principle that after the enactment of the Hindu Succession Act 1956, property which devolves on an individual from a paternal ancestor does not become HUF property but the inheritance is in the nature ofd property unless an HUF exists at the time of the devolution. This view was based on the judgments of this Court in Commissioner of, Kanpur v Chander Sen (1986) 3 SCC 567 )and Yudhishter v Ashok Kumar (1987) 1 SCC 204 ). In the view of the High Court, the averments sought to be introduced by the appellant do not lead to a conclusion of the existence of coparcenary property. While accepting that in the course of considering an application for amendment, its merits or demerits should not be evaluated, the High Court nevertheless held that the amendment in the present case was untenable on merits

Reasoning: 10. In the original written statement, the appellant had set up the plea that the property in dispute was in the nature of joint family property and that even after the alleged deed of relinquishment, parties were living together as members of a joint hindu family. The written statement inter alia contains the following averments :10…The property is the joint family property. The sister of the respondent is married and well settled at her matrimonial home…The defendant, plaintiff and the said S C Bhatia were jointly occupying the said property as being the undivided joint family property. That even after execution of the alleged relinquishment dee the abovesaid parties were living as joint family and the suit property being the undivided joint family…That all family members were using ground floor, first floor and second floor jointly as undivided joint family propertyIn paragraph 12 of the written statement, the appellant has set up an oral family arrangement, thus :12…That acting upon the oral family arrangement, an amount of Rs. 6, 00, 000/was taken out of the common fund of the Joint Hindu Undivided Family. The said amount has been handed over to Dr R C Bhatia and Shri Shakti Bhatia both residents of Modi Nagar, U P on interest. The said two persons are regularly paying interest to the plaintiffIn the reply on merits, the appellant has averred that :2… The defendant is in possession of the first floor, second floor and terrace of the said property as owner as per the oral family settlement of the undivided Joint Hindu Property…11. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff12. In the view which we have taken, it has not become necessary to consider the alternative submission of the appellant namely, that recourse taken to the jurisdiction under Article 227 by the respondent after filing an application for review before the Trial Court was misconceived. Since the matter has been argued on merits, we have dealt with the rival submissions13. Hence, on a conspectus of the facts and having due regard to the nature of the jurisdiction under Article 227 which the High Court purported to exercise, we have come to the conclusion that the impugned judgment and order is unsustainable.