Case: S. Satnam Singh  Vs. Surnder Kaur

3. The parties hereto are successors of one late Surender Singh and one late Harikishan Singh. They were brothers. First respondent is the widow of late Harikishan Singh and the second respondent is his son. The property which was the subject matter of the partition suit was a house premises bearing Municipal No.2-4-1099 situated at Nimbali Adds, Hyderabad admeasuring 671 sq. yards.4. The suit was filed by late Harikhsian Singh against the first petitioner and his son Rajinder Singh. In the written statement, the said fact was admitted. The question which arose for consideration of the court, however, was as regards the share of the parties therein. Whereas according to the petitioner, the plaintiff had only 1/3rd share in the suit property, according to the plaintiff he had 1/2nd share therein.5. In the written statement, it was, inter alia,has never been any such attempt by the plaintiff for partition of the property as alleged in the plaint. In fact, the plaintiff has failed to render true and proper account of the business of M/s. Bombay Cycle Company though he was specifically called upon to do so by the defendant - 2, individually as well through his counsel. The plaintiff has also never co-operated in managing the matters immediately after the death of Late Sunder Singh, the father of the plaintiff and defendant - 1. Having knocked away some of the securities and other amounts which were in the hands of the plaintiff after death of late Sunder Singh singularly the plaintiff has chosen to file the present suit for partition claiming 50% share in the residential house, which is mentioned as suit schedule property.An application for amendment of the said written statement was filed, inter alia, statingis true that Sri Sunder Singh died on 26.4.1980 intestate leaving behind his widow, the plaintiff and the defendant - 1 herein. It is also true that widow of late Sri Sunder Singh, i.e., Smt. Karam Kaur also died on 14.9.1992. However, the allegation that she died intestate is incorrect and false. The plaintiff is very well aware that Smt. Karam Kaur executed a registered will on 1.9.1981 before the Sub-registrar, Chikkadpally bequeathing her 1/3rd share in the suit schedule property as well as her 50% rights as a partner in the business of M/s. Bombay Cycle Company to the defendant No.2, herein. In the circumstances the contrary allegations made in the plaint in this respect are denied as false and fabricated. It would, thus, be apparent that by any stretch of imagination the plaintiff cannot deny 50% rights in respect of the suit schedule property as after the death of Sunder Singh, widow of Sri Sunder Singh, Karam Kaur, plaintiff / and the defendant 1 herein had become entitled to 1/3rd share each. Smt. Karam Kaur having executed a registered will on 1.9.81, her 1/3rd share naturally goes to the defendant 2, herein. In the circumstances the plaintiff would not be entitled to anything more than 33.33% of the suit Schedule property if atere has never been any such attempt by the plaintiff for partition of the property as alleged in the plaint. In fact, the plaintiff has failed to render true and proper account of the business of M/s. Bombay Cycle Company though he was specifically called upon to do so by the defendant - 2, individually as well as through his counsel. The plaintiff has also never co-operated in managing the matters immediately after the death of Late Sunder Singh, the father of the plaintiff and defendant - 1. Having knocked away some of the securities and other amounts which were in the hands of the plaintiff after death of late Sunder Singh singularly the plaintiff has chosen to file the present suit for partition claiming 50% share in the residential house, which is mentioned as suit schedule property. It would thus be apparent that there is absolutely no merits in the suit and the plaintiff would not be entitled for the share as claimed. The suit, therefore being absolutely devoid of merits deserves to be dismissed withreplication to the said written statement was also filed.7. The learned Trial Judge framed issues which read asWhether plaintiff is entitled for partition? If so, to what share?ii. To what relief?On 21.1.02, basing on the pleadings of defendant No.3, the following additional issues were settled:-iii. Whether defendant No.3 is the legal heir of defendant No.2?iv. Whether the Will deed claimed by defendant No.3 is true, valid and binding on theThe suit was decreed declaring 1/3rd share in favour of the plaintiff as also the first defendant,The plaintiff is entitled to partition and separate possession of 1/3rd share only in the suit schedule property.ii. The first defendant is entitled to 1/3rd share in the suit schedule property.iii. Defendant No.3 being the legal heir of defendant No.2, who is not heard of since more than 7 years and thereby presumed to be dead in the eye of law. Defendant No.3 is entitled to his (D2) 1/3rd share in the suit schedule property.An interlocutory application was filed by the appellant thereafter purported to be in terms of Order XX Rule 18 of the Code of Civil Procedure read with Section 152 of the Code of Civil Procedure with regard to the share of the parties in the said Bombay Cycle Company. The respondents objected thereto. By reason of an order dated 14th March, 2006, the said application was allowed, directingthe petitioners have raised a plea in respect of Bombay Cycle Company in their written statement but there was no specific issue framed in the regard. The learned counsel appearing for the petitioners submit that in order to shorten the litigation instead of driving the parties to a separate action, the present dispute can be decided in the present dispute itself. The petitioners in support of their contention relied on the decision of our Honble High Court in Syed Ikramuddin v. Syed Mahamed Ali reported in AIR 1986 AP 267 . Further there is a dispute with regard to the Bombay Cycle Co. business. Whether it is a joint family business and whether the petitioners are having any share in the property cannot be decided without making any enquiry in that direction.Therefore, I feel that the parties should be directed to adduce oral or documentary evidence in respect of their respective contentions so as to enable this Court to decide the point of controversy. It is also not out of place of mention here that the Honble High Court also directed to dispose of the matter at the earliest possible time. Accordingly the parties are directed to lead oral and documentary evidence in support of their contentions. The respondent No.4 herein is not a party to the suit. No relief is passed against the respondent No.4 herein is not a party to the suit. No relief is passed against the respondent No.4 in this petition. Call on 16.3.2006.A civil revision application filed thereagainst by the respondents has been allowed by reason of the impugned judgment. The High Court referred to the decision of this Court in Phoolchand v. Gopal Lal [AIR 1967 SC 1470 ] toSupreme Court was dealing with a case where the shares had to be reallocated on account of death of party and therefore the Court said such facts can be taken into consideration and appropriate orders could be passed which could be a fresh preliminary decree. But here we have a case where it is contended by the defendants that they had mentioned in their written statement the property which they now sought to include in the preliminary decree. Whole trial went on decree was passed in 2003, and this particular property was not mentioned in the decree as joint family property and after three years an application came to be filed that it should be added in the decree which, in our view, is not permissible. Therefore, we hold that the judgment of this Court in Syed Ikramuddin v. Syed Mahamed Ali does not lay down a good law and the question is answered that additional properties cannot be added for partition in the preliminary decree after the preliminary decree attained finality in terms of Section 97 of the Code."

Court's reasoning:
The power of amendment, in a case of this nature, as noticed hereinbefore, would not only be dependent upon the power of the court but also the principle that a court shall always be ready and willing to rectify the mistake it hasissues were not correctly framed. An additional written statement was permitted to be filed. A replication thereto also was allowed. It was in that situation, the question as to whether the business transaction of Bombay Cycle Company could be a subject matter of the suit for partition or not was required to be determined on its ownTrial Court felt that it had committed a mistake. In such a situation, the court, in our opinion, committed no infirmity in directing rectification of its mistake.