1. In order to understand the facts giving rise to these two connected revision petitions, the following pedigree-table may be stated :
For Pedigree-table See next page.
2. In June 1968, Inder Singh filed a suit against Chhajju Singh, Tara Singh and Hoshiara Singh for possession of half share in the property left by Harnama. His allegations were that Harnama died on 30th May, 1961, without leaving any heir of Class I of the Schedule to the Hindu Succession Act, 1956 with the result that the plaintiff and Chhajju Singh became entitled to his estate in equal shares, they themselves being heirs of Class II of the said Schedule. Tara Singh claimed himself to be adopted son of Shyama, but the plaintiff did not admit that relationship. Even if its was held that he was actually so adopted, he was not entitled to succeed to the estate of Harnama because he was an agnate. It was further stated in the plaint that Chhajju Singh had got the entire estate of Harnama illegally mutated in his favour on the basis of a will alleged to have been executed by Harnama. The said will was not valid, Hoshiara Singh brought a suit in 1963 challenging the said mutation and alleging that he was the adopted son of Harnama and entitled to succeed him. That suit was dismissed in June 1967 and the appeal against it was also rejected in May 1968 but it was held by the Appellate Court that the entire land left by Harnama was ancestral and if any will or gift was executed in favour of Chhajju Singh, the same was illegal. It was held that adoption of Hoshiara Singh had not been proved. It was further held that on Harnama's death succession had opened out and the suit of a declaratory nature filed by Hoshiara Singh, being merely speculative, did not lie. All these findings given in that judgment according to the plaintiff, were binding on the parties to the litigation.
3. The suit was contested by Chhajju Singh and Tara Singh. The case set up by Chhajju Singh was that Harnama had not died on 30th May, 1961 but his death took place on 26th November, 1960. Shyama was alive when Harnama died and he alone was entitled to succeed to him if the latter died intestate. The plaintiff had Chhajju Singh were not the only heirs, because there was also a daughter, Kartari, of Waryama brother of Shyama, and she was also an heir. Tara Singh was validly adopted by Shyama, who died on 21st April, 1961, after the death of his real brother, Harnama. Chhajju Singh set up a will dated 12th February, 1957 which, according to him, had been validly executed by Harnama in his favour and according to that, he was Harnama's sole heir and, consequently, the mutation had been validly sanctioned in his name in January 1963. The findings given by the Appellate Court in Hoshiara Singh's case, according to him, were not res judicata.
4. Tara Singh admitted that Harnama had died on 30th May, 1961 as alleged by the plaintiff. According to him, the plaintiff and Chhajju Singh were not the heirs of Harnama, because he himself was the sole heir, in as much as the other two had been adopted by persons, who were strangers to the family. The plaintiff was estopped from filing the suit, because he had not raised any objection when the mutation of Harnama's estate took place in favour of Chhajju Singh in January 1963. He averred that the parties
Dal Singh|Albel Singh___________________________________________________________________| | |Shyam alias Waryama alias Harnama aliasSham Singh (Died issueless) Waryam Singh Harnam Singh| |_______________________________ | | |Tara Singh (Adopted son) Inder Singh Chhajju Singh(Defendant No. 2) (Plaintiff) (Defendant No.1) | |Hoshiara Singh Tara Singh Defendant No. 3 (Defendant No.4) were governed by custom and Harnama could not make a valid will or gift in favour of Chhajju Singh regarding the property in question.
5. On the pleadings of the parties, the following issues were framed:--
'1. What is the date of death of Harnama alias Harnam Singh and Shama alias Shyam Singh?
2. Whether Waryam Singh deceased had a daughter Kartari. If so, its effect?
3. Whether defendant No. 2 is validly adopted son of Shyama alias Shyam Singh. If so, its effect?
4. Whether Harnama deceased executed any will or gift in favour of defendant No. 1?
5. If issues Nos. 4 and 3 are proved, whether the suit of the plaintiff attacking will, gift and adoption is within time?
6. Whether the findings of the learned District Judge, Ludhiana in appeal dated 3-5-1968 operate as res judicata against defendants Nos. 1 and 2. If so, to what respects?
7. Whether the property in suit is ancestral qua the plaintiff and Harnama?
8. Whether the plaintiff and defendant No. 1 were adopted in a strange family and to what effect?
9. Whether the plaintiff is estopped from filing the present suit by his act and conduct?
6. The trial Judge held that Harnama died on 26th November, 1960 while Shyama on 21st April, 1961. Waryam Singh had a daughter Kartari by name, and if it was held that the plaintiff and Chhajju Singh would succeed to the estate of Harnama, then she also would do so otherwise not. Tara Singh was validly adopted by Shyama. It was found that Harnama did execute a will in favour of Chhajju Singh, but it would not affect the ancestral property. So far as the gift was concerned, it was held that the same was with respect to some other property which was not the subject-matter of this litigation. The suit with regard to the will and the gift was held to be within limitation, but the same was barred qua the adoption. The learned Judge also held that the findings given by the Appellate Court in Hoshiara Singh's case would not act as res judicata. The property in dispute was partly held to be ancestral and party non-ancestral. On issue No. 8, the finding was that even if the plaintiff and defendant No. 1 were adopted by strangers to the family, their right to succeed collaterally in their natural family would not be affected. It was held that the plaintiff was not estopped either by his act or conduct from filing the suit. On these findings, the suit was dismissed.
7. Against this decision, the plaintiff went in appeal before the learned Senior Subordinate Judge, Ludhinana. There, after the arguments had been concluded. Tara Singh filed an application under Order 6, Rule 17. Code of Civil Procedure, for the amendment of his written statement. His prayer was that he should be allowed to plead in the written statement that Harnama died on 26th November, 1960 and not 30th May, 1961 as alleged by the plaintiff.
8. This amendment was allowed by the learned Judge on payment of Rs.200/-as costs to the opposite party. Against this order, two revision petitions (Civil Revisions Nos. 445 and 558 of 1971) have been filed by Inder Singh, plaintiff, and Chhajju Singh, defendant, respectively in this Court. This order will dispose of both of them.
9. A preliminary objection was raised by the learned counsel for Tara Singh, respondent, that no revision was competent in this case, in as much as the costs awarded by the Court below had been accepted by Inder Singh, plaintiff. He also urged that whenever an order was passed by a Court allowing amendment of the pleadings on the payment of costs, the said order was not revisable on any ground whatsoever.
10. With regard to the first submission, the record shows that on 19th March, 1971, when the learned Judge passed the impugned order allowing the amendment, the costs were paid to the plaintiff at that very time. On the same day, however, he filed an application before the Court to the effect that he had taken Rs. 200/-from Tara Singh, respondent, after the Court announced the decision. He was personally present in Court, but his counsel was busy in some other Court at that time. He was an illiterate person and when he subsequently contacted his counsel, he was advised to return the money to Tara Singh. His prayer, therefore, was that Tara Singh might be directed to take back Rs.200/-, which were not being accepted. On that very day, i.e. 19th March, 1971, the Court ordered that notice of that application be given to the opposite party for 30th March, 1971, and also directed that the 'money be deposited in Civil Court deposit'. The said amount was then actually deposited on 22nd March, 1971. On 30th March, 1971, Tara Singh filed a reply to the application in which he stated that on the day when the appeal was taken up by the Court, the plaintiff-appellant appeared along with his Advocate Mr. Ram Parkash. The said Advocate vehemently argued that heavy costs were awarded in the case. It was further stated that the plaintiff was an old litigant and it appeared that after the costs had been accepted, his senior counsel Mr. Munshi Ram, Advocate felt that the acceptance of costs might adversely affect the interests of the plaintiff. On these grounds, it was prayed that the application filed by the plaintiff be dismissed.
11. I am aware of authorities in which it has been held that if the amendment has been allowed on the payment of costs and the said costs have been accepted without protest, then the aggrieved party cannot file a revision petition against that order. But in this case it cannot be said whether that principle would aptly apply, because the facts mentioned above show that after the costs had been accepted by the plaintiff, he immediately on that very day put in an application before the Court saying that it had been done under some misunderstanding and the other side be directed to take back his money. The said costs were then actually deposited in Court presumably for the reason that the other side may not have accepted them. No authority exactly on all fours with the facts of the instant case, was cited before me. In any case, it is not necessary to decide this point because in the connected revision filed by Chhajju Singh, no such situation had arisen. No costs were awarded to him, and consequently, the question of his accepting them did not arise. I would, therefore, overrule this objection.
12. As regards the second submission under this very head namely, that if a Court allows amendment on the payment of costs, then that order is not revisable. I am unable to accept it. In none of the authorities such a proposition has ever been laid down. If the case is such where in the opinion of the Court, the opposite side requires to be compensated by the award of costs, an order is made to that effect. But that does not preclude the opposite party from challenging the order on merits and show to the higher Court that no amendment should have been allowed in the circumstances of that particular case. Neither on principle nor on judicial precedents, can it be urged with any justification that by the mere fact that the Court has awarded costs, the order becomes immune from challenge before the superior authorities. There is, thus, no force in this submission as well.
13. Coming to the merits of the case, the learned Judge, while passing the impugned order stated-'There can be no doubt about the fact that the amendment in the present case has been applied for at rather abnormally late stage, when not only I had heard the arguments in this appeal but had also dictated the order and what was left only was the announcement of the same. It also is correct that the amendment seeks to withdraw a clear admission made by the petitioner in his written statement'. After having observed this, the learned Judge then made a reference to a number of authorities and a perusal of his judgment shows that he was under the impression that the law was that amendment must be allowed in all cases and at all stages and the only exception according to him, was 'where this new case was barred for some reason or another at the time of its setting up'. For this proposition, he seems to rely on the Supreme Court decision in A. K. Gupta and Sons Ltd. v. Damodar Valley Corpn., AIR 1967 SC 96, where it was held:--
'In the matter of allowing amendment of pleading the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation'.
14. From the above observations, it cannot, in my opinion, be said that what the learned Judge thought to be the law was correct. The Supreme Court has, in the first instance, clearly laid down that the general rule is that a party should not be permitted to set up a new case or a new cause of action by allowing amendment of the pleadings and then follows the sentence 'particularly when a suit on the new cause of action is barred'. But this does not mean that according to the Supreme Court, the amendment has always to be allowed in all types of cases and it has to be disallowed only when the new case set up by the amendment was barred for some reason or the other as was observed by the Court below. After laying down this proposition of law, the learned Judge gave the following reason for allowing the amendment in the instant case:--
'In the present case one important thing to note is that although the petitioner (applicant) had conceded in the trial Court that Shyama had died after Harnama, actually that concession had been found to be wrong by the trial Court itself because the co-defendant had contested that point. It, therefore, appears that the concession made by the petitioner (applicant) was due to some misunderstanding on his part as the date of the report of the Patwari relating to the death of Harnama appears to have been understood to be the date of his actual death by the petitioner (applicant). Otherwise there is apparently no idea of making this concession, which certainly affects the petitioner (applicant) adversely'.
15. The reason given above is not easily understandable. It may be stated that the applicant had not conceded in the trial Court either in the written statement filed by him or in his evidence that Shyama had died after Harnama. All that he had mentioned in the written statement was than Harnama had died on 30th May, 1961. He had neither given the date of death of Shyama nor had he said that Shyama had died after Harnama. It is true that while deciding issue No. 1, the trial Court found that Harnama had died on 26th November, 1960 while Shyama on 21st April, 1961, which was the position taken up by Chhajju Singh, defendant. But from that, it cannot be inferred that the applicant had conceded what had been ascribed to him above by the trial Judge. It is a different matter that on evidence, the case set up by a party may not be found to be true, but it cannot, however on that ground, be said that any concession had been made or the same was due to some misunderstanding on his part.
16. It was argued by the learned counsel for the respondent Tara Singh that by this amendment, his client was not setting up any fresh case. In the first place, the learned Judge, himself towards the close of his judgment observes:--
'It is, however, correct that as a result of the amendment the case would have to be opened afresh, because as soon as the petitioner (applicant) is allowed to take up the plea naturally the effort of Inder Singh, appellant would be to show that Shyama had connived at in the execution of the will by Harnama and, therefore, neither Shyama nor Tara Singh, the present applicant can take any benefit resulting in the setting aside of the will. It is correct that this was the case earlier also before the trial Court but at that time this was also the case of Chhajju, the main respondent to this appeal, and therefore, the appellant was not interested in leading evidence on this matter. Therefore, now the appellant would have to be given opportunity to do so'.
17. It is clear from this that the whole case according to the learned Judge himself, will have to be tried afresh. If that be so, it is not easily understandable, as to how it can be said that Tara Singh was not setting up a fresh case.
18. This apart, it will be noticed from all that has been said above, that it would make a good ideal of difference to the result of the case, if it is found that Shyama died before Harnama's death. In that situation, the plaintiff would have a good case because after Harnama's death, his estate would go to Inder Singh and Chhajju Singh. If, on the other hand, Harnama died earlier, then his estate would go to Shyama alone and he would be a preferential heir as against Inder Singh and Chhajju Singh, sons of his brother Waryama. It would, therefore, be seen that the dates of death of these two persons or the fact as to who out of them died earlier, will have lot of repercussions on the result of the litigation. But as I look at the matter. I do not understand as to how Tara Singh would suffer if the amendment is not allowed, because, admittedly, under issue No. 1 it has to be decided as to when these two persons, namely, Harnama and Shyama died. The trial Judge had given a decision thereon and the lower Appellate Court had still to do so. Evidence had been led by the parties and if the finding was given on this issue, the other matter as to who out of the two died earlier, would automatically have been decided.
19. It was suggested by the learned counsel for the respondent that if after this litigation, his client brought a suit then the opposite party might raise the objection that in the present suit he had conceded that Harnama had died later than Shyama. But in making this suggestion, he overlooks that all those persons, who are parties to this litigation, would be bound by any finding given under issue No. 1. Consequently, according to me, the granting or refusing of the application of Tara Singh for the amendment of his written statement does not in any way injure his interests.
20. In view of what has been said above, these revision petitions are accepted, the impugned order quashed and the case sent back to the learned Senior Subordinate Judge. Ludhiana, for deciding the same on merits. In the circumstances of this case, however I will leave the parties to bear their own costs. Parties have been directed to appear before the lower Appellate Court on 21st February, 1972.
21. Petition allowed.