Bhaskar Bhattacharya, J.@mdashThis appeal is at the instance of the defendant Nos. 5 and 12 in a suit for partition and is directed against an order dated 30th September 2008, passed by a learned Single Judge of this Court, by which His Lordship dismissed an application for amendment of written statement filed by the appellants.
2. Being dissatisfied, the defendant Nos. 5 and 12 have come up with the present appeal.
3. In the year 1978, the original plaintiffs, namely, Shreelal Kajaria and two others, filed a suit being suit No. 696 of 1978 in the Original Side of this Court, thereby claiming, inter alia, for partition and various declarations in respect of the suit properties wherein the present appellants were made defendant Nos. 5 and 12, respectively, by admitting the appellant No. 1 as a co-sharer.
4. The share of the parties to the litigation, as pleaded by the original plaintiffs in the plaint, which has since been adopted by the transposed plaintiffs, would appear form the genealogical table set out below in respect of premises No. 6 Russel Street with which we are concerned:
PREMISES NO. 6 RUSSEL STREET
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|
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| |
Jankidas (Died on 1936) Pannalal
(1/2 share) (1/2 share)
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----------------- |
| | |
Ramgopal Kajaria Ramkumar Kajaria |
| (Died on 1972) |
| = Anar Devi (Died in 1966) |
Matadin | |
| |
------------------------------------ |
| | | |
Radhakisan Sitaram Lakhiprasad |
|
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| | |
Motilal Kajaria Jaharwal Kajaria Onkarmal Kajaria
(Died in 1952) (Died in 1955) (Died in 1965)
=Bhagwanidevi =Kamala Devi =Mulidevi
| Received 1/6th share by (O.M. created Trust on
| Award 12.1.555 & created 27.1.56)
| Trust on 1.2.57 |
| | |
| | |
| Shreelal Harish Kumar
| (Adopted in 1964)
|
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| | | | |
Shyam Sundar Mahabir Prasad Jugal Kishore Kishanlal Ramniranjan
(Died in 1950)
=Giniyadevi
|
Sheo Prakash
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a) The Plaintiff as trustees of the said Onkarmal
Kajaria Family Trust. 1/6th 16.67%
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b) Shyam Sundar Kajaria defendant No. 1 ...2.78%
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c) Sheo Prakash Kajaria, defendant No. 5 ...2.78%
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d) Jugal Kishore Kajaria, defendant No. 2 ...2.78%
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e) Kishanlal Kajaria, defendant No. 3 ...2.78%
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f) Ramniranjan Kajaria, defendant No. 4 ...2.78%
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g) Sm. Bhagwani Debi Kajaria, defendant No. 15 ...2.78%
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h) Shyam Sundar Kajaria and Sm. Shanti Debi
Kajaria, defendant Nos. 1 and 11. The trustees of
Kamala Devi Kajaria Trust 1/6th 16.66%
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i) Ramgopal Kajaria, defendant No. 7 1/4th 25%
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j) Radhakishan Kajaria, defendant No. 8 1/12th 8.34%
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k) Sitaram Kajaria, defendant No. 9 1/12th 8.33%
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l) Lakhi Prasad Kajaria, defendant No. 10 1/12th 8.33%
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5. It would appear from the aforesaid table that the appellant No. 1, namely, Sheo Prakash is the son of Mahabir Prasad who died in 1950 and Smt Giniyadevi, the other appellant, is the widow of Mahabir Prasad as pleaded in the plaint.
6. Thus, in the original plaint the appellants before us were shown as members of the Mitakshara family and consequently, they were made the defendant No. 5 and 12, respectively, in the suit.
7. The appellants before us entered appearance in the suit and filed a joint written statement thereby contending that there was no cause of action against them and that they were unnecessary parties, and, therefore, the suit against them should be dismissed with costs. In support of their defence, they stated that in the year 1942, their predecessor, Mahabir Prasad Kajaria, separated from his father, Motilal Kajaria, and his other brothers, who were the defendant Nos. 1 to 4 in the suit, in food, estate and business. It was further contended that since his separation from the father and brothers, the said Mahabir Prasad was carrying on his independent business and had owned his separate property. It was further stated that Mahabir Prasad, during his lifetime also renounced all his interest in the properties and assets of his father, the Motilal Kajaria, since deceased.
8. Accordingly, the appellants contended in their original written statement that neither of them is a co-sharer of premises No. 6 Russel Street, Calcutta nor had they any right, title or interest whatsoever in the said premises. It was further asserted that after the death of Motilal, neither of those two defendants had inherited his property nor his business as their predecessor-in-interest, Mahabir Kajaria, separated from his father and brothers in 1942 and renounced all his right, title or interest in the properties of said Motilal Kajaria.
9. In the said written statement, those two defendants further asserted that Motilal died on 5th June, 1952 and after his death, serious disputes and differences arose between the heirs and legal representatives of the said Motilal, as a result, the disputes and differences were referred to the joint arbitration of Dulichand Kheria, Sheo Prosad Patodia and Ramnath Kanoria and in the said arbitration proceeding Smt. Giniya Devi Kajaria, the defendant No. 12 filed a declaration in writing on 25th February, 1956 stating that her late husband, Mahabir Kajaria had separated from her late father-in-law, Motilal and her brothers-in-law in food, estate and business in 1942 and renounced his right, title and interest in all the moveable and immovable properties of the said Motilal. It was further mentioned in the original written statement that the Arbitrators made an Award and published the same on 13th September, 1956 which was binding on all the legal heirs and representatives of Motilal, and that the said award was registered and was fully implemented and acted upon by the parties to the said awards.
10. Long 25 years after the filing of the written statement, the defendant Nos. 5 and 12 came up with an application for amendment of the same and by the proposed amendment, they sought to retract the admission made in the original written statement whereby they stated that Mahabir had separated from his father and brothers in the year 1942 and that he renounced all his rights in the joint family of his father.
11. In the said application for amendment of written statement, the reasons for such withdrawal of admission were disclosed as follows:
a) Mahabir Prasad Kajaria died at the age of 24 years on 7th May, 1949 when the defendant No. 5 was only 2 years and the defendant No. 12 was only 21 years. Until the death of Mahabir and even thereafter, those defendants had been getting benefits from income of the joint properties. The defendant No. 5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties and after the death of Mahabir, they continued to live in the joint family as members thereof and till the filing of the applications, they were members of the joint family.
b) In the marriage of Kusum and Bina, the two daughters of Mahabir, the expenses were wholly borne out of the income of the joint family property and such facts were known to all the family members. The defendant No. 5 learnt many years after the attainment of his majority that a mock partition of the joint properties was made through the arbitration of the joint arbitrators, namely, Dulichand Kheria, Ramnath Kanodia and Sheo Prasad Patodia.
c) The defendant No. 5 further learnt that the necessity of making the mock partition arose only to save the joint properties for camouflaging the Income Tax Department by showing a partition of the joint properties, but actually, no partition by metes and bounds pursuant to the aforementioned award was made. It was further stated that despite the making of the award, the joint properties remained intact in joint enjoyment of the parties and the usufructs thereof were jointly enjoyed up to the year 1973-74.
d) Even the Income Tax Department totally disbelieved the said mock arbitration. The defendant No. 5 further learnt that on 25th February, 1956, his mother, the defendant No. 12, was made to sign a paper which was typed out in English language and the contents were not brought to her knowledge and the purpose for which the letter was taken from her was also then not disclosed to her. The defendant No. 12, then a young widow, out of sheer obedience to the elder male members of the family, particularly the defendant No. 1, since deceased, and Jugal Kishore Kajaria, the defendant No. 2, put her signature on the said piece of paper. She was a purdahnashin lady, and had no right or courage to question the said act of the elders.
e) The defendant No. 5 further learnt at that time that the statement in the said document was that her mother, the defendant No. 12, declared that her husband, Mahabir, had relinquished his right, title and interest in the joint property and business in favour of his father and brothers way back in 1942 and left the premises and started his own business elsewhere.
f) The defendant No. 12 is an illiterate lady and the defendant No. 1 and 2 by prevailing upon her got this document signed without her knowledge about what she was made to sign upon.
g) In the year 1942, Mahabir was not even married and the defendant No. 12 and the defendant No. 5 and the other two heirs continued to live in the joint family residence of 157, Chittaranjan Avenue, Calcutta, and were being maintained from the income of the joint family after the death of the Mahabir.
h) For similar reason of saving the joint family properties from the onslaught of Income Tax, the defendant No. 5 was asked by his uncles, Jugal Kishore Kajaria, the defendant No. 2 and Ram Niranjan Kajaria, the defendant No. 4, to swear an affidavit and make similar statement as made by his mother the defendant No. 12 stating at the same time that he had derived knowledge from his mother, the defendant No. 12, about the relinquishment by his father of his interest in the joint family properties and business in the year 1942.
i) The defendant Nos. 5 and 12 had filed the written statement on 16th August, 1979 and at that point of time, they had no separate existence and were in control of their own close relatives. The defendant Nos. 1 and 2 had shown to the defendant No. 5 an alleged letter purported to have been written by the defendant No. 12 that Mahabir Prasad was separated in food, estate and business in 1942 and, thereafter assured that despite such statement to the prejudice of their interest in joint property, they would enjoy their right.
j) The written statement was filed by the defendant No. 5 and 12 at the instance of the defendant Nos. 2 and 4 and the said written statement was drafted and prepared at the instances of the defendants Nos. 2 and 4, and they just put their signatures without going though the contents and without properly understanding the implication thereof.
12. The aforesaid application for amendment of written statement was vehemently opposed by two other brothers of Mahabir Kajaria, i.e. the defendant No. 2 and the defendant No. 4 and according to them, such amendment should not be allowed as the effect of such amendment is to withdraw the admission the defendant Nos. 5 and 12 regarding their interest in the property. It was further contended that the said application for amendment was a mala fide one and that due to lapse of time a valuable right in favour of the other heirs of Motilal had accrued.
13. As indicated earlier, the learned Single Judge, by the order impugned in this appeal, has rejected the application for amendment of the written statement filed by the appellants.
14. Being dissatisfied, the defendant Nos. 5 and 12 have come up with the present appeal.
15. Mr. Hirak Mitra, the learned senior advocate appearing on behalf of the appellants has strenuously contended before us that the learned Single Judge erred in law in rejecting the application for amendment of written statement filed by his clients by not following the well-accepted principles, which are required to be followed while considering such an application. Mr. Mitra contends that amendment of written statement should be liberally construed and a defendant is entitled to take even inconsistent defences. Mr. Mitra further contends that the suit being one for partition, the cause of action is a recurring one and thus, the question of any right of a co-sharer in the joint property being extinguished by lapse of time is immaterial. Mr. Mitra further points out that the original plaintiffs as well as the transposed plaintiffs have accepted his clients as co-sharers of the property but it is only the other heirs of Mahabir, who are opposing such claim. Mr. Mitra submits that in such circumstances, for effective adjudication of the disputes involved in the suit, the proposed amendment is necessary as the Court is required to decide whether his clients'' predecessor had really relinquished his right, title and interest in the suit property by lawful means. Mr. Mitra further contends that an admission procured through fraud of the other parties or made through mistake can always be withdrawn and thus, at the stage of consideration of an application for amendment of written statement, the Court is not required to go into the merit of the dispute. Mr. Mitra, therefore, prays for setting aside the order impugned in this appeal and allowing the application for amendment of the written statement filed by his clients.
16. Mr. Anindya Mitra, the learned senior advocate appearing on behalf of defendant No. 4, however, vehemently opposed the aforesaid contentions advance by Mr. Hirak Mitra and contended that the learned Single Judge rightly applied the well-settled principle that a party should not permitted to withdraw the admission made in his pleading, the effect of which is to prejudice the interest of his clients who has acquired right, title and interest of Mahabir in the property. Mr. Mitra contends that the admission made in a pleading stands on a different footing than that of admission made in various other documents. According to Mitra, admission made in other documents may be explained away but there is no scope of withdrawing the admission made in his pleading before a court of law.
17. Mr. Mitra further submits that if the appellants want to file a fresh suit for declaration his right over the property on the date of filing of the application for amendment of written statement, such suit would have been barred by limitation, and thus, the learned Single Judge rightly dismissed the application for amendment of the written statement, as by the proposed amendment, the appellants want to deprive his clients of some right which has accrued in their favour by lapse of time. Mr. Mitra lastly contends that the learned Single Judge having exercised his discretion by dismissing the application for amendment of written statement, this Court, as an Appellate Court, should not interfere with such discretion simply because from the selfsame materials, the appellate Court can come to a different conclusion. In support of such contentions, Mr. Mitra relies upon the following decisions:
1
2.
3.
4
5.
6.
7. K. Raheja Constructions Ltd. v. Alliance Ministries and Ors. reported in 1995 Supp (3) SCC 17;
8.
9. Chhotelal Babulal and Anr. v. Premlal Girdharilal and Ors. reported in AIR 1977 Madhya Pradesh 34;
10.
18. Mr. Deb, the learned Advocate appearing on behalf of the defendant No. 2 supported the contention of Mr. Anindya Mitra while Mr. Dutt, the learned Senior Advocate appearing on behalf of the transposed plaintiffs supported the contention of Mr. Hirak Mitra.
19. Therefore, the question that falls for determination in this appeal is whether the learned Single Judge while dismissing the application for amendment of the written statement rightly exercised the discretion by following the well-settled principles required to be followed while dealing with this type of an application.
20. After hearing the learned Counsel for the parties and after going through the materials on record we find that after the lapse of 25 years from the date of filing of the original written statement, the appellants have sought to withdraw their admission in the original written statement wherein they stated that they had not inherited the estate of Motilal, as their predecessor-in-interest, Mahabir, the son of Motilal, during his life time became separate in food, estate and business and renounced his right in the estate of his father. They have also explained the reason why such statement was made in the original written statement as indicated above and accordingly, such explanation has been incorporated in the proposed amended written statement as would appear from proposed sub-paragraph (c) of paragraph 1 by deleting the original sub-paragraph (d) of paragraph 1 and some other portions of the original written statement. Some consequential amendments have been made and the appellants have prayed for partition of their 3.12% share in the joint properties.
21. We find that there are various inconsistent decisions of the Supreme Court on the question whether a defendant can withdraw the admission made in the original written statement. Some of the two-judges-bench decisions have gone to the extent that an admission made in the pleadings, at any rate, cannot be withdrawn whereas admission made in other documents than pleadings may be explained away. Some other two-judges-bench decisions, on the other hand, have permitted withdrawal of admission by way of amendment by indicating that the original admission was explained by way of amendment. One three-judges-bench decision, however, has not permitted amendment of the written statement on the ground that an admission made in favour of the plaintiff cannot be withdrawn. However, in that three-judges-bench decision, the earlier three-judges-bench decisions or even a five-judges-bench decision of the Supreme Court laying down the legal position of an admission and its binding effect on the maker thereof were not even taken note of.
22. We, therefore, propose to consider first the legal effect of an admission as laid down by the Supreme Court in various decisions.
23. In the case of
An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.
(Emphasis supplied by us)
24. Even earlier, a five-judges-bench of the Supreme Court in the case of
25. In the case of
A retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance (not for retraction as erroneously stated in some cases) are on the face of them false. Once the confession is proved satisfactorily any admission made therein must be satisfactorily withdrawn or the making of it explained as having proceeded from fear, duress, promise or the like from someone in authority. A retracted confession is a weak link against the maker and more so against a co-accused.
(Emphasis supplied by us)
26. In the case of
The question whether the assessees functioned as an ''Association of Persons'' during those years was best known to them. Their admission in that regard is an important piece of evidence. They have made no attempt to show that the said admission was made under erroneous impression of law or is otherwise vitiated. Hence for those years they were rightly assessed as an ''Association of Persons''.
(Emphasis given by us)
27. From the above decisions of the Supreme Court, which are still the law of the land, it is clear that an admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. An admission is not conclusive proof of the matter admitted, though, it may in certain circumstances, operate as an estoppel. A retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance (not for retraction as erroneously stated in some cases) are on the face of them false. Once the confession is proved satisfactorily any admission made therein must be satisfactorily withdrawn or the making of it explained as having proceeded from fear, duress, promise or the like from someone in authority. A retracted confession is a weak link against the maker.
28. A three-judges-bench, in the case of Modi Spinning & Weaving Mills Co. Ltd. and Anr. v. Ladha Ram & Co. (supra), upon which strong reliance was placed by Mr. Anindya Mitra, the Senior Advocate appearing on behalf of the Defendant No. 4, was dealing with a case of withdrawal of admission by way of amendment of the written statement.
29. The facts of that case would appear from paragraphs 5 and 6 of the judgment of the Apex Court, which is quoted below:
5. Two paragraphs of the written statement contained additional please. Paragraph 25 states that the agreement dated 7 April, 1967 is applicable to the transactions in which the plaintiff works as stockist-cum-distributor of the defendants. The defendants further allege in paragraph 25 that the agreement is not applicable to transactions in which the plaintiff acts as a principal. In paragraph 26 the defendants/appellants in the alternative allege that even if agreement dated 7 April, 1967 is applied to the dealings in suit, plaintiff''s position is merely that of an agent of the defendants and as such plaintiff is not entitled to claim any damages from the defendants for non-supply of its own goods for sale through the plaintiff.
6. The defendant/s appellants approximately 3 years after the filing of the written statement made an application for amendment of the written statement. The proposed amendments were for deletion of paragraphs 25 and 26 and for substitution of two new paragraphs 25 and 26. The proposed amendment in para 25 was that by virtue of the agreement the plaintiff was appointed a mercantile agent and the plaintiff acted in that capacity in placing orders on the defendants. The defendants further denied the allegation of the plaintiff that the plaintiff placed orders with the defendants in the plaintiff''s capacity as a purchaser. The defendants also alleged that the plaintiff throughout acted as an agent of the defendants. In paragraph 26 of the proposed amendment it was alleged by the defendants that being a mercantile agent and an agent of the defendants in accordance with the terms of the agreement the plaintiff has no locus standi to file the suit.
30. The learned Trial Judge disallowed such amendment and the High Court in revision affirmed the order of the learned Trial Court. The Supreme Court while upholding the orders of the courts below made the following observations in paragraph 10 of the judgment:
It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.
31. It is, thus, evident that in the case of Modi Spinning & Weaving Mills Co. Ltd. and Anr. (supra), no explanation was sought to be given in relation to the earlier statements and at the same time, there was no endeavour on the part of the defendant to allege any fraud, undue influence, coercion, fear, mistake, etc. which was the cause of the admission in the original statements. In the said case, the Supreme Court had no occasion to deal with the situation where a party wants to withdraw an admission earlier made due to fraud, undue influence, mistake or fear etc. that are available under the law of the land. It is now a settled law that a decision is authority of what it actually decides in a given fact. At this stage, it will not be inappropriate to refer to the following observations of the Supreme Court in the case of State of Orissa and Ors. v. Md. Illiyas AIR 2006 SC in laying down the law of precedent:
Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge''s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. See:
(Emphasis given by us)
32. Therefore, the principles laid down in the case of Modi Spinning (supra), cannot have any application to the case before us where the defendants want to withdraw admission made in the original written statement by giving specific reasons and if those reasons are substantiated at the trial by giving cogent evidence, the admission can be successfully withdrawn.
33. It is, therefore, clear that a party making admission in a pleading can definitely pray for withdrawal of such admission if lawful ground is alleged for withdrawal of admission. It is also a settled law that at the time of hearing of an application for amendment of pleading the Court will not consider whether the party applying for amendment will ultimately be able to prove the amended version See
34. Bearing in mind the aforesaid principles, we now propose to consider whether the learned Single Judge was justified in dismissing the application for amendment of the written statement involved herein.
35. It appears from the order impugned that the learned Single Judge has, at the outset, narrated the admission of the appellants in the original written statement and has thereafter, summarised the amended versions including the reasons assigned for withdrawal of such admission. The learned Trial Judge has also referred to the judgments relied upon by the appellants in support of the proposed amendments. The learned Trial Judge, thereafter, has noted the contentions of the learned Advocates for the contesting defendants opposing the amendment. Ultimately, the learned Trial Court has distinguished the decisions cited by the appellants indicating that the facts of the present case stand on a different footing and has opined as follows:
It does not stand to reason that nearly half a century after execution of a document and 25 years after making a formal admission on the basis of the document, a party would wake up to question the basis on which the document came to be.
In the matter in hand there was an unambiguous statement recorded in pleadings as to the status of the very persons making the written statement. Such explicit expression of the applying defendants'' absence of interest in property would scarcely have left any room for them to resurrect their claim in the same property. The beacon of hope that the applying defendants cling on to � is obfuscated by their studied acknowledgement of the relinquishment of the share in the joint property by their predecessor �in- interest.
36. The learned Trial Judge has also overruled the contention of the appellants that the decision of the Income Tax Appellate Tribunal disbelieving the award or partition was res judicata in this proceeding.
37. We have already indicated that at the time of considering an application for amendment of pleading, the prime consideration, which should weigh with the Court, is whether the amendment sought to be made is necessary for the purpose of deciding the issue involved in the suit. It appears that the original plaintiffs as well as the transposed plaintiffs accept the appellants'' amended version and thus, the issue whether Mahabir was a member of the Mitakshara coparcenary at the time of his death is to be decided in the suit at the time of trial. Whether the original pleading of the appellant was really vitiated by fraud is a factor to be decided in the suit. When the trial of the suit had not yet commenced, in our opinion, there was no justification of compelling the appellants to be bound by their original statement that their predecessor of his own relinquished his share in Mitakshara Coparcenary. Relinquishment of share in immovable property belonging to a Mitakshara Coparcenary, without intervention of the Court, it is well known, can only be made registered document. At the time of trial, such document may be produced by the opposing defendants in accordance with law, but in their pleadings, at least, there is no indication of existence of such document. The opposing defendants strongly relied upon an award of Arbitration where neither of the appellants was a party. Therefore, from the materials on record as it stands today, it is not a case where a party wants to avoid any instrument executed by him or his predecessor, which is binding upon him and consequently, is required to be avoided by filing a suit. In such a case, the question of limitation is not factor to be taken into consideration at the time of considering the application for amendment.
38. In this case, the opposing defendants have strongly relied upon an alleged letter written by the widow of Mahabir used in the Arbitration proceedings, where she was not a party, admitting relinquishment of the share of her husband. The appellants admitted writing of such letter in the original pleading. By way of amendment, they now want to explain the circumstances in which such letter was written by showing some reasons, which may be correct or may not be correct and thus, cannot be decided at the stage of considering the question of amendment.
39. At this stage, we may profitably refer to the following observations of the Privy Council, in the case of
It sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position; and it is not their statements, but their relations with the estate, which should be taken into consideration in determining the issue.
40. Thus, for mere writing of a letter by the appellant No. 2, making some statement affecting the right of her minor son in the property, which is repeated by the appellant No. 1 in subsequent documents, such right of the minor son can never extinguish, if such fact, admitted in the letter, is really found to be wrong.
41. In our view, there was no justification of denying such an opportunity to the appellants to prove the amended version on the ground of mere delay, the effect of which will be, to unjustly permit the opposing defendants to reap the benefit of an apparent admission, which is not conclusive proof of the fact contained in the pleading in accordance with the law of the land, and which may not be true. Moreover, for considering the question whether the amendment is a mala fide one, we cannot lose sight of the fact it is not even the case of the opposing defendants that by way of relinquishing his interest, Mahabir got any property of the Coparcenary in lieu of relinquishment. Thus, mala fide on the part of the appellants cannot be inferred from the apparent facts of the present case.
42. We, thus, find that the learned Single Judge, while rejecting the application for amendment of the written statement filed by the appellants, did not follow the well-accepted principles, which are required to be followed, while deciding this type of an application for amendment of the written statement. Thus, it was a case of improper exercise of discretion by the learned Trial Judge by not following the binding precedents, which justifies interference by the appellate Court.
43. We now propose to deal with the decisions cited by Mr. Anindya Mitra in opposing this appeal.
44. In the case of Gautam Sarup v. Leela Jetly and Ors. (supra), a two-Judges-Bench of the Supreme Court was dealing with the question whether admission in the written statement can be withdrawn and while dealing with such question, the said Bench principally relied upon the decision of the Supreme Court of Modi Spg. & Wvg. Mills Co. Ltd. (supra), and ultimately, came to the conclusion that a categorical admission cannot be withdrawn, but, in a given case, it may be explained or clarified. According to the said decision, the question of giving opportunity of offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and the character thereof. It is further pointed out that an explanation can be offered provided there is any scope therefore. A clarification, the decision proceeded, may be made where the same is needed. Their Lordships further held that an admission made in a pleading should not be treated in the same manner as an admission in a document and an admission made by a party to the lis, is admissible against him proprio vigore.
45. It, however, appears that while making the above observation that admission in pleading is fatal, the said two-Judges-Bench did not take into consideration, the first four decisions cited by us in this judgment, wherein it has been clearly held that an admission is not conclusive prove of a fact and that in a given situation, there is scope of withdrawal of the admission if the same is vitiated by fraud, undue influence, etc. and at the same time, the party making such admission can also prove that "the fact allegedly admitted" was not correct. Therefore, the aforesaid proposition laid down by the two-Judges-Bench mentioned above cannot be treated as an absolute proposition of law that the admission made in court proceedings cannot be withdrawn when the said decision did not notice of the earlier decisions of larger Bench disclosing the circumstances when even the admission is not binding.
46. Moreover, if even a compromise decree recorded by the Court can be successfully challenged on the ground of fraud etc. as provided in the Explanation added to Order 23 Rule 3 of the Code by filing an application before the same Court after recording of the compromise, see
47. In the case of M. Venkataramana Hebbar (supra), another two-Judges-Bench of the Supreme Court held that if the averments in the plaint are not denied in the written statement, the said averment would be deemed to have been admitted and in terms of Section 58 of the Evidence Act, facts admitted need not be proved. We do not for a moment dispute with the aforesaid position of law. However, the question before us is, if a party, before the trial commences, wants to amend his previous written statement seeking withdrawal of admission made therein on the ground that the same was vitiated, or if such party wants to prove that the admission made therein were really wrong statement, whether the Court will permit such party to amend the pleading to prove such fact. In our view, in the case of M. Venkataramana Hebbar (supra), the Supreme Court had no occasion to consider such question and the same does not lay down any such proposition of law that even if such statement was vitiated by fraud, undue influence, mistake, etc., the party, a victim of fraud etc, will not be entitled to prove the ground which vitiated the admission.
48. In the case of Heeralal (supra), a two-Judges-Bench of Supreme Court held that once the written statement contains an admission in favour of the plaintiff, by amendment, such admission of the defendant cannot be allowed to be withdrawn if such withdrawal amounts to totally displacing the case of the plaintiff, which would cause him irretrievable prejudice. We find that in the said decision also, the Supreme Court had no occasion to consider whether allegation of obtaining admission by fraud or under influence should be permitted to be taken or whether an opportunity to prove that such admitted fact was really incorrect, should be given by way of amendment. In our opinion, in view of the decisions referred to earlier by us, a party should be permitted to take such plea by way of amendment and the onus of proving that the alleged admission was vitiated or that the statement made by way of admission was not correct, would be upon him.
49. In the case of T.L. Muddukrishana and Anr. (supra), the question was whether a relief barred by limitation can be added by way of amendment of plaint. The case before us does not deal with one for amendment of plaint but is one of amendment of the written statement which should be more liberally construed and at the same time, the suit being one for partition, no question of taking a barred plea at the instance of the defendant arises because of the fact that in the case before us, both the original plaintiffs and the transposed plaintiffs, have accepted the position that Mahabir''s heirs, the appellants, are co-sharers whereas two of the defendants are denying such case. Therefore, in the present case the plea sought to be taken cannot be said to be barred by any law for the time being in force, as even today, the appellants can file a suit for partition and such suit will not be, on the face of it, barred by limitation because the appellants would be entitled to take the benefit exemption indicated in Section 17 of the Limitation Act, although on merit, ultimately the suit may fail if the appellants fail to prove their new case by giving cogent evidence. As pointed out by the Supreme Court in the case of
50. In the case of Radhika Devi (supra), in a suit for partition filed in the year 1988, in the written statement, the respondent took specific plea that a gift was made in their favour. In spite of such defence, the appellant did not take any step for annulment of the said deed of gift alleging that the same was obtained illegally. After three years, an application for amendment of plaint was filed for annulling the said deed of gift. In such circumstances, the Supreme Court was of the view that such an amendment should not be allowed as the period for limitation for avoiding the deed of gift had already expired even after the discloser of the gift in the written statement. In the case before us, the appellants are not party to any deed or proceedings where their right has been declared to have been extinguished. Even in the alleged arbitration proceeding, they were not parties. In such a case, there is no bar of withdrawing the admission if the same is successfully withdrawn by leading sufficient evidence of fraud or undue influence or proving that Mahabir really did not lawfully relinquish his share in the property. Therefore, at the stage of amendment, the Court should not stand in the way of appellant in taking such plea. We, thus, find that the said decision has no application to the fact of the present case.
51. In the case of Munilal (supra) the question was whether an amendment of plaint can be allowed thereby, seeking to introduce the relief, which was barred on the date of filing such application. The Supreme Court dismissed such application for amendment. For the selfsame reasons indicated by us while considering the earlier decision, the principles laid down therein is not applicable to the fact of the present case.
52. The case of K. Raheja Constructions Ltd. (supra) was one where the question was whether an application for amendment of plaint should be allowed after the lapse of seven years from the date of filing of the suit when the relief was barred by limitation. The said decision cannot have any application to the fact of the present case dealing with application for amendment of written statement in a suit for partition where the plaintiffs have accepted the appellants as co-sharers and the question of limitation is a disputed question of fact depending upon the proof of fraud, undue influence or on the question of ouster of a co-sharer from the joint property, etc.
53. In the case of Haji Mohammed Ishaq (supra), the plaintiff filed a suit for recovery of Rs. 99,000/- being balance of price of 630 bags of tobacco supplied by it to the defendant. The Trial Court decreed the suit and while the appeal was in the High Court and after three years from the date of the decree, the defence sought amendment of the written statement and permission to adduce additional evidence. The High Court set aside the judgment of the Trial Court, and remitted the matter back to the Trial Court to retry the case after giving opportunity to the parties to adduce further evidence and left the matter of amendment of written statement to the Trial Court for consideration.
54. On appeal, the Supreme Court set aside the order of the High Court and directed the High Court to dispose of the application of the appellant for permission to amend the written statement and to adduce additional evidence and, thereafter, to decide the appeal on evidence. The High Court, thereafter, declined the prayer of the appellant for amendment of the written statement for adducing additional evidence. In appeal, the Supreme Court affirmed the order of the High Court. While dismissing the appeal, the Supreme Court was of the view that the amendment of written statement if permitted, at that stage would have completely changed the nature of the original defence and would have brought about an entirely new plea, which was never taken up at the stage of original proceedings. We fail to appreciate how the said decision can have any application to a case where the suit has not yet commenced for trial and at the same time, some of the parties including the plaintiffs, are supporting amended version of the appellant.
55. In the case of C.M. Lodha (supra), the suit for partition and possession was filed in 1966 the plaintiff was excluded from property in question within his knowledge from the year 1943-44 and the allegation of oral demand for partition in the year 1954 was not proved. In such a case, it was held that limitation began from the time of exclusion and the suit was time barred. We are at a loss to appreciate how the said decision is of any help to the respondent in a case where the plaintiffs from the very beginning have admitted the appellants as a co-sharers and the appellants have, as the ground of withdrawal of admission, taken the plea of fraud, undue influence, fear and mistake, which can only be decided after taking evidence.
56. We consequently find that the decisions cited by Mr. Anindya Mitra are of no avail to his client.
57. Before parting, we cannot resist the temptation of quoting the following observations of the Supreme Court in the case of
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
58. In the case before us, we have already pointed out that we are unable to infer mala fide on the part of the appellants. It is not a case where the inconvenience caused to the opposing defendants for the delayed amendment cannot be compensated by costs. If we allow the amendment, the appellants would merely get the opportunity to prove that their predecessor did not relinquish his share. If he really relinquished his share lawfully, such fact will be established even on the basis of evidence that would be placed on record and in that event, there will be no question of causing injustice to the opposing defendants. The opposing defendants should not be afraid of facing the truth on basis of evidence when an alleged admission is never a conclusive proof of the fact admitted by the other side.
59. On consideration of the entire materials on record, we find that the learned Trial Judge erred in law in dismissing the application for amendment of the written statement filed by the appellant by not following the well-accepted principles, which ought to have been followed in deciding the application in question, and such illegality has occasioned failure of justice and caused irreparable injury to the appellants.
60. We, thus, set aside the order impugned and allow the application for amendment of the written statement filed by the appellants on payment of costs of Rs. 25,000/- to be paid by the appellants to the each of the defendant Nos. 2 and 4 within a fortnight. The opposing defendants will be entitled to file a rejoinder to the amended written statement for controverting the amended version of the appellants.
J.N. Patel, C.J.
61. I agree.
Later:
62. After this order is passed, Mr. Ghosh, the learned advocate appearing on behalf of the defendant No. 4, prays for stay of operation of our order. In view of what have been stated above, we find no reason to stay our order. The prayer for stay is refused.
63. Photostat certified copy of this judgment and order be made available to the parties by day after tomorrow.
