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DAMAYANTHI versus D.F.PHILIPS

High Court of Madras

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Damayanthi v. D.F.Philips - CRP.PD.Nos.598 of 2007 [2007] RD-TN 841 (7 March 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 7.3.2007

CORAM

THE HON'BLE MR.JUSTICE S.ASHOK KUMAR

CRP(PD) Nos. 598 to 600 of 2007

and

M.P.Nos. 1+1+1 of 2007

Damayanthi Kailasam ... Petitioner in all CRPs Vs.

1. Mrs.D.F.Philips

2. Lt.Col.C.C.Philips

3. Mrs.Rajeswari Shinde

4. Mrs.Jayanthi ... Respondents in all CRPs

Civil Revision Petition No:598 of 2007 filed against the common fair and decretal order dated 12.2.2007 made in I.A.No. 1805 of 2005 in O.S.No. 386 of 2004 on the file of the learned Additional District Judge (FTC-I), Chengalpattu.

Civil Revision Petition No:599 of 2007 filed against the common fair and decretal order dated 12.2.2007 made in I.A.No. 1123 of 2006 in O.S.No. 386 of 2004 on the file of the learned Additional District Judge (FTC-I), Chengalpattu. Civil Revision Petition No:598 of 2007 filed against the common fair and decretal order dated 12.2.2007 made in I.A.No. 56 of 2006 in O.S.No. 386 of 2004 on the file of the learned Additional District Judge (FTC-I), Chengalpattu. For Petitioner : Mr.R.Thiagarajan (in all CRPs)

For Respondent : Mr.R.Mohan

(in all CRPs) Mr.K.Dharanidharan Mr.P.Ranganatha Reddy

COMMON ORDER

Aggrieved by the order of the learned Additional District Judge, Chengalpattu in allowing the Interlocutory Applications filed by the defendants 1,2 and 4, under Order 8, Rule 9 CPC seeking permission to receive additional written statement, these CRPs have been filed by the revision petitioner/plaintiff.

2. For convenience, the pleadings in I.A.No:1805 of 2005 will be taken up and the parties will be referred to as arrayed in the said application. The suit has been filed by the revision petitioner/plaintiff as against the respondents herein for partition of the suit properties and to allot 1/6th share to her. The defendants filed written statements. Pending the suit, the first defendant filed the impugned Interlocutory Application to receive additional written statement. In the said application, the first defendant contended that the plaintiff has changed her attitude after filing of her original written statement and as there is no hope or sign of her reforming herself, she had decided to file the additional written statement to correctly set out her legal rights against the plaintiff. According to the first defendant, the property at halls Road, Egmore was the joint property of the first defendant and her late husband having been jointly acquired by them with their common funds including the funds raised by the sale of jewels belonging to the first defendant. The joint and mutual Will dated 8.5.1989 executed by the first defendant and her late husband specifically recites that the the properties being self acquired properties of the first defendant and her late husband, the same having been acquired by them through their self earnings and amounts. The Will further declares that in the event of death of either one of them due to natural causes or otherwise, both movables and immovable properties of the deceased shall devolve on the survivor of us from the date of death of one of the deceased an the survivor shall have absolute right over such devolved properties inclusive of the rights of sale, conveyance and what not. Therefore the defendant submits that the plaintiff cannot pretend ignorance about this recitals and the sanctity of this solemn document cannot be attacked either by the plaintiff or by any other person. It is also admitted by the first defendant that steps were initially taken by her in O.P.No:485 of 1993 in the High Court for grant of Letters of Administration. But due to technical reasons, it was withdrawn and this does not meant that this defendant is not the joint owner of the property. Further, it is not permissible in law for the plaintiff to state that UTI units were purchased in the name of this defendant for the sake of convenience and the plaintiff cannot contest the fact that it is the sale proceeds of the Halls Road property which was utlised for the investment in the UTI and for the purchase of the Neelangarai Property. As joint owner she was already entitled to half share in them. As the survivor as per the terms of the said Will, she has become owner of the other half share. Thus she is the absolute and full owner of all the suit and other properties and therefore, the plaintiff cannot question the same. Even otherwise, the purchases made by her husband are in the name of his wife and for her benefits and therefore the daughter has no locus standi to question the same. The plea of benami transactions is barred under Sections 2 and 4 of the Benami Act, 1988. The plaintiff cannot claim any relief as a Beneficiary or as a Sharer. The first defendant is in absolute possession and enjoyment of the house. The claim as against Neelangarai house has become infructuous since the first defendant settled the same upon the 2nd and 4th defendants by a registered settlement deed. Regarding UTI Units, they stand in the name of the first defendant and they are her absolute properties.

3. The first defendant stated that the plaintiff has been torturing her and she is filing the additional written statement to vindicate her stand and to uphold her rights and prays that the court has to take note of the subsequent events to mould the reliefs to render proper justice to the parties and she will be put to substantial loss if the additional written statement is not received by the court.

4. Similar pleadings have been averred in I.A.No:1123 of 2007 by the second defendant and in I.A.No.56 of 2007 by the 4th defendant seeking permission to file additional written statement. The plaintiff contested the said applications stating that the Settlement Deed dated 9.5.2003 purported to have been executed by her mother the first defendant is a fraudulent one as she has crossed 89 years and she is mentally and physically very weak and is not capable of attending to her own affairs and therefore the same is not binding on her. After such settlement the defendants 2 and 4 herein instigated the first defendant to file the present additional written statement justifying their acts. She has also filed Tr.CMP.NO.11564 of 2005 before the High Court as he 4th defendant is who is a Senior IAS officer and is trying to influence the Presiding officers through her colleagues employed in the Law Department, Revenue Department as well as the Police Department. The 2nd and 4th defendants have coerced the first defendant to sign in the affidavit of the additional written statement.

5. The learned additional District Judge, Chengalppatu, on a consideration of the pleadings of the parties and the submissions of the learned counsel appeared on either side allowed the petitions to file additional written statements on payment of cost of Rs.1000/= in each petition. Aggrieved of the same, the present CRPs are filed by the revision petitioner/plaintiff.

6. Mr.R.Thiagarajan, learned counsel appearing for the revision petitioner-plaintiff contended that in the original written statements fled by the defendants, there is a categorical admission in favour of the plaintiff and in such circumstance, if the proposed amendment is allowed, then it would take away the valuable right accrued to the plaintiff as the pleadings in the additional written statement are mutually destructive and they are contradictory to each other. Further the proposed amendment will change the character of the suit and it has to be proved that in spite of due diligence the party could not raise such pleadings before commencement of trial. The learned counsel further contended that the time gap in filing the additional written statements by the first, second an fourth defendants would show that their very intention is to drag on the proceedings. The learned additional District Judge has committed a wrong in exercising his discretionary power.

7. The learned Additional District Judge, Chengalpattu prima facie found that the house in Halls Road, Egmore was purchased by the late husband of the first defendant and herself from the common funds and this fact has been averred even in the earlier written statement filed by the first defendant. It is also rightly found by the learned Judge that even though the earlier O.P.No.485 of 1993 filed by the first defendant to get Letters of Administration, dismissal of the same and subsequent withdrawal of the set aside petition will not preclude or affect the first defendant in filing the Additional written statement. Even the challenge made by the plaintiff citing Section 213(1) of the Indian Succession Act has been rejected by the learned Judge holding that as per the amendment made to Section 213 (2) of the said Act, such stipulation will not apply to the Indian Christians and now there is no necessity for the first defendant to get the probate of the will or obtain letters of administration.

8. The learned Judge also found that the purchase of Neelangarai house from and out of the sale proceeds of the Halls Road property which was purchased from joint funds of the first defendant and her late husband has become the absolute property of the first defendant in view of the recital found in the Will. Further the Neelangarai property has also been settled by the first defendant in favour of the 2nd and 4th defendants. Further these aspects have been narrated even in the earlier original written statement and even some of the details which are contradictory or destructive is only by the "operation of law" or by the "Act of Law" in view of the amendment to Section 213(2) of the Hindu Succession Act, for which the first defendant cannot be blamed and therefore the plaintiff cannot object the filing of the additional written statement.

9. It is also found that in view of such amendment, she has become the absolute owner of the Units in the UTI investments and also the right in the Neelangarai House. The learned Judge has rightly relied upon the judgment reported in 1999 III CTC 52, wherein it is held that subsequent pleadings by defendant even though contradictory to the original written statement, could be taken in the form of additional written as plea of res judicaita and estoppel are legal pleas and cannot be seriously objected and to give a fair trial by affording adequate opportunities to both parties it is required that the grant of leave for filing additional written statement is just and necessary. A perusal of the order passed in the amendment applications would show that the learned additional District Judge has exercised such discretion in the right manner to meet the ends of justice as the approach of the court in granting leave to file additional pleadings should be positive and there is no absolute bar or impediment in allowing any additional written statement. Further, it is also rightly observed by the learned District Judge that all the pleadings including the defence raised in the additional written statement are subject to proof by the parties by letting in acceptable oral and documentary evidence and legal scrutiny by the court at the final hearing and therefore by allowing the applications on payment of cost, no prejudice will be caused to the plaintiff.

10. In this respect, before parting with the order, it is useful to refer to the judgement of the Hon'ble Supreme Court in Baldev Singh & Ors Etc., Vs. Manohar Singh & Anr.Etc., reported in 2006 (5) Supreme 943 wherein Their Lordships of the Apex Court have held the courts should be extremely liberal in granting prayer for amendment unless serious injustice or irreparable loss is caused to the other side. Wide power and unfettered discretion has been conferred on court to allow amendment of pleading in such manner and on such terms as it appears to the court just and proper. In that context it has been held as follows:- "....That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the later case. That being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint."

11. Therefore, the above decision of the Apex Court squarely applies to the facts of the present case, where the defendants have withdrawn their earlier version and taken a new defence. The above judgment is to the effect that even inconsistent pleas could be raised by the defendants in the written statements and amendments to that effect could be permitted. Under these circumstances, the allowing of the applications filed for receiving additional written statement by the trial court cannot be found fault with.

12. In fact, in the present case, in the original written statement filed by the first defendant has not admitted or conceded that the plaintiff is entitled for a share in the suit properties though the other defendants might have conceded the 1/6th right of the plaintiff. But, subsequently, a settlement has been effected by the first defendant settling the properties in favour of the defendants 2 and 4. Therefore, to substantiate the subsequent events they also want to raise such defence by way of filing the additional written statement, which has been rightly allowed by the trial court. For these reasons, I do not find any reason to interfere with the order of the learned Trial Judge.

13. As pointed out by the learned counsel for the respondents, since the first defendant is now aged 90 years, considering the fact that the suit should be disposed of earlier, the trial court is directed to dispose of the suit within a period of two months from the date of receipt of a copy of this order.

14. In the result, all the CRPs are dismissed with the direction as stated above. Consequently, connected MPs are also dismissed. No costs. gkv

Copy to:

Addl.District Judge

(FTC-I), Chengalpattu.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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