R K MALHOTRA Vs. SANTOSH KAUR

JUDGEMENT

(1.) This order will dispose of an application for amendment of the written statement under Order 6 Rule 17 and Section 151 of the Code of Civil Procedure, 1908 (for short CPC) whereby para 7 of the written statement is sought to be amended by the defendant. Plaintiff Filed a reply opposing the application.

(2.) Brief facts necessary for disposal of the application are: that the plaintiff filed a suit for partition of the property bearing Municipal No. 11-J-33/A, : Lajpat Nagar - II, New Delhi (hereinafter referred to as the suit property) alleging therein that her grandmother Smt. Bhagwanti Devi owned properties in Pakistan and after partition she acquired and got a plot measuring 100 sq. yards, on which two storey building was constructed and after the death of Smt. Bhagwanti Devi, the property suit was mutated/transferred in the name of the father Sh. Joginder Singh Malhotra, husband of the defendant, who till his death was occupying and staying therein with his family; ground floor of the suit property was being used by the family members of the defendant and her sons who are doing business of denting and painting of three wheeler scooters. Sh. Joginder Singh expired on 5.1.90 and after his death, it is alleged that certain blank papers were got signed from the plaintiff and the suit property was got mutated in the name of the defendant with an understanding plaintiff would be given her share, plaintiff signed the blank papers in good faith. Mr. Joginder Singh Malhotra. left behind four married daughters (including the plaintiff) three sons and his wile (defendant), who are equally entitled to l/8th undivided share of the suit property. It was pleaded that the suit property was ancestral and was inherited from the forefathers, as such under the Indian Succession Act the same devolved upon all the legal heirs in equal shares and hence the plaintiff is entitled to 1/8th shares (undivided) in the suit property. The plaintiff amended the plaint which was allowed vide orders dated 28.7.98 (IA. 5936/98).

(3.) The defendant filed a written statement taking several preliminary objections submitting therein that as per plaintiffs own showing the defendant with her family members has been in sole possession and occupation of the suit property; that the plaintiff is not the member of the joint family of late Sh. Joginder Singh Malhotra, that the suit is barred by limitation and by the provisions of Section 41 (h) of Specific Relief Act. In the written statement is was pleaded that the plaintiff or other legal heirs has no share in the ancestral property; opiy the land underneath was an ancestral property in character and not the built up superstructure thereon; and that the land in question being leasehold property under the Government of India and the seam is indivisible. In paragraph 7 of the written statement it is pleaded as under ;