DALIP SINGH Vs. SANT SINGH

JUDGEMENT

(1.) By this application under order VI Rule 17, Civil Procedure Code defendant no.2,ereinafter referred to as the applicant, seeks leave to amend the written statement filed sometime in September 1985, by incorporating two new paragraphs mentioned in the application. In substance, the applicant wants to raise a plea that he has become absolute owner of the back portion of the property bearing no.7/32, Roop Nagar, Delhi by virtue of a Will dated 27 October 1983 executed by late Sh.Sant Singh, co-owner of the suit property and defendant no.1 herein.

(2.) The application has emerged under the following circumstances :- The suit property originally belonged to one Sh.Man Singh, father of the plaintiff and defendant no.1. He had executed a Will on 1 September 1956, bequeathing the property to his wife, Smt.Jeevan Dei. Sh. Man Singh died on 22 June 1972 and his will was probated on 30 August 1973. Smt. Jeevan Dei, on her part, executed a will on 5 September 1974, bequeathing specific portions of the suit property to her two sons namely, Sh. Dalip Singh-the plaintiff and Sh.Sant Singh-defendant no.1. A site plan was also attached with the Will specifying the respective portions of two brothers. Smt.Jeevan Dei died on 29 June 1977 and on a joint application by the plaintiff and defendant no.1, High Court of Malawi, Central Africa, granted probate in respect of the said will. On the strength of the said probate the property was mutated by the DDA in the joint names of the plaintiff and defendant no.1.

(3.) It seems that after mutation defendant no.1 entered into an agreement, dated 16 January 1981, to sell his share in the property with the applicant. Perhaps there was some default on the part of defendant no.1 in not executing the sale deed in favour of the applicant with the result that in the year 1981 the applicant filed a suit (No.1399/81) against defendant no.1 for specific performance of the said agreement and on 17 November 1983 a consent decree was passed in favour of the applicant. Thereafter, admittedly, the applicant has been in possession of the back portion of the property but sale deed in respect thereof has not yet been executed. There being some dispute with regard to the area in possession and occupation of the applicant, the plaintiff filed the present suit for partition of the entire property by metes and bounds on the plea that sale deed having not been executed in favour of the applicant-defendant no.2, the title in the property still remained with defendant no.1, there had been no partition of the property by metes and bounds between the plaintiff and defendant no.1, he sues for partition of the same. However, confronted with the situation that late Smt.Jeevan Dei had already effected partition of the shares which were to go to her sons, the suit for partition may not be maintainable, the plaintiff, with the permission of the court, amended the plaint; converted it into a suit for possession of portion of the suit property by way of partition or otherwise, with an alternative prayer for possession of the strip of land admeasuring 56 sq.yards, which was alleged to have been encroached upon by the applicant.