SHIRISH MAFATLAL SHAH Vs. CHAMPAGAURI CHANDULAL MEHTA, HAVING DIED DURING PENDENCY OF SUIT THROUGH HER L. R. AJAY J. MEHTA AND ANOTHER

JUDGEMENT

(1.) Petitioners, who claim to be the executors appointed under the will dated March 16, 1975 executed by one Sulata, widow of Surendra Chandulal Mehta, obtained probate of the will from the High Court of Judicature at Bombay. One of the properties which was owned by the deceased Sulata and in respect of which directions were given in the will was an immovable property known as 'Chandra Bhavan' situate at Shantikunj Society, Near Paldi Bus Stand, Ellisbridge, Ahmedabad. According to the petitioners in order to carry over the wishes of the deceased they are required to sell the said immovable property. They offered to sell the said property to Champagauri, who was mother-in-law of Sulata. Champagauri, however, offered to purchase the said property at a very low price. The petitioners were not inclined to sell the property to Champagauri at such a low price. In the meantime the petitioners came to know that Champagauri was attempting to sell the property. They, therefore, filed suit being Civil Suit No. 3830 of 1980 from which the present revision application arises against Champagauri praying amongst other things for a declaration that Champagauri had no right, title or interest whatsoever in the said immovable property and that she had no right to deal with, dispose of, alienate, encumber, part with possession or to induct any third party in possession thereof. The petitioners also sought permanent injunction against Champagauri who was defendant in the suit, to restrain her, her servants, agents and relatives from in any manner dealing with, disposing of, alienating, encumbering, mortgaging, parting with possession of or inducting any third party in possession of the said property. It would thus appear from the averments made in the plaint and the reliefs claimed that the main contention of the petitioners was that the defendant Champagauri had no right, title or interest in the said immovable property and that, therefore, she could not deal with or dispose it of. However, in the last sentence of paragraph 7 of the plaint it was stated, the defendant resides as a tenant in a portion of the said property.

(2.) Defendant Champagauri died during the pendency of the suit. It is an undisputed position that she had not filed any written statement before she died. After her death, opponents were brought on record. Opponent No. 1 Ajay J. Mehta who is the grandson of the deceased defendant Champagauri was brought on record as heir and legal representative of the deceased defendant Champagauri. In his written statement the defendant relying on the aforesaid statement made in paragraph 7 of the plaint to the effect that Champagauri was tenant in a portion of the property contended that as legal heir of Champagauri he was entitled to tenancy rights. It was contended that opponent No. 1 was residing with the deceased Champagauri at the time of her death and, therefoee, he acquired right as tenant under Section 5(ll)(c) of the Bombay Rent Act. It was in view of this plea taken in the written statement by opponent No. 1 that the pttitioners, who are plaintiffs, sought to amend the plaint by deleting the last sentence of paragraph 7 reproduced above. It may incidently be mentioned that the plaintiffs had twice amended the plaint before opponent No. 1 filed his written statement.

(3.) The application for amendment made by the petitioners was stringly opposed by the opponents. The learned Judge of the City Civil court after hearing the parties rejected the application of the petitioners for amendment of plaint mainly on the groundT that on account of admission made by the petitioners in their plaint a right had accrued to the opponents. Such admission in the pleadings being conclusive cannot be challenged. According to the learned Judge if the amendment was granted it would destroy the right accrued to the opponents.