MANJIT SINGH Vs. PARVATI DEVI

JUDGEMENT

(1.) THE plaintiff's application for amendment of the plaint seeking for inclusion of a prayer that the sale deed executed by the first defendant on 31.05.2004 in favour of defendant No.2 was liable to be set aside, was rejected as barred by limitation. The reasoning of the trial Court was that the contention of the defendant that she had executed a sale deed on 31.05.2004 had gone uncontroverted and since the application for amendment was moved only in December, 2011, the petition was barred by limitation. In so doing, the trial Court has observed that plaintiff could have challenged the sale deed only by May 2007.

(2.) THE entire reasoning of the trial Court is erroneous. The suit is filed by a daughter for a 1/3rd share in respect of the estate of her father, claiming as heir. The first defendant is mother, who pleads that there is a Will in her favour. The propounder has to establish the Will and if it is established, the plaintiff's suit will be dismissed. However, if the Will was not genuine, then the daughter would be entitled to a 1/3rd share as a legal heir and any sale by the widow claiming to be absolute owner will not bind her. Even a prayer for setting aside the sale executed by the first defendant was unnecessary. When the plaintiff was seeking for an amendment, it must be taken that she was, literally in legal effect, trying to contend that the sale would not bind her and that she would be entitled to 1/3rd share in respect of the property wrongly conveyed including her share also. The prayer for setting aside sought to be brought through amendment ought to have been construed as euphemism for contending that the sale by the first defendant was not binding on the plaintiff. So long as such a prayer was made within 12 years from the date when sale was made, that is a period when the purchaser could have claimed by ouster or adverse possession from the date of purchase, then the amendment sought could not be taken as barred in law.