TaxTMI 
TaxTMI 
2015 (9) TMI 1715
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.... respectively, of the predeceased son, viz., Mahabir Prasad of Motilal Kajaria. In the Partition Suit, Defendant Nos. 5 and 12 filed a joint written statement on 16.08.1979, inter alia, stating as under: 1. These Defendants state that there is no cause of action against these Defendants and these Defendants are unnecessary parties and as such the suit against these Defendants should be dismissed with costs,... a) xxx b) In the year 1942, the said Mahabir Prasad Kajaria, since deceased separated from his father Motilal Kajaria since deceased and his brothers, namely the Defendants No. 1 to 4 in food, estate and business. Since his separation from his father and brothers the said Mahabir Prasad Kajaria was carrying on his independent business and holding his own separate property. The said "Mahabir Prasad Kajaria" also renounced all his interests in all the properties and assets of his father the said Motilal Kajaria since deceased. c) These Defendants state that neither of them is a co-sharer for the Premises No. 6, Russel Street, Calcutta and nor they have any right title or interest whatsoever in the said premises. These Defendants further state that after the death of Mot....
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....ers in food, estate and business in 1942. He renounced all his right, title and interests in the moveable and immoveable properties of his father the said Motilal Kajaria. The said Mahabir Prasad died in 1949. Since Mahabir Prasad Kajaria separated from his father he was carrying on his independent business and also acquired properties. 7. On 13.12.1979, the Petitioner herein, who is Defendant No. 4, had also filed his written statement on the same lines indicated above. 8. On 02.07.1980, the learned Single Judge, on an application for perjury, had recorded the following findings: Pannalal Kajaria had three sons Matilal, Jaharmal and Onkarmal Kajaria. Before the death of Motilal Kajaria on 5th June, 1952 his second son, Mahabir Prasad Kajaria was separated from him in 1942 in food and in estate and renounced all his claim over the properties of Motilal Kajaria. ... There was a declaration given by Smt. Ginia Devi Kajaria, widow of Mahabir Prasad Kajaria on 25th February, 1956 before the Joint Arbitrators stating that her husband Mahabir Kajaria separated himself from his father Matilal Kajaria and his brothers in food, estate and business renounced his right title and interes....
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....nd that the learned Single Judge, while rejecting the application for amendment of the written statement filed by the Appellants, did not follow the well-accepted principles, which are required to be followed, while deciding this type of an application for amendment of the written statement. Thus, it was a case of improper exercise of discretion by the learned Trial Judge by not following the binding precedents, which justified interference by the appellate Court. 15. We are afraid the view taken in the impugned judgment is not true to facts. Even according to Defendant Nos. 5 and 12, they had their separate property and they were doing independent business. In the affidavit filed on 29.11.1978 before the High Court (Annexure-P5), it is stated as follows: 1. I am a Respondent No. 5 herein and Smt. Giniya Devi Kajaria, Respondent No. 12 is my mother and I am acquainted with the facts and circumstances of this case and as such I am competent to affirm this affidavit on behalf and on behalf of my mother Smt. Giniya Devi Kajaria the Respondent No. 12. I have read a copy of the Notice of Motion taken out by the Advocate of the Petitioner on 19th September, 1978 and a petition affirme....
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....s serving as my employee in my firm M/s. Evergreen Industries at Sonepat Haryana at a monthly salary of Rs. 400/- per month upto the year 1972 and was staying at Sonepat Haryana till he was under my service. 16. The clear stand taken by Defendant No. 5 when he was aged 37 and when he was in active business is that his father had separated from the grandfather in the year 1942 and since then, he was carrying on independent business and holding separate property. It is crucially relevant to note that the declaration of Defendant No. 12 before the Arbitrators regarding the relinquishment was produced by them only. 17. Learned Counsel for Defendant Nos. 5 and 12, in the impugned order has placed heavy relevance on Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Anr. (1984) Supp. SCC 594. It was a case where the Plaintiff moved an application for amendment of the plaint regarding the relationship of the second Defendant. It was stated in the plaint that he was the uterine brother of one R. Later, an application for amendment was moved for deletion of the word "uterine" from the plaint. The Trial Court allowed the application but in Revision, the High Court set aside the order. While....
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.... made in the application for amendment of the written statement, it cannot be said that in fact neither any admission was made by the Appellant in his original written statement nor had the Appellant sought to withdraw such admission made by him in his written statement. That apart, after a careful reading of the application for amendment of the written statement, we are of the view that the Appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the Appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence. 19. The learned Counsel appearing for the Appellant mainly referred to three Judgments of this Court. In Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. (1976) 4 SCC 320, it was held as follows at Paragraph-10: 10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the Plaintiff....
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....e only illustrative and not exhaustive. 22. In the case before us, we are afraid, many of the factors referred to above, have not been satisfied. It is significant to note that Defendant Nos. 5 and 12, after moving an application for amendment withdrawing the admissions made in the written statement, have filed a substantive suit attacking the alleged relinquishment of their claim in the family property and we are informed that the trial is in progress. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendant Nos. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty five years, we are afraid, cannot be permitted. 23. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case be....
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....tion for amendment that: 11. ... Mahabir Prasad Kajaria died at age of 24 years on 7th May, 1949 when the Defendant No. 5 was only 2 years and the Defendant No. 12 was only 21 years. Till the death of Mahabir and even thereafter, the Petitioners had been getting benefits from income of the joint properties. The Defendant No. 5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties. The Petitioners after the death of Mahabir, they continued to live in the joint family as members and till now members of the joint family. In the marriage of the two sisters of the Defendant No. 5 Kusum and Bina (now after marriage Smt. Kusum Tulsian and Smt. Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are well known to all the family members and their relations. 26. In the counter affidavit filed before this Court, Defendant Nos. 5 and 12 have stated as follows: The alleged letter of 1956 allegedly issued by the widow of Mahabir Prasad used in the arbitration proceedings where she was not a party admitting relinquishment of the share of her husband and therea....