Amendments to pleadings should be necessary for proper adjudication and should not cause prejudice or injustice to the other party. Amendments seeking to set up a totally new case or withdraw admissions should not be permitted.

Hima Kohli, J.;—

1. This application has been filed by the defendant under Order VI Rule 17 CPC praying inter alia for permission to amend the written statement.

2. The brief background of the present case is that the plaintiff, who is the sister of the defendant, has instituted the accompanying suit for partition, permanent injunction and rendition of accounts against her brother, the defendant herein, praying inter alia that a decree of partition be passed, declaring her to be the 50% shareholder in the property bearing No.41, Prithvi Raj Road, New Delhi and 50% shareholder in the movable properties owned by the father of the parties, i.e., late Shri R.G.Nayar. Apart from the aforesaid relief, the plaintiff has also prayed for a decree of rendition of accounts and permanent injunction against the defendant.

3. The present suit was registered on 27.05.2011 and notice was issued to the defendant returnable before the Joint Registrar on 01.09.2011. Appearance was entered on behalf of the defendant on 01.09.2011 and a written statement was filed on 18.10.2011. Replication to the written statement was filed by the plaintiff on 14.11.2011. Admission and denial of documents was concluded on 25.01.2012 and thereafter the present amendment application was filed by the defendant on 05.05.2012. In the present application, the defendant seeks permission to amend the preliminary objections taken in the written statement by adding para 8 and renumbering the existing para 8 as para 9.

4. Mr. R.P. Sharma, learned counsel for the defendant stated that the proposed amendment is bona fide and is sought to be incorporated in the written statement for giving effect to Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as „the Act’). He submitted that the defendant had pleaded in paras 1 to 12 of the written statement that the grandfather of the parties, late Shri Lachhmandas Nayar had left a registered will that had been probated by the High Court of Bombay vide order dated 11.08.1972 passed in Probate Petition No.350/1969 and as per the said will, the immovable property had to vest in equal shares in favour of seven male members of the family of late Shri Lachhmandas Nayar. The father of the parties herein, Shri R.G. Nayar had got 1/7th undivided share in Shri Lachhmandas Nayar HUF and the income in his hand had accrued out of the immovable property that was left by late Shri Lachhmandas Nayar and further that Shri R.G. Nayar did not have his separate or independent income.

5. It was submitted on behalf of the defendant that notwithstanding the fact that late Shri R.G. Nayar had purchased the suit premises in joint name alongwith his wife, the money for purchasing the same was generated out of various movable and immovable properties left by his father, late Shri Lachhmandas Nayar and as such the suit premises had become a joint Hindu family property of late Shri R.G. Nayar, who was the Karta of R.G. Nayar HUF and upon his demise, his son, Shri Harish Nayar, the defendant herein became the Karta of R.G. Nayar HUF and on the basis of the explanation to sub-section (3) of Section 6 of the Act, partition of the properties of late Shri Lachhmandas Nayar would have to take place as if Shri R.G. Nayar was alive. He submitted that Shri R.G. Nayar’s family comprised of himself, his son (the defendant herein), his daughter (the plaintiff herein), a grandson and a great grandson and therefore, each of the aforesaid persons would acquire 1/5th share in the movable and immovable properties held by Shri R.G. Nayar and upon his demise, his 1/5th share would further get divided into five shares and the share of the plaintiff would be 3/10th and that of the remaining HUF of which the defendant is the Karta, would be 7/10th.

6. It is submitted that in view of the above legal position, the written statement filed by the defendant is required to be amended so as to clarify that in the absence of any will left by late Shri R.G. Nayar, the sui