IMPORTANT POINT
A legal heir is bound by the actions of the common ancestor and cannot challenge them.

JUDGMENT

Manmeet Pritam Singh Arora, J. - This first appeal has been filed under Section 10 of the Delhi High Court Act, 1966, impugning the order dated 28.03.2023 passed by learned Single Judge of this Court in CS(OS) 53/2021, titled as Indupal Kaur Sehgal v. Dr. Davinder Pal Singh Rekhi & Ors. whereby an application filed by the Appellant under Order VI Rule 17 of the Code of Civil Procedure, 1908 (`CPC') for amending the plaint has been dismissed.

1.1. The Appellant herein is the plaintiff and the Respondent Nos. 1 to 3 herein are the defendants before the learned Single Judge in CS(OS) 53/2021. The present appeal has been contested by Respondent Nos. 1 and 2.

1.2. The Appellant herein has filed a suit for partition in respect of the property i.e., A-389, Defence Colony, New Delhi (`suit property') claiming here 1/4th share in the suit property of the late Sh. Prehlad Singh Rekhi i.e., the father of Appellant, who died on 04.12.2007 intestate.

Late Sh. Prehlad Singh Rekhi is the common ancestor of the parties to the suit being their father.

1.3. The Respondent Nos. 1 and 2 filed their joint written statement to the suit and alleged that the suit property had already been partitioned between late Sh. Prehlad Singh Rekhi and the said Respondents, vide decree of partition dated 28.05.1976 passed in the suit no. 75/1976. The suit property comprises ground floor, first floor and second floor. It is stated that as per the said decree dated 28.05.1976, the ground floor came to the share of late Sh. Prehlad Singh Rekhi, first floor with Respondent No.1 and second floor with Respondent No.2.

Respondent Nos. 1 and 2 contended that rights of the Appellant in the suit property, if any, on death of late Sh. Prehlad Singh Rekhi would have been limited to the ground floor, which was in exclusive possession and ownership of late Sh. Prehlad Singh Rekhi. Lastly, it was stated that the Appellant is left with no interest in the ground floor of the suit property, since she was given alternate immovable properties at Shadhara and Sangam Vihar in lieu of her share in ground floor of the suit property.

1.4. It is contended by the Appellant that she first learnt about the decree of partition dated 28.05.1976 upon perusing the joint written statement of Respondent Nos. 1 and 2 which has the effect of diminishing the estate of late Sh. Prehlad Singh Rekhi; and therefore, she moved an application under Order VI Rule 17 CPC for amending the pleadings and seeking addition of prayer clauses for declaring the said decree of partition dated 28.05.1976 as being null and void on the ground of fraud practiced by the common ancestor i.e., late Sh. Prehlad Singh Rekhi in collusion with Respondent Nos. 1 and 2 in the civil court.

1.5. The said application of the Appellant has been dismissed by the learned Single Judge vide the impugned order. The learned Single Judge observed that the amendment sought by the plaintiff is misplaced since by way of the application filed under Order VI Rule 17 CPC, the applicant seeks to change the very nature of the suit, which was originally filed for partition of the estate of late Sh. Prehlad Singh Rekhi.

Arguments of the Appellant i.e. plaintiff

2. The learned counsel for the Appellant stated that by way of the proposed amendment, the Appellant seek to challenge the validity and the effect of the decree of partition dated 28.05.1976 passed in suit no. 75/1976.

2.1. He stated that the Appellant has been unable to verify the existence of the decree dated 28.05.1976; however, assuming the same to be correct, it is the stand of the Appellant that the said decree was collusive and never intended to be acted upon by late Sh. Prehlad Singh Rekhi. He stated that this is evidenced from the fact that despite the said decree, the suit property continued to stand in the name of late Sh. Prehlad Singh Rekhi and this position has remained unchanged.

2.2. He stated that the said decree has been obtained by late Sh. Prehlad Singh Rekhi and the Responden