Amendments to pleadings should be liberally allowed to resolve the real controversy, particularly regarding property ownership derived from a registered Will, which does not create ancestral property rights.

Judgment

Mr. Gurbir Singh, J.

Challenge in this revision petition is to the order dated 19.11.2022 (wrongly mentioned as 15.10.2022) (Annexure P-1), passed by learned Civil Judge (Junior Division), Gurugram (for brevity – Trial Court), whereby application moved by the petitioners/defendants no.4, 6 and 7 (hereinafter referred to as – the defendants), seeking amendment of written statement, has been dismissed.

2. The brief facts of the case are that plaintiffs/respondents no.1 to 3 (hereinafter referred to as – the plaintiffs) filed a suit for declaration and partition against the defendants, seeking consequential relief of permanent injunction inter alia on the ground that the suit property was ancestral property in the hands of their father late Shri Ravi Dutt Sharma, when he inherited the same from his father late Shri Ram Chander Bhardwaj and plaintiffs have co-parcenary rights in the suit property. The plaintiffs have 1/8th share each i.e. 3/8th share in the suit property. The decree dated 10.06.1983 and mutation in the revenue record, pursuant to the said decree, are illegal, null and void and not binding upon the plaintiffs as the said decree was result of fraud. The sons of late Shri Ravi Dutt Sharma did not acquire any land during life time of Shri Ravi Dutt Sharma on the basis of said decree, which was never acted upon.

3. The defendants contested the suit, filed written statement and submitted that the plaintiffs have no right in the ancestral property and they were not co-parceners, when Shri Ravi Dutt Sharma died in the year 1966. Shri Ravi Dutt Sharma, in the family settlement, made all his five sons as joint owners of the suit property and said family settlement was confirmed in the judgment and decree dated 10.06.1983, passed by the competent Court. Since Shri Ravi Dutt Sharma died prior to the year 2005, the plaintiffs being daughters, could not have become the co-parceners in the suit property.

4. The written statement was originally filed on 29.04.2014. Thereafter, the plaintiffs sought amendment of the plaint, which was allowed vide order dated 17.10.2016. The defendants made the statement that written statement originally filed by them be read as amended written statement. Later, defendants moved application dated 08.04.2021, seeking amendment of their written statement. Plaintiffs contested the application and filed reply to the application. However, the said application was dismissed vide impugned order dated 19.11.2022.

5. Learned senior counsel appearing for the defendants has submitted that Civil Suit(OS) No.110 of 2021 by Baby Aranyee Sharma against defendants and others was filed and is pending in the Hon’ble High Court of Delhi for partition and other reliefs. The suit property of this case is also subject matter of that suit. While preparing written statement for filing in that suit, when her uncle Keshav Dutt Sharma was searching the documents, he found registered Will dated 27.04.1966, executed by late Shri Ram Chander Bhardwaj in favour of his three sons namely Ravi Dutt Sharma, Vishnu Dutt Sharma and Keshav Dutt Sharma. As a result of consultation with senior Advocates, it came to their knowledge that the suit property in question was never ancestral property in the hands of late Shri Ravi Dutt Sharma or the defendants. The written statement filed in the instant case was due to lack of understanding of Hindu Law and because of some communication gap between the counsel concerned and the defendants resulting in an incorrect opinion provided to the defendants. They could not take the plea that late Shri Ram Chander Bhardwaj, during his lifetime, was the sole and absolute owner of the suit property, having purchased the same from his own funds. He had left behind registered Will dated 27.04.1966. The property, which came in the hands of his sons, was self-acquired property. There was an oral family partition between said three sons, pursuant to which Late Shri Ravi Dutt Sharma became owner of the suit p