Facts
Late Saheb Basakha Singh (grandfather the petitioner) owned a property bearing no. 5, Jantar Mantar Road, New Delhi – 110001. During his lifetime, he gifted the suit property to his son Sardar Daya Singh (F/O plaintiff and defendant No.1) vide a Gift Deed dated 07.03.1956. Then Sardar Daya Singh placed the suit property into a Hindu Undivided Family namely S. Daya Singh and Sons (HUF hereafter).
Sardar Amolak Singh passed away in 1998, leaving behind a Will dated 30.04.1998 in favor of his sister, the plaintiff herein. Thereafter, in 2010, the plaintiff being a co-owner of the suit property filed a suit for partition before this court, which was registered as CS(OS) 738/2010. During the pendency of the said suit, a Memorandum of Settlement dated 10.12.2011 was executed between the parties. It was agreed that the plaintiff had 20% undivided interest in the suit property and that an area equal to 20% of the overall area of the plot was agreed to be allocated to the plaintiff. The suit was decreed and disposed of on 23.11.2011 in terms of the aforesaid Memorandum of Agreement.
The plaintiff, thereafter on account of certain impediments by the defendants, decided that she was not interested to continue to own co-ownership with the defendants and requested for partition of the suit property.
Plaintiff’s Contention
The learned counsel for the plaintiff urged that earlier the suit was a preliminary decree ascertaining the shares of the parties and no final decree of partition for the suit property was passed. He relied on the judgments of the Supreme Court in the case of Maddineni Koteswara Rao v. Maddineni Bhaskara Rao & Anr. and Prema v. Nanje Gowda & Ors. With the cases, he argued that once a preliminary decree was passed, the court was free to amend the preliminary decree as there was no finality to the same.
Defendant’s Contention
The learned counsel for the defendants argued that the issues were already framed and the matter was fixed for final arguments. The parties had agreed that no evidence was needed to lead. Reliance was placed in the case of Subhash Chander Bhatia v. Raj Kumar Bhatia, and Yashaswi Aggarwal & Anr. v. Sh. Rakesh Aggarwal & Ors., to plead that allowing the amendment would change the entire nature of the suit, which would not be permissible.
Court’s Observation
The Hon’ble court held that the settled legal position was that a suit for partition stands disposed of only with the passing of a final decree. The court had jurisdiction to amend the share of parties suitably if a preliminary decree had been passed given with changed circumstances. Further, it stated that by the amendment, the suit shall remain a suit seeking a final decree of partition of the suit property. The only amendment sought by the present application for amendment was to modify the stated share of the plaintiff in the suit property.
The Court held that the reliance of cases Yashaswi Aggarwal & Anr. v. Sh. Rakesh Aggarwal & Ors. and Subhash Chander Bhatia v. Rajkumar Bhatia was misplaced.
Court’s Decision
At last, the Court held that according to the settled legal position of law, the application was accordingly allowed. The amended plaint was taken on record. Click here to view the Judgement.
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