Vivek Premkumar Gupta & Anr. vs Prabhat Kumar Swarup & Ors.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Date of decision: 31 AUGUST, 2026
IN THE MATTER OF:
# CNR No. DLHC010013352022
I.A. 47380/2024
IN
+ CS(OS) 86/2023
VIVEK PREMKUMAR GUPTA & ANR. .....Plaintiffs
Through: Appearance not given
versus
PRABHAT KUMAR SWARUP & ORS ......Defendants
Through: Mr. Peeyoosh Kalra, Mr. Vinayak
Topa and Mr. Yash Sharma,
Advocates for D-1-D4
Mr. Abhishek Gupta, Advocate for D-
5/DDA
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
I.A. 47380/2024
1. The Plaintiff has filed the instant application under Order VI Rule 17
of the CPC seeking amendment of the plaint.
2. The instant Suit has originally been filed for partition of properties of
Late Sh. Gopal Raj Swarup, who passed away on 28.04.1983, leaving
behind his wife, Jyotsana Kumari Swarup, three daughters, Meera Gupta,
Rekha Jalan and Neera Jalan, and one son, Prabhat Swarup.
3. It is stated that the Plaintiffs are the children of Meera Gupta, who
passed away on 29.04.2019. The Defendants are the son, grandson and
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daughters of Late Sh. Gopal Raj Swarup.
4. It is the case of the Plaintiffs that the joint family owned movable and
immovable properties described in the plaint which includes the joint family
house at residential plot No. C-33, now known as property bearing No. D-
15, Maharani Bagh, New Delhi-110065 having an area of about 800 sq. yds.
It is stated that all the members of the family were living together. It is the
case of the Plaintiffs that on the death of Sh. Gopal Raj Swarup, who passed
away intestate, his entire estate devolved on his wife and four children, each
th
having 1/5 share in accordance with law.
5. It is the case of the Plaintiffs that the suit property has been purchased
by Late Sh. Gopal Raj Swarup, the maternal grandfather of the Plaintiffs
through his money and on the said plot, a building has been constructed. It is
stated that Jyotsana Kumari Swarup, i.e., maternal grandmother of the
Plaintiffs passed away on 05.03.1985 and on her death the property was to
devolve between her three daughters and one son each getting their share.
6. It is stated that Late Smt. Meera Gupta, i.e., the mother of the
Plaintiffs passed away on 29.04.2019 and before her death, she had executed
a Will dated 01.04.2017 bequeathing her entire estate in favour of the
th
Plaintiffs. The said Will is a registered Will and therefore the 1/4 share in
the suit property now devolves on the Plaintiffs herein on the death of their
mother on 29.04.2019.
7. The plaint discloses that the parties were having cordial relationship
with each other but certain disputes arose between the family more
particularly regarding certain properties at Village Naraina of District
Muzffarnagar, Uttar Pradesh. It is the case of the Plaintiffs that during
mutation proceedings of the aforesaid land at Village Naraina of District
Muzffarnagar, Uttar Pradesh, which is an agricultural land, it was found that
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after the demise of the Plaintiffs’ mother, Defendant No.1, i.e., the son of
Late Sh. Gopal Raj Swarup and the matrimonial uncle of the Plaintiffs
herein, executed sale deeds in favour of unknown persons and
misappropriated huge amounts of money causing loss to the Plaintiffs.
8. It is stated that the situation has worsened after the death of the
mother of the Plaintiffs. It is also stated that the Plaintiffs have come to
know that Defendant No.3, i.e., Rekah Jalan had given a Release Deed dated
21.02.2006 in favour of Defendant No.1. It is the case of the Plaintiffs that
Defendant No.3 could not have executed this Release Deed in favour of
Defendant No.1. It is also the case of the Plaintiffs that the Defendants are
relying on a family settlement dated 01.07.1977 which finds mention in the
Release Deed. It is also stated that there is also a Will dated 21.01.1985
which was executed by Late Smt. Jyotsana Kumari Swarup in favour of
Defendant No.1 which has also not seen the light of the day.
9. All other allegations in the plaint are not being discussed as they
would not have any implication on the application under Order VI Rule 17
of the CPC, which is the subject matter in the present application.
10. It is also stated that Defendant No.3, i.e., Rekha Jalan had executed a
deed of conveyance assigning herself the role of purchaser-transferor of the
Suit Property and got it registered in her name. Challenging the Release
Deed 21.02.2006 and the Conveyance Deed dated 28.03.2000, the present
application has been filed by the Plaintiffs seeking amendment of the plaint
and the Plaintiff seeks to introduce the following amendments:-
“6. After existing para 6, the following be added as
paras 6A to 6E in the Plaint:
6 A The Hindu Succession Act, 1956 („Principal
Act‟), was amended by Act No. 39 of 2005. Section 6
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of the Principal Act was substituted to do away with
the discrimination as existed under ancient Hindu
Law, between sons and daughters.
6 B Substituted Section 6 provided that in a Joint
Hindu Family governed by the Mitakshara law, the
daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as
the son. Daughters shall have the same rights in the
coparcenary property as that of a son.
6 C Sub-section (5) of substituted Section 6 of the
Hindu Succession Act, 1956, provides that nothing
contained in the substituted Section 6 shall apply to
a partition, which has been effected before
20.12.2004. Explanation clarifies that Partition here
means any partition: (i) made by registered Deed of
Partition or (ii) effected by a court decree.
6 D None of this occurred in this case. The HUF
subsists, i.e., continues to the day.
6 E On 9.09.2005, the Hindu Succession
(Amendment) Act [39 of 2005] came into effect. Smt.
Meera Gupta became entitled to a share in HUF
properties in her own right – status as a coparcener.
7. The original para 8 of the plaint has been deleted
and is replaced as under:
8 On 29.04.2018, mother Meera Gupta died leaving
her surviving:
(1) Pltf-1 Vivek Gupta … son
(2) Pltf-2 Amit Gupta … son
(3) Smt. Anuja Mittal … daughter
(4) Smt. Rajeshwari Jain … daughter
8. After existing para 18, the following be added as
paras 18 A to 18 HH in the Plaint:
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Signed By:PRATEEK
Signing Date:02.09.2026
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18 A The Release Deed dated 21.02.2006 records
that there was a family settlement. First, there was
no family settlement.
18 B Second, no order under Section 171 Income
Tax Act was passed.
18 C Third, post 1.07.1977, conduct of Smt. Jyotsna
may be examined. She never asserted or conducted
herself to be the owner of D-15, Maharani Bagh.
There was no declaration by her (Smt. Jyotsna) in
any statutory filing that by 1.07.1977 settlement, D-
15 Maharani Bagh has been allotted to her as
absolute owner. Further, there was no mutation of
D-15 Maharani Bagh with DDA or MCD in her
(Smt. Jyotsna‟s) favour.
18 D Fourth, assuming there was 1.07.1977
partition on which D-15 Maharani Bagh was
allotted to Smt. Jyotsna and further Smt. Jyotsna by
her 15.01.1985 Will had bequeathed D-15,
Maharani Bagh to Df-1 Prabhat (which did not
happen), then fifteen years later, on 28.03.2000,
there was no reason for Df-3 Rekha to get D-15
Maharani Bagh converted to freehold in her name.
18 E Fifth, the 01.07.1977 document propounded by
Dfs-1 & 2 (and supported by Dfs-3 & 4) is not a
family settlement. Assuming it is genuine, which it is
not, it does not record any past settlement but is in
præsenti, requiring both Stamp Duty and
Registration. In the absence whereof, the document
is inadmissible in evidence.
18 F Lastly, reading of 1.07.1977 document shows
that it is not a family settlement. In the absence of
any partition, the HUF continued.
18 G Defendants also claim that 4 years and 9
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months after the (alleged) 1.07.1977 partition, Shri
Gopal Raj Swarup had made (alleged) Will dated
9.04.1982. The said Will is denied. The ensuing
paras are only analyse the (alleged) Will and do not
amount to admission of its existence or contents.
18 H The alleged Will as propounded by Df-1 & 2
records:
… Besides these omissions, I had not made any
mention about my interest in the assets of HUF of
G.R.S & Sons. Hence I am hereby revoking the
former Will and making this present Will as my
final Will.
The language of the Will shows that HUF was not
disrupted on 1.07.1977 as claimed by Defendants, but
was continuing.
18 I Further Clause 3 [at page-3] of the alleged Will
records:
BEQUEST OF MY INTEREST IN JOINT HINDU
FAMILY:
I am Karta of the Joint Hindu Family Gopal Raj
Swarup & Sons and the family has moveable and
immoveable assets. My interest in the properties
of the Joint Hindu Family which I may have in
law shall cease and stands terminated on my
death and none of my heirs under any law of the
land shall be entitled to claim any share in my
interest. My interest as co-parcener shall merge
with the existing properties of the Joint family and
all such properties will continue to be owned by
the Joint family consisting of surviving co-
parceners with my exclusion. The affairs of the
Joint family will be managed by Sh. Prabhat
Kumar Swarup.
A reading of the documents, propounded by defendants
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itself shows the existence of HUF and Shri Gopal Raj
Swarup was its Karta till his death on 28.04.1983.
18 J In law, a share, which father receives on partition,
is his absolute (individual) property and is not joint in
his hands with his son. If 1.07.1977 partition had
actually happened (which it had not), the wording of
Shri Gopal Raj Swarup‟s Will would not have been so.
A reading of Shri Gopal Raj Swarup‟s (alleged) Will
falsifies the 1.07.1977 partition alleged by the
Defendants.
18 K The 9.04.1982 Will shows tell-tale signs of
fabrication. Further, no probate of Shri Gopal Raj
Swarup‟s Will has been applied by the Defendants till
date.
18 L Dfs-1 & 2 have also propounded Smt. Jyotsna‟s
(alleged) Will dated 15.01.1985. It is denied. The
ensuing averments are only analysing the (alleged)
Will and do not amount to admission of its existence or
contents.
18 M The alleged 15.01.1985 document does not refer
to 1.07.1977 partition in which D-15 Maharani Bagh
was allotted to her (Smt. Jyotsna).
18 N Further D-15, Maharani Bagh is a valuable
asset. In the alleged Will while Smt. Jyotsna refers to
her other assets, but strangely, she does not mention
about her (alleged) ownership of D-15 Maharani
Bagh.
18 O Furthermore, assuming Smt. Jyotsna was the
owner of D-15 Maharani Bagh, which she was not, she
made no bequest of D-15 Maharani Bagh in favour of
Df-1 Prabhat and died intestate.
18 P Smt. Jyotsna was a cancer patient. She was under
treatment in Delhi for last two years before her death.
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She remained in Delhi continuously up till her death.
18 Q Smt. Jyotsna was very serious and unable to
think, to talk, to understand. Her mind was not stable.
She was unable to read, write and sign. In view of her
health, Smt. Jyotsna was not in a position to travel
from Delhi to Muzaffar Nagar for execution of Will.
The 15.01.1985 Will is surrounded and shrouded by
suspicious circumstances and also has tell-tale signs of
fabrication.
18 R No probate of Smt. Jyotsna‟s 15.01.1985 Will has
been applied by Defendants, till date.
18 S Smt. Jyotsna died on 5.03.1985 leaving behind
properties which included Debentures, Securities and
shares. Defendants claim that Smt. Rekha Jalan, Smt.
Meera Gupta (plaintiffs‟ mother) and Smt. Neera Jalan
appointed Df-1 Prabhat as their Attorney to apply for
and obtain Succession Certificate in respect of
Debentures, Securities and shares left by mother Smt.
Jyotsna.
18 T Defendants further claim that pursuant to said
Attorney, Df-1 Prabhat filed Succession Case No. 463
of 1992 at Muzaffarnagar and on 11.02.1994 Court of
Tenth ADJ, Muzaffarnagar, ordered issuance of
Succession Certificate.
18 U Plaintiffs‟ mother Meera Gupta did not execute
the 14.12.1992 Special Power of Attorney in favour of
Df-1 Prabhat. She did not sign the 14.12.1992 SPA.
Her signatures on said SPA have been forged.
18 V No Notice of the Succession Case No. 463 of 1992
was served on plaintiffs‟ mother Meera Gupta. No
opportunity was given to her to file objections to the
said proceedings.
18 W Df-1 Prabhat – by relying on a forged and
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fabricated 14.12.1992 SPA in his favour – deceived the
Court in issuing Succession Certificate behind the back
of plaintiffs‟ mother (Meera Gupta).
18 X On 2.04.2021, Plaintiffs herein filed Injunction
Suit No. 226 of 2021 in the Court of Civil Judge,
Senior Division, Muzaffarnagar. Dfs-1 & 2 herein in
their Written Statement (8.12.2021) averred that
Succession Certificate for the moveable assets left
behind by Smt. Jyotsna has been granted to them in
Succession Case No. 463 of 1992 by Court of Tenth
ADJ, Muzaffarnagar on 11.02.1994.
18 Y On reading of the Dfs-1 & 2‟s written statement,
plaintiffs for the first time came to know about filing
Succession Case No. 463 of 1992 and grant of
11.02.1994 Succession Certificate.
18 Z On 20.10.2023, plaintiffs (though their counsel)
inspected the judicial record of Succession Case No.
463 of 1992. Plaintiffs found that no service was
effected on their mother (Smt. Meera Gupta). Further,
the original of alleged 14.12.1992 SPA by Smt. Meera
Gupta in favour of Df- 1 Prabhat was not found on the
file of Succession Case No. 463 of 1992.
18 AA Plaintiffs‟ mother Smt. Meera Gupta had not
executed the 14.12.1992 SPA in favour of Df-1
Prabhat. Her signatures on the said documents have
been forged. The admitted signatures of mother Meera
Gupta (as exemplars) and her disputed signatures on
the 14.12.1992 SPA for convenience of the Hon‟ble
Court have been placed in a side-by-side mode:
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Signed By:PRATEEK
Signing Date:02.09.2026
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18 BB Plaintiffs vide Petition No. 286 of 2023
applied for setting aside of the Succession
Certificate issued by the Court of ADJ-10
Muzaffarnagar Courts in Succession Case No. 463
of 1992. Notice in the application was issued. Dfs-1
& 2 herein have filed their reply. The setting aside
application is pending.
18 CC Section 387 of the Indian Succession Act
provides that no decision rendered by a court
exercising jurisdiction under Part X of the Indian
Succession Act will operate as res-judicata for
rendering any decision relating to the right or
status. 18 DD Df-3 Rekha and Df-4 Neera are hand
in glove with Df-1 Prabhat. Df-1, 3 and 4 may be
directed to file the original 14.12.1992 SPA.
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Signed By:PRATEEK
Signing Date:02.09.2026
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18 EE Twenty two years after the 1.07.1977 alleged
family settlement, Df-3 Rekha Rani Jalan (as owner)
applied with DDA for conversion of D-15 Maharani
Bagh from leasehold to freehold in her name.
18 FF The Freehold Conversion Application,
Affidavit, Undertaking, Indemnity Bond (which Df-1
Prabhat signed as witness) etc. make no reference
to: (1) 1.07.1977 Family Settlement; (2) allotment of
D-15 Maharani Bagh to mother Jyotsna; and (3)
mother Jyotsna, by her 15.01.1985 Will,
bequeathing the said property to son Df-1 Prabhat.
18 GG On 28.03.2000, DDA in terms of Df-3 Rekha
Rani Jalan‟s application requesting conversion of
D-15 Maharani Bagh from leasehold to freehold
executed freehold Conveyance Deed which was
registered as Document No. 4506 in Book No.1
Volume No. 227 at page 184 to 185 with Sub-
Registrar-7, New Delhi, on 28.03.2000. The DDA‟s
Conveyance Deed enures for the benefit of all
coparceners.
9. After existing para 19, the following be added as
paras 19A to 19 C in the Plaint:
19 A Five and half months after Hindu Succession
Amendment Act 2005 came into effect, on
21.02.2006, Df-3 Rekha Rani Jalan executed a
collusive Release Deed for D-15 Maharani Bagh in
favour of Df-1 Prabhat. The Release Deed was
registered as Document No.8312 in Additional Book
No.1 Volume No. 6269 at pages 20 to 45 with Sub-
Registrar-5, Delhi, 21.04.2006.
19 B On that day, Df-3 Rekha Rani Jalan was not
the absolute owner of D-15 Maharani Bagh. She
was holding the same in trust for the family and
could not have transferred D-15 Maharani Bagh to
Df-1 Prabhat. Nemo dat quod non habet – A person
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cannot confer a better title on another than he
himself has.
19 C By taking the transfer from a coparcener
(sister Rekha) – knowing fully well that it is a JHF
property – Df-1 Prabhat took upon himself the role
of constructive trustee, whereafter all his actions
enure for the benefit of all coparceners.
10. After existing para 21, the following be added as
paras 21A to 21 D in the Plaint:
21 A The shares of the parties in D-15 Maharani
Bagh are as under:
1. Vivek Premkumar Gupta … 12.5%
2. Amit Premkumar Gupta … 12.5%
3. Prabhat Kumar Swarup … 25%
4. Smt. Rekha Rani Jalan … 25%
5. Smt. Neera Rani Jalan … 25%
21 B Shri Gopal Raj Swarup died intestate on
28.04.1983. The succession to his estate was under
Section-8 of the Hindu Succession Act, 1956.
21 C Smt. Jyotsna also died intestate on 5.03.1985. The
succession to her estate was under Section 15 of the
Hindu Succession Act, 1956.
21 D The details of the Estate of Gopal Raj Swarup
and Estate of Smt. Jyotsna are within the special
knowledge of Defendants. They be directed to disclose
the details of aforesaid estates. Shares of the parties
therein be adjudicated and estates be partitioned by
metes and bounds.”
11. Apart from introduction of these paragraphs mentioned above, the
Plaintiff has also sought for certain amendments in the following
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Signing Date:02.09.2026
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paragraphs:-
“11. The existing paras 1, 4, 5, 6, 7, 24 & 25 of the
plaint has been reworded to read as under:
1. The Plaintiffs are the sons and legal heirs of late
Smt. Meera Gupta who was the married daughter of
late Shri Gopal Raj Swarup (the deceased) of
Rambagh, Muzaffarnagar in the State of Uttar
Pradesh, and of D-15, Maharani Bagh, New Delhi-
110065, who died intestate, on 28th April, 1983 being
owner of the joint family property in dispute. Plaintiff
No.2 1 is also the Power of Attorney Holder of Plaintiff
No.1 2 and thus entitled to file and prosecute this suit
on his behalf. At the time of his Shri Gopal Raj
Swarup‟s death, he was the karta of the family was a
Joint Hindu Family with the deceased as their Karta.
4. The joint family, described in paragraph 3 above,
owned properties both movable and immovable. ,
described in the schedule of this plaint. The joint family
house at residential plot no. C- 33, now known as D-15
along with residential building erected thereon in
layout plan of Maharani Bagh Co-operative House
Building and Welfare Society Ltd. having area
admeasuring 800 sq. yards approximately situated in
Maharani Bagh in Central Zone of South Delhi Pin
Code-110065, in the Schedule of Property, was the
residential house where all the members of the family
were residing together. Since the maternal grandfather
of the plaintiffs Shri Gopal Raj Swarup had passed
away intestate, his entire estate including but not
limited to the disputed property devolved upon his wife
Smt. Jyotsana Kumari Swarup and his four children
i.e. Shri Prabhat Kumar Swarup (son) and defendant
No.1 Meera Rani Swarup, Rekha Rani Swarup and
Neeraj Rani Swarup, each having 1/5th undivided
share in equal proportion according to law. This one
fifth share became one fourth share each after the
demise of Smt. Jyotsna Kumari Swarup, having
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devolved upon her four children in equal proportion.
5. Perpetual Sub-Lessee rights of Plot No. D-15
Maharani Bagh, New Delhi, That the suit property
which has been described in the schedule of property,
along with this plaint, was were acquired/purchased by
late Shri Gopal Raj Swarup, the maternal grandfather
of the plaintiffs in his life time with JHF funds in the
name of Df-3 Rekha Rani Jalan under a perpetual sub-
lease deed, dated, 19th day of May, 1965 executed
between the President of India through Delhi
Development Authority as lessor and the Maharani
Bagh Co-operative House Building and Welfare
Society Ltd. as lessee and the and the same was got
registered in the office of Sub- Registrar, New Delhi.
6. In purchasing and acquiring the suit property, the
entire expenses which were incurred thereon, and all
expenses incurred during formalities of taking
possession of the land from Maharani Bagh Housing
Co-operative Society Ltd. were borne solely by the
JHF of which Late Sh. Gopal Raj Swarup the maternal
grandfather of the plaintiffs was the Karta. The
Perpetual Sub-Lease Deed in favour of Df-3 Rekha
enures for the benefit of all members. The suit property
was a plot of land at the time of its purchase but later
on a dwelling house was constructed thereon, during
the years 1970-71, by late Shri Gopal Raj Swarup the
maternal grandfather of the plaintiffs and the entire
expenses, cost of the house construction and other
expenses incurred thereto were met by him.
7. That In the suit property devolved by statutory
operation upon the mother of the plaintiffs late Smt.
Meera Gupta and other members of the family i.e. full
rights, title, interest and ownership of her 1/4th share
therein and her physical possession in the suit property
is an admitted fact and no member of the family has
questioned this fact in any court of law and even
otherwise too. Mother of the plaintiffs Smt. Meera
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Gupta nee Swarup, co-owner of the disputed property
also passed away on 29.04.2019. However, since their
mother was one of the coowner coparceners and in
actual and constructive possession of the suit property
along with defendants who are also the joint owners of
the same, the plaintiffs retained the same one fourth
rights and possession.
24. The value of the subject matter of the suit for the
purposes of jurisdiction and court fees regarding relief
of partition is estimated to be at least Rs.
15,00,00,000/- (Rupees fifteen crore only) at the time
that the fraudulent and collusive Release Deed was
created by the defendants and is currently estimated to
be anywhere and well above Rs.15,00,00,000/- and
hence this Hon'ble Court has the pecuniary jurisdiction
to entertain and try the present suit. The plaintiffs are
paying the fixed court fees of Rs.20/- which is the
requisite court fees on a suit for partition and the
plaintiffs undertake to pay further court fees as
directed by this Hon'ble Court, to be payable by them
on their share of the joint family property.
25. The Release Deed Dated 21.02.2006 by Df-3 Rekha
in favour of Df-1 Prabhat is collusive and was
executed in furtherance of a conspiracy to defeat the
rights of the Plaintiffs. Plaintiffs are not party to the
Release Deed Dated 21.02.2006. It is not binding on
them. A relief of declaration (as distinct from
cancellation) is sufficient. However, out of an
abundant caution and to avoid any objections, For the
purpose of court fees for the relief of cancellation (re:
Release Deed Dated 21.02.2006) for the purpose of
jurisdiction and court fees and injunction, the suit is
being valued at Rs.6,38,156/- (Six lacs thirty eight
thousand one hundred fifty six), the value that the
defendants property value was accepted at, with a
report from the valuer showing its value and the on
which an ad valorem court fees of Rs.8591/- is affixed
thereupon. For the relief of the two declarations (re:
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Signing Date:02.09.2026
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(1) 14.12.1992 SPA ; and (2) DDA‟s freehold
Conveyance Deed dated 28.03.2000), the suit is valued
at Rs. 200/- each and court fee of Rs. 20/- on each, is
affixed thereupon.”
12. Certain other typographical and grammatical errors have also been
sought to be corrected by way of this application.
13. A prayer has also been sought to be amended in the following
manner:-
“14. After the existing prayer (iii), the following prayer
clauses are added as (iv) and (v):
iv) It be declared that the Special Power of Attorney
dated 14.12.1992 was not executed by Smt. Meera
Gupta;
v) It be declared that DDA‟s freehold Conveyance
Deed dated 28.03.2000 in favour of Df-3 Rekha Rani
Jalan enures for the benefit of all coparceners of the
Joint Hindu Family;
The original prayer (viii) and (ix) have been re-
numbered as (vi) & (vii). ”
14. A perusal of the aforesaid amendments would show that the Plaintiffs
are now trying to establish their right under Section 6 of the Hindu
Succession Act as amended by the Act No.39 of 2005. Section 6 of the
Hindu Succession Act as amended in the year 2005, elevates the right of a
daughter to that of a coparcener having right to claim partition in a joint
Hindu family. There are certain other paragraphs which are sought to be
introduced in Paragraph 18 of the plaint and the Plaintiff wants to introduce
certain facts regarding the family settlement, the conduct of the Defendants
regarding family settlement and the Will.
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Signed By:PRATEEK
Signing Date:02.09.2026
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15. Though reply has not been filed on behalf of the Defendants, learned
Counsel for the Defendants raises the following objections:-
i. That the Suit which had initially been filed was one for
succession on the ground of intestate succession. The relief is
now being claimed on the basis of the amendment to the Hindu
Succession Act brought about in the year 2005 which according
to the learned Counsel for the Defendants changes the character
of the Suit.
ii. He further submits that in the year 2005, when the status of the
mother and the Plaintiffs was elevated to one of a coparcener,
the mother of the Plaintiffs chose not to exercise her right till
her death and therefore the Plaintiffs being her children cannot
now seek partition under Section 6 of the Hindu Succession Act
and the same is now hit by limitation under Article 110 of the
Limitation Act.
iii. It is further contended that Prayer (v) which is now sought to be
added by way of this amendment is for a declaration that the
DDA’s freehold Conveyance Deed dated 28.03.2000 in favour
of Defendant No.3 inures to the benefit of all the coparceners. It
is stated that the said prayer is clearly hit by limitation. It is also
contended that prayer (iv), another prayer which is sought to be
introduced is for a declaration that a Special Power of Attorney
dated 14.12.1992 had not been executed by Smt. Meera Gupta
and the said prayer would also give rise to a time barred claim.
iv. It is also contended that the amendment sought to be introduced
in Paragraph 18 were all within the knowledge of the
Applicant/Plaintiffs were not introduced initially and that there
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is no valid reason by the Plaintiffs why they were not part of
the plaint.
v. Learned Counsel for the Defendants places reliance on the
Judgment of the Apex Court in M. Sheela & Anr. v. R.
Visalatchi & Ors., 2025 SSC Online Mad 3083.
16. Heard learned Counsel for the parties and perused the material on
record.
17. The law relating to the amendment of the plaint is no longer res
integra . It is well settled that all amendments to pleadings which are
necessary for determination of real controversy in the Suit should be allowed
provided the proposed amendment does not alter or substitute a new cause
of action on the basis of which original lis was raised or defence taken
which is inconsistent, contrary or negates admitted pleadings or are mutually
destructive to the original pleadings. [Refer to: B. K. Narayana Pillai v.
Parameswaran Pillai, 2000 (1) SCC 712 ].
18. As early as in the year 1957, the Apex Court in L.J. Leach &
Company Limited & Anr. v. Jardine Skinner and Company, ( 1957) 1 SCC
72, has observed as under:-
“ 17. It is no doubt true that courts would, as a rule, decline to
allow amendments, if a fresh suit on the amended claim would
be barred by limitation on the date of the application. But that
is a factor to be taken into account in exercise of the discretion
as to whether amendment should be ordered, and does not
affect the power of the court to order it, if that is required in the
interests of justice. In Charan Das v. Amir Khan [Charan Das
v. Amir Khan, 1920 SCC OnLine PC 51 : (1919-20) 47 IA 255 :
(1921) 13 LW 49] the Privy Council observed: (SCC OnLine
PC)
“… That there was full power to make the amendment cannot
be disputed, and though such a power should not as a rule be
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exercised where its effect is to take away from a defendant a
legal right which has accrued to him by lapse of time, yet
there are cases … where such considerations are outweighed
by the special circumstances of the case.”
Vide also Kisandas Rupchand v. Rachappa Vithoba Shilwant
[Kisandas Rupchand v. Rachappa Vithoba Shilwant, 1909 SCC
OnLine Bom 84 : ILR (1909) 33 Bom 644] .”
19. Following the L.J. Leach (supra), the Apex Court in T.N. Alloy
Foundry Co. Ltd. v. T.N. Electricity Board & Ors., ( 2004) 3 SCC 392, has
held that as regards permitting amendment of plaint is concerned, it is well
settled and courts would as a rule not decline to allow amendment unless a
fresh suit on the amended claim would be barred by limitation on the date of
the application. In fact, the Privy Council in Charan Das v. Amir Khan, AIR
1921 PC 50, has observed that there is full power to make the amendment
but it should not be used to take away from a Defendant a legal right which
accrued to him by lapse of time.
20. It is now well settled that all amendments ought to be allowed which
satisfy two conditions: (a) of not working injustice to the other side, (b)
being necessary for the purpose of determining the real controversy between
the parties. [Refer to: Pirgonda Hongonda Patil v. Kalgonda Sindgonda
Patil, 1957 SCR 595 ].
21. In A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation, 1965
SCC OnLine SC 49 , the Apex Court has held that the entire case or the
entire cause of action particularly when a Suit on the new cause of action is
barred should not be allowed. The Apex Court has further observed that
when the amendment does not constitute addition of a new cause of action
or raises a different case but amounts to no more than a different or
additional approach of the same facts, the amendment should be allowed
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even after the expiry of the statutory period of limitation.
22. The Apex Court recently in Life Insurance Corporation of India v.
Sanjeev Builders Private Limited, (2022) 16 SCC 1 , after taking into
account the judgments on the point has summarised as under:-
“ 71.2. All amendments are to be allowed which are
necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word “shall”, in the latter
part of Order 6 Rule 17CPC.
71.3. The prayer for amendment is to be allowed:
71.3.1. If the amendment is required for effective and
proper adjudication of the controversy between the
parties.
71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the
other side,
(b) by the amendment, the parties seeking amendment
do not seek to withdraw any clear admission made by
the party which confers a right on the other side, and
(c) the amendment does not raise a time-barred claim,
resulting in divesting of the other side of a valuable
accrued right (in certain situations).
71.4. A prayer for amendment is generally required to
be allowed unless:
71.4.1. By the amendment, a time-barred claim is
sought to be introduced, in which case the fact that the
claim would be time-barred becomes a relevant factor
for consideration.
71.4.2. The amendment changes the nature of the suit.
71.4.3. The prayer for amendment is mala fide, or
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71.4.4. By the amendment, the other side loses a valid
defence.
71.5. In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be
compensated by costs.
71.6. Where the amendment would enable the court to
pin-pointedly consider the dispute and would aid in
rendering a more satisfactory decision, the prayer for
amendment should be allowed.
71.7. Where the amendment merely sought to introduce
an additional or a new approach without introducing a
time-barred cause of action, the amendment is liable to
be allowed even after expiry of limitation.
71.8. Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars
in the plaint.
71.9. Delay in applying for amendment alone is not a
ground to disallow the prayer. Where the aspect of
delay is arguable, the prayer for amendment could be
allowed and the issue of limitation framed separately
for decision.
71.10. Where the amendment changes the nature of the
suit or the cause of action, so as to set up an entirely
new case, foreign to the case set up in the plaint, the
amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in
the plaint, and is predicated on facts which are already
pleaded in the plaint, ordinarily the amendment is
required to be allowed.
71.11. Where the amendment is sought before
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commencement of trial, the court is required to be
liberal in its approach. The court is required to bear in
mind the fact that the opposite party would have a
chance to meet the case set up in amendment. As such,
where the amendment does not result in irreparable
prejudice to the opposite party, or divest the opposite
party of an advantage which it had secured as a result
of an admission by the party seeking amendment, the
amendment is required to be allowed. Equally, where
the amendment is necessary for the court to effectively
adjudicate on the main issues in controversy between
the parties, the amendment should be allowed.
(See Vijay Gupta v. Gagninder Kr. Gandhi [Vijay
Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine
Del 1897] .)”
23. Applying the law laid down by the Apex Court in the facts of the
present case, it is seen that the present Suit is one for partition. The maternal
grandfather of the Plaintiff passed away on 28.04.1983 leaving behind his
th
wife and four children, each entitled to 1/5 share. On the death of their
th
mother, all the siblings were entitled to 1/4 share, and therefore, the
th
Plaintiffs are claiming 1/4 share of their mother Late Smt. Meera Gupta. In
addition to the claim of the Plaintiffs on the basis of succession, recourse is
also sought by way of this amendment of the plaint to the amendment made
in the Hindu Succession Act as amended by the Act No.39 of 2005.
24. In the opinion of this Court, there is no new claim raised by the
Plaintiffs and only one more ground is being raised by the Plaintiffs seeking
partition.
25. The contention that the amendment to introduce the provisions of the
Hindu Succession Act in 2006 is hit by Article 110 of the Limitation Act
cannot be accepted. Article 110 of the Limitation Act applies only when a
Plaintiff chooses not to claim partition after being specifically ‘ousted’ from
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the property. ‘Ouster’ being a pure question of fact. In the present case there
is no averment or even allegation that the mother of the Plaintiffs was
ousted.
26. In Vidya Devi v. Prem Prakash & Ors., 1995 (4) SCC 496 , the Apex
Court has defined the term ‘ouster’ to mean as under:-
“ 28. „Ouster‟ does not mean actual driving out of the
co-sharer from the property. It will, however, not be
complete unless it is coupled with all other ingredients
required to constitute adverse possession. Broadly
speaking, three elements are necessary for establishing
the plea of ouster in the case of co-owner. They are (i)
declaration of hostile animus, (ii) long and
uninterrupted possession of the person pleading ouster,
and (iii) exercise of right of exclusive ownership openly
and to the knowledge of other co-owner. Thus, a co-
owner, can under law, claim title by adverse
possession against another co-owner who can, of
course, file appropriate suit including suit for joint
possession within time prescribed by law.”
27. In the opinion of this Court, the Defendants have not made out any
case for ‘ouster’ in the written statement. In the opinion of this Court,
Article 110 of the Limitation Act has therefore no application. The
contention that the mother of the Plaintiffs ought to have exercised her right
within 12 years after the amendment to the Hindu Succession Act and
therefore the amendment sought in the present application is barred by
limitation, which according to this Court, is unacceptable as partition can be
sought at any point of time unless there is a specific ‘ouster’ and the animus
of the ouster was made clear to a party claiming partition and despite clear
animus being shown, a party does not chooses to file a Suit for partition.
28. The fact that there was an amendment to the Hindu Succession Act in
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20026 whereby the status of women was elevated to that of a coparcener and
the failure of the mother of the Plaintiffs not the seek partition on that
ground cannot deprive the Plaintiffs from claiming partition. The claim of
the Plaintiffs is maintainable on two grounds, (a) as LRs of their mother,
who is entitled to her share in her father’s property, i.e., maternal
grandfather of the Plaintiffs, (b) in terms of the amendment to the Hindu
Succession Act elevating the status of women to that of a coparcener.
29. In the plaint as filed, the Plaintiffs have challenged the Release Deed
dated 21.02.2006 and the Conveyance Deed dated 28.03.2000. If the decree
had been passed without this amendment of the plaint, the natural corollary
of the plaint would be a declaration that the DDA’s Conveyance Deed dated
28.03.2000 in favour of Defendant No.3 would automatically be declared as
bad and that the properties would have inured to the benefit of all the
coparceners. The fact that now a specific prayer has been added by the
Plaintiffs, it cannot be said to be barred by limitation.
30. As far as prayer for declaring Special Power of Attorney dated
14.02.1992 is concerned, it is not clear from the plaint as to whether the
Plaintiffs were aware of the said Special Power of Attorney when the plaint
was originally filed. It is only after the written statement has been filed, the
amendment is being sought and whether this prayer is hit by limitation or
not would be seen in trial and the amendment cannot be disallowed only on
the ground of limitation.
31. As stated by the Apex Court that unless it cannot be discerned from
the original plaint and the amended plaint that the Plaintiff was aware of a
particular fact and, despite that, specific prayer was not made and later on
the same is chosen to be added, only then if the court is satisfied, it will
create prejudice to the other side, can an amendment be disallowed. In fact
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there are numerous judgments wherein amendment can be allowed even
after statutory period of limitation. The fact that the amendment is allowed,
does not take away the right of the Defendants to contend at the time of trial
that particular prayer is hit by limitation.
32. In view of the aforesaid discussion, the application is allowed.
33. Let the amended plaint be taken on record. Amended written
statement(s), if any, be filed within the time stipulated under the Delhi High
Court (Original Side) Rules, 2018.
SUBRAMONIUM PRASAD, J
AUGUST 31, 2026
hsk/kg
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