Order VI Rule 17 CPC — Amendment of counter — Withdrawal of admissions
Amendment of pleadings cannot be permitted when it seeks to withdraw clear admissions made earlier, particularly when such admissions confer valuable rights on the opposite party. An amendment intended to retract admissions made by a party during her lifetime is impermissible.
(Paras 13–15)
Partition suit — Change of shares by amendment — Not permissible
Where the proposed amendment seeks to alter the nature of bequest under a Will from absolute ownership to life interest with vested remainder, thereby changing the shares of parties in a partition suit, such amendment cannot be allowed.
(Paras 14–15)
Death of party — Effect on amendment of pleadings
After the death of defendant No.1, who filed the original written statement and counter containing admissions, her legal representatives cannot be permitted to amend the pleadings so as to alter or nullify those admissions.
(Para 15)
Order VIII Rule 1-A CPC — Production of Will — Procedural liberty
Though Order VIII Rule 1-A CPC permits filing of documents with leave of Court, such liberty cannot be exercised to support an impermissible amendment of pleadings. Reception of a Will cannot be sustained when the foundational amendment itself is set aside.
(Paras 16–23)
Will — Genuineness — Stage of consideration
The genuineness of a Will is a matter to be decided after examination of evidence. Mere suspicion about genuineness is not sufficient to prevent filing of the document; however, its reception must be in accordance with law and procedural propriety.
(Paras 18–22)
Article 227 — Supervisory jurisdiction — Interference justified
Orders allowing amendment of counter and reception of documents, when contrary to settled principles governing Order VI Rule 17 CPC and affecting substantive rights of parties, warrant interference under Article 227 of the Constitution of India.
(Paras 15, 23–24)
ANALYSIS
The petitioners-plaintiffs instituted O.S.No.92 of 2019 for partition and separate possession of the suit schedule properties. During pendency of I.A.No.343 of 2019 (injunction application), the defendants filed I.A.No.156 of 2020 under Order VI Rule 17 CPC to amend the counter and I.A.No.871 of 2022 under Order VIII Rule 1-A CPC to receive and mark a Will dated 18.01.2019 (Paras 4–5).
The Trial Court allowed both applications. The High Court examined whether the amendments and reception of the Will were sustainable.
The proposed amendment sought to delete earlier pleadings admitting that the properties and deposits were bequeathed absolutely to defendant No.1, and to substitute the same with a plea that defendant No.1 had only life interest, with vested remainder in favour of defendant Nos.2 and 3 (Paras 13–14).
The Court found that such amendment amounted to withdrawal of clear admissions made by defendant No.1 during her lifetime, which conferred valuable rights on the plaintiffs in a partition suit. Acceptance of such amendment would alter the shares of parties and prejudice accrued rights, which is impermissible under settled principles laid down by the Supreme Court (Paras 15).
Further, since defendant No.1 had died after filing the original counter, the legal representatives could not be permitted to amend pleadings so as to change admissions made by the deceased (Para 15).
Regarding the Will dated 18.01.2019, although it was referred to in the written statement, the Court held that its reception could not be sustained once the amendment application itself was set aside. Nevertheless, liberty was granted to the defendants to file a fresh interlocutory application for reception of the Will, to be considered independently by the Trial Court in accordance with law (Paras 22–24).
Accordingly, both impugned orders dated 07.08.2023 were set aside (Para 24).
RATIO DECIDENDI
An amendment under Order VI Rule 17 CPC is impermissible when it seeks to withdraw or alter clear admissions made earlier, particularly in a partition suit where such admissions determine shares and confer substantive rights; legal representatives cannot amend pleadings to retract admissions made by a deceased party, and procedural liberty under Order VIII Rule 1-A CPC to receive documents like a Will cannot be exercised to sustain or validate an otherwise impermissible amendment, justifying interference under Article 227 of the Constitution of India.
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