MAHILA RAMKALI DEVI AND OTHERSversusNANDRAM (D) THR. LRS. AND OTHERS

                       [2015) 4 S.C.R. 974


A           MAHILA RAMKALI DEVI AND OTHERS
                                v.
           NANDRAM (D) THR. LRS. AND OTHERS

                 Civil Appeal No. 2366 of 2010
B
                          MAY 14, 2015

             [M.Y. EQBAL AND AMITAVA ROY, JJ.]

       Code of Civil Procedure, 1908: Order 6 r. 17 -
C Amendment of plaint - Appellant no. 1-plaintiff filed a suit
  for declaration of title and possession of suit properly on
  the basis of Will - Application for amendment of plaint filed
  by appellant no.1 to make appellant no.2 to 5 entitled to
D suit properly on the basis of inheritance - High Courl held
  that it was not in the interest of justice to allow the
  application for amendment as it would totally change the
  character of the plaint after lapse of more than 40 years -
  Held: The Courl always gives relief to amend the pleading
E of the parly, unless it is satisfied that the parly applying
  was acting malafide - High Courl ought not to have
  rejected the amendment application - Matter remitted back
  to High Courl for consideration afresh - Pleadings -
  Amendment of.
F
        Partly allowing the appeal and remitting the matter
    to the High Court, the Court

       HELD: 1. It is well settled that rules of procedure
  are intended to be a handmaid to the administration
G of justice. A party cannot be refused just relief merely
  because of some mistake, negligence, inadvertence or
  even infraction of rules of procedure. The Court always
  gives relief to amend the pleading of the party, unless
H                              974
 MAHILA RAMKALI DEVI v. NANDRAM (D) THR. LRS. 975


it is satisfied that the party applying was acting A
malafide or that by his blunder he had caused injury
to his opponent which cannot be compensated for by
an order of cost. The High Court ought not to have
rejected the application. [paras 20, 21) [984-f-h; 985-a]
                                                            B
     Jai Jai Ram Manohar Lal vs. National Building Material
Supply, Gurgaon AIR 1969 SC 1267: 1970 (1) SCR 22;
Pandit lshwardas vs. State of Madhya Pradesh and Ors.
AIR 1979 SC 551: 1979 (2) SCR 424 - relied on.
                                                           c
   Nahar Hirasingh and Ors. vs. Dukalhin and Ors. AIR
1974 MP 141 - referred to.

                 Case Law Reference

 AIR 1974 MP 141          referred to.        Para 16      D

 1970 (1) SCR 22          relied on.          Para 22

 1979 (2) SCR 424         relied on.          Para 23

   CIVIL APPELLATE JURISDICTION: Civil Appeal No.          E
2366 of 2010.
    From the Judgment and Order dated 01.03.2005 of the
High Court of Madhya Pradesh, Bench at Gwalior in S.A.
No. 310 of 1997.                                           F
    Sushi! Kumar Jain, Dileep Tandon, Puneet Jain,
Abhinav Gupta, Monu Maheshwari (For Pratibha Jain) for
the Appellants.
   Niraj Sharma, Sumit Kumar Sharma for the G
Respondents.
    The Judgment of the Court was delivered by
     M. Y. EQBAL, J. 1. This appeal by special leave is
directed against the judgment dated 01.03.2005 of the High H
976         SUPREME COURT REPORTS                    [2015) 4 S.C.R.


A Court of Madhya Pradesh, which allowed the respondents'
  appeal and dismissed the suit filed by the plaintiff-
  Appellants for declaration of title and possession of the suit
  property.
 B      2. The factual matrix of the case is that the suit
  property was originally owned by Hardayal who had two
  sons Raghuvardayal and Mahadev Prasad. When Hardayal
  died, the suit property fell to the share of Raghuvardayal
  and on his death it passed on to his wife Sumitra and then
C his son Radhakishan and then Radhakishan's wife
  Ajuddhibai.

           3. The plaintiff/appellant no.1 filed a suit for declaration
      of title and possession of the suit property in Gwalior
o     against the deceased Nandram and deceased Kashiram,
      who were original defendant nos.1 and 2 respectively and
      are now being represented through legal representatives
      and also against defendant no.3 Rukmani Bai. The case
      of the Appellants was that before Ajuddhibai died issueless
E     in 22.6.1961, she had executed a Will dated 21.1.1961 in
      favour of plaintiff/appellant no.1 who was the wife of
      Baijnath, son of Mahadev Prasad. The probate of the Will
      was also stated to have been obtained. The Appellants
      challenged the validity of the sale deed dated 19.12.1950
F     purported to have been executed by Ajuddhibai in favour
      of defendant no.3-Rukmani Bai and sale deed dated
      1.2.1962 executed by Rukmani Bai in favour of deceased
      Nandram-defendant no.1 and deceased Kashiram-
      defendant no.2 and alleged that defendant nos.1 and 2
G     were thus in illegal possession of the suit property. The
      defendants Nandram and Kashiram denied the averments
      made in the plaint and contended that they had legally
      obtained the title of the suit property vide sale deed dated
H     1.2.1962 though one Ram Singh who was the sub-tenant
 MAHILA RAMKALI DEVI v. NANDRAM (D) THR. LRS. 977
               [M. Y. EQBAL, J.]

of Ajuddhibai.                                                    A

     4. The trial court held that the Will in favour of plaintiff/
appellant no. 1 was proved and that she had become
successor of Ajuddhibai through probate. The sale deeds
dated 19.12.1950 in favour of Rukmani Bai were held to B
be not proved in view of the contradictory statements made
by the defendants' witnesses, the failure of the defendant
no.3 to attend court and prove the sale deeds, the absence
of the signatures of Ajuddhibai on the sale deeds, the
failure to mutate the suit property in their names and as C
Ajuddhibai was in Vrindavan and not in Gwalior as alleged
at the time of execution of the sale deeds. Ram Singh was
noted to have been in possession of the suit property till
his death in 1956 and the defendants were held to have
not acquired title by adverse possession as the suit was D
filed in 1964. The defendants Nandram and Kashiram were
held to have not acquired any title over the suit property.
Hence, the suit was allowed and the defendants were
directed to hand over possession of the suit property to
the plaintiff-appellant.                                           E

     5. Aggrieved by the judgment of the trial court, the
defendant nos.1 and 2 preferred an appeal before the.
District Court, which upheld the findings of the trial court
and dismissed their appeal.                                  F

     6. The defendants then assailed the judgment of the
District Court by preferring second appeal in the High Court,
which was eventually allowed. However, in the challenge
made before the Supreme Court by way of appeal by G
special leave, the Apex Court set aside the order of the
High Court and remitted the matter back with directions to
the High Court to first frame questions of law, if any, and
then proceed with the matter and decide the same in
accordance with law.                                          H
978        SUPREME COURT REPORTS                (2015] 4 S.C.R.


A      7. On remand, the High Court formulated substantial
  questions of law and then heard the learned counsel
  appearing for both the parties and passed the impugned
  judgment. The High Court held that the suit was within the
  period of limitation as the lower courts have recorded
B concurrent findings as to the exclusive possession of one
  Ram Singh till his death in 1956. On the third issue, the
  High Court held that there is a concurrent finding of both
  the trial court and appellate court that the documents were
  forged, based on the evidence of the handwriting expert
C and the depositions of the witnesses who had stated that
  Ajuddhibai was residing at Vrindavan and not at Gwalior
  when the document was executed. The genuineness of the
  Will was also upheld as concurrent factual findings to the
  effect were not liable to be interfered with.
0
           8. On the second issue as to whether appellant no.1
      would be a successor to Ajuddhibai, learned Single Judge
      of the High Court observed that Sections 164 and 165 of
      the M.P. Land Revenue Code (hereinafter referred to as
E     the 'Code'), which dealt with devolution of interest of a
      bhumiswamy and transfer of rights respectively were
      amended on 8.12.1961. Since Ajuddhibai had died before
      the amendment, the unamended sections were held to be
 F    applicable. The unamended Section 165 was noted to be
      barring a bhumiswamy from transferring her interest
      through a Will and Ajuddhibai was thus held to have had
      no right to execute a Will. Learned Single Judge also
      rejected the contention that defendant no.3 was a
G     successor under section 164(2)(b) as Ajuddhibai had not
      inherited the suit property from her husband or father-in-
      law rather from Sumitra i.e. her mother-in-law. The
      defendant no.3 was further held to have not· been the
      nearest surviving heir of the husband of Ajuddhibai
H     especially when Baijnath, son of Mahadev Prasad and the
 MAHILA RAMKALI DEVI v. NANDRAM (D) THR. LRS. 979
               [M. Y. EQBAL, J.]

husband of the Appellant no.1, was alive.                     A

     9. As noticed above the second appeal was remanded
to the High Court with a direction to formulate substantial
question of law and then decide the appeal afresh.
Pursuant to the aforesaid order the High Court formulated     s
the following substantial questions of law:-

   "(1) Whether the suit filed by the plaintiff on 29.4.64
        challenging the registered as to deeds executed on
        19.12.1950 can be said to be within limitation in     c
        view of Section 3 of the Transfer of Property Act?

   (2) Whether Ramkali is entitled to succeed the suit
       property left behind by Ayodhyabai under Section
       164 of the M.P. Revenue Code?
                                                              D
   (3) Whether the findings arrived at by the two courts
       below that the documents Exs. D/2 and D2A are
       forged, is only based on the expert opinion and not
       supported by any legal evidence on record?"
                                                              E
     10. Answering the first question, the High Court held
that the suit cannot be dismissed as barred by limitation.
Answering question no.3, the High Court further came to
the conclusion that the two courts below have concurrently
found that the Will Ex. P.1 is a genuine document which is    F
a finding of fact and cannot be interfered with.

     11. On the question as to whether Ramkali is entitled
to succeed the suit property left behind by Ajuddhibai, the
High Court, after referring Section 164 of the M.P. Land G
Revenue Code, came to the conclusion that Ajuddhibai had
no right to execute the will in respect of agricultural land
prior to amendment of Section 164 of the Code. The High
Court further rejected the contention made by the
defendant-respondent that Rukmani Bai was the nearest H
980        SUPREME COURT REPORTS                  [2015) 4 S.C.R.


A surviving heir of the husband of Ajuddhibai and that she
  would be entitled to succeed to her property. The Court
  held:-

           "The argument is without any force because the
 s         plaintiff can succeed only if Ajudhibai had inherited
           the property from her husband or her father-in- law.
           In the present case Ajudhibai has not inherited
           property from her husband or father-in-law. In fact, she
           has inherited the property from Sumitra, her mother-
C          in-law. Moreover, from the record it appears that on
           the date of filing of the suit Baijnath, husband of
           Ramkalidevi was alive. Baijnath was the son of
           Mahadev Prasad who is the son of Hardayal. In such
           circumstances Ramkalidevi cannot succeed the
D          property left behind of Ajudhibai in view of section 164
           of the M.P. Land Revenue Code as she was not the
           nearest surviving heir of the husband of Ajudhibai."

           12. The second substantial question of law is as to
 E    whether or not Ramkali is entitled to succeed to the suit
      property left behind by Ajuddhibai (Ayodyabai) under
      section 164 of the M.P. Land Revenue Code. Ajuddhibai
      executed the Will dated 21.01.1961 in respect of an
      agricultural land, i.e., suit property in favour of Ramkali
 F    Devi. The suit property was then governed by the Madhya
      Bharat Land Revenue and Tenancy Act. The devolution
      of interest of a Bhumidar and transfer of rights by Bhumidar
      was governed by Section 164 and 165 of the Code
      respectively. Amendment was incorporated in these
G     provisions on 8.12.1961, whereas Ajuddhibai died prior to
      the amendment. Therefore, the legality of the Will shall be
      governed by unamended Section 164 of the Code. Section
      164 of the Code, as it stood before its amendment in 1961,
H     provided for the order in which the devolution of the rights
 MAHILA RAMKALI DEVI v. NANDRAM (D) THR. LRS. 981
               [M. Y. EQBAL, J.]

of a Bhumiswami would take place after his death. The A
Hindu Succession Act, 1956 had already come into force
when Section 164 was enacted.

    13. However, this Section was amended by the M.P.
Land Revenue Code (Amendment) Act No.38 of 1961 B
which came into force with effect from 8.12.1961 and the
personal law was made applicable to devolution of
Bhumiswami 'rights and property of the Bhumiswami after
his death was to pass by inheritance, survivorship or
bequest, as the case may be.                             C

     14. Transfer of interest of Bhumiswami in his land
otherwise than by Will subject to Section 164 was dealt
with by the unamended Section 165 of the Code. However,
the words "otherwise than by will" was deleted by the o
amendment dated 8.12.1961 and the words "bequest" was
added in Section 164. Therefore, the right of Bhumiswami
to transfer his land by way of a Will was not recognized
by law when Ajuddhibai executed the Will dated 21.1.1961.
She had no right to execute the same prior to amendment E
of Section 164 of the Code. Property could only be
devolved in the order of succession as mentioned in
Section 164. Thus, the question of proving genuineness
of the Will need not be considered.
                                                               F
     15. However, the claim of Ramkali Devi does not stand
valid in view of the unamended Section 164 of the Code
as she was not the nearest surviving heir of the husband
of Ajuddhibai since her husband (son of the brother-in- law
of Ajuddhibai's father-in-law) was alive on the date of filing G
the suit by Ramkali.

   16. The question referred for consideration to the Full
Bench of the Madhya Pradesh High Court in the case of
Nahar Hirasingh and Ors. vs. Dukalhin and Ors., AIR 1974 H
982        SUPREME COURT REPORTS              [2015] 4 S.C.R.


A MP 141, was whether the provision for succession of
  Bhumiswami rights under Section 164 of the Madhya
  Pradesh Land Revenue Code, 1959 as it stood before its
  amendment in 1961, was a valid provision or it was ultra
  vires in view of Section 4 of the Hindu Succession Act,
B 1956. The Court held it to be a valid provision. It was also
  observed that the M.P. Land Revenue Code, 1954, as also
  the M.P. Land Revenue Code, 1959, had received the
  assent of the President, and therefore, by virtue of Sub-
  clause (2) of Article 254 of the Constitution, that law would
C prevail in the State of Madhya Pradesh as against any
  provisions of the Hindu Succession Act, 1956. However,
  the matter would be different when the M.P. Land Revenue
  Code, 1959, after amendment of Section 164 by the M.P.
  Land Revenue Code (Amendment) Act, 1961, made the
0
  personal law of the parties applicable to devolution to
  agricultural properties. Upon such amendment, the personal
  law as amended from time to time would be applicable.

        17. The application for amendment of plaint filed by
E appellant no.1 to make appellant nos. 2 to 5 fall under
  Class XVII of the Madhya Pradesh Land Revenue Code
  was rejected by learned Single Judge of the High Court
  on the ground that the same would change the nature of
F the suit which was filed 40 years ago, as the claim was
  made solely on the basis of Will and not on the basis of
  inheritance. The High Court allowed the appeal vide the
  impugned judgment as the appellants had no locus standi
  to file the suit as Ajuddhibai could not have transferred her
G interest through a Will. Hence, present appeal by special
  leave by the plaintiffs.

         18. While rejecting the amendment petition, the High
      Court observed as under:

H         "16. During the course of hearing an application is
 MAHILA RAMKALI DEVI v. NANDRAM (D) THR. LRS. 983
               [M. Y. EQBAL, J.]

     filed by the respondents under Order 6 Rule 17 CPC           A
     for amendment to the effect that the respondents
     Dinesh, Satish, Sanjay and Rajendra fails under Class
     XVII of the Madhya Pradesh Land Revenue Code.
     This amendment, at this stage, in fact cannot be
     allowed because the same is going to totally change          B
     the nature of the suit. The suit is filed in the year 1964
     the suit was filed on the premises that Ramkali Devi
     has inherited the property from Ajudhibai on the basis
     of will. By the amendment in the pleadings Dinesh,
     Satish, Sanjay and Rajendra have joined as party.            C
     That amendment was incorporated on 18. 7.1994 and
     their names were added as plaintiffs in the suit. In
     the cause title also the word 'plaintiff' is substituted
     by the word 'plaintiff'. However, there is no                D
     amendment in the averments made in the rest of the
     pleadings in the plaint. In such circumstances, now,
     it will not be in the interest of justice to allow the
     application for amendment which totally goes to
     change the premises of the suit after a lapse of more        E
     than 40 years. In the present case the plaintiffs have
     based their title solely on the basis of a will executed
     by Ajudhibai and, therefore, allowing an application
     for amendment making claim on the basis of
     inheritance that too through Hardayal cannot be              F
     permitted at this stage. Hence, the amendment
     application is rejected."

19. It appears thus while disposing of the appeal, the High
Court has not gone into the amended plaint. By G
amendment, the plaintiff-appellant not only sought to add
the names of Dinesh, Satish, Sanjay and Rajendra sons
of Baijnath Prasad Saxena in the category of plaintiffs, but
also sought to make necessary amendment in paragraph
3 of the plaint. The averment sought to be incorporated in H
984        SUPREME COURT REPORTS                [2015] 4 S.C.R.


A     paragraph 3 of the plaint by amendment is reproduced
      hereunder:

          "Vikalp me yadi vasiyatnama vaidya na mana jave to
          be Ajudhibai ke karibtar varies vadini ke ladke
B         Rajendra, Dinesh, Satish aur Sanjay hi hai jo abhi
          nabalig hai aur yeha dava unke hito ko represent
          karte huai unki maliki ke adhar par bhi prastut hai.
          Vadini ke dekh-rekh me ladke rahte hai. Garj yahe
          hai ki har halat me prativadigan ki koi swatva v
C         mukable vadini avam uske ladke nahi hai. Aur vadini
          vivadagrast aaraji ka kabja apne tatha ladkon ko aur
          se pane ki patra hai."

         As translated in English
D
          "In alternative, if the will is not held valid, yet the
          plaintiff's sons Rajendra, Dinesh, Satish, Sanjay, who
          at present are minors are near relations of Ajudhibai
          and this suit is submitted to represent their interests
E         on basis of their ownership. The sons live in care of
          plaintiff meaning thereby in every condition there is
          no right of defendants competing plaintiff. And the
          plaintiff herself and on behalf of her sons is entitled
          to get possession of the suit land."
F
       20. It is well settled that rules of procedure are
  intended to be a handmaid to the administration of justice.
  A party cannot be refused just relief merely because of
  some mistake, negligence, inadvertence or even infraction
G of rules of procedure. The Court always gives relief to
  amend the pleading of the party, unless it is satisfied that
  the party applying was acting malafide or that by his
  blunder he had caused injury to his opponent which cannot
  be compensated for by an order of cost.
H
 MAHILA RAMKALI DEVI v. NANDRAM (D) THR. LRS. 985
               [M. Y. EQBAL, J.]

    21. In our view, since the appellant sought amendment A
in paragraph 3 of the original plaint, the High Court ought
not to have rejected the application.

     22. In the case of Jai Jai Ram Manohar Lal vs.
National Building Material Supply, Gurgaon, AIR 1969 SC        B
1267, this Court held that the power to grant amendment
to pleadings is intended to serve the needs of justice and
is not governed by any such narrow or technical limitations.

    23. In Pandit lshwardas vs. State of Madhya Pradesh        c
and Ors., AIR 1979 SC 551, this Court observed:-

     "We are unable to see any substance in any of the
     submissions. The learned counsel appeared to argue
     on the assumption that a new plea could not be
                                                              0
     permitted at the appellate stage unless all the material
     necessary to decide the plea was already before the
     Court. There is no legal basis for this assumption.
     There is no impediment or bar against an appellate
     Court permitting amendment of the pleadings so as E
     to enable a party to raise a new plea. All that is
     necessary is that the Appellate Court should observe
     the well-known principles subject to which
     amendments of pleadings are usually granted.
     Naturally, one of the circumstances which will be taken F
     into consideration before an amendment is granted
     is the delay in making the application seeking such
     amendment and, if made at the Appellate stage the
     reason why it was not sought in the trial court. If the
     necessary material on which the plea arising from the G
     amendment may be decided is already there, the
     amendment may be more readily granted than
     otherwise. But, there is no prohibition against an
     Appellate Court permitting an amendment at the
     appel:'.1te stage merely because the necessary H
986         SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A           material is not already before the Court."

       24. In the light of the discussion made hereinabove
   and also having regard to the fact that the amendment
   sought for by the plaintiff-appellant ought to have been
 B allowed by the High Court, in our considered opinion
   substantial issue no.2, as formulated by the High Court,
   needs to be decided by the High Court afresh.

           25. We, therefore, allow the appeal in part, affirm the
c     finding recorded by the High Court on substantial question
      no. 1 and 3. However, the finding recorded by the High
      Court in the impugned judgment on substantial question
      no.2 is set aside and the matter is remitted back to the
      High Court to decide the aforementioned substantial
o     question no.2 afresh, taking into consideration the relief
      sought for by the plaintiff-appellant by amending the plaint.

      Devika Gujral   Appeal partly allowed & remited back to High Court.


E