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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 2366 of 2010

Mahila Ramkali Devi and others                  …..Appellant(s)

versus

Nandram (D) Thr. LRs. and others              …..Respondent(s)

JUDGMENT M. Y. EQBAL, J.  

This  appeal  by  special  leave  is  directed  against  the

judgment  dated  01.03.2005  of  the  High  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.

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

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death  it  passed  on  to  his  wife  Sumitra  and  then  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 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 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  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 were thus in illegal possession of the suit property.  The

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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

1.2.1962 though one Ram Singh who was the sub-tenant of

Ajuddhibai.

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  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 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

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adverse  possession  as  the  suit  was  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.

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.

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 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.    

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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

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  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.

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.

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Land  Revenue  Code  (hereinafter  referred  to  as  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  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  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 especially when Baijnath, son of Mahadev Prasad

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

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

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aforesaid  order  the  High  Court  formulated  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 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?

(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?”

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 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 Revenue

Code, came to the conclusion that Ajuddhibai had no right to

execute  the  will  in  respect  of  agricultural  land  prior  to

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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

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 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-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 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 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  Devi.   The suit  property  was

then  governed  by  the  Madhya  Bharat  Land  Revenue  and

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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  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,  provided  for  the  order  in  which  the

devolution of  the rights  of  a Bhumiswami would take place

after his death.  The 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 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.

14. Transfer of interest of Bhumiswami in his land otherwise

than by  Will  subject  to  Section  164 was  dealt  with  by  the

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unamended  Section  165  of  the  Code.   However,  the  words

“otherwise than by will” was deleted by the 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  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.

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  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 MP

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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, 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  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

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

appellant no.1 to make appellant nos. 2 to 5 fall under Class

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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 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 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: “16.  During  the  course  of  hearing  an  application  is filed by the respondents under Order 6 Rule 17 CPC 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 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. 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 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

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amendment which totally goes to change the premises of the suit after a lapse of more 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 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 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  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 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 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 “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

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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.”   

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  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.

21. In our view, since the appellant  sought amendment 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 1267, this

Court held that the power to grant amendment to pleadings is

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intended to serve the needs of justice and is not governed by

any such narrow or technical limitations.

23. In  Pandit Ishwardas vs.  State of Madhya Pradesh

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 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 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  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 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 appellate stage merely because the necessary 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 allowed by the High

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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 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  question no.2  afresh,  taking

into  consideration  the  relief  sought  for  by  the

plaintiff-appellant by amending the plaint.

…………………………….J. (M.Y. Eqbal)

…………………………….J. (Amitava Roy)

New Delhi May 14, 2015

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