Page 1 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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Page 2 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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Page 3 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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 141, 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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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Page 16 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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