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Citation Codes
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  • Rule 17, order 6, Civil Procedure Code,
  • sub-rule (2) of Rule 17,
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The opinion concerns litigation over a gift (by mutation dated 28 May 1951) made in favour of three donees (Daljit, Bed Ram and Kanwal Singh) said to be children born to Smt. Daryai and alleged by the appellants to be the sons of the donor, Duli Chand. The suit challenged the validity of that gift.

Procedurally: an earlier judgment (Tulla Ram v. Bhartu etc., RSA 377 of 1956) had held that the three defendants were not the sons of Duli Chand but were children of Sher Singh, because Smt. Daryai had been lawfully married to Sher Singh when the children were born. The trial Court, finding the land to be ancestral and treating the earlier judgment as conclusive, held the gift invalid and decreed the plaintiff's suit. The District Judge on first appeal upheld those conclusions and dismissed the appeal.

On second appeal the appellants sought permission to amend their written statement to plead that the gift was made by Duli Chand in lieu of services rendered by the donees (an alternative plea) and to adduce evidence of local custom to support validity of the gift even if the donees were not legitimate sons. The Court considered prior authorities regarding amendment of pleadings, allowed the amendment (despite some formal defects), remitted the new issue (whether the gift is supportable under custom) to the trial Court for evidence and findings, and later—on receipt of the remand report and appellate review—held the gift valid and allowed the appeal, setting aside the judgments and decrees below and dismissing the plaintiff's suit.

Legal Issues Presented

  1. Is the gift by means of mutation dated 28th May, 1951 valid?
  2. Is the suit land ancestral qua the parties?
  3. What is the effect of the judgment of the Honourable High Court (earlier decision) on the present suit?

Arguments of the Parties

Appellants' Arguments

  • The appellants (defendants below) asserted they were the sons of Duli Chand, had been brought up and had rendered services to him, and thus the gift was made in their favour (allegedly in lieu of services) and should be upheld.
  • Because their legitimate-son claim failed on earlier litigation, they sought leave to amend their written statement to advance the alternative plea that the gift was made in lieu of services and to prove a local custom that would support the gift even if they were illegitimate.
  • They relied on authorities recognizing wide judicial power to permit amendments at late stages in the interest of justice, and cited several cases in support of permitting amendment (examples cited in the opinion include Kartar Singh Hira Singh v. Mal Singh Surjan Singh, Mohummud Zahoor Ali Khan v. Mussamat Thakoo Ranee Rutta Koor, and other authorities).

Plaintiff / Respondent's Arguments

  • The plaintiff relied on prior findings (in earlier litigation) that the three donees were not the sons of Duli Chand but were children of Sher Singh, because Smt. Daryai was lawfully married to Sher Singh when the children were born; hence the donees could not challenge the gift and the gift was void as against the plaintiff in ancestor property.
  • It was urged that the land was ancestral property and that no gift could be made to a stranger; the lower Appellate Court noted this position.
  • On the question of custom, the plaintiff (or the plaintiff's counsel before the court on appeal) referred to Exhibit P-8 (a question-and-answer on custom from the Riwaj-a-am of district Gurgaon) and submitted that it referred only to gifts in favour of non-relations, thereby seeking to limit the scope of the custom relied on by the appellants.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Tulla Ram v. Bhartu etc., RSA 377 of 1956 (24.11.1960) Prior decision holding Bed Ram, Daljit Singh and Bharte alias Kamla not to be sons of Duli Chand because Smt. Daryai was lawfully married to Sher Singh when the children were born. Used as an earlier judgment that worked against appellants' claim of legitimacy; the trial Court treated that earlier judgment as conclusive on parentage.
Kartar Singh Hira Singh v. Mal Singh Surjan Singh etc., AIR 1954 Pep. 39 Illustration that rules of procedure are to promote justice and that courts may permit amendments (even at late stages) when necessary to do justice. Cited by appellants in support of allowing late amendment; the court found the facts of that case not analogous but agreed with the general observation as unexceptionable.
Mohummud Zahoor Ali Khan v. Mussamat Thakoo Ranee Rutta Koor, 11 Moore's Indian Appeals 468 Authority (Privy Council) permitting amendment and remanding with a direction to allow amendment. Cited to show instances where amendment was permitted; used to support the broad power of courts to allow amendments subject to judicial principles.
Weldon v. Neal, 1887 (19) QBD 394 Authority that a plaintiff will not be allowed to amend to set up fresh claims in respect of causes of action which have become barred by limitation since the writ issued. Noted by the court but expressly considered inapposite to the appellants' situation.
Tildeslov v. Harper, L.R. 1878 (79) 10 Ch.D. 393 General principle that leave to amend should be given unless application is mala fide or causes irreparable injury to opponent. Cited for the proposition that courts generally grant leave to amend in fit cases; used in surveying relevant authorities on amendment.
Pirgonda Patil v. Kalgonda Patil etc., AIR 1957 SC 363 Supreme Court approval that amendments should be allowed when they do not work injustice and are necessary to determine real controversy. Relied upon to state the test for allowing amendments (no injustice; necessary to determine real questions); the court applied that test in permitting the amendment.
Kisandas Rup Chand etc. v. Rachappa Vithoba Shilwant etc., ILR 33 Bombay 644 Observations (quoted in Pirgonda Patil) articulating the general rule on amendments — allow unless it causes injustice which cannot be compensated. Used as part of the judicial authorities setting forth the legal standard for permitting amendments; informed the court's discretion.
Singhai Ajit Kumar and another v. Ujagar Singh, AIR 1961 SC 1334 Authority cited (by remand report) supporting treatment of illegitimate sons as not strangers in certain contexts under custom. Referenced in the lower Appellate Court's remand report to support the conclusion that illegitimate sons could be considered agnates and therefore the gift to them was supportable under custom; the present Court did not overturn that reliance.

Court's Reasoning and Analysis

The Court proceeded in two connected phases: (A) the question whether to allow the appellants to amend their written statement to raise the alternative plea (gift in lieu of services and reliance on custom), and (B) the substantive question whether the gift was supportable under custom and therefore valid.

A. On amendment: The Court reviewed authorities on the scope of judicial power to permit amendments (noting authorities from the Privy Council, English law and the Indian Supreme Court). Applying the established test (as stated in Pirgonda Patil and allied authorities) the Court asked whether the proposed amendment would work injustice to the other side and whether it was necessary to determine the real questions in controversy. The Court observed:

  • The appellants' original plea that they were legitimate sons had failed in prior litigation; the alternative plea (that the gift was in lieu of services / supported by custom) emerged as necessary to determine the real controversy as to validity of the gift.
  • Although the formal application for amendment did not strictly comply with newly added sub-rule (2) of Rule 17, Order 6 (which requires a written application specifying the exact amendments), the substance of the amended written statement corresponded to the earlier oral order allowing amendment.
  • One technical objection was that Kanwal Singh was not an appellant in this Court; the Court inspected the record and noted Kanwal Singh was a minor represented earlier by a guardian and allowed amendment on his behalf too.
  • Given the absence of injustice that could not be compensated (costs were ordered), the Court permitted the amendment and remitted the newly-formulated issue to the trial Court to record evidence on the custom and give findings; those findings were to be forwarded to the lower Appellate Court and then back to this Court within a specified time-frame.

B. On the substantive validity of the gift after remand: The trial and appellate process produced a remand report by the Additional District Judge concluding that the general agricultural custom of the Punjab permits gifts in favour of relations who have rendered services to the donor, and that such gifts could be made to agnates including illegitimate sons treated as agnates. The lower Appellate Court's remand report relied in part on a decision of the Lahore High Court and on Singhai Ajit Kumar v. Ujagar Singh (AIR 1961 SC 1334).

The respondent's counsel attempted to challenge the remand conclusion by reference to Exhibit P-8 (Riwaj-a-am of district Gurgaon), arguing it referred only to gifts to non-relations. The Court rejected that contention as insufficient to overturn the remand finding. The Court found nothing convincing to persuade it to disagree with the lower Appellate Court's conclusion that under the relevant custom illegitimate sons could not be treated as strangers and that gifts to them were supportable.

On that basis the Court concluded the gift was valid. The Court therefore reviewed and reversed the judgments and decrees of the Courts below which had held the gift bad, and proceeded to dismiss the plaintiff's suit.

Holding and Implications

Holding: The Court ALLOWED THE APPEAL and held that the gift in question was valid. The judgments and decrees of the Courts below were set aside and the plaintiff's suit was dismissed.

Consequences and practical implications:

  • Direct effect on the parties: The plaintiff's suit challenging the gift is dismissed; the gift made by Duli Chand in favour of the donees (children born to Smt. Daryai) is declared valid in the circumstances addressed by the Court.
  • Costs: In the peculiar circumstances of the case the Court directed that the parties shall bear their own costs throughout (i.e., no party is awarded costs against the other at the final disposal).
  • Remand and evidentiary consequence: Earlier in the proceedings the Court had allowed the appellants to amend their written statement (subject to costs and formal compliance) and remitted the question of the custom's applicability to the trial Court for evidence and findings; the subsequent remand report and appellate consideration led to the final holding in favour of the gift's validity.
  • Precedential impact: The opinion does not announce that it is laying down any new broad legal precedent beyond its application of existing authority on amendments and the assessment of custom as applied to the facts; the decision's immediate legal consequence is the dismissal of the plaintiff's suit and the validation of the gift in the particular factual and customary context considered.

This summary was prepared strictly from the content of the provided opinion. No extraneous facts or inferences beyond the opinion's text have been introduced.

    Daljit Singh Alias Daljit And Another v. Tulla Ram And Others

    (1) Is the gift by means of mutation dated 28th May, 1951 valid ? (2) Is the suit land not ancestral qua the parties ? (3) What is the effect of the judgment of the Honourable High Court on the present suit ? 2. It appears that in another proceeding in which a gift made by Tulla Ram plaintiff in favour of his daughter was contested, this Court held that Daljit, Bed Rem and Kanwal Singh (the three defendants in the present litigation) were not proved to be the sons of Duli Chand and that they were the sons of Sher Singh and, therefore, not entitled to challenge the gift by Tulla Ram in favour of his daughter. 3. The trial Court held the land to be ancestral and the earlier judgment to be conclusive with the result that the donees in the present case were held not to be the sons of Duli Chand. On these findings the gift was held to be bad as against the plaintiff and his suit was accordingly decreed. 4. On appeal, the learned District Judge upheld the conclusions of the Court of first instance and dismissed the appeal. It was also urged before the Court of first appeal that the gift had been made by Duli Chand in lieu of services rendered by the donees but since there was no such plea in the written statement, the lower Appellate Court declined to entertain it. The Court also in passing observed that the property in dispute being ancestral property no gift could be made to a stranger. 5. On second appeal, after reading the judgments of the two Courts below, Shri Hoshiarpuri has concentrated on the prayer that the written statement should be allowed to be amended and the plea of gift in lieu of services to be allowed to be included in the written statement. The counsel has referred to the earlier decision by a learned Single Judge of this Court in Tulla Ram v. Bhartu etc., RSA 377 of 1956, decided on 24.11.1960, where this Court on second appeal held Bed Ram, Daljit Singh and Bharte alias Kamla not to be the sons of Duli Chand. According to the findings given in the earlier case, Duli Chand had abducted one Smt. Daryai and that during the period of her abduction the present donees were born to her. From this fact, the learned Single Judge declined to conclude Smt. Daryai's children to be the sons of Duli Chand "because admittedly Sher Singh with whom Smt. Daryai was lawfully married before she was abducted by Duli Chand was not only alive when the plaintiffs were born but he was also living in the same house as Smt. Daryai and Duli Chand. The marriage between Sher Singh and Smt. Daryai had never been dissolved." No custom suggesting validity of marriage between Duli Chand and Smt. Daryai was pleaded in prior litigation. 6. It is contended that the gift appears to have been made in favour of the donees by Duli Chand because they were in fact born from his loins and that it was on account of the technicalities of law that in the previous litigation they were held not to be the sons of the donor. It is emphasised that the donees used actually to serve Duli chand and the gift was also made in lieu of services. It is on this basis prayed that the written statement should be allowed to be amended and trial of the additional issue directed. In support of the plea, following authorities have been cited on behalf of the appellants. Kartar Singh Hira Singh v. Mal Singh Surjan Singh etc., AIR 1954 Pep. 39, in which a Division Bench of Pepsu High Court laid down that rules of procedure are meant to enable Courts to do justice between the parties and not to stand in their way and that, therefore, a party should be allowed to amend the plaint or retract an amendment already allowed to be made even at the stage of second appeal when the Court is satisfied of its necessity. There, a suit for declaration was allowed to be amended to be converted into a possessory suit. Finding that a suit for possession was barred by them, it was prayed in the High Court that the prayer should be confined to declaration only. On these facts the prayer was allowed. I do not think there is any analogy between the facts and circumstances of the case cited and of the case in hand. The relief by way of possession being a larger relief even without a formal amendment the Court might legitimately grant relief by way of declaration simpliciter. The observations of the rules of procedure being intended to promote the cause of justice are unexceptionable and I respectfully agree with them. Mohummud Zahoor Ali Khan v. Mussamat Thakoo Ranee Rutta Koor, 11 Moore's Indian Appeals, 468, shows that the Privy Council allowed a prayer for amendment and remanded the case to the High Court with a direction to allow the appellant there to amend his plaint. It may here be observed that it is not disputed that the power of amendment is very wide and can be exercised at any stage of the litigation but it is equally indisputable that this power must be exercised on well recognised judicial principles and it does not depend on the whim or caprice of the Court. Weldon v. Neal, 1887(19) QBD 394 is however, an authority for the proposition that the plaintiff will not be allowed to amend by setting up fresh claims in respect of causes of action which since the issue of the writ have become barred by the Statute of Limitations. This ratio is obviously of no assistance to the appellants. The observations of Lopes, L.J. that Court ought to give all reasonable indulgence with regard to amending, notwithstanding the first negligent or careless omission can only be attracted in a fit case. In the reported decision it is instructive that the amendment sought was not allowed. In Tildeslov v. Harper, L.R. 1878(79) 10 Ch.D. 393 leave to amend the statement of defence was given on appeal and it was observed by Bramwell, L.J. that it was always his practice to give leave to amend unless he was satisfied that the party applying had acted mala fide or that his blunder had done some injury to his opponent which could not be compensated for by costs or otherwise. I have referred to these cases of their having been cited at the bar. The position has been considered by the Supreme Court more than once. Pirgonda Patil v. Kalgonda Patil etc., AIR 1957 SC 363 approved the following observations of Batchelor, J. in Kisandas Rup Chand etc. v. Rachappa Vithoba Shilwant etc., ILR 33 Bombay 644 :- "All amendments ought to be allowed which satisfy the conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties, but I refrain from citing further authorities, as, in my opinion they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused, to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test, therefore, still remains the same, can the amendment be allowed without injustice to the other side, or can it not ? This being the true test, let me see if the case in hand the amendment claimed can be allowed. 7. It is asserted that the defendants-appellants are the sons of Duli Chand and were brought up by him and it is they alone who have been cultivating the land in dispute and supporting Duli Chand in all respects, and rendering him service. The finding against the defendants being the sons of Duli Chand has been passed on a prior judgment between the parties in which marriage between Duli Chand and Smt. Daryai was held to be invalid because Smt. Daryai's husband Sher Singh was alive and that marriage had not been dissolved. It appears that Duli Chand had abducted Smt. Daryai and the donees were born during the period of abduction. On this premise, it appears to me that the amendment sought would promote the cause of justice because even though the defendants may not be the legitimate sons of Duli Chand, having been begotten from a woman whom Duli Chand had abducted and kept her as his mistress or de-fect wife during the existence of her previous husband. The real controversy in this litigation is whether the gift made by Duli Chand in favour of the children born from his loins from Smt. Daryai is supportable under custom so as to disentitle the plaintiffs from challenging it. It is true that they could have putforth this alternative claim in support of the gift, but is only where a party fails to put-forth all the pleas that the necessity of amendment arises. Their plea of their being the legitimate sons Duli Chand has failed on account of prior litigation where they had contested the gift made by Tulla Ram in favour of his daughter. Smt. Bhartu Tulla Ram and Duli Chand, it may be stated, were brothers. In my opinion therefore, it is fit case in which this Court should exercise its discretion in permitting the amendment sought and the plaintiffs can be amply compensated by awarding costs. 8. The application filed on behalf of the appellants does not seem to me to be strictly in accordance with the formalities prescribed by the rules framed by this Court, though the substance is quite clear. I should in the circumstances direct the appellants to put in the plea to be amended in the written statement in conformity with the rules. This should be done within one week from today. Order dated 28th February, 1963 Inder Dev Dua, J. - This order may be read in continuation of my order dated 22nd January, 1963. Shri Hoshiarpuri put in the amended written statement on 29th January, 1963 to which Shri Sarin objected on the ground that it did not comply with the amended Rule 17, order 6, Civil Procedure Code, as added by this Court. According to sub-rule (2) of Rule 17, as added by this Court every application for amendment has to be in writing and it shall state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original pleadings. Though on behalf of the appellants these objections have been controverted, there is little doubt that the amended written statement does not in form comply with this rule. Another objection raised is that the amended written statement also purports to be on behalf of Kanwal Singh who was not an appellant in this Court and who did not apply for amendment. 10. In so far as the second objection goes, I find from the record that Kanwal Singh was a minor in the trial Court and a written statement had been filed by him through his guardian who was an ahlmad attached to the trial Court. As usually happens and was expected the written statement is very perfunctory sort of a document and, therefore, if his case is common with that of the appellants, I think he must also be allowed to modify his prior written statement and I order accordingly. 11. Though the written statement does not conform to the rule added by this Court, after having gone through the original as well as the amended written statement it appears to me that in substance it is in accord with the order passed by me on 22nd January, 1963. It would in the circumstances serve no useful purpose to direct the appellants to put in a written statement which in form strictly complies with the rule added by this Court. I would thus allow this written statement as amended to remain on the record and to constitute the amended pleading. 12. On the original pleadings in the light of the amendment permitted the only question which by now requires trial is whether the gift in question made by Duli Chand in favour of the children born from his loins from Smt. Daryai is supportable under custom so as to disentitle the plaintiff from challenging it and it is this issue which is being remitted to the trial Court for adjudication. The parties are entitled to lead evidence on the custom in question. The trial Court after recording the evidence produced should give its findings which should then be forwarded to the lower Appellate Court for its findings after notice to the parties and hearing them. The report with the finding of the lower Appellate Court should be submitted back to this Court within six months from today. As soon as the report arrives here the office should give notice to the parties who would be entitled to put in objections within a fortnight from the date of notice. 13. Parties are directed to appear in the trial Court (or the successor of the trial Court) on 25th March, 1963 when the Court will fix another date for production of evidence and then proceed to dispose of the case in accordance with law and in the light of the observations made above. 14. This amendment has been allowed conditionally on payment of Rs. 50/- as costs. Costs should be paid on or before 25th March, 1963 in the trial Court. Judgment Inder Dev Dua, J. - In this appeal, after following amendment, I sent the case down to the trial Court for recording evidence and giving its findings to be remitted back to this Court through the lower Appellate Court. 16. This order may accordingly be read in continuation of my orders dated 28th February, 1963 and 22nd January, 1963. The learned Additional District Judge has come to the conclusion that the general agricultural custom of the Punjab allows gifts in favour of relations who have rendered services to the donor and that such gift could be made to agnates and illegitimate sons are to be treated as agnates. The gift in question, therefore, made by Duli Chand in favour of the defendants, who are his illegitimate sons, is supportable under custom which the plaintiff is not entitled to challenge. It may be observed that the Court of first instance have come to a contrary conclusion. 17. Before me, on appeal, the learned counsel for the respondents has not been able seriously to assail this conclusion of the lower Appellate Court. He has, however, referred me to Exhibit P-8, which is a copy of a question and answer to custom from Riwaj-a-am of district Gurgaon and it has been submitted that this only refers to gift in favour of non-relations. I do not understand how on the basis of this contention, the conclusion of the learned Additional District Judge in his remand report can be reversed. The learned Additional District Judge has observed in his remand report that the rule mentioned therein applies when the legitimate sons of the donor are also alive; he has also held on reference to some decision of the Lahore High Court and to Singhai Ajit Kumar and another v. Ujagar Singh, AIR 1961 SC 1334, that the illegitimate sons of Duli Chand could not be considered as strangers. This conclusion has not been seriously assailed before me and nothing convincing has been urged to persuade me to disagree with the view of the lower Appellate Court. 18. The result, therefore, is that agreeing with the opinion of the lower appellate Court expressed in the remand report, I hold that gift in question is valid. So holding, I allow this appeal and setting aside the judgments and decrees of the Courts below, dismiss the plaintiff's suit, but the parties are directed, in the peculiar circumstances of the case, to bear their own costs throughout. Appeal allowed.

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    Daljit Singh Alias Daljit And Another v. Tulla Ram And Others
    (Dec 24, 1964)