1996 INSC 0125
                                                    Radhika Devi

                                                           Vs

                                             Bajrangi Singh and Others

                                          Civil Appeal No. 2719 of 1996

                                       (K. Ramaswamy, G.B. Pattanaik JJ)

                                                      18.01.1996

                                                     JUDGMENT

1.We have heard learned counsel for both sides.

2. Leave granted.

3. The appellants has instituted Partition Suit No. 24/88 in the Court of Subordinate Judge,
Aurangabad for partition of certain properties. Respondents 16 to 20 herein filed written statement
on June 15, 1988 wherein they pleaded that Ramdeo Singh had executed and registered a gift deed
in their favour on July 28, 1978, bequeathing the properties covered thereunder. They became
owners of those lands and the appellant is bound by the same. Pending the suit, the appellant filed
an application under Order 6 Rule 17, C.P.C. on November 11, 1992 seeking declaration that the gift
deed was obtained by the respondents illegally and fraudulently and, therefore, it was ineffective
and does not bind the appellant. Though the trial Court by order dated November 24, 1992, allowed
the petition, the High Court in Revision No. 1657/92 by order dated August 13, 1993, allowed the
petition and set aside the order directing amendment of the plaint. Thus, this appeal by special leave.

4. Shri S. K. Sinha, learned counsel for the appellant had no knowledge of the execution of the gift
deed by Ramdeo Singh and by the amendment of the plaint, the appellant is not defeating the right
of the respondents but is merely seeking to avoid the gift deed executed which was detrimental to
appellant's right, title and interest in the property. Therefore, the amendment does not alter either the
character of the suit or the nature and the relief already sought, viz., partition of the property. Shri
Sanyal, the learned senior counsel for the respondents, contended that the appellants had lost the
right to seek the above declaration as being barred by limitation. The registration of the document is
a notice to everyone claiming any right, title and interest therein; even otherwise, the respondents in
the written statement filed on June 15, 1988 has specifically pleaded about the gift being made by
Ramdeo Singh in their favour. Despite that, the appellant had not taken any steps till November
1992, by which times even the suit for declaration within the limitation of three years from the date
of knowledge had got timebarred. Therefore, the appellant is not entitled to amend the plaint which
would prejudicially affect the rights of the respondents.

5. We find no force in the contention of the appellant. No doubt, the amendment of the plaint is
normally granted and only in exceptional cases where the accrued rights are taken away by
amendment of the pleading, the Court refuse the amendment. This Court is Laxmidas Dahyabhai
Kabarwala v. Nanabhai Chunilal Kabarwala, (1964) 2 SCR 567 at 582 : (AIR 1964 SC 11 at p. 18),
held thus :

                  "It is, no doubt, true that, save in exceptional cases, leave to amend under 0.6, R.17
                  of the Code will ordinarily be refused when the effect of the amendment would be
                  take away from a party a legal right which had accrued to him by lapse of time. But
                  this rule can apply only when either fresh allegations added or fresh reliefs sought by
                  way of amendments. Where, for instance, an amendment is sought which merely
                  clarifies an existing pleading and does not in substance add to or alter it, it has never
                  been held that the question of a bar of limitation is one of the questions to be
                  considered in allowing such clarification of a matter already contained in the original
                  pleading. The present is a fortiori so. The defendants here were not seeking to add
                  any allegation nor to claim any fresh relief which they had prayed for in the pleading
                  already filed".

6. In that case this Court considered the cross objections to be treated as a cross suit since no
alteration was being made in the written statement to treat it as a plaint originally instituted. The
amendment which was sought to be made was treated to be clarificatory, and, therefore, this Court
had upheld the amendment of the written statement and treated it to be a cross suit. The ratio therein
squarely applies to a fact situation where the party acquires right by bar of limitation and if the same
is sought to be taken away by amendment of the pleading, amendment in such circumstances would
be refused. In the present case, the gift deed was executed and registered as early as July 28, 1978
which is a notice to everyone. Even after filing of the written statement, for 3 years no steps were
taken to file the application for amendment of the plaint. Thereby the accrued right in favour of the
respondents would be defeated by permitting amendment of the plaint. The High Court, therefore,
was right in refusing to grant permission to amend the plaint.

7. The appeal is accordingly dismissed but without costs. Appeal dismissed.