Manmohan Singh, J.

1. By this common order, I propose to decide two applications, one being I.A. No. 11855/2008, filed by the defendant Nos. 3 and 4 under Section 3 of the Limitation Act, 1963 and the other being I.A. No. 9513/2011, filed by the plaintiff under Order VI Rule 17 of CPC seeking amendment in the plaint.

2. The plaintiff has filed the instant suit for partition and permanent injunction. The plaintiff claims to be one of the heirs of her father, late Shri Daljeet Singh. The plaintiff is the daughter of late Shri Daljeet Singh and the defendant No. 1 and is the sister of defendant Nos. 2 to 4.

3. According to the plaintiff, her father died intestate and after his death the plaintiff alongwith other defendants acquired 1/5th share in the property known as Bhishan Niwas situated at College Road, Civil Lines, Ludhiana (herein after referred to as the Bhishan Niwas property) and also in the property bearing No. A-1/237, Safdar Jung Enclave, New Delhi (herein after referred to as the Safdar Jung property).

4. During the pendency of the proceedings, the defendant No. 1 passed away on 27.03.2007 and as a result the plaintiff is now claiming her share as 1/4th in the said properties. As per the plaintiff, Shri Sahib (Dr.) Bhishan Singh who was the grandfather of the plaintiff and defendant Nos. 2 to 4 was the owner of the Bhishan Niwas property and upon his death on 14.10.1971 he left behind a will dated 16.05.1968, which inter-alia provided:

Kothi Bishan Niwas, B - 19/541 at College Road, Civil Lines, Ludhiana my son S. Daljit Singh should get." My sister Bibi Joginder Kaur will have the right to reside in rooms of this house according to her wishes. If S. Daljit Singh dies during my sisters lifetime, his wife Surinder Kaur will be the owner. If she also dies, then, this Kothi will be given to S. Daljit Singh heirs.

5. As per the case of the plaintiff, pursuant to the death of their father Shri. Daljit Singh, all his legal heirs i.e. plaintiff and the defendants acquired 1/5th share each in both the above mentioned properties and upon the death of defendant No. 1, the share of the plaintiff increased to 1/4th undivided share as co-owner in the said properties.

6. The case of the defendants is that Shri Daljeet Singh died on 16.06.1996 leaving behind a duly registered will dated 27.10.1985 wherein he has bequeathed the Bhishan Niwas property to his wife i.e. defendant No. 1 and the Safadarjung property is owned by the defendant No. 3 who had purchased the said property by paying consideration to her mother. Therefore, the present suit is not maintainable.

7. Firstly, I would like to take up the application filed by the plaintiff, being I.A. No. 9513/2011, seeking an amendment in the plaint. It is stated in the application by the plaintiff that a bonafide typographical error has occurred in two paragraphs in the plaint with regard to the date of death of Shri Daljeet Singh, the father of the plaintiff, in para three of the plaint the date of his death has been wrongly typed as 14.10.1971 instead of 16.06.1996 and in para 10 of the plaint it has been typed as 1985.

8. The application has been opposed by the defendants in their reply. Mr Sidhu, the learned Senior Counsel, has argued that since the suit itself is not maintainable being time barred, the question of allowing the amendment does not arise, thus it is liable to be dismissed. Counsel has also referred to various decisions in support of his submission. It is settled law that where pleadings are defective, amendment would be allowed.

9. The Supreme Court, in Revajeetu Builders and Developers v. Narayanaswamy, : (2009) 10 SCC 84 [LQ/SC/2009/1922] , observed in para 63 as under:

Factors to be taken into consideration while dealing with applications for amendments-

63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment-

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case

(2) Whether the application for amendment is bona fide or mala fide

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

10. It is trite to state that while allowing the amendments to pleadings a liberal approach should be adopted by the Courts.

11. This has been so stated in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, : AIR 1967 SC 96 [LQ/SC/1965/222] where the Supreme Court had clarified that the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation.

12. Considering the well settled law on this aspect, the application filed by the plaintiff, being I.A. No. 9513/2011, for seeking amendment of the plaint, is allowed because of the reason that no prejudice would be caused to the defendants if the prayer made in the application is allowed as it is the admitted position that the date of death of Sh. Daljeet Singh is 16.06.1996 and not 14.10.1997 as mentioned in the plaint. The said factum of death is also established from the death certificate of late Sh. Daljeet Singh is filed by the plaintiff.

13. Accordingly, this application is disposed of.

14. Now I shall deal with the application filed by the defendants No. 3 and 4, being I.A. No. 11855/2008, under Section 3 of the Limitation Act, 1963.

15. The defendants filed the application for dismissal of the plaint for being barred by limitation. In the said application, it is stated by the defendants that the instant suit, was instituted in the year 2004, long after the expiry of prescribed period of limitation and therefore, it must be dismissed in accordance with the aw as enacted in Section 3 of the Limitation Act, 1963.

16. It is also stated by the defendants that the plaintiff has filed this suit as an heir against other heirs, for separating her share and allotting and delivering the same to her. As there is no specific Article in the Limitation Act, 1963 which would be applicable to such a suit, therefore, it would be governed by Article 113 of the said Act. Further, it is stated by the defendants that the plaintiff in her plaint has herself pleaded that the cause of action for this suit arose on the death of her father who died intestate in 1985.

17. Thus, according to the defendants, the cause of action if any arose i.e. in the year 1985 but the present suit was instituted in the year 2004, long after the expiry of period of limitation of 3 years.

18. As per the defendants, in this case, the plaintiff is not claiming the suit property as a co-parcenary, but as the left behind property by S. Daljit Singh as his own on the date of his death. The mode of succession pleaded by the plaintiff herself is not survivorship, but succession simplicitor.

19. Further, it is stated by the defendants that plaintiff has made self contradictory statements in the plaint as on one hand the plaintiff has stated that she requested the defendants on several occasions for partition and possession of her share over a long period of time, on the other hand she stated that she is in "constructive possession" of her share in the said property on the other hand. A person is in constructive possession when someone representing him is in actual possession. Therefore, the pleas of the plaintiff are contradictory. The plaintiff has actually never been in joint or "concurrent possession" and she has used the term "concurrent possession" in her pleadings, only to divert the attention of this Court from the real issue of belated claim to her fathers property.

20. The argument on behalf of the plaintiff that on the point of limitation is that as per the defendants the time to file the suit would start to run from the death of their father but, the learned senior counsel for the defendants has failed to explain as to how under Article 113 of the Act death can be the starting point of the commencement of period for the purpose of limitation. A plain reading of Article 113 would establish that the intention of the legislation was not to provide the commencement of the time to be the date of death of the owner, but, what has been prescribed is that when the right to sue accrues which has been interpreted in series of judgments.

21. In the present case, it is averred in para 17 of the plaint that the cause of action arose on 20.06.2004 when the plaintiff learnt that the defendants 1, 3 and 4 are negotiating for disposal of the suit property, the suit was instituted by the plaintiff in the month of June 2004 itself.

22. There is no prima facie cogent evidence available on record to the contrary to statement made by the plaintiff. Hence, I am of the view that the point of limitation raised by the defendants 3 and 4 in their application would have to be determined after the trial of the suit.

23. The question whether the suit is barred by limitation or not is always a mixed question of facts and law, unless the reading of plaint itself s shows that the suit is barred by limitation and under only those circumstances a plaint can be rejected at the threshold itself.

24. In the case of State of Punjab and Ors. v. Gurdev Singh; : (1991) 4 SCC 1 [LQ/SC/1991/408] , the Supreme Court has dealt with Section 3 of the Limitation Act extensively. Para 6 of the said judgment reads as under:

First of all, to say that the suit is not governed by the law of limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence, Section-2(j) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(i) also defines, "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act. The Courts function on the presentation of plaint is simply to examine whether, on the assumed facts the plaintiff is within time. The Court has to find out when the "right to sue" accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fail within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act 1908) is a residuary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article 113. According to the third column in Article 113, time commences to run when the right to sue accrues. The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted (See: (i) Mt. Bole v. Mt. Koklan and Ors. and (ii) Gannon Dunkerley and Company v. The Union of India)

25. The Learned Counsel for both parties have referred various judgments in support of their respective contentions. On this, I feel it necessary to discuss the said decisions at this stage as after reading the plaint in meaningful manner. In the case of Hardesh Ores (P) Ltd. Vs. Hede and Company, : (2007) 5 SCC 614 [LQ/SC/2007/699] ) it was held as under :

25. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr Nariman did not dispute that "law" within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I and Popat and Kotecha Property v. State Bank of India Staff Assn.

I am not convinced that the plaint be rejected at this stage in view of the facts and circumstances of the present case. The contention of the defendants 3 and 4 cannot be accepted on the point of limitation, as I am of the view that it had to start when the right to suit accrues on the denial of rights of the plaintiff and not from the death of father of the plaintiff. Moreover, the plaintiff in para 17 of the plaint has specifically alleged that cause of action arose on 20.06.2004 when the plaintiff learnt that the defendants No. 1, 3 and 4 in order to deprive the plaintiff of her legitimate rights in the suit property are negotiating for disposal of the property and also arose when the plaintiff requested the defendants to partition the suit property.

26. The other aspect of the matter is that earlier application under Order VII Rule 11 CPC for rejection of plaint, being I.A. No. 5485/2004, filed by defendants No. 3 and 4 containing the same prayer was disposed of by the Court vide order dated 24.04.2007, though the similar relief of limitation was not decided as raised by the defendants, but no doubt the same was raised in the said application. In view of the aforesaid overall reasons and facts and circumstances of the present case, I.A. No. 11855/2008 is dismissed.

CS (OS) No. 694/2004

The amended plaint filed by the plaintiff is taken on record. The written statement, if any, to the amended plaint be filed within four weeks. List on 15.03.2012.