We filed a civil suit in 2018 for Cancellation of the sale deed, as by means of saled deed, the specific portion of the land has been sold out. a specific portion of the joint ancestral property can not be sold out. partition never executed. The WS filed in the year 2022. apart from the above-mentioned contention, our other contention is that the sale deed must also be canceled because of Sec-22 of the Hindu Succession Act (which says that the first right of purchase of ancestral property remains with the plaintiff as we are brothers & coowners) this contention is not mentioned in the plaint but we have added this contention only in replica. We have not sought any relief under sec -22 of the act. My question is - do we have to amend the plaint and seek relier section 22 OR by mentioning this in replica we will be able to frame the issue? Since it is a law point and not a factual point DO we have to amend the plaint so that the issue can be framed for our said contention?
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1) It is settled law that amendment of pleadings under Order VI Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings
2)for raising questions of law amendment of plaint is not necessary
1. Yes, you can ask for consequential relief of preferential purchase after the cancellation of sale deed.
2. This point s based on fact only and need to be included in the plaint.
The proposed amendment is essential because it is pertinent to get a relief from court restraining the defendants from selling the ancestral property to outsiders before offering the sale to cosharers.
Section 22 provides that when an interest in any immovable property of an intestate devolves upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
Therefore you can file an amendment petition to add the proposed amendment in the pleadings as well as in the prayer seeking this relief.
for law points no amendment is required it can be raised at any stage
So, for our additional pleading, that the sale deed must be canceled because we were not given the opportunity to purchase the ancestral land we have to amend the Plaint.. and raising this contention in replica will not be sufficient for the court to consider this pleading...
You are at liberty to amend the plaint to raise the issue that you were not given opportunity to purchase the ancestral land
Your understanding is right.
Until and unless you don't specifically plead and make a prayer, the court will not grant the relief
Only the contentions raised in plaint is considered by court.
You can amend your prayers
Must have seek this prayer else wont be granted.
- Yes, you can add this prayer after amending the plaint after moving an application under Order 6 Rule 17 CPC for getting the benefit of section 22.
- This provision grants the court the power to allow parties to modify or alter their pleadings, including the plaint or written statement, at any stage of the proceedings.
- In the case of Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, it was clarified that courts should allow amendments to pleadings if they are necessary to determine the real issues in a case, as long as it doesn’t harm the other party or cause prejudice.
- Further, as per Supreme Court, Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
Dear client,
In order to prevent issues later, it is often advised in the Indian legal system to include all pertinent claims and reliefs requested in the initial plaint. There is a chance that the court won't take the argument pertaining to Section 22 of the Hindu Succession Act into consideration because it was added to the replication and not contained in the original plaint. Formally amending the plaint would ensure that the court treats your position regarding Section 22 appropriately. The reference to provision 22 of the Hindu Succession Act and the request for suitable relief under this provision should be made clear in this revision. If the plaint is not amended, the court may be less inclined to address this particular argument because the pleadings in the plaint usually serve as the basis for issue framing. Order VI, Rule 17 of the Code of Civil Procedure, 1908 grants the court the authority to permit pleading revisions, so long as the other party is not adversely affected. It is therefore advised to alter the plaint to specifically incorporate Section 22 and the related remedies.
Hope this helps you.
amendment is not required
you have sought cancellation of the sale deed in your prayer/relief
why that cancellation is sought for, the reasons are mentioned in the plaint so far the factual aspects are concerned
s.22 being a legal point is not required to be specifically pleaded
it is a law point
it can be raised at any stage and even in absence of pleadings in that regard
only facts have to be pleaded. not the law. law is as it is. if the law says that before effecting any sale the right of pre-emption or right of first refusal is required to be exercised, then any sale effected without such mandatory compliance, can be attacked basis such legal plea, even if that plea is not specifically pleaded in the pleadings
so in my view no amendment is needed
however if the issues are not yet framed and the trial has no commenced, then you can apply for amendment
if the trial has commenced and issues framed, then it will be very difficult to amend the plaint
