Hearing a petition seeking written statement by Vasundhara Raje Hemant Singh, Yashodhara Raje Bhansali, Padma Raje on the diverse immoveable and moveable properties of late Maharaja Jivaji Rao Scindia, ruler of the erstwhile princely state of Gwalior be set aside, Justice R. D Dhanuka of Bombay High Court recently held that no case has been made out for striking out of written statement as put up by late Madhav Rao Scindia and others against the title suit made by late Vijaya Raje Scindia and others. Thus, a notice of Motion (L) No.2482 of 2018 is dismissed. In effect, therefore, the court refused to grant any relief to former Minister and Congress leader, Jyotiraditya Scindia in a fight for ancestral properties that goes back decades.
The alleged inconsistencies in the affidavit dated 15 October 1985 and the written statements filed by defendants three to five – Vasundhara Raje Hemant Singh, Yashodhara Raje Bhansali and Padma Raje can be considered at the time of trial in the aforesaid suit.
The effect of the alleged inconsistency and contradiction in the pleadings filed by the parties in different suits also can be considered by this court at the stage of the trial.
The court though made it clear it had not expressed any views on the alleged inconsistencies or contradictions made by any of the parties in any of the suits or in the interlocutory proceedings. All such contentions are kept open.
The court directed to place the matter on board for directions before the learned Judge having assigned the suit for appropriate directions so as to proceed with the suit. There shall be no order as to costs The admitted facts are that the original plaintiff. Vijayaraje Jivajirao Scindia (the former Rajmata of Gwalior) had filed the suit against her son, Madhavrao Jivajirao Scindia and six others inter alia praying for a declaration that the moveable properties described in the plaint and all other immovable properties that may on proper enquiries be ascertained as having belonged to Sir H.H.Jivajirao (Hindu Undivided Family) were the HUF properties in which the plaintiff and the defendant number one were entitled to equal share. A decree of the partition of those properties equally between the plaintiff and the defendant number one and for other reliefs was prayed for.
During the pendency of the suit, the original plaintiff and the original defendant no.1 expired. Insofar as defendant numbers 3, 4 and 5 are concerned, they are married daughters of the original plaintiff and late Shri Jivajirao Scindia and were the sisters of the original defendant Madhavrao Jivajirao Scindia. Padma Raje was one of the daughters of the original plaintiff and the late Shri Jivajirao and the sister of the original defendant no.1 who expired.
It is contended that the late Jivajirao Scindia was the Karta and manager of the joint and undivided Hindu family known as the Sir H.H.Jivajirao HUF consisting of himself, the plaintiff, original defendant numbers 1 to 3 and 4 and 5 and the said Smt. Padma Raje. It is alleged that between the year 1961 and 1971 from time to time, defendant numbers 3 to 5 and the said Padma Raje and after her death, defendant Nos. 5 and 7 had received their shares in the estate of the said deceased in accordance with the law. It is further alleged that the rest of the said HUF properties, moveable and immoveable continued also belonged to the plaintiff and defendant number one in equal share as members of the joint family of which the defendant number 1 became Karta and manager on the death of Jivajirao Scindia
It is contended that the defendant numbers 2 to six are joined as proper parties to the suit but have no interest in the said moveable properties. It is not in dispute that in the said Suit No. 1861 of 1984, the original plaintiff had filed a Notice of Motion No.1742 of 1984 praying for various interim reliefs including the prayer of appointment of Court Receiver in respect of all moveable properties belonging to Sir H.H.Jiwajirao (HUF). The original plaintiff made some of the averments in the affidavit in support of the notice of motion which were made in the plaint.
It is the case of the applicant that on 15 October 1985, the defendant no.4 on behalf of herself and on behalf of defendant numbers 3 and 5 to 7 filed an affidavit stating that she had read the copy of the plaint and notice of motion and the copy of the affidavit in support of the notice of motion as well as the copy of the affidavit in rejoinder and in reply thereto. She herself and on behalf of defendant numbers, 3 and 5 to 7 sought leave to repeat and reiterate all the averments, submissions and statements made and contentions raised by the plaintiff as if they were incorporated in the said affidavit in verbatim and formed part of the said affidavit. It was prayed that the notice of motion is made absolute with costs. The said affidavit was filed by the defendant Nos. 3 to 7.
The defendant strongly placed reliance on the averments made by Smt.Vijayaraje Jivajirao Scindia, widow of late Shri Jivajirao Scindia in Special Civil Suit No. 705 of 1985 filed in the Court of Civil Judge, Senior Division at Pune against late Madhavrao Jivajirao Scindia and the daughters of the late Smt.Vijayaraje Jivajirao Scindia (widow of late H.H.Jivajirao Scindia) inter alia praying for a declaration that the plaintiff therein was having 50 per cent share in the properties.
In paragraph five of the plaint in the said suit, it was averred by the original plaintiff that the defendant no.1 i.e. late Madhavrao Scindia had also half share in the said properties. The defendant nos. 2 to 6 had already received their shares and they did not claim any share in the suit property. They were joined only as proper parties so that the said suit may not fail for non-joinder of necessary parties.
Senior counsel for the applicant, D J Khambata strongly placed reliance also on some of the allegations made by the defendant Nos. 3 to 5 in the written statement filed by them contending that defendant numbers 3 to 7 were given liberty to file written statement on or before 17 February 2017 by an order dated 20 January 2017. He submitted that the stand now taken in the written statement which is filed after more than 30 years of the service of the writ of summons, was totally new, contradictory and false claiming an equal share in the estate of the late Maharaja Jiwaji Rao Scindia as Class I legal heirs under section 8 of the Hindu Succession Act, 1956 for the first time is contrary to the affidavit in reply filed in the earlier notice of motion filed in the year 1985.
Mr Khambata, senior counsel for the applicant strongly canvassed before the court that not only was such an inconsistent plea taken in the written statement in this suit but also such plea was raised in the suit filed by the original plaintiff before the learned Civil Judge, Senior Division, Pune inter alia praying for partition of the immovable properties in favour of the original plaintiff and the original defendant number one. He also invited the attention of the court to allegations made in the plaint before the Civil Court at Gwalior filed by the defendant numbers 3 to 5 taking an altogether different stand and claiming a share in the suit properties
Based on this background, he argued that the case of defendants 3 to 5 in the written statement being completely new, contradictory, false and there is an abuse of the court deserved to be struck off in the interest of justice.
On the other hand, Mr.Ajay Kapur, senior advocate for defendants 3 to 7 opposed the notice of motion on various grounds. He disputed the evidentiary value of the affidavit dated 15 October 1985 on various grounds. He also strongly placed reliance on the provisions of sections 6 and 8 of the Hindu Succession Act, 1956 in support of the submission that his clients were entitled to share in the suit properties forming part of the subject matter of the suit and also forming part of the subject matter of the suit filed before the learned Civil Judge, Senior Division, Pune.
Mr Kapur argued that even if there is any admission on the part of the defendants 3 to 7 as sought to be canvassed by the applicant, such alleged admission can be explained by his client during the course of the trial of the suit. The alleged admission made by his client in the suit filed by the original plaintiff before the learned Civil Judge, Senior Division, Pune or the suit filed by his client client before the Civil Court at Gwalior cannot be relied upon by the applicant while invoking Order VI Rule 16 of the Code of Civil Procedure, 1908 inter alia praying for striking off the written statement filed by the defendant Nos. 3 to 5 in this suit.