Judgement

RAMASWAMI, J. : This appeal is brought on behalf of Defendants 1 to 6 and 24 to 39 against judgment of the High Court of Gujarat dated April 17, 1963 in First Appeal No. 215 of 1961 allowing an application for amendment of the plaint and remanding the suit for retrial before the Civil Judge (S. D.) at Surat.

2. The first respondent filed the suit "for partition of the Joint family properties" in the Court of the Civil Judge (S. D.) at Surat, being Special Suit No. 5 of 1957, against his grandfather, his father, his uncles and others. The plaintiff is the son of Defendant No. 14. Defendant No. 1 is the grandfather of the plaintiff and Defendants Nos. 2 and 3 are the brothers of defendant No. 1. Defendants Nos. 7, 18, 24 and 26 are the uncles of the plaintiff. The contesting defendants alleged that the plaintiff was not entitled to maintain the suit for partition of the joint family properties because he had not obtained the previous consent of his father- Defendant No. 14 who was joint with his own father-Defendant No. 1 and his brothers - Defendants Nos 7, 18, 24 and 26. The contention of the defendants was based upon the decision of the Full Bench of the Bombay High Court in Apaji v. Ramachandra, (1892) ILR 16 Bom 29 (FB) in which it was held that according to the Mayukha law as applicable in Gujarat the plaintiff cannot maintain a suit for partition against the defendants in the absence of assent of his father. On July 28, 1959 the plaintiff made an application to the Trial Court for amending paragraph 3 of the plaint. It was alleged by the plaintiff that in paragraph 2 of the plaint , the words " vus Ns ( and have )" and in paragrahp 3 of the plaint the words "ve Nhv (i.e. and are )" had crept in through inadvertence and mistake and the words should, therefore, be allowed to be deleted. The plaintiff further stated that his claim in the suit was that there had already been a severance of status between the members of the joint family and the suit was merely for partition of the joint family properties by metes and bounds. The plaint is in Gujarati language and the official translation of paragraph 3 of the plaint is as follows:

"The pedigree that is a genealogical tree of our family showing relationship between the parties is as shown in Schedule B annexed hereto we were "and are" members of a joint and undivided family. And the goods and properties and businesses of our joint family are kept in different names of the different members of our family according to convenience and it appears that changes are made in it. But no partition of the large and valuable goods and properties of our joint family is made at all legally and mutually between each branch and the members of the branches. But the different properties and businesses and cash and their income have continued to be in the management of different members on behalf of all. Although the separation of the three original branches and between the members of the branch of Nichhalbhai out of the original three branches is made by the ancestors but the partition of goods and properties is not made separately and mutually between each branch or between the members of branches according to the shares. But different persons of the family keep different properties and businesses of the family in their own possession and management and manage the same. And the income of the property and the businesses which are in their respective possession and management has remained with them. It is proper to take account of the same from them and to determine the total properties fit for partition and to partition the same according to law and to give me my share according to law from the property which the parties may be found entitled to possess. And the rights and liabilities of all the members of the family may be determined and if is just to make partition of all the goods and properties of the joint family separately according to law. This suit is filed for the said purpose a