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HIGH COURT OF CALCUTTA
P. C. Mallick
PROVABATI KUNWAR - Appellant
Versus
KAISER KUNWAR - Respondent
Suit 205 Of 1936
Decided On : JUNE 1, 1959
AMENDMENT OF PLAINT - PARTITION SUIT - ADOPTION - FRAUD - LIMITATION - JURISDICTION - LEAVE UNDER CLAUSE 12 OF THE LETTERS PATENT.
Fact of the Case:
Plaintiff, a widow, filed a suit for partition of her husband's property, claiming one-sixth share as his widow. She alleged fraud by the defendant Bhanwarmull in obtaining an adoption deed, which she sought to set aside. The suit was dismissed as barred by res judicata due to a previous judgment upholding the adoption. The plaintiff sought to amend the plaint to claim possession during her lifetime as a condition of the adoption.
Finding of the Court:
The court held that the plaintiff could amend the plaint to make an alternate case for possession during her lifetime, even though it was a new cause of action. The court found that the facts supporting this claim were already present in the original plaint, and that allowing the amendment would not deprive the defendants of any legal rights or cause undue hardship. The court also granted leave under Clause 12 of the Letters Patent, considering the divergence of judicial opinion on the issue and the fact that the suit was for land partly within and partly outside the court's jurisdiction.
Issues: 1. Whether the plaintiff could amend the plaint to make an alternate case for possession during her lifetime, even though it was a new cause of action. 2. Whether allowing the amendment would deprive the defendants of any legal rights or cause undue hardship. 3. Whether leave under Clause 12 of the Letters Patent was necessary for the amendment, considering that the suit was for land partly within and partly outside the court's jurisdiction.
Ratio Decidendi: 1. The court held that an amendment to make a new case is not necessarily to be rejected, especially when the facts supporting the claim are already present in the original plaint and the amendment would not cause undue hardship to the defendants. 2. The court found that allowing the amendment would not deprive the defendants of any legal rights, as the claim for possession during the plaintiff's lifetime was not time-barred and the defendants had not been dispossessed. The court also noted that the witnesses who were competent to depose on the issue of the adoption's conditionality were still alive. 3. The court acknowledged the divergence of judicial opinion on the issue of whether leave under Clause 12 of the Letters Patent is necessary for an amendment that alters the cause of action in a suit instituted with such leave. However, considering that the suit was for land partly within and partly outside the court's jurisdiction, the court granted leave to avoid any technical difficulties at trial.
Final Decision: The court allowed the plaintiff to amend the plaint to make an alternate case for possession during her lifetime and granted leave under Clause 12 of the Letters Patent. The plaintiff was also allowed to reverify certain allegations in the plaint as being true to knowledge.
( 1 ) THIS is an application for amendment of plaint in a suit for partition. The plaintiff instituted this suit impleading the husband's other co-sharers as parties. Two other defendants--Monmohanmull and Bhowarmull have been impleaded. By a deed of adoption executed by the plaintiff the defendant Monmohanmull appears to be adopted as a son of the plaintiff's husband. Bhanwarmull is the natural father of Monmohanmull. The deed is challenged and it is alleged that it is tainted with fraud. Leave under Clause 12 of the Letters Patent was obtained inasmuch as some of the properties were situate outside the jurisdiction of this court.
( 2 ) THE plaintiff's case as made in the original plaint is that she as the widow of Jitmull an admitted co-owner was entitled to one-sixth share in the joint properties. On that title the instant suit was instituted. Allegations have been made in the plaint of fraud having been committed by the defendant Bhanwarlal by reason of which, it is contended that the deed of adoption has become void. Reference bas also been made of a suit instituted by the co-sharers against herself and the defendants Monmohanmull and Bhanwarmull in the Ajmere Court wherein adoption and the deed was challenged. This Ajmere suit ultimately terminated by the judgment and decree of the Judicial Committee which upheld the adoption. It is to be conceded that no reference to this adoption was made in the plaint, except as it came up in connection with the plea of fraud with reference to the deed of adoption. It is alleged that the deed of adoption was brought about by fraud perpetrated on the plaintiff by the defendant Bhanwarmull, father of Monmohanmull, along with others. While pleading this case of fraud, it has been stated in the plaint that as a condition of adoption the plaintiff was to be in control of the property of her husband and to enjoy the usufruct during her natural life. The deed, which she was made to execute, was different and therefore the deed was alleged not to be binding on her.
( 3 ) IN the written statement filed by the Lodhas, the other co-sharers, the plaintiff's claim to one-sixth share has been admitted and the right of Monmohanmull, the adopted son, has been disputed. Monmohanmull and Bhanwarmull contested the suit inter alia on the plea of res judicata and maintainability by reason of the decision in the Ajmere suit, being Suit No. 5 of 1924. Facts alleged in support of the case of fraud have been, denied.
( 4 ) WITH the consent of the parties, I heard two preliminary issues, namely, whether the instant suit is barred by res judicata by reason of the decision in the Ajmere suit and whether the suit was not maintainable in its present form. At the time when the two preliminary issues were being argued before me, Mr. Mitter, learned counsel appearing for the plaintiff, submitted that apart from the case made out in the plaint that the plaintiff was the owner of one-sixth share of her husband's property, the plaintiff is, in any event, entitled to be in possession of the property during her life time, inasmuch as it was one of the conditions of adoption. Though these facts are to be found in the plaint, nevertheless, this alternate case has not been properly pleaded. At the time Mr. Mitter strenuously urged that having regard to the circumstances of this case, I ought not to be very strict in the matter of pleading and I ought to allow the plaintiff to make out this case as an alternate case, I indicated to Mr. Mitter that on the present pleading it was difficult for me to allow the plaintiff to make that alternate case. After the argument was concluded, I took some time to give my decision and in the meantime before I delivered judgment the present summons has been taken out by the plaintiff for amendment. In the petition in support of the summons it is stated in paragraph 5 that the petitioner felt, in the course of discussions in court, that certain facts have not been fully s
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