An amendment to a plaint may be allowed even if it seeks to incorporate a barred claim, provided that the claim is not barred on the face of it and that the question of limitation can be decided after the filing of written statements and the adduction of evidence.

Sengupta, J.

This appeal is against judgment and order of the learned Single Judge whereby and whereunder prayer for amendment of the plaint has been refused. Upon reading of the judgment and order impugned we do not find cogent reason for which the amendment was refused. The learned Judge has recorded briefly that the amendment which is sought to be made is totally barred under the provisions of law of limitation and if it is allowed by this Court at this stage shall help the petitioner (plaintiff) to bring a fresh cause of action which is totally barred under the provisions of law of limitation.

2. Now the only point is whether the aforesaid grounds are appropriate for refusal of amendment or not. In order to appreciate the present, appeal we feel that the case made out in the plaint before suggested amendment is to be set out as the learned Trial Judge felt by necessary implication that if the amendment is allowed that would amount to bringing of legally barred cause of action. Upon careful reading of the plaint as it appears to us the case of the plaintiff in gist is that the private trust created by his grand father had come to an end the moment his father died. In 1990 during the period of the trusteeship of his father the property in question was gifted to his brother who in his turn alleged to have created mortgage for obtaining loan from the first defendant. The collusive mortgage suit was filed and consent decree was passed and trust property was sold at a throw-away price. All these things had happened beyond his knowledge. The moment he came to know he had filed the suit alleging the decree obtained from this Court in connection with the suit property is a collusive act and his deceased father being the sole trustee did not have any right to create a gift in favour of his brother namely second defendant who consequently did not have any right. Nor did he acquire any right to create mortgage. So conveyance executed in terms of collusive decree is null and void. All these facts have been stated in the plaint but the relief claimed in the plaint is as follows:-

(i) "For declaration that the Deed of Transfer dated 18.6.1971 executed by Sailendra Nath Roy, since deceased, as trustee to the Trust Estate of Amarendra Nath Roy is illegal and void and the same has not affected the trust property created by the said Amarendra Nath Roy.

(ii) For declaration that the Trust created by Amarendra Nath Roy came to an end only on 23.11.90 when the said Sailendra Nath Roy died and as his death the suit property along with other residue properties covered by the said Deed of Trust vested in the plaintiff as one of the beneficiaries in terms of the said Deed of Trust.

(iii) For further declaration that the deed of Conveyance executed by the defendant No. 2 in favour of the defendant No. 3 is void and inoperative and the same has not affected either the Trust property or the interest of the plaintiff as beneficiary thereof.

(iv) For recovery of possession of the suit property evicting the defendant No. 1 or 3 or anybody claim through them.

(v) Injunction.

(vi) Receiver.

(vii) Attachment

(viii) For costs.

(ix) For such other relief or reliefs to which the plaintiff may be entitled in law and in equity."

3. The original suit was filed in the appropriate Court at Alipore where on demurer action the plaint was returned on the ground of jurisdiction as the decree passed by the Court was under challenge and the said plaint was presented in this Court and this was registered as a regular suit. Again the defendant had taken out an application for rejection of plaint and it obtained order of status quo ex parte. Being aggrieved by the ex parte order of status quo the appellant before us had preferred an appeal, which was ultimately disposed of with clarificatory order of status quo.

4. Subsequently, the present application for amendment was taken out with the amended prayers:-

(i) "For declaration that the Deed of Transfer dated 18.6.1971 executed by