A clarificatory amendment to a pleading, which is necessary to resolve a pre-existing dispute between the parties already raised in the suit, cannot be disallowed by applying the proviso to Order 6 Rule 17 CPC, even if it is sought after the commencement of the trial.

Jyotirmay Bhattacharya, J.

1. This First Appeal is directed against the judgment and decree dated 8th May, 2015 passed by the Learned Civil Judge (Senior Division) 9th Court at Alipore in Title Suit No.29052 of 2012, at the instance of the plaintiff/appellant.

2. The plaintiff’s suit for partition was dismissed on contest by holding, inter alia, that the suit is a premature one as the plaintiff has not been able to prove the death of his father through whom he is claiming title in the suit property by inheritance. The learned Trial Judge has held that neither any death certificate has been produced to prove the death of his father nor the civil death of the plaintiff’s father has been pleaded and/or proved by the plaintiff in the suit.

3. The legality and/or propriety of the said judgment and decree is under challenge in this appeal before us.

4. Let us now consider the merit of the instant appeal in the facts of the present case.

5. Two properties viz. premises No. 8B, 8C & 8D formerly known as premises No. 8, Hazra Lane and presently known as premises Nos. 138, 139, 140 A and 141, Motilal Nehru Road and another premises being No.121A, 121B, 121C, & 121D formerly known as premises No. 121, Mohonpukur Road and presently known as Satyendra Nath Mozumdar Road, were brought in the hotch pot of the said partition suit. Admittedly Gobinda Chandra Das; the grand father of the parties was the original owner of these two properties. It is also an admitted fact that the said Gobinda Chandra Das, during his life-time executed two trust deeds by transferring these two properties to the trustee appointing himself as the first trustee and also by making provision as to how the successive trustees will be appointed on the death of the first Trustee and/or his successor. It was also provided in the trust deed that after the death of the settlor’s wife viz., Basanta Kumari and his two sons viz., Dual Chandra Das and Manik Chandra Das, the trust properties will devolve upon the male lineal descendants i.e., the sons of Dulal and Manik. The plaintiff and the defendant No.4 are the sons of Dulal. The defendant No. 1, 2 & 3 are the sons of Manik.

6. The settler/1st Tustee, Gobinda Chandra Das, died on 9th may, 1953. His wife Bansanta Kumari Dasi died on 18th October, 1966. His son Manik Chandra Das died on 16th January, 1988.

7. The plaintiff alleged in the plaint that his father died without mentioning his date of death. He, thus, claimed that after Basanta Kumari Dasi, Dulal and Manik died, the Trusts came to an end and the trust properties devolved upon the sons of Dulal and Manik. He thus, claimed that the two sons of Dulal viz., the plaintiff and the defendant No.4 jointly inherited half hare in the suit properties and the defendant Nos. 1, 2 & 3 inherited half share in the suit properties jointly. Instant suit for partition was filed as the co-sharers felt inconvenience in enjoying the suit properties jointly.

8. The defendant Nos. 1, 2 & 3 contested the said suit by fling written statement. They admitted the title of Gobindababu in the suit properties and execution of the two trust deeds by Gobindbabu but they did not admit the plaintiff’s claim for the death of his father viz., Dualalbabu. The plaintiff was called upon to prove the death of his father viz., Dulalbabu. Thus, they denied the death of Dulalbabu and consequently the plaintiff’s claim for acquisition of title in the suit properties in terms of the provisions of the Trust deeds was also denied by them. The defendants claimed that the said trusts are still continuing and the sons of Manikbabu are now acting as trustees for managing the trust properties. They thus, prayed for dismissal of the suit for want of plaintiff’s locus.

9. The defendant No.4 supported the plaintiff’s claim in his written statement.

10. The parties adduced evidence in support of their respective claims.

11. Several issues were farmed by the learned Trial Judge in the said suit. However no issue was framed a