The main legal point established in the judgment is that the amendment of pleadings cannot be refused when it is a mixed question of law and fact and the dispute could be made a subject matter of the issue in the suit after allowing the amendment as prayed for.

JUDGMENT

Biswajit Basu, J. - The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for partition and is directed against the order dated August 28, 2017 passed by the 1st Court of learned Civil Judge (Senior Division), Barasat, District. 24 Parganas(North) in Title Suit No. 5772 of 2014 old Title Suit No. 165 of 2008 whereby the learned Trial Judge has dismissed the application filed by the petitioner under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the plaint with costs holding that the amendment sought for is barred by limitation.

2. The petitioner by the proposed amendment sought to include in the suit a new prayer for cancellation of the sale deed being no. 1712 for the year 1985 registered at the office of ADSR, Barasat, District. 24 Parganas(North) executed by the mother of the petitioner, the defendant no. 1 of the suit in favour of one Shayamal Ghosh and also for inclusion of some new properties in the suit claiming to have interest therein which she allegedly discovered subsequently.

3. The learned Trial Judge has dismissed the said application for amendment holding that since plaintiff had acquired knowledge of the said deed way back in the month of April, 2006 through the written objection of the defendants to the application for injunction filed by the plaintiff in the suit, the proposed amendment being prayed in the year 2016 is barred by limitation.

4. The prayer of the petitioner for inclusion of some new properties in the suit has been refused on the ground that all the co-sharers of properties described under Schedule 'C' of the application for amendment have not been impleaded in the suit, properties described under schedules E and F of the said application have been allotted exclusively to the defendant no. 2 by the final decree passed in Title Suit No. 02 of 1978 and the description of the property under schedule G of the said application is vague.

5. Mr. Hirak Mitra, learned senior counsel appearing on behalf of the petitioner contends that the defendant no. 1, the mother of the petitioner has sold the properties of her major daughter on the basis of the permission of the Court but the law does not authorise the Court to grant such permission in respect of the property belonging to a major person. Mr. Mitra relying on the decision of the Hon'ble Supreme Court in the case of OFFICIAL TRUSTEE, WEST BENGAL AND OTHERS Vs. SACHINDRA NATH CHATTERJEE AND ANOTHER, (1969) AIR SC 823 further contends that lack of authority affects the jurisdiction of the Court and the said permission since has been culminated into a deed of sale, the proposed amendment aimed to challenge the legality of the said deed cannot be thrown out of consideration at the threshold on the ground of limitation.

6. Mr. Mitra, then places reliance on the decision of the Privy Council in the case of MACFOY Vs. UNITED AFRICA CO., LTD, (1961) 3 AllER 1169 to contend that the execution of the deed is a nullity being based on a void act of the defendant no. 1 as such limitation cannot be an absolute bar to put the said deed under challenge.

7. He further contends that in the said written objection the defendants no doubt had disclosed about the impugned deed but it cannot be said that by such discloser the plaintiff became aware of her right over the properties transferred through the said deed, to a third party, according to him mere knowledge of the said deed is not enough to prevent the plaintiff from exercising her right to rescind the said deed being barred by limitation unless it is proved that the plaintiff even after knowing about her right over the property so transferred remained inactive to challenge it. Mr. Mitra, supplies support to his such contention from the decision of the Court of appeal in the case of PAYMAN Vs. LANJANI AND OTHERS., (1984) 3 AllER 703 .

8. Mr. Asish Chandra Bagchi, learned senior counsel appearing on behalf the defendants/oppo