The main legal point established in the judgment is that proposed amendments should be allowed if necessary for complete adjudication of the disputes between the parties, and if they do not change the basic nature of the suit.

JAYANT NATH, J.

IA No.3715/2018

1. This application is filed seeking amendment in the plaint.

2. The plaintiff has filed the suit seeking a decree of specific performance of the Oral Family Settlement dated 30.08.2015. The plaintiff has also sought a decree of declaration declaring the Will dated 25.05.2017 as null and void; a decree declaring the Codicil dated 31.05.2017 as null and void. Further a decree is sought declaring the Nominee Transfer Form dated 07.04.2017, Bond Transfer Form dated 24.05.2017 and Gift deed dated 20.03.2017 as being null and void. Other connected reliefs are also sought.

3. In the present application, it is pleaded that if, in the eventuality, this court comes to a conclusion that the plaintiff is not entitled to a relief of specific performance of the oral family settlement and this court declares the Will, Codicil, Nominee and Bond Transfer Forms and Gift Deed as null and void, in that eventuality, the assets as stated in the said oral family settlement would be treated as the personal assets of the father of the plaintiff and accordingly, as the father of the plaintiff had expired intestate, the same are to be partitioned amongst the plaintiff and the defendants. Hence, it is pleaded that the plaintiff seeks to add this alternative relief of partition stating that if for some reason the plaintiff is not entitled for specific performance of the family settlement dated 30.08.2015 and this court if also declares that the Will, Codicil, Nominee and Bond Transfer Form and Gift Deed as null and void, in that case, alternative relief of preliminary decree of partition of the estates of the late father as stated above is also sought.

4. The learned counsel appearing for defendant No.4 submits that he has no objection to this application.

5. The learned counsel for defendants No.1 to 3 has opposed the present application. He relies upon the judgment of the Supreme Court in the case of C.Beepathuma v. Velasari Shankaranarayana Kadambolithaya & Ors., AIR 1965 SC 241 to press his submission that on account of doctrine of election, the present amendment cannot be allowed. He also submits that the plaintiff has chosen to file the present application based on the oral family settlement. In case, the plea regarding the existence of the family settlement is dismissed by the court and the Will etc. are not accepted as legal and valid documents, in that eventuality, the rights of the plaintiff would get affected on account of the res-judicata/constructive res-judicata and also under Order 2 Rule 2 CPC.

6. I may first deal with the pleas raised by the learned counsel for defendants No.1 to 3 regarding the doctrine of election. Reference may be had to the judgment relied by the learned counsel for defendants No. 1 to 3, namely, C.Beepathuma v. Velasari Shankaranarayana Kadambolithaya & Ors., (supra), where the court held as follows:

“17. The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland –

"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."

(see Maitland's Lectures on Equity, Lecture 18)

The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows :

"Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.........

That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument.”

7. Reference may also be had to the judgment of the Supreme Court in the case of Transcore v. Union of India & Anr., (2008) 1 SCC 125, where the court held as follows:

“64. In the light of the above discussion, we now examine the doctrine of elect