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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
P. Jayabaskar and 2 others
Versus
Saraswathi and 7 others
C.R.P. No. 527 of 1999
Decided On : 23-07-1999
CIVIL PROCEDURE CODE - ORDER 6 RULE 17 - AMENDMENT OF PLEADINGS - RIGHT OF PRE-EMPTION - LIMITATION - SECTION 22 OF THE HINDU SUCCESSION ACT - WHETHER AMENDMENT INTRODUCES A NEW CAUSE OF ACTION - WHETHER AMENDMENT IS BARRED BY LIMITATION - WHETHER AMENDMENT IS INCONSISTENT WITH EXISTING PLEADINGS.
Fact of the Case:
Plaintiff filed a suit for partition and injunction, claiming 8/56 shares in the suit property and seeking to restrain defendants 14 to 16 from demolishing the property. Defendants 14 to 16 purchased the property after the suit was filed. Plaintiff sought to amend the plaint to include a claim for pre-emption under Section 22 of the Hindu Succession Act, arguing that she was entitled to a right of pre-emption as a co-owner. Defendants 14 to 16 opposed the amendment, arguing that it was barred by limitation and that it introduced a new cause of action.
Finding of the Court:
The court held that the amendment did not introduce a new cause of action and that it was not barred by limitation. The court found that the right of pre-emption was based on the same facts as the original claim for partition and injunction, and that the amendment merely sought to add an additional relief. The court also found that the amendment was not inconsistent with the existing pleadings, as the plaintiff could choose at trial whether to rely on the allegations in the original plaint or to recognize the sale deeds executed in favor of the defendants.
Issues: 1. Whether the amendment introduced a new cause of action? 2. Whether the amendment was barred by limitation? 3. Whether the amendment was inconsistent with the existing pleadings?
Ratio Decidendi: 1. The court held that the amendment did not introduce a new cause of action because the right of pre-emption was based on the same facts as the original claim for partition and injunction, and that the amendment merely sought to add an additional relief. 2. The court held that the amendment was not barred by limitation because the period of limitation for a claim for pre-emption under Section 22 of the Hindu Succession Act is one year from the date of the sale, and the amendment was filed within one year of the date of the sale. 3. The court held that the amendment was not inconsistent with the existing pleadings because the plaintiff could choose at trial whether to rely on the allegations in the original plaint or to recognize the sale deeds executed in favor of the defendants.
Final Decision: The court dismissed the revision petition and allowed the amendment to the plaint. The court also reserved the right of the defendants to raise all legal and factual contentions, and permitted them to file an additional written statement relating to the amendment.
1. Defendants 14 to 16 in O.S. No. 710 of 1996, on the file of District Munsif s Court, Erode, are the revision petitioners.
2. First respondent herein filed the suit for partition claiming 8/56 shares and also for putting her in exclusive possession of the same. she also prayed for a permanent prohibitory injunction restraining defendants 14 to 16, their men and agents from demolishing the suit property, and for directing the defendants to pay costs of the suit.
3. In the body of plaint, it is alleged that plaintiff and first defendant are daughters of one Gurunatha Mudaliar, who died 35 years ago. Apart from plaintiff and first defendant, defendant 8 to 10. One Mariappan and one Duraisami are also the children of Gurunatha Mudaliar. Mariappan died and his widow is 2nd defendant, and defendants 3 to 7 are their children. The legal heirs of Duraisami are defendants 11 and 12. It is alleged that the property is the self-acquisition of plaintiff’s father. On the date of death of Gurunatha Madaliar, he left his widow. Subsequently, she also died and plaintiff has claimed that her share has accumulated from 1/18th to 1/7th, i.e., 8/56 shares. It is further averred that plaintiff is in joint possession of the suit property. She caused a suit notice on 12. 1994 to defendant 1 and 2 and defendants 8 to 11 and also to the father of 14th defendant, warning the 14th defendant not to purchase the suit property from them and also informing them that any sale executed behind her back would not be binding on her. Defendants 14 to 16 have purchased the suit property after a month. It is further said that the sale deed executed in favour of defendants 14 to 16 is not the real one, and it is sham and nominal, and plaintiff is not bound by the same.
4. Written statement was filed by defendant 14 to 16, i.e., petitioners herein. They denied the paternity of plaintiff and contended that late Gurunatha Mudaliar and Angammal did not have a daughter by name Saraswathi. They also denied the character of the property. According to them, it is not a self-acquired property of Gurunatha Mudaliar. It is further said that the 15th defendant purchased the eastern share of the property on 112. 1994 for a consideration of Rs 90,000and the 16th defendant purchased the western portion of the suit property on 112. 1994 for Rs. 1,10,000. They have also put up puccaterraced construction in the property and have improved the same by investing several lakhs of rupees.
5. The reason for filing this revision is that the plaintiff filed I.A. No. 1297 of 1998, seeking to amend the plaint by incorporating an additional relief on the existing facts.
She claimed that she is entitled to the benefits of section 22 of the Hindu Succession Act and, therefore, she is entitled to a right of presumption and consequently to compel defendants 1 to 16 to executes the sale deed in favour of the plaintiff in respect of share of defendants 1 to 13, on receipts of proportionate sale price.
6. Amendment was seriouslyopposed by petitioners by mainly putting forward a contention that the claim is barred by limitation. The amendment application is dated 9. 1998. They also contented that on the basis of the existing contentions, this is not a matter to be resolved and no ground is made out for allowing the amendment. He also alleged that the very nature of the suit will change and the cause of action also will become different. They prayed for dismissal of the interlocutory application.
7. By the impugned order, the court below allowed the amendment. It found that whether the plaintiff is entitled to a right of pre-emption could be decided only at the time of trial, and the proposed amendment is not going to alter the nature or character of the suit.
8. Learned Counsel for petitioners urged that by allowing the amendment, their vested right on the question of limitation would be taken away, and the order of the courts below has gone far for beyond the scope of Order 6,
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