The main legal point established in the judgment is that amendment applications should not be allowed if they introduce a new case other than what was originally pleaded and cause serious injustice to the other side.

1. The allegations contained in the affidavit filed by the petitioner/7th defendant are as follows:

1. (i) The suit property originally belonged to one Appasamy Naidu who purported to create a deed of partition under which he pretended to divide his properties to his daughters, which violated the Agricultural Land Ceiling Act. The Court declared the document as hit by law. Appasamy Naidu died after executing a Will dated 112. 1983 by means of which he bequeathed the property to the plaintiff. Long time after his death the defendants in collusion with his father and grand mother filed a fraudulent suit in O.S.No.57 of 1990. The plaintiff was not made a party to the suit. Suppressing the Will, the suit was filed. Since the petitioner was not a party in O.S.No.57 of 1990, the decree passed in the suit is nullity, void and vitiated by collusion and fraud and not binding on him. Hence an amendment is sought for to the plaint with regard to necessary pleadings as to O.S.No.57 of 1990 and a declaration as follows:

"4) In Prayer Column add the following as (d)

"declare that the alleged decree in O.S.No.57/1990 as confirmed by A.S.No.440/1991 is bad, void, nullity, vitiated by collusion and fraud and not binding on the Plaintiff in any manner whatsoever."

2. The allegations found in the counter filed by the 7th defendant/7th respondent are as follows:

2. (i) The petition is not maintainable. The application for amendment is sought for after eight years. Appasamy Naidu had 5 daughters and even during his life time he divided the properties under the registered partition dated 30.9.1970 and allotted specific properties to his daughters. Thereafter, he did not have any right over the properties to execute the Will dated 112. 1983, which is a fabricated document. The deed of partition has not been declared void ab initio nor had it violated the provisions of Land Reforms Act. It was held by the Court that it was not binding nor enforceable as far as the provisions of the Land Reforms Act are concerned. In A.S.No.440 of 1991, the High Court, Madras, has clearly stated that the aurhorities have not declared the deed of partition to be ab initio void, but held that the document is valid as far as the transaction between parties to the documents including Appasamy Naidu. The judgment in A.S.No.440 of 1991 has become final.

2. (ii) The petitioner in the counter statement filed in I.A.No.49 of 2005 in O.S.No.3 of 2005 has categorically admitted the legitimacy and fair contest in the suit O.S.No.57 of 1990. The relevant portion is as follows:

"One of the daughters of Appasamy Naidu filed a suit for partition in OS No.422 of 1986 later transferred to Tirupur in O.S.No.57 of 1990 before the Sub-Court, Tirupur. The trial court again held in the presence of all daughters and after the death of Appasamy Naidu. The suit was decreed on 13. 1991, after contest, holding that partition deed itself was void and particularly in respect of the suit property as totally void and upheld the title of Appasamy Naidu."

3. The petitioners father and grand mother were parties in O.S.No.57 of 1990. Rajammal, the grand mother filed O.S.No.57 of 1990 disputing the partition deed. The decree in O.S.No.57 of 1990 was challenged before the High Court in A.S.No.440 of 1991. No reason has been set out as to how his grand mother and father conspire against his interest. The petitioner even now does not contend that he came to know all the proceedings in O.S.No.57 of 1990 only now. The relief to declare the proceedings in O.S.No.57 of 1990 as null and void, after lapse of more than a decade is hopelessly barred by time. He is not entitled to seek to set aside the judgment and decree of a higher court viz., High Court in the present suit. The court fee paid as mentioned in the proposed amendment is erroneous. To such a relief Section 40 of the Court Fee Act will apply and the petitioner has to value the suit property at the present market value and pay ad valorem cou