Judgement

Appeal (No. 97 of 1934) from a decree of the High Court (January 23, 1933) reversing a decree of the Additional Subordinate Judge of Banda (January 17, 1929).

This appeal arose out of a suit brought by the respondent against the appellants for possession of a village, Kalinjar Tirhati, in the District of Banda, and for mesne profits. The village stood recorded in the Revenue Register in the name of one Bindeshri Prasad, the husband of the respondent, Giri Bala Devi, and was sold at a Court auction sale in execution of a money decree against him, and was purchased by the appellants.

Bindeshri Prasad was the original plaintiff in the suit. He alleged that the sale of the village was vitiated by fraud, and that he was therefore entitled to recover possession of it. Shortly after issues were framed for trial he died, leaving him surviving his widow, the respondent, his only heir. She applied to be substituted in the place of her husband as plaintiff in the suit, praying at the same time for leave to amend the plaint on the allegation that the village in suit formed part of the self-acquired estate of her father-in-law, Ganesh Prasad, that he died leaving a will whereby he gave his son, Bindeshri Prasad, only a life interest in the estate left by him and gave her an absolute estate in remainder.

The widow died during the pendency of the suit, and her legal representative, Kishva Nandan Sahai, was brought on the record in her place.

The Subordinate Judge allowed the plaint to be amended as prayed, but at a later date, when additional issues were framed, an issue was raised as to the legality of the order for amendment.

The two main questions in this appeal were (i.) whether the order for amendment was valid; and (2.) whether the will of Ganesh Prasad was genuine or not. The latter question raised the point whether under Hindu law a son acquires by birth an interest jointly with his father in the estate which the latter inherits from his maternal grandfather, because if so Ganesh Prasad had no jurisdiction to make the will in the present case.

The facts appear more fully from the judgment of the Judicial Committee.

The Additional Subordinate Judge who tried the suit held that the amendment ordered by his predecessor was invalid, and also that the alleged will was not genuine.

On appeal, the High Court (Bennet and Rachhpal Singh JJ.) disagreed with the trial judge on both points, and accordingly allowed the appeal.

1937. March 1, 2, 4, 5, 8 and 9. Dunne K.C., Wallach and Kidwai for the appellants. The widow could not change the suit from the character which it had when brought by her husband into a suit on an entirely separate footing, namely, that he had only had a life interest, and that she was the reversioner of the property. The amendment changed the nature of the suit and cause of action, and the suit as it was should not have been amended. [Reference was made to the Code of Civil Procedure, First Sch., Order 11., rr. 3, 4 (c), 5 ; Order xxn., r. 3 ; and Order vi., r. 17.] Order 11., r. 5, was intended to cut down and limit the class of cause of action which is peculiar and personal to a representative who has been joined as the representative of a deceased plaintiff. The rule relates to the "estate" of the person who has died. This claim the widow is making has nothing to do with her husbands estate ; she is claiming under the will of her father-in-law. On the proper construction of these rules she ought to

01 Law. Rep. 64 Ind. App. 250 ( 1936- 1937) Muhammad Husain Khan V. Babu Kishva Nandan Sahai

have been relegated to her own suit Mulla on The Code of Civil Procedure, 10th ed., p. 502. Sect. 99 of the Code of Civil Procedure is an express section of the Code which prevents such a claim as this being joined.

[Lord Maugham referred to Tredegar {Lord) v. Roberts. ([ 1914] 1 K. B. 283.)]

The amendment ought never to have been allowed see dicta of Lord Buckmaster in Ma Shwe Mya

v. Maung Mo Hnaung. (( 1921) L. R. 48 I. A