C. Y. SOMAYAJULU, J.

( 1 ) WIFE of first petitioner and mother of petitioners 2 to 10 by name Kanaka Durga Lalitha Kumari (hereinafter called the plaintiff) filed OS No. 192 of 1991 on the file of the Court of II Additional Senior Civil Judge, Vijayawada, inter alia for partition of the property specified in the schedule appended to the plaint in two equal shares, which is an upstairs building in Ward No. 11 of Vijayawada Municipality, Revenue Ward No. 6, with Assessment No. 8071, Block-II, I Town, Vijayawada) within the boundaries specified in the schedule appended to the plaint, which hereinafter would be called as the suit property , and for allotment of one such share to her with profits, past and future: on the ground that Lakshmi Venkata Narasimha Rao, her father, and adopted the first respondent, gifted half share in the suit property towards pasupa Kunkuma to her at the time of her marriage. First respondent contested the suit denying the gift in favour of the plaintiff, and contending that the suit property was gifted to him by his adoptive father Lakshmi Venkata Narasimha Rao [herein after called narasimha Rao ] under a registered settlement deed dated 22-4-1981 (Ex. . X. 1); and had also executed a will dated 4-7-1975 bequeathing the suit property to him. During the pendency of the suit before the trial Court plaintiff died. Petitioners came on record as her legal representatives and adduced evidence. The trial Court dismissed the suit Therefore petitioner preferred the appeal.

( 2 ) PETITIONERS filed this petition in the appeal seeking leave to amend the plaint by deleting lines 14 and 15 at page-2 reading, "subsequently Lakshmi Venkata Narasimha Rao adopted the defendant herein on 21-5-1977" by substituting the sentence reading "bolisetty Lakshmi Venkata Narasimha Rao has fostered the defendant who is the son of Smt. Satyavathi and Kanagarla Rama Chandra Murthy". The petition is opposed by the respondent on the ground that it not only changes the nature of the suit, but also has the effect of taking away the admission made by the plaintiff, and hence causes great hardship and prejudice to him.

( 3 ) THE point for consideration is whether the amendment sought by the petitioners can be allowed.

( 4 ) THE contention of the learned Counsel for the petitioners is that Narasimha Rao and his wife Krishnavenamma did not beget any sons but only had one daughter, the plaintiff, and so Narasimha Rao at the time of her [plaintiffs] marriage with the first petitioner on 15-11-1953 announced and gifted half portion of the suit property to the plaintiff towards "pasupa Kunkuma" and after the death of his wife Krishna Venamma, Satyavati, the mother of the respondent, was staying with Narasimha Rao who only fostered but did not adopt the respondent and in any event the ceremony of giving away and taking in of the respondent, in adoption by Narasimha Rao and his wife Satyavathi did not, and could not have, taken place, because Satyavathi, the mother of the respondent who allegedly became the wife of Narasimha Rao on 8-8-1973, could not have given away and taken in the respondent adoption at the same time, and since the ceremony of giving away and taking in of the adopted is a most essential ceremony in an adoption, and absence of such ceremony invalidates the adoption, respondent cannot be the adopted son of Narasimha Rao. He contended that petitioners, especially 1st petitioner, could not be and was not aware of the said fact, and the factum of respondent being the son of Satyavathi, and Satyavathi s marriage with Narasimha Rao came to the notice of the 1st petitioner only form the recitals in the Will said to have been executed by Narasimha Rao, which was brought on record in the trial Court during the fag end of the trial, and contended that since the proposed amendment does not change the nature of the suit, or alter the cause of action, petitioners may be granted leave to amend the plaint as proposed. It is his contention t

Click Here to Read the rest of this document