Madras High Court
Lakshmi Ammal vs Sethuramayi on 19 August, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19.08.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(MD)No.1961 of 2013 & M.P.(MD) No.1 of 2013 1.Lakshmi Ammal 2.Velumani 3.Veeramani 4.Rameshwari 5.Muthumeena 6.Krishnaveni .. Petitioners Vs. 1.Sethuramayi 2.V.Chandramohan 3.C.Malliga .. Respondents Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order and decretal order, dated 24.07.2013, passed by the learned Subordinate Judge, Theni, in I.A.No.354 of 2012 in O.S.No.150 of 2010. !For Petitioners : Mr.S.Sundaresan ^For Respondent No.1 : Mr.Saravanakumar For Respondent Nos.2 & 3 :Mr.G.Prabhu Rajadurai :ORDER
This Civil Revision Petition has been filed to set aside the fair and decretal order, dated 24.07.2013, passed by the learned Subordinate Judge, Theni, in I.A.No.354 of 2012 in O.S.No.150 of 2010.
2.Heard Mr.S.Sundaresan, the learned counsel appearing for the revision petitioners, Mr.Saravanakumar, the learned counsel appearing for the first respondent and Mr.G.Prabhu Rajadurai, the learned counsel appearing for the respondents 2 and 3.
3.The petitioners herein are the defendants 1 to 6, whereas the first respondent is the plaintiff, the second respondent is the seventh defendant and the third respondent is the eighth defendant in the suit in O.S.No.150 of 2010, on the file of Sub-Court, Theni.
4.The first respondent filed the suit in O.S.No.150 of 2010 on the file of Sub-Court, Theni, to declare her title over the 'A' schedule property and for delivery of possession and she prayed for a direction to the petitioners and the respondents 2 and 3 herein/defendants to divide the 'B' schedule property into six equal shares and allot one share to her and put her in separate possession with liberty of filing final decree proceedings. She further prayed for a declaration that the sale deeds, dated 20.03.1997 and 24.03.1997, as null and void. She also prayed for a decree of permanent injunction restraining the petitioners and the respondents 2 and 3 herein/defendants from in anyway alienating or making encumbrance over the 'A' schedule property.
5.According to the first respondent/plaintiff, 'A' schedule property belonged to his father-Arumugam. By irrevocable settlement deed, dated 30.09.1960, registered as Document No.3048 of 1960, the first respondent's father settled the life interest on himself and his wife viz., Palaniammal, the mother of the first respondent. Till her death i.e., on 02.06.2006, the first respondent's mother was residing in 'A' schedule property and she was in possession and enjoyment of the same. After her mother's death, her father was in possession and enjoyment till his death, i.e., on 03.03.2010. After her father's death, when she tried to take possession of 'A' schedule property, she came to know of the partition effected among the respondents and her father on 28.02.1995 and also registered cancellation deed, dated 20.11.2000, cancelling the settlement deed, dated 30.09.1960. She came to know the sale effected by the fourth petitioner on 24.03.1997 and 20.03.1997 to the second respondent and the third respondent herein respectively. She is not a party to the partition deed and the cancellation deed. Therefore, the partition deed and the cancellation deed are not binding on her. The petitioners herein/defendants 1 to 6 did not derive valid title. The sale deeds executed by the fourth petitioner are void. She also stated that the 'B' and 'C' schedule properties were purchased out of the income from the 'A' schedule property. Based on these documents, she filed the above suit. According to her, the cause of action for the suit arose on 03.03.2010, when her father died and therefore, the suit is not barred by limitation.
6.The petitioners/defendants 1 to 6 in their written statement denied all the allegations made in the plaint. They have stated that there was no joint family and the first respondent was never in joint family possession. The suit is barred by limitation and the Court fee paid is not correct. The first respondent's father divorced her mother and married the first petitioner and the petitioners 2 to 6 are the daughters of the said Arumugam and the first petitioner. It is not correct to state that the first respondent came to know of the partition deed and cancellation deed, cancelling the settlement deed, dated 30.09.1960 only after the death of her father. The first respondent and her mother issued notice to Arumugam, on 23.09.2002 and a reply was sent to the said notice on 27.09.2002 and 26.10.2002. The first respondent/plaintiff and her mother sent notices, dated 13.12.2002, 25.06.2003 and 10.07.2003. Arumugam himself sent suitable replies to the said notice. The 'B' and 'C' schedule properties were purchased from and out of the income of the first petitioner and not from the income from the 'A' schedule properties. Possession was not given to the first respondent's mother, as per the settlement deed, dated 30.09.1960. The first petitioner only took care of the first respondent and got her married. The settlement deed, dated 30.09.1960, is only a Will. It is not a settlement as alleged by the first respondent.
7.The respondents 2 and 3/defendants 7 and 8 in their written statement, denied all the allegations made in the plaint as they are bona fide purchasers and also stated that in the event of a partition decree, the properties purchased by them may be allotted to the fourth respondent's share.
8.After completion of pleadings, the first respondent filed I.A.No.354 of 2012 for amendment of the plaint to delete certain lines from the original plaint and to add certain lines, amend the cause of action portion and calculation of Court fee. She also prayed for inclusion of additional prayer. The first respondent sought amendment of the pleadings by deleting the averment that the 'A' schedule property is the property of her father Arumugam and to add the averment in that place that the property is ancestral and joint family property.
9.The first respondent sought amendment on the ground that at the time of giving instruction to her counsel to file the suit, she was living alone and felled down in the bathroom and operation was done and she was suffering by that illness for more than 1 1/2 years. After recovering from her illness, she came to know of various particulars regarding the suit properties and based on those particulars, she gave instruction to her present counsel to file the amendment petition and stated that no prejudice will be caused to the petitioners/defendants 1 to 6, if the amendment is ordered.
10.The petitioners in their counter affidavit stated that the first respondent is introducing a new case and a new cause of action. If the present application for amendment is allowed, the basic structure of the suit will be changed. The petitioners will be generally prejudiced and the present relief sought for by way of amendment is barred by limitation. The respondents 1 and 2 did not oppose the said application.
11.The learned Judge considered the pleadings and the averments of the learned counsel for the petitioners and the respondents and held that no prejudice will be caused to the petitioners if the amendment is allowed and on the other hand, if the application is rejected, the first respondent will be denied the opportunity to put forth her case by the present amendment. The learned Judge also held that the said amendment is necessary for deciding the issue finally in the suit. For the above reasons, the learned Judge, by the order, dated 24.07.2013, allowed the application on payment of costs of Rs.100/- to each one of the petitioners herein. As against the said order dated 24.07.2013, the present civil revision petition is filed.
12.The learned counsel for the petitioners as well as the learned counsel for the respondents reiterated the averments made in the affidavit and the counter affidavit and also filed written arguments.
13.The following Judgments are cited and relied on by the learned counsel for the petitioners:
(i) Dhanalakshmi & Others Vs. Janaki Ammal & Others [CDJ 2014 MHC 1180 : 2014(2) LW 743 : 2014 (3) CTC 688], wherein at paragraph No.11, it has been held as follows:-
"11. ...
"1) To become a coparcener by virtue of the said amendment, the daughter of a coparcener should have remained unmarried on 25.03.1998;
2)Her father should have been alive on the above said date.?
....."
In addition to these conclusions, the learned Judge also held that the daughter of a coparcener whether married or unmarried will become a coparcener as on the date of commencement of the Hindu Succession (Amendment) Act, 2005, she would have become a coparcener by birth in respect of the coparcenary property along with her father, provided her father was alive on the date of commencement of the Hindu Succession (Amendment) Act, 2005, with an exception that any disposition or alienation including any partition or testamentary disposition, which had taken place prior to 20.12.2004, would not be affected and invalidated.
(ii) Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Ors. [MANU/SC/1724/2009 : 2009 (8) MLJ 907 (SC) : 2009 (10) SCC 84, wherein the Hon'ble Apex Court at paragraph No.67, framed the guidelines to be taken into consideration while dealing with the applications for amendment, which reads as follows:
?67.On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
1.Whether the amendment sought is imperative for proper and effective adjudication of the case?
2.Whether the application for amendment is bona fide or mala fide?
3.The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
4.Refusing amendment would in fact lead to injustice or lead to multiple litigation;
5.Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and
6.As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.?
In paragraph No.70, conclusion has been stated, which reads as follows:-
?70.We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.?
(iii)T.L.Muddukrishana Vs. Lalitha Ramachandra Rao [CDJ 1997 SC 571 : 1997 (2) SCC 611 : 1998 (1) MLJ 5 (SC) : 1997 (2) LW 809], wherein it has been held as under:-
"7. ... Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, November 5, 1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint."
(iv)Gurdial Singh & Others Vs. Raj Kumar Aneja & Others [CDJ 2002 SC 135 : 2002 (2) SCC 445], wherein it has been held as follows:-
"13. .... Section 153 of CPC entitled "General Power to amend" provides that the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. Order 6 Rule 17 of the CPC confers a discretionary jurisdiction on the Court exercisable at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Unless and until the Court is told how and in what manner the pleading originally submitted to the Court is proposed to be altered or amended, the Court cannot effectively exercise its power to permit amendment. An amendment may involve withdrawal of an admission previously made may attempt to introduce a plea or claim barred by limitation, or may be so devised as to deprive the opposite party of a valuable right accrued to him by lapse of time and so on.
(v) Mari and another Vs. K.Subramani [2014 (1) CTC 696], wherein it has been held as follows:-
"21.Keeping these submissions made on either side in mind, I have gone through the entire materials available on record and I find that the Petitioners/Defendants raised the defence of limitation in the Written Statement much earlier to the Application filed by the Respondent/Defendant to amend the Plaint. The Respondent/Plaintiff has not taken any steps to amend the Plaint till the trial has commenced. Further, the documents filed by the Plaintiff are also ambiguous with regard to the place of deposit of Title Deed. Now, if the place of deposit of Title Deed is amended as Sathyamangalam Town, as prayed for by the Respondent/Plaintiff in his Application, the Respondent/Plaintiff can get over the defence of limitation raised by the Petitioners/Defendants in their Written Statement. Therefore, in my considered opinion, it the Amendment Application is allowed after commencement of the trial that would definitely defeat the legal right that has already accrued to the Petitioners/Defendants and such an amendment cannot be allowed that too after the commencement of the trial. In this regard, a reference could be placed in the Judgment reported in B.K.Narayana Pillai v. Parameswaran Pillai and another, 2000 (1) SCC 712, wherein it has been held that no amendment should be allowed which amounts to or results in defeating a legal right accruing to the opposite party on account of lapse of time."
14.From the above Judgments, it is clear that the factors and principles to be considered in rejecting or allowing an application for amendment are well settled. The Court has to apply the factors and principles applicable to the facts of each case and allow or reject the application.
15.In respect of the present case, the factors to be considered are:
a) Whether the claim, which is sought by the amendment is barred by limitation?
b) Whether any right has been accrued to the petitioners, which may be taken away by amendment?
c) Whether injustice or hardship will be caused to the first respondent if the amendment is refused or to the petitioners if amendment is allowed?
d) Whether any new cause of action is introduced and basic structure of the suit is changed?
e) Whether the first respondent has given valid reasons for not filing the suit at the first instance with the averments now sought to be added?
16.The first respondent claims that a cause of action arose for the suit only on 03.03.2010, when her father died and she came to know of the partition deed, cancellation of settlement deed and sale deeds in favour of the respondents 2 and 3/defendants 7 and 8. But the petitioners have given particulars of notices exchanged between the first respondent and her mother and Arumugam on 23.09.2002, 27.09.2002, 26.10.2002, 13.12.2002, 25.06.2003 and 10.07.2003. Even though the first respondent and her mother issued notices to Arumugam on 23.09.2002, no legal proceedings were initiated during the life time of the first respondent's mother and Arumugam. The first respondent was aware of the partition deed and cancellation deed during the year 2002 itself and the petitioners alleged that the suit as initiated at the first instance itself is barred by limitation. Originally, the first respondent claimed declaration of title to 'A' schedule property on the ground that the same was the property of her father. Now, she claims that the property is ancestral and joint family property and she was a coparcener along with her father. If this amendment is allowed, it will definitely changes the nature of the suit and the first respondent is introducing a new cause of action and new pleading.
17.The petitioners have been allotted the properties as per the registered partition deed, dated 28.02.1995 and have dealt with the properties allotted to them as seen from the sales effected by the fourth petitioner to the respondents 2 and 3. If the amendment is ordered, the rights accrued to the petitioners as per registered partition deed would be taken away, which will cause prejudice and injustice to the petitioners. Further, as per the Judgment reported in CDJ 2014 MHC 1180 : 2014(2) LW 743 :
2014 (3) CTC 688 [Dhanalakshmi & Others Vs. Janaki Ammal & Others], the first respondent is not a coparcener as per the Tamil Nadu Amendment of Hindu Succession Act, as she was married on the date when the amendment came into force. As per the Central Amendment, she becomes a coparcener, if a joint family existed, she cannot challenge the alienation effected by partition deed, dated 28.02.1995, as the registered partition deed came into existence before 20.12.2004, when the Central Amendment came into force.
18.The first respondent has stated that at the time of filing of the suit, she was living alone, she fell down in bathroom, an operation was done and she was ill for more than 1 1/2 years. Due to illness, she could not properly instruct her counsel. Hence, not able to instruct and inform her previous counsel about her ancestral history and properties. Due to oversight and accidental inadvertence of her previous counsel, failed to claim the relief based on the ancestral deeds. After she recovered from her illness, she gathered the documents and filed application for amendment through her present counsel claiming the suit properties as ancestral and joint family properties, as coparcener along with her father. This explanation is untenable and unsustainable. Originally, the first respondent claimed that 'A' schedule property belonged to her father, who reserved life interest for himself and gave life interest for her mother and gave absolute right to her after their life time and after the life time only, she became the owner. Now, she is claiming the suit properties as ancestral and joint family properties. This completely changes the nature of the suit. The first respondent has not given any particulars as when she was felled down and when she was operated and the name of the hospitals etc. These are basic particulars required for consideration favourably, the application filed by the first respondent to amend the plaint. Lack of these particulars coupled with the allegation that the first respondent and her mother issued notices to Arumugam in the year 2002 itself, the explanation given by the first respondent for not incorporating the averments now sought for at the time of initiating legal proceedings, is rejected.
19.The learned Judge without taking into consideration the guidelines enumerated by the Apex Court and High Courts, held that an opportunity must be given to the first respondent to give finality to litigations and that no prejudice would be caused to the petitioners. The learned Judge allowed the application for amendment on payment of costs of Rs.100/- to each one of the petitioners herein. The learned Judge failed to properly exercise the power conferred on him, erred in not considering as to whether the amendment introduces new cause of action, changes the nature of suit, whether the present claim of ancestral and joint family property is barred by limitation and whether any right accrued to the petitioners by cancellation of settlement deed and registered partition deed. The learned Judge committed irregularity by not considering these aspects.
20.For the above reasons, the impugned order, dated 24.07.2013, made in I.A.No.354 of 2012 in O.S.No.150 of 2010, is liable to be set aside and accordingly, set aside.
21.In the result, this civil revision petition is allowed. The learned Judge is directed to return the amended copy of the plaint to the first respondent and strike down the amendment carried on in the original plaint. No costs. Consequently, connected miscellaneous petitions are closed.
To The Subordinate Court, Theni.