P KUNJUKRISHNA PILLAI Vs. D SREEKANTAN NAIR

JUDGEMENT

(1.) LEAVE granted. Heard the learned counsel.

(2.) THE first respondent married one Omana on 2/9/1985. The said Omana died issueless on 19/12/1987. Omana's father had gifted suit schedule item Nos. 1 to 4, 6 and 7 to her, during her life time in 1966 and1974. The first appellant, brother of Omana, had executed a deed of gift in her favour, in regard to the suit schedule item no. 5 on 31/8/1985.

(3.) THE trial court decreed the suit holding that section 17 of the Act will apply. The contention of defendants that section 15 (2) (a) will apply was rejected as none of the suit properties were inherited by deceased Omana from her parents. The said judgment dated 10. 4. 1995 was challenged by the appellants herein (brother and sister-in-law of Omana) in AS No. 41 of 1996 before the High Court of Kerala. In the said appeal, the appellants filed an application under order 6 Rule 17 CPC for amendment of their written statement and another application under order 41 Rule 27 CPC for additional evidence. By the amendment application the appellants wanted to plead that the gift of suit schedule item no. 5 made by first appellant in favour of his sister Omana was neither accepted by her nor acted upon by the parties, and that the first appellant had continued in possession as owner and has been paying the taxes and, therefore, the gift was null and void and had not come into effect. The High Court held that as the application for amendment was not filed before the trial was commenced, and as there was a delay of about six years, the application deserved to be rejected. It also rejected the application under Order 41 Rule 27 CPC as it was not the case of the appellant that the documents had come to his knowledge only after trial had commenced. It also dismissed the appeal confirming the findings and decision of the trial court. The said judgment is challenged in this appeal by special leave.