K P MUTHULAKSHMI AMMA Vs. RADHA KRISHNANUNNI

JUDGEMENT

(1.) THE suit for partition was initiated in the year 1985 and in the course of the suit original plaintiff expired and his legal representatives were impleaded as supplemental plaintiff Nos.2 to 5 who are respondent Nos. 1 to 4 herein. Suit was initially decreed against which defendant Nos.2 and 3 filed A.S.No.41 of 1990. Case was remanded as per judgment dated 07.12.2000. While so defendant No.1, the mother of original plaintiff and defendant Nos.3 and 4 expired on 24.12.2002. Following that, defendant No.2 filed I.A.No.309 of 2004 to record her as the sole legal representative on the strength of a Will dated 24.01.2001 allegedly executed by the deceased defendant No.1. Defendant No.2 adduced some evidence in proof of alleged execution of Will (Ext.B7 in the suit). But the trial court dismissed I.A.No.309 of 2004 as per order dated 15.12.2008. That order came up in challenge before this Court in W.P.(C) No.2185 of 2009 which was disposed of on 08.03.2010 directing that defendant No.2 can claim on the basis of the disputed Will in another suit or in other proceedings. THEreafter on 13.07.2010 respondent Nos.1 to 4 filed Ext.P1, application for amendment of plaint to incorporate change in the shares consequent to the death of defendant No.1. Petitioner/defendant No.2 opposed that application as per Ext.P2 mainly contending that the application is hopelessly delayed. That objection did not prevail with the trial court and Ext.P1, application was allowed as per Ext.P3, order dated 23.07.2010. Case was then posted for additional written statement on 29.07.2010. That day, there was a request from petitioner to adjourn the case for filing additional written statement. That request was disallowed and the case was posted on 31.07.2010. Again there was a request from petitioner/defendant No.2 to grant time to file additional written statement. That request was disallowed and the documents produced by respondent Nos.1 to 4 were marked in evidence and the case was posted for evidence on 03.08.2010. Learned counsel states that on 03.08.2010 the case was adjourned to 05.08.2010 for further evidence and hearing. Learned counsel has contended that Ext.P3, order is not legally correct. It is contended that at any rate petitioner ought to have given sufficient time to file additional written statement.

(2.) MAIN ground on which Ext.P3, order is challenged is the delay in filing application. It is true that defendant No.1 expired on 24.12.2002 (as the learned counsel states) but Ext.P3, application is preferred only on 13.07.2010. There is delay, but that could be explained. Defendant No.1 died after A.S.No.41 of 1990 was remanded vide judgment dated 07.12.2000. Immediately after death of defendant No.1, petitioner/defendant No.2 came with I.A.No.309 of 2004 to record her as the sole legal representative on the strength of impugned Will. That proceeding ultimately culminated only by judgment of this Court on 08.03.2010. Hence there was no point in respondent Nos.1 to 4 seeking amendment of plaint during the said period. What then remained is only the delay from 08.03.2010 to 13.07.2010 ( the date on which I.A.No.2704 of 2010, application for amendment of plaint was filed). It is not as if that application was preferred after commencement of trial (after remand). Amendment sought for is to make changes in the shares to be allotted to various sharers consequent to death of defendant No.1. Having regard to the facts and circumstances I do not find reason to interfere with Ext.P3, order. Challenge to Ext.P3, order has to fail.