SYED Vs. AMINA UMMA

JUDGEMENT

(1.) THE first respondent in the lower court,who is the plaintiff in the suit,is the petitioner in this Civil Revision Petition and the matter arises out of an application for amendment of the written statement of defendants 1 to 4.The suit is for partition of six items of immovable property and for a separate possession of the plaintiff's two out of ten shares in the plaint properties.Items 1 to 5 have been alienated to one Ahammad Kutty Haji by the deceased brother of the plaintiff acting as de facto guardian and defendants 1 to 4 are the legal representatives of the said Ahammad Kutty Haji.The suit as brought by the plaintiff is for partition of the plaint items ignoring the alienation,treating it as ab initio void and ineffective.The parties are Muslims.

(2.) ISSUES were framed in the suit on 15 -4 -1954 and on 11 -2 -1956 defendants 1 to 4 filed the application for amendment of their written statement seeking to add 134 more items of property in the suit and claiming a general partition of the whole estate,so that they might be enabled to work out their equities as bona fide purchasers for value by getting the alienated items allotted to them.The plaintiff objected to the amendment on the grounds that there was inordinate delay in seeking the amendment,that defendants 1 to 4 were not entitled to any equities,as alienees from a de facto guardian of a Muslim minor had no such equities,that the amendment if allowed would change the subject - matter of the suit and that it might even compel him to pay additional court fee and might also necessitate the impleading of new parties to the suit.The lower court allowed the amendment and hence the plaintiff has come up in Revision.

(3.) THE next contention urged on behalf of the petitioner is that by amendment of the pleadings,the subject - matter of the suit cannot be changed.For this,reliance is placed on Ma Shwe v.Maung Ho Hnaung,AIR 1922 PC 249.Therein it was held that full powers of amendment should always be liberally exercised,but nonetheless no power has been given to enable one distinct cause of action to be substituted for another,nor to change,by means of amendment,the subject - matter of the suit.