KUNHEEDU Vs. MARAKKAR

JUDGEMENT

(1.) This appeal is challenge of an order of remand passed by the lower appellate court. This arises from a suit for partition. The lower appellate court allowed the plaint to be amended and then remanded the suit to the Trial Court with the direction to dispose of the suit afresh after affording a reasonable opportunity to the parties to adduce further evidence. The main challenge in this appeal is regarding the propriety in allowing the plaint to be amended at this belated stage. The third defendant is the appellant. He will be referred to as the third defendant.

(2.) Facts which are necessary for this appeal alone need be stated : Plaintiff and defendants are children of one Mammed. The suit for partition is in respect of a few items of properties which belonged to the said Mammed who died on 3-6-1973. There seems to be not much of dispute except in regard to two items of immovable properties, which are described as items two and three in A schedule to the plaint. The third defendant contended that those items are not now available for partition since Mammad had assigned those items in favour of the third defendant as per Ext. B1 dated 1-5-1973. Plaintiff has advanced a contention in the plaint that the said assignment deed is a sham document as no consideration had been passed to Mammad and also since Mammad did not know the contents of the document which was signed by him under the undue influence exerted on him. The Trial Court found that Ext. B1 is a genuine document, and hence excluded those items from partition. During the pendency of the appeal, in the lower appellate court, the plaintiff filed an interlocutory application for amendment of the plaint for incorporating a relief to set aside Ext. B1. That application was allowed and pursuantly the learned Sub Judge who heard the appeal set aside the judgment and decree of the Trial Court and remitted the case to the Trial Court for disposal of the suit afresh.

(3.) Learned counsel for the third defendant raised two points in this appeal. First is that the amendment ought not have been allowed since the relief now sought to be incorporated would have been barred by limitation if a fresh suit were to be filed for the said relief on the date when the amendment application was filed. The other contention is that the amendment ought not have been granted even otherwise since the plaintiff did not take any step earlier to incorporate the relief in spite of his being alerted by the third defendant through his written statement itself that the suit cannot be maintained in respect of those items without a prayer for setting aside the transaction. According to the learned counsel, since plaintiff persisted in contending that there is no need to set aside Ext. B1 even in the memorandum of appeal, he has no right to move for the amendment at a. later stage. One of the grounds taken up by the plaintiff in the memorandum of appeal filed in the Sub Court is this: The lower court ought to have found that Ext. B1 need not be set aside since it has not taken effect", Learned counsel in support of, the said contention has cited an early decision of the Madras High Court in Narayana v. Shankunni (ILR 15 Madras 255). In that case, plaintiffs prayed for a declaration that a certain document is invalid as against the plaintiffs and that the defendants had no right over the property covered by the document". When the case reached the appellate stage, plaintiffs wanted to amend the plaint by incorporating a prayer for recovery of possession of the property concerned. It was resisted by the defendants on the ground that the right to get possession had been found against by the Trial Court and the defendants had perfected title by adverse possession, The Division Bench of the Madras High Court held that the suit for possession of the property covered by the document was not maintainable and that the plaintiffs cannot be permitted, in appeal, to amend the plaint.