NARAYANI AMMA Vs. MADHAVI AMMA

JUDGEMENT

(1.) The suit out of which this appeal arises, was instituted by six plaintiffs for their 5/8 share of the suit properties which belonged to their tarwad, which consisted of themselves and the first defendant, the first defendant being the deceased brother of the first plaintiffs mother. The first defendant had two brothers, Sankara Marar and Kanna Marar, both of whom died, defendants 2 to 5 being the widow and children of Sankara Marar, and defendants 6 to 10 being the widow and children of Kanna Marar. It is the plaintiffs case, that both Kanna Marar and Sankara Marar were severed in interest from the tarwad, Kanna Marar having separated himself by the issue of a registered notice demanding his share in tarwad properties in the year 1945, and Sankara Marar being a party to the family council at which the members of the tarwad agreed to give one share each to Kanna Marar and Sankara Marar. The plaintiffs case is also, that the first defendant, as the karnavan of the tarwad, did not give effect to what was decided at that meeting. The first defendant denied, that Kanna Marar had issued a notice demanding his share of the properties, and contended, that Kanna Marar and Sankara Marar were not separated from the tarwad at the time of their death.

(2.) At the trial, defendants 6 to 10 and their assignee, the 13th defendant, who are appellants before us, led evidence to show, that Kanna Marar had issued a notice demanding his share in the year 1945. Some evidence was also adduced to prove, that there was a family council after the date of this notice, at which a final decision was taken to allot separate shares to Kanna Marar and Sankara Marar. The learned Subordinate Judge did not act upon this evidence, and therefore came to the conclusion, that Kanna Marar and Sankara Marar were not divided from the tarwad. Accordingly, he passed a decree on the basis, that there were only seven members in the tarwad at the time of the suit, and gave a decree to the plaintiffs for 6/7 share of the properties, and for the balance to the first defendant. It would appear, that after the death of the first defendant during the pendency of the suit, his legal representatives assigned his interest to defendants 25 to 28, who in their turn assigned the same to the 30th defendant, who is one of the contesting parties in this appeal. Although the plaintiffs case as set out in the plaint was, that Kanna Marar and Sankara Marar were divided, the second plaintiff, when examined as Pw. 1, was not quite ready to admit this fact; all the same, he admitted in clear terms, that the recital in Para.5 of the plaint in which the relevant allegations about the issue of notice and the decision taken at the family meeting were made, is correct.

(3.) The first point raised in this appeal on behalf of the appellants, is that on the pleadings and on the relief claimed, it should be held, that Kanna Marar died as a divided member. There is no doubt, that the very basis of the suit is that both Kanna Marar and Sankara Marar were divided, and it was on this footing, that the plaintiffs claimed 5/8 share. Normally, without an amendment of the prayer in the plaint and also of the allegations upon which that prayer is founded, it is not open to the plaintiffs, to ignore the very basis of the suit, viz., that Kanna Marar and Sankara Marar were divided. The learned Advocate General cited certain cases in which the parties, notwithstanding their pleadings, were permitted in the course of the litigation, to support their claims, on new or additional grounds not in the pleadings, or in which admissions made by them in other proceedings, were allowed to be explained or got rid of; it is unnecessary to deal with them, as they can have no application where the relief can be granted only on the case as pleaded and on the prayer as made. As pointed out, Pw. 1 adhered to the averments in Para.5 of the plaint at the trial. The prayer in the plaint is specific, and is for partition and recovery of their 5/8 share in the plaint schedule assets. As pointed out by Mulla in Civil Procedure Code, 12th Edition, page 610 where a plaintiff asks for less than what the plaintiff is entitled to, the court cannot give him relief in excess of the plaint, unless the plaint is amended before judgment. We are therefore clear, that on the case pleaded and on the prayer made, it must be held, that the plaintiffs can claim nothing more than 5/8 share in the tarwad properties. As for Sankara Marars share, defendants 2 to 5 have not preferred an appeal against the decree negativing their claim to it, and we do not think, this is a proper case for applying the discretion under O.41, R.33.