ANGAMUTHU Vs. SAROJA

JUDGEMENT

(1.) The Petitioner is the 1st Defendant in O.S. No. 461 of 2004 on the file of the II Additional District Munsif Court, Bhavani. This is a Suit for partition filed by the Respondents 1 to 3. The trial was taken up. The Plaintiffs' evidence was over and the 1st Defendant was also examined before the court. At that time, the Plaintiffs filed the petition in I.A. No. 62 of 2009 under Order 6 Rule 17 of Code of Civil Procedure for amending the plaint to include a relief of declaration that the Gift Settlement Deed dated 1.2.1997 executed by the deceased Chinnasamy is not binding upon the Plaintiffs and also certain pleadings with regard to jurisdiction and court fee.

(2.) In the affidavit, the Plaintiffs have alleged that the 1st Respondent filed an additional Written Statement, in which he has pleaded that his father Chinnasamy had executed a Gift Settlement Deed dated 1.2.1996 in his favor, that the said Chinnasamy was not commanding good health and was bedridden at that time and the settlement deed was obtained from him by misrepresentation and unlawfully and hence the relief of declaration that the Deed is not binding upon the Plaintiffs is to be incorporated in the plaint and so the amendment petition may be allowed.

(3.) In the counter filed by the 1st Respondent/1st Defendant, it is stated that after this Respondent was examined before the court in part, the amendment petition came to be filed. This Defendant has filed written statement and additional written statement on 4.12.2002 and 7.9.2004 respectively. In the additional written statement, a defense has been raised to the effect that the deceased Chinnasamy on 1.2.1996 executed a Gift Settlement Deed in favor of the 1st Defendant in the presence of the Plaintiffs. On 7.9.2004 itself, the Plaintiffs were put on notice with regard to the above said Gift Settlement Deed, but only on 15.10.2009, after a lapse of five years, the petition has been filed. The Gift Settlement Deed came to existence on 1.2.1996, which was not executed on 1.2.1997 as mentioned by the Plaintiffs. The other particulars with regard to market value of the property are also incorrect. There is no averment with regard to the proper payment of court fee. Even in the plaint, the Plaintiffs have not stated that the Settlement Deed does not bind them. Hence, the petition may be dismissed with costs.