PALANICHAMY Vs. POMMUSAMY

JUDGEMENT

(1.) THIS civil revision petition is preferred under Article 227 of the Constitution of India against the fair and decretal order, dated 25. 7. 2005 passed in IA No. 817 of 2005 in OS No. 634 of 2002 on the file of the learned Additional District Munsif Court, Namakkal. The defendants are the revision petitioners. The plaintiffs filed a suit for partition claiming 1/4th share each to the total extent of 3/4th share and admitting that the first defendant is entitled for another 1/4th share.

(2.) ALL the three plaintiffs and the first defendant are brothers. Their father was one Rangama Naicker. The second defendant is the wife of one Muthu Naicker. The said Rangama Naicker, who is the father of the plaintiffs and the first defendant and Muthu Naicker were brothers and the property belonged to them as joint family property. The second defendant being the only legal heir of Muthu Naicker. It is the case of the plaintiffs that the said Muthu Naicker has executed a settlement deed, dated 26. 2. 1965 in respect of half share in the property, settling the same in favour of the plaintiffs and the first defendant. It is also stated that in turn, the plaintiffs and the first defendant have settled some of the property in favour of the said Muthu Naicker. It is also the case of the plaintiffs that the said Muthu Naicker has executed a Will on 22. 5. 1994, by which, he has bequeathed all his properties to the plaintiffs and the first defendant. It was based on the said averments, the suit for partition was laid.

(3.) WHILE trial was in progress, the plaintiffs filed I. A. No. 817 of 2005 under Order 6 Rule 17 CPC for the purpose of amendment of the pleadings to the effect that the plaintiffs have given up their right under the Will executed by Muthu Naicker, dated 22. 5. 1994 and claiming share to an extent of 1/8 share for each of the plaintiffs based on the settlement deed executed on 26. 2. 1965. The amendment petition was filed on the basis that even though under the settlement deed and Will, each one of the plaintiffs are entitled to 1/4th share, since the first defendant has not acted in accordance with the settlement in maintaining the second defendant, who is in old age, being the wife of Muthu Naicker, the plaintiffs wanted to give up their right under the Will executed by Muthu Naicker on 22. 5. 1994. This was objected to by the first defendant on the ground that the Will stated to have been executed by Muthu Naicker on 22. 5. 1994 is a forged one and in fact, while the third plaintiff was cross examined as plaintiff witness, the same was elicited and thereafter, having realized the said fact, the present application for amendment is filed, giving up their right under the Will of Muthu Naicker, dated 22. 5. 1994. The first defendant has denied the fact that he has failed to maintain the second defendant. On the other hand, it is the case of the first defendant that in fact, the second defendant is living under the custody of the first defendant. Based on Ex. A. 2, settlement deed of the year 1965 and Ex. A. 4, the second defendant would submit that the filing of the suit itself is fraudulent. By way of bringing an amendment to the suit, the plaintiffs are attempting to claim right under item No. 5, which was not at all forming part of the settlement deed. According to the first defendant, the application for amendment is only with an intention of committing fraud.