VANJIAMMAL AND ORS. Vs. N. MADHANKUMAR

JUDGEMENT

(1.) The plaintiffs in the original suit O.S. No. 1194 of 2013 pending on the file of the III Additional Subordinate Judge, Coimbatore are the petitioners in the present revision.

(2.) The suit came to be filed against 1) Myilsamy Gounder (since deceased), 2) his wife Palaniammal, 3) Son Nithiyanandham, 4) Grand daughter Vanitha and grand son Madhan Kumar arraying them as defendants 1 to 5 and seeking the relief of partition and separate possession. The petitioners herein/plaintiffs claim 1/3rd share in the suit properties and they do admit that the remaining 2/3rd share belongs to the defendants. During the pendency of the suit, the first defendant Myilsamy Gounder died and the fact of his death was intimated and an amendment noting his death came to be made by virtue of an order dated 11.11.2014 made in I.A. No. 1013 of 2014. The suit was resisted on the basis of the written statement filed by the said Myilsamy Gounder (deceased first defendant) which was adopted by the other defendants.

(3.) The trial commenced and after the examination of PW1, the fifth defendant Madhan Kumar filed an application I.A. No. 1194 of 2013 praying for permission to file an additional written statement enclosing the proposed additional written statement along with the application. In the affidavit supporting the application, the fifth defendant has stated that his grandfather Myilsamy Gounder, during his life time, executed a Will dated 20.02.2009; that since the Will was ineffective during the life time of the testator, it was not referred to in the written statement and that after the death of Myilsamy Gounder, it became necessary to make a pleading bringing it to the notice of the Court regarding the Will left by Myilsamy Gounder as his last Will and testament. For the delay caused in making the additional plea, the fifth defendant made an averment in his affidavit to the effect that after the death of Myilsamy Gounder on 01.09.2013, he was busy with the ceremonies and thereafter, he had forgotten to instruct the counsel to file the additional written statement within a short time. The application for amendment was resisted only on the ground of belatedness.