V.T. ELAYA PILLAI Vs. RAMASAMI JADAYA GOUNDAN

JUDGEMENT

(1.) THE first defendant in O.S. No. 44 of 1944 in the District Court of South Arcot seeks to revise an order of the learned District Judge of South Arcot allowing an application for amendment (I.A. No. 169 of 1945) made by the respondent. The suit was not originally filed by the respondent but was filed by one Muthuswami Jadayya Koundar who was the holder of an impartible estate known as Jadaya Goundan Hills Jagir. The suit was inter alia for a declaration that a promissory note bearing date nth September, 1942, and a lease deed bearing date 16th September, 1942, obtained by the defendant from the plaintiff are not binding on or enforceable against the plaintiff. The ground on which this relief was sought was that the execution of the promissory note and the deed of lease was vitiated by coercion, undue influence and fraud. The original plaintiff died on 13th May, 1945, and the present respondent, one Ramaswami, his younger brother, was brought on record as his legal representative and successor to the impartible estate. The respondent now seeks to amend the plaint filed by his predecessor by the addition of a paragraph which raises a contention that the promissory note and the lease deed are not binding on the estate as it was not competent to his predecessor, who was only a qualified owner, to alienate it beyond his lifetime in the absence of necessity. This plea is based evidently on Section 4 of the Madras Impartible Estates Act. There is a reference in the paragraph sought to be added to Section 6, of Madras Act II of 1904 but the other allegations in the paragraph do not justify a reference to that section. The application for amendment was opposed by the first defendant, his main objection being that the respondent ought not to be allowed to put forward a claim which was not available to the deceased. This was not seriously disputed before the learned District Judge, nor has it been disputed before me. The learned District Judge held that the original plaintiff, Muthuswami could have asked for a declaration that the alienation was not binding beyond his lifetime and that therefore the respondent could be. allowed to obtain an amendment which sought to raise such a plea.

(2.) MR . K. S. Sankara Aiyar, the learned Advocate for the petitioner before me formulated his objection to the amendment sought from two aspects : (1) he contended that it would not have been open to Muthuswami, the respondent's predecessor, to have raised the plea now sought to be raised by amendment, and (2) even if it were permissible for Muthuswami to have raised that plea originally at the time of the filing of the plaint the Court ought not to allow him at a subsequent stage to have the plaint amended by the addition of this plea based upon a cause of action different from that on which the suit was originally laid.

(3.) THE learned Advocate -General raised a contention that the original plaintiff could be deemed to have two capacities, one an individual capacity and another -a representative capacity representing the estate for the time being and in his representative capacity he could file a suit for a declaration that the alienation was not binding on the estate after his lifetime. Though it is quite true that a person who happens to be the holder of an impartible estate may have other capacities and transactions in that capacity, so far as the provisions of the Madras Impartible Estates Act are concerned they have reference only to his transactions as the holder of an impartible estate and in respect of such an estate. I fail to see how there is a dual capacity in respect of the alienation of an impartible estate by the holder for the time being of that estate.