ROOPABAI MEHARBAN SINGH Vs. NRIPAL SINGH

JUDGEMENT

(1.) WHEN an amendment has been allowed, Shri Jain submits, unless it was barred by time, this Court shall not interfere and for this proposition he has placed reliance on three decisions of the Apex Court - P. H. Patil (AIR 1957 SC 363); maitreyee Banerjee (AIR 1982 SC 17) and Panchdeo Narain (AIR 1983 SC 462 ). There could be no dispute with the general proposition, and Shri Mishra, counsel for the petitioner, does not dispute that amendment of pleadings rarely allowed but only to prevent circuity and prolixity in litigation. There is, however, another salutary proposition which is equally well-established and this Court cannot shut its eyes to the well-settled law. Relying thereon Shri Mishra rightly contends that a party shall not be allowed to set-up an inconsistent plea or an entirely different case by way of amendment, it may occasion failure of justice as a result of serious prejudice being caused to the other side. Indeed, this proposition is also unexceptionable and authority need not be cited to establish its validity because it is fundamental in nature. Indeed, there are authorities galore which speak vocally of its inexorable mandate and immutable character [see for example, P. H. Patil (supra); Suraj Prakash (AIR 1981 SC 485].

(2.) SHRI Mishra has rightly made a short submission to assail merely a part of the impugned order by which a particular amendment was allowed by the Court below to which he has taken serious objection. Shri Mishra contends that the prayer of the plaintiff for amending the plaint by stating the fact that adoption of the plaintiff took place during the life time of Meharbansingh was mala fide and misconceived and the order, therefore, is illegal and without jurisdiction. Counsel rightly submits that earlier a different case was set-up by the plaintiff stating that his adoption took place after meharbansingh's death and he was taken in adoption by Meharbansingh's widow though it is now sought to be made out that Meharbansingh, during his life time, had taken the plaintiff in adoption. This contention of Shri Mishra is relevant and forceful and it has no answer because of the change in law, of which due notice has not been taken by the Court below. After the enactment in 1956 of the Hindu Succession Act and Hindu Adoption and Maintenance Act, a sea of change has taken place in the law of succession and adoption which has great relevance to the instant lis, as is projected in sections 4 (1) and 14 (1) of the Succession Act, section 12 Proviso (c) of the Adoption act. It is now legislatively settled, in supersession of the Shastric law, that the 'limited' owner has now become the 'full' owner and indeed the old law of adoption is also changed by modifying the rule of "relation back" to circumscribe the rights and interests of the adopted person.

(3.) IT is the admitted position reflected in the pleadings in the case that the death of Meharbansingh, through whom the plaintiff (non-petitioner) claims share in the coparcenary property, took place after the law was changed inasmuch as according to the plaint itself Meharbansingh is alleged to have died some time in the year 1961. Therefore, Shri Mishra contends, if the proposed amendment, which has been allowed by the trial Court, and which he has challenged, is allowed to stand, this would amount to allowing divesting of the estate of deceased Meharbansingh which has already legally vested in his legal heirs when the succession to the estate opened on his death. Shri Mishra contends that Meharbansingh died leaving behind him his widow Kachwai and a daughter Roopabai (the present petitioner) us also the widow of a pre-deceased son and they succeeded him on his death and became 'full' owners of their respective share by virtue of section 14 (1) of the Succession Act. As a result of the amendment, which has been allowed by the Court below, serious prejudice, therefore, will be caused to them apart from the fact that the entire character of the suit is being changed and indeed inconsistent pleas of facts are being raised. There is much substance in the contention pressed in view of what is to be found at para 9 of the decision of their Lordships of Supreme Court reported in AIR 1967 SC 1761 (Sawan ram v. Kalawanti) wherein the effect of the proviso (c) to section 12 of the Adoption act has been considered holding that the Shastric Law of "relation Back" was narrowed down legislatively. Indeed, in Punithavalli (AIR 1970 SC 1730) in specific terms it was held, albeit relying on section 4 (1) of the Succession Act, that the right of full ownership acquired under section 14 (1) of the Act by a Hindu female, is not defeated by an adoption made after the Act came into force.