KANAILAL DAS Vs. JIBAN KANAI DAS

JUDGEMENT

(1.) This Rule is directed against order No. 112 dated 30-9-1975 allowing the amendment of the plaint in a suit filed on 19-8-1970. The plaintiff opposite party Instituted the suit for declaration on his share in 'ka' and 'kha' schedule properties of the plaint and for partition of his share by metes and bounds on allegations stated in brief as follows :-- One Behari Lal Das acquired 'ka' schedule property in the benami of his daughter-in-law Siddeswari; 'kha' schedule property was acquired by mortgaging 'ka' schedule property as also out of its usufructs in the name of Sidheewari aforesaid who had no income or fund by herself. The defendant No. 1 who is full brother of the plaintiff obtained the deed of gift of the said property in his favour on 7-10-1967 from Sidheswari by exercising of fraud and undue influence on revocation of the earlier deed made in favour of defendant No- 2 their full aster, in respect of 'ka' schedule property. The said deed of 1967 was not binding on the plaintiff and as Sidheswari acquired 1/4th Interest by inheritance, by the aforesaid deed she could convey only her 1/4th share to the defendant by the said deed executed by her. The plaintiff accordingly prayed for declaration that her mother Sidheswari was merely a name lender in respect of suit properties and the deed of 7-10-1967 was not binding on him. He claimed as 1/4th share in the property and 1/12th share as heir to his mother Sidheswari in all his 1/3rd share and for partition of his share by metes and bounds.

(2.) In their joint written statement the defendants 1 and 2 denied the allegations and the claims made in the plaint and further stated that Sidheswari acquired the properties herself. By deed of 1967 and further three deeds executed by her free will dated 31-7-1368 she transferred respectively 'ka' schedule property to the defendant No. 1 and different portions of 'kha' schedule property to the defendant No. 1, to his son and also to the defendant No. 2 and the plaintiff had thus no title or interest in the suit property. The plaintiff thereafter by an application for amendment dated 13-3-1974 wanted to amend the plaint alleging that through misconception of law his share in the said property was not correctly stated and further because of his absence of knowledge of the deeds of 31-7-1968 which he came to know for the first time from the written statement he could not make specific allegations in respect thereof in the plaint For these reasons he wanted to amend the plaint stating in addition that the deed of 31-7-1968 were obtained by taking advantage of the senility and mental weakness of Sidheswari due to old age and they were not binding on the plaintiff; further on the death of Behari Lal Das according to the Hindu Law of succession the plaintiff as also the defendant No. 1 inherited the suit properties in equal share. It was also stated that the son of the defendant No. 1' was also to be impleaded in the suit as defendant No. 3 in the aforesaid circumstances. There was further prayer for insertion of specific particulars relating to description of the suit property.

(3.) This application was opposed by tile defendants 1 and 2 and by the impugned order the learned Judge allowed the amendment subject to payment of costs of Rs. 100/-. It was held that the proposed amendment should be allowed for determining the real question in controversy between the parties and there was no question of any prejudice to the defendants as they would be given opportunity to meet the case made out by the amendment and would be compensated with costs. Further there was no question of limitation as these three years had not elapsed from the filing of the written statement.