KEWAL KISHORE Vs. HAMAD AHMAD KHAN

JUDGEMENT

(1.) THE facts giving rise to this appeal are as under: The property in dispute belonged to one Kahn Chand who sold the same on 3rd August, 1932 to one nawab Saadat Ullah Khan. The alienee made several transfers of different parcels of land in favour of defendants Nos. 2 to 17. The present suit was brought by kewal Kishore who alleged that he had been adopted by Kahn Chand, that he had become a member of the joint Hindu family with Kahn Chand by reason of the said adoption, that the property in dispute was the joint Hindu family property and that the sale made by his adoptive father was without consideration and legal necessity and was not binding on him. The suit was contested by the various defendants who controverted the pleas of the plaintiff and raised three preliminary objections, namely (1) that the plaint did not disclose a cause of action, (2) that the plaint was not properly valued and stamped for purposes of court-Fee and jurisdiction, and (3) that the land in dispute had not been properly described in the heading of the plaint.

(2.) THE learned trial Court framed three preliminary issues on the aforesaid objections and recorded findings on all the three issues against the plaintiffs. The plaint was rejected on the basis of the finding on issue No. 1 and in the concluding portion of its judgment the learned trial Court said as follows :-" in view of my finding on issue No. 1, it is not necessary to get the plaint amended for purposes of issues Nos. 2 and 3. The plaint, as it stands, does not disclose a cause of action and is therefore rejected under Order 7 Rule 1, Civil Procedure Code, with costs to the contesting defendants. " the main basis on which issue No. 1 was decided against the plaintiff was that the plaintiff had not expressly stated in the plaint that he had ever been adopted by kahn Chand as his son and that he had not stated that the said adoption took place before the sale in dispute. Feeling aggrieved against the decision of the Trial court the plaintiff has come up to this Court in first appeal.

(3.) THERE is no doubt that the plaintiff did not expressly state in the body of the plaint that he had been adopted by Kahn Chand but in the plaint he mentioned kahn Chand as his father at several places. He also alleged that he and his father kahn Chand formed a joint Hindu family and that the property in suit was the property of the said family. He did not mention in the plaint the date on which he was adopted, but the plaintiff's counsel urges that the very fact that he contested the alienation showed that he had been adopted earlier than the alienation. The plaintiff has filed an amended plaint in this Court and has prayed that he may be allowed to amend the plaint and to raise these two pleas in express words. After hearing the learned counsel for the parties we do not see any reason why amendment should not be permitted. The plaintiff did state in the heading of the plaint that he was the adopted son of Kahn Ghana. The only objection of the defendants was that the fact of adoption had not been expressly mentioned in the body of the plaint. As observed above, Kahn Chand has been described as being the father of the plaintiff in several paragraphs of the plaint and a definite plea has been taken that he and Kahn Chand constitute a joint Hindu family. The defect pointed out by the defendants that the matter of adoption is not stated in so many words in the body or the plaint is only a technical one. We do not find any reason why we should not allow the plaint to be amended to cure that defect.