MARIAN KHATOON Vs. HUSNA ARA BEGUM

JUDGEMENT

(1.) This Civil revision application is directed against the order dated 15-12-1988 passed by Learned Subordinate Judge IV, Patna in Title Suit No. 375 of 1981 whereby the petitioners' petition for amendment of their plaint was rejected.

(2.) The petitioners' filed the aforesaid suit for partition of their 7 annas 2 pice share in the suit property after declaring that the alleged deed of gift dated 30-6-1973 purported to be executed by Amna Khatoon, since deceased, in favour of the original defendant No. 1 later Abudl Qadir was forged, fabricated, fraudulent, and illegal and not binding on the plaintiffs and that defendant No. 1 has acquired no interest thereunder. From the fact stated in the Civil revision application it appears that the suit property is a residential house bearing Holding No. 54, Circle No. 118 measuring about 15 kathas situated in mohalla Moghalpura, Nawab Bahadur Road, Patna and about 22 acres of lands in village Rasulpur and Bhikhanpur both under the district of Muzaffarpur, was the personally acquired property of late Dr. Ali Ahmad, who was a well known physician of Patna. The said Dr. Ahmad purchased the said property in the name of his wife Most. Amna Khatoon since deceased, whereafter he constructed a house on his said purchased land and started living there. The plaintiffs-petitioners' further case was that Dr. Ahmad died in November, 1945 leaving behind a widow Amna Khatoon three sons, namely, Abdul Qadir, Abdul Rahman and Abdul Rahim (defendant Nos. 1 to 3) and five daughters, namely, Rasul Bandi (defendant No. 3), Bilgees Bano (defendant No. 4), Kaniz Fatma (defendant No. 5), Mariam Khatoon (Plaintiff No. 1) and Halima Khatoon (plaintiff No. 2), who inherited the property according to their respective shares under the Mohammadan Law applicable to the Sunni Sect and they came in possession thereof. It is alleged that since the family of Dr. Ahmad was very well known and his widow Most. Amna Khatoon commanded great respect in the family, the partition of the suit property was never contemplated by the plaintiffs or the performa defendants so long as Most. Amna Khatoon was alive. After the death of Most. Amna Khatoon her eldest son Abdul Qadir (Defendant No.1) started looking after the property on behalf of all the brothers and sisters. It was alleged that defendant No. 1 taking advantage of the absence of the brothers and sisters started mis- managing the properties. In the year 1978 the plaintiffs learnt that defendant No. 1 Abdul Qadir had applied before the Municipal Corporation for mutation of his name on the basis of forged and fabricated deed of gift dated 30-6-1973 alleged to be executed by Amna Khatoon in his favour by which the suit house of Patna along with about 13 bighas of the most valuable agricultural lands were purported to be gifted to him. During the pendency of the suit defendant No. 1 Abdul Qadir died and his heirs were substituted in his place who filed their written statements claiming the house and the land on the basis of alleged deed of gift. The defendants 2, 3 and 5 appeared and filed their respective written statement and supported the case of the plaintiffs-petitioners and demanded partition of the entire suit property. The plaintiffs-petitioners filed a petition for amendment of the plaint for addition of few lines in order to show the relationship of the defendant No. 1 Abdul Qadir or his wife with the witnesses of the alleged deed of gift. The said amendment petition was opposed by the substituted heirs of defendant No. 1 by filing re-joinder. Learned Court below after hearing the parties by the impugned order rejected the application for amendment of plaint.

(3.) Mr. S.S. Naiyar Hussain, Learned Counsel appearing on behalf of the petitioner has assailed the order passed by the Learned Court below as being illegal and without jurisdiction. Learned Counsel submitted that Learned Court below has committed serious illegality in so far as it held that by the proposed amendment, the plaintiffs- petitioners wanted to introduce altogether a new case. Learned Counsel submitted that Learned Court below has completely failed to appreciate the law laid down that by Apex Court in the matter of amendment of pleading. Learned Counsel relied upon a decision of the Supreme Court in the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another, reported in AIR 1983 SC 462.