GAFFAR BHAT Vs. GHANI BHAT

JUDGEMENT

(1.) THIS revision is directed against the order dated 20 -7 -1981, inadvertently dated as 20 -7 -1980, passed by Munsiff Pulwama rejecting plaintiffs request for amendment of the plaint.

(2.) THE dispute in the suit relates to the property left by Ismail Bhat. The plaintiff and defendants 1 & 2 are the sons of the deceased while defendants 3 & 4 are his daughter and widow respectively, Previously defendants 1 & 2 brought a suit against the present plaintiff and defendants 3 & 4 for declaration to the effect that they were the exclusive owners of the property left by Ismail Bhat. While the suit was pending, the parties excluding the present plaintiff entered into a compromise as a result of which a declaratory decree was passed in favour of the present defendants 1 & 2. The present plaintiff was given up in that suit. He subsequently brought a suit for declaration to the effect that the aforesaid decree was not binding on him and that he was as much a sharer as defendants 1 & 2. During the pendency of this suit he asked for the amendment of the plaint. The motion for amendment was rejected by the trial court. Hence this revision.

(3.) THE plaintiffs case in the plaint was that defendant No. 3 Mst. Mali was the daughter of the deceased Ismail Bhat who had been married outside her fathers house and as such she was not entitled to succeed to the property left by her father. His further case was that the widow of the deceased was entitled to share the property equally with the sons of the deceased but she could retain the property till her death or remarriage. In the original plaint the plaintiff did not however ask for any additional relief to the effect that he, other two sons and widow of the" deceased were entitled to share the property equally. He also did not specifically set up the custom that daughters married outside their fathers house were not entitled to succeed to their fathers property nor also that the widow could succeed till her death or remarriage. By way of amendment the plaintiff asked for permission to set up the custom specifically and also to ask for the additional relief. He even filed an amended plaint with the application for amendment. The trial court dismissed the application as vague. It is true that the application is not in a convential form which makes it difficult to understand at first thought as to what the plaintiff wants. But when read with the amended plaint, it is not difficult to decipher the proposed amendment. As already stated the amendment is aimed at pleading the custom specifically and asked for the additional relief. The proposed amendments do not change the character of the suit. They are intimately connected with the case set up by the plaintiff in the original plaint. Infact the amendments sought in the body of the plaint are intended to eloborate the case set out by the plaintiff in the plaint and that in the prayer clause intended to enlarge the scope of the relief, which is closely connected with the facts pleaded in the plaint. In these circumstances the lower court ought have allowed the amendment. The order to the contrary made by the court is not sustainable in law and must be set aside.