LAKSHMI AMMAL ALIAS PICHAI AMMAL Vs. ALAMELU AMMAL

JUDGEMENT

(1.) The facts are that the plaintiff sued her sister and also the latter's husband, although he need not be further referred to, for partition and possession of a moiety of a certain property alleged to be stridhanam property of their mother. The suit eventually reached the stage of a preliminary decree, recognizing the plaintiff's right to half the property; and it is now pending for the passing of a final decree after ascertainment, by metes and bounds, of the plaintiff's share. The present proceedings, have arisen from the death of the plaintiff's sister. Thereon the plaintiff has moved in one application to have her sister's daughter, respondent, impleaded as legal representative of the deceased and in another for an amendment of the plaint to enable her to obtain a decree in these proceedings, not merely for the moiety of the property, horn which she alleges she was wrongfully excluded during her sister's lifetime, but also for the other moiety, on the ground that by survivorship she is entitled to the whole.

(2.) The lower appellate Court has granted both these applications; and we think that it was justified in granting the first. I he claimant's right to a half share of the property has been finally established, and nothing more remains to be done except to ascertain that half share and make a final decree for the delivery to her of possession of it. That can be done against any person, who (like the respondent) has come into possession in succession to the deceased. It is suggested that the plaintiff is now no longer entitled to the benefit of the decree she has obtained, because she has lost the character of a joint tenant and has acquired in its stead a right to the whole estate. That we do not think sufficient to deprive her of her original cause of action, when the proceedings have been instituted and have resulted in recognition of her right in a preliminary decree. Taking this view we confirm the lower appellate Court's decision5, so far as it relates to I.A. No. 741.

(3.) Turning to I.A. No. 740 for the amendment, we observe that the lower appellate Court can hardly be regarded as having exercised judicial discretion. For it made its order simply on the ground that it was not sure that the lower Court was right in passing the contrary order. We are unable to see in the present case any reason for departing from the ordinary rule, that an amendment should not be made to introduce a new cause of action. The cause of action assumed in the amendment is the death of the plaintiff's sister; and that of course was not available when the original plaint was presented. There is however no reason that we can see why the plaintiff should not take the ordinary course of suing on the a1.use of action, which she has acquired and which, unless some objection is established, will entitle her to the other moiety of property. We therefore modify the lower appellate Court's order by dismissing I.A. No. 740 of 1920. In the circumstances of the case each party will bear his costs in this and in the lower appellate Court. In the District Munsifs Court the respondent will pay the plaintiff's costs in I.A. No. 741 and obtain costs from the plaintiff in I.A. No. 740.