MOOKKA PILLAI ALIAS SUDALAIMUTHU PILLAI Vs. VALAVANDA PILLAI

JUDGEMENT

(1.) The first defendant appeals from a decree granted to the plaintiffs for recovery of possession of the suit properties with mesne profits. The plaintiffs suit was dismissed by the Subordinate Judge, but was decreed on appeal by the District Judge of Madura. Originally, the plaintiffs sued for a declaration that they and the 12 defendant were trustees of the suit properties and were entitled to recover possession from defendants 1 to 3. The claim was opposed on the basis of a will executed by one Irulayi, widow of one Sudalaimuthu Pillai under which she set apart the properties for the performance of charities and nominated certain trustees. The will provides for the filling up of vacancies in the trusteeship, and if the trustees so appointed by her or coming in their place by co-option refuse to act or do not act properly, fresh trustees were to be appointed by all the married adult male members of her community, namely, that of Arumugamangalam Vellalars living in the Madura District. The plaintiffs stated that the trustees did not act properly, that the male members of the community met together and elected them, and that they were therefore entitled to sue for the recovery of possession of properties from defendants 1 to 3, who had no right whatever. The defendants contended that the plaintiffs were not duly elected trustees, that all the trustees who were previously functioning did not refuse to act and that there was nothing to show that they acted improperly. Another point raised by them was that Irulayi had only a life interest in the properties and had no right to dispose of any of them by will. Both these contentions found favour with the learned Subordinate Judge. On appeal, however, the defect in the title set up by the plaintiffs as trustees were sought to be got over, by an amendment petition in which the plaintiffs asked that they should be allowed to sue as the representatives of the community in question. The amendment though opposed was allowed and it is in this capacity as representatives of the community of Arumugamangalam Vellalars that they and the 12th defendant together got a decree at the hands of the District Judge. On the second point, the learned District Judge held that Irulayi got an absolute title to the properties in dispute under the award of the mediators who were called upon to settle the disputes that had arisen between her on the one hand and her husband's brother Gopala Pillai and his sons and others.

(2.) The reference to the arbitrators is evidenced by Ex. P-1 dated 21 September, 1906, and the award is Ex. P-2 dated 10 January, 1907. It is not disputed that under the reference the parties wanted the properties allotted to each share to be allotted absolutely and that the award does so in fact.

(3.) Mr. V. Ramaswami Ayyar, the learned advocate for the 1 defendant has disputed the correctness of the conclusion reached by the learned District Judge on both the points. He contended that the provisions of Order 1, Rule 8 were to be applied only in the stage of a suit and could not be taken advantage of during the hearing of an appeal from a decree in the suit for the purpose of overcoming an obstacle in the way of the plaintiffs title. In my opinion this contention has no force. An amendment can be made at any stage so long as it does not alter the nature or the character of the suit or the cause of action and there is nothing which prevents a Court, so far as I am able to see, from permitting persons suing in their individual capacity to sue as representatives of a larger group, even during the stage of appeal. When the appellate Court finds that an amendment of this kind which does not materially change the substance of the suit is necessary in the interests of justice, it should be allowed to overcome a technical difficulty in the way of the plaintiffs. There is no authority holding that Order 1, Rule 8 applies only to suits and not to appeals.