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2014 DIGILAW 40 (KER)

Girish v. Janaki

2014-01-13

N.K.BALAKRISHNAN

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JUDGMENT : N.K. Balakrishnan, J. Ext. P3 order is under challenge. An application was filed by the 8th defendant to amend the written statement. Petition is for partition of the properties shown in the plaint. The property originally belonged to one Nanu. He,had two daughters namely; Devaki and Janaki through his wife Kurumbakutty. Janaki is the first plaintiff. The 2nd plaintiff is the son of Devaki. After the death of Kurumbakutty, Nanu married one Paru, the sister of Kurumbakutty mentioned above. Velayudhan is the son bom to Nanu through Pam mentioned above. The 8th defendant is the wife of Velayudhan. Nanu had executed a Will in 1971 bequesting the properties which belonged to him. Subsequently, a settlement deed was executed by Nanu as per document No. 1508/1972. 2. Ext. P2 is the written statement filed by the 8th defendant who is the petitioner herein. The execution of the registered Will 14/1971 dated 2 8/04/1971 was admitted by the petitioner. Nanu died on 21/05/1974. It was further admitted by the petitioner in that written statement that during the life time of Nanu he had also executed settlement deed No. 1508 of 1972. Thus, it was contended that excluding the properties covered by the settlement deed, the other properties shown in the registered Will were left behind by deceased Nanu. It was in that line, the claim for partition was made. 3. Ext. P12 is the affidavit filed in support of the amendment petition filed by the petitioner. The Learned Sub Judge dismissed the application for amendment holding that in the original pleading, the petitioner had admitted the execution and genuineness of the settlement deed registered as document No. 1508 of 1972 and that now she wants to resile from that admission. Holding that the purpose of amendment is to take away the admission made by her in the written statement, the Court below dismissed the petition. 4. The learned counsel for the petitioner submits that by the amendment the petitioner only wanted to explain the circumstances in which such a statement was made in the written statement filed by her. The learned counsel further submits that if the amendment is only to clarify the position, explaining the circumstances under which such a statement was made, it cannot be said that the intention behind such amendment is to take away the admission contained in the written statement. The learned counsel further submits that if the amendment is only to clarify the position, explaining the circumstances under which such a statement was made, it cannot be said that the intention behind such amendment is to take away the admission contained in the written statement. Though admission cannot be withdrawn by subsequent amendment, it can be explained or clarified, the learned counsel for the petitioner submits. 5. Explanation or clarification can be made regarding the admission but the effect of such clarification or explanation cannot be to take away the admission already made. On going through the affidavit filed in support of the application for amendment of the written statement, I am not persuaded to hold that the object of the amendment is only to explain the circumstances. The defendants cannot be allowed to change completely the case made in the written statement and substitute an entirely different and new case. 6. Reliance has been placed on the decision of the three Judges' Bench of the Supreme Court in M/s. Modi Spinning and Weaving Mills Co. Ltd. and Another v. M/s. Ladha Ram & Company 1977 KHC 736. It was held by the Apex Court in Nagindas Ramdas v. Dalpatraxn Ichharam @ Brijram and Others 1974 KHC 391 "Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand oh a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence are by themselves, not conclusive. They can be shown to be wrong." 7. Since in this case the admission is in the pleadings, it can by themselves be made the foundation of the rights of the parties. As per the proposed amendment the petitioner wanted to introduce a plea that the settlement deed and the Will Were in the possession of the plaintiffs and so there was no occasion for her to go through the document. As per the proposed amendment the petitioner wanted to introduce a plea that the settlement deed and the Will Were in the possession of the plaintiffs and so there was no occasion for her to go through the document. It was stated that when the thumb impressions in the settlement deed and other documents were sent for comparison, it was found to be different. The learned counsel for the petitioners submits that the written statement was filed as the petitioners were told about the same by Devaki and Janaki. The petitioner wanted to contend that he does not admit the thumb impression in the document as that of deceased Nanu. 8. Learned counsel for the respondent has also relied upon the decision of the Apex Court in Heeralal v. Kalyan Mai and Others 1998 KHC 652. There also it was held that once a written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and cause him irretrievable prejudice. Therefore, when the amendment sought in the written statement is of such a nature as to displace the plaintiffs case, it cannot be allowed. According to the learned counsel, the amendment introduces a new case which is totally different from the one pleaded by the petitioner and as such the amendment if allowed would deprive the plaintiff of the benefit of admission and in that way the plaintiff will be prejudiced. 9. On going through the proposed amendment it is clear that the attempt made by the defendant/petitioner herein is actually to take away the admission already made by him in the written statement. That is not permissible. The contention that the petitioner wanted only to explain the circumstances under which the written statement was filed does not appear to be correct but the intention is to take away the admission already made by him in the written statement. Therefore, in the light of what has been stated above, I am not inclined to allow this petition. The impugned order does not suffer from any illegality or jurisdictional error. Hence this OP (C) is dismissed.