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2021 DIGILAW 1358 (MAD)

Missiriya v. Sayeeda Beevi

2021-04-17

T.KRISHNAVALLI

body2021
ORDER : These Civil Revision Petitions are directed against the fair and decretal order, dated 06.11.2014 passed in I.A Nos.457 and 624 of 2012 in O.S No.21 of 2009 on the file of the Principal Sub Court, Tirunelveli. 2. The first respondent herein originally filed the suit in O.S No.21 of 2009 on the file of the Additional Sub Court, Tirunelveli against the petitioners 1 to 4 herein and the respondents 2 to 5 for partition and separate possession of 2/16th shares of the suit schedule properties and for mesne profits. Pending suit, the petitioners 1 to 4 herein filed two applications namely I.A No.457 of 2012 for impleading the respondents 6 and 7 and I.A.No.624 of 2012 for amendment to include one more schedule of property. The trial court dismissed both the applications, on 06.11.2014. Aggrieved over the same, the petitioners are before this court with these civil revision petitions. 3. Heard the learned counsel appearing on either side and perused the materials available on record. 4. The main contention raised on the side of the revision petitioners/defendants 1 to 4 is that the 1st respondent/plaintiff sold one property to the respondents 6 and 7 herein and the sale property also belongs to the revision petitioners and the oral partition alleged to have executed by the 1st respondent/plaintiff is denied by the revision petitioners and hence, it is necessary to include the above properties for partition and further, the amendment sought for by the petitioners will not change the cause of action or alter the character of the suit and prays that the amendment petition to implead the subsequent purchasers of the above property from the 1st respondent/plaintiff, are necessary parties for proper adjudication and hence, prays that the Civil Revision Petitions have to be allowed. In support of his contention, the learned counsel appearing for the revision petitioners relied upon the decisions reported in 2012(1) CTC 159 (Solavaiammal Vs. Ezhumalai Gounder). 5. On the side of the 1st respondent/plaintiff, it is argued that the alleged property was sold by the 1st respondent/plaintiff to the respondents 6 to 7 herein with the consent of all the co-owners and hence, it is not necessary to include the above property and the subsequent purchasers in the above suit and prays that the Civil Revision Petitions are to be dismissed. 6. 6. In this case, the 1st respondent/plaintiff filed the suit for partition as against the defendants. The main contention of the revision petitioners is that the 1st respondent/plaintiff sold one item of the joint family property to the respondents 6 and 7 herein and hence, it is necessary to include the above item of property, which was sold to the proposed respondents 6 and 7 and further, the subsequent purchasers are necessary parties for proper adjudication. The 1st respondent/plaintiff stated that in an oral partition, one property was allotted to her and hence, she sold the above property to the proposed respondents 6 and 7. But the learned counsel appearing for the 1st respondent/plaintiff contended that with the consent of the co-owners, one property was sold to the proposed respondents 6 and 7. Hence, it reveals that one of the family property was sold. To prove that with the consent of all the co-owners, the property was sold to the proposed respondents 6 and 7, no document was filed. Only at the time of the trial, it is possible to decide that whether the 1st respondent/plaintiff has right to dispose the property by way of examining the witnesses and production of the documents. Further, in the judgment reported in (2006)3 Supreme 507 (Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others), the Hon'ble Apex Court has held as follows:- “13. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. We shall now consider the proposed amendment and to see whether it introduces a totally different, new and inconsistent case as observed by the Hon'ble Judges of the Division Bench and as to whether the application does not appear to have been made in good faith. We have already noticed the prayer in the plaint and the application for amendment. In our view, the amendment sought was necessary for the purpose of determining the real controversy between the parties as the beneficiaries of the Trust. We have already noticed the prayer in the plaint and the application for amendment. In our view, the amendment sought was necessary for the purpose of determining the real controversy between the parties as the beneficiaries of the Trust. It was alleged that respondent No.1 is not only in exclusive possession of 57,042 shares of GPI and the dividend received on the said shares but has also been and is still exercising voting rights with regard to these shares and that he has used the Trust to strengthen his control over GPI. Therefore, the proposed amendment was sought in the interest of beneficiaries and to sell the shares and proceeds invested in Government bonds and or securities. A reading of the entire plaint and the prayer made thereunder and the proposed amendment would go to show that there was no question of any inconsistency with the case originally made out in the plaint. The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. There are a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The amendments sought for by the applicants has become necessary in view of the facts that the appellants being the beneficiaries of the Trust are not deriving any benefit from the creation of the Trust since 1991-92 and that if the shares are sold and then invested in Government bonds/securities the investment would yield a minimum return of 10-12%. It was alleged by the appellants that respondent No.1 is opposing the sale in view of the fact that if the said shares are sold after the suit is decreed in favour of the appellants, he will be the loser and, therefore, it is solely on account of the attitude on the part of the respondent No. 1 that the appellants have constrained to seek relief against the same.” 7. In the decision reported in 2009(12) Scale 259 in the case of Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. In the decision reported in 2009(12) Scale 259 in the case of Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna and others, the Hon'ble Apex Court has observed that a decree in partition suit ensures to the benefit of all the co-owners and it is sometimes said that there is really no judgment-debtor in a Partition Suit. Hence, it is held that in a suit for partition, application for amendment at the instance of either party to the suit is maintainable. 8. Even though in the Muslim Law, there is no question of partial partition, but for proper adjudication, the inclusion of the above property sold to the 1st respondent/plaintiff is necessary and the proposed respondents 6 and 7, who purchased the above properties are necessary parties. 9. For all the reasons stated above, this court is of considered view that the impugned orders, dated 06.11.2014 passed in I.A No. 457 of 2012 and in I.A No.624 of 2012 in O.S No.21 of 2009 on the file of the Principal Sub Court, Tirunelveli, are liable to be set aside and accordingly, they are set aside. 10. In the result, these Civil Revision Petitions are allowed. The impugned orders, dated 06.11.2014 passed in I.A Nos.457 of 2012 and in I.A No.624 of 2012 in O.S No.21 of 2009 on the file of the Principal Sub Court, Tirunelveli are hereby set aside. No costs. Consequently, connected Miscellaneous Petitions are closed.