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2022 DIGILAW 3118 (MAD)

Kandasamy v. Paramasivam

2022-09-02

SATHI KUMAR SUKUMARA KURUP

body2022
JUDGMENT (Prayer: Civil Revision Petition had been filed under Article 227 of the Constitution of India, praying to set aside the fair and decretal order dated 30.10.2019 made in I.A.No.4 of 2019 in O.S.No.364 of 2011 on the file of the learned Fifth Additional District Judge, Coimbatore by allowing this Civil Revision Petition.) 1. This Civil Revision Petition is filed seeking to set aside the fair and decretal order dated 30.10.2019 made in I.A.No.4 of 2019 in O.S.No.364 of 2011 on the file of the learned Fifth Additional District Judge, Coimbatore. 2. The learned Counsel for the Petitioner submitted that the Petitioner is the third Defendant in the suit in O.S.No.364 of 2011 on the file of the V Additional District Court, Coimbatore. The learned Counsel for the Petitioner invited the attention of this Court to the averments in the plaint filed in the suit in O.S.No.364 of 2011 wherein, the Plaintiffs had admitted that the Defendants are entitled to share in the property. Subsequently, they had filed a petition to remove the name of the Defendants 3 & 8. After filing of the written statement by the Defendants, the petition in I.A.No.364 of 2015 in O.S.No.364 of 2011 filed by the Plaintiffs to remove the name of Defendants 3 & 8 was dismissed by the learned trial Judge. Subsequently, the Plaintiffs had filed a petition in I.A.No.4 of 2019 seeking amendment of the plaint, wherein, the averments in the plaint regarding the Defendants are entitled to share is sought to be removed. What the Plaintiffs failed to achieve in I.A.No.365 of 2015, was sought to be achieved in I.A.No.4 of 2019. Further, the learned Counsel for the Petitioner submitted that against the order of the Learned V Additional District Judge, Coimbatore, dismissing the I.A.No.365 of 2015, the Plaintiffs had not preferred any Appeal or Revision. Therefore, the same has attained finality. Subsequently, the Plaintiffs had filed amendment petition in I.A.No.4 of 2019. Even though the Defendants as Respondents in the Interlocutory Application objected to the contention of the Plaintiffs seeking an amendment, the learned trial Judge ignoring the objection of the Respondents/Defendants, allowed the amendment. Aggrieved by the same, the third Defendant had approached this Court by filing this Civil Revision Petition. 3. Even though the Defendants as Respondents in the Interlocutory Application objected to the contention of the Plaintiffs seeking an amendment, the learned trial Judge ignoring the objection of the Respondents/Defendants, allowed the amendment. Aggrieved by the same, the third Defendant had approached this Court by filing this Civil Revision Petition. 3. The learned Counsel for the Petitioner also invited the attention of this Court regarding the contention of the Plaintiffs in I.A.No.4 of 2019 which was against the provision of Hindu Succession Act, as amended. Therefore, the Learned Counsel for the Petitioner seeks to set aside the order passed in I.A.No.4 of 2019 by dismissing the amendment sought by the Plaintiffs. The Learned Counsel for the Petitioner also sought time to furnish the ruling, in support of his contention regarding the claim of the pre-deceased daughter in the joint family property. 4. The learned Counsel for the Respondents 4, 10 and 11 Mr.V.Karunakaran submitted that the order passed by the learned V Additional District Judge, Coimbatore in I.A.No.4 of 2019 in O.S.No.364 of 2011 is a reasoned order regarding the amendment. By this amendment, the Plaintiffs had sought to remove the names of the Defendants 3 and 8 who are the daughters of predeceased daughter of Arumuga Konar, who are not entitled to a share in the joint family property. Therefore, they are not necessary parties. At the time of filing of the suit, all the legal heirs of Arumuga Konar, who are entitled to a share in the joint family property, were made as parties to the suit. Subsequently only, the Plaintiffs came to know that the daughters of predeceased daughter of the original owner of the property are not entitled to a share in the joint family property. Therefore, the names of the Defendants 3 and 8 were sought to be removed by the Plaintiffs which was resisted by the Respondents in I.A.No.4 of 2019/the Defendants 3 and 8 in the suit in O.S.No.364 of 2011. Therefore, the order passed by the learned V Additional District Judge, Coimbatore in I.A.No.4 of 2019 in O.S.No.364 of 2011 is as per the provisions of Act 39/5 of Hindu Succession Act, as amended. It does not warrant any interference by this Court exercising the powers of revision. Therefore, the order passed by the learned V Additional District Judge, Coimbatore in I.A.No.4 of 2019 in O.S.No.364 of 2011 is as per the provisions of Act 39/5 of Hindu Succession Act, as amended. It does not warrant any interference by this Court exercising the powers of revision. This Revision Petition by the Defendants 3 and 8 in the suit in O.S.No.364 of 2011 is not maintainable before this Court and has to be dismissed as having no merits. 5. On consideration of the rival submissions of the learned Counsel for the Petitioners/Defendants 3 and 8 and the Respondents 4, 10 and 11 in this Civil Revision Petition, the submission of the learned Counsel for the Petitioners is found acceptable and reasonable. As rightly pointed by the learned Counsel for the Plaintiffs, the parties to the suit viz., Plaintiffs as well as Defendants are legal heirs of the common ancestors – Arumuga Konar, who is alleged to have died intestate and it is also an admitted fact as per the averments in the plaint that there was no prior partition among the parties. In the suit for partition, the Plaintiffs had fairly conceded that the defendants also are entitled to a share. Paragraphs 4 and 5 of the plaint averments read as under: “IV. The said Arumuga Konar had four sons, viz., Nallasamy, Krishnasamy, Muthusamy and Paramasivam and he had three daughters, viz., Kannammal, Rangammal and Palaniammal. The defendants 2 and 3 are the sons of late Nallasamy. The first defendant Krishnasamy is the second son of late Arumuga Konar and the second defendant Rangasamy is the only son of late Arumuga Konar's 4th son late Muthusamy. The third defendant Kandasamy is the son of Arumuga Konar's elder daughter Kannammal. Kumarasamy and Ramasamy, viz., the defendants 4 and 5 are the sons of Arumuga Konar's daughter late Rangammal. Ganesan, Natarajan and Govindasamy who are the defendants 6 to 8 are the sons of Arumuga Konar's daughter late Palaniammal. The genealogical tree is attached herewith. V. The suit property described hereunder in the schedule was hereditary Hindu undivided joint family properties of late Arumuga Konar and Arumuga Konar's joint family consisted of Arumuga Konar and his sons Nallasamy, Krishnasamy, Muthusamy and Paramasivam and they were in joint possession and enjoyment of the suit properties as co-sharers. The genealogical tree is attached herewith. V. The suit property described hereunder in the schedule was hereditary Hindu undivided joint family properties of late Arumuga Konar and Arumuga Konar's joint family consisted of Arumuga Konar and his sons Nallasamy, Krishnasamy, Muthusamy and Paramasivam and they were in joint possession and enjoyment of the suit properties as co-sharers. After the death of Arumuga Konar and his sons Nallasamy and Muthusamy, the plaintiffs, the defendants 1 and 2 have been in possession and enjoyment of the suit property. Since the joint family asset is remaining undivided as per amended provisions of Hindu Succession Act. The legal heirs of daughter of late Arumuga Konar, viz., The defendants 3 to 8 are also having share in the suit properties. The first plaintiff, and the defendants 2 and 3 representing Nallasamy's branch are entitled to 2/7th share in the suit properties. The first defendant is having 1/7th share, the send defendant is having 1/7th share, the third defendant is entitled to 1/7th share, the defendants 6 to 8 are having 1/7th share and defendants 4 and 5 are jointly entitled to 1/7th share in the suit properties. Now the plaintiffs and the defendants 1 to 8 are in joint possession and enjoyment of the suit as co-sharers. The second defendant and his father Muthusamy fraudulently created some documents and sold part of the suit properties, viz., lands in SF No.422/3A of Malumachampatti Village and lands in SF No.422/1A1 of Malumichampatti Village to the defendants 9 and 10 as per two sale deeds dated 28.02.2007 and 31.08.2007. The plaintiffs are not parties to the said sale deeds. Hence, the misdeeds of late Muthusamy and 2nd defendant Rangasamy, viz., sale deed dated 28.02.2007 in favour of Jayashree, viz., 9th defendant and sale deed dated 31.08.2007 in favour of Nagarathinam, viz., 10th defendant are not binding on the plaintiffs. The plaintiffs came to know about the misdeeds of the second defendant on 20.10.2008.” Subsequently written statement was filed by the Defendant No.3. The relevant portion of the same are extracted as under: “4. This defendant submits that the suit properties are all ancestral propertis of Arumuga Konar and the relationship stated in para 4 of the plaint is admitted as true and correct. The relevant portion of the same are extracted as under: “4. This defendant submits that the suit properties are all ancestral propertis of Arumuga Konar and the relationship stated in para 4 of the plaint is admitted as true and correct. This defendant submits that apart from the same the sisters of defendants 6 to 8 are also having right over the property and they are also entitled to get the relief of share in the suit properties. The relief sought by the plaintiff is totally miserable and failed on the ground of non-joinder of necessary parties in the above suit. 5. This defendant submits that as per Hindu Succession Act all the plaintiff and defendants 1 to 8 are entitled to get the share from the joint family properties. The defendant No.2 is highly influential person had keep on trying to alter the suit properties with the help of defendants Nos.9 and 10 inspite of interim order passed by this Honorable Court in I.A.No.660 of 2011. 6. This defendant further submits that the second defendant keep on trying to create fraudulent revenue records based on unenforceable documents and the same will not bind upon this defendant. This defendant is always ready and willing to effect the partition of the entire suit properties into one such share to this defendant with separate possession. 7. This defendant value the suit properties as in the plaint and to the valud or the entire suit properties is Rs.1,40,70,000.00, this defendant's share is Rs.20,10,000.00 Court fee paid under Section 37(2) of the Tamil Nadu Court Fees Act. 8. It is therefore prayed that the honourable court may be pleased to pass a decree for partition dividing the suit properties into 7 equal shares and allot one such share to this defendant and put this defendant into separate possession of one such share and further to pass such other reliefs that may deem fit and proper and thus ender justice.” The relevant portion of the written statement filed by the Defendant Nos.6 to 8 are extracted below: “4. These defendants submit that the relationship mentioned in para 4 of the plaint is true. The plaintiffs purposely omitted to add some of the legal heirs of Palaniammal who are the sisters of these defendants namely Sivathal, Pachiammal and Parameswari. They are necessary parties in the above suit for proper adjudication. 5. These defendants submit that the relationship mentioned in para 4 of the plaint is true. The plaintiffs purposely omitted to add some of the legal heirs of Palaniammal who are the sisters of these defendants namely Sivathal, Pachiammal and Parameswari. They are necessary parties in the above suit for proper adjudication. 5. These defendants further submit that the plaintiffs further omitted to add one of the legal heirs of Rangammal's daughter namely Parvathi as a party defendant in the above suit. Hence, she herself filed application to implead her as a party defendant the same is pending before the court. She is also necessary party in the above suit. 6. The averments mentioned para 5 of the plaint is true. The plaintiff and the defendants are joint and constructive possession and enjoyment of the suit property. It is false to say that Arumuga Konar sons namely Nallasamy, Krishnasamy, Muthsamy and Paramasivam were alone in joint and constructive possession and enjoyment of the suit property. 7. These defendants submit that they have got 1/7th share the suit property along with their sisters namely mentioned as above. It is true that 2nd defendant and his father fraudulently created a sale deed with regard to the property in S.F.No.422/3A, 422/1A1, Malumichampatti Village in favour of the defendants 9 and 10 as per sale deed dated 28.02.2007 and 31.08.2007. These defendants are not a party to the sale deeds. The sale deeds executed by the second defendant in favour of the defendants 9 and 10 not at all binding beause the same was created with intention to cheat these defendants and their sisters from claiming the legitimate share in the suit property. Therefore, that the sale deed is sham and nominal and it was not acted upon. Other consequential averments mentioned para 5 of the plaint all are totally false and untenable. The plaintiffs have to put strict proof of the same. 8. These defendants further submit that averments mentioned in para 8 of the plaint are totally false and untenable. These defendants and their sisters always ready to cooperate with the plaintiffs to have amicable division of the suit properties according to their legitimate share.” 6. The plaintiffs have to put strict proof of the same. 8. These defendants further submit that averments mentioned in para 8 of the plaint are totally false and untenable. These defendants and their sisters always ready to cooperate with the plaintiffs to have amicable division of the suit properties according to their legitimate share.” 6. Subsequently, the Plaintiffs filed I.A.No.365 of 2015 in O.S.No.365 of 2011 on the file of the V Additional District and Sessions Judge, Coimbatore, seeking to exonerate the Defendants 2, 9 and 10 and delete the items 1 and 2 of the properties filed by the Plaintiffs was resisted by the Defendants particularly Defendants 3, 6 to 8. After due enquiry, a petition in I.A.365 of 2015 filed by the Plaintiffs to remove the Defendants 2, 9 and 10 and to remove the items 1 and 2 of the schedule of properties was dismissed on the objection by the Defendants 3, 6 to 8 who are the Defendants 3, 6 to 8 in the suit and respondents 3, 6 to 8 in the interlocutory application. Against the order dismissing I.A.No.365 of 2015 the Plaintiffs who are the Petitioners in the Interlocutory Application had not filed any appeal or revision. Therefore, the same had attained finality. Subsequently, the Plaintiffs filed I.A.No.4 of 2019 seeking amendment of plaint as under: “Detail of Amendment Delete Delete the following line in para 5 of the plaint The legal heirs of daughter of late Arumuga Konar, viz., The defendants 3 to 8 are also having share in the suit properties. Further in para 5 of the Plaint Amend the word 2/7 as 2/4 and amend the word 1/7 in ¼ Delete Delete the following line in para 5 of the plaint and defendants 4 and 5 are jointly entitled to 1/7th share in the suit properties. Delete Delete the following in para 5 of the plaint “Now the plaintiff and defendant 1 and 2 are in joint possession and enjoyment of the suit property”. Delete Delete the following in para 5 of the plaint “Now the plaintiff and defendant 1 and 2 are in joint possession and enjoyment of the suit property”. Delete Delete the following in para 8 of the plaint Delete “Rs.40,22,000/- and add Rs.70,25,000/- Delete “Plaintiffs 2/7 share Rs.40,22,000/- And substitute it by Plaintiffs 2/4 share Rs.70,35,000/- Delete “Total Value Rs.40,22,000/- And substitute it by Total Value Rs.70,35,000/- Delete Delete the following in para 9 of the plaint Delete the word “2/7” And substitute it by “2/4” Delete the word “7 equal shares” And substitute it by “4 equal shares”.” In paragraph 4 of the Petition filed under Order VI, Rule 17 of CPC in I.A.No.4 of 2019 the reasons for amendment are stated as under: “4. Furthermore, my other sister Palaniammal also died long back more than 15 years back, and my father died on 21.06.2010. Hence, as per the recent decision of the Hon'ble Apex Court regarding Hindu Succession Act amendment, the respondents are not getting any right in the suit property. By mistake they have been added as defendants 3 to 8.” The third Defendant as third Respondent in I.A.No.4 of 2019 had filed counter in which he had resisted the amendment stating in paragraph 3 to 8 of the Counter which are extracted as under: “3. This respondent hereby submit that he ahd filed his written statement in the above suit long back on 25.02.2012 and thereby agreed for partition in respect of his share (i.e.,) divide the suit properties into 7 equal shares and allot one such share to this defendant. This defendant had also paid necessary court fees in respect of his share before this Honourable Court. As per the plaint pleading the petitioners had agreed that this defendant has one share out of the 7 shares. Therefore, this Hon'ble Court has every right to allot his share. 4. This respondent respectfully submitted that the averments made in para No.3 of the affidavit that “while drafting the pleading by mistake suit was filed as if the respondents” are having share in it are all totally false and untrue. It is also equally false to state that further averments made thereon that 1st respondents mother Kannammal died in the year 1952 and another sister Rangammal died long back and therefore, they never inherit any right are all false and untrue. 5. It is also equally false to state that further averments made thereon that 1st respondents mother Kannammal died in the year 1952 and another sister Rangammal died long back and therefore, they never inherit any right are all false and untrue. 5. This respondent submit that as per the amended Act in Hindu Succession Act the respondent No.3 had every right in the suit properties as equivalent to the petitioners and therefore filing of present application to amend the plaint and thereby removing the contents of rights and its share is not at all permissible. In fact, the petitioners had earlier had filed I.A.No.523 of 2018 under Order 1, Rule 10 to delete this respondents and other respondents born through daughters and upon contesting the said application the petitioner had clandestinely not pressed the said petition and come forward with the present petition for the same relief with ulterior motive. The act of the petitioner is to create confusion by keep on filing after petitions in one way or the other to mislead this Honourable Court and the same is legally not permissible under law. 6. This respondent further submits that it is admitted fact that this defendant is grandson of Late.Arumuga Konar born through Late.Kannammal who is the daughter of Arumuga Konar. It is further submitted that the petitioner herein had filed the suit in and by which they had categorically pleaded that this defendant is entitled to 1/7 share as that of other share holders of Late.Arumuga Konar. Therefore, a co-sharer cannot be deleted from the suit as alleged by the petitioner herein. The suit is liable to be proceed for trial in order to ascertain share of this respondent as he claims. The respondent had also paid necessary court fees in respect of his share and therefore, this Hon'ble Court ought to have decreed the suit in respect of the share of this defendant. 7. This respondent submits that the present application is filed in devoid of merits and therefore, the same is liable to be dismissed in limini. The present application for amendment is filed only to drag on the case on one event or the other. The petitioner had come forward with the false petition to amend and therefore, the same is liable to be dismissed. 8. The present application for amendment is filed only to drag on the case on one event or the other. The petitioner had come forward with the false petition to amend and therefore, the same is liable to be dismissed. 8. It is therefore prayed that this Hon'ble Court may be pleased to dismiss the petition with the cost of this respondent and thus render justice.” 7. Further, on due enquiry, the learned V Additional District Judge, Coimbatore, allowed I.A.No.4 of 2019 in O.S.No.364 of 2011 on the ground that the Sister of the Plaintiffs died during the life time of their father. Therefore, the daughter and sons of predeceased daughter are not entitled to any share in the joint family property, who are the children of the predeceased sister of the Plaintiffs, as per the amendment to the Hindu Succession Act. It is the contention of the learned Counsel for the Petitioners herein that earlier the Plaintiffs had filed I.A.No.523 of 2018 seeking to delete the names of the Defendants 3, 6 to 8 from the plaint and the averments that they are also not entitled to 1/7 share in the joint family property in the plaint which was also resisted by the Defendants 3, 6 to 8 by filing counter. At that time of enquiry, the learned Counsel for the Plaintiffs withdrew the Petition as not pressed. Thereafter, the Plaintiffs had cleverly filed this Petition seeking amendment as though as per the Amendment to the Hindu Succession Act the predeceased daughter and her legal heirs are not entitled to any share in the joint family properties. What could not be achieved by the Plaintiffs by filing I.A.No.523 of 2018 under Order 1 Rule 10 of CPC to remove the names of Defendants 3 to 8 which was not pressed after filing of the Petition and after filing of the counter by the Defendants in I.A.No.523 of 2018 cannot be achieved by the Plaintiffs by filing this I.A.No.4 of 2019. The learned V Additional District Judge, Coimbatore ignored the contentions of the Defendants 3, 6 to 8 in the counter. The counter of the Respondents 3 to 8 in I.A.No.4 of 2019 in O.S.No.364 of 2011 had specifically stated that they are also entitled to share in the property which was admitted by the Plaintiffs originally in the plaint. The learned V Additional District Judge, Coimbatore ignored the contentions of the Defendants 3, 6 to 8 in the counter. The counter of the Respondents 3 to 8 in I.A.No.4 of 2019 in O.S.No.364 of 2011 had specifically stated that they are also entitled to share in the property which was admitted by the Plaintiffs originally in the plaint. Subsequently, they field I.A.No.523 of 2018 to remove those pleading and to remove the Defendants 3, 6 to 8 on resisting the same by the Defendants 3, 6 to 8 in I.A.No.523 of 2018 the Plaintiffs had not pressed that petition. At the stage of enquiry also, it had been pointed out in the counter of the Respondents in I.A.No.4 of 2019 that in the written statement filed by the Defendants 3, 6 to 8 separately they had paid Court fees for their share. This is to be treated as counter claim. 8. The issue regarding the Defendants 3, 6 to 8 are entitled or not can be considered only after conclusion of the trial. Before commencement of the trial, the Plaintiffs had cleverly filed amendment petition under Order VI, Rule 17 CPC to remove the Defendants 3, 6 to 8 for whom as per the original plaint averments, they are entitled to 1/7 share of the joint family property of Late Arumuga Konar, who died intestate. Also the issue as to whether the Defendants 3, 6 to 8 are entitled to 1/7 share or not is to be decided only after the conclusion of the trial on application of the provision of Hindu Succession Act as amended in 2005 and the latest rulings available as on the date of trial. 9. It is the submission of the learned Counsel for the Petitioner herein that the Petitioner herein being the Defendant No.3 in the suit that the subject matter of the Hindu Succession Act (Amended Act) is now pending before the Constitution Bench of the Hon’ble Supreme Court. While so, the learned Counsel for the Plaintiffs before the learned V Additional District Judge, Coimbatore, had misguided the Court and misquoted the provisions and had obtained the order which is not as per the provisions of law and the same is to be set aside by this Court. While so, the learned Counsel for the Plaintiffs before the learned V Additional District Judge, Coimbatore, had misguided the Court and misquoted the provisions and had obtained the order which is not as per the provisions of law and the same is to be set aside by this Court. Otherwise, the Petitioner, who is the third Defendant before the trial Court, will suffer by miscarriage of justice, as the valuable right to his share in 1/7 share in the property will be lost. The Plaintiffs who had admitted the relationship of the Defendant 3, 6 to 8 regarding the original owner of the Property by name Arumuga Konar and the status of the Petitioner and other defendants, who are the descendants of Arumuga Konar and the status of the property as joint family property and subsequently withdrawing the same amounts to estoppal which cannot be allowed. The provision of law as on the date of trial and as on the date of filing of the suit can be considered only after the conclusion of the trial before judgment by considering the rulings and the citations relied upon by respective parties before trial. If this Petition is allowed, the Defendants 3, 6 to 8 will suffer by miscarriage of justice. This point of law was ignored by the leaned V Additional District Judge, Coimbatore. 10. In support of his submission, the learned Counsel for the Petitioner relied on the ruling of the Hon’ble Supreme Court in the case of Vineeta Sharma -vs- Rakesh Sharma and others reported in (2020) 9 SCC 1 . The relevant portion of the judgment reads as under: “A. Family and Personal Laws – Hindu Succession Act, 1956 – Section 6 [as substituted by the Hindu Succession (Amendment) Act, 2005 w.e.f. 9.9.2005] – Daughter's right in coparcenary property under substituted Section 6 of the HS Act, 1956 – Daughter born before date of enforcement of the 2005 Amendment Act – Held, has same rights as daughter born on or after the amendment – Nonrequirment of coparcener father to be alive on date of coming into force of the said amendment, explained. - Held, if daughter is alive on date of enforcement of Amendment Act, 2005 i.e. 9.9.2005, she becomes a coparcener with effect from date of Amendment Act (i.e., 9.9.2005) irrespective of wither she was born before the said amendment – Provisions in substituted S.6 of the HS Act confer status of coparcener on daughter born before or after the amendment in the same manner as son with same rights and liabilities – Rights under substituted S.6 can be claimed by daughter born prior to the amendment, with effect from date of amendment (9.9.2005) with saving of past transactions as provided in proviso to S.6 (1) r/w S.6 (5) of the HS Act.” 11. In the concluding portion of the judgment the Hon’ble Supreme Court had held as under: “138. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months. 139. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] and Mangammal v. T.B. Raju [Mangammal v. T.B. Raju, (2018) 15 SCC 662 : (2019) 1 SCC (Civ) 300]. The opinion expressed in Danamma v. Amar [Danamma v. Amar, (2018) 3 SCC 343 :(2018) 2 SCC (Civ) 385] is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits.” 12. Therefore, the subject matter is pending adjudication before the Constitutional Bench of the Hon’ble Supreme Court. Till the Constitutional Bench decides the question whether the predeceased daughter prior to the amendment Act, Hindu Succession Act 2005, is entitled to or not, the decision of the Division Bench of three Judges of the Hon’ble Supreme Court holds the ground. Therefore, the finding by the learned V Additional District Judge, Coimbatore, based on the Petition filed by the Plaintiff that the Plaintiff is the person who decides who is to be the defendant and the cause of action cannot be accepted (Dominus litis). 13. Therefore, the finding by the learned V Additional District Judge, Coimbatore, based on the Petition filed by the Plaintiff that the Plaintiff is the person who decides who is to be the defendant and the cause of action cannot be accepted (Dominus litis). 13. As rightly pointed out by the learned Counsel for the Petitioner herein/Defendant No.3 before the learned trial Judge, till the conclusion of the trial, the amendment sought by the Plaintiffs cannot be accepted. The original plaint averments had to remain till the conclusion of the trial. In the course of the trial, the parties to the suit can place reliance on the respective contention as to whether the legal heirs of the predeceased daughter of Arumuga Konar are entitled as per the Hindu Succession Act (Amendment) Act 2005. If the amendment is allowed, the Defendants 3, 6 to 8 cannot participate in the proceedings which amount to miscarriage of justice. As rightly pointed out, they had filed written statement as counter claim with appropriate Court fees. If the Plaintiffs relies on the Hindu Succession (Amendment) Act, 2005, it can be considered at the fag end of the trial that the rulings that are available in support of the contentions of the respective parties. 14. If the amendment is allowed, the Defendants 3, 6 to 8 cannot at all participate in the suit proceedings which will result in miscarriage of justice. Moreover, the Plaintiffs/Respondents 1 to 3 herein, had originally pleaded that the Defendants 3, 6 to 8 are entitled to 1/7 share cannot be allowed to remove the very same pleading on the parties from the plaint as it is hit by the principles of promissory estoppel under Section 115 of the Indian Evidence Act. 15. It is to be noted that already the Petition filed by the Plaintiffs in I.A.No.523 of 2018 was not pressed after counter was filed resisting the Petition under Order 1, Rule 10 CPC by the Plaintiffs to remove the Defendants 3, 6 to 8 which was cleverly not pressed by the Plaintiffs. 15. It is to be noted that already the Petition filed by the Plaintiffs in I.A.No.523 of 2018 was not pressed after counter was filed resisting the Petition under Order 1, Rule 10 CPC by the Plaintiffs to remove the Defendants 3, 6 to 8 which was cleverly not pressed by the Plaintiffs. What had not been and could not be achieved in I.A.No.523 of 2018 had not achieved by the Plaintiffs seeking the amendment thereby completely removing the Defendants 3, 6 to 8 from participating in the proceedings which cannot be allowed in the principles of fairness, equity and good conscience which governs the Civil Court in granting the relief to the parties concerned with the dispute. In the reported rulings relied on by the the learned Counsel for the Petitioner herein/Defendant No.3 before the trial Court, the observation made by the Hon’ble Division Bench of the Hon’ble Supreme Court that the matter may be placed before the appropriate Bench for decision on merits. Therefore, the order passed by the learned V Additional District Judge, Coimbatore in I.A.No.4 of 2019 in O.S.No.364 of 2011 cannot at all be accepted in the light of the observation made by the Division Bench of the Hon’ble Supreme Court. Till the Constitutional Bench of the Hon’ble Supreme Court decides the fate of the legal heirs of the predeceased daughters as to whether they are entitled to share in the joint family properties, the contention of the learned Counsel for the Plaintiffs before the trial Court/the learned Counsel for the Respondents 1 to 3 before this Court cannot at all be accepted and hence, rejected. 16. In the light of the above discussion, this Civil Revision Petition filed by the third Defendant under Article 227 of the Constitution of India is found reasonable. Therefore, in exercise of the powers of the High Court to prevent the abuse of process of Court and to uphold the majesty of the Court to render justice to the parties to the dispute, to prevent the miscarriage of justice, the order passed by the learned V Additional District Court in I.A.No.4 of 2019 in O.S.No.364 of 2011, dated 30.10.2019 is to be set aside. The amendment sought by the Plaintiffs is not maintainable and the same is rejected. In the result, this Civil Revision Petition is allowed. The amendment sought by the Plaintiffs is not maintainable and the same is rejected. In the result, this Civil Revision Petition is allowed. The order passed by the learned V Additional District Judge, Coimbatore in I.A.No.4 of 2019 in O.S.No.364 of 2011, dated 30.10.2019 is set aside. The learned V Additional District Judge, Coimbatore, is directed to proceed with the trial and dispose of the case after affording opportunities to both parties within a period of three months from the date of receipt of a copy of this order or uploading of a copy of this order on the website of the High Court. No costs. Consequently, the connected miscellaneous petition is closed.