Pachammal and Others vs Rathinasamy and Others

R. Banumathi, J.—This Revision is directed against the order of District Munsif Court, Dharmapuri in LA. 595/97 in O.S. 274/91 dated 15.12.1998 dismissing the Application filed

by the Revision Petitioner/Plaintiff under Order VI, Rule 17 C.P.C.

Parties are related. Plaintiff and Defendants 4 to 8 are related as under:

Koolan@ kantha Gounder

(Died before 40 years)

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______________________________________________

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Ganapathy Palaniammal(plaintiff)

(Died before 25 years) (Died)

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Ramayee ___________________________________________

(4th Defendant) | | | |

| pachammal Rukku salammal Madhaiyan

| P.2 P.3 P.4 p.5

________________________________________________________________________________________

| | | |

Vadivelu Mathiayan@ Manchandran Natesan

(5th Deft.) Chinnapaiyan (7th Deft.) (8th Deft.)

(6th Deft.)

The case of the deceased plaintiff Palaniammal is that her father Koolan @ Kandha Gounder purchased the item No. l under Sale Deed dated 11.4.1943. Suit Item No. 2 was

purchased by Koolan and out of joint exertion or Ganapathy. Koolan @ Kandha Gounder died about 40 years ago leaving plaintiff Palaniammal and Ganapathy as his legal heirs. Plaintiff

is entitled to 5/20th share in the suit property as daughter of Koolan @ Kandha Gounder. Suit is also filed for permanent injunction restraining D1 and D3 from interfering with the

enjoyment of the suit property by the plaintiff. Despite demand by the plaintiff, and the last demand on 3.2.1991, Defendants 4 to 8 have refused effecting partition. D1 claims right in Item

No. l on the basis of certain documents from D5 to D8 which is not binding upon the plaintiff. Since Defendants 4 to 8 are prejudicially acting against the interest of Plaintiff, plaintiff has

filed the suit for partition claiming her 5/20th share in the suit property.

Admitting the relationship of parties, main contesting Defendant/D1 filed Written Statement contending that Koolan @ Kandha Gounder died about 42 years ago and in or about 1949.

Extent of Item No. l stated in the plaint schedule is incorrect. Actual extent of Item No. l in Survey No. 538/2A is Order 49.5 Hectares. Further case of D1 is that agreeing to sell Item

No. 1 to him, D4 to D8 entered into an Agreement of sale with D 1 for Rs. 8,000. D4 to D8 have received an advance of Rs. 6,000 and executed an Agreement of Sale on 8.5.85. In the

Agreement of Sale, extent of Item No. 1 is mistakenly referred as One Acre. Though D.1 was already ready and willing to take the Sale Deed in his favour on payment of balance Sale

Consideraion, D4 to D8 have been evading execution of Sale Deed. Hence, for Specific Performance of Contract, D1 had filed O.S. 153/88 on the file of District Munsif Court,

Dharmapuri against Defendants 2 to 8. Second Defendant contested the said suit raising false defence. While the suit is pending, with a view to cause inconvenience and harassment to

D.1, D4 to D8 have instigated the plaintiffs to file this suit for Partition, which is unsustainable.

The suit was taken up for trial. While P.W.I was examined and when the suit was in the part heard stage, an amendment Application was filed to amend the year of death of Koolan

alias Kandha Gounder (i.e) to amend ""Before 40 years"" as ""Before 30 years"". According to the Revision Petitioners/Plaintiffs, the year of death of Koolan alias Kandha Gounder was

mistakenly typed as ""Before 40 years"" instead of ""Before 30 years"".

Amendment Application was seriously opposed by D1 on the ground that the Application is filed only with a view to delay the trial proceedings. The counter statement refers to various

dates on which the case was adjourned for examination of plaintiffs. According to D.1 ""Before 40 years"" is sought to be corrected as ""Before 30 years"" only with a view to get over the

effect of Hindu Succession Act and disentitlement of the plaintiffs to get any share in the suit property.

Upon consideration of submissions by both sides, learned District Munsif has dismissed the application finding that the year of death of Koolan alias Kandha Gounder is unsupported by

any materials. Finding that the Amendment on the basis of oral evidence of P.W.I, cannot be allowed, the Amendment Application was dismissed. Learned District Munsif was also of the

view that the Application was filed belatedly.

Aggrieved over the dismissal of the Application, Revision Petitioners/Plaintiffs have preferred this Revision Petition.

Learned counsel appearing for the Revision Petitioners/Plaintiffs submitted that the year of death of Koolan alias Kandha Gounder is mistakenly stated as ""Before 40 years"" which is

only a typhographical error or innocuous, crept in by mistake and that by allowing the proposed Amendment opportunity is to be given to the Revision petitioners/Plaintiffs to set forth her

case.

Learned counsel appearing for the Respondent/D.1 has submitted that Amendment Application was filed in the part-heard stage, mainly with the intention to delay the trial

proceedings. It is submitted that the proposed Amendment has serious consequences in view of the intervention of Hindu Succession Act, 1956 between 1940-1950 and that the

proposed Amendment cannot be allowed.

Upon consideration of the submissions by both counsel, impugned order and the other available materials, in my considered view, the following points arise for determination in this

Revision:

i. Whether the District Munsif was not justified in dismissing the Application for proposed Amendment finding that it is not supported by any material particulars ?

ii. Considering the stage in which the Application was filed can it be said that the impugned order suffers from any irregularity warranting interference ?

Plaintiff being the daughter of Koolan alias Kandha Gounder claims 5/20th share. Plaintiff being the daughter, her share could only be by virtue of the provisions of Hindu Succession

Act which came into force on 17.6.1956. The suit was filed in the year 1991. Plaintiff has vaguely alleged that her father Koolan alias Kandha Gounder died about 40 years ago implying

that the must have died in or about 1951. If Koolan alias Kandha Gounder died in 1951, plaintiff is definitely excluded from inheritance. If death of Koolan alias Kandha Gounder is 30

years prior to the suit, the death must have been in 1961 implying that the plaintiff has share in the suit property. Hence, the date of death of Koolan @ Kandha Gounder is crucial forming

the very basis of the suit. Now on this material particular and the basis of the claim, plaintiff cannot be unclear or uncertain.

Year of death of Koolan @ Kandha Gounder is material fact on which plaintiff''s cause of action depends. On the year of death of Koolan plaintiff must fail or succeed in her suit.

While so, on that factual basis, on which plaintiff''s cause of action has arisen, there cannot be any uncertainty or mistake even a typographical error.

It is not as if submitted by the counsel appearing for the Revision petitioner/plaintiff that the proposed Amendment is so simple and innocuous and a typographical error. Year of death

of Koolan @ Kandha Gounder has far reaching effect on plaintiff''s case. It is very much essential that even at the time of filing the suit, plaintiff ought to have produced material showing

the year of death of Koolan @ Kandha Gounder. Now the plaintiff seeks to amend the plaint by the proposed amendment after six years. Even that proposed Amendment amending the

year of death of Koolan @ Kandha Gounder ''died 30 years ago'' is unsupported by any material particulars. The proposed Amendment is sought to be made only on the bais sof vague

oral evidence of P.W.1. In fact, in her chief examination plaintiff/P.W.1 has stated that her father died about 50 years ago. But in her cross examination she has tried to fix the year of

death of Koolan between 1956-1957 on certain vague answers as under:

Approximate age of P. W. I/Plaintiff at the time of trial in 1997 60

Therefore, probable year of birth of P.W. I/Plaintiff 1937

Marriage at the age of 15 15

Approximate year of Marriage of P.W.I 1952

Koolan died 5 years thereafter (Add 5 years) 5

1957

Approximate year of death of Koolan : 1957

On the above basis of rough arithmetical calculation and vague answers of P.W. 1, the proposed Amendment is sought to be introduced. Absolutely it is not supported by any material

particulars. No death Certificate is produced showing the year of death of Koolan @ Kandha Gounder. On the basis of self serving statement of P.W.1/Plaintiff, no amendment could be

ordered.

The stage in which the Amendment Application was filed is also to be noted. Suit was pending trial for nearly six years. After overcoming all the hurdles, the matter came up for trial in

1995. P.W. 1 was examined on 2.11.1995. At that time, an Amendment Application is said to have been filed which was allowed. (Details of which are not known from the available

materials). Thereafter when the suit was again posted for examination of other witnesses in 1997. At that time, the present Amendment Application I.A. 595/97 was filed seeking to amend

the plaint. In the proposed Amendment seeking to amend the very basis/material particular on which the plaintiff''s suit revolves. The learned District Munsif was right in finding that the

application is belatedly filed with a view to delay the trial proceedings. Proposed Amendment Application lacks in bona fide.

In the counter statement it is stated that the suit for Specific Performance in O.S.193/98 was filed by D.1 against D.4 to D.8 was already decreed in favour of D.1 on 31.10.1995.

According to D.1, only with a view to grab the suit property - Item No. 1, Revision petitioner/Plaintiff filed Application after Application to protract the trial. The averments in the counter

statement filed by the first respondent/D.1 cannot be brushed aside as without any substance.

The proposed Amendment Application cannot be allowed for the reasons:

i. that it is unsupported by any material particulars;

ii. belatedly filed;

iii. lacks in bonafide,

Learned District Munsif has rightly declined to allow the Amendment Application. The order does not suffer from any material irregularity or illegality warranting interference. This Revision

has no merits and is bound to fail.

Therefore, order of District Munsif, Dharmapuri in LA. 595/97 in O.S, 274/91 (dt. 15.12.1998) is confirmed and this Revision Petition is dismissed with the cost of the first

Respondent/First Defendant.