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Judgment
R. Subbiah, J.—This application has been filed to permit the applicant/plaintiff to amend the plaint by adding a prayer for declaration to
declare the unilateral revocation of the settlement deed dated 09.06.2006 vide document No. 1717 of 2006 executed by the 1st defendant is void
and inoperative. The applicant herein along with his brother R. Ramkumar filed the suit as against his sister Mrs. Uma Ganesh directing her to quit
and deliver vacant possession of the entire ground floor portion, which is in her occupation, in the property viz., Old No. 3, New No. 5, Murthy
Street, West Mambalam, Chennai, more particularly described in the Schedule-B of the suit schedule to the applicant/plaintiff and for other reliefs.
It is the case of the applicant that the suit property measuring an extent of 3610 sq. ft more particularly described in schedule of the plaint was
purchased by his father Mr. V. Rajagopalan, in and by a sale deed dated 09.03.1983, from one Mrs. Thirupurammal registered as Document No.
480 of 1953. The father of the applicant is the absolute owner of the property. He died intestate on 24.02.1997. Hence, the property devolved
upon the applicant and his brother Ramkumar, his sisters Uma Ganesh and Saroja Subramanian and mother Jayalakshmi by way of intestate
succession. After the death of his father, the 5th respondent/1st defendant executed an irrevocable Settlement Deed dated 30.08.2004 registered
as Document No. 2482 of 2004 in the Office of Sub-Registrar, Ashok Nagar, Chennai, in favour of her mother/4th respondent herein giving her
1/5th undivided share in the suit property. Similarly, another sister of the applicant viz., Saroja Subramaniam also settled her 1/5th undivided share
in the suit property in favour of her mother/4th respondent herein by an irrevocable Settlement Deed dated 30.08.2004 registered as Document
No. 2433 of 2004 in the Office of the Sub-Registrar, Ashok Nagar, Chennai. Thus, the 4th respondent herein/mother of the applicant has become
the owner of 3/5th undivided share in the suit property and the applicant herein and his brother Ramkumar were owners of each 1/5th undivided
share in the suit property.
Subsequently, the 4th respondent/mother settled her 3/5th undivided share equally in favour of the applicant and his brother Ramkumar under a
registered deed of settlement dated 01.11.2004 registered as Document No. 3006 of 2004 in the Office of the Sub-Registrar, Ashok Nagar.
Chennai. Therefore, the applicant herein along with his brother Ramkumar had become joint owners of the entire ''A'' schedule property with effect
from 01.11.2004. During the year 2006, the applicant herein came to know that his sister Uma Ganesh executed a deed of revocation dated
09.06.2006 vide Document No. 1717 of 2006 revoking the settlement deed dated 30.08.2004 registered as Doc. No. 2432 of 2004, under
which her 1/5th undivided share was settled in favour of her mother. Hence, the present suit has been filed by the applicant along with his brother
Ramkumar for the following relief:-
(a) to direct the defendant to quit and deliver vacant possession of the entire ground floor portion in her occupation in the property viz., Old No. 3,
New No. 5, Murthy Street, West Mambalam, Chennai-600 033, more particularly described in the Schedule-B of the suit schedule property to
the plaintiffs.
(b) to direct the defendant to pay to the plaintiffs a sum of Rs. 3,20,000/- being the amount towards damages for use and occupation of the suit
property at the rate of Rs. 10,000/- per month from 01.11.2004 till 30.06.2007 and pay a sum of Rs. 25,000/- per month from the date of plaint
till the date of delivery of vacant possession of the property mentioned in the Schedule-B of the suit schedule property to the plaintiffs.
(c) to grant an order of permanent injunction restraining the defendant, her family, men, agents, servants and all those persons claiming under her
and or authorized by her from interfering with the peaceful possession and enjoyment of the suit property in any manner whatsoever either by
preventing the plaintiffs from parking their vehicles in the ground floor of the suit property or otherwise.
(d) for costs.
During the pendency of the suit, the 1st defendant Uma Ganesh and the first plaintiff Ramkumar died and hence, the legal heirs of the first
defendant were brought on record as Defendants 2 to 4 and the legal heirs of the first plaintiff were brought on record as Plaintiffs 3 & 4.
Now, the present application has been filed by the applicant to amend the plaint by adding the following prayer:-
to declare that after the irrevocable settlement deed dated 30.08.2004 Document No. 2432 of 2004 was executed in favour of her mother by the
1st defendant and was accepted and acted upon by her by settling the above 1/5th share in the suit property along with the share of Mrs. Saroja
Subramaniam in favour of the 1st and 2nd plaintiff by a deed dated 01.11.2004 vide Document No. 3006 of 2004, the unilateral revocation of the
deed dated 09.06.2006 vide Document No. 1717 of 2006 executed by the 1st defendant is void and inoperative.
The learned counsel for the applicant submitted that in the plaint it has been clearly stated that the deed of revocation of settlement dated
09.06.2006 is absolutely invalid and non-est in the eye of law inasmuch as on the date of the execution of the Deed of Revocation, the 1st
defendant was not the owner of 1/5th undivided share in the suit property as she had already executed a settlement deed dated 30.08.2004 in
favour of her mother and in turn, her mother subsequently by a deed of settlement dated 01.11.2004 had settled her 3/5th share in favour of the
plaintiffs equally. The learned counsel for the applicant further submitted that though necessary averments were made in the plaint to the effect that
deed of revocation dated 09.06.2006 is absolutely invalid, the prayer was made only for direction directing the defendant to quit and deliver
vacant possession of the entire ground floor portion, which is in her occupation, in the property viz., Old No. 3, New No. 5, Murthy Street, West
Mambalam, Chennai, more particularly described in the Schedule-B of the suit schedule property and for other consequential reliefs.
The learned counsel for the applicant further submitted that for fair and proper adjudication of the dispute between the parties, the declaration
declaring the deed of revocation dated 09.06.2006 registered as Document No. 1717 of 2006 as void and inoperative is necessary. But, by over
sight, the said prayer was omitted to be added. Hence, the present application has been filed.
The 6th respondent herein/2nd defendant, legal heir of the 1st defendant-Uma Ganesh, has filed a detailed counter opposing the application for
amendment filed by the applicant, stating that the prayer sought to be amended is barred by limitation and the applicant is not entitled to the reliefs
prayed for, as they are time barred. Thus, he prayed for dismissal of the application.
The learned counsel for the applicant submitted that necessary pleadings were made in the plaint to the effect that the deed of revocation dated
09.06.2006 is absolutely invalid and non-est in the eye of law inasmuch as on the date of the execution of the Deed of Revocation, the 1st
defendant Uma Ganesh was not the owner of 1/5th undivided share in the suit property as she had already executed a settlement deed dated
30.08.2004 in favour of her mother. Non-inclusion of the declaration prayer is a omission and by over sight, the said prayer was not added.
Therefore, by allowing the present application, no prejudice is going to be caused to the respondents.
The respondent has filed a counter opposing the application filed by the plaintiff stating that the prayer sought for by the applicant to add the
prayer of declaration to declare the unilateral revocation of deed dated 09.06.2006 as void and inoperative, is time barred. If the prayer sought to
be added by way of amendment of plaint is barred by limitation on the date of application, then the application is liable to be dismissed. Now, the
present application has been filed after seven years from the date of filing the suit. Therefore, the amendment sought for by the applicant cannot be
allowed at this juncture.
By way of reply, the learned counsel for the applicant by relying upon the judgment reported in Revajeetu Builders and Developers Vs.
Narayanaswamy and Sons and Others, submitted that notwithstanding the law of limitation, the Court is having power to amend the plaint, if it is
required in the interest of justice. For the same proposition, the learned counsel for the applicant also relied upon the judgment reported in B.K.N.
Narayana Pillai Vs. P. Pillai and Another, and submitted that the amendment may be allowed if it results in solution of real controversy between the
parties without altering original cause of action.
Heard the submissions made on either side and perused the materials available on record.
It is the case of the applicant that the suit schedule ''A'' property is the absolute property of his father. After the demise of his father, by way of
intestate succession, the said property devolved upon the applicant, his brother, mother and two sisters. Each one is entitled to 1/5th share in the
suit property. Subsequently, the sisters of the applicant viz., one Saroja Subramaniam and Uma Ganesh (1st defendant-deceased) settled their
1/5th undivided shares in favour of their mother Jayalakshmi. Thus, the mother of the applicant has become the owner of the 3/5th undivided share
in the suit property. Thereafter, the mother Jayalakshmi settled her 3/5th share in favour of the applicant and his brother Ramkumar equally vide
settlement deed dated 01.11.2004 registered as Document No. 3006 of 2004 at the Office of the Sub-Registrar Office, Ashok Nagar. Hence, the
applicant along with his brother Ramkumar has become the owner of the suit property. Under such circumstances, one of the sisters of the
applicant viz., Uma Ganesh executed a deed of revocation dated 09.06.2006 registered as Document No. 1717 of 2006 revoking the settlement
deed dated 30.08.2004 under which her 1/5th share was settled in favour of her mother Jayalakshmi. Hence, the applicant has filed the suit for
direction directing the defendant to quit and deliver vacant possession of the entire ground floor portion in her occupation in the property viz., Old
No. 3, New No. 5, Murthy Street, West Mambalam, Chennai-600 033, more particularly described in the Schedule-B of the suit schedule
property and also for consequential relief.
But, at the time of filing the suit, the applicant has not made a prayer for declaration declaring the deed of revocation of settlement dated
09.06.2006 vide Document No. 1717 of 2006 executed by the 1st defendant Uma Ganesh as void and inoperative.
Now, it is the submission of the learned counsel for the applicant that for fair and proper adjudication of the dispute, the declaration prayer has
to be added in the plaint. But, according to the respondents/defendants, the prayer sought to be added is time barred and therefore, the same
cannot be allowed.
On perusal of the applicant/plaintiff, I find that the applicant/plaintiff has already made necessary averments in the plaint to the effect that the
revocation of settlement deed is absolutely invalid and non-est in the eye of law, but he omitted to make the prayer for declaration declaring the
deed of revocation of settlement dated 09.06.2006 registered as Document No. 1717 of 2006 executed by the 1st defendant Uma Ganesan as
void and inoperative. The relevant averments in paragraph-6 of the plaint is as follows:-
.... The plaintiffs state that the said Deed of Revocation of Settlement Deed dated: 09.06.2006 is absolutely invalid and nonest in the eye of law
inasmuch as on the date of execution of the Deed of Revocation, the defendant was not the owner of 1/5th undivided share in the suit property as
she had already executed a Settlement Deed dated 30.08.2004 in favour of her mother and her mother, by a Deed of Settlement dated:
01.11.2004 had settled her 3/5th share in the suit property in favour of the plaintiffs equally.
Therefore, one of the issues that has to be decided in this suit is whether the unilateral revocation of Settlement deed by the 1st defendant is void &
inoperative or not?
When such being the position, irrespective of law of limitation, in my opinion, in the interest of justice, this application is liable be allowed. In
this regard, a reference could be placed in the judgment relied upon by the learned counsel for the applicant reported in Revajeetu Builders and
Developers Vs. Narayanaswamy and Sons and Others, , wherein it has been held as follows:-
The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the Court notwithstanding the
law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the Court in
exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the Court if the amendment
is required in the interests of justice.
The dictum laid down in the above said Judgment would show that irrespective of law of limitation, the Court can exercise its discretion in deciding
the question whether the amendment could be allowed or refused?.
The question, whether the amendment could be allowed or not? has to be decided based on the facts of each case, irrespective of law of
limitation. In the instant case, the factual aspects, as observed above, would show that one of the issues that has to be decided is whether the
cancellation of settlement deed is valid or not. Therefore, I am of the opinion that irrespective of law of limitation, considering the facts of this
Court, amendment of the prayer could be allowed. In this regard, reference could be placed in one more judgment reported in B.K.N. Narayana
Pillai Vs. P. Pillai and Another, wherein it has been held that the amendment should be permitted where it would result in solution of real
controversy between parties without altering original cause of action. In the instant case, by allowing this application, original cause of action is not
going to be changed, on the other hand, if the application is allowed, it would help to solve real controversy between the parties. Therefore, I am of
the opinion that this application is liable to be allowed.
For the foregoing reasons, this application is allowed as prayed for. The applicant is directed to carry out the amendment within a period of two
weeks.