Smt. Tara Wati vs Sees Ram

Grover, J.—This is a petition for revision directed against an order of the Subordinate Judge, 1st Class, Kandaghat, refusing to grant permission to amend the plaint.

The plaintiff, Shrimati Tara Wati, instituted a suit in March, 1964 against the defendant, who is a Patwari of village Sainj, for cancellation of a gift deed executed by her on 10th May, 1960 in favour of the defendant with respect of properties comprising agricultural land and residential house etc. In paragraph 3 of the plaint it was alleged that the gift had been made conditional on the defendant maintaining and serving the plaintiff and her husband during their lifetime. In paragraph 4 it was pleaded that even prior to the execution of the deed of gift the defendant had persuaded the plaintiff to execute a will in his favour and agreed to serve the plaintiff but when the will had been executed the defendant refused to serve her and her husband until the plaintiff made a gift. The gift deed was made on the aforesaid representation of the defendant as the plaintiff and her husband were both old persons and could not cultivate the land personally. In paragraph 5 it was stated that the defendant had refused to maintain the plaintiff and her husband and had neglected to do so and thus had committed a breach of the condition of the gift. After the issues had been framed and a date fixed for evidence an application was made for amendment of the plaint. Paragraphs 2, 3 and 4 of this application deserve to be reproduced :

That the defendant during the period since 27th July, 1956 the date on which the disputed property at village Panog was gifted by Mst. Sundro, the deceased, in favour of the plaintiff uptil the date of execution of will dated 8th July, 1958 and the disputed gift deed dated 10th May, 1960 in favour of defendant, had been working as Patwari of village Panog situated within the Patwar Circle No. 24 of village Khushala, tehsil Kandaghat,

That the defendant acting as Patwari of village Panog was in dominating; position and brought to bear undue influence upon the plaintiff who is an old, illiterate and simple lady, by giving false alluring assurances of rendering all kinds of services in connection with both the landed property and person of plaintiff and her husband who is an old and invalid person.

That in advertently the plaintiff omitted to state this additional ground as a basis of the relief claimed by him in plaint.

It was claimed by the plaintiff that the addition of the grounds of attack sought to be introduced would not change the nature of the suit or the cause of action. The defendant naturally resisted the prayer for amendment and the learned Subordinate Judge has upheld his objection. He has relied on Harish Chandra Bajpai Vs. Triloki Singh, and Krishnaswamy Iyer Vs. Ouseph Mathai, as also Ram Sumran v. Sarjoo Prashad AIR 1929 Oudh 67 and has taken the view that because the facts now sought to be introduced were known to the plaintiff at the very outset amendment should not be allowed. Another matter which appears to have weighed with the learned Judge is that the application for amendment was made after the period of limitation had expired.

It appears to me that the learned Judge has not applied his mind properly to the authorities considered by him or even to the correct legal principles. In Bai Asmalbai Vs. Esmailji Abdulali and Others, , in an administration suit an averment had been made that the house in respect of which there was a sale deed by the deceased in favour of his wife was included in the estate as the sale of the house was not binding on the plaintiff. Later on, by an amendment the plaintiff sought to add a prayer for declaration that the sale deed was nominal and. was the result of undue influence. After considering Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , Raju J. allowed the amendment on the ground that by the amendment application a new claim was not sought to be introduced and even though the claim was barred by limitation the amendment application could be allowed. According to the learned Judge if a claim had been made in the original plaint and what was sought was something which only was in a different form the amendment should be allowed if it was a part of the question in controversy. In the present case also there is no question of any new claim being made and all that has been sought to be introduced is another ground for attacking the deed of gift. It must be remembered that according to the plaintiff she and her husband are both old and infirm persons and apparently illiterate and the trend of the various paragraphs in the plaint was that the defendant, who is a Patwari, was able to persuade the plaintiff to first execute a will and then make a gift. All that has been sought to be done is to introduce certain additional facts in support of the plea that the defendant persuaded the plaintiff in some manner or the other to execute the deed of gift. The learned Subordinate Judge does not appear to have considered both the decisions of their Lordships, namely, Harish Chandra Bajpai v. Triloki Singh (Supra) and Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil (Supra), which have to be read together. The Kerala and Oudh cases were quite different and have no applicability to the present case. I am fully aware of the observations of Lord Esher, M.R. in Bentley & Co. v. Black (1892) 9 TLR 580 that "it had for a long time been the universal practice, except in the most exceptional circumstances, not to allow an amendment for the purpose of adding a plea of fraud where fraud had not been pleaded in the first instance." I do not think the present case would be hit by that rule owing to the reasons which have been stated by me. At any rate, I am of the opinion that the circumstances obtaining here are of an exceptional kind owing to the facts which do not appear to have been rebutted that the plaintiff is an old, illiterate and simple lady. For these reasons I allow this petition, set aside the order of the Court below and direct that the amendments which have been sought should be allowed on payment of Rs. 30 as costs. Costs of this petition shall be costs in the cause.