T.P. Muthuswami Iyer vs Dandayuthapani alias Ayyasami Gurukkal by guardian and natural father Subbaratna Gurukal

The pltf. is the petnr. In O.S. no. 4 of 1949 on the file of the Dist. Munsifs Ct. of Trichinopoly, he sued one Parvathammal on a promissory note

which he alleged she had executed on 11-2-1946. The note recites that the sum of Rs. 1,000 referred to in it was borrowed

for the purpose of discharging the hand loans taken for the purpose of the funeral expenses, etc., of my husband who died last month & for other

family expenses.

Parvathammal filed a statement denying the execution of the note & also denying that she had borrowed any money from the pltf. Certain issues

were framed & subsequently Parvathammal died. Thereupon the resp. before me a minor named Dandayuthapani alias Ayyaaami was added as

deft. 2 on the ground that he was the adopted son of Parvathammal -& her hushand, Subbiah Gurukkal. Thereafter, the pltf. wanted to amend the

plaint in order to secure two results (1) to convert the suit which was originally on the note into one on the debt; and (2) to make the estate of

Suhbiah Gurakkal liable for the decree that might be made in his favour in the suit. This petn. for amendment was opposed on behalf of

Dandayuthapani the adopted son. The learned Dist. Munsif found that the proposed amendment would not cause any inconvenience to the parties,

that it could not be said to introduce a plea inconsistent with the original plea, hut that ""it was certainly a new & additional plea which the pltf. could

very well have taken even originally"". But nonetheless he dismissed the petn. for amendment on the ground that

the effect of allowing a new amendment will be, therefore, to take away a valuable plea of limitation which deft. 2 will have if a fresh suit is now

filed.

It appears to me that the order of the learned Dist. Munsif is erroneous. There can be no doubt that if Parvathammal had been alive the plaint

could have been amended not only to convert the suit into one under the debt but also to make the estate of Subbiah Gurukkal in her hands

available for any decree that might bo passed. Mr. Ramachandra Ayyar, the learned advocate for the resp. very strongly argued that even if

Parvathamraal had been alive the plaint could not have been amended in such a manner as to make the estate of Subbiah Gurukkal liable. His

argument was this : In the plaint as originally filed Parvathammal was being sued in her personal capacity. To allow the amendment would be in

effect to allow the addition of a new party, this new party being the legal entity which may bo described as Subbiah Gurukkal''s estate. At the time

the addition of this new legal entity was asked for the claim of the pltf. against that entity had been time barred. So the amendment should not be

allowed. No doubt there is something to be said logically for this position. But so far as this Ct. is concerned the position for which Mr.

Eamachandra Aiyar contended has never been countenanced. One of the earliest decisions of this Ct. is that reported in Swaminatha v. Muthayya,

15 Mad. 417 : 2 M. L. J. 119. In that case--leaving out immaterial facts--a suit was brought against the deft, in his capacity as trustee of a temple.

Subsequently leave was granted to amend the plaint so as to convert the suit into one against the deft, in his personal capacity. And be it noted that

this leave was granted at a time when a fresh suit against the deft, personally would have become barred. P. Seshagiri Rao Vs. T.V. Seshagiri Rao,

was a case in which following the case in Swaminatha v. Muthayya, 15 Mad. 417 : 2 M. L. J. 119 leave was granted to amend the plaint so as to

make the guardian of a minor also per-sonally liable at a time when a separate suit against him in his personal capacity would have become barred.

Mr. Ramachandra Aiyar referred to the decision in Patayath Parumpayil Sankara Menon Vs. Karumathil Puthumanae Sanku''s son Kuttani and

Others, , which was a case where leave to amend was refused. The learned Judge refused leave & observed as follows :

If we look at the essence of the amendment, it is a case in which by means of an amendment a very large number of fresh parties are added,

though by a special procedure one of their number who happens already to be on the record in his personal capacity is treated as the

representative of the whole association. It seems to me that this is essentially a case of adding fresh parties after the period of limitation has

expired.

The present is not such a case ; it more properly falls within the scope of the decision in Swaminatha, v. Muthayya, 15 Mad. 417: 2 M. L. J. 119.

It is clear to me that if Parvathammal had been alive the amendment sought for could & would have been granted. Her death cannot increase or

decrease the rights either of the pltf. or of Dandayuthapani, the adopted son as against the pltf. So far as Dandayuthapani is concerned, he would

take the estate of his adoptive parents in the state in which it stood at the moment he became entitled to it. The order of the lower Ct., therefore, is

set aside & leave to amend is granted, The petnr. can have this leave only on condition that he pays the resp. his costs of the pesn. in the Ct. below

& here. The costs are to be paid before the amendment is carried out.