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Judgment
K.K. Sasidharan, J—The first respondent filed a suit against the petitioner and others, praying for a judgment and decree, directing partition of the suit property and separate allotment of her one third share. The petitioner was not made a party originally. She was impleaded subsequently, taking into account the plea taken by the third respondent herein.
The petitioner, after appearance, filed a written statement, disputing the claim made by the first respondent.
The petitioner filed an application in I.A. No. 354 of 2010, praying for amendment of the plaint schedule and to incorporate the property in R.S. Nos. 269/9 and 270/21 as an item to be partitioned.
The interlocutory application was dismissed by the learned Trial Judge primarily on the ground that it is not open to a defendant to direct the plaintiff to amend the plaint. The order dated 19 November, 2010, is challenged in this Civil Revision Petition.
The learned counsel for the petitioner contended that the first respondent is the beneficiary of a settlement and as such, she is in the very same position, like her predecessor-in-interest. The learned counsel further contended that the first respondent took a contradictory case in respect of the property in R.S. Nos. 269/9 and 270/21 and the same made the petitioner to file the application for amendment. The learned counsel placed reliance on a decision of this Court in A.A. Ganga and A.A. Radhika Vs. A.R. Usha and Others , in support of his contention that even at the instance of defendant, schedule of property can be amended.
The learned counsel for the first respondent contended that the first respondent, being the dominus litis, is the master, insofar as the plaint is concerned. According to the learned counsel, it is not open to a defendant to direct the plaintiff to amend the plaint.
The factual matrix indicates that three settlement deeds were executed on 08 February, 1999. Ex. B. 12 was in favour of fourth defendant. The settlement was in respect of 50 cents of land in R.S. No. 203/6. The settler executed another settlement deed marked as Ex. B. 13 in favour of second defendant in respect of 50 cents in R.S. No. 270/21. The very same settler executed another settlement deed marked as Ex. B. 14 in favour of the first respondent herein settling 71 cents in R.S. No. 269/9.
The petitioner purchased the property from the third defendant, who got the property from the fourth defendant.
The first respondent accepted the settlement deed in respect of 71 cents of land. The first respondent has taken up a contention that the plaint schedule property belongs to her grandfather. However, the property settled in favour of the fourth defendant belongs to her father.
The only question that arises for consideration is as to whether amendment petition, at the instance of a defendant, is maintainable in a suit for partition.
The issue raised by the petitioner is no more res integra, in view of the decision of a Division Bench of this Court in Solavaiammal Goundar, Parvathy, Shanmugam Goundar and Rathnam Goundar Vs. Ezhumalai Goundar and Valliammal . The Division Bench, in paragraph No. 17 of the judgment, made the legal position clear:
"17. In a Suit for partition, in the event the Plaintiff has included only certain properties as if they are available for partition and leave some other properties which are also available for partition, the request of the Defendant in such event to include the left out properties also in the Plaint schedule would not in any way amount to altering or changing the nature or character of the Suit, as such an amendment is also necessary for an effective adjudication of the case and to avoid multiplicity of proceedings."
The learned Trial Judge dismissed the application primarily on the ground that it is not open to the defendant to direct the plaintiff to amend the plaint.
There is no dispute that in a suit for partition, even a defendant is entitled to transpose himself as a plaintiff. I am, therefore, of the view that the learned Trial Judge was not correct in dismissing the application on the ground of maintainability.
The next question relates to the availability of the property shown by the petitioner to be included as an item for partition.
The Division Bench in Ezhumalai Goundar''s case indicated the test to be adopted in a case of this nature.
"18. It is argued that in the event some of the properties which are available for partition are not included in the Plaint schedule, the decree would be invalid on the ground of partial partition. However, it must be kept in mind that in such event, a further Suit has to be filed either at the instance of the Plaintiff or Defendant to include all the properties which are available for partition. In order to avoid such a situation, in partition Suit, the Court could certainly entertain an Application for amendment to include the properties which are left out and it cannot be said that in the event the amendment Petition is dismissed, the decree would be invalid for partial partition. Hence, we hold that in a suit for partition, Application for amendment at the instance of either party to the Suit is maintainable under Order 6, Rule 17 of the Civil Procedure Code. ......................"
The Trial Court has not considered the merits of the application in detail. I am, therefore, of the view that the issue requires fresh consideration.
In the result, the order dated 19 November, 2010, is set aside. The application in I.A. No. 354 of 2010 is restored to file.
The learned Trial Judge is directed to decide the application in I.A. No. 354 of 2010 on merits and in the light of the judgment in Solavaiammal Goundar, Parvathy, Shanmugam Goundar and Rathnam Goundar Vs. Ezhumalai Goundar and Valliammal . Such exercise shall be completed, within a period of six weeks from the date of receipt of a copy of this order.
The Civil Revision Petition is allowed as indicated above. No costs. Consequently, the connected miscellaneous petition is closed.