N. Madhavan Pillai v. Jnanadeepam Atheenal alias Atheenal George and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932** **SA.No. 31 of 1997(D)** - **-----------------------------** - **[AS.NO.818/1994 OF SUB COURT,NEYYATTINKARA, OS.NO.766/1982 OF PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA]** **....................** ## **APPELLANT/APPELLANT/2ND DEFENDANT:** **---------------------------------------------------------------** **N. MADHAVAN PILLAI, RESIDING AT VETTITHIRUTHI, KADAYARA VEEDU, ANAVOOR DESOM, KUNNATHUKAL VILLAGE.** **BY ADVS. SRI.G.UNNIKRISHNON, SRI.G.P.SHINOD.** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT:** **-----------------------------------------------------------------------------------------------** **1. JNANADEEPAM ATHEENAL ALIAS ATHEENAL GEORGE, PULLAMKONAM WARD, N.C.C. ROAD, C.P. 9/263, CHETTIVILAKOM VILLAGE, THIRUVANANTHAPURAM, HAVING ALSO ANAYILKONATHU MEKKUMKARA VEEDU, NEELIMALAKUZHI PUTHUVAL PURAYIDOM, ANAVOOR DESOM, KUNNATHUKAL VILLAGE. *(DIED).** **2. AMMUKUTTY PILLA OMANAYAMMA, VETTITHIRUTHI KADAYARA VEEDU, ANAVOOR DESOM, KUNNATHUKAL VILLAGE.** ## ***ADDITIONAL RESPONDENTS 3 TO 8 IMPLEADED:** **ADDL.R3. RECHAL GEORGE, D/O. ATHEENAL GEORGE, C.P. 9/263, N.C.C. ROAD, PULLAMKONAM WARD, CHETTIVILAKOM VILLAGE, THIRUVANANTHAPURAM.** **ADDL.R4. EVENEEZER GEORGE, S/O. ATHEENAL GEORGE, DO. DO.** ## **S.A. NO. 31/1997-D:** **ADDL.R5. RAKESH GEORGE, S/O. ATHEENAL GEORGE, DO. DO. ADDL.R6. DEVADAS GEORGE, S/O. ATHEENAL GEORGE, DO. DO. ADDL.R7. EDWIN GEORGE, S/O. ATHEENAL GEORGE, DO. DO. ADDL.R8. RAJAN GEORGE, S/O. ATHEENAL GEORGE, DO. DO.** ***ADDL. RESPONDENTS 3 TO 8 IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 30/06/10 IN I.A. 1199/03 IN S.A.** **BY ADVS. SRI.M.RAJASEKHARAN NAYAR, SMT.S.LATHIKA DEVI, SRI.K.V.SOHAN, SMT.SREEJA SOHAN.K.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **S.A. NO. 31/1997-D:** **ORDER ON C.M.P. NO.92/1997 IN S.A. 31/1997-D DISMISSED 21/01/2011. SD/- P.BHAVADASAN, JUDGE.** **//TRUE COPY// P.A. TO JUDGE.** **Prv.** ## **P.BHAVADASAN, J.** ------------------------------------SA No.31 of 1997 ------------------------------------Dated this the 21[st] day of January 2011 ## Judgment The defendant in OS No.766/82 before the Munsiff's Court, Neyyattinkara, which was a suit for partition, is the appellant. During the pendency of this appeal, the first respondent died and his legal heirs have been brought on the party array as additional respondents 5 to 8. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, item no.1 in the plaint schedule was mortgaged to the first defendant and her mother Ammukkutty Pillai by the plaintiff and others, receiving a sum of one thousand fanams. The mortgage deed is dated 2[nd] Dhanu 1121 ME and it is for a period of seven years. The plaintiff claims to have ¼ share in item No.1. He also sought for redemption of his shares, partition and allocation of ¼ share of his property. SA 31/97 2 3. It appears that the second defendant had contested the suit. The main contention taken by him was that the suit was barred by limitation. It was also contended that the plaintiff has no right over the suit property and he did not have any right for redemption and partition. 4. It appears that at the time of instituting the suit, the mortgage deed was not produced. Sometime thereafter, claiming that the copy of the mortgage deed has been obtained, a petition for amendment of the plaint was filed, seeking to incorporate certain details. That was allowed. 5. On the basis of the respective pleas, necessary issues were raised by the trial court. The evidence consists of Ext.A1 produced by the plaintiff. No oral evidence was adduced by either side. The trial court came to the conclusion that going by the terms of the mortgage deed, the suit filed is not barred by limitation and the plaintiff is entitled to succeed. Accordingly, a decree was granted in his favour on the following terms : SA 31/97 3 “(a) The plaintiff is entitled to ¼ share in the property described on item No.1 and the said share would be allotted to her from the plaint schedule item Nos.1 and 2. - (b) The plaintiff is entitled to deposit Rs.35.10 in court and redeem and recover possession of the said ¼ share from the defendants. - (c) The second defendant is entitled to the said amount as and when the plaintiff get possession of the said share. - (d) The plaintiff is entitled to apply for passing final decree after three months from today.” 6. The matter was carried in appeal by the second defendant as AS No.818/94 before the Sub Court, Neyyattinkara. The appellate court, on a consideration of the materials before it, found that the trial court was justified in granting a decree and accordingly, dismissed the appeal. SA 31/97 4 7. Notice is seen issued on the following questions of law in the second appeal : i) Is not the finding of the courts below that the suit is not barred by limitation, contrary to law ? ii) Did not the courts below act contrary to law in allowing amendment of the plaint to introduce a cause of action based on a mortgage which was by then time barred ? iii)Is not the finding that the suit is not bad for non-joinder of necessary parties contrary to law ? 8. The learned counsel for the appellant pointed out that the court below ought not to have allowed the amendment as it was barred by limitation and it has caused considerable prejudice to the plaintiff. Even though this aspect was urged before the lower appellate court, it did not consider it in the proper perspective. In support of the contention that amendment ought not to have been allowed, the learned counsel for the appellant relied on the decision reported in _**Vishwambhar v. Lakshminarayan**_ (2001) 6 SCC 163). SA 31/97 5 9. In reply, the learned counsel for the respondents pointed out that the amendment was only of a routine nature and it did not make any change in the cause of action or character of the suit. It was only supplying more details. In support of the said proposition, the decision in _**A.K.Gupta v. Damodar Valley Corporation**_ (AIR 1967 SC 96) was relied on by the learned counsel for the respondents. 10. It is true that the amendment sought for was with respect to the description of the property. The boundaries and the survey numbers were sought to be altered. But, there was no dispute regarding the identity of the property in respect of which reliefs were sought for. As pointed out by the learned counsel for the respondents, it was only giving more particulars of the already available pleadings. SA 31/97 6 11. In the decision reported in _**Vishwambhar v. Lakshminarayan**_ (2001) 6 SCC 163), it was held as follows : “By introducing the prayer for setting aside the sale deeds, the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstances, the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that.” 12. On going through the amendment application, it can be seen that the basis of the suit remains the same and there is no change in the character or nature of the suit. In the decision reported in _**Vishwambhar v. Lakshminarayan**_ (supra), the amendment had the effect of changing the nature of the suit itself and it was in that context that it was held that the amendment ought not to SA 31/97 7 have been allowed. As rightly contended by the learned counsel for the respondents, in the case on hand, there is no change in the nature or character of the suit and no prejudice has been caused to the defendant by the amendment allowed by the trial court. The result is that there is no merit in this second appeal and it is only to be dismissed. I do so. However, there will be no order as to costs. It is pointed out that item No.2 is included in item No.1 and therefore, the direction in the preliminary decree to allot ¼ of item No.2 also is superfluous. Therefore, it is clarified that clause (a) of the preliminary decree will be read as “the plaintiff will be entitled to ¼ share in item No.1 of the plaint schedule property and item No.1 will be divided into four shares and one such share shall be allotted to the plaintiff”. ## **P.Bhavadasan, Judge** sta SA 31/97 8 SA 31/97 9