N. Sumina alias Summayya and N. Sudheer v. A. Thaha, A. Asharaf and Thanuja Ashraf

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 AS.No. 233 of 1999(C) --------------------OS.137/1992 of PRINCIPAL SUB COURT,ATTINGAL .................... ## APPELLANTS/PLAINTIFFS: - ----------- 1. N.SUMINA ALIAS SUMMAYYA, D/O.NAZEER, AGED 16, RESIDING AT PANDAKASSALA VEEDU, PERUMATHURA, SARKARA VILLAGE, (MINOR). 2. N.SUDHEER, S/O.NAZEER, AGED 12, RESIDING AT -DO- -DO- - MINOR APPELLANTS ARE REP. IN THIS APPEAL BY THEIR NEXT FRIEND GRAND UNCLE MOHAMMED ABUBACKER GAFOOR S/O.MOHAMMED ABOOBACKER, TRADER, AGED 62, RESIDING AT PANDAKASALA VEEDU, PERUMATHURA, SARKARA VILLAGE. - BY ADV. SRI.G.S.REGHUNATH (Sr.) - SRI.M.RAMASWAMY RESPONDENTS/DEFENDANTS 7 TO 9: - ------------- 1. A.THAHA, S/O.ALIYARUKUNJU, LABOURER, AGED 30, RESIDING AT MEEMPALLIKUNNU VEEDU, FROM VALIYAVILAKATHU VEEDU, VADAKKUMBHAGOM MURI, KIZHAKKUTTOM, MENAMKULAM VILLAGE. 2. A.M.ASHARAF, S/O.ABDUL KHARIM, COMPANY EMPLOYEE, AGED 37, RESIDING AT SHA NILAYAM, VADAKKUMBYHAGOM MURI, KAZHAKKUTTOM, MENAMKULAM VILLAGE. 3. THANUJA ASHRAF, D/O.REMLA BEEVI, AGED 26, RESIDING AT -DO- -DO-. - R1 BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(Sr.) SRI.GOPAKUMAR R.THALIYAL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/04/2008, ALONG WITH AS NO. 432 OF 1997 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. PADMANABHAN NAIR, J.** = = = = = = = = = = = = = = = = = = = ## **I.A. NO.4792 OF 2006 IN** ## **A.S. NO. 233 OF 1999** **= = = = = = = = = = = = = = = = = = = Dated this the 10[th] day of April, 2008** ## **O R D E R -------------** **This is a petition filed by the appellants in A.S. No.233 of 1999 under Order VI Rule 14 of Civil Procedure Code to amend the plaint. Petitioners filed the suit for a declaration of title and possession over plaint schedule properties and in the alternative for recovery of possession. In the affidavit filed in support of the petition, the following averments are made. The petitioners are claiming right over the property on the strength of Exhibit A3 settlement deed executed by defendants 1 and 3 in the suit. In Exhibit A3 there was an unequivocal declaration of the wish of defendants 1 and 3 to give the property to the minor plaintiff. The first petitioner was minor on the date of Exhibit A3 under the custody of defendants 1 and 3. Actually possession of the property was not given. First defendant was the father of the petitioners and third defendant is their mother. They were holding** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 2 :-** **property on behalf of the petitioners. So the gift was jointly executed by them and accepted by them. Being minors petitioners are entitled to the benefits of the gift. First defendant was in possession of the entire property as a trustee after the execution of the gift. But in breach of the trust, he illegally executed documents detailed in the plaint. Defendants 4 to 7 have no legal possession over the suit property and their possession, if any, is only that of trustees. In the plaint these allegations were omitted to be stated. Certain allegations were made wrongly by inadvertent omissions. Petitioners have filed an application for amendment of the plaint on 11.12.2000 after serving the copy of the same on the counsel appearing for the respondents. The fifth defendant sold away his right in respect of item No.4 during the pendency of the suit, but his assignee was not made a party. Defendants 5 and 7 alone contested the suit. So copy of the amendment application was served on the respondents appearing in the appeal alone. Petition was seen missing from the file and that fact came to the notice of the** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 3 :-** **petitioners only on 30.12.2006 only when the appeal was posted for hearing. Hence this petition. Petitioners want certain averments in the plaint to be deleted and some other pleadings to be added.** **2. First respondent in the appeal, who is the 7[th] defendant in the suit, has filed a counter affidavit contending that there is no merit in the petition and it is wholly devoid of facts and deserves to be dismissed. He further contended that the petitioners were aware that the contentions raised by the 7[th] defendant in the suit were valid. They are not entitled to turn round and put forward a contention inconsistent with the allegations raised earlier. It was contended that the amendment if permitted will disclose two sets of contentions one totally oppose to the earlier set. It was contended that the petitioners shall not be permitted to come forward with inconsistent pleas which are destructive of each other. It was contended that in view of the principles laid down by the Supreme Court, the petitioners were not entitled to any relief in the suit or appeal. The application for amendment was filed only to harass the 7[th] defendant.** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 4 :-** **3. The appellant in the connected appeal, who is stranger to the suit, also filed a counter affidavit through her Power of Attorney holder. It was contended that the amendment that was sought for by the petitioners clearly militates against the contentions in the plaint. In the plaint, the specific contention was that the third defendant was the trustee. It was also mentioned that the document in question was accepted by the third defendant on behalf of the beneficiaries and she was in possession of the same for and on behalf of them. It was contended that the amendments sought were meant to wriggle out the admissions made in the plaint. It was contended that the petitioners were trying to introduce inconsistent plea which will change the character of the suit and the evidence already let in.** **4. Suit was filed by the petitioners-plaintiffs through their next friend. On the date of filing of the suit, the petitioners were minors. In fact the main contention raised in the suit was that the suit was premature as the petitioners have a right to elect after attaining majority and the next friend has no business to file a suit. Plaint items 1 to 3 were** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 5 :-** **properties belonged to the first defendant. He got the same under partition deed No.2206 of 1977 of the Kazhakuttom Sub Registry. Plaint item No.4 was purchased by the first defendant as per sale deed No.3062 of 1977 of the same Sub Registry. It was also averred that the first defendant was in possession of the properties as owner and enjoying the same. On 27.12.1977 defendants 1 and 3 jointly executed a settlement deed. It was also admitted that on the date of the settlement deed, the first petitioner alone was born. Second petitioner was born only after the execution of the settlement deed. It was averred that as per the above settlement deed the property was settled on the petitioners and the third defendant was made the trustee. It was averred that the settlement deed was accepted by the third defendant on behalf of the beneficiaries and she was in possession of the same on behalf of them. It was averred that the property continued to be in the possession of the third defendant as per the provisions of the settlement deed.** **5. Petitioners wanted to add that defendants 1 and 3 were holding property as trustees and they also wanted to** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 6 :-** **clarify that first defendant being father of the petitioners was in possession of the suit properties as a trustee and in complete breach of the trust first defendant created documents, that on the strength of the illegal documents created by the first defendant, the right or legal possession of the petitioners were not lost, that petitioners continued to be in constructive possession of the plaint schedule property and the possession, if any, of defendants 4 to 10 were only on the basis of the illegal documents created by the first defendant and that all the benefits derived by the aforesaid defendants over the plaint schedule property on the strength of the illegal documents will enure to the benefits of the petitioners alone. According to the petitioners subsequently, first defendant cancelled the settlement deed and executed another document along with the second defendant in favour of the 4[th] defendant.** **6. Suit was contested by defendants 5 and 7. The specific contention raised by them was that the petitioners were under the care and protection of their parents and they are not under the care and protection of the next friend who** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 7 :-** **filed the suit. Execution of the settlement deed was admitted. It was very specifically contended that the first defendant never had an intention to bring that document into effect and the third defendant did not get any right or possession over the property. In paragraph 8 of the written statement the 5[th] defendant had stated that nobody has accepted the settlement deed for and on behalf of the petitioners and that document happened to be executed under a special circumstance. In paragraph 9 of the written statement it was specifically contended that since the first defendant had an idea to go to Gulf countries, the name of the third defendant was also shown in the document and the third defendant joined in the document only to look after the property while the first defendant will be away from India, but she will not get any title or possession over the property. It was reiterated that the case of the plaintiffs that the third defendant had accepted the document for the petitioners was not true and she did not get any right or possession over the property. It was admitted that there was a recital in the document that defendants 1 and 3 were entitled to enjoy the** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 8 :-** **property, but that clause did not take into effect. In paragraphs 11 and 12 also the possession of the third defendant was denied.** **7. The 7[th] defendant had admitted that defendants 1 and 3 jointly executed certain documents in favour of some of the other defendants. It was also stated that there was collusion between the next friend and defendants 1 and 3 for making unlawful gain. Execution of the settlement deed was admitted. The averment that the gift was accepted by the third defendant for and on behalf of the petitioners was denied. It was specifically stated that there was no acceptance of the property mentioned in the settlement deed. Defendants 1 and 3 were not on good terms. It was reiterated that the third defendant had not accepted the gift. The 7[th] defendant has filed an additional written statement contending that the sale deed executed in favour of him was valid and not liable to be set aside and the petitioners are not entitled to any reliefs in the suit.** **8. So the averment of the petitioners that the third defendant had accepted the gift and she was in possession of** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 9 :-** **the property was specifically denied by the defendants. Now the petitioners also admit that fact and they want to delete the words '3[rd] defendant alone accepted the gift' and to add 'defendants 1 and 3 accepted the gift and they were holding as trustees of the petitioners'. They also wanted to add that the first defendant in breach of trust reposed on him created certain documents which were invalid. In fact the petitioners want to amend the pleadings in tune with the contentions raised by the contesting defendants which will not change the nature and character of the suit. It is also to be noted that at the time of filing of the suit, the petitioners were minors.** **9. Learned counsel appearing for the petitioners relied on the decision reported in Ishwardas v. State of M.P. (AIR 1979 SC 551) wherein the Apex Court had considered the power of the appellate court to allow the amendment. It was held as follows:** **“There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 10 :-** **necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and if made at the appellate stage, the reason why it was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court”.** **In C.M. Vereekutty v. C.M. Mathukutty (AIR 1981 SC 1553) also the Apex Court held that in appropriate cases the lower appellate court can allow the amendment. In Commercial Financiers v. Thressia (1990 (1) KLT 774) this Court, interpreting Order VII Rule 14 of the Code of Civil Procedure, held that a document produced along with the plaint under Order 7 Rule 14 should be treated as part of the pleadings.** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 11 :-** **10. In this case the settlement deed was produced along with the plaint under Order VII Rule 14. So it has to be treated as a part of plaint. The settlement deed makes it clear that it was not accepted by anybody. There is also no statement in the settlement deed to the effect that that was accepted by the third defendant. So by no stretch of imagination the contention of the contesting defendants that the petitioners are trying to introduce a new cause of action which will change the nature and character of the suit cannot be accepted. Learned counsel appearing for the contesting defendants relied on the principle laid down in Sukad Raj v. Ram Harsh (AIR 1977 SC 680) wherein it was held that if the amendment sought for is for introducing entirely different case and seeking to displace the plaintiff completely from admissions made by the defendants in the written statement, the same cannot be allowed. The same principle was reiterated by a learned single Judge of this Court in Chandran v. Gopalan (1999 (3) KLT 809). According to the petitioners during the year 2000 they filed a petition for** ## **I.A. .NO.4792 OF 2006 IN A.S NO. 233 OF 1999** ## **-: 12 :-** **amendment but petition was missing. That averment was not denied by the respondents. In this case from the very beginning the consistent case of the respondents was that the third defendant never accepted the gift. In fact now the plaintiffs virtually accepts that contention. So no prejudice will be caused to the defendants. Since the suit was filed prior to the amendment of Rule 17 of Order VI of Civil Procedure Code the proviso to that Rule is not applicable to this case. There is no merit in the contention raised by the contesting defendants that the amendment sought for, if allowed, will change the nature and character of the suit.** **In the result, the application is allowed. The amendment sought for is allowed. Petitioners are given time till 15.6.2008 to carry out the amendment.** ## **K. PADMANABHAN NAIR, JUDGE.** **vsv** **K. PADMANABHAN NAIR, J. ===================== I.A. NO.4792 OF 2006 IN A.S. NO.233 OF 1999 ===================== O R D E R** **------------------------------------------10TH APRIL, 2008**