OP(C) NO. 2897 OF 2012

``` OP(C) NO. 2897 OF 20121 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944 ``` ## **`OP(C) NO. 2897 OF 2012`** ## **`IA 2100/2012 IN OS 164/2010 OF MUNSIFF COURT, THALIPARAMBA`** ## **`PETITIONER/S:`** ``` THAZHE VALAPPIL KOMALAVALLY AGED 39 YEARS D/O.OTHENAN, MALAPATTAM AMSOM, CHOOLIYAD DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. ``` ``` BY ADV SRI.P.BABU ``` ## **`RESPONDENT/S:`** - `1 MAVILA BALAN NAMBIAR S/O.NARAYANI AMMA, AGED 62 YEARS, ERUVASSY AMSOM, DESOM, ERUVESSY P.O., TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-673702.` - `2 P.K.BALAKRISHNAN NAIR S/O.KRISHNAN NAIR PALAKKAL HOUSE, POOPARAMBA, ERUVASSY AMSOM, NELLIKUTTY P.O., KANNUR DISTRICT - 673702.` - `3 THAZHEVALAPPIL GANGADHARAN S/O.OTHENAN THALAKKODU, MALAPATTAM AMSOM, DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT - 673702.` - `4 THAZHEVALAPPIL JANAKI D/O.OTHENAN, MALAPATTAM AMSOM, CHOOLIYAD DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT - 673702.` - `5 THAZHEVALAPPIL NARAYANI D/O.OTHENAN POONKULATHIL HOUSE, KUTTIYATTOOR AMSOM, NIDUKULAM DESOM, KUTTIYATOOR P.O., PIN-673702.` - `BY ADVS.` - `SRI.U.BALAGANGADHARAN SRI.G.GIREESH` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2897 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** Aggrieved and displeased with Ext.P4 order passed in I.A. No.2100/2012 in O.S. No.164/2010 of the Court of the Munsiff, Taliparamba, the plaintiff in the suit has filed the original petition. The respondent in the original petition are the defendants in the suit. 2. The facts leading to Ext.P4 order, in a narrow compass, are: the petitioner had filed a suit against the respondents for partition of the plaint schedule property into four equal shares and to allot one share to the petitioner. The plaint schedule property having an extent of 75 cents originally belonged to the petitioner, her brother and sisters, who are respondents 3 to 5, by virtue of gift deed No.2836/1982 of Sreekandapuram SRO. While the parties were enjoying title and possession of the property, the mother of the petitioner and respondents 3 to 5 executed an assignment deed No.2448/1990 of the same SRO with regard to the plaint schedule property in favour of the 1[st] respondent by stating that the transfer was for ``` OP(C) NO. 2897 OF 2012 ``` ``` 3 ``` the benefit and welfare of the petitioner, who was then a minor. The 1[st] respondent, thereafter, assigned that portion of the property in favour of the 2[nd] respondent. The petitioner came to learn about the said deed only in January 2010. Immediately, the petitioner applied and obtained a copy of the deed. No permission was granted by the competent court under the Guardian and Wards Act to execute the deed. Hence, the deed is void. The petitioner is entitled for the undivided 1/4[th] share in the property in metes and bounds. While the suit was listed for trial, the 1[st] respondent contended that the petitioner had not taken steps to set aside the transfer. As the petitioner was a minor at the time of execution of the deed, she could not take steps to set aside the deed. In order to avoid multiplicity of proceedings and technical arguments, the petitioner had filed I.A. 2100/2012 (Ext.P2) to amend the plaint for the purpose of incorporating a prayer to set aside the document. The respondents 1 and 2 objected to Ext.P2 application through Ext.P3 objection. The court ``` OP(C) NO. 2897 OF 2012 ``` ``` 4 ``` below, by the impugned Ext.P4 order, rejected Ext.P2 application. Ext.P4 is erroneous and wrong. Hence, the original petition. 3. Heard. 4. The question is whether there is any error or illegality, in Ext.P4 order. 5. On an analysis of the pleadings and materials on record, it is seen that the suit was filed for partition. Admittedly, the petitioner was a minor at the time when the gift deed bearing No.2836/1982 was executed. It is during her minority that the mother of the petitioner and respondents 3 to 5 had executed an assignment deed with regard to the plaint schedule property in favour of the 1[st] respondent alleging that it was for the benefit of the petitioner. The petitioner was a minor even at that time. Later, the 1[st] respondent sold the property to the 2[nd] respondent. The petitioner came to learn about the said aspect only at the time of trial, when the 1[st] respondent deposed that the petitioner had not taken steps to set ``` OP(C) NO. 2897 OF 2012 ``` ``` 5 ``` aside the transfer. Consequentially, the petitioner filed Ext.P2 application to amend the pleadings. The court below, on the ground that the trial in the suit had commenced, dismissed the application. 6. In a case of identical nature, a Division Bench of this Court in **Moideen v. Razia alias Thankam [ILR 2017 (3) Ker 306]** has held that amendment of pleadings can be permitted if a transaction has occurred in violation of a statute. 7. Moreover, the proviso to Rule 17 of Order VI of the Code of Civil Procedure stipulates that, a party is precluded from seeking leave to amend the pleadings, only if the matter sought to be incorporated by way of amendment was well within the party’s knowledge, but he did not seek for amendment of pleadings prior to the commencement of trial. 8. In the case at hand, the definite case of the petitioner is that, it is only during the cross-examination of the 1[st] respondent, the fact regarding the assignment deed ``` OP(C) NO. 2897 OF 2012 ``` ``` 6 ``` came to light. Immediately, the petitioner filed the application seeking leave to amend the plaint. 9. In the above factual and legal background, I hold that the application is not hit by the proviso to Rule 17 of Order VI of the Code. 10. Furthermore, it is trite, an application for amendment is to be liberally considered, so that multiplicity of proceeding can be avoided. Even if the present amendment is not permitted, it will not preclude the petitioner from instituting a fresh suit to set aside a document, because the deed was allegedly executed during the minority of the petitioner. 11. On a conspectus of the above facts, I am of the firm view that, another round of litigation can be avoided by permitting the matter to be agitated in the present suit. Therefore, Ext.P4 order warrants to be interfered by this Court under Article 227 of the Constitution of India. In the result, I allow the original petition as follows: (i) Ext.P4 order is set aside. ``` OP(C) NO. 2897 OF 2012 ``` ``` 7 ``` - (ii) Ext.P2 application is allowed. - (iii) The petitioner shall file the amended plaint as prescribed under law. - (iv) The parties are directed to appear before the court below on 12.12.2022. - (v) The court below shall grant the respondents an opportunity to file their additional written statement to the amended plaint. - (vi) As the suit is of the year 2010, the trial court shall make every endeavour to consider and dispose of the suit, in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** //True copy// P.S. to Judge okb/16.11.22 ``` OP(C) NO. 2897 OF 20128 ``` ## **P ETITIONER’S EXHIBITS:** ``` Exhibit P1THE TRUE COPY OF PLAINT IN OS 164/2010 Exhibit P2TRUE COPY OF IA 2100/2012 Exhibit P3TRUE COPY OF OBJECTION FILED BY THE 1ST RESPONDENT Exhibit P4TRUE COPY OF ORDER IN IA 2100/2012 ```