P. Anil Kumar v. Vijayakumari and Life Insurance Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945** **OP(C) NO.4110 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OS NO.941 OF 2010 OF SUB COURT, THIRUVANANTHAPURAM.** ## **PETITIONER:** **P.ANILKUMAR, SON OF PACHAN, AGED 37 YEARS, MELETHIL VEEDU, VENPAKAL DESOM, ATHIYANNOOR DESOM, THIRUVANANATHPAURAM.** **BY ADVS. SRI.V.SURESH SRI.G.SUDHEER** ## **RESPONDENTS:** - **1 VIJAYAKUMARI, DAUGHTER OF THANKAMMA, POTTA VEEDU, CHOWARA, KARODE DESOM,, THIRUVANANATHPAURAM.** - **2 LIFE INSURANCE CORPORATION, PATTOM, THIRUVANANATHPAURAM, REPRESENTED BY ITS GENERAL MANAGER.** **BY ADVS. SRI.C.VIVEK SREEKALA KRISHNADAS** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON** **07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) No.4110 of 2011** ## **- 2 -** **==> picture [59 x 11] intentionally omitted <==** ## **JUDGMENT** ## **Dated, this the 7[th] March, 2024** **The petitioner is the plaintiff in the suit, O.S. No.941/2010 pending before the Principal Sub Court, Thiruvananthapuram. Petitioner is aggrieved by Ext.P9 order, which refused an amendment sought for vide Ext.P8, on the premise that the amendment sought for, would take away an admitted fact in the plaint.** **2. Heard the learned counsel for the petitioner and the learned counsel for the 2[nd] respondent, Life Insurance Corporation. The 1[st] respondent, though served, is not represented before this Court.** **3. Learned counsel for the petitioner would submit that the suit was originally filed for declaration of title in respect of the amount** **OP(C) No.4110 of 2011** ## **- 3 -** **scheduled in the plaint, along with a direction to the 2[nd] defendant, Life Insurance Corporation to disburse the amount to the plaintiff. The petitioner is the husband of one Bindu, who passed away on 27.05.2007. Pursuant to her death, her mother (1[st] respondent herein and the 1[st] defendant in the suit) approached the Tahsildar for issuance of a legal heirship certificate. Accordingly, Ext.P4 legal heirship certificate was issued, showing the petitioner and the 1[st] respondent (husband and the mother respectively of the deceased) as legal heirs. The 1[st] respondent herein being the nominee, the amounts under the policies in the name of deceased Bindu were disbursed to her. In such circumstances, the suit, O.S. No.54/2008, was filed by the petitioner herein, essentially relying upon Ext.P4 legal heirship certificate, claiming one-half share over the amounts covered by the policies in the name of late Bindu. When the suit was pending before the Sub Court, Neyyattinkara, the 1[st] respondent/** **OP(C) No.4110 of 2011** ## **- 4 -** **mother-in-law filed an application for transfer of the said suit to the Sub Court, Thiruvananthapuram for the reason that the petitioner/plaintiff is a lawyer practising at Neyyattinkara. The same was filed before the District Court, Thiruvananthapuram, whereupon, the files were taken to a lawyer at Thiruvananthapuram. Upon scrutiny by the said lawyer, it was found that the parties belong to Ayyanavar community, coming under the Scheduled Caste, governed by the Makkathayam system of inheritance. Therefore, upon the death of the wife, the sole legal heir will be the husband, going by Section 15 of the Hindu Succession Act. There is no quarrel that the petitioner and late Bindu had no children. It is accordingly that Ext.P8 application was filed seeking amendment of the plaint, based on Section 15 of the Hindu Succession Act, claiming exclusive rights over the amounts covered by the policies in the name of late Bindu. In the meantime, the transfer was allowed and the transferee court** **OP(C) No.4110 of 2011** ## **- 5 -** **passed the impugned Ext.P9 order holding that the amendment cannot be allowed, since it seeks to retract from an admission made in the plaint, recognising one-half right of the defendant/ mother-in-law. Learned counsel would point out that no objection, whatsoever, was filed to Ext.P8 application for amendment.** **4. According to the learned counsel, when an amendment is necessitated to correct a pleading based on wrong advise or wrong assumption of law, the same is only to be allowed. In support of the above submission, learned counsel would rely upon a Bench decision of this Court in Moideen v. Razia @ Thankam [I.L.R 2017 (3) Kerala 306]. Ext.P9 order is therefore liable to be set aside and Ext.P8 amendment application has to be allowed, is the final submission.** **5. Learned counsel for the 2[nd] respondent has no specific submission to be made in respect of the** **OP(C) No.4110 of 2011** **- 6 -** **subject matter of this Original Petition, except maintaining that the amounts covered by the policies have been disbursed to the nominee, in accordance with law.** **6. Having heard the learned counsel for the petitioner and perused Ext.P9 order, this Court finds that the same cannot be sustained. The solitary reason which is seen stated in Ext.P9 is that the plaint admits one-half share of the defendant and the amendment propose to take away that admission. To frown upon Ext.P9 order, this Court endorses the submission made by the learned counsel for the petitioner in toto and the judgment in Moideen (supra) is on all fours to the fact situation herein. Therein, the wife filed an Original Petition seeking a declaration that she has one-half right over the properties covered by a document. Thereafter, an amendment was sought for to incorporate a relief for declaration that she is the absolute owner of the entire property.** **OP(C) No.4110 of 2011** **- 7 -** **The same was opposed on the premise that a right, which has already been relinquished, is now sought to be claimed by virtue of the amendment. The Division Bench held that when a person makes a waiver or relinquishment of his or her right, the same should be done knowing all the consequences of such admission and knowing the law on the subject at the relevant time. Therefore, if an admission is based on a wrong assumption of law or on the basis of some wrong advise, without knowing its consequences, the same will not amount to waiver. Accordingly, the amendment sought for was allowed.** **7. Though in the context of the question whether a time barred amendment can be allowed or not, the Honourable Supreme Court, in** _**A.K.Gupta & Sons Ltd**_ **. v.** _**Damodar Valley Corporation**_ **[AIR 1967 SC 96], held in paragraph nos. 7, 8 and 9 that the courts have been bestowed with the power, not to punish the parties for their mistakes, but to ensure that** **OP(C) No.4110 of 2011** **- 8 -** ## **substantial justice is served.** **8. In the instant facts, this Court notice that the claim for one-half share in the amounts covered by the policies left by Smt.Bindu was made, labouring under a wrong assumption and understanding of law. To pin down the plaintiff to such a folly would be nothing but a travesty of injustice, when the law provides the plaintiff for a better right, at least as per his pleadings. Therefore, the amendment sought for is only to be allowed. The question as to whether the parties are to be governed by Section 15 or 17 of the Hindu Succession Act, is something to be decided in the suit.** **9. In the circumstances, Ext.P9 order is set aside. Ext.P8 application is allowed. The learned Sub Judge will proceed with the matter after carrying out the amendment. This being the suit of the year 2010, there will be a direction to try** **OP(C) No.4110 of 2011** **- 9 -** **and dispose of the matter, expeditiously, at any rate, within a period of six months from the date of receipt of a copy of this judgment.** **This Original Petition is disposed of, as** ## **above.** **Sd/-** **C.JAYACHANDRAN, JUDGE** ww **OP(C) No.4110 of 2011** ## **- 10 -** ## **APPENDIX OF OP(C) 4110/2011** ## **PETITIONER'S EXHIBITS:** **EXHIBIT -P1 TRUE COPY OF PART I OF SERVICE OF BOOK OF SMT.M.V.BINDU. EXHIBIT -P2 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE AYYANAVAR MAHAJANASANGHAM DATED 13.05.2000. EXHIBIT -P3 TRUE COPY OF DEATH CERTIFICATE OF SMT.BINDU ISSUED BY REGISTRAR BIRTH AND DEATH, CO-OPERATION OF TRIVANDRUM. EXHIBIT -P4 TRUE COPY OF THE LEGAL HEIR CERTIFICATE ISSUED BY TAHSILDAR, NEYYATTINKARA, DATED 27.02.2008. EXHIBIT -P5 TRUE COPY OF THE PLAINT IN O.S.NO.54/2008 FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTIKARA. EXHIBIT -P6 TRUE COPY OF THE WRITTEN STATEMENT WITH A COUNTER CLAIM FILED BY THE 1ST RESPONDENT BEFORE THE SUB COURT, NEYYATTINKARA. EXHIBIT -P7 TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIM FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTINKARA. EXHIBIT -P8 TRUE COPY OF THE APPLICATION FOR AMENDMENT FILED BY THE PETITIONER BEFORE SUB COURT, NEYYATTINKARA. EXHIBIT -P9 TRUE COPY OF THE ORDER IN I.A.1401/2010 IN O.S.NO.941/2010 DATED 24.08.2011 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.**