IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 730 of 1996()
1. NARAYANA MOOLYA
... Petitioner
Vs
1. SADASIVA MOOLYA
... Respondent
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/03/2009
O R D E R
THOMAS P. JOSEPH, J.
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A.S.No.730 of 1996
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Dated this the 17th day of March, 2009.
JUDGMENT
Respondents though served, remain absent. I heard counsel for
appellants/plaintiffs.
2. Frills and embroideries excluded, the case of appellants/plaintiffs is
that plaint A schedule properties belonged to late Manku Moolya and that on his
death, it devolved on his children, appellants and respondent No.1/defendant
No.1. Respondent No.2/defendant No.2 is wife of respondent No.1/defendant
No.1. Respondents are in possession of plaint A schedule properties after the
death of Manku Moolya. Appellants alleged that respondent No.1 caused the
death of Manku Moolya and hence, stands disqualified from inheritance by
virtue of Section 25 of the Hindu Succession Act (for short, “the Act”).
Appellants therefore, prayed for recovery of possession of plaint A schedule
properties from the respondents. Respondent No.2 filed written statement
denying the claim of the appellants and contending inter alia that Manku Moolya
and respondent No.1 were in joint possession of the properties and denying the
allegation that respondent No.1 caused the death of Manku Moolya.
Respondent No.2 also contended that respondent No.1 who was then detained
in prison in connection with the charge of the murder of Manku Moolya and his
wife was insane. Appellants moved application to appoint respondent No.2 as
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the guardian of respondent No.1. That application was allowed. That was
followed by respondent No.2 filing a written statement on behalf of respondent
No.1 as well adopting the contentions already taken up by her. In the course of
the pendency of the proceedings appellants filed I.A.No.675 of 1996 to amend
the plaint to incorporate an alternative prayer for partition of plaint A schedule
properties among them and respondent No.1 in case their contention that
respondent No.1 is disentitled for inheritance is found against. Learned Sub
Judge vide order dated 24.6.1996 dismissed the application holding that the
amendment if allowed will demolish the foundation of the plaint. Appellants
adduced oral and documentary evidence. There was no evidence for the
respondents. Learned Sub Judge vide the impugned judgment and decree
dismissed the suit holding that there is no evidence to hold that respondent No.1
caused the death of Manku Moolya. Hence this appeal.
3. It is contended by the learned counsel for appellants that learned
Sub Judge was not correct in dismissing the application for amendment in that,
the claim of the appellants that plaint A schedule properties belonged to Manku
Moolya remained the same without change even by the amendment as sought
for. According to the learned counsel, even without an amendment as proposed
it was within the power of the court below to allow a lesser relief of partition of
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3
plaint A schedule properties among the appellants and respondent No.1.
Learned counsel therefore prayed that appellants be given a preliminary decree
for partition of their > share in plaint A schedule properties.
4. It is seen from paragraph 7 of the judgment under challenge that
learned Sub Judge found that appellants were able to prove that plaint A
schedule properties belonged to them and respondent No.1 jointly. Learned Sub
Judge found that the allegation that respondent No.1 caused the death of
Manku Moolya is not proved and hence, disinheritance under Section 25 of the
Act is not permissible. As to the prayer of the appellants for partition, learned
Sub Judge observed that appellants cannot be granted a decree for partition as
it would work out injustice and prejudice to respondent No.1 but it is not stated
in what way injustice or prejudice will be caused to respondent No.1.
5. There cannot be a dispute, and the learned Sub Judge has also
referred to the relevant decisions on the point that it is open to the court to mould
relief even without amendment of the plaint. Court can grant relief in
appropriate cases based on facts admitted by the defendant if no prejudice is
caused to the defendant. In this case appellants disputed the right of
respondent No.1 only under Section 25 of the Act. Therefore, it is not as if
injustice or prejudice will be caused to respondent No.1 if the amendment of the
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plaint prayed for was allowed. It is not as if the court is powerless to allow
amendment if it changes the character of the suit. There is nothing that prevents
the appellants from relying upon different rights alternatively or making
inconsistent allegations and claiming relief thereunder. Therefore, it was open to
the appellants to alternatively seek the lesser relief of partition between
themselves and respondent No.1, assuming that they could not succeed in
disqualifying respondent No.1 from inheritance under Section 25 of the Act.
When amendment of the plaint is sought for, the courts must be liberal in
considering the request provided ofcourse by such amendment no prejudice or
injustice is caused to the opposite party, since the ultimate aim of the court is to
render justice to the parties rather than push them to multiplicity of
proceedings.
6. Though the order on I.A.No.675 of 1996 has not been separately
challenged by the appellants, they are entitled to challenge the correctness of
that order in the appeal from the judgment and decree under Section 105 of the
Code of Civil Procedure as the dismissal of I.A.No.675 of 1996 has affected the
ultimate decision in the suit. Learned counsel for appellants fairly concedes that
the appellants are not pursuing their claim under Section 25 of the Act. On the
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facts and circumstances of the case, it is only just and proper and necessary to
avoid to multiplicity of proceedings that the amendment sought for as per I.A
No.675 of 1996 is allowed. Therefore, that application will stand allowed.
7. The necessary corollary is that the matter has to go back to the
trial court for consideration of the relief incorporated by amendment. Appellants
shall carry out the amendment in the plaint within two weeks from the date of
their appearance in the trial court. Respondents will be given sufficient
opportunity to file additional written statement if any consequent to the
amendment. Both sides will get opportunity to adduce evidence as well.
8. No other point is raised for consideration.
Resultantly, this appeal is allowed in the following lines:-
(i) I.A.No.675 of 1996 is allowed and the appellants are
permitted to amend the plaint accordingly.
(ii) The finding of the court below that respondent No.1 is not
disentitled from claiming right over suit property under Section 25 of the Act is
confirmed.
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(iii) The judgment and decree of the court below dismissing the
suit are set aside and the case is remitted to that court for consideration of the
relief incorporated by amendment.
(vi) Parties shall suffer their cost in this appeal.
(v) Parties shall appear in the trial court on 22.5.2009. In
case the respondents do not appear in that court on 22.5.2009, learned Sub
Judge shall issue summons to them for their appearance. Learned Sub Judge
is directed to expedite the trial and disposal of the case.
C.M.P.No.4439 of 1996 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
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Thomas P.Joseph, J.
A.S.No.730 of 1996
JUDGMENT
17th March, 2009