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2025 DAILYLAW 8785 (MAD)

Subbammal (Died) v. Easwarnamurthi Gounder (Died)

2025-08-08

P B Balaji

body2025
ORDER : 1. CRP.No.3185 of 2024 has been filed, challenging the order in I.A.No.386 of 2022 in O.S.No.30 of 2005 dated 03.07.2024 on the file of the District Munsif Court, Palladam, in and by which the amendment application taken out by the plaintiffs came to be dismissed by the Trial Court. Insofar as CRP.No.4585 of 2024, the said revision petition has been filed, challenging the order in I.A.No.3 of 2023 in O.S.No.30 of 2005 dated 13.08.2024 on the file of the District Munsif Court, Palladam, allowing an application for impleadment of proposed defendants in the suit. 2. I have heard Mr.S.R.Raghunathan, learned counsel for Mr.V.Anandamurthy, learned counsel for the petitioner in CRP.No.3185 of 2024, Mr.T.Murugamanickam, learned Senior Counsel for Mr.S.Kaithamalai Kumaran, learned counsel for the petitioner in CRP.No.4585 of 2024 as well as the respondents in CRP.No.3185 of 2024 and Mr.Saran Prasad, learned counsel for the 1 st respondent in CRP.No.4585 of 2024. 3. Mr.S.R.Raghunathan, learned counsel for the petitioner in CRP.No.3185 of 2024 would state that the amendment that was sought for was innocuous and only in the nature of an alternate relief to include a relief for partition in the event of the Will being disbelieved by the Trial Court. He would further invite my attention to the fact that the suit was originally decreed in respect of Schedule 'A' property and dismissed insofar as Schedule 'B' property. However, the First Appellate Court remanded the matter to the Trial Court. He would further state that the Will has also been produced in land ceiling proceedings and at the time of adjudicating the issues, considering the oral and documentary evidence, if the Court comes to the conclusion that the Will is not genuine and true or for other reasons, the Will cannot be acted upon, then being the only other legal heir, the plaintiff, would certainly be entitled to at least half share in the property. 4. The learned counsel for the petitioners would further state that the plea taken by the 1 st defendant in the written statement is one of ouster and therefore, he would contend that in the event of the 1 st defendant also failing to prove his plea of ouster, then the suit cannot be left hanging in balance and only for such reasons, the plaintiff' has chosen to seek amendment of the plaint to include an alternate prayer. The learned counsel for the petitioner would place reliance on the decision of the Hon'ble Supreme Court in Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal) and Others,  2024 SCC Online SC 2615, in support of his contentions. 5. Mr.T.Murugamanickam, learned Senior Counsel appearing for the petitioners in CRP.No.4585 of 2024 as well as the respondents in CRP.No.3185 of 2024 would state that it is not the case where trial had merely commenced but in fact, there being remand post appeal, the amendment is clearly one which is falling under the category of post trial amendment and further, drawing my attention to the filing of the suit in the year 1986, the learned Senior Counsel would submit that there are absolutely no bonafides on the part of the petitioner to seek an amendment of the plaint. He would therefore state that the Trial Court has rightly dismissed the application and the same does not require any interference in this revision, that too under Article 227 of Constitution of India. 6. Insofar as CRP.No.4585 of 2024, the 1 st respondent in the revision filed an application in I.A.No.3 of 2023 seeking his impleadment in the said suit. The learned Senior Counsel would state that though the plaintiffs did not oppose the impleadment and the revision petitioners, who being defendants 2 to 4, have strongly opposed the application. The learned Senior Counsel would state that the Trial Court has erroneously proceeded to find that the proposed 1 st respondent was a necessary party. He would also invite my attention to the impugned order, where no documents have been filed in support of the claim made by the 1 st respondent in the revision. He would further contend that mere production of documents, without marking the said documents cannot be ground to entertain a petition under Order I Rule 10 of CPC. He would further state that the relief sought for in the present suit is in no way related to the claim of the 1 st respondent and therefore, the presence of the 1 st respondent was totally unnecessarily. He would therefore state that the order allowing impleadment has to be necessarily set aside and he would therefore pray for CRP.No.4585 of 2024 being allowed. 7. Mr.S.R.Raghunathan, learned counsel for the petitioner in the other revision would support the contentions of the learned Senior Counsel. 8. He would therefore state that the order allowing impleadment has to be necessarily set aside and he would therefore pray for CRP.No.4585 of 2024 being allowed. 7. Mr.S.R.Raghunathan, learned counsel for the petitioner in the other revision would support the contentions of the learned Senior Counsel. 8. Mr.S.Saran Prasad, learned counsel for the contesting 1 st respondent would state that along with the application in I.A.No.3 of 2023, the petitioner has filed as many as five documents, lending support to the claims made in the affidavit. He would further state that the 1 st respondent's grandfather was enjoying the subject property for more than 70 years and without impleading the 1 st respondent, the suit has been filed. It is the further contention of the learned counsel for the 1 st respondent that the property belonging to the 1 st respondent has been included as one item of the suit property and therefore, the Trial Court has rightly entertained the application for impleadment and no interference is warranted with the order of the Trial Court. 9. I have carefully considered the submissions advanced by the learned counsel as well as the learned Senior Counsel for the respective parties. 10. The suit property consists of two items, namely Schedules 'A' and 'B'. Insofar as Schedule 'A' property, the plaintiffs seek for declaration and possession based on a Will dated 15.05.1957. Insofar as Schedule 'B' property, the claim is for partition and separate possession. One Pachaiammal, who had purchased the property under various Sale Deeds, died on 01.10.1957, leaving behind her daughter, Subbammal, the plaintiff and son, who is the 1 st defendant. As already seen, the suit was initially decreed in respect of Schedule 'A' property and dismissed in respect of 'B' Schedule property. However, before the First Appellate Court, after hearing the arguments, the learned Judge felt that it was a case for remand to the Trial Court and after remand, the parties went for a denovo trial. Immediately after remand, the plaintiff has taken out an amendment application seeking an alternate relief of partition in respect of Schedule 'A' property. 11. The contention of the revision petitioner/plaintiff is that in the event of the Will being disbelieved after the parties lead oral and documentary evidence, then still the plaintiff would be entitled to on a half share, being one of the two surviving legal heirs of late Pachaiammal. 11. The contention of the revision petitioner/plaintiff is that in the event of the Will being disbelieved after the parties lead oral and documentary evidence, then still the plaintiff would be entitled to on a half share, being one of the two surviving legal heirs of late Pachaiammal. It is also noticed that the 1 st defendant has denied the right of the plaintiff based on the plea of ouster. Therefore, if the plea of ouster also stands disproved and at the same time, the plaintiff is also unable to prove the Will, then the status of the suit property, more specifically schedule 'A' would be hanging in the air and therefore, I do not find any infirmity in the request of the plaintiff for seeking amendment of the plaint, by introducing an alternate relief for partition, to declare her half share in the schedule 'A' property. 12. Though it is contended by the learned Senior Counsel that it is not even post trial amendment but post appeal amendment, since the matter has come back to the Trial Court after remand by the First Appellate Court, I am unable to countenance the said submission. 13. On going through the judgment of the First Appellate Court, I find that the First Appellate Court has ordered a denovo trial and immediately thereupon, the application for amendment the plaint has been taken out. Therefore, the same can only be considered as a pre-trial amendment and not post-trial amendment or post-appeal amendment as contended by the learned Senior Counsel. Even otherwise the fact remains that in the event of both the plaintiff and the 1 st defendant failing in their respective contentions, one under the Will and one under the plea of ouster, then the status of the property would be in a state of animated suspension and only in order to address this is likely anomalous situation, the plaintiff has thought it fit to seek amendment of the plaint, by introducing the alternate plea. I do not find that any new case being introduced or the character of the suit getting altered. Therefore, the Trial Court ought to have been liberal in allowing the application for amendment as prayed for. 14. I do not find that any new case being introduced or the character of the suit getting altered. Therefore, the Trial Court ought to have been liberal in allowing the application for amendment as prayed for. 14. Even in the decision relied on by Mr.S.R.Ragunathan in Dinesh Goyal's case, the Hon'ble Supreme Court held that when the dispute pertains to succession and if there is a Will, the same has to be honoured. If a person who is affected by the Will challenges the Will on one ground or the other, then process of succession cannot go forward without determination of the dispute regarding the Will. The Hon'ble Supreme Court further held that not in all cases, delay can determine the fate of a suit and merely because the trial has already commenced, it is not a matter of strict rule that in all cases amendment should be refused. The Hon'ble Supreme Court further held that the object Order VI Rule 17 of CPC is aimed at preventing multiplicity or multiple avenues of litigation, subsumed under the umbrella of one dispute. 15. The ratio laid down by the Hon'ble Supreme Court would equally apply to the facts of the present case since the property is the same, the parties are the same and the alternate relief which is sought for will not in any manner alter the original character of the suit or cause any prejudice to the 1 st defendant in the suit. 16. For all the above reasons, I am inclined to set aside the order of the Trial Court, disallowing the amendment finding that the amendment has been sought for. 17. Insofar as CRP.No.4585 of 2024, the proposed defendant wanted to establish his title in the present suit and the Trial Court has allowed the application. The same is under challenge at the instance of the defendants 2 to 4 and now supported by the plaintiff as well. It is the specific contention of the learned Senior Counsel that in the present suit, the presence of the proposed defendant was totally unnecessary and the proposed defendant is not going to add any value to adjudicate the issues that arise for consideration in the present suit and consequently, the impleading application ought to have been dismissed. It is the specific contention of the learned Senior Counsel that in the present suit, the presence of the proposed defendant was totally unnecessary and the proposed defendant is not going to add any value to adjudicate the issues that arise for consideration in the present suit and consequently, the impleading application ought to have been dismissed. I find that the suit has been filed for declaration of title of the plaintiffs 2 and 3 in Schedule 'A' and for possession and also for partition in respect of Schedule 'B' property by metes and bounds and allot one half share to the plaintiffs 2 and 3. There are also claims for mesne profits and damages. 18. The cause of action for filing the said suit is the Will executed by the original owner, Pachiammal and subsequent to her demise, the claim is made under testamentary succession in respect of Schedule 'A' property and intestate succession in respect of Schedule 'B' property. The proposed defendant claims totally independent right and interest in the suit property, in respect of one survey number which is included in 'A' schedule property in the plaint. The predecessors in interest of the proposed defendant are in no way related or connected to the claim of right by the plaintiff under Pachaiammal, wife of Thirumalai Gounder. Therefore, in the present suit filed for declaration and partition as well as recovery of possession, the proposed defendant, who sets up independent title to one of the items of the suit property, is certainly not a proper or necessary party. 19. The true test is to see whether the presence of the proposed party would be absolutely necessary for the Court to effectively adjudicate the issue that arise for consideration in the suit. However, by impleading himself in the suit, the proposed defendant is admittedly only going to enlarge the scope of the suit itself and the same is not permissible in law. It is always open to the petitioner to work out his right independently, in a manner known to law, subject to bar of limitation and other legal constraints. The Trial Court, erroneously proceeded to allow the application, finding that the 1 st respondent is a proper and necessary party. The reasoning of the Trial Court is unacceptable and wholly unsustainable. In view of the above, I am inclined to set aside the order of the Trial Court. The Trial Court, erroneously proceeded to allow the application, finding that the 1 st respondent is a proper and necessary party. The reasoning of the Trial Court is unacceptable and wholly unsustainable. In view of the above, I am inclined to set aside the order of the Trial Court. 20. In fine, the Civil Revision Petitions are allowed and order in I.A.No.386 of 2022 dated 03.07.2024 and I.A.No.3 of 2023 dated 13.08.2024 in O.S.No.30 of 2005 on the file of the District Munsif Court, Palladam, are set aside. There shall be no order as to costs. Connected Civil Miscellaneous Petitions are closed.