IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 AS.No. 730 of 1996() -------------------- OS.60/1994 of SUB COURT, KOZHIKODE .................... APPELLANT(S)/PLAINTIFFS: -------------- 1. NARAYANA MOOLYA 2. KAMALAKSHI 3. GOWRI HENGSU ALL ARE CHILDREN OF MANKU MOOLYA, NO.1 IS RESIDING AT KOMME IN KOLIYOOR VILLAGE AND POST, KASARAGOD TALUK. NO.2 IS RESIDING AT KODLAMOGARU VILLAGE AND POST, KASARAGOD TALUK. NO.3 IS RESIDING AT BALPA VILLAGE AND POST, SULLIA TALUK, (VIA) PANJA, KARNATAKA STATE. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S)/DEFENDANTS: --------------- 1. SADASHIVA MOOLYA 2. NALINAKSHI NO.1 IS THE SON OF MANKU MOOLYA, AND NO.2 IS THE WIFE OF NO.1. NO.1 IS REPORTED TO BE OF UNSOUND MIND, NOW IN CENTRAL JAIL, KANNUR, REP. BY GUARDIAN WIFE NO.2 (GUARDIAN APPOINTED AS PER ORDER IN IA NO.1632 OF 1994) RESIDING AT KOMME IN KOLIYOOR VILLAGE, KASARAGOD TALUK, P.O.KOLIYOOR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17.3.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- A.S.No.730 of 1996 -------------------------------------- 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 AS No.730/1996 2 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 AS No.730/1996 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 ¾ 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 AS No.730/1996 4 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 AS No.730/1996 5 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. AS No.730/1996 6 (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 AS No.730/1996 7 Thomas P.Joseph, J. A.S.No.730 of 1996 JUDGMENT 17th March, 2009