IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 OP(C).No. 2861 of 2011(O) ------------------------- I.A.NO.1223/2011 IN OS.3/2009 of MUNSIFF COURT, CHITTUR .................... PETITIONER: --------------------- GURUDRISHYA, D/O.LATE SIVANKUTTY, AGED 10 YEARS, MINOR REP.BY NEXT FRIEND, PRABHAKARAN, S/O.VELAYUDHAN, AGED 43 YEARS, KARINKULAM PADINJARE MURIYIL,ELAVANCHERRY, CHITTUR TALUK, PALAKKAD DIST PIN-678 101. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ---------------------------- BHASKARAN,S/O.VELAYUDHAN, AGED 57 YEARS, KUTHIRAMOOLI, KIZHAKKETHARA,NENMENI,KOLLENGODE, CHITTUR TALUK,PALAKKAD,NOW RESIDING AT PEZHUMPOTTA KALAM, ANAMARI P.O.,KOLLENGODE, PALAKKAD DISTRICT, PIN-678 506. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2861/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.3/2009 OF THE COURT OF THE MUNSIFF, CHITTUR. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN THE SUIT. P3: COPY OF THE AMENDMENT APPLICATION, I.A.NO.1223/2011 IN O.S.NO.3/2009 OF THE COURT OF THE MUNSIFF, CHITTUR. P4: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN I.A.NO.1223/2011 IN O.S.NO.3/2009 OF THE COURT OF THE MUNSIFF, CHITTUR. P5: COPY OF THE ORDER DTD. 13/07/2011 IN I.A.NO.1223/2011 IN O.S.NO.3/2009 OF THE COURT OF THE MUNSIFF, CHITTUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2861 of 2011 -------------------------------------- Dated this the 31st day of August, 2011. JUDGMENT Petitioner is the plaintiff in O.S.No.3 of 2009 of the court of learned Munsiff, Chittur. That is a suit for partition of the suit property and cancellation of a release deed executed by her mother, the 4th respondent in favour of the 1st respondent. According to the petitioner the property was acquired by her grand father on lease, he died in the year 1977 and the grand mother of petitioner also died in the year, 1987. Thus, respondents 1 to 3 and the father of petitioner acquired right over the property. On the death of the father, his share devolved on petitioner and the 4th respondent, mother of petitioner who is said to have later married the 3rd respondent. The 4th respondent is said to have released share of petitioner to 1st respondent which according to the petitioner, is not valid. Hence the suit for partition and separate possession of share of petitioner and for cancellation of the release deed. The 1st respondent/1st defendant filed written statement contending that the properties after the death of the grand parents of petitioner (parents of the 1st respondent) belonged jointly to respondents 1 to 3 and the father of petitioner and on the death of the father of petitioner, his share devolved on petitioner and the 4th respondent. He also contended that the properties were being enjoyed jointly by respondents 1 to 3 and the father of petitioner as joint owners and on the death of the father, his share devolved on petitioner and 4th respondent. Later, 1st respondent filed OP(C) No.2861/2011 2 I.A.No.1223 of 2011 for amendment of the written statement to incorporate a plea that the property was retained by the father of petitioner and respondents 1 to 3 without partition as joint family property and that petitioner had only an undivided interest in the property which the 4th respondent as her natural guardian assigned in favour of the 1st respondent. Though that petition was objected by petitioner, learned Munsiff allowed it by Ext.P5, order which is under challenge. Learned counsel contended that amendment ought not have been allowed for various reasons, viz. that it affected the nature and character of property, power of the 4th respondent to assign share of petitioner and as it worked out prejudice to the petitioner. It is also pointed out by learned counsel that the request for amendment came only after learned District Judge, Palakkad disposed of C.M.A.No.87 of 2009 filed by 1st respondent challenging the order on I.A.No.10 of 2009 granting order of injunction. It is further contended that at any rate, Ext.P5, order is cryptic in nature. 2. I have gone through Ext.P5, order where learned Munsiff has observed that the nature of contentions in the written statement will not be changed by amendment and hence the application is allowed. No doubt, learned Munsiff ought to have referred to the contentions raised by petitioner against allowing amendment. But, it is seen from the order under challenge that learned Munsiff had in mind the contentions raised by petitioner and the plea already raised by the 1st respondent in his written statement. OP(C) No.2861/2011 3 3. On the merit of the amendment, learned counsel has placed reliance on the decision in Revajeetu Builders and Developers v. Narayanaswamy and sons and others [(2009) 10 SCC 84]. There, the Supreme Court has stated circumstances under which a request for amendment could be allowed. In paragraph 63 it is stated that the court has to be satisfied that the amendment sought is imperative for proper and necessary for effective adjudication of the case, whether application for amendment is bona fide or mala fide, whether the amendment would cause prejudice to the other side which cannot be compensated adequately in terms of money, whether refusing the amendment would lead to injustice or lead to multiplicity of litigation, whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case and that as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. The Supreme Court has pointed out that the above are only illustrative and exhaustive. 4. In the case on hand the 1st respondent has contended in Ext.P2, written statement that the properties were being enjoyed jointly by respondents 1 to 3 and the father of petitioner as joint owners and on the death of the father, his share devolved on petitioner and 4th respondent and later, 4th respondent released it in his favour. By Ext.P3, application what is sought to be incorporated by amendment is a contention that respondents 1 to 3 and the father of petitioner were enjoying the property as joint family property without partition and OP(C) No.2861/2011 4 that on the death of the father, petitioner got only undivided interest in the property which the 4th respondent as natural guardian has released to the 1st respondent. 5. I am not inclined to think that the plea sought to be incorporated in the written statement by amendment, and that too, before commencement of trial would in any way cause prejudice to the petitioner. The question whether the property was held by parties as joint family property and therefore, the release of share of petitioner required sanction of the court are matters which the trial court has to decide in the course of trial. 6. True that learned District Judge, Palakkad while disposing of C.M.A.No.87 of 2009 observed in paragraph 9 of the judgment about the contention raised on behalf of the 1st respondent (appellant before the learned District Judge) that the property is a joint family property, petitioner has only undivided interest and the same could be released by the 4th respondent as her natural guardian and the learned District Judge has observed in paragraph 10 of the judgment that in the written statement there is no contention that the property is joint family property. But it is the position of law that request for amendment of written statement has to be approached more liberally. I must also bear in mind that no amount of admission could confer title and hence even an admission concerning title could be withdrawn by amendment (See Kunhabiumma v. Rabiumma – 1997 (2) KLT 936). Here, by OP(C) No.2861/2011 5 amendment an additional plea is incorporated that the property being joint family property, petitioner has only undivided interest in the property which the 4th respondent as natural guardian could release in favour of the 1st respondent. As I stated, whether that contention could be sustained or not, is not required to be considered at this stage. 7. Learned counsel for petitioner has pointed out that the suit is listed for trial on 02.09.2011 and since the case bundle is with the learned counsel, the trial court lawyer was not able to go through the matter and get ready for trial of the case. In the circumstances learned Munsiff, Chittur is directed to post the case (without removing the same from the list) to a convenient day after 19.09.2011. With the above direction, Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks